Opinions of the Attorney General and Report to the Governor of Virginia 1997COMMONWEALTH OF VIRGINIA
RICHMOND
1997
WAS PREPARED BY
BARBARA H. SCOTT
JANE A. PERKINS
II 9 9 71 R ce P <0> IF It <0> if It lhl ce A It It (()l IF lnl ce Y G ce lnl ce IF .. at Il
CONTENTS
Page
CASES:'
DECIDED IN THE SUPREME COURT OF VIRGINIA ....................................................... xvii
PENDING IN THE SUPREME COURT OF VIRGINIA ........................................................ xix
PENDING AND DECIDED IN THE SUPREME COURT OF THE UNITED STATES ................ xxii
OPINIONS 2
ACTS OF ASSEMBLy ................................................................................................. 321
CODE OF VIRGINIA ................................................................................................... 323
CONSTITUTION OF VIRGINIA .................................................................................... 340
RULES OF SUPREME COURT OF VIRGINIA ................................................................. 341
'The complete listing of all cases handled by this Office is not reprinted in this report. Selected cases
pending and/or decided by the Supreme Court of the United States and the Supreme Court of Virginia are
included, as required by § 2.1-128 of the Code of Virginia.
2 Each
opinion of the Attorney General is preceded by a main headnote. Opinions begin on the page on
which the headnote preceding the opinion first appears.
Opinions of the Attorney General may be accessed on the Internet, beginning with opinions issued in
January 1996, at http://www.state.va.us/-oag/opin/main.htm; on LEXIS-NEXIS, beginning with opinions
issued in July 1980; and on WESTLAW, beginning with opinions issued in 1976. The following CD-ROM
products contain opinions of the Attorney General: Michie's Virginia Law on Disc, including opinions from
July 1980; CaseFinder, including opinions from July 1967; DiscLaw, including opinions from Janu­
ary 13977; and Virginia Reporter & West's Virginia Code, including opinions from July 1976.
The Name Index consists of an alphabetical listing of individuals to whom opinions in this report are
rendered. This index will be helpful in locating prior opinions cited in this report within the calendar year 1997.
4
The Subject Index consists of an alphabetical listing of main and secondary headnotes that are associ­
ated with each opinion. Generally, the headnotes are derived from the titles (topical), chapters and articles
(descriptive) located in the Code of Virginia and the Virginia Rules Annotated that correspond with the par­
ticulf Virginia law(s) about which opinions have been rendered.
This index provides a numerical listing of statutory and constitutional provisions and Virginia
Supreme Court rules cited in opinions within this report. Unless otherwise noted, opinions issued January
through June cite Virginia law effective through the 1996 Session of the General Assembly, and opinions
issued July through December cite Virginia law effective through the 1997 Session of the General Assembly.
1991 Report. of t.he At.t.orney Gener .. l
LETTER OF TR AN SMITT AL
The Honorable James S. Gilmore, III Governor of Virginia May I, 1997
My dear Governor Gi lmore:
v
As you know, one of the primary statutory funct ions of the Attorney General of Virginia is to render official opinions on questions of law posed by public officials authorized by the General Assembly to request such opinions. Section 2. 1-118 of the Code o/ Virginia authorizes the Governor, members of the General Assembly, and vari­ ous state and local officials to request official written opinions. Furthermore, § 2.1- 128 requires the Attorney General to present to the Governor, by May I of each year, a report that includes the published official opinions issued during the preced ing calendar year.
Therefore, I am pleased to present to you the Report 0/ the Altorney General for 1997. The 103 official opinions it contains were issued by you during your service as Attorney General or by your successor, Attorney General Richard Cullen . The case activity listed also occurred before I assumed the position of Attorney General of Vir­ ginia. As you know, opinions dated on or before June II , 1997, were signed by you as Attorney General. Opinions issued between June I I, 1997, and December 31, 1997, were signed by Richard Cu lien, who was appointed upon your resignation on June II , 1997, by former Governor George F. Allen, to serve as Attorney General for the remainder of your unexpired term.
During the period covered by Ihis report, the Office of the Attorney General also represented the Commonwealth in more than 13,000 legal disputes in the courts ofooth the Commonwealth and the United States, including criminal appeals, habeas corpus actions, and civil suits involving virtually every facet of state government. Only those matters appealed to the United States and Virginia Supreme Couns are listed in this volume. In addition, deputy and assistant attorneys general have given dai ly advice on literally thousands of legal questions posed by state agencies and institutions and by local officials.
The report also lists the names of all the men and women who served as full­ time employees of the Office of the Attorney General at any time during 1997. As the new Attorney General of Virginia, I am grateful for the efforts of these dedicated, skill­ ful . and energetic men and women, who have dedicated their legal careers to servin g the citizens and government of the Commonwealth. I am also grateful for the distin­ guished service you and Richard Cullen provided the people of our Commonwealth during your tenures as Attorney General.
With kindest regards, I am 4 truly yoms,
~(~ Anorney General
1991 Report of the Attorney Ge n er 4l1
,
CIt! or Co unty
Chesterfield Henrico
Chesterfield Henrico
Attorney General Attorney General
Chief Deputy Att'y Gen. Deputy Att'y General Deputy An'y General Deputy An'y General Deputy An'y General Deputy Att'y General Deputy Att'y General
Counsel to Att'y General Counsel to Att'y General
Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Ass!. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. An'y Gen. Sf. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Ass!. AlI 'y Gen. Sr. Asst. Att'y Gen. Sr. Ass!. AII'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen. Sr. Asst. Att'y Gen.
This li ~1 includes all persons employcd on a full-timc basis in the Office of the Anomcy General at any lime during 1997
v it i 1997 Report of the Attorney Gener.al 1997 Report of the Attorney Gener ... 1 ,x
Name City or County Orrlclal Title Name City or County Official Titl e
Frank Seales Jr. Richmond Sr. Asst. Att'y Gen . Kenneth C. Grigg Henrico Asst. Att'y Gen. J. Steven Sheppard III Richmond Sr. Asst. Att'y Gen. Robert Q. Harris Richmond Asst. Att'y Gen. Jerry P. Slonaker Richmond Sr. Asst. Att'y Gen. ChrislY E. Harris-Lipford Henrico Asst. Att'y Gen. Richard L. Walton Jr. Henrico Sr. Asst. Att'y Gen . Lawrence R. Hennan Henrico Assl. AtI'y Gen. Richard B. Zorn Henrico Sr. Asst. Au'y Gen. Christopher G. Hill Henrico Asst. Au'y Gen. Judith B. Anderson Henrico Asst. Att'y Gen. Collin J. ,·/ite Richmond Asst. Att'y Gen. Robert H. Anderson III Henrico Asst. Att'y Gen. Salvatore R. Iaquinto Virginia Beach Asst. Att'y Gen . Susan W. Atkinson Henrico Ass!. AR'y Gen. Donald E. Jeffrey Henrico Asst. Att'y Gen. Will iam Atkinson Henrico Ass!. Att'y Gen. Vaughan C. Jones Richmond Assi. Att 'y Gen. Stephen U. Baer Charlottesv ille Asst. Att'y Gen. Carl Josephson Richmond Asst. Att'y Gen. Katherine P. Baldwin Richmond Asst. Att'y Gen. Michael T. Judge Hen rico Asst. AII 'y Gen. Robert B. Beasley Jr. Chesterfield Ass!. Att'y Gen. Donald A. Lahy Henrico Asst. Att'y Gen. A. Ann Berkebile Richmond Asst. Att'y Gen. Thomas J. Lambert Mechanicsville Asst. Att'y Gen. Garland L. Bigley Petersburg Ass!. Att'y Gen. Alison P. Landry Richmond Asst. Att'y Gen. Jill T. Bowers Richmond Asst. AIt'y Gen. Mary E. Langer Chesterfield Asst. Att'y Gen. Margaret A. Browne Chesterfield Asst. Att'y Gen. Karen L. Lebo Richmond Ass!. Att'y Gen. John R. Butcher Richmond Ass!. Att'y Gen. Stewart T. Leeth Richmond Asst. Att'y Gen. John K. Byrum Richmond Ass!. Att'y Gen. Lance B. Leggett Henrico Asst. Att'y Gen. Howard M. Casway Richmond Asst. Att'y Gen. Todd E. LePage Richmond Asst. Au'y Gen. George W. Chabalewski Chesterfield Ass!. Att'y Gen. Rick R. Linker Richmond Ass!. AU'y Gen . Ellen E. Coates Richmond Asst. Att'y Gen. Edward M. Macon Richmond Ass!. AII'y Gen. Cynthia W. Comer Richmond Asst. Att'y Gen. Teresa D. Manning Richmond Ass!. Att'y Gen. C. Tabor Cronk Richmond Ass!. Att'y Gen. Al ton A. Martin Mechan icsv ille Ass!. Att'y Gen. Anne Marie Cushmac Henrico Asst. Att'y Gen. Kathleen B. Martin Henr ico Asst. Att'y Gen. Leah A. Darron Henrico Ass!. Att'y Gen. Maureen R. Matsen Richmond Ass!. AII 'y Gen. Christopher M. Day Arlington Asst. Att'y Gen. Louis E. Matthews Jr. Henr ico Asst. Att'y Gen. Marla G. Decker Richmond Ass!. Att'y Gen. Monica S. McElyea Richmond Ass!. Att'y Gen. Will iam A. Diamond Henrico Assi. An'y Gen. John H. McLees Jr. Richmond Asst. Att'y Gen. Raymond L. Doggett Jr. Henrico Ass!. Att'y Gen. John B. Moriarty Jr. Richmond Asst. Att'y Gen. W. Mark Dunn Richmond Asst. Att'y Gen. Daniel J. Munroe Henrico Ass!. AII 'y Gen. Lawrence E. Durbin Richmond Asst. Att'y Gen . Patricia H. Munroe Henr ico Ass!. Att'y Gen. Christopher D. Eib Richmond Asst Att'y Gen. Eugene P. Murphy Richmond Ass!. AII'y Gen. Howard P. Estes Jr. Chesterfield Ass!. Att'y Gen. Joan W. Murphy Richmond Asst. AII'y Gen. Deborah Love Feild Chesterfield Asst Att'y Gen. William W. Muse Henrico Asst. Att'y Gen. Donald R. Ferguson Henrico Asst Att'y Gen. Carol S. Nance Henrico Ass!. Att'y Gen. Frederick S. Fisher Charles City Asst. AU'y Gen. Ingrid E. Olson Richmond Ass!. Att'y Gen. Eric K.G. Fiske Richmond Ass!. AU'y Gen. James W. Osborne Bristol Ass!. AII'y Gen. Evelyn R. Fleming Chesterfi eld Assi. AII'y Gen. Steven O. Owens Hanover Asst. Att'y Gen. Gregory C. Fleming Chesterfield Ass!. Att'y Gen. Martika A. Parsons Richmond Ass!. Att'y Gen. Brian J. Goodman Gooch land Ass!. AII'y Gen . Mark S. Paullin Chesterfield Asst. Att'y Gen. John P. Griffin Henrico Ass!. Att'y Gen. Francis W. Pedrotty Chesterfield Ass!. Att 'y Gen.
