The cynic

by | Jul 16, 2015 | 2016 Elections, Editor's Blog | 11 comments

Ken Spaulding launched the first attack ad of the 2016 yesterday. In a radio spot, he slammed Attorney General Roy Cooper for representing the state in the voting rights law suit taking place in Winston-Salem. The ad accuses Roy Cooper of siding with Pat McCrory.

It’s a cynical ad. Spaulding knows that it’s Cooper’s job to defend the state in lawsuits whether he agrees with them or not. Cooper has publicly said that he disagrees with the law and would have vetoed it if he were governor.

Spaulding claims that Cooper is picking and choosing which cases to try and cites the Attorney General’s decision not to defend the same-sex marriage ban. Cooper made that decision after federal courts made clear that the state could not win. Before that decision he did defend the ban, just as his job and the state constitution directed him to do.

So who is Ken Spaulding anyway? Before he’s attacking Roy Cooper, he needs to make himself a credible candidate. His biggest asset right now is that he’s not part of the Democratic political establishment, what little there is left of it.

From what I can tell, Spaulding comes from a wealthy Durham family and spent a few of terms in the legislature about 30 years ago. He gave up his seat in an unsuccessful bid for Congress in 1984. According to his website, in the mid-1990s he was involved in fairly traditional Durham politics, serving as chairman of the Durham Committee on the Affairs of Black People. He was appointed to the state Board of Transportation by Mike Easley in the in 2005. He left after one term because of potential conflicts with development projects he represented. No raging progressive here. 

Spaulding is running as an outsider but there’s not much evidence of that. He’s been an establishment player his entire career. However, he’s also not done much to help other Democrats. When I asked one Durham political leader if Spaulding would get much support in Durham, I was told that he’s done little to support other Durham Democrats so there’s little reason for him to expect support from them.

So far, Ken Spaulding looks less like the progressive alternative to Roy Cooper than the cynical opportunist. His resume reads like the a typical insider regardless of what his press releases say. His lack of support from the people who know him best should give everybody pause.

11 Comments

  1. Robert A. Melott

    I am posting this because nothing said so far relies on, or indicates any knowledge or understanding of, the law that is applicable. I will try, too briefly due to time and space limitations unfortunately, to set that record straight. I do so from my perspective as a former tenured professor at the UNC law school and the former Chief Administrative Law Judge of the state, as well as a short stint as a Special Deputy Attorney General.

    In his recent refusal to pursue the appeal in the same sex marriage case Mr. Cooper has, at long last, accepted the authority that has been his all along — to be the final authority on the State’s position in any litigation.

    The Attorney General takes an oath to support the US Constitution, and the NC Constitution only so long as it is not inconsistent with the US Constitution. General Statute 11-7. The point is that the AG cannot and should not defend a statute that in his professional opinion violates the US Constitution and especially should not defend one that is similar or virtually identical to one from another state that the federal courts have held violates the US Constitution.

    Moreover, GS 114-1.1 was amended in 1985 to add that the AG has had and continues to have the powers of the office that existed at common law. I was consulted by the leaders of the General Assembly at that time about this amendment when it was proposed and it was clear that the intent of this provision was to affirm the proposition that the AG decides the state’s position on all legal questions and can choose to represent the state or not in a case, decide the state’s legal position when two agencies disagree on what that position should be, etc. This section has not been interpreted by the courts in NC (primarily, one may speculate, because no AG has tried to exercise it) but similar language or the basic proposition or both have been discussed in a number of cases in other states and in quite a few law review articles. One of the better reasoned cases says (and this is a direct quote):

    “The office of attorney general has existed from an early period both in England and in this country, and is vested by the common law with a great variety of duties in the administration of the government. The duties are so numerous and varied that it has not been the policy of the Legislatures of the states of this country to attempt specifically to enumerate them. Where the question has come up for consideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the powers pertaining thereto at common law. From this it follows that, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. He may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the law of the state, the preservation of order, and the protection of public rights.” Commonwealth v. Kozlowski, 131 N.E. 207, 212 (Mass. 1912) emphasis added.

