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On Thursday, I received a phone call from the Bar Journal requesting an article by Monday. The time crunch was, apparently, the result of the fact that my candidacy for the
Office of Utah Attorney General had gone unnoticed until the last minute. Well, that is not terribly surprising, though a little disappointing. Here it is only a few weeks from election, and I am once
again reminded that nobody is aware I am running. That disappointment, however, is tempered by the fact that almost nobody I have talked to over the last several months can identify both of my opponents,
either. We all have a big job to do to let people know we are here, and what we stand for; and I am grateful to the Bar Journal for this opportunity. If my presentation here is not as polished as those
of my opponents, you are now aware of the rather short time I have had to prepare it.
To begin with, I was born and brought up in Albany, New York. I came here to attend BYU, and never went home. I am a graduate of BYU, with majors in political science and
sociology, in 1970. I graduated in 1973 from the University of Utah Law School, and have been practising law (yes, I "practise " with an "sÓ) in Utah County since. For many years, I was a
member of the firm of McCullough, Jones & Ivins, and have been a sole practitioner for about 18 months.
I have always thought of myself as a conservative Republican, of the Goldwater school, or "a libertarian with a small "l."During the 1980s, I was the treasurer
of the Utah Young Republican Federation. While in law school, I spent a summer as an intern to Senator James Buckley (R.-NY). Gradually, it seems, my libertarian tendencies moved me away from the
direction of the Republican Party, which became more comfortable with the influence of the "religious right."I have been on the board of directors of the ACLU of Utah for several years; and am
also the membership chair. The present Attorney General was once quoted in the newspaper as saying that the ACLU was a left-wing extremist organization. The governor, on the other hand, was quoted by the
paper as saying Libertarians are right wing extremists. So, we know I am an extremist. We just haven't quite reconciled what kind.
My practice specializes in cases involving First Amendment freedom of expression, and Fourth Amendment freedom from unreasonable searches and seizures. In my practice, I have
regularly come into contact with government lawyers, including Assistant Attorneys General, who are clearly not acting in the public interest. In dealing with the Attorney General's Office in particular,
I have come to believe that the present Attorney General blindly defends the actions of State employees, even when they are wrong. Recently, I read part of a speech made to the New York State Bar
Association by the New York State Attorney General, Eliot Spitzer. I was most impressed with this statement:
We should try to do in the state government what good lawyers do in the private sector, which is to counsel them, which is to say whether you're DOT or the state police, You
know what? Maybe the liability that the state has incurred should be rethought. Maybe we have to change policies and understand that liabilities we are building up (and the taxpayers are paying) is a
message that something has to change.
This seems so simple to me. The attorney general has a duty to the people who elected him (or her), as well as to the agencies he represents in court. That it is the duty of
the Attorney General of the State to protect the rights of the individual citizens of the State, seems to me most obvious. That includes telling State officials that they are wrong, that they should
change their behavior, and that they should settle reasonable claims brought against them for injuries. The present Attorney General disagrees, and appears to justify infringements of personal rights by
the necessity of "being tough on crime.”
Among my dealings with the Attorney General's office are a number of legal actions involving stops by the Highway Patrol, and continued detentions, of people who fit
"profiles."For reasons of appearance, these people are targeted as likely to be carrying drugs, or involved in other crimes. This longstanding and hard fought legal controversy has now spilled
over into the political arena. I have decided simply that I am not adequately accomplishing the policy change I have so long fought for, by legal action. In order to protect citizens against unreasonable
searches and seizures, it is necessary for the Attorney General to take a lead in educating law enforcement personnel that the Fourth Amendment is NOT a "technicality."
One of my favorite old movies is "1776,"the story of the continental congress which declared independence from England. In one memorable scene, a more conservative
member asks Tom Jefferson why this radical step is necessary. Jefferson replies that houses are being searched without warrants, and freedom of speech is under attack. The conservative replies: "No
one approves of these things; but these are dangerous times.
This scene is being repeated in legislatures, and in other policy making bodies around the country. Everyone supports the "War on Drugs"but few give much thought to
the price paid in diminished liberties. The police officers I interview in my Fourth Amendment cases are trained to "get the drugs,"no matter what legal and factual manipulations they may have
to use to justify it. I came to the conclusion that too little has changed since 1776, and that the same battles remain to be fought.”
A whole generation of young Americans has been criminalized by this effort, without a noticeable slowing of drug traffic. And even misdemeanor drug offenses are now being
regularly used to permanently deprive parents of their children.
If I am elected as Attorney General of Utah, my office will work to diminish government intrusion into our private lives. Overzealous government officials who think that the
Constitution is "a technicality"will finally be taught the lessons on American freedom, which I would have hoped they all would learn in their high school history classes.
