THE UNIVERSITY OF VIRGINIA YOL.56, 0.8

THE OFFICE OF ATTORNEY GENERAL IN VIRGINIA By Thomas R. Morris

The author, an associate professor ofpolitical science The Constitution of Virginia places the about 1703, when the attorney general was at the University oj Richmond, is a N EH Research attorney general second in line of succession first required to live in Williamsburg, the Fellow at the University of Wisconsin-Madison during the 1979-80 academic year. to the governor, behind the lieutenant appointments were made by the governor. governor. As one of three officials elected As one might expect of an office that T he office of attorney general in Virginia statewide in Virginia and, along with the developed over several centuries to meet the operates at the conjunction of the executive, governor, a full-time official, the attorney needs of the Crown, the powers of the office legislative, and judicial processes, thereby general enjoys a high degree of prestige and were customary and thus ill-defined. The making this office a unique policymaker visibility. With the recent trend toward colonial attorneys general were generally within state government. The office of electing governors and lieutenant governors assumed to possess the common-law powers attorney general does not fit neatly within on a single ballot (the practice in twenty-one and duties ofthe English attorney general. In the state framework of separation of powers states, excluding Virginia), the attorney Virginia, the attorney general was responsi­ primarily because the duties of the office are general is the state official most often elected ble for prosecuting criminal matters and quasi-judicial in character with, at times, on a single ballot in the American states. representing the king, the governor, and the elements of legislative qualities as well. The This news letter presents an overview ofhow Commonwealth in the colonial courts. The executive dimensions of the office were the office has evolved and operates in attorney general also rendered legal advice underscored when the General Assembly Virginia. to the governor and Council as well as hifted the provi ions for the officeholder occasionally assisting the House of Bur­ from the judicial to the executive article of HISTORICAL BACKGROUND gesses in the drafting of bills. Among the the 1971 Constitution. The attorney general The origins of the office of attorney outstanding colonial attorneys general in and his staff regularly interact with all major general in America are found in the medieval Virginia were Benjamin Harrison, John and political figures in every phase of state development of legal representation for the Peyton Randolph, Edward Barradall, and policymaking, ranging from the initiation of British Crown. In legal theory, the King of George Wythe. John Randolph, the last public policies to their adoption and imple­ England was always present in his own colonial attorney general, was the father of mentation. courts, and the most obvious representatives Edmund Randolph, who served as the first As the chief legal officer of the state, the of his interests were the judges themselves. attorney general of Virginia and later as the attorney general upon request renders legal However, as the embodiment of the rights first attorney general of the United States. advice to the governor, officials in his and liberties of the people, the king could From 1776 until 1851 the attorney general administration, members of the state legisla­ neither appear to be a judge in his own cause of Virginia, like the governor, was selected ture and judiciary, and certain local officers. nor appear in person in court to plead in his by the General A sembly. But unlike the Such advice traditionally has carried great own behalf. Therefore, in the thirteenth chief executive, he served either during good weight in Virginia and is almost always century the practice developed ofappointing behavior or at the pleasure ofthe legislature. followed. In addition to the interaction with attorneys to appear in the king's behalf in a Not surprisingly, the tenure of service of the state and local officers, the attorney general particular court or for a special cause. By the early attorneys general was lengthy; during and his staff probably have as much, or latter part of the fifteenth century, the office this seventy-five year period, Virginia was more, regular contact with federal govern­ of attorney general was held by one person, served by only six attorneys general. Philip mental officials than any other part of state who was authorized to act as the king's Norborne Nicholas (1799-1819) served government. Historically, the attorney attorney in all the courts of England. twenty years under eleven different gover­ general has defended the interests ofthe state Nevertheless, it was not until the period nors, and Sidney S. Baxter (1834-52) served against the federal government, but the between 1558 and 1641 that the attorney for eighteen years under ten governors. officeholder can also play an important role general replaced the Crown's other legal Viewed primarily as judicial officers, the in coordinating federal and state policies. In counselors to become the primary legal occupants of the office continued their the areas qf both federal and state policies, officer of the royal government. I private law practice while