The AG opines… so what? Part 1

Every now and then, a Virginia attorney general makes news for issuing a legal opinion. This post explores why the AG does that and what it means when an AG opines on something. The second part, coming soon, will address the question “What if an AG opinion is wrong?”

Why does the AG issue opinions?

The AG issues opinions because it’s part of the job. Va. Code § 2.2-505 provides that the AG “shall give his advice and render official advisory opinions in writing” when requested by one of a specific list of officials. In most cases, the official requesting the opinion must be asking a question that “is directly related to the discharge of [his/her] duties,” and attorney officials must give their own opinion (“a precise statement of all facts together with such attorney’s legal conclusions”) when they request the AG’s opinion. The Governor and members of the General Assembly have what might be called super-opinion privileges – not restricted by subject matter and without any heightened content requirements. (Pro tip: If there’s a subject on which you want an opinion, get your legislator to ask for you.)

Members of the public don’t have the right to ask for AG opinions, but the list of eligible people expands a little when it comes to ethics matters. Va. Code § 2.2-3121 gives any state employee the right to ask for an opinion on whether a particular set of facts violates the Conflict of Interests Act.

What’s the significance of an AG opinion?

To answer this, start by going right to the source – here’s how the AG’s website describes opinions:

IMPORTANT NOTE:  Official opinions represent the attorney general’s analysis of current law based on his thorough research of existing statutes, the Virginia and United States constitutions, and relevant court decisions.  They are not “rulings” and do not create new law, nor do they change existing law.  Creating and amending laws are the responsibility of the General Assembly, not the attorney general.

Official opinions are legal advice, not personal opinions, and do not reflect the attorney general’s personal views about what the law should be.  Such advice is provided to ensure clients/the requester are in compliance with the law.  While the opinions may be given deference by the courts, they are not binding on the courts.

The usual caveats and practicalities apply – even if you buy John Roberts’ deceptively simple “balls and strikes” theory of opinion issuance, every baseball player and attentive fan knows that it matters who the umpire is.

But this summary really does provide useful information, from which additional understanding can emerge. Even in a formal opinion, the AG is advising his clients – the state government and certain other officials. As with any other lawyer’s clients, they are not required to follow his advice, but failing to do is risky in at least a couple of ways:

Acting contrary to an AG opinion might mean they can’t count on the AG representing them and need to pay for different counsel, as the Board of Health found out a couple of years ago in the heated (and on-going) debate over Virginia’s abortion clinic regulations. But there’s a less controversial and more common consequence too.

Acting contrary to an AG opinion might create new/additional liability because ignoring the advice of your attorney is pretty much the epitome of knowing and willful. See, e.g., Va. Code § 2.2-3714 (additional penalty for a violation of FOIA that’s “willfully and knowingly made”). Notably, unlike most advice of counsel, which is protected by the attorney-client privilege, formal AG opinions are public, meaning that it’ll be easy for someone to tell when one of the AG’s clients is acting contrary to his advice.

What effect does an AG opinion have in court?

The last sentence of the above summary – that AG opinions “may be given deference by the courts” but “are not binding on the courts” again gives a good introduction that can be fleshed out by looking to court cases.

In Beck v. Shelton, a 2004 case concerning whether email communication constituted a meeting under the Virginia Freedom of Information Act, the Supreme Court first looked to the statute and the facts, expressing its disagreement with the trial court’s conclusion. The Court then noted that there was an AG opinion on point. After describing the opinion, the Court stated:

While it is not binding on this Court, an Opinion of the Attorney General is “entitled to due consideration.” This is particularly so when the General Assembly has known of the Attorney General’s Opinion, in this case for five years, and has done nothing to change it. “The legislature is presumed to have had knowledge of the Attorney General’s interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General’s view.” [267 Va. 482, 492, 593 S.E.2d 195, 200 (citations omitted).]

The “due consideration” but “not binding” formulation appears repeatedly, both in cases where the Court agrees with the AG and where it does not. See, e.g., Beck (above, following the AG’s opinion); Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d 858, 861 (1998) (declining to follow the AG’s opinion).

The legal fiction that AG opinions show legislative will

Where it winds up agreeing with the AG, the Court will almost always add discussion of how the General Assembly failing to make any changes is presumed to show agreement or acquiescence to the AG’s view. See Beck (above); Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06 (1983). It’s this presumption that gives AG opinions much of their legal significance.

