Choosing the People’s Lawyer: Questions to Ask Candidates for Virginia Attorney General

This is an update of a blog entry I wrote before the 2005 elections regarding the role of the Attorney General and the scope of the power we afford the person we elect to this too little discussed, "down ballot" race. I hope that you will find it helpful.

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General
The Virginia Attorney General is the people’s lawyer serving as our advocate in consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us.

Just as you choose carefully the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two men running for Attorney General this year, Delegate Steve Shannon (D) and Senator Ken Cuccinelli (R).

Here are some questions to ask that will help you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 3rd:

How will the candidates represent your interests as "consumer counsel?"

The Attorney General is required by state law to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act prosecuting actively those who deceive consumers by making false claims about their products or services? What action will either take to protect consumers’ interests when electric and telephone rates are reviewed by the State Corporation Commission? One past Attorney General helped reduce workers’ compensation insurance costs for businesses by aggressively fighting insurance rate cases before the State Corporation Commission. Others have been less active.

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case or sign an amicus ("friend of the court") brief?
Past Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; and 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972.

How will this year’s candidates make these decisions? Will their choices reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute?

Will the candidates be "activists" or "strict constructionists when it comes to interpreting the law?

The Attorney General is required to issue formal opinions regarding how the law should be interpreted when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor’s authority to vote as "a member of the Senate."

Just as it is important to know how a judge will apply the law, it is important to know how a candidate for the office of Attorney General will carry out this judge-like responsibility.

One example shows the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. The three Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. How will this year's candidates approach this important duty?

Will the candidate be a good steward of your tax dollars?

The Attorney General of Virginia, who makes a salary of $150,000 a year, is the managing partner of a public law firm with almost 350 employees and a budget of more than $36 million -- not including the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General, and the millions of dollars spent annually on outside counsel (private lawyers and law firms) who handle matters ranging from issuance of bonds to collection work.

What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid? How will each candidate account for the $9,000 a year that he will receive as Attorney General for expenses "not otherwise reimbursed?"

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels?

The Attorney General can hire and fire employees at will. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends?

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to move up in four years.