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Gilmore's Conservative Views Apparent

By Eric Lipton
Washington Post Staff Writer
Sunday, October 26, 1997; Page B01

For more than 30 years, the attorney general's office in Virginia had a simple answer when asked whether it was legal for public school buses to provide transportation for children attending parochial schools: It would be unconstitutional.

But Jim Gilmore changed that.

"I am of the opinion that the prior opinions do not accurately state the current law," Gilmore, then the attorney general, wrote in 1995, responding to a question posed by a conservative Republican legislator. "It would not be a violation of the Virginia Constitution . . . to provide public school buses for transporting students to both public and private schools, even when some of those private schools are sectarian in nature."

Although the turnaround delighted some of Gilmore's most ardent supporters, critics saw it as yet another example of how the politically ambitious attorney general -- now the Republican nominee for governor -- had allowed his ideological views to shade his view of the law. His tenure as attorney general was filled with similar controversies involving issues such as air pollution and cigarettes.

At the same time, Gilmore, 48, has been praised for his leadership and nuts-and-bolts management of the attorney general's office. He is credited with helping to push through a slew of tough-on-crime laws. He reorganized the 270-person office in a way that most agree improved morale, strengthened operations and de-emphasized political patronage in hiring outside lawyers.

But during his 3 1/2 years as Virginia's top lawyer, Gilmore often issued legal opinions or filed lawsuits that reflected the conservative political philosophy that he and Gov. George Allen (R) share.

It was an era in which Virginia resisted federal dictates on the environment, education and tobacco, while it moved to broaden the rights of religious groups.

In some cases, judges flatly rejected Gilmore's interpretations of state and federal law, with a federal judge calling one such argument "verbal chicanery" and "nothing short of ludicrous."

But Gilmore never showed any sign of retreating, and he rejects any suggestion that his conservative politics drove his actions.

"You can assert what you want, and that may be good politics," Gilmore said. "But it is not supported by any facts. We have treated everybody equally across the board."

Gilmore won his first election in 1987, when he beat an incumbent to become commonwealth's attorney in Henrico County outside Richmond. He quickly built a reputation as a tireless prosecutor who loved the spotlight and wouldn't hesitate to charge ahead, even on cases that turned out to be flawed.

Gilmore had graduated a decade earlier from the University of Virginia Law School and had been active in Republican politics since his undergraduate days at U-Va. in the late 1960s. But he had no experience as a prosecutor and was considered an outsider by a skeptical legal community.

That clearly did little to deter him. Soon after he arrived, Gilmore assigned himself to some of the highest-profile murder cases handled by the office.

"He was no F. Lee Bailey," said David E. Boone, a defense lawyer who faced Gilmore a dozen times in court. "He was very straightforward, very stiff, and he didn't have much personality with the jury. But he was very clear about his two goals: get a conviction and get the guy behind bars. He had a mission, and he followed that mission."

Gilmore's office made its share of plea bargains, settling for reduced charges or penalties in return for a guilty plea. His Democratic opponent for governor, Don Beyer, has suggested that Gilmore was overly generous. Beyer pointed to cases such as the 1989 prosecution of Peter W. George, who was accused of forcing an 8-year-old girl to perform oral sex. George received 90 days in jail as a result of a plea bargain.

Gilmore rejects the criticism, calling it "irresponsible kind of talk" and noting that when juvenile victims were involved, it was sometimes difficult to bring cases into court. And defense lawyers in the local courthouse say Gilmore generally struck plea bargains only when the evidence or circumstances merited it.

"That office never gave anything away," said Steven D. Benjamin, a Richmond lawyer who frequently tried cases in Henrico.

Yet Gilmore sometimes stumbled as he pushed to build a reputation as a hard-driving, law-and-order politician, making what local critics called tactical errors in two murder cases.

