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

By Anita Kumar
Washington Post Staff Writer
Tuesday, September 21, 2010; B01

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.

Cuccinelli, elected to statewide office last year by more than 15 percent, has quickly become a "tea party" favorite, suing the federal government over its new health-care law and its ability to regulate greenhouse gases, and writing letters to every public college in Virginia instructing them not to adopt nondiscrimination policies that protect gays without express authority from the General Assembly.

More recently, Cuccinelli issued a civil investigative demand, essentially a subpoena, for a slew of documents from the University of Virginia regarding well-known climate scientist Michael Mann, who the attorney general, a vocal skeptic of global warming, alleges might be engaged in fraud. But Marshall was the first to ask for records from U-Va., and he sponsored legislation making it illegal to require people to buy health insurance, which was designed to invalidate federal efforts to mandate insurance coverage.

Longtime Virginia political analyst Robert D. Holsworth said the requests for the attorney general's opinions are benefiting both men. It provides Marshall, a low-level delegate often at odds with members of his own party, with tremendous influence, while it gives Cuccinelli further visibility and national prominence. Both men fielded national television interviews after the publication of the immigration and abortion opinions.

"It's a very creative tactic,'' Holsworth said. "They're both mavericks in some way. They've found an instrument that provides for their mutual intentions extraordinarily well."

Of the four opinions Marshall has received, three have mirrored his ideology. The fourth concluded that the state budget bill can include taxes and fees.

On Aug. 2, Cuccinelli issued an opinion concluding that law enforcement could check the immigration status of anyone officers stopped for any reason. Virginia law currently requires officers to check the legal status only of those arrested and jailed.

Marshall promptly wrote McDonnell, asking that he codify Cuccinelli's opinion. McDonnell told reporters that he agreed with Cuccinelli's opinion, but that he lacked the legal authority to force local police to check the immigration status of people they stop.

On Aug. 20, Cuccinelli concluded that the Board of Health could require that clinics that perform abortions meet hospital-type standards, a move abortion rights advocates say could force some facilities to close. Again, Marshall wrote McDonnell, this time asking him to implement the regulations per Cuccinelli's opinion.

On Aug. 24, Cuccinelli concluded that the U.S. and Virginia constitutions and state law do not call for a prohibition on holiday displays on public property. Marshall requested the opinion after residents complained that Loudoun County officials banned structures, religious or otherwise, last year from the lawn of the century-old courthouse in Leesburg.

Not much has changed after the opinions so far, but McDonnell potentially could act, ordering state police agencies to ask about immigration status or starting the process for the Board of Health to regulate clinics that perform abortions.

Howard said that, legally, nothing can be done about Marshall's requests and Cuccinelli's opinions, but that legislators and other politicians must deal with them.

Sen. Mary Margaret Whipple (D-Arlington), who often opposed Cuccinelli in the Senate, said she predicts that the General Assembly will try to stop his actions through bills and amendments when the legislature returns in January.

"It's an element of checks and balances,'' she said.

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