Cuccinelli, Va. delegate accused of bypassing lawmakers in legal-opinion tactic

Attorney General Ken Cuccinelli II has issued controversial opinions on immigration policy, abortion clinics and religious displays.
Attorney General Ken Cuccinelli II has issued controversial opinions on immigration policy, abortion clinics and religious displays. (Richard A. Lipski For The Washington Post)
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By Anita Kumar
Washington Post Staff Writer
Tuesday, September 21, 2010

RICHMOND -- Virginia Attorney General Ken Cuccinelli II has issued several controversial legal opinions in the past few months, concluding, for instance, that police could check the immigration status of those stopped by law-enforcement officers, that the state could impose stricter oversight of clinics that perform abortions and that local governments could allow religious holiday displays on public property.

In each instance, the request for the opinion came from the same person: Del. Robert G. Marshall (Prince William), a like-minded Republican who shares Cuccinelli's far-right views.

Marshall has sought seven opinions from Cuccinelli since the attorney general took office in January, and has three pending, including one that questions whether Gov. Robert F. McDonnell (R) has the authority to seek additional stimulus funds from the federal government. The number of requests is extraordinarily high, and it is generally unmatched by any legislator in an attorney general's entire four-year term.

Observers say their relationship has become symbiotic -- one that helps each promote themselves and advance their interests -- but in a way no one envisioned before.

"It's not unconstitutional,'' said A.E. Dick Howard, a law professor at the University of Virginia and one of the drafters of the modern Virginia Constitution. "It's just not contemplated. It's outside what the framers of the Constitution would have seen."

Democrats, who hold narrow control of the state Senate, accuse the pair of attempting to make an end run around a divided General Assembly, which had already considered -- and rejected -- similar proposals regarding abortion and immigration.

"It circumvents the people's elected representation," Sen. R. Edward Houck (D-Spotsylvania) said. "It seems to me perfectly obvious what's going on. They are now using this legal activism."

Cuccinelli spokesman Brian Gottstein said people often misinterpret the purpose and scope of an attorney general's opinion.

"Issuing official opinions when they are requested is a part of the attorney general's job,'' he said. "Official opinions are not his personal opinions, but rather legal opinions. They do not mandate any behavior. They do not create law."

Marshall said the governor and state boards have greater powers than they realize and he wants to ensure that they use them. He said he and Cuccinelli do not confer beforehand about the opinions, but that he has a general idea what Cuccinelli might say.

"I'm conservative. I'm aggressive,'' Marshall said. "He's conservative. He's aggressive."

Marshall, elected to the Republican-controlled House in 1991, was one of the first to endorse Cuccinelli for his Fairfax Senate seat in 2001.

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