x 19 97 Report of t he Altto rne y Ge n e ral 19 97 Report of t h e Attorney Ge n e ra l x ,
Name City or County o metal Title Name City or County Offi cia l Title
Donald G. Powers Augusta Asst. Att'y Gen. Marian W. Schulrumpf Orange Oir. of Planning & Personnel
Daniel J. Poynor Richmond Asst. Att'y Gen. John H. Vance Richmond Asst. Oir. o f Fin. & OpeL
John B. Purcell Jr. Richmond Asst. An'y Gen. Terence E. Nozigl ia Richmond Technical Project MgrJ Expen
Patricia H. Quillen Roanoke Asst. Att'y Gen. Jeanne E. Cole-Amos Chesterfield Asst. Dir. , Planning & Personnel
Cameron P. Quinn Richmond Asst. Att'y Gen. Georgiana G. Wellford Richmond Director of Library Services
Ronald N. Regnery Henrico Asst. Att'y Gen. Donald C. Harrison Henrico Asst. Dir. of Communications
Sandra B. Riggs Wise Asst. Att'y Gen. Robert C. Hoppin Richmond Asst. Dir. of Communications
Roscoe C. Roberts Richmond Asst. AU'y Gen. Stephen A. Horton Richmond Spec. Asst. to Chief Deputy
Stephen Rosenberg Richmond Asst. Att'y Gen. Wan Pui lang Henrico Computer Network Eng.
Lisa J . Rowley Richmond Asst. Att'y Gen. Elizabeth G. Whitham Chesapeake TRJAD/CADRE Coordinator
Rita M. Sampson Chesterfield Asst. Att'y Gen. Kurt B. Friday Richmond Budget Analyst Sr.
Pamela A. Sargent Henrico Asst. Att'y Gen. Jan ice S. White Chesterfield Benefits Admin.lFacilities MgT.
Amy H. Schwab Richmond Asst. Att'y Gen. Mitchell P. Bordeaux Chesterfield Chief Auditor
Richard S. Schweiker Jr. Richmond Asst. Att'y Gen. Jerry W. Ham Henrico Claims Manager
Elizabeth P. Selden Richmond Asst. Att'y Gen. C. Granville Scott Richmond Info. Systems Analyst
H. Elizabeth Shaffer Richmond Asst. Att'y Gen. Barbara H. Scott Henrico Publications Coordinator
Jeffrey S. Shapiro Richmond Asst. Att'y Gen. Paul N. Anderson Henrico Senior Investigator
Mary E. Shea Henrico Asst. Att'y Gen . Alice H. Cannon Richmond Accountant Senior
Richard B. Smith Henrico Asst. Att'y Gen. Anne B. Kincaid Richmond Executive Assistant
Jeffrey A. Spencer Richmond Asst. Att'y Gen . David E. Johnson Midlothian Execut ive Assistant
Paul S. Stahl Fairfax Asst. Att'y Gen. Deanna L. Wisman Henrico Executive Assistant
G. Russell Stone Jr. Richmond Asst. Att'y Gen. Denise B. Burch Powhatan Exec. Asst. to Att'y Gen.
Gaye L. Taxey Fairfax Asst. Alt'y Gen. Helen Jackson Henrico Exec. Asst. to Att'y Gen.
Alexander L. Taylor Jr. Richmond Asst. Att'y Gen. Christopher 1. Whyte Henrico Exec. Asst. to Att'y Gen.
Joi J . Taylor Richmond Asst. Att'y Gen. Rosemary C. Foreman Fairfax Office Manager
William E. Thro Richmond Asst. Att'y Gen. Kristine C. Coning Chesterfield Senior Auditor
Lee M. Turlington Richmond Asst. Att'y Gen. Danita B. Puller Henrico Accountant
Julia D. Tye Suffolk Asst. Att'y Gen. Kevin E. Hoeft Virginia Beach Admin. Staff Spec.
Barbara H. Vann Henrico Asst. Att'y Gen. Tracy S. Mollo Virginia Beach Admin. Staff Spec.
Margaret Ann Walker Richmond Asst. Att'y Gen . LeiAnn E. Ulep Glen Allen Admin. Staff Spec.
Robert L. Walker Lynchburg Asst. Att'y Gen. Jason A. Walker Chesapeake Admin. Staff Spec.
Linwood T. Wells Jr. Richmond Asst. Att'y Gen. Michelle R. Day Richmond Auditor
John S. Westrick Henrico Asst. Att'y Gen. Scott D. Nystrom Richmond Computer Technician Sr.
Cheryl A. Wilkerson Portsmouth Asst. Att'y Gen. Betty L Edgemon Chesterfield Division Admin. Asst.
John C. Wilkinson Abingdon Asst. Att'y Gen. Iva B. Frizzell Henrico Division Admin. Asst.
Steven A. Witmer Henrico Asst. Att'y Gen. Gloria 1. Moore Richmond Division Admin. Asst.
Rita R. Woltz Charlottesville Asst. Att'y Gen. Sherie F. Sensabaugh Henrico Div ision Admin. Asst.
F. Edward Urbine Jr. Richmond Director of Administration Corrine Vaughan Hopewell Division Admin. Asst.
Mark A. Miner Richmond Director of Communications Linda A. Belote Richmond Investigator
Gerard J. White Richmond Director of Fin . & Oper. Addison L. Cheeseman Hampton Investigator
Yi·Jer Huang Midlothian Director oflnfo. Systems David A. Hardwich Henrico Investigator
di. 1997 R e port of the Attorney General 1997 Report of the Attorney Ge n eral xii. i
/lame City or Cou uty Official Titl e Name City or Co uuty Ornc lal Tit le
Robert B. Richardson Chesterfield Investigator Cheryl L. French Chesterfield Legal Secretary Senior
William B. Siegfried Henrico Investigator Dorothy A. Godbey Henrico Legal Secretary Senior
Beverley C. Black Henrico Legal Assistant Senior Betty Jean Grafton Chesterfield Legal Secretary Senior
Catherine C. Hill Chesterfield Legal Assistant Senior Deborah 1. Henderson Chesterfield Legal Secretary Senior
Susan E. Lowry Abingdon Legal Assistant Senior Esthcr W. Messitt Chesterfield Legal Secretary Senior
Patricia L. Tyler Chesterfield Legal Assistant Senior Cindy 8. Mountcastle Richmond Legal Secretary Senior
Stephan ie H. Wade Richmond Legal Assistant Senior Bobbie T. Saunders Chester Legal Secretary Senior
Shei la B. Overton Richmond Network Administrator Patty 8. Senter Richmond Legal Secretary Senior
Kimberly M. Anderson Colonial Heights Victims' ~otification Dir. Faye H. Smith Henrico Legal Secretary Senior
Sarah R. Cross Henrico Claims Representative Matthew 1. White Richmond Library Assistant
Kelly A. Ford New Kent Claims Representative Elizabeth G. Mikell Richmond Personnel Assistant
Felicia M. Berger Richmond Legal Assistant Carol G. Nixon Chesterfield Personnel Assistant
Robert D. Brashier 11 Richmond Legal Assistant Deborah M. Baldwin Chesterfie ld Legal Secretary
Linda A. Dickerson Henrico Legal Assistant Deborah Bank-Minns Chesterfield Legal Secretary
Judith G. Jesse Fluvanna Legal Assistant Linda 8. Buell Henrico Legal Secretary
Tammy P. Kagey New Kent Legal Assistant Kimberly A. Carter Richmond Legal Secretary
Laureen S. Lester Chesterfield Legal Assistant Connie J. Cersley Hanover Legal Secretary
Deborrah W. Mahone Henrico Legal Assistant Lillian P. Cersley Hanover Legal Secretary
Jocelyn G. Maxim Rockville Legal Assistant Gloria A. Clark Wise Legal Secretary
Jane A. Perkins Henrico Legal Assistant Anna M. Clay Richmond Legal Secretary
Wanda A. Rollins Chesterfield Legal Assistant Betty G. Coble Chesterfield Legal Secretary
Shevaun M. Roukous Richmond Legal Assistant Mavis W. Coppedge Henrico Legal Secretary
Janet L. Scott Richmond Legal Assistant Susan G. Cottle Henrico Legal Secretary
Diane C. Southern Richmond Legal Assistant Nina K. Fink Midlothian Legal Secretary
Paula C. Thompson Henrico Legal Assistant Beverly A. Ford Richmond Legal Secretary
Pamela B. Watson Richmond Legal Assistant Constance B. Fortunato Henrico Legal Secretary
Ericka L. Young Petersburg Legal Assistant Shunda T. Francis Richmond Legal Secretary
J. William Reid Jr. Henrico Legislative Policy Analyst Patsy L. Jones Richmond Legal Secretary
Debra M. Kilpatrick Chesterfield Travel Coordinator Carolyn Lumpkin Essex Legal Secretary
Barbam S. Owens Richmond Admin . Staff Asst. Brenda W. Marrow Henrico Legal Secretary
Deborah P. Cook Chesterfield Claims Specialist Laura P. Minor Fredericksburg Legal Secretary
Jamecn C. Smith Henrico Claims Specialist Rebecca L. Muncy Henrico Legal Secretary
Bonita B. Gower Henrico Fiscal Technician Senior Candy L. Newton Henrico Legal Secretary
S. Elizabeth Allen Chesterfield Legal Secretary Senior Jacquelin T. Powell Henrico Legal Secretary
Carol N. Atkinson Richmond Legal Secretary Senior Sharon 8. Powell Chesterfield Legal Secretary
Christina I. Coen Mechanicsville Legal Secretary Senior Crystal S. Randolph Henrico Legal Secretary
Karen B. Crewe New Kent Legal Secretary Senior N. Jean Redford Chesterfield Legal Secretary
Bonnie N. Degen Colonial Heights Legal Secretary Senior Carolyn L. Richardson Richmond Legal Secretary
Anna E. Eagle Dinwiddie Legal Secretary Senior Michele Rodrigues Richmond Legal Secretary
Marlene I. Ebert Chesterfield Legal Secretary Senior Sonia P. Ryan Chesterfield Legal Secretary
Vivian B. Ferry Henrico Legal Secretary Senior Karen A. SllUmaker Chesterfield Legal Secretary
x i v 1991 Re por t of th e A t torne y G e n e r a l
Name City or County Official Title
Elsie B. Tate Henrico Legal' Secretary
Mildred R. Tuppince Richmond Legal Secretary
Tijwana S. Tyler Henrico Legal Secretary
Treva M. McGeachy Richmond Document Technician
Kathleen B. Walker Chesterfield Office Services Specialist
Ellett A. Ohree Henrico Office Technician
John J. Richardson II Richmond Office Techn ician
Yvonne Johnson Richmond Receptionist
Debra A. Lane Richmond Receptionist
1991 Repor t o f t h e Attor n ey G e n e ral xv
A TTO RNEYS GENE RAL OF VIRGINIA FROM 1776 to 1997
Edmund Randolph ..
