As folks think about the job that
the current Attorney General of Virginia has done, and begin to debate the role
of the Attorney General and the candidates in the 2025 election, I've updated a
blog entry I first wrote before the 2005 elections regarding the role of the Virginia
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 the current Attorney General about their Performance or future
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, enforcing our state
human rights laws and advising the state officials and agencies who serve us
about their work and the work of their agencies.
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 people who
will be running for Attorney General in 2025 and evaluate critically the job
the current AG has done before either reelecting them or “promoting” them to a
new job.
Here are some questions to ask
that will help you decide if the current AG is doing/has done a good job and which
candidate you may want to
"hire" as your lawyer when you enter the polling booth to vote on
November 2025:
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. The current Virginia AG Jason
Miyares is leading an effort in the courts to ban Tik Tok, is using their
office to go after Democratic fundraising platform ActBlue, is attacking Title
IX rules that protect against discrimination in schools and colleges and in
sports programs, went after the Commanders on unreturned ticket deposits, and
has obtained three writs of actual innocence for people wrongly convicted. How will the next Virginia AG 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 or the legislature before committing the people of the Commonwealth to
a side in a legal dispute?
Will the candidates be
"activists," “traditionalists,” 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. As
Virginia’s current AG, Jason Miyares has opined that federally recognized
tribes in Virginia don’t have sovereign dominion over their lands and that college
trustees must be loyal to the Commonwealth not the institutions they are
appointed to serve. How will the next AG 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 plus an allowance for expenses of $9,000 , is
the managing partner of a public law firm with an authorized employment level
of 577 people and a budget (inclusive of Medicaid fraud and the division of
debt collection) of $84 million in state
and federal funds. These amounts do not include 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) all
of which are paid out of state agency budgets ($11 million in 2013-14, the last
data available).
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 they 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 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,
pregnancy, 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 their 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 clear that, under
Attorney General Miyares, the Office is failing to perform the functions
assigned to it by the legislature. Staff
of the Office were fired when Miyares took office and victims of discrimination
have been consistently denied “right to sue” letters that Miyares was required
to issue after complaints have languished more than 180 days in their office. Suffice
it to say that Virginians should demand more from the next Attorney General to
ensure that the Office for Civil Rights enforces the law and provides Virginians
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."
Virginians should ask the current
AG and those seeking this office in the future what their plans are to fully
implement the Human Rights Act and activate their Office for Civil Rights as an
agency fully focused on protecting all Virginians from discrimination in their
workplaces, schools, and businesses.
How the current Attorney
General and those seeking the office in the future answer these questions will
reveal much about what kind of leader each is or will be as Attorney General or
in any other leadership position they might seek in the future