In a 1991 case, involving a man charged with fatally stabbing his pregnant girlfriend and setting a fire that killed her two infant children, Gilmore and his team inadvertently allowed a 911 tape to be played in court that included comments by the suspect, Robert Lee Thomas Jr., that the jury wasn't supposed to hear.

The next day, after the defense attorney objected and considered asking for a mistrial, Gilmore negotiated a life sentence that made Thomas eligible for parole in 30 years, dropping the push for the death penalty.

A year earlier, in a triple-murder case he handled, Gilmore was surprised when the suspect pleaded guilty to two lesser murder charges, in an attempt to avoid the threat of the death penalty. Gilmore had filed both capital murder charges and lesser, first-degree charges, and he had neglected to withdraw the first-degree charges before the trial.

After a 50-minute recess, Gilmore asked the judge to reject the guilty pleas, but the judge turned him down, responding, "You are the one who brought the charges." A local newspaper columnist noted that Gilmore "needs to learn criminal law. Preferably before going into court."

Gilmore points out that he won convictions in all 13 murder cases he tried. And because judges have flexibility in sentencing, he adds, it's impossible to know whether the error in the Thomas case resulted in a shorter sentence.

"It would be shallow to just say that any particular issue determines the outcome of a case," Gilmore said.

Gilmore's campaign for attorney general in 1993 relied heavily on his record as a prosecutor, and he promised to bring a similar law-and-order emphasis to the state capital.

By most accounts, he lived up to the rhetoric. As attorney general, he worked with the governor to persuade the General Assembly to abolish parole, increase penalties for minors accused of violent crimes, require arrests in most domestic abuse cases and put time limits on appeals by death row inmates. He also lobbied successfully for a constitutional amendment that lets prosecutors appeal criminal verdicts.

But Gilmore gained the most attention as attorney general from his frequent conflicts with the federal government over the environment and other issues, his protection of the state's tobacco industry and his consistent role in defending the rights of religious groups.

He declined to join attorneys general from 40 other states in a lawsuit against tobacco companies to seek compensation for decades of smoking-related medical costs paid by states. The lawsuit led to a proposed national settlement now before Congress.

Gilmore said he stayed out of the tobacco litigation because he "wanted to keep his hands free to work in Congress" to protect Virginia's tobacco industry, but Beyer and others argue that he could have done that by participating in the lawsuit and settlement talks.

Gilmore's election also meant that the attorney general's office quickly switched sides in certain cases.

For example, Gilmore represented the Virginia Military Institute in its fight to remain all male -- which his Democratic predecessor had declined to do.

In another case, he abandoned the defense of the University of Virginia and had the state side with the student who was suing the university in federal court for not financing his Christian magazine. The state lost the VMI case, but it won the U-Va. case when the U.S. Supreme Court ruled in 1995 that the school had violated the student's free-speech rights.

Gilmore also challenged federal policies that he thought violated "the sovereignty of the commonwealth," including:

An Environmental Protection Agency requirement that the state let citizens sue to challenge air and water pollution permits Virginia issued to businesses. Gilmore argued the EPA rule would leave businesses vulnerable to nuisance lawsuits by environmental activists. He ultimately lost, and a federal judge at one point called the state's case "nothing short of ludicrous" and "verbal chicanery."

An EPA order that Virginia improve its vehicle-emissions testing, which Gilmore argued was unnecessary because the existing state program did the job. The state lost in court but later won when Congress stepped in on its behalf.

A federal threat to withhold $50 million in education funds after Virginia said it wanted to expel disabled students who commit violent acts, sell drugs or take a weapon to school. Gilmore won in court.

A Food and Drug Administration plan to regulate tobacco advertisements to curb teenage smoking. Gilmore said that would infringe on "the rights of those Virginians who engage or otherwise enjoy sporting or cultural events sponsored by brand-name tobacco products."

In each case, Gilmore argued that he was merely preventing Virginia from being bullied by the federal government.