conducting the the attorney general is continuously involved The earliest known record of an attorney legal business of the state. in narrowing the gap between law and state general in the American colonies is the In 1851 the attorney general, along with practice. As a popularly elected official, the appointment of Richard Lee in Virginia in the governor and lieutenant governor, was attorney general has a special responsibility 1643. The office was initially filled by made subject to popular election. Since then for balancing the competing demands oflaw appointment by the king; but beginning the attorney general has been elected to serve and politics. for four years, with no limit on the number The author wishes to acknowledge the financial I Richard A. Swanson, "The Office of Attorney General in of terms served. Since 1851 the average support received for this project from the University oj England, 1558-1641," unpublished Ph.D. dissertation, University period of service for attorneys general has Richmond Faculty Research Committee. of Virginia, 1976. been slightly over five years; if one discounts

INSTITUTE OF GOVERNl\!IENT UNIVERSITY OF VIRGINIA / CHARLOTTESVILLE / APRIL 1980 the four instances in which individuals were adopted called for no change in the method Attorney General Robert Button's tenure in selected to fill unexpired terms of a year or of selection for the state's chief legal officer. January 1970, twenty-one lawyers were on less, the average for this century rises to Virginia is one of forty-three states that the staff. From that point the number of seven years. No attorney general in this popularly elect the attorney general. (Penn­ lawyers increased dramatically, to a high of century has been defeated in a bid for re­ sylvania voters will elect an attorney general ninety-one in 1977. When Attorney General election. The longevity records for service in for the first time in 1980, after years offilling Marshall Coleman assumed office in 1978, the twentieth century go to John R. the office by gubernatorial appointment.) In however, he returned to the General Assem­ Saunders (1918-34) and Abram P. Staples five states the officeholder is appointed by bly $120,000 earmarked for two new (1934-47), who served sixteen and thirteen the governor (Alaska, Hawaii, New Hamp­ attorneys and three additional support years, respectively. shire, New Jersey, and Wyoming); in Maine personnel in the Attorney General's Office Three of the last four attorneys general and Tennessee the legislature and the (an action reminiscent of Staples' forty­ elected to a full term in Virginia (excluding supreme court, respectively, select the five years earlier). When compared with the present incumbent) have sought the individual. Historically, in England and in private firms, the eighty-five attorneys governorship. Only Robert Y. Button (1962­ the American colonies, the attorney general authorized for the Virginia office qualify it as 70) chose not to seek the higher office. J. was· an appointive rather than an elective the third largest law firm in the state. Lindsay Almond, Jr. (1948-57) and Albertis official. The attorney general of the United Virginia was not alone in this expansion of S. Harrison, Jr. (1958-61) were elected States is of course appointed by the the attorney general's legal staff; during the governor at the end oftheir terms as attorney president, with the advice and consent ofthe 1970s most states experienced a sharp general, as had been the case with Andrew Senate. Proponents of an appointive attor­ increase in the number of attorney positions Jackson Montague (1898-1902), the first ney general in the states argue along the lines assigned to the chief legal officer. The popularly elected attorney general to seek of the 1927 advisory bureau that, in order to preceding decade had been marked by an the governorship. John Garland, Pollard strengthen the executive, administrative increased number of suits against the states (1914-18) was elected governor about power and responsibility should be concen­ in areas such as corrections and welfare. In twelve years after his service as attorney trated in a single popularly elected chief addition, the overall growth in state govern­ general. Thus, four attorneys general have executive. The primary argument for an ments meant increa.sedneed for. legal been elected to serve as the state's chief elective official, on the other hand, is that the services. In Virginia the growth rate can also executive, compared to five lieutenant attorney general is responsible to the be explained by the implementation of new governors. Almond and Harrison both people-not just to the governor. Separate programs such as consumer and antitrust resigned as attorney general during the last election is defended as affording a measure protection, as well as by the determination of year oftheir terms to run for governor, as did of independence that permits the attorney Attorney General Miller (1970-77) to have Andrew P. Miller (1970-77), who unsuccess­ general to render impartial legal advice and the Commonwealth's legal business handled fully sought the Democratic gubernatorial to act as an autonomous advocate for the by its own attorneys, rather than continuing nomination in 1977. In the first two citizenry. Speaking in 1927, Governor Byrd the tradition of relying on outside counsel