    And it might also be noted that GS 114-2(8)(a) empowers the AG to intervene on behalf of the public or to institute proceedings on behalf of the public when appropriate – which more or less codifies the last sentence of Kozlowsk.

    The current AG has, until and exclusively so far in the same sex marriage case, taken the position that the highest duty of the office is to defend the acts of the executive and legislative branches regardless of the AG’s professional opinion of the validity of the action or enactment. That is simply not true. It is a position that keeps the AG on good terms with other elected officials and with appointed officials but it ignores the common law power of the AG to be the final authority on which cases to litigate and which ones not to litigate – in other words to have the power to set the state’s position on legal questions. This is particularly true in a state, like NC, where the AG is a separately elected constitutional official and even more particularly true where the legislature has, as in GS 147-1.1, specifically said that the AG “had and has” all of the common law powers of the office.

    MOST IMPORTANT: This AG relies, as have his predecessors, on the proposition that the governor, the legislature, the agencies, etc. are his clients and he has to represent them no matter what. That is not true. The people of North Carolina are his clients and he should be representing them if the governor, the legislature, the agencies, et al. are acting against the interests of the people. One of the interests of the people surely is that tax money not be wasted on futile litigation.

    But accepting, arguendo, that the AG has an obligation to defend the acts and enactments of the officers and agencies, in other words that the state as an entity is his client, the Code of Professional Responsibility gives him an additional and different directive. Rule 1.2(a)(3) states that a lawyer may exercise professional judgment to waive or fail to assert a right or position of his client. In other words, the AG has the permission and the instruction of the rules of the legal profession to exercise his professional judgment when appropriate.

    Mr. Spaulding is correct on this issue. The duty of the Attorney General is to represent his clients — the people of North Carolina. The test for his decision making in these matters is what, in his professional judgment, are the merits of the case, not what is politically expedient. It is a matter of moral and professional integrity.

    • Norma

      Thank you for the careful and cogent explanation. Not sure what I think of Mr. Spaulding as I know too little to make a thoughtful judgment, but my doubts about Mr. Cooper are growing. He has chosen to defend legislation that I seriously doubt will survive challenges, nor should they.

    • Frank Spaulding-Bey

      Mr. Robert A. Melott thank you for your scholarly references as I feel validated in my support for Ken Spaulding as you have eloquently stated, “Mr. Spaulding is correct on this issue. The duty of the Attorney General is to represent his clients — the people of North Carolina. The test for his decision making in these matters is what, in his professional judgment, are the merits of the case, not what is politically expedient. It is a matter of moral and professional integrity.”

      This is why Ken Spaulding needs to be taken seriously as it shameful for him to be described as a cynic and being the beneficiary of a wealthy family as any wealth that Ken’s family has accumulated has been via. the same moral and professional integrity that you speak of in your final paragraph. That is the same moral and professional integrity that Ken has used to build his stellar legal career that he disires to share with the great state of NC as the state’s next Governor in 2016 with a view to moral and professional integrity coupled with fair and honest leadership for all of the citizens of NC.

  2. Beverly

    I have met Roy Cooper twice at small Democratic gatherings even before he decided to run against McCrory, In a one-on-one conversation I asked him why he could not stop the voter suppression laws. They violated Federal laws. He said he hated these laws as much as all of us but as AG it was his job to represent the State of NC. He had tried to slip in less aggressive language and to point out what he thought would bring NC into lawsuits with the Federal government. However, as much as it sickened him he was NC’s lawyer and had to defend the State laws. He told me he did not know how much longer he could do the AG job because he saw many as unethical, immoral, and discriminatory.
    Roy Cooper would make an excellent Governor and would undo as much of McCrory’s destruction of our State as possible.
    I think he should run against the worthless, do-nothing, vote NO on everything Burr. NC needs a Senator who actually cares and works for the People of NC. No one owns Roy Cooper. He is a man of character, ethics, and finds Republican tactics sickening.

