Politics and the law. Virginia's Attorney General Mark Earley walks a tightrope between the two. 

Balancing Act

He's the watchdog entrusted with guarding your money. By most accounts, he's doing a decent job.

He's the lawyer charged with defending the state and its statutes. Some say he's more concerned with politics than the law.

He's the politician aspiring to be the state's next governor. So far, his admirers contend, he's picking the right fights.



Virginia Attorney General Mark Lawrence Earley arguably has the toughest job in state government: He's an elected lawyer who must negotiate the axis between his political instincts and his legal duties.

Nearly halfway into his four-year term, the former Republican senator from Chesapeake has forged a divergent record befitting someone who is both a champion of the Christian Right and a card-carrying member of the NAACP.

He methodically negotiated the state's largest electric utility rate reduction and rebate. But he has been criticized for not battling harder for consumers against power companies.

He joined Republican Gov. Jim Gilmore in espousing the nation's toughest drug laws. But he spends time in jails talking one-on-one with teen-age gang members, and later sympathetically recounts their troubled family lives.

He stood firm before the Virginia Supreme Court in defending the state's $1million cap on medical malpractice awards. But this past General Assembly session, he also worked to reshape the law, as he helped legislators raise the cap to $2 million. A string of recent legal developments, including unfavorable court rulings and politically criticized decisions by Earley in high-profile cases, has focused attention on his record.

Interviews with lawyers, lobbyists, prosecutors, legislators and consumer advocates suggest that in most instances Earley, 45, has emerged as an effective attorney general even though he's lost a few well-publicized rounds.

Grass-roots groups applaud him for beefing up his consumer protection division, and U.S. Attorney General Janet Reno has spoken with him to learn more about the strike force he created to prosecute crimes committed with computers and over the Internet.

But he's been knocked, even by a judge, for his legal tactics defending new state laws curbing out-of-state waste. And he's been accused of dragging his feet on determining whether Gilmore has the authority to halt a controversial construction practice that's drained thousands of acres of wetlands.

Supporters say Earley, a presumptive 2001 gubernatorial candidate along with Lt. Gov. John Hager, has demonstrated sound political acumen by sticking close to Gilmore, a former attorney general whose tax-cutting, law-and-order agenda has popular appeal.

When the attorney general has ventured beyond Gilmore's shadow, he's generally navigated politically safe waters: Last month, he accused the American Civil Liberties Union of undermining school safety and discipline after the ACLU threatened to sue local school districts over students' free-expression rights.

Because it's a job in which so many battles are waged on behalf of others — defending bills adopted by the legislature and issuing opinions on volatile subjects requested by government officials — the best attorneys general often are viewed as the ones with the fewest scars.

"Whether you want it or not, every one of those (opinions) has political overtones," former Attorney General Richard Cullen says. "You're under great scrutiny because everyone thinks you're running for governor."

Critics say Earley too often has let his personal and political views cloud his legal judgment:

He signed off on and later defended popular legislation limiting the amount of out-of-state trash arriving in Virginia landfills, even though many attorneys said all along the measures are unconstitutional. A trial in a lawsuit brought by waste haulers is scheduled for December, but the federal judge in the case has already said he believes the laws are unsound.

He was Gilmore's point man when the state last year tried to stop the wife of a severely brain-damaged Manassas man from removing his feeding tube. The courts denied the state's intervention and awarded the widow, Michele Finn, legal fees.

His office advised the Virginia College Building Authority that it probably could float tax-exempt bonds to help Regent University expand its fundamentally Christian campus without violating the constitutional wall between church and state. This summer, a state judge ruled swiftly against Regent, whose chancellor, Christian broadcaster Pat Robertson, is one of Earley's chief political benefactors.

He argued that a ban he supports on some late-term abortions, popularly known as "partial-birth" procedures, could pass constitutional muster even though federal courts throughout the country have determined otherwise. A federal judge ruled against Earley in July, but the attorney general won a temporary stay from a federal appeals court to keep the law on the books until the full trial.

"Planned Parenthood and certain abortion providers are attempting to use the court of law to accomplish what they could not achieve in the court of public opinion or through the democratic process," he said at the time of his lower-court defeat.

Karen Raschke, an attorney for the Center for Reproductive Law and Policy, which has challenged the ban in Virginia and other states, says Earley's anti-abortion stance interferes with his ability to make sound legal judgments.

"He is so ideologically driven just as to the abortion issue that he has to believe the ends justify the means," she says. "He's applied politics to the law and allowed the taxpayers of Virginia to shoulder the burden."