instances, successors were appointed by the argued that the attorney general "is a check for specialized legal work. But perhaps the governor; Miller's resignation in January on the chiefexecutive when the powers ofthe most significant development was Miller's 1977, while the state legislature was in Governor require interpretation.... he enunciation of the concept of "preventive session, led to the election of Anthony F. should be unembarrassed if the Governor's legal medicine." In accordance with this Troy by the General Assembly to serve the own acts come to him for an opinion."3 concept, the attorneys would be organized in final year of the term. Troy (1977-78) and such a way that all governmental depart­ Kenneth C. Patty (1957-58), whom Gover­ ORGANIZATION AND OPERATION OF ments and agencies would have available to nor Thomas Stanley appointed as Almond's THE OFFICE them on a continuing basis the legal advice successor in 1957, occupied the top-ranked Virginia's first assistant attorney general that would enable them to anticipate and position within the Attorney General's was named in 1906. Attorney General avoid legal problems wherever possible. Office at the time of their selection. Freder­ William A. Anderson (1902-10) conferred The delivery ofspecialized legal services as ick T. Gray (1961-62) served in the office the distinction on Robert Catlett, who had articulated by Miller led to the assignment of under J. Lindsay Almond, Jr., who as been employed in the office since the attorneys to designated sections grouped governor appointed him to serve out the beginning of Anderson's term. The heavy into divisions. A major administrative remaining months of Albertis Harrison's workload imposed upon Attorney General reorganization of the office in fiscal year term as attorney general. Anderson had necessitated the employment 1973-74, coupled with changes made by In 1927 an advisory bureau recommended of an additional attorney in order to handle Attorney General Marshall Coleman at the the streamlining of Virginia government by the legal activity associated with the imple­ outset of his term, account for the present making the governor the sole statewide mentation of the Constitution of 1902 and structure of the Attorney General's Office. elective administrative officer. In the words litigation between Virginia and West Virgin­ The office is comprised of five divisions: of the bureau report, which suggested that ia over the debt which the undivided state Criminal, Civil I, Civil II, Transportation, the attorney general be appointed by the had contracted prior to 1861. Nevertheless, and Administration. Sections under the civil governor rather than elected by the people, the demands made upon the office were too divisions correspond with areas of legal "the functions ofthe Attorney General are so numerous. for the two lawyers and a specialization; examples include Employ­ closely intertwined with those performed by stenographer to handle, thus requiring ment Commission, Environmental, Health, many of the departments and bureaus of the frequent use of outside counsel to handle Taxation, Welfare, Antitrust, Consumer State government that he became a factor of major litigation. Protection, Education, and Litigation. considerable importance to the harmonious In the two decades following 1910, first a Except for the Administration Division, and satisfactory operation ofthe entire State law clerk and then a second assistant each division is headed by a deputy attorney administrative machine."2 The Commission attorney general were added to the office. general; one of these persons is designated as to S'uggest Amendments to the Virginia Then in 1934 the General Assembly acted to chief deputy for purposes ofserving as acting Constitution subsequently embraced many centralize the legal services of the Common­ attorney general in the event the elective of the recommendations of the bureau, wealth in the office ofthe attorney general by office becomes vacant. including the elimination of the popular abolishing special counsel in various state An administrative section and a fiscal election of several state department heads, departments. Eight assistant attorneys gen­ officer were first provided for during but it did not recommend the appointment eral were authorized for the office; but in an Andrew Miller's term of office. Under of the attorney general. Governor Harry unprecedented move Attorney General Attorney General Coleman, the administra­ Byrd concurred with the view of the Abram P. Staples (1934-47) returned some tive function of the office was upgraded to commission, and the amendments as finally $40,000 to the state treasury by leaving three divisional status, and the Director of of the positions unfilled. From 1938 to 1964 Administration was charged with overseeing the number of attorneys in the office grew the efficient operation of the office and 2Justus G. Holsinger, "The Process and Development of the slowly, with the total fluctuating between establishing a financial management system. Virginia Constitutional Revision of 1928: With Regard to the eight and twelve. At the conclusion of In an effort to analyze the workload and Reorganization of the Administration," unpublished M.A. thesis, productivity of the office, a time reporting University of Virginia, 1935, p. 19. 