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Kilgore's Secret Weapon

Virginia’s first solicitor general, William Hurd, has become a key player in the state’s legal arsenal — and maybe for the GOP.

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In the much-publicized challenge to the city’s 1997 ordinance giving police authority to arrest anyone who didn’t live or have official business in the Whitcomb Court public housing complex, Ginsburg had a simple, but all-important question: Didn’t Kevin L. Hicks, the Richmonder arrested for trespassing in Whitcomb Court, have the right to be there? He was, after all, delivering diapers.

Hurd, a broad-shouldered 6 foot 1 inch, with full salt-and-pepper hair, hunkers over a small table in his office next to the state Capitol, re-enacting the courtroom scene. Many thought the state would lose this case. The Supreme Court has a reputation for siding with free-speech advocates, after all. And Ginsburg is a stickler for details.

Hurd raises his voice, in an Alabama drawl, to simulate the actual courtroom delivery:

“Your honor — two points on that. The first point is that had he not been barred, certainly coming to visit his family would be a legitimate purpose,” he reads. “He did plead guilty twice to trespassing and was convicted of damaging property. …

“If he wants to deliver diapers, he should have thought about that before his misconduct earned him this barment notice and thereby forfeited his right to return.”

Hurd looks up and smiles. He’s wearing a bandage on his right ankle, a weekend injury sustained during yard work. But he’s beaming nonetheless. It’s been about a month since the U.S. Supreme Court handed down its opinion in Commonwealth v. Hicks. But Hurd recalls the experience with giddy enthusiasm. He’s argued before the highest court in the land not once, but twice in the last eight months. And he’s claimed victory, at least partially, in both cases.

By a 6-3 margin, the high court agreed with Hurd in Hicks that the city’s no-trespass law didn’t violate the First Amendment. In early April, the court also upheld a Virginia law that banned cross burning as a form of intimidation. While neither was a complete victory — portions of both cases were sent back to Virginia for further review — Hurd’s success has put him on the map in Virginia politics.

As solicitor general, Hurd has quietly become a key player for Kilgore, the Republican Party’s unofficial candidate for governor in 2005. Hurd may well emerge as a candidate to become interim attorney general when Kilgore ultimately steps aside to run for governor, some say. Coupled with his long service to the party, Hurd’s wins may also pave the way for a future run for attorney general.

It’s unlikely he’ll run in the next term, but Hurd won’t rule out a future bid. “I’m not counting it out,” he says. “I’m certainly not counting on it.”

There is more immediate significance. It’s likely that both the cross-burning and Whitcomb Court cases will become important philosophical cogs in Kilgore’s expected candidacy. One could argue that both show Kilgore sticking up for a constituency that has long written off the Grand Old Party: blacks.

“I think the cross-burning case sent a strong message about where Kilgore stands on the issue of harmony of the races,” says Richard Cullen, the former U.S. district attorney and state attorney general, who served during the last six months of 1997, when Jim Gilmore resigned to run for governor. “I think these are two huge feathers in Kilgore’s cap. In both cases, they benefited constituencies that haven’t always identified with Republicans.”

Much of the credit goes to Hurd, a longtime party loyalist who got his start working as a lawyer for former Attorney General and gubernatorial candidate Marshall J. Coleman in 1979. An Alabama native, Hurd got seriously involved in politics while attending University of Virginia in the early 1970s. Political analyst Larry Sabato, who attended U.Va. at the same time, recalls lively debates with Hurd.

“I was the hippie and he was the right winger,” Sabato says. “He liked arguing, and I did, too.”

Known for his oratorical skills and conservative politics, the 51-year-old Hurd became a key player when former Attorney General Mark L. Earley appointed him as the state’s first solicitor general in 1999. He had served as senior adviser on policy and legal issues for Earley, who long represented the party’s powerful Christian right. He’s been the lead counsel on all of the major state cases of the last four years — and he’s won most. Now Hurd is defending Virginia Military Institute’s supper prayer, which has come under attack from the ACLU, and has defended the state’s minute of silence law in public schools. He’s turned back challenges to the state’s parental notification law and Virginia’s right to prohibit state employees from viewing sexually explicit material on the Internet. And, of course, the Supreme Court cases.

“He is a very bright lawyer who could make much more money in private practice,” says Cullen, who worked with Hurd in 1997. “I considered him an intellectual force in the office.”

Hurd’s most important cases have come in the last few months. Never before has the state within a matter of months appealed two Virginia Supreme Court decisions to the highest court. In fact, the real work is simply getting the U.S. Supreme Court’s attention. The high court typically takes about 75 cases a year out of about 8,000. The office spent months preparing the briefings.

Still, others caution not to read too much into the so-called victories. Some in the legal community say neither of the Supreme Court rulings are bone-fide victories for the attorney general’s office. In the cross-burning case, there were really two cases the court considered. In the conviction of Barry Elton Black, a KKK leader who led a cross-burning rally in Carroll County in 1998, the U.S. Supreme Court agreed with the Virginia Supreme Court that overturned Black’s conviction.

The court ruled that cross burning, on its face, cannot be automatically banned as intimidation.

“It’s a split decision, a little bit for everybody,” explains John Paul Jones, who teaches constitutional law at the University of Richmond. “I think the attorney general’s office in Virginia is a very professional outfit. But neither of these cases prompts me to break into applause necessarily.”

It should be noted that Jones now reports to Rod Smolla, a renowned First Amendment attorney who represented Black before the Supreme Court Dec. 11. Smolla was recently named dean of UR’s School of Law.

As for the lawyer on the other side of the Whitcomb Court case, Steven J. Benjamin says the state essentially got nowhere with the Supreme Court. Even though the justices ruled that banning Hicks from the sidewalk wasn’t a violation of free speech, it “reinstated the holding of the Virginia Court of Appeals that the policy was unconstitutional for other reasons,” Benjamin explains.

“When it’s all said and done, Virginia won nothing,” Benjamin says. “I am as satisfied as I possibly can be with the court’s holding. All it did was agree with a nonmaterial issue that did not change the law. … And that’s the fallacy of the spin.”

Indeed, Hurd says his office is still investigating what that ruling will mean in practical terms. What’s more, he says the naysayers are missing the point — in both of these cases, there were significant rulings that offer states and cities a strong ally for battling crime and racism for years to come. Clearly, the cases may bear political fruit for Kilgore — and perhaps Hurd, as well.

Only time will tell. Sabato’s not ready to call it. “Bill has a fine mind and sharp debating skills,” Sabato says. “As a candidate, I’m not sure.” S

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