Earley says almost all of the battles he fights, including trash and the partial birth abortion ban, are ones legislators, not the attorney general, decide to wage by virtue of what they approve as law.

He says he refrains from putting his political stamp on the dozens of complex and wide-ranging issues his office confronts every day, preferring instead to study the big picture.

"I always have enjoyed being a lawyer and still enjoy being a lawyer. But I think the thing I recognize — and I'd be the first to admit — is I don't think I'm the smartest lawyer in this firm," says Earley, who received his law degree from William and Mary. "And although you try to manage and set policy, make sure you're in the loop, you don't try to micromanage all of the legal decisions in the office."

Like the time a Democratic state senator asked the state Office of Consumer Affairs to investigate whether Pat Robertson deceived donors who gave to his Operation Blessing charity by using the organization's airplanes for a diamond-mining venture in Africa.

Sensing potential political fallout, the attorney general stayed out of the review. The consumer agency report said Robertson "willfully" misled donors, but after a year of further investigation, lawyers in Earley's office recommended no legal action against Robertson. Earley's lawyers said they found "a serious breakdown in bookkeeping" but no evidence that Robertson intended to defraud donors.

"My goal in this office and in that case was to make sure that we're professional, we're impartial and that we do the right thing, regardless of what the issue is and who the players are," says Earley, who sees Robertson about once a year. "And I think in that case that's what happened."

Attorneys general almost never write opinions or litigate cases. Their most important tasks are managing the lawyers and choosing a handful of bully-pulpit issues to promote as their public agenda.

Earley has chosen to spotlight binge drinking on college campuses and youth mentoring, causes that allow this former missionary in the Philippines to continue helping those in peril.

"If I left this office tomorrow, the thing I would look back at that has brought me the greatest personal satisfaction so far is being able to get out in front and lead on the issues of mentoring," says Earley, the father of six who makes it a point to have dinner with his family every day. "That's got to pay huge dividends down the road."

Singling out mentoring as his top achievement might seem odd from someone who colleagues say has scored some impressive wins:

He helped broker a settlement over Washington Redskins owner Jack Kent Cooke's estate last year that will funnel several hundred million dollars to underprivileged youths.

He successfully defended a state law requiring that parents be notified before a minor has an abortion. As one of the Senate's staunchest abortion opponents, Earley had sponsored the parental notification law.

He negotiated a record $1 billion settlement with electric utilities earlier this year.

As the state's highest elected official with consumer protection duties, the attorney general is responsible not only for prosecuting companies that cheat the public but also for making sure utilities aren't overcharging customers.

He's also important in throwing his weight behind — or against — legislation in the General Assembly every year. During this past session, the Virginia Poverty Law Center gave Earley a mixed report card on his consumer record during the 1999 legislative session.

David Rubinstein, Virginia Poverty Law Center director for 10 years until he resigned last month, gives Earley middling grades for his role in the landmark electric deregulation law that passed.

Rubinstein praises the attorney general for backing tough, anti-fraud protections in the measure but criticizes him for endorsing a law that, some consumer groups charge, lets utilities profit too much. But Robert G. Goldsmith, who represented Virginia's community action agencies in the negotiations, says Earley did the best he could. Goldsmith says he's generally happy with the legislation, though he's waiting to see whether regulations will be developed to protect low-income families unable to afford heat during the winter.

A member of the Virginia Citizens Consumer Council, Rubinstein gives Earley high marks for helping kill Republican-sponsored legislation that would have allowed pawnbrokers to charge higher interest rates. But he flunks him for being silent on a bill reducing the time car-buyers have to sue manufacturers over defects. The bill passed.

Earley spokesman David Botkins says his boss did not get involved in the so-called "lemon law" debate because it does not fall under the attorney general's authority as spelled out in the Virginia Consumer Protection Act.

Some believe it's too early to judge Earley's effectiveness as attorney general. After all, he still has more than two years to improve his office's litigation record and expand his public agenda.

For now, Earley, a former partner in a general practice law firm, is concentrating on the short term. He said last week he hasn't yet formed his legislative priorities for the General Assembly session that begins in January.

But asked what voters could draw from his record so far as the state's top lawyer, Earley said it's already clear what kind of governor he'd make.

"They're going to get somebody that's more professional than political," he says. "They're going to get somebody that deals with real issues like protecting consumers, upholding the law of the commonwealth, advancing public safety. And they're going to get somebody that's a known quantity."

— Ledyard King is a reporter in the Richmond bureau of The Virginian-Pilot.

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