Attorney General talks about his first few months in office
By Garren Shipley
Daily Staff Writer
WINCHESTER -- After making it through a statewide recount with a 323-vote victory, Attorney General Bob McDonnell had barely been sworn in when he faced his first legal dust-up.
The former Virginia Beach delegate found a fight waiting on him when he arrived -- a request from Del. Bob Marshall, R-Manassas, to review the constitutionality of Democratic Gov. Timothy M. Kaine's first executive order, making it the policy of state government not to discriminate against people on the basis of sexual orientation.
It wasn't a fight he went looking for.
"The opinion request was on my desk when I got there on Jan. 14," McDonnell said during an interview while visiting the region Tuesday. After reviewing the situation, McDonnell ruled that the order was unconstitutional.
Equality Virginia, a gay, lesbian and transgender lobby group, said the ruling "flies in the face of years of precedent."
The opinion found that "like a locality under the Dillon Rule, [Kaine] only has the authority expressly conferred on him by the legislature," said Jay Squires, chairman of the group's board of directors in a written statement.
Others accused McDonnell of being an "activist" attorney general and attempting to impose his views on the state regardless of law.
It is a separation of powers issue, McDonnell said Tuesday, despite claims to the contrary. Separation of powers arguments like Equality Virginia¹s are just wrong, he said.
"If you read the opinion, it¹s really not about sexual orientation, its about what is the reach of the executive power of the governor of Virginia?" he said.
In the end, McDonnell said, it comes down to one thing -- Kaine's order "exercised legislative authority," something he just cannot do.
"The General Assembly specifically declined to extend the statewide policy of the commonwealth to people on the basis of sexual orientation," he said.
Just days before the opinion was issued, both houses stripped that language out of their budget bills.
"If the governor doesn't get his way in the General Assembly, he can't say 'I'm signing an executive order, to heck with the General Assembly.'
Unfortunately, some people didn¹t like the answer, so they¹re attacking me
on the reasoning, even if they haven¹t read the opinion."
There was little controversy when legislators enacted virtually all of McDonnell's recommended changes to the state's sex-crimes laws during the 2006 regular session.
Some of the changes were groundbreaking. In particular, one law makes a first sex offense committed against a child punishable by a 25-year mandatory minimum prison term.
Another change approved this session is satellite tracking of offenders for anywhere from three years to life after their release.
Harsh sentences and tracking of criminals after they've served their sentence may raise some concerns from civil libertarians, but those pale in comparison to the impact of the crimes themselves, McDonnell said.
"These people are very dangerous. The recidivism rates are higher than most other crimes," he said. "There's no good treatment for pedophiles, and so you¹ve got to keep these dangerous people off the streets longer."
McDonnell also said he was watching the case of convicted Winchester killer Edward Bell with interest.
Bell was convicted in 2001 of the 1999 murder of Winchester police Sgt.Ricky Timbrook. McDonnell¹s office represents the commonwealth in the case.
While he couldn't talk about the case itself, McDonnell said an ad run by GOP gubernatorial candidate Jerry Kilgore -- in which Timbrook's wife said she didn¹t trust Kaine to carry out a death sentence -- will have little impact on Bell's federal appeal.
"I don¹t think judges are influenced that much by what happens during a campaign. They¹re going to make sure that the law is faithfully discharged,"
But, McDonnell said, it will be "interesting" to see how Kaine handles the case -- which could be his first petition for clemency.
"Tim Kaine seems to me, from the two months I've dealt with him, to be a smart guy," he said. "He'll approach the case in a very factual way."