    • Frank Spaulding-Bey

      I have never met Roy Cooper as I do know Ken Spaulding as it will be great to see the two North Carolina University graduate lawyers debate as the Attorney General has not officially thrown his hat into the 2016 Gubernatorial race as he is being viewed as the Democratic establishment favorite. The latter mentioned fact in my opinion absolutely demonstrates the go along to get along mentally of the Democratic party in NC that has witnessed them losing power and control in the state to becoming absolutely politically irrelevant when you have a sitting Democratic President in Washington, DC.

      How the great state of NC has found it in this position is absolutely mind boggling to me and thank goodness Ken Spaulding is up to the task of challenging the business as usual mentality of the Democratic establishment in NC coupled with challenging what has become business as usual with the present Republican administration in NC.

      Ken Spaulding is precisely what the state of NC need at present which is open and honest dialogue about what has gone wrong at present in the state of NC and what are the options in correcting it as Ken Spaulding is making himself a visible and viable option.

  3. Norma

    Some AGs manage to have press statements that make it clear that the defense of a case is from the OFFICE of the AG, not from the AG personally. Not sure Roy Cooper has mastered that art, but it would serve him well. I have seen numerous press reports that attribute to Mr. Cooper comments that I hope are actually part of the briefs submitted, but unless I watch every day for his personal remarks, I can not always discern the distinction. Most voters will not bother.

  4. Hayes McNeill

    Disappointing. Stuff like this reveals character, or lack of it.

  5. Albert B

    Looks like the Pubs put up their Democratic agent provocateur. Time for the Dems to run their shadow Republican candidate.

  6. Steve Harrison

    I like Ken, but I don’t like the negative stuff about Cooper. There’s more than enough McCrory fodder for dozens of ads, and that’s what the average voter needs to be exposed to.

    That being said, it’s understandable that he would have a chip on his shoulder re Cooper. Spaulding has been a declared candidate for well over a year now, but as far as the Party’s establishment is concerned, he doesn’t even exist. They’ve chosen Coop, and anybody who can write a check bigger than $100 is “expected” to write it for Roy. And after a couple of fundraisers that cost considerably more than you bring in, that blue wall starts to feel like something personal. That’s not a good place to be, and does not encourage people to join your cause.

    • Frank Spaulding-Bey

      Ken Spaulding makes a very good put when he states, “that Cooper is picking and choosing which cases to try and cites the Attorney General’s decision not to defend the same-sex marriage ban.” “Cooper made that decision after federal courts made clear that the state could not win” as the article stated and then further stated that “before that decision he did defend the ban, just as his job and the state constitution directed him to do.”

      Not for nothing, Donald Trump is not a part of the establish on the national Republican Party scene and he is the front runner at present in the 2016 Presidential race. I like and respect the fact that Ken Spaulding is taking his time, financial resources and contributions from his fund raising efforts that have been coming into his campaign from other concerned North Carolinian voters over the present political Republican quagmire in NC to speak truth to power and hopefully energize and galvanize the Democratic party In NC and lead it to victory in 2016.

      There is nothing like competition in America which is what make us great and it is even more great to hear and see competing voices in the political landscape so voting citizens can have an opportunity to intelligently pick, choose and refuse facts from fiction to ultimately make the most sound and intelligent decision on election day as opposed to just accepting a political party or political establishment rubber stamp on a candidate as a good candidate for us Democrats to vote for because they happen to be the highest ranking Democrat in the state.

      I applaud Ken Spaulding for having the courage to speak on matters that is no doubt making many feel uncomfortable about in the NC political landscape.All NC citizens need to be made aware of these matters as the nuances that Spaulding has pointed out in the voter suppression issue in NC is not widely and publicly being discussed with a critical and constructive lens as it pertains to the AG’s office and all political players in NC that are for it or against it. I say, where is the Democratic establishment to speak out about this matter where as Ken Spaulding is speaking out about the matter?

      • Frank Spaulding-Bey

        Pardon me as put in the first sentence should be point.

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