James Innes ...
Robert Brooke ..
James C. Taylor ...... .
Raleigh T. Daniel ..
James G. Field
Frank S. Blair.
Rufus A. Ayers .....
R. Taylor Scott ................... .
R. Carter Scott ... .
J. Lindsay Almond Jr. •..
..1947- 1948
. ............... 1948- 1957
The Honorable J.D. Hank Jr. was appointed Attorney G<:oeral on January S, 1918, to fill the unexpired Icnn10fthe Honorable 10hn Garland Pollard, and served until February I, 1918.
The Honorable Abram P. Staples was appointed Attorney General on March 22, 1934, to fiU the unexfired term of the Honorable John R. Saunders, and served until CX:tober 6, 1947.
The Honorable Harvey B. Apperson was appointed Attorney General on CX:tober 7, 1947 , to fill the unexpired term of the Honorable Abram P. Staples, and served until his death 00 January 31 , 1948.
The Honora.ble J. Undsay Almond Jr. was elected Anomey G<:neral by the General Assembly on February II , 1948, to till the unexpired term of the Honorable Harvey B. Apperson, and resigned September 16,1957.
xvi 1997 Report of the Attorney General
Kenneth C. Patty' ........... .. .. ..................................... .... ... ................................. 1957- 1958
A.S. Harrison Jr. ...... .. .. . . .
Frederick T. Gray. . ........ ... .
Robert Y. Button .... .
John Marshall Coleman ..... ... .
James S. Gi lmore JII ..... .
Richard Cu llen 11 . •• .•. • ••
.. .. 1998-
'The HonOl"lllbte Kenneth C. Pauy was appointed Attomey General on September 16, 1957, to fill the unexjirtd teoo or lhe Honorable J. Undsay Almond Jr. and served untit January 13, 1958.
The Honol"lllble Frederick T . Gray was appointed Attorney General on May I, 1961, to fill the unexpired teoo of the Honorable A.S. Harrison Jr. upon his resignation on Apri l 3D, 1961, and served until
Janu~ 13, 1962. lThe l'lonorable Anthony F. Troy was elected Attorney General by the General Assembly on
January 26, 1977, to fill the unexpi red teoo of the Honorable Andrew P. Miller upon his resignation on January 17, 1977. and served until January 14, 1978.
'The Honorable William G. Broaddus was appointed Attorney General on July I, 1985, \0 fill the une:otpired teoo of the Honorable Gerald L. DaWes upon his resignation on June 3D, 1985, and served until
January 10, 1986. 'The lionol"lllble Stephen D. Rosenthal was appointed Altorney General on January 29, 1993, to fill the
une:otpired teoo of the Honorable Mary Sue Terry upon her resig.nation on January 28, 1993, and served ulllil nOOIl, January IS, 1994.
I°The Honorable Richard Cullell was appoillted Attorney Qclleral to fill the ullexpired teoo of the Honorable James S. Gilmore 11[, Upoll his resigMtion 011 June II, 1997, at nOOIl, and served until noon,
January 17, 1998.
1997 Report of the A.ttorney General x v i. i
CASES DECIDED IN THI SUPREME COURT" VIRGINIA
Barnabei v. Director a/Correct. Denying habeas corpus challenge to Norfolk Circuit Court capital murder conviction and sentence of death.
Bartley v. Harlow. Affinning Augusta Circuit Coun decision that agreement to share possible proceeds from winning lottery ticket constitutes gambling contract rather than joint venture or partnership or breach of quasi-fiduciary relationship.
Becker v. Curo. Reversing Loudoun Circuit Court decision granting writ of tJabeas corpus on issue of ineffective assistance of counsel, holding that petitioner had not been denied effect ive assistance of counsel.
Bethea v. Commonwealth. Affinning Richmond Circuit Court conviction of burglary with intent to commit larceny, in violation of § 18.2-89, holding tllat prosecution may rely on legal inference when evidence fai ls to show contrary intent Ihat unauthorized presence in dwelling of another constituted intent to commit larceny.
Boehringer lngelheim Pharm. v. Department 0/ Tax'n. Denying petition appealing Richmond Circuit Court dedsion that use tax was properly assessed in pharmaceutical samples.
Browning-Ferris, Inc. v. Residents Involved in Saving Env'l. Affirming in part ruling of Richmond Circuit Court and reversing in part ruling of Court of Appeals which reversed circuit court decision rejecting challenge to permit issued by Department of Environmental Quality for landfil l in King and Queen County.
Caprio v. Commonwealth. Reversing Portsmouth Circuit Court decision Ihat defendant was not entitled to continuance, when prosecutor told defense attorneys during trial that DNA expert would testify to frequency statistic different from thaI in disclosed reports, based on compilation of statistics from various reports.
Cole v. Kyle. Denying petition for appeal of Richmond Circuit Court 's ruling holding Lottery did not breach contract by failing to distribute first installment of lottery prize.
Commonwealth Tramp. Comm 'r v. Matyiko. Reversing Chesterfield Circuit Court decision, holding that corporation's board of directors, who had knowledge of possible contingent liability to corporate creditor, could not rely on § 13. 1-690 10 insulate themselves from personal liability by relying on professional judgment of counselor accounlanl when they distributed corporate assets and dissolved corporation. Judgment plus interest was awarded from March 28, 1985.
Commonwealth v, Walker , Reversing COUT! of Ap~als ' decision that appeal bond is not required when appealing child suppon determinalion by juvenile coun to circuit coun, holding that bond is mandatory, as required by § 16.1 -296(H ).
Department of Tox'n v. Davenport. Reversing and annulling Richmond Circuit Court decision holding that taxpayers may exclude from state tax returns income included in their fede ral adjusted gross income by virtue of eJection under Internal Revenue Code, including income of their minor children.
x v i i i 19 9 1 Re p ort of t h e At to rney Ge n er al
Department of Tax'n v. National Private Truck Council. Affirming Alexandria Circuit Court decision granting summary judgment in declaratory judgment action, finding that tax department's regulation violated federal law which restricts ability of states to impose corporate income taxes on nonresident businesses.
Ewell v. Commonwealth. Reversing Court of Appeals' decision affirming denial of defendant's motion to suppress evidence seized and statements made following stop for trespassing in appeal of conviction for possession of cocaine.
Foster-Zahid v. Commonwealth. Affirming Fairfax Circuit Court decision that it had jurisdiction and that Commonwealth proved venue in case of first impression involving felony abduction statute, in which child was withheld outside Commonwealth from custodial parent after having been legally in custody of noncustodial parent without being returned to Virginia for period of time.
Gallagher v. Director of Correct. Orig. juris. Two separate cases denying petitions for writ of habeas corpus challenging convictions for securities fraud in Roanoke County Circuit Court on grounds of withholding exculpatory evidence and of government, prosecutorial and juror misconduct.
Goins v. Director of Correct. Orig. juris. Denying habeas corpus challenge to Richmond Circuit Court capital murder conviction.
Greenway v. Commonwealth. Affirming Dinwiddie Circuit Court conviction of invol­ untary manslaughter grounded partly on opinion testimony of 12-year-old witness.
Hecht v. Director of Correct. Orig. juris. Denying petition for writ of habeas corpus challenging convictions for securities fraud in Roanoke County Circuit Court on grounds of withholding exculpatory evidence and of government, prosecutorial and juror misconduct.
Hohman v. Commonwealth. Affirming Court of Appeals' decision that defendant, who was voluntarily absent from trial but present at sentencing, could receive jail sentence for misdemeanor conviction.
In re Commonwealth/All'y Gen. Orig. juris. Withdrawing petition for writ of manda­ mus compelling Hanover County Circuit Court judge to appoint special prosecutor following negotiated resolution.
In re Virginia Marine Resources Comm 'n. Denying petition for writ to prohibit Middle­ sex Circu it Court from reviewing agency case decision in declaratory judgment action.
