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AG Herring Draws A Bar Association Complaint

By Greg L | 29 April 2014 | Illegal Aliens, Virginia Politics | 8 Comments

Soon after Mark Herring became our Attorney General it became obvious that he’s much more of a politician than a lawyer. Just how bad a lawyer he is hasn’t been quite so obvious perhaps until today when he publicly released privileged correspondence because it had significance for the leftist political agenda to which he has devoted the Office of the Attorney General.

First year law students don’t screw up this badly, because they know better.

Herring wants to make sure that illegal aliens receive a publicly-subsidized college education so they can qualify for future jobs that they can’t legally hold, while legal workers continue to suffer from unemployment and underemployment. President Obama’s little trick of inventing administrative policies excusing the executive branch from not upholding the law, in this case his “Deferred Action for Childhood Arrivals” policy provided Herring with his opportunity to weigh in on the matter of whether illegal aliens in Virginia should qualify for in-state tuition rates, a matter that has been exhaustively considered by the General Assembly since at least 2008 and soundly rejected every session.

Today Herring released an “AG Advice Letter” addressed to the Presidents of Virginia’s colleges and universities saying that in his opinion illegal aliens do in fact qualify for in-state tuition. It’s important to note that this is not an official opinion of the Attorney General, as it was not requested by the Governor or member(s) of the General Assembly, but was a response to unidentified public inquiries which may or may not have included the recipients of this letter. Because this is not an official opinion, but the provision of legal advice between an attorney and his clients (employees of the Commonwealth of Virginia) this would normally be considered correspondence that falls under attorney-client privilege.

When an attorney releases privileged information it can pose dire consequences in litigation as it makes it possible for opposing counsel to access all relevant communications between the attorney and the client. It also opens up all correspondence on this matter to and from the Attorney General to the public under the Freedom of Information Act. Anything told to Herring in confidence, and any confidential guidance Herring has provided has entirely lost all protection from the prying eyes of the public and the legal discovery process.

And yes, I do intend to take full advantage of this unheard of opportunity to determine just who is pushing this leftist agenda within our Commonwealth and why. I think the public is going to learn a lot about what’s going on in this office in the coming weeks.

Although there’s a great opportunity for some much-needed sunshine to visit Mark Herring, this is a pretty bad development for Virginia’s top legal office. If Herring is going to make this kind of screw-up in the future, it might severely jeopardize the Commonwealth’s ability to defend it’s laws in court, should Herring ever discover that such activity is actually his job.

In order to protect the ability of the Commonwealth to maintain a consistent legal environment and preserve the legal system it is incumbent upon me to file a complaint this evening with the Virginia Bar Association for Herring’s willful violation of Rule 1.6 of the Rules of Professional Conduct. The sanction for this violation may help him to serve the residents of the Commonwealth in a more professional manner, or remove him from the profession altogether, which may be the best way the Virginia Bar could possibly improve the quality and performance of the Office of Attorney General.

UPDATE: A Freedom of Information Act request has also been filed requesting copies of all correspondence to and from Mr. Herring and his staff regarding the release of this letter, citing that Herring has waived all disclosure exemptions available under Virginia Code § 2.2-3705.1(2).

UPDATE 2: Delegate Bob Marshall weighs in, noting that if Herring’s edict actually went into effect, Virginia taxpayers would be providing a subsidized post-secondary education to illegal aliens that legal residents do not qualify for.

April 30, 2014

Contact: Delegate Bob Marshall (703) 853-4213

Czar Herring Issues Edict Allowing In-State Tuition for Illegal Immigrants

Manassas, VA - “Being an American citizen apparently means little to Virginia Attorney General Mark Herring who claims in a ‘Dear Friend’ letter to Virginia’s Colleges and Universities that persons who are in Virginia illegally must be treated as legal Virginia residents for the purpose of receiving in-state tuition at state colleges,” Delegate Bob Marshall (R-13) said today.

“This means college age students who are not legal residents of Virginia will compete with legal residents for coveted spots at Virginia Colleges and Universities and be eligible for reduced tuition rates and other forms of student financial aid, all subsidized by Virginia taxpayers. This is not fair to the legal residents of Virginia,” said Marshall.

Delegate Marshall noted, “I have sympathy for children who are here through no fault of their own, brought to our country illegally by their parents, but we have a system of laws in Virginia that must be respected. An Attorney General cannot unilaterally change Virginia law. Only the General Assembly may do that. Five members of the General Assembly introduced bills in 2014 and three in 2013 to make in-state tuition rates apply to illegal immigrants. None passed.”