There are several important things to note about the presumption of legislative acquiescence:

  1. It’s a legal presumption / fiction, not a factual issue. No one goes asking legislators to see if they actually were aware and in agreement.
  2. It doesn’t really matter if it makes sense. Anyone who’s spent a lot of time watching the General Assembly in action is likely to find themselves wondering at times how legally aware the legislators are. And, due to policy inertia, partisan fights, entrenched special interests, legislative hesitancy to address complicated subjects, etc., it can be a heavy burden to adopt changes or new laws, even where a majority is in favor. For these or other reasons, you may think that a legislature’s failure to take action doesn’t really show much of anything. And you might be right, but don’t expect a court to care.
  3. It’s not limited to the AG. Case law discusses the presumption for decisions of the Supreme Court and Court of Appeals, the State Corporation Commission (SCC), and sometimes regulations created by public officials or departments in charge of a particular area. See, e.g., Appalachian Power Co. v. SCC, 284 Va. 695, 704 & n.7, 733 S.E.2d 250, 255 & n.7 (2012) (SCC & citing cases involving other officials); Tazewell County Sch. Bd. v. Brown, 267 Va. 150, 163-164, 591 S.E.2d 671, 677-678 (2004) (AG & Board of Education); Weathers v. Commonwealth, 262 Va. 803, 805, 553 S.E.2d 729, 730 (2001) (appellate courts).
  4. It’s a rule of construction that only applies when a statute is ambiguous (legally unclear). E.g., Office of the AG v. SCC, 762 S.E.2d 774, 779 n.10 (2014) (citing Commonwealth v. Appalachian Electric Power Co., 193 Va. 37, 45-46, 68 S.E.2d 122, 127 (1951)); Hampton Roads Sanitation Dist. Comm’n v. Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978).
  5. It’s stronger when the period of non-change is longer. See, e.g., Appalachian Power Co. v. SCC, 284 Va. 695, 704, 733 S.E.2d 250, 255 (2012) (explaining the lack of deference to the SCC by contrast with cases involving longstanding rules or multiple years of legislative non-action); Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200 (2004) (5 years of non-action after an AG opinion); Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06 (1983) (2 AG opinions and about 18 years of non-action, and citing a case involving 7 years of non-action). The Supreme Court has not drawn a bright line, but the case law suggests that multiple years of non-action are almost required.

AG opinions aren’t irreversible or the last word

On February 1, the Richmond Times-Dispatch included an opinion column by Rich Kelsey (GMU Law page / Twitter) decrying AG Mark Herring’s 2014 opinion about undocumented/illegal persons’ eligibility for in-state tuition. Unfortunately, the column was badly misleading when it came to describing the legal status and effect of AG opinions.

The courts’ treatment of AG opinions is normal legal construction, not “an odd quirk of Virginia law”. Legislative inaction does not “constitute[] affirmative adoption” of an opinion; the silence/inaction is merely presumed to be acquiescence.

Inaction alone does not “mak[e] the AG’s opinion on [an] issue the law of the commonwealth.” Agencies can and do decide not to follow an AG’s advice. (For example, Northern Virginia localities ignored a February 2013 AG opinion, which ultimately spurred the enactment of restrictions on passive/mass surveillance by law enforcement in the 2015 Session. See HB1673 & SB965.) Ignoring an AG opinion may involve some risks for agencies, as described above, but it’s certainly possible.

And there’s no deadline – “the next session” is not a magic or decisive time period. Indeed, cases applying the presumption of legislative acquiescence almost always involve, and sometimes emphasize, the passage of multiple years without action.

Finally, Kelsey’s claim that an opinion “cannot be revoked by a future AG” is an illogical claim for which he offered no support. Although legal traditions and principles lead courts to avoid willy-nilly reversals, courts do sometimes reverse themselves, and they often more subtly alter the law by carving out exceptions and distinguishing prior opinions. AGs can do all of that too.

UPDATE (3/4): The Washington Post reports, with links to both, that AG Mark Herring has issued an official opinion that reverses a 2002 official opinion of former AG Jerry Kilgore.  So the AG has just done what Kelsey claimed was impossible.

With the above explanation as background, the next post, coming soon, will answer the question “What if an AG opinion is wrong?”, using a recent opinion on FOIA and mugshots as an example.


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