Not so opinionated? AG Brown issuing opinions at one-third the rate of Lockyer

Attorney General Jerry Brown has issued only 28 formal opinions in his first two years on the job. His predecessor, Bill Lockyer, averaged nearly 39 such opinions a year.

The decline is a result of “short staffing and a tight budget,” according to Brown’s press secretary, Christine Gasparac.

Formal opinions represent part of the routine work of the AG’s office. They often have to do with matters like whether someone is eligible to run for a particular office, whether a municipality can acquire land, or if a local government have interpreted the law correctly. These requests can come in from city or county governments, state agencies, the legislature or other such bodies. While they do not carry the full weight of law, they are seen as important because courts consider them, and they are often backed by an implied defense from the AG’s office.

Opinions cover “all sorts of strange bizarre legal question that have not been covered by a court,” said John Van de Kamp, who served as AG from 1983 to 1991. He added: “They are often fairly mundane little things.”

 “The goal is to put yourself in the position of a court—how is a court going to rule on this issue? Attorney General opinions do get cited periodically as ‘persuasive authority,’ though not as ruling authority,” he said.

These statistics on Brown and Lockyer come from a paper presented to several hundred people at a Jan. 23 conference at the University of California at Los Angeles by attorney William Abbott and Senate Local Government staff director Peter Detwiler. The pair looked at numerous legal cases and pieces of legislation affecting land use in 2008.

When they looked for legal opinions on land use from Brown’s office, they found only one. While the section of the report dealing with Brown represents less than half page of a 23-page report, they did find a striking difference between Brown and Lockyer. In a section titled “Not so opinionated,” they note that Lockyer issued between 29 and 49 opinions each year while in office from 1999 to 2006, averaging 38.75 per year.  

The report also stated there was a backlog of 43 requests for formal opinions as of the end of 2008. While she did not update the number, Gasparac said “We’re in the process of reducing the backlog.”

Van de Kamp said he had “no idea” how many formal his office issued while he was AG. He also said many AGs are minimally involved in the process, though he chose to read every opinion—and sometimes sent back revisions. He expected Brown to be similar, Van de Kamp said, when he cited these opinions as “important” during last fall’s campaign.

The Opinions Unit is a distinct office within the attorney general’s office. Van de Kamp and his former chief deputy, Nelson Kempsky, said the unit typically had five attorneys during their time. Kempsky—who ran the opinions unit for three months under Van de Kamp successor, Dan Lungren, in 1991—said each of these attorneys could turn out about six opinions a year. Kempsky went on to say that the backlog of 43 requests seemed “perfectly normal.”

According to Gasparac, the unit currently has three full-time deputies, one assigned part-time, and a supervising deputy. However, one of the full-time deputies has been on extended sick leave.

While there has been no formal hiring freeze, all state agencies have been under orders to reduce costs during the current $42 billion budget crisis, which has made hiring difficult.

“The raw numbers are not going to tell you very much,” Kempsky said of the statistics about Brown and Lockyer. He added, “The historical record of the unit has been than it’s not very swift. It’s through and it’s careful, but it’s not very swift.”

While requests come in at a fairly constant rate, Kempsky said, there are a number of factors that can affect how many opinions come out. Many requests for an opinion are denied or answered with an informal letter, often because the matter has already been settled with a legal precedent or the individual or agency making the request lacks formal standing to do so.

Brown has occasionally been criticized for appearing to be more interested in becoming governor again—he held the job from 1975 to 1983—than in his role as AG. Since November, he has appeared to throw his weight into the political realm by saying he would try not to defend Proposition 8, the anti-gay marriage initiative passed by voters. The AG’s office has also been reorganized under his watch, with some divisions—most notably the Firearms Division—being demoted to the lesser status of bureau.

A spokesperson for Lockyer, currently the state’s Treasurer, declined to comment for this story. However, Kempsky said it appeared as though Lockyer made a point of clearing out a backlog of older requests. Delayed requests for opinions are a frequent complaint against any AG’s office, said Kempsky, who spent a quarter century there.

“The only one [number] that really surprises me is Lockyer getting out so many,” Kempsky said.