James v. Commonwealth. Affirming Court of Appeals' decision that Richmond Circuit Court did not abuse its discretion by limiting James' cross-exam ination of expert wit­ ness. James challenged convictions for first degrce murder, malicious wounding, and use of firearm in commission of murder and malicious wounding, on ground that trial court violated Sixth Amendment by prohibiting him from asking Commonwealth's medical expert whether surviving victim's brain injuries left him "capable of lying" during his testimony at trial. Held that although expert had testified about victim's mental facult ies. memory and ability to distinguish right from wrong, trial court did not
1991 Re p ort o f t h e Att o r n ey Gene r .a l x i. x
violate confrontation clause by leaving to jury question of whether victim was able to lie on stand.
Maclin v. Virginia State Bar. Affirming order of Virginia State Bar Disciplinary Board suspending Maclin's license to practice law in Commonwealth, and dismissing case on Bar' s motion to dismiss.
Mathy v. Department of Tax'n. Affirming Fairfax Circuit Court decision denying credit against state income taxes for unincorporated business tax paid on taxpayer's behalf to District of Columbia.
Matthews v. Commonwealth . Reversing Newport News Circuit Court verdict for defendant in this slip and fall on deck of Jamestown Ferry, and remanding it for new trial. Verdict for plaintiff in amount of $30,000.
Mills v. Commonwealth. Atlirming Court of Appeals' decision that Stafford Circuit Court did not err in allowing coconspirator's statements into evidence, because evi­ dence established that appellant was part of conspiracy to distribute drugs.
Moore v. Commonwealth. Reversing Court of Appeals' decision affirming Appomattox Circuit Court conviction of rape, holding that evidence of penetration was insufficient to support conviction.
Novak v. Director of Correct . Dismissing habeas petition challenging Virginia Beach Circuit Court double murder conviction in "Dungeons & Dragons" case.
Parker v. Commonwealth. Affirming Richmond Circuit Court conviction for possession of cocaine on ground that police had probable cause to conduct search and seizure of Parker.
Phau v. Angelone. Orig. juris. Denying petition for writ of habeas corpus challenging convictions for securities fraud.
Uninsured Employer's Fund v. Thrush. Reversing Court of Appeals' decision, holding that dissim ilar employment rule is "alive and well" in determining average weekly wage wherein employee holding two dissimilar jobs is injured at one job which prevents working at other job. Not only is it improper to aggregate both wages, but also wages of job where injury occurred may not be extended over time periods that employee would not have worked to increase average weekly wage.
Williams v. Director of Correct. Orig. juris. Denying habeas corpus challenge to Chesa­ peake Circuit Court capital murder conviction and sentence of death.
CASES PENDING IN THE SUPREME COURT OF VIRGI NIA
Bishop v. Commonwealth. Appealing Richmond Circuit Court conviction for forgery of public record, and challenging adm issibility of fingerprint card, arrest sheet and photo­ graph, as well as sufficiency of evidence.
xx 1997 Repor"t of the Attorney Gener~l
Carter v. Commonwealth. Appealing Richmond Circuit Court decision lhat § 18.2- 187.1 is preempted from enforcement by federa l law, which provides penalties for cable fraud that are in conflict with state law.
Commonweaflh v. Shifflett. Appealing Court of Appeals' decision reversing Albemarle Circuit Court ruling concerning type of "mitigalion" evidence that defense may intro­ duce to jury at sentencing phase under § 19.2-295. 1.
Commonwealth v. Taylor. Appealing Court of Appeals' decision reversing Arlington Circuit Coun's ruling that § 19.2-295.1 does not allow defendant to introduce his "life story" to jury at sentencing.
Department of Tax 'n v. Blanks Oil Co. Appealing Campbell Circu it Court decision holding that place of sale of home heating fuel for purposes of imposing state sales and use tax is place of delivery.
Eley v. Commonwealth. Appealing Court of Appeals' decision affirming Virginia Beach Circuit Court holding that ev idence was sufficient to sustain conviction for use of firearm in commission of robbery.
Fears 11. Virginia Stale Bar. Orig. juris. Action seeking injunction, mandamus or prohibition 10 prevem Virginia State Bar from enforcing consumer real estate settle­
ment petition.
Fiebelkorn v. Commonwealth. Appealing Court of Appeals' decision affirming New­ port News Circuit Court holding that evidence was sufficient to prove separate offense of abduction where victim was also raped, but asportation went beyond that necessary
for rape.
Guill v. Commonweolth. Appealing Court of Appeals conviction affirming Charlotte Circuit Court conviction fo r breaking and entering with intent to commit rape, claiming that other crimes evidence introduced was inadmissible because it was 100 remote in time and not sufficiently similar to crime charged.
Hines v. Commonwealth. Appealing Court of Appeals' denial of petition challenging Virginia Beach Circuit Court conviction for statutory burglary.
Hopkins v. Smithfield Foods. Appealing Isle of Wight Circuit Court 's issuance of decree construing permit and applicable law in response to cross-bill fil ed in penalty action for violation of discharge permit.
HortOI1 v. Commonwealth. Appealing Court of Appeals' decision affirm ing Augusta Circuit Court holding that evidence was sufficient to sustain conviction for forcible
sodomy.
In re Tucker. Appealing Virginia State Bar Disciplinary Board's order suspending Tucker's license to practice law in Commonwealth for period of 15 months .
Jenkins v. Commonwealth. Appeal ing Court of Appeals' decision reversing Portsmouth Circuit Court ruling that evidence was sufficient to convict Jenkins of fi rst degree
1991 Report: of the A.t:t:orney General xx i
murder and use of firearm in commission of murder, claiming Commonwealth failed te prove that gunshot wounds inflicted by Jenkins caused victim's death.
Kokoszka v. Commonwealth. Appealing Cou rt of Appeals' decision affirming Rich­ mond Circuit Court ruling upholding validity of stop of vehicle leaving business based on infonnation in search warrant for that business.
Lilly v. Commonwealth. Challeng ing Montgomery Circuit Court capital murder convic­ tion and death sentence.
Luzik. v. Commonwealth. Appealing Richmond Circuit Court decision holding that plaintiffs are not entitled to overtime compensation under Fair Labor Standards Act.
Mason v. Commonwealth. Appealing Court of Appeals' decision affirming Arlington Circuit Court decislon not to declare mistrial over juror's proficiency in English in case involving charge of habitual petit larceny.
Mayo v. Commonwealth. Appealing Court of Appeals' decision reversing Henrico Cir­ cuil Court ruling that evidence was sufficient to convict Mayo of breaking and entering during nighttime with intent to commit larceny because Commonwealth failed to prove Mayo had committed break ing.
Metcalf v. Life Care Clr. of New Market. Appealing Court of Appeals decision regarding nursing home provider case arising under Administrative Process Act. Court of Appeals' decision affirmed circuit court decision, in favor of Department of Medical Assistance Services, concerning reimbursement of certain overhead costs of fac ility but reversed court's decision relating to interest expense issues.
Monroe \I. Director of Correct. Orig. juris. Petition for writ of habeas corpus attacking Powhatan Circuit Court convictions for murder on grounds of prosecutorial miscon­ duct, withholding exculpatory evidence, inadmissible confession, and inefTective assis­ tance of counsel.
Newby v. Commonwealth. Appealing Court of Appeals' affirmance of Chesterfield Cir­ cuit Court decision that evidence was sufficient to convict Newby of forc ible sodomy.
Richmond Newspapers v. Casteen. Appealing Richmond Circuit Court decision enti­ tling state university president to withhold from freedom of infonnation requeSt of newspaper audit report submitted by one of university's private foundations.
Rizzo v. Virginia Retirement Sys. Appealing Court of Appeals' decision that 90-day period within whict! agency is required to render decision after infonnal fact-finding proceeding does not begin on first day of each proceeding, but when proceeding ends.
Santos \I. Commonwealth. Appealing Court of Appeals' decision, arguing that Arl ing­ ton Circuit Court erred by affinning Santos' certification for trial as adult on charges of rape and extortion. Santos argues that because § 16. 1-269.1 requires juvenile court to find defendant competent to stand trial before transferring case to circuit court, trial court lacked jurisdiction to convict, because neither juvenile court nor circuit court
xxii 1991 Report of the At t orne y Gener a l
made such finding. Commonwealth argues that § 16.1-269.1 does not require compe­ tency determ ination absent any question about defendanl's compelcncy.
Soering v. Warden of Keen Mountain Correct. Ctr. Appealing Bedford Circuit Court den ial of habeas corpus relief on ground of withholding exculpatory evidence in case involving murder convictions.
Swearingen v. Huggins. Appealing Chesterfield Circuit Court decision that § 18.2-308.8 does not prohibit trooper's possession of "Striker 12" shotgun, nor is such gun considered 10 be "streetsweeper."
Thomas v. Commonwealth. Appealing Court.of Appeals' affirmance of Lynchburg Cir­ cuit Court conviction for driving after having been declared habitual offender, second
offense.
Uninsured Employer 's Fund v. Mounts. Appealing Court of Appeals' decision affirm­ ing Workers' Compensation Commission decision that found Uninsured Employer's Fund liable fo r payment of occupational disease award when, on last date of injurious exposure, employer was in compliance with insured for workers' compensation purposes, but employer's compensation carrier subsequently had been deemed insol­ vent before fact of disease had been communicated to employee.
Virginia Soc'y for Human Life v. Cardwell. Appealing district court and Fourth Cir­ cuit decisions holding that Virginia's laws requiring registration of political action committees and identifications on campaign literature are not unconstitutional.
Waldrop v. Commonwealth. Appealing Court of Appeals' affirmance of Henrico Cir­ cuit Court conviction of perjury for failing to report as campaign contributions monies received to defray recount expenses in board of supervisors' election.
Walton v. Commonwealth. Appeal ing Danville Circuit Court capital murder convictions
and death sentences.
