Thursday, September 16, 2021

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General (Updated 2021 Election Cycle)

As folks debate the role of the Attorney General and the candidates in the 2021 election, I've updated a blog entry I first 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, and that it will make clear that the Attorney General of Virginia is not the "chief law enforcement officer" or even the state's chief prosecutor (except in limited cases) but has a much broader job as the Commonwealth's "general and consumer counsel," "civil rights enforcement officer," and "legal advisor."

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 carefully choose 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, current Virginia Attorney General Mark Herring (D) and Delegate Jason Miyares (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 2nd: 

How will the candidates represent your interests as "consumer counsel?" State law requires the Attorney General 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 the State Corporation Commission reviews insurance, electric and telephone rates? 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; 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; 5) defended secrecy in the implementation of the death penalty; 6) defended solitary confinement in state prisons and 7) decided not to defend the unconstitutional amendment to our Virginia constitution that denies marriage equality to LGBTQ Virginians. 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? State law requires the Attorney General to issue formal opinions interpreting state and federal law 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 perform 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 hundreds employees and a budget (inclusive of Medicaid fraud and the division of debt collection) of almost $60 million in state and federal funds -- not including the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General (e.g., at universities), and the millions of dollars spent annually on outside counsel (private lawyers and law firms who handle matters ranging from intellectual property and immigration to issuance of bonds to collection work) ($11 million in 2013-14, the last data available regarding payments to private counsel on the current AG's website despite an express commitment to transparency and to updating budget info at the end of each quarter).

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 or to take steps to forgive debts (the Division of Debt Collection does operate under the auspices of the AG even though it is often not included in AG budget totals)? How will each candidate account for the $9,000 a year that he will receive as Attorney General for "expenses" "not otherwise reimbursed?"  Past attorney generals have kept and reported the amount as income and filed requests for reimbursements of all expenses. One disturbing reality of the current AG's budget management is that the office sought budget language that allows dollars allocated for consumer protection, anti-trust and "business regulation" to be spent on any "litigation initiated by the Attorney General" or on the costs of the civil commitment program that can result in people being committed to state mental health facilities for life after having served their criminal sentences for sex offenses.  This means money that was allocated to protect consumers and businesses from high utility and insurance rates and prosecute anti-trust violations can be diverted to non-consumer protection issues and cases.

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels? Will the AG establish a culture of inclusion in the office? The Attorney General can hire and fire employees at will. No person employed in the AG's office enjoys the protections other state employees enjoy. 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? Will the candidate commit to assuring that office policies are enacted that respect the dignity of transgender employees? 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 based on their market availability? Will the candidate agree to post to their websites their EEO-1 reports to the federal government that detail the make-up of their workforces? See this article I wrote for some historical background on this issue.

How will the candidate grow the Office for Civil Rights in the Department of Law (the AG's office) and protect against conflicts of interest when the state agencies the AG represents are the focus of discrimination complaints? 

The Office for Civil Rights in the AG's office was given expanded authority to investigate and litigate civil rights claims during the 2021 Special Session 1.  Included in this expanded authority is the authority to investigate pattern and practice claims of unlawful deprivations of civil rights by law enforcement personnel or agencies.  It is unclear yet how either candidate will act consistent with this new authority to prevent and provide relief from unlawful discrimination consistent with this policy set forth in the amended law: "It is the policy of the Commonwealth of Virginia to provide for equal opportunities throughout the Commonwealth to all its citizens, regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, disability, familial status, marital status, or status as a veteran and, to that end, to prohibit discriminatory practices with respect to employment, places of public accommodation, including educational institutions, and real estate transactions by any person or group of persons, including state and local law-enforcement agencies, in order that the peace, health, safety, prosperity, and general welfare of all the inhabitants of the Commonwealth be protected and ensured." 

Voters should be asking both candidates for their plans to implement this new authority and protect all Virginians from discrimination in their workplaces, schools, and businesses.

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 seek higher office in four years.