McDonnell as "Activist Judge"

Back in October, I wrote a post titled Choosing Your Lawyer: What You Should Ask the Candidates for Attorney General.

In the post, I suggested that you ask "How will the candidates interpret the law in official opinions they write as Attorney General? Will the candidates be "activists" or "strict constructionists?" I said "Just as it is important to know how a judge will apply the law and what regard he or she will have for past decisions, it is important to know how a candidate for the office of Attorney General will approach this quasi-judicial opinion writing function."

Well, today we learned for sure how McDonnell sees his role -- he's definitely an "activist" who will seek to use the opinion writing process for political ends.

Today, McDonnell issued opinion no. 05-094, in which he holds that the Governor does not have the legal authority to issue an executive order that includes sexual orientation in the state personnel policy against discrimination in public employment.

In January, Delegate Bob Marshall asked the AG for the opinion on the question whether, as the Commonwealth’s Chief Personnel Officer, the Governor can, by Executive Order, protect state employees from discrimination based on sexual orientation. The result today was an opinion clearly informed more by political considerations than sound legal research or reasoning.

Here's what EV's Board Chair and Executive Director had to say in a press release issued today:

“Governor Kaine is the Chief Personnel Officer of the Commonwealth and is granted broad constitutional and statutory rights to set policy for the employees he manages,” said Jay Squires, EV Board Chair and Richmond attorney. “McDonnell’s opinion finds that the Governor, like a locality under the Dillon Rule, only has the authority expressly conferred on him by the legislature. This interpretation is in conflict with generally accepted principles regarding the separation of powers of the legislative and executive branches of government, and flies in the face of years of precedent.”

“In one of his first official acts as Attorney General, McDonnell has shown that, in issuing official opinions from his office, he will be an ‘activist judge’ who will strain to reach legal conclusions that will please the most narrow-minded of the constituents to whom he must feel he owes last fall’s slim margin of victory,” said Dyana Mason, Equality Virginia Executive Director. “It is sad that in a state where 87% of voters support the right of gay men and lesbians to be free from discrimination based on sexual orientation, Attorney General McDonnell felt that he had to placate a small minority with this obviously result-oriented, political opinion.”

It is even sadder that the release of the opinion today was clearly timed so that it was after the Senate and House considered proposals to cut nondiscrimination language from the budget. Both houses argued that the budget language was “unnecessary” because it duplicated language in existing state and federal law, including the ExOrder.

And, in an even crueler twist, the opinion cites the close vote on SB 700 earlier in the session as evidence that the legislature has rejected protections for sexual orientation discrimination despite the fact that a major argument against the bill in the Senate committee was that the Executive Order and the budget already offered such protection.

Attorney General McDonnell set a bad precedent for his term as Attorney General today. He made clear that politics will dictate his legal analysis and opinions during his four years in office.

That’s a shame.