Skip to Content Skip to Content
Attorney General of Virginia Header

t
View Office of the Attorney General Expenditures

xt

HOT TOPICS

Lock Up Your Meds
News for CitizensOcwen MortgageMortgage Servicing Settlement Agreement
Tobacco
Computer Crime
Human Trafficking
Gang Prevention
Bullying
Drug Take Back Program Line of Duty Death Claims
Veterans
Medicaid Fraud
Elder Abuse and Neglect
TRIAD - Seniors
Official Opinions

 

May 2014 Opinions

Please click on Opinion number to view entire opinion.

Official opinions will be posted as they are issued, generally within 24 to 48 hours. Please check this page at regular intervals to determine whether additional opinions have been issued.

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 official opinions issued by the attorney general are part of the duties of the office (see Code § 2.2-505). A person authorized by statute, such as the governor, a member of the General Assembly, a constitutional officer, or the head of a state agency, can ask the attorney general for an official opinion on the law. Members of the general public are not authorized to ask for opinions.

 

Opinion #

Requestor

Summary

The Honorables L. Scott Lingamfelter & C. Todd Gilbert,  Members, House of Delegates

The Governor must enforce valid, duly enacted laws unless the power to delay or suspend enforcement is granted by statute or by the law’s enactment clause.  Based on longstanding precedent, a question related to the scope of power that can be exercised by the President of the United States with regard to enforcing a particular federal law is not an appropriate subject for an official Opinion.
Honorable Gordon F. Erby, Clerk of Court, Lunenberg Circuit Court While a Clerk is governed by the federal and state constitutions, he has no authority to deem unconstitutional a statute imposing on him a ministerial duty.  Such determinations are made only by the judicial branch, and thereafter interpreted by the judicial branch and other officials charged with doing so.  The duties of a Clerk are ministerial, and decisions relating to constitutionality are discretionary, not ministerial. Whether particular conduct of a Clerk declining to apply a statute constitutes malfeasance is a fact-specific determination beyond the scope of an official Opinion.  Conversely, as a general principle, a Clerk who in good faith performs his ministerial duties in the absence of clear judicial authority directing him not to do so has not engaged in malfeasance.
Honorable A. Donald McEachin, Member, Senate of Virginia A parent or caretaker who leaves a child alone in the same room with a sexually violent offender, but who remains within the dwelling, has not violated § 16.1-228(6) of the Code of Virginia.
Martin M. McMahon, Esq., County Attorney for Montgomery County A member of a Board of Supervisors does not vacate his elected office solely due to an absence from his electoral district to engage in temporary employment, provided that he maintains his domicile and place of abode within the district and intends to return there upon the termination of the temporary employment.
Honorable James Edmunds, Member, House of Delegates A service district may not legally be created to encompass an entire locality where the funds to be raised thereby would replace an existing source of general fund revenues for a regional jail, and where the special service district is not being created in order to provide additional, more complete, or more timely services.

Honorable S. Chris Jones, Member, House of Delegates

A locality may not by administrative action refund erroneously assessed real estate taxes after the three-year limitation period has passed.