"I don't have any trouble cooperating with the federal government when they are acting well within their authority," he said. "But if for some ideological reason they want to be very disruptive of the people's lives in Virginia, we have a right to make them adhere to the law."

But Gilmore's critics say the motivation for all the litigation was much more complex.

The battle against the EPA regulations, said Kay Slaughter, an environmental lawyer from Charlottesville, was largely a pitch by Gilmore and Allen to protect corporate polluters from any challenges from citizens.

"Their approach was so disingenuous, it was infuriating," Slaughter said. "They were using the states' rights argument to win political points, but the reality was that the federal law in question was giving power to the individual citizen in the state, not taking it away."

Slaughter and others also complain that Gilmore's office failed to crack down on pollution by meatpacker Smithfield Foods Inc. She said Gilmore held off on suing Smithfield until it became clear that the EPA would file its own lawsuit, an assertion Gilmore rejects.

Gilmore's actions regarding groups with religious affiliations also have led to criticism.

He issued guidelines in 1995 approving prayer at school assemblies, a move hailed by conservative legal groups. That same year, he wrote the opinion asserting the constitutionality of government-paid buses for parochial schools, although he noted that the General Assembly still would need to pass a law authorizing it.

At the same time, his office rejected requests from Democratic state senators to investigate allegations that the Christian Coalition was illegally involved in state campaign activities and that religious broadcaster Pat Robertson, a longtime Gilmore financial backer, was misusing charitable funds.

"He has a consistent record of supporting and protecting the radical religious right," said Sen. Janet D. Howell (D-Fairfax), who requested an inquiry into Robertson's alleged use of planes owned by his tax-exempt humanitarian relief effort for a diamond mine in Congo.

Gilmore rejects that: "Anybody who asserts that is trying to win an election for Don Beyer."

Gilmore said he didn't investigate the Christian Coalition because a lawsuit was pending on the same issue. And he said he declined to investigate Robertson because the issue was one for federal tax authorities, not his office.

His decision to fight FDA tobacco regulation, he said, was to protect an important state industry, not a favor for the $127,000 his campaign received from tobacco interests. And he pointed out that it was his idea to use liquor inspectors to enforce laws barring the sale of cigarettes to minors.

But Howell said she isn't convinced that such decisions weren't guided by Gilmore's politics.

"His opinions are consistently on one side, over time and without variation," she said. "That is all the proof you need."

JAMES S. GILMORE III: A LOOK AT THE RECORD

CRIME Gilmore wrote legislation passed in 1994 to abolish parole. He backed plan adopted by legislature in 1996 to charge minors as young as 14 as adults when they commit violent crimes. Voters that year approved a constitutional amendment Gilmore proposed to let prosecutors appeal verdicts in criminal cases.
TRIGON Gilmore investigated Trigon/Blue Cross Blue Shield after allegations that it had overcharged many of its 1.8 million Virginia customers. He reached an agreement in 1995 that resulted in a $197 million payment to the state by Trigon, part of a deal under which it was allowed to become a for-profit company. Gilmore called it a "substantial" payment and a good deal, but critics accused Gilmore of letting the company off easy and settling for too little.
SCHOOLS Gilmore reversed predecessors' stand by declaring in 1995 that it is constitutional for school districts to provide busing for children going to parochial schools. He issued guidelines that year authorizing prayer at assemblies in public schools.
ENVIRONMENT Gilmore fought a federal requirement that Virginia let its citizens sue to protest air and water pollution permits issued to businesses. He argued that it was an illegal intrusion by federal government into state affairs and would leave companies vulnerable to nuisance lawsuits. He lost in 1996, after a federal judge called the state's arguments "nothing short of ludicrous."
TOBACCO Gilmore declined to join attorneys general from 40 other states in lawsuit against tobacco companies seeking compensation for smoking-related medical costs. Gilmore said he wanted to remain free to lobby Congress to protect the interests of state's tobacco industry.

© Copyright 1997 The Washington Post Company


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