Walton v. Commonwealth. Appealing Court of Appeals' decision affirming Salem Cir­ cuit Court ruling that evidence of constructive possession was sufficient to support Walton's conviction for possession of marijuana and finding that automatic revocation of his driver's license pursuant to § 18.2-259.1 did not violate due process.
Wright v. Department of Envtl. Quality. Appealing Roanoke Circuit Court's ruling implementing hearing officer's decision on employee grievance; appealing award of attorneys' fees for more than 21 days after entry of final order.
CASES IN THE SUPREME COURT Of THE UNITED STATES
Beavers v. Warden, Mecklenburg Correct. Ctr. Denying petition for certiorari from Fourth Circuit decision denying habeas corpus relief in death penalty case.
Buchanan v. Angelone. Affirming Fourth Circuit decision denying habeas corpus relief
in death penalty case.
1997 Report o f the Attorney Ge n era l xx iii.
Husske v. Commonwealth. Denying petition for writ of certiorari appealing Virginia supremt: Court affirm alice: of He:nricu Circuit Court convictions for breaking and enter­ ing, rape, robbery and sodomy.
Keselica v. Virginia. Considering petition for writ of certiorari appealed from Virginia Supreme Court challenging Fairfax Circuit Court conviction for embezzlement which Keselica claims was based entirely on actions occurring outside Virginia.
Murphy v. Netherland. Denying death row prisoner 's petition for writ of certiorari from Fourth Circuit's denial of federa l habeas relief.
O'Dell v. Netherland. Affirming Fourth Circuit decision reversing grant of habeas corpus relief in death penalty case.
Pope v. Warden, Mecklenburg Correct. Ctr. Denying petition for certiorari from Fourth Circuit dec i~ion reversing grant of habeas corpus rel ief in death penalty case.
Satcher v. Warden, Mecklenburg Correct. Ctr. Denying petition for certiorari from Fourth Circuit decision reversing grant of habeas corpus relief in death penalty case.
Williams v. Commonwealth. Denying peti tion for certiorari from Virginia Supreme Court decision affirming Chesapeake Circuit Court capital murder conviction.
Williams v. Director afCorrect. Denying petition for certiorari from Virginia Supreme Court decision denying habeas corpus relief in death penalty case.
11991 R<ep01rt off tlht<e Atto1r1nt<ey G<elnt<elriatll
ADMINISTRATION OF GOVERNMENT GENERALLY: DEPARTMENT OF GENERAL SERVICES· PURCHASES AND SUPPLY.
CONTRACTS: VIRGINIA PUBLIC PROCUREMENT ACT.
CONSTITUTION OF VIRGINIA: LEGISLATURE (EFFECTIVE DATE OF LAWS).
GENERAL PROVISIONS: COMMON LAW, STATUTES AND RULES OF CONSTRUCTION.
Spot purchase procurement is outside statutory criteria for procurement of personal computers and related equipment by blanket purchasing arrangement, whereby public bodies may purchase from any vendor .. Whether speCific solicitations issued by universities fit within statutory criteria is factual determination beyond scope of official opinion of Attorney GeneraL Renewal clauses existing in brand name contracts solicited and awarded before July 1, 1996, are not affected by statute for procurement of computer equipment. Division of Purchases and Supply, in electing to procure computer equipment pursuant to blanket purchasing arrangement, must cooperate with Department of Information Technology in establishing performance-based specifications for selec­ tion of brand name equipment.
The Honorable Robert G. Marshall Member, House of Delegates December 1, 1997
You ask whether a current practice of the Division of Purchases and Supply (the "Division") and state universities is consistent with the computer equipment procure­ ment requirements of § 2.1-440.1 of the Code a/Virginia.
You relate that certain state universities specify name brand equipment when issuing requests for bids for personal computers and related peripheral equipment, under a claim that the name brand equipment is required for compatibility with existing equipment. You express skepticism to such a claim because there is general uniformity of computer components and software in the marketplace.
You also advise that the Division does not consult with the Department of Infor­ mation Technology to develop performance standards to be met by bidders responding to such requests for bids. You relate that you have been advised by the Division that it will renew brand name contracts that were negotiated in April 1996, and were subse­ quently renewed in April 1997. 1 You also state that the desired effect of § 2.1-440.1, requiring the elimination of the use of brand names as specifications in requests for bids, is not being implemented by either the Division or the universities.
Finally, you advise that the Division has not regularly compiled data in its contract specifications for the type and configuration of computers and accompanying bundled software. You express doubt that the Division is following its own contracting requirements.
The general rule concerning the date new legislation takes effect is stated in Article IV, § 13 of the Constitution of Virginia (1971) and in § 1-12(A): All "regular" legislation, as opposed to appropriation bills, emergency acts and other special legisla­ tion, takes effect on July 1 following the adjournment of the regular session of the General Assembly at which it was enacted, unless a subsequent date is specified in the legislation. Consequently, a new statute speaks as of the time it takes effect and not as of the time it is passed.
2
11991 Repolrt of the Attolllmey Gre][llelr.al~
Should any agency or institution elect to procure personal computers and related peripheral equipment pursuant to any type of blanket purchasing -arrangement under which public bodies, as defined in § 11-37, may purchase such goods from any vendor following competitive procure­ ment but without the conduct of an individual procurement by or for the using agency or institution, it shall establish, with the cooperation of the Department of Information Technology, performance-based specifica­ tions for the selection of brand name equipment. Any brand of equip­ ment which meets such specifications shall be added to the blanket pur­ chase arrangement at the request of any responsible bidder or offeror.
The use of the word "shall" indicates that the General Assembly intended the terms of this provision to be mandatory.4
Section 2.1-440.1 does not, by its terms, require every procurement of personal computers to be conducted pursuant to performance-based specifications. The statute sets forth a procedure, effective July 1, 1996, that must be considered in each such procurement. The procedure is activated when an agency or institution elects to procure personal computers and related peripherals through a blanket purchasing arrangement under which public bodies may purchase such goods from any vendor following competitive procurement but without an individual procurement being conducted by or for the using agency or institution.
The term "blanket purchasing arrangement" is not defmed in § 2.1-440.10r in the Virginia Public Procurement Act.
5 The term "blanket purchase agreement," how­
ever, is defmed in the Division's rules and regulations applicable to the purchase of 6
goods by the Commonwealth as
[a]n arrangement under which a purchaser contracts with a vendor to provide the purchaser's requirements for an item(s) or a service, on an as-required and over-the-counter basis. Properly prepared, such an arrangement sets a limit on the period of time it is valid and the maxi­ mum amount of money which may be spent at one time or within a specified period and specifically identifies these persons authorized to
[7J accept goods.
The interpretation given to a statute by the state agency charged with its admin­ istration is entitled to great weight.
8 The apparent usage of the term "blanket
purchase[-ing] arrangement" in the statute is consistent with the procedure defined by the Division; i.e., the arrangement is established following a competitive process, but no procurement is conducted specifically for the particular using agency. The facts you provide are insufficient to determine whether the procurement by universities is a spot purchase
9 rather than a procurement to establish a blanket purchase arrangement. If the
procurement is a spot purchase, I am of the opinion that such is outside the category of procurements that are subject to the requirements of § 2.1-440.1. If the procurement is one to establish a blanket purchase arrangement, under which public bodies may purchase from any vendor,lO I am of the opinion that such is subject to the requirements of § 2.1-440.1. The ultimate determination whether specific solicitations issued by
1[991 Rejp0lrt oif the Attolllntey Grenelr.3d 3i
universities fit within the statutory criteria, however, is a factual one that is beyond the scope of an official opinion of the Attorney General. I am unable to comment on any factual matters raised by your inquiry regarding the practices of universities. The Office of the Attorney General historically has declined to render official opinions when the request involves a question of fact rather than one oflaw.
11
Prior to July 1, 1996, the date § 2.1-440.1 became effective, a public contract could contain a "renewal clause describing the conditions under which a term contract issued from a solicitation may be renewed.,,12 The Virginia Public Procurement Act permits modification of a public contract during performance of the contract and with­ out further solicitation, when such is made pursuant to provisions for modification con­ tained in the original contract.
13 In such situations, the potential for exercising a renewal
is part of the original competition among bidders. For the purposes of this opinion, I assume that the .. brand name contracts you
describe were awarded in April 1996 .and renewed in April 1997 pursuant to renewal clauses existing in the original contracts describing the renewals which may be made. Therefore, I am of the opinion that § 2.1-440.1 does not apply to public contracts solic­ ited and awarded before July 1, 1996, and consequently, does not apply to the facts you present.
You last observe that the Division does not appear to be compiling data that it requires in its contracts for the type and configuration of computers and accompanying bundled software. Furthermore, you express concern because the Division does not appear to be consulting with the Department of Information Technology to develop performance standards to be met by bidders.
The primary goal of statutory construction is to give effect to the legislative intent behind the enactment of a statute.
14 Words are to be given their common mean­
ings unless a contrary legislative intent is manifest. 15
"The ascertainment of legislative intention involves appraisal of the subject matter, purposes, objects and effects of the statute, in addition to its express terms.,,16
It is well-settled that "[i]f the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it." 17 It is unneces­ sary to resort to any rules of statutory construction when the language of a statute is unambiguous.
1s In those situations, the plain meaning and intent of the statute govern.
Section 2.1-440.1 clearly and unambiguously requires all state agencies and institutions to "establish, with the cooperation of the Department of Information Tech­ nology, performance-based specifications for the selection of brand name equipment." The Division is clearly an agency of the Commonwealth.
19 Therefore, I am of the opin­
ion that should the Division elect to procure personal computers and related peripheral equipment pursuant to the type of arrangement described in § 2.1-440.1, the Division is required to cooperate with the Department of Information Technology in establishing "performance-based specifications for the selection of brand name equipment."
1[991 Repolrt of the AttoJrlllley Gellllelr.ad
1 • You do not state the basIS for the renewal of the brand name contracts. Therefore, for the purposes of
this opinion, I shall assume that said renewals resulted from renewal clauses describing the conditions under which a term contract issued from the initial solicitation may be renewed and are contained in the initial contract.