3Ibid., p. 80. system similar to the ones used by most major law firms was initiated for the decisions. The value of close cooperation his final approval. The advisory opinion assistant attorneys general. The physical between the attorney general and local function is perceived as part ofthe judicial or consolidation of the Attorney General's prosecutors was also demonstrated in the quasi-judicial role of the Attorney General's Office from some sixteen locations scattered 1979 conviction of a former state purchasing Office. It is a time-consuming process that throughout the City of Richmond into one official. In a unique joint effort, the antitrust frequently involves a great deal of legal Department of Law is scheduled when attorneys in the Attorney General's Office research and, unlike opinions written by renovation work is completed on the old coordinated their work with that of the appellate judges, does not include legal briefs Federal Reserve Building in downtown Richmond commonwealth's attorney in or oral arguments by opposing counsel. Richmond. investigating allegations of official miscon­ Once written opinions have been finally duct in state purchasing practices. In cases approved by the attorney general, they are THE WORK OF THE OFFICE involving white-collar crime and certain released periodically to the press and to Most of the work of the Attorney multijurisdictional crimes, the resources and interested parties and are preserved in General's Office pertains to civil as opposed experience of the Attorney General's Office annual volumes. Indexes to the opinions are to criminal matters. Unlike the attorney are crucial to the success of local prosecu­ a part of each volume; cumulative indexes general of the United States, Virginia's tions. for ten or more years also have been attorney general is not vested with control The duties o(the attorney general fall into prepared over the years. over the selection or activities of local two major categories: litigation and legal While only advisory, opinions of the prosecutors. The power of the attorney advice. Litigation constitutes the largest part attorney general are taken very seriously by general to institute criminal proceedings in of the office's total workload. The Attorney the recipients and become important legal the circuit courts is severely limited by General's Office conducts all civil litigation precedents. In a 1975 case the Virginia statute either to specific requests by the involving the Commonwealth, the governor, Supreme Court found the statutory con­ governor or to special cases involving and the various state departments and struction of two attorneys general over a violations of the election laws, the alcoholic agencies. Although the office probably has a period of seven years not binding on it, but beverage control act, motor vehicle laws, the much larger appellate practice than any law 44entitled to due consideration."7 Many handling of state funds, and the unautho­ firm in the state, the vast bulk ofthe attorney opinions of the attorney general are never rized practice of law. 4 Not until criminal general's litigation is not at the appellate acted on by the courts or the legislature and, cases reach the Virginia Supreme Court does level. The typical case on the attorney for all intents and purposes, become the law the attorney general normally have the general's docket is a civil action at the trial of the state. Some opinions have far­ responsibility for representing the Common­ court level in which the office represents an reaching political and social consequences. wealth. administrative agency. In the fiscal year For example, in a 1948 opinion, Attorney In addition to criminal appeals to the 1978-79, 62 percent of the 1,236 cases General Almond reaffirmed the interpreta­ state's highest court, the Criminal Division handled by the Virginia office were at the tion of two of his predecessors to the effect of the office represents the state in a large state trial court level, while an additional 14 that Virginia law did not prohibit state number of habeas corpus proceedings percent were in the federal trial courts. Over Democrats from voting in their party's commenced in the federal and state courts by half of the cases in the state trial courts primary even if they had voted for the state prisoners; it also defends the Depart­ involved three state agencies: the Virginia Republican presidential candidate in the ment of Corrections against complaints filed Department of Highways and Transporta­ preceding election. This opinion obviously by state prisoners under federal law. During tion, the Department of Taxation, and the permitted Byrd Democrats to maintain their the 1979-79 fiscal year, the office handled Virginia Employment Commission. Only 10 good standing as Virginia Democrats while I, II 1 haheas corpus petitions and 889 percent of the caseload included cases voting Republican in presidential elections; complaints by state prisoners.s While most decided or pending in the Virginia Supreme however, it has also been suggested that the of these cases do not reach trial, they require Court, and only 2 percent were cases before practice sanctioned by this opinion contrib­ considerable preparation to ensure a thor­ the United States Supreme Court. Federal uted to divisions within the Democratic ough defense in those areas of the law where litigation (including