Because of the press of time, I am including below some major position statements from my website. I have recently been invited to debate my "major party"opponents
on KUED, based in part on my strong web presence. Please take a few minutes to see the whole website at: www.mcculloughforag.com.
1. THE BILL OF RIGHTS
When our Founding Fathers declared independence from England, they listed their grievances against the king in the
Declaration of Independence. Foremost among their grievances against the king were that he had usurped certain "inalienable rights"with which they had been "endowed by our
Creator."Several years later, when our Constitution was written, safeguards were included against the new government doing what the king had done. Unfortunately, it is the nature of government to
test the limits of its authority, often in a misguided attempt at doing good for its citizens. The most important thing that the Attorney General of this state can do is to protect the citizens against
government excesses, and attempted intrusions on the Bill of Rights. If elected as Attorney General, I will consider this my highest priority.
2. FIRST AMENDMENT
The First Amendment to our Constitution protects freedom of expression, including freedom of the press and freedom of
speech. The right to free speech includes the right to offend. Many government officials seem to have an almost irresistible impulse to censor what we watch, read or listen to. There is no government
official that I trust to make those decisions for me. I have opposed censorship in my law practice for many years; and as Attorney General I will continue to oppose it.
3. SECOND AMENDMENT
The Constitution protects the rights of the people to keep and bear arms. Our Founding Fathers believed this was more
than just the right to go hunting on weekends. It is the inherent right of self-defense, and the right to oppose oppression by force of arms, in extreme circumstances. As Attorney General, I will oppose
restrictions on the ownership of firearms by law-abiding citizens.
4. FOURTH AMENDMENT
This provision of our Constitution prohibits the government from searching or seizing our persons, our homes and our
personal effects unreasonably. In most cases, it requires the issuance of a warrant for a search, by a judge. In its pursuit of the "war on drugs,"the government at all levels continues to seek
more authority to search and seize.
The Utah Highway Patrol participates in a federal program known as "Operation Pipeline,"which trains police officers to look for "suspicious"circumstances
when motorists are stopped for routine traffic violations. Despite numerous court rulings to the effect that motorists must be detained only as necessary to cite them for the traffic violations, police
continue to detain and search people in their automobiles based on their own vague ideas of suspicious circumstances. The right of the people to be free from unreasonable searches and seizures should be
championed by the Attorney General of this state.
5. THE "WAR ON DRUGS”
The government, in its zeal to prosecute those involved with drugs, ignores scientific evidence of medicinal value
of certain drugs, and prosecutes thousands for small time possession. A whole generation of our young people is becoming, by the government's definition, "criminals,"due to youthful
experimentation. Both major Presidential candidates are under some suspicion of drug use at an earlier age. If we are going to elect one of these men President of the United States, why continue to
prosecute a large number of others for doing the same thing? The "war on drugs"needs to be reviewed in its entirety, and particularly as it gives law enforcement agencies an excuse to engage in
unreasonable searches and seizures.
6. FIFTH AMENDMENT
The Fifth Amendment to the United States Constitution prohibits the government from forcing someone accused of a crime to
testify against himself. Recently, the United States Supreme Court upheld the tradition of requiring "Miranda warnings"prior to interviews with criminal suspects who are in physical custody.
Some in the present Attorney General's office were quoted in the newspaper as opposing this decision, as it would "let criminals go free."Unfortunately, they seem to have forgotten that those
accused of crimes in the United States are presumed innocent until proved guilty beyond a reasonable doubt. Most Americans agree with the decision of the United States Supreme Court. The Attorney General
of this state should also support that decision.
7. ASSET FORFEITURE REFORM.
Recently, the Republican candidate for Attorney General came out in opposition to the Utah Private Property
Protection Act, which will be on the ballot on November 7. The Democratic candidate had already come out in opposition to this initiative.
I wholeheartedly endorse the Utah Private Property Protection Act. I have previously signed on to represent the ACLU of Utah on the steering committee of Utahns for Property
Protection.
Perhaps the most objectionable part of the law as it stands, is that a civil forfeiture action can, and often does, go forward without the need of a criminal conviction. In
fact, the owner of the property may not be the same individual who was using it when it was seized. This needs to be changed; and any forfeiture must be subject to a higher level of proof, as is required
in all criminal cases.
Under the current law, no proof that a property owner is selling drugs is necessary to forfeit his property. The Utah Private Property Protection Act is indeed necessary to
reform the procedure in Utah to avoid property forfeiture belonging to those not convicted of a crime. In fact many of the proposed changes are taken from similar legislation recently backed by Senator
Hatch, designed to avoid inappropriate forfeitures on a Federal level. The Republican Party endorses forfeiture reform in its State Platform:
We strongly oppose the forfeiture of private property from innocent owners. (Source: Utah Republican Party State Party Platform (as amended at the 2000 State Convention)).
I agree with the Republican Party on this one; and I am disappointed that I am the only candidate for Attorney General who does so.
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