2 3School Board v. Town of Herndon, 194 Va. 810, 75 S.E.2d 474 (1953).
See 1996 Va. Acts ch. 1016, at 2479. 4 See 1986-1987 Op. Va. Att'y Gen. 300, 300, and opinions cited therein.
5 Tit. 11, Ch. 7, §§ 11-35 to 11-80.
6 lee § 2.1-442.
Dep't of Gen. Serv., Div. of Purchases & Supply, Vendor's Manual app. at A-I (January 1995 ed.). 8 Forst v. Rockingham, 222 Va. 270, 276, 279 S.E.2d 400, 403 (1981); Dept. Taxation v. Prog. Com.
Club, 215 Va. 732, 739, 213 S.E.2d 759, 763 (1975); 1993 Op. Va. Att'y Gen. 226, 227. 9 The term "spot purchase" is defined to mean "[a] one-time purchase made in the open market."
Ven1~rs Manual app., supra, at A-7. This implies a blanket purchasing arrangement listing a choice of suppliers rather than a single source
offerlrg the lowest cost.
1991 Op. Va. Att'y Gen. 122, 124, and prior opinions cited therein. The authority of this Office to issue official advisory opinions under § 2.1-118 is limited to questions that are legal in nature. See Op. Va. Att'y Gen.: 1986-1987 at 1, 6; 1977-1978 at 31; see also 2 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 668 (1974).
12 Vendors Manual § 6.8, supra, at 6-2.
13 Section 11-55(A).
14 See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337,338 (1983); Vollin v. Arlington Co.
Electoral Bd., 216 Va. 674, 222 S.E.2d 793 (1976); Bott v. Hampton Roads San. Comm., 190 Va. 775, 58 Sir.2d 306 (1950).
See Op. Va. Att'y Gen.: 1990 at 233,234; 1989 at 155, 155. 16
Vollin v. Arlington Co. Electoral Bd., 216 Va. at 679, 222 S.E.2d at 797; see also 1995 Op. Va. Att'y Gen. 118, 120.
17 Temple v. City of Petersburg, 182 Va. 418,423,29 S.E.2d 357, 358 (1944); see also 1993 Op. Va.
Att'y Gen. 256, 257. 18
See Ambrogi v. Koontz, 224 Va. 381, 297 S.E.2d 660 (1982); 1993 Op. Va. Att'y Gen. 99, 100. 19
Section 2.1-435.
COUNTIES, CITIES AND TOWNS: PLANNING, SUBDIVISION OF LAND AND ZONING.
Locality may impose restrictions on Industrial farming operation that bear relationship to health, safety and general welfare of locality's citizens and that apply uniformly throughout agricultural district. Virginia law does not prevent any agency of Commonwealth from Imposing reasonable regulations on large scale animal operations.
The Honorable Mitchell Van Yahres Member, House of Delegates November 12, 1997
You ask regarding any restrictions a locality may impose on an industrial farm­ ing operation within the framework of the Right to Farm Act, §§ 3.1-22.28 and 3.1-22.29 of the Code a/Virginia (the "Act"). You ask also whether the Act precludes a locality from denying permits for large scale production of swine or other farm animals.
Jl9>9>1 Re]polFt of the AttolFl£lley Gel[llelF<al~ 5
Section 3.1-22.28, as amended in 1994,1 prohibits a county from adopting any ordinance that requires a special exception or special use permit for agriculture produc­ tion in an area zoned agriculturaL At its 1994 Session, the General Assembly also amended § 15.1-491, pertaining to matters that may be regulated in a local zoning ordi­ nance, by adding a paragraph containing essentially the same limitation found in § 3.1-22.28.
2 Both §§ 3.1-22.28 and 15.1-491 permit a county to adopt setback require­
ments, minimum area requirements or "other requirements" relating to land on which the agricultural activity is occurring. Section 3.1-22.28 also provides that no locality shall enact zoning ordinances restricting or regulating farm structures or farming prac­ tices in an agricultural district "unless such restrictions bear a relationship to the health, safety and general welfare of its citizens."
Sections 3.1-22.28 and 15.1-491 clearly prohibit a locality from requiring a special use permit or exception for agricultural production in agricultural zones or districts. Neither § 3.1-22.28 nor § 15.1-491, however, specifically prohibits all local regulation of industrial farming or large scale production of swine operations. For example, the authority to adopt setback requirements permits a locality to restrict the distance between a facility utilized for swine production and the property line, or between a building utilized for the large scale production of swine and an occupied dwelling on adjacent property. Moreover, the authority to adopt minimum area require­ ments clearly permit a locality to limit the number of head of livestock per acre that may be maintained.
3 Any such restriction, however, must "bear a relationship to the
health, safety and general welfare,,4 of the locality's citizens and, in order to be consis­ tent with the prohibition on special use permits, apply uniformly throughout the partic­ ular district. Finally, I can find no language in either § 3.1-22.28 or § 15.1-491 that prevents any agency of the Commonwealth from imposing reasonable regulations on large scale animal operations under other provisions of Virginia law.
5
1 See 1994 Va. Acts Ch. 779, at 1202, 1202. The stated purpose of § 3.1-22.28 is "to limit the circum-
stances under which agricultural operations may be deemed to be a nuisance." Section 3.1-22.29 provides that "[n]o agricultural operation: .. shall be or become a nuisance, ... if such operations are conducted in accordance with existing best management practices and comply with existing laws and regulations of the Commonwealth." A county is empowered to cause any nuisance to be abated. See § 15.1-14(5) (applying to cities and towns); § 15.1-522 (vesting county boards of supervisors with same powers and authority as cities and towns); 1983-1984 Op. Va. Att'y Gen. 90, 90; id. at 86, 89 n.2. Depending on the circumstances, the question of what constitutes a public nuisance may be determined by the legislature or by the courts. See 1993 Op. Va. Att'y Gen. 79,81.
2 See 1994 Va. Acts ch. 802, at 1246, 1248.
3 A cap on the maximum number of animals permitted on a farm, regardless of the acreage of the farm,
would likely be inconsistent with the requirement in § 3.1-22.28 that the restriction bear a relationship to the heal\h, safety and general welfare of the locality's citizens.
Section 3.1-22.28. 5 See, e.g., 9 VAC 25-192-20,25-192-50 (Law. Co-op. 1996) (requiring large scale feeding operations
having 300 or more animal units and utilizing liquid manure collection and storage system to obtain permit from Virginia Department of Environmental Quality).
6 11991 Repo1rt oif the AttoJrlntey Ge1nte1r;ad
ALCOHOLIC BEVERAGE CONTROL ACT: ADMINISTRATION OF LICENSES.
Brewery is not prohibited from paying sponsorship fee to promoter of concert events conducted on retail premises of establlshment that holds valld retail llcense issued by Virginia Alcohollc Beverage Control Board, provided sponsorship payments are made neither to llcensee nor to owner of retail premises where concert events are conducted.
The Honorable Frank W. Wagner Member, House of Delegates August 11, 1997
You ask whether § 4.1-216(C) of the Code o/Virginia 1 prohibits a brewery from
paying a sponsorship fee to the promoter of concert events conducted on the retail premises of an establishment that holds a valid retail license issued by the Virginia Alcoholic Beverage Control Board. Such sponsorship payments are made neither to the retail licensee nor to the owner of the premises.
You state that a brewery seeks to sponsor a series of concert events that will be open to the public and for which an admission fee will be charged by a concert promoter. As part of the proposed sponsorship arrangement, the brewery will pay the promoter to underwrite the costs of promotional activities, such as newspaper and radio advertising designed to inform the public of the date and location of the concert events. The promoter is not a licensee of the Virginia Alcoholic Beverage Control Board; however, the concert events sponsored by the brewery will occur on the premises of a retail licensee.
2 The business of the licensee is food and beverage sales. Both the
promoter and the licensee are separate and independent corporate entities. The business. premises of the licensee are located in, and owned by, the City of Norfolk. The licensee's business premises are uniquely suited for hosting concert events; however, it is not a restaurant. The premises generally are not open to the public other than for concert events. During the concert events, only the licensee will receive any portion of the receipts from the sale to the public of food and beverages, including the sale of alcoholic beverages. In addition, the promoter will pay the licensee approximately $200 each night to rent the licensee's premises for concert events. There will be no other payment made to the licensee by the promoter and no payment will be made to the licensee by the brewery.
A prior opinion of the Attorney General notes that the statutory predecessor to §4.1-216(C), "commonly referred to as Virginia's 'tied house' statute, was enacted following the repeal of prohibition for the purpose of preventing the integration of wholesalers and retailers of alcoholic beverages by removing the retailer from fmancial obligation to the wholesaler.,,3 "By the granting of gifts and loaning of money to retailers, distributors could effectively 'tie' themselves to retailers to the point of excluding all competitors. This form of vertical integration between beer distributing and retailing allowed the distributor to exercise almost complete control over the retail­ ers.,,4 Section 4.1-216(C) comprises the part of Virginia's "tied house" laws that are designed to require a separation between manufacturing and wholesale interests in alco­ holic beverages on the one hand, and retail interests on the other. Anr person convicted of violating § 4.1-216 "shall be guilty of a Class 1 misdemeanor." Use of the word "shall" indicates that the General Assembly intended its terms to be mandatory.6
ll991 Repo1rt off the AttOJrlnley Genelr<ad
A well-settled principle of statutory construction requires that when the language of a statute is plain and unambiguous, effect must be given to it, and its plain meaning and intent govern.
7 In addition, when a statute is penal in nature, '" it must be
strictly construed against the state and limited in application to cases falling clearly within the language of the statute."'s Virginia's "tied house" statute is penal in nature.