“Why does Mark Herring think he can pass a law with a ‘Dear Friend’ letter? This is a dangerous usurpation of powers the people of Virginia only gave to the General Assembly and does not bode well for other assaults on Virginia taxpayers,” Marshall asked.

Marshall pointed out, “We do not now grant in-state tuition rates to American citizens who are residents of Kentucky or any other state. Is that unjust, cruel or condemning these students to a life of limited opportunities? No. They are eligible to attend our fine state colleges but must pay the same tuition as American citizens from other states or citizens of other countries. Right now students from other countries who are here legally with valid student visas are not eligible to receive in-state tuition so why are we allowing illegal immigrants to obtain this benefit?”

Because of federal law 8 USC 1623 signed by democrat President Bill Clinton, the effect of Mr. Herring’s policy would require Virginia taxpayers to subsidize all students at Virginia Universities regardless of their state of residence if we admitted the students favored by Mr. Herring. This would produce a huge budget increase to be borne by taxpayers Marshall noted.

In closing, Delegate Marshall stated, “Mr. Herring was elected to defend the laws and Constitution of Virginia. So far in his tenure Mr. Herring has seen fit to attack the Constitution of Virginia within two weeks of his taking an oath to defend it (same-sex marriage), and now he thinks his personal opinion is enough to amend state law. Mark Herring was not vested with powers to override and replace Virginia’s Constitution, the authority of the​ General Assembly or the Governor of Virginia.”

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  1. Jon Wong said on 1 May 2014 at 9:23 am:
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    Just what did you expect from “The RED” Herring?

  2. Charles Sutherland said on 2 May 2014 at 11:04 am:
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    Your legal action is a wonderful idea. It’s so refreshing to see people DOING something, instead of talking.

    Since the AG has no right to tell the colleges and universities to give these discounts (and taxpayer money) to illegal aliens, I would suggest the possibility of also sending letters to the presidents of these educational institutions — putting them on NOTICE that if they ‘give away’ this tax-payer money they (the institutions and their President/Chancellor/Board of Directors) will become personally liable to repay it from subsequent legal action.

    (I think a similar approach should be adopted to those who ‘unlawfully’ participate in the implementation of Obamacare. I wanted to get involved in doing things like this, but… it didn’t happen.)

    It’s time to act, not talk.

  3. Winston said on 4 May 2014 at 6:05 am:
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    Isn’t this the same kind of activist garbage the Cooch carried on with? Of course he had Marshall asking the questions so he could render his opinion. IMO those opinions are how he took what should have been a slam dunk win against a lying carpetbagger and turned it into “Oh, look how close he came!”

    Too many conservatives sat quietly while Cooch did it and NOW they are upset? People see that and don’t think for a second the liberal side doesn’t point it out for them if they don’t see it.

    I didn’t like what the AG did then and I don’t like what the AG is doing now. I’m hoping the opinion is ignored or changed. I’ve sent my emails.

    Bob Marshall is not helping anyone. He is a very nice man and he is correct on this issue but he just has to keep working those other “core” issues into the conversation. He has already turned too many people off to be effective. Nothing is going to happen to Herring.

  4. Greg L said on 4 May 2014 at 3:02 pm:
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    Actually, no. If you think Ken Cuccinelli was engaging in some activist legal crusade that was inconsistent with his duty as Attorney General, I suspect you haven’t ever read any of his court briefs or Opinions. They’re quite interesting reads which present a rather serious danger of actually educating those who read them.

  5. Jeanine Martin said on 5 May 2014 at 2:16 am:
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    Winston, what laws did Ken Cuccinelli refuse to uphold in the Commonwealth?

  6. J Doe said on 5 May 2014 at 8:15 am:
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    So, as part of these student’s college applications they have to prove they do not have legal status to be in this country? And the colleges of this Commonwealth are now expected to use taxpayer funds to pay for the education of these students? Awarding bad behavior will bring more. . .

    The cancer has spread from DC to Richmond.

  7. Winston said on 28 May 2014 at 4:59 am:
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    Ignored what laws? Are we confusing hte Constitution with law? BTW - the US Constitution still trumps state law. And yeg Gregg, I DO think he was on an activist crusade and if you got a little more education maybe you would would understand why Cooch lost a slam dunk election. The majority of the state does not like activists.

  8. Greg L said on 28 May 2014 at 9:52 am:
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    Let me get this straight: you lecture me on being ignorant by saying the U.S. Constitution is not a part of the body of law that we follow.

    Folks, this is how people like Obama win.

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