cases before both party and to the growth of the state the federal courts have abandoned their federal agencies and all levels of the federal Republican party.8 position of noninvolvement. Other services courts) accounted for 23 percent of the In fiscal year 1978-79, the attorney general provided by the Criminal Division include office's caseload. published a total of 257 opinions of44general providing legal advice and assistance to the Legal advice can be given informally, interest or helpful in promoting uniformity Department of State Police and the Virginia either in writing or orally, or it can be in the construction of the laws ofthe State."9 Parole Board and reviewing extradition communicated as a formal written opinion. Of that total, 35 percent were prepared at the papers in order to make recommendations to Informal legal advice to state agencies is part request of state legislators, and 12 percent at the governor. of the routine work of the office. Under the request of state judges. One-fourth ofthe Even though it would be misleading to Virginia law, the attorney general must opinions were addressed to local prosecu­ describe the attorney general as the chieflaw render official advisory opinions in writing tors, while other local constitutional officers enforcement officer of the state, the office when requested to do so by the governor, a received 13. percent. Of the remaining 15 has become increasingly involved in assisting state legislator or judge, the State Corpora­ percent of the opinions directed to state local prosecutors during the last decade. In tion Commission, the head of a state officials and commissions, one was sent to 197 L a Technical Assistance Unit was department or agency, local prosecutors, the governor, four to the Secretary of the established in the Criminal Division. circuit court clerks, sheriffs, local treasurers, Commonwealth, and three each to the Through this unit, technical legal assistance commissioners of revenue, and chairmen or superintendent of state police, the executive is provided to those persons primarily secretaries of electoral boards. In an effort to secretary of the Supreme Court, and the responsible for the administration of justice discourage unnecessary questions from local director of the Department of Commerce. in the state. Law enforcement officials are prosecutors, a 1976 statute stipulates that an No other state official received more than made aware of developments in the law opinion request from a commonwealth's two opinions during the year. Opinion through the publication of three newsletters: attorney or a county attorney 44 shall itself be requests ranged from a seemingly inconse­ The Virginia Prosecutor, The Virginia Peace in the form of an opinion embodying a quential question concerning whether any O/flcer, and The Virginia Magistrate. precise statement of all facts together with state statute prohibited or restricted the Through these publications, as well as such attorney's legal conclusions."6 awarding of prize money in fishing tourna­ through contacts at seminars and confer­ Opinion requests are assigned to those ments for striped bass to one of special ences. the Attorney General's Office plays an assistant attorneys general in the office that importance for private corporations asking important role in communicating to local are nl0st likely to have the legal expertise if a prepaid health plan such as Blue Cross- law enforcen1ent officials, and clarifying for bearing on the particular issue. Once an 'theln. the relevance offederal and state court opinion has been drafted, it is normally reviewed by a deputy attorney general before 7 Board (~r Supervisors of Albemarle County v. Shelby J. ~Code of Virginia. sec. 2.1-124. being presented to the attorney general for Marshall. 215 Va. 756, 762; 214 S.E.2d 146, 150 (1975). 51nformation for the 1978-79 fiscal year can be found in Opinions gOpinions of the Attorney General, 1947-48, p. 66; Richmond (~r the Anomer General and Report to the Governor (~r Virginia. Times-Dispatch, Jan. 6, 1980, p. G-1. 1978-79. />Va. Code, sec. 2.1-118. 9Va. Code, sec. 2.1-128. Blue Shield of Virginia could own a life change was fashioned around new legisla­ service as attorney general. Several antitru t insurance agency under Virginia law. Popu­ tion and an office reorganization that enforcement actions involving price fixing lar topics for opinion requests were taxation, permitted the attorney general to become have been successfully concluded, including highways, bingo laws, the juvenile court active in consumer and environmental the well-publicized cases in which mileage system, and the state's Freedom of Informa­ protection and antitrust enforcement. In readings had been turned back on the tion Act. these areas of pressing interest to large odometers of numerous used autolTIobiles In addition to interpreting Virginia law, segments of the Virginia citizenry, the offered for sale. the Attorney General's Office acts as a attorney general became identified with The image of the attorney general as "the lawmaker when it becomes involved in active law enforcement. people's lawyer" underscores the special role drafting or reviewing proposed legislation. Consumer protection responsibilities in played by the office in tempering the The litigation and advising duties of the Virginia are divided between the Attorney sometimes opposite, sometimes complemen­ office make the attorneys an obvious source General's Office and the Office ofConsumer tary, elements of law and politics. Attorney of information for proposed legislative Affairs in the Department of Agriculture General Almond's vigorous defense of the changes. Although the technical aspects of and Consumer Services. Most consumer state in the school desegregation ca e legislative drafting are normally carried out complaints are processed by the Consumer during the 1950s demonstrated the use of a by the Division of Legislative Services, the Affairs Office, but all litigation is handled by legal defense to support Virginia's public attorney general and his staff sometimes the Attorney General's Office. During the school policies. Almost twenty-five years work with state agencies or even state 1978-79 fiscal year, for example, legal action later, Attorney General Coleman participat­ legislators in formulating legislative policy. was taken against companies selling alleged ed in negotiations designed to avoid litiga­ Furthermore, the Attorney General's Office energy-saving devices. A survey by the tipn between the state and the federal is directed by statute "to make such studies Attorney General's Office of the practices of government by formulating a plan accept­ related to enforcing consumer laws of the automobile repair shops led to the passage of able to HEW for desegregating Virginia's Commonwealth as are deemed necessary to legislation in 1979 requiring written esti­ colleges and universities. Both instance protect the interests of consumers and mates, a detailed final bill, and the return of illustrate the pivotal importance of the recommend to the Governor and the General replaced parts if requested by the consumer. attorney general when state policies ar Assembly the enactment of such legislation The Attorney General's Office also repre­ confronted with actual or potential review deemed necessary to promote the interests of sented the public in approximately twenty­ by the courts. the people as consumers."IO five proceedings before the State Corpora­ While restricted by law and precedent, no tion Commission. attorney general can ignore the political THE PEOPLE'S LAWYER The Environmental Section of the Attor­ realities in which the office operates. Much In 1977 Marshall Coleman campaigned ney General's Office enforces the State of the work of the Attorney General's Office for attorney general as "the people's lawyer." Water Control Law and provides all neces­ can be classified as routine, noncontroversial That slogan symbolizes the new orientation sary legal services to the state agencies legal advice and representation. However, in of the Virginia office that evolved during the responsible for pollution control and the evaluating consumer interests or choo ing 1970s. The traditional. function of the conservation ofnatural resources. Two cases among competing policies, the attorney attorney general as the chief legal officer of of recent widespread interest in which the general must make decisions based on both the state was continued, but the capacity of office participated were the suits for civil legal and political considerations. The the office to advise state and local officials penalties pertaining to the discharge of attorney general is of course assisted by a was increased. Under Andrew Miller's kepone into state waters and to the major oil large staff of nonpartisan professionals in supervision a largely reactive Attorney spill that occurred in the Chesapeake Bay in developing legal arguments. In the final General's Office was transformed into an February 1976. Effective antitrust enforce­ analysis, however, the office of attorney activist one. The role as attorney for the state ment in Virginia necessitated the complete general cannot be understood apart from the combination of an elected attorney general was supplemented by a new emphasis as refurbishment of the Virginia Antitrust Act and a politically insulated legal staff. This attorney for the people. The structure for in 1974. With the securement ofLEAA funds to establish an Antitrust Unit in 1976, the combination ensures work that is legally office was in a position to begin filing sound and, where appropriate, politically IOVa. Code, sec. 2.1-133.1(b). antitrust suits during Anthony Troy's year of sensitive.

Errata: In the March 1980 news letter on the 1979 Virginia General Assembly elections, two figures in Table 2 (page 27) were accidentally transposed. The correct percentage ofRepublicans elected to the Senate for the years 1969-79 should be 16.7 (col. 3 ofTable 2); similarly, the correct percentage of Democrats elected to the House for the same period should be 73.5 (col. 4).

Entered as second-class matter EWS Charlottesville, Virginia LET TER

fu1f;$1~~N , ECtifoI,/cr .~MtC Assistant' EditorX5andra Wt inso .~ Published each month from September through August bythe InstituteofGovernment, University of Virginia, Charlottesville, Virginia 22903. The views and opinions expressed herein are those of the ~~tfic~ar~not~f fbint~e;ed~ep~~;:'~

, ~Ateted .,A. ... :-€ ... ' »' .tter . ." ~2,!.~~~at the post office';;~fCharlottesvUle,VU'91nta, unCfer the act 01 August 2., 1912. . @ 1980 by .. The Rector and Visitors of the University of Virginia. Printed by the University Printing Office.