You have related that the brewery will pay the promoter, and will make no monetary payment to either the licensee or the City of Norfolk. Furthermore, the busi­ ness of the licensee is food and beverage sales and not the promotion of concert events. All receipts from concerts will inure to the promoter, and not to the licensee. Finally, the sponsorship payment made by the brewery is used exclusively to promote concert events by the promoter, and not to promote the sale of food and beverages by the licensee. Consequently, I am of the opinion that § 4.1-216(C) does not prohibit a brew­ ery from paying a sponsorship fee to the promoter of concert events conducted on the retail premises of an establishment that holds a valid retail license issued by the Vir­ ginia Alcoholic Beverage Control Board, provided the sponsorship payments are made neither to the licensee nor to the owner of the retail premises where the concert events are conducted.
1 Section 4.1-216(C) provides: "Subject to such exceptions as may be provided by statute or [Virginia
Alcoholic Beverage Control] Board regulations, no manufacturer, bottler, importer, broker or wholesaler of alcoholic beverages, whether licensed in the Commonwealth or not, shall sell, rent, lend, buy for or give to any retail licensee, or to the owner of the premises in which the business of any retail licensee is conducted, any (i) money, equipment, furniture, fixtures, property, services or anything of value with which the busi­ ness of such retail licensee is or may be conducted, or for any other purposes; (ii) advertising materials; and (iii) business entertainment, provided that no transaction permitted under this section or by Board regulation shall be used to require the retail licensee to partially or totally exclude from sale at its establishment alco­ holic beverages of other manufacturers or wholesalers.
"The provisions of this subsection shall apply to manufacturers, bottlers, importers, brokers and whole­ salers selling alcoholic beverages to any governmental instrumentality or employee thereof selling al~oholic beverages at retail within the exterior limits of the Commonwealth, including all territory within these limits own~d by or ceded to the United States of America."
"'Licensee' means any person to whom a license has been granted by the Board." Section 4.1-100. 3 1987-1988 Op. Va. Att'y Gen. 43, 44 (construing former § 4-79(a».
4 T. Sharpenter, Inc. v. Illinois Liquor Control Com'n, 119 Ill. 2d 169, 175, 518 N.E.2d 128, 130-31
(1987); see also Foremost Sales v. Director, Bureau of Alcohol, 860 F.2d 229,236 (7th Cir. 1988) (primary purpose of "tied house" statutes "'seems to be prevention of a form of vertical integration whereby whole­ salers or producers might gain effective control of ostensibly independent retail outlets"') (quoting National Dist~ibuting Co. v. U.S. Treasury Dept., 626 F.2d 997, 1004 (D.C. Cir. 1980».
Section 4.1-328(B). 6 See 1986-1987 Op. Va. Att'y Gen. 300, 300, and opinions cited therein.
7 See, e.g., Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660,662 (1982); Temple v. City of Peters-
burg, 182 Va. 418, 29 S.E.2d 357 (1944); see also 1994 Op. Va. Att'y Gen. 93, 95. 8 • Graybeal v. Commonwealth, 228 Va. 736, 739, 324 S.E.2d 698, 700 (1985) (quotmg Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983»; see also Branch v. Commonwealth, 14 Va. App. 836, 839,419 S.E.2d 422,424 (1992); 1994 Op. Va. Att'y Gen. 57, 59.
H}91 Repolrt oif the AttOJrlllley Genelr;ad
BANKING AND FINANCE: BANKING ACT.
CORPORATIONS: VIRGINIA NONSTOCK CORPORATION ACT - FOREIGN CORPORATIONS - VIRGINIA STOCK CORPORATION ACT -FOREIGN CORPORATIONS.
Legislative mandate that Board of Trustees of The Miller School select strong well-known bank doing business in Commonwealth as depository for assets precludes Board from replacing NationsBank with foreign entity that is not transacting business in Commonwealth as trustee for trusts benefiting School.
The Honorable Emily Couric Member, Senate of Virginia December 3, 1997
You ask whether the Board of Trustees of The Miller School ("Board") may replace NationsBank of Virginia, Inc., with Bank of New York ("BankNY") as trustee for trusts benefiting The Miller School.
You advise that NationsBank of Virginia, Inc., the existing trustee, holds trust funds for The Miller School; however, it is not managing such funds. You advise further that the Board seeks to replace the existing trustee with BankNY so that the trust funds may be managed by a bank experienced in the investment and management of such funds. You report that BankNY administers an amount in excess of one billion dollars of institutional and retirement system funds originating in the Commonwealth; however, BankNY is not registered with the State Corporation Commission. Therefore, you require interpretation of the phrase "doing business in the Commonwealth," as used in Chapter 306, the act continuing The Miller School of Albemarle,
l to determine
whether the Board may transfer both the trust funds and management of those funds to BankNY.
Section 3 of Chapter 306 provides:
The Board shall hold legal title to all assets of the Corporation, including the Miller Fund. It shall select one or more strong well-known banks or trust companies doing business in the Commonwealth as a depository for such assets and it shall select one or more financial institutions doing business in the Commonwealth as an advisor for investments. [2]
The term "shall" is used in Chapter 306 to describe the duty of the Board in selecting and using the services of banks and trust companies for deposit and manage­ ment of the assets of The Miller School. The use of the word "shall" in a statute gener­ ally implies that its terms are intended by the General Assembly to be mandatory, rather than permissive or directive.
3 Under well-accepted principles of statutory
construction, when a statute contains a specific grant of authority, the authority exists only to the extent specifically granted in the statute.
4 Furthermore, "mention of a spe­
cific item in a statute im~lies that omitted items were not intended to be included within the scope of the statute."
The phrase "doing business" has a legal significance in the Commonwealth that differs with the subject to which it is applied.
6 A foreign corporation may be held to be
"doing business" for one purpose, and not "doing business" for another. 7
In determin­ ing what constitutes "doing business" in Virginia, courts use three general categories: (1) those involving service of process on a foreign corporation; (2) those involving
h}91 RepolFt oif the AttoJrlntey GenelFi,d 9
taxation; and (3) those involving domestication or qualification under statutes regulat­ ing foreign corporations.
8 The category involving the regulation of banks generally
applies to your question regarding whether BankNY would qualify as a bank doing business in the Commonwealth should the trust assets of The Miller School be trans­ ferred to it.
In determining whether a foreign entity is "doing business" in Virginia for regu­ latory purposes, courts within the Commonwealth generally require a "stronger show­ ing of in-State activities.,,9 For these purposes under Virginia law, the term "doing busi­ ness" does not mean a single act; it means "a progression, continuity or sustained activ­ ity."IO Under this definition, a bank or trust company is considered to be doing business in Virginia when it engages in sustained business or banking activity, such as maintain­ ing one or more offices or branches in the Commonwealth at which it solicits and accepts deposits, or from which its agents solicit new clients or customers. 11
Virginia law requires that, for a foreign corporation to transact business in the Commonwealth, it must obtain a certificate of authority from the State Corporation Commission
12 and participate in sustained activity, such as: (1) "[s]oliciting or obtain­
ing orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this Commonwealth before they become contracts;" 13 (2) "[ c ]reating or ac~uiring indebtedness, deeds of trust, and security interests in real or personal property;,,1 and (3) "[s]ecuring or collecting debts or enforcing deeds of trust and security interests in property securing the debts.,,15 Accordingly, an out-of-state bank that solicits loan customers in Virginia, or which merely makes loans to Virgin­ ians that are secured by real property in Virginia, would not be considered to be "trans­ acting business" in Virginia.
"A statute often speaks as plainlx by inference, and by means of the purpose that underlies it, as in any other manner." 6 Chapter 306 requires that the Board select a "strong well-known bank[] ... doing business in the Commonwealth as a depository for ... assets.,,17 "[L]egislative intent [is determined] from the plain meaning of the words used." 18 I am, therefore, of the opinion that the Board may not replace a fmancial institution doing business in the Commonwealth with one that is not doing business in the Commonwealth.
19
2 • 3Id. at 509 (emphasIs added).
See Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965); Andrews v. Shepherd, 201 Va. 412, 414-15, 111 S.E.2d 279,281-82 (1959); Op. Va. Att'y Gen.: 1995 at 118, 119; id. at 123,124; 1989 at 250,251-52; 1985-1986 at 133, 134.
4 See Tate v. Ogg, 170 Va. 95, 103, 195 S.E. 496, 499 (1938); 2A Norman 1. SINGER, SUTHERLAND
STA1UTORY CONSTRUCTION § 47.23 (5 th ed. 1992 & Supp. 1997).
Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992); see also Christiansburg v. Mont­ gom~ry County, 216 Va. 654, 658,222 S.E.2d 513,516 (1976) (HExpressio unius est exclusio alterius. ").
Tignor v. Balfour, 167 Va. 58,62, 187 S.E. 468, 470 (1936). Certain banking regulatory statutes appli­ cable to "banks" and "trust companies" incorporate the terms "doing business in Virginia" or similar terms or phrases. See, e.g., § 6.1-4 ("The provisions of [the Banking Act] shall apply to all state banks, and ... to all banks organized under the laws of the United States doing business in Virginia."); § 6.1-5 ("No person, copartnership or corporation, except [corporations and banks designated in the statute], shall engage in the banking business or trust business in this Commonwealth, and no foreign corporation, except ... shall do a
llO 1l99J1 Repolrt of the AttoJrlntey Gelntelr'dd
banking or trust business in this Commonwealth."); § 6.1-32.13 ("No person or legal entity shall engage in the trust business without first obtaining a certificate of authority from the Commission .... "); § 6.1-111 ("The Commission shall have authority to examine the accounts, books and papers of any person ... who it has reason to suspect is doing a banking business or trust business .... ").
7 Tignor v. Balfour, 167 Va. at 62, 187 S.E. at 470.
8 Id.; see also BLACK'S LAW DICTIONARY (6th ed. 1990) 483 ("The determination as to what constitutes
'doing business' may differ as to whether the term is being used with reference to amenability to service of process or to taxation .... ").
9 Continental Properties, Inc. v. Ullman Co., 436 F. Supp. 538, 541 (E.D. Va. 1977). See, e.g., Lake
Carroll Holdings v. Bunning, 11 Va. Cir. 26, 28 (1986).
loWalton v. Commonwealth, 187 Va. 275, 282, 46 S.E.2d 373,376 (1948) (construing terms "to engage 'in business'" and "doing business" in context of regulatory statute relating to undertakers).
11 Cj Williams v. Fid. Loan & Say. Co., 142 Va. 43, 128 S.E. 615 (1925) (defendant company was not
banking institution since its was not receiver of deposits); Morris v. Marshall, 172 W. Va. 405, 410, 305 S.E.2d 581, 586 (W. Va. 1983) (having place of business where deposits are received and paid out on checks, and where money is loaned on security, is substance of business of banker).
12 Sections 13.1-757(A), 13.1-919(A).
13 Sections 13.1-757(B)(6), 13.1-919(B)(5).
14 15Sections 13.1-757(B)(7), 13.1-919(B)(6).
Sections 13.l-757(B)(8), 13.1-919(B)(7).
16Norfolk So. Ry. Co. v. Lassiter, 193 Va. 360, 364, 68 S.E.2d 641,643 (1952). 17
1986 Va. Acts, § 3, supra note 1, at 509. 18 .,
Marsh v. CIty of Richmond, 234 Va. 4, 11,360 S.E.2d 163, 167 (1987). 19
Because I arrive at this conclusion, the Board may not replace NationsBank of Virginia, Inc., with BankNY as trustee for trusts benefiting The Miller School.
BANKING AND FINANCE: INDUSTRIAL LOAN ASSOCIATIONS - BANKING ACT.
CORPORATIONS: VIRGINIA STOCK CORPORATION ACT.
CONSTITUTION OF VIRGINIA: CORPORATIONS - LEGISLATURE (EFFECTIVE DATE OF LAWS).
Industrial loan associations incorporated after July 1, 1960, may exercise powers conferred on banks by Virginia Banking Act. As of June 1, 1973, associations may engage in business of receiving deposits after obtaining insurance for such deposits through state or federal agency. Association may exercise powers conferrel! on Virginia banks when acting pursuant to its charter without converting to or becoming bank. State Corporation Commission, and not Attorney General, Is appropriate agency to determine whether there are statutory or common law prohibitions to issuance of certificate of incorporation for creation of industrial loan association.
The Honorable Eric Cantor Member, House of Delegates June 6,1997
You ask several questions regarding application of Chapter 5 of Title 6.1 of the Code of Virginia, pertaining to the powers and restrictions of industrial loan associa­ tions.! You fIrst ask whether an industrial loan association may engage in the business of receiving deposits.
Section 6.1-228 provides that "[i]ndustrial loan associations incorporated after July 1, 1960, shall have all the powers conferred on banks by the Virginia Banking ACt.,,2 Further, industrial loan associations incorporated after July 1, 1960, "shall be
H}91 Repolrt of the AttoJr][lley Genelr;ad llll
subject to all restrictions applicable to banks, and shall for the purposes of state super­ vision and control be banks.,,3
Section 6.1-11 of the Virginia Banking Act permits banks to exercise, "subject to law, all such incidental powers as shall be necessary to carry on the business of banking, [including] receiving deposits." "If the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it.,,4 It is unnecessary to resort to any rules of statutory construction when the language of a statute is unambiguous.
5 In those situations, the statute's plain meaning and intent
govern. Finally, use of the word "shall" in § 6.1-228 indicates that the General Assem­ bly intended its terms to be mandatory.6
The plain language of § 6.1-228 permits industrial loan associations incorpo­ rated after July 1, 1960, to exercise the powers conferred on banks by the Virginia Banking Act. The plain language of § 6.1-11, a portion of the Virginia Banking Act, permits banks to receive deposits. Therefore, I am of the opinion that an industrial loan association incorporated after July 1, 1960, is permitted by the General Assembly to engage in the business of receiving deposits.
You next ask whether an association must comply with § 6.1-13(A)(8) and obtain insurance for its deposits through either a state or federal agency before it may begin receiving deposits. Section § 6.1-13(A) of the Virginia Banking Act provides:
Before any bank shall begin business it shall obtain from the State Corporation Commission a certificate of authority authorizing it to do so. Prior to the issuance of such certificate, the Commission shall ascertain:
* * * (8) That its deposits are to be insured or guaranteed by a state or federal agency up to the limits of the insurance provided thereby, except that any trust company incorporated for the sole purpose of exercising fiduciary powers authorized by the provisions of Article 3 (§ 6.1-16 et seq.) of this chapter shall not be required to obtain such insurance and guarantees.
The use of the word "shall" in § 6.1-13(A)(8) indicates that the General Assembly intended its terms to be mandatory.
7 The plain and unambiguous language of
§ 6.1-13(A)(8) forbids any bank from beginning business as a bank until it has obtained a certificate of authority from the State Corporation Commission. Furthermore, the plain language of the statute requires that the State Corporation Commission ascertain that the deposits of such bank are insured or guaranteed by "a state or federal agency up to the limits of the insurance provided thereby."s Therefore, it is my opinion that an industrial loan association must obtain insurance for its deposits through either a state or federal agency before it may begin receiving deposits.
You also inquire regarding the effective date of the legislation requiring such deposit insurance. Section 6.1-13 was amended by the 1973 Session of the General Assembly by the addition of subdivision (8) and was approved by the Governor on March 20, 1973.
9 The effective date of the amendment to § 6.1-13 was the first day of
the fourth month following the month of adjournment of the 1973 Session of the 10
General Assembly, or June 1, 1973.
ltZ Jlcf}91 Repolrt of the Attolllntey Genelr;ad
You also ask whether an industrial loan association may exercise the powers conferred on Virginia banks when acting pursuant to its charter without converting to or becoming a bank.
Under § 6.l-228, industrial loan associations incorporated after July 1, 1960, shall have all the powers the Virginia Banking Act confers on banks, shall be subject to all banking restrictions, and shall be banks for purposes of state supervision and control. Under § 6.1-230, however, "[a]n association that had certificates of investment issued and outstanding on January 1, 1959, may become a bank on complying with all the provisions of the Virginia Banking Act." The use of the term "may" indicates that the statute is permissive and discretionary, rather than mandatory.
1 I A principle of stat­
utory construction requires that statutes dealing with the same subject be read together to give effect to the legislative intent.
12 These statutory provisions read together permit
an industrial loan association to have all the powers conferred on banks and be regu­ lated as a bank without actually becoming a bank. Section 6.1-230 vests associations that "had certificates of investment issued and outstanding on January 1, 1959," with the discretion to become banks. I am, therefore, of the opinion, that an industrial loan association may exercise the powers conferred on~inia banks when acting pursuant to its charter without actually converting to or becoming a bank.
Your final question is whether there are any statutory or common law prohibi­ tions to the issuance of a certificate of incorporation for the creation of an industrial loan association when the proposed articles of incorporation and other statutorily required papers are in order and otherwise comply with the requirements of the Vir­ ginia Stock Corporation Act,13 and all required fees have been paid.
Section 6.1-227 permits industrial loan associations to incorporate under the provisions of the Virginia Stock Corporation Act. The.State Corporation Commission is responsible for consideration of application for and the issuance of charters of domestic corporations.
14 A prior opinion of the Attorney General concludes that, in rendering
official opinions pursuant t6 § 2.1-118, the Attorney General has declined to render such opinions when the request "(1) does not involve a question of law, (2) requires the interpretation of a matter reserved to another entity, (3) involves a matter currently in litigation, and (4) involves a matter of purely local concern or procedure.,,15 Prior opin­ ions also conclude that a request for an official opinion made pursuant to § 2.1-118 concerning the propriety of the actions of another entity interpreting matters reserved solely to it is not subject to review by the Attornel General and must be treated as the binding determination with regard to the matter.
1 The State Corporation Commission
must resolve questions pertaining to whether there are any prohibitions to the issuance of a certificate of incorporation for the creation of an industrial loan association.
17
Consequently, I must respectfully decline to interpret the matter raised by your last question. I am of the opinion that the State Corporation Commission is the appropriate agency to make such determinations.
11991 Rejp01rt of the AttoJrlmey Ge1me1r<ad
lSections 6.1-227 to 6.1-243. 2 ::: Sections 6.1-3 to 6.1-125.
3Section 6.1-228. 4 • Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944); see also 1993 Op. Va.
Att'y Gen. 99, 100. 5 • See Ambrogl v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982); 1993 Op. Va. Att'y Gen.,
supr~, at 100.
Compare Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965), and Creteau v. Phoenix Assurance Co., 202 Va. 641, 643-44, 119 S.E.2d 336, 339 (1961), with Huffman v. Kite, 198 Va. 196,202, 93 S.E.2d 328, 332 (1956) ("shall" is primarily mandatory in its effect, but may be construed as permissive according to subject matter and context).
7 Id.
8 • SectIOn 6.1-13(A)(8).
9 • SectIOn 6.1-13(A)(8).
10 See 1980 Va. Acts: ch. 636, at 946, 947; ch. 763, 1463, 1464 (amending Art. IV,§ 13 to provide for
July 1 effective date). 11
See Op. Va. Att'y Gen.: 1996 at 111; 112; 1995 at 69, 71 n.12; id. at 18, 18; 1994 at 71, 72; id. at 64, 68; W92 at 133, 135; 1991 at 225, 226.
See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); 1992 Op. Va. Att'y Gen. 97, 99.
13 Sections 13 .1-60 1 to 13 .1-800.
14 See VA. CONST. art. IX, § 2 (1971).
15 1987-1988 Op. Va. Att'y Gen. 69, 72 (and opinions cited therein).
16 1/987-1988 Op. Va. Att'y Gen. 140, 141; id. at 352,352.
See § 13.1-621 (providing for issuance of certificates of incorporation by State Corporation Commis­ sion pursuant to provisions of Virginia Stock Corporation Act).
BANKING AND FINANCE: WET SETTLEMENT ACT.
PROPERTY AND CONVEYANCES: FRAUDULENT AND VOLUNTARY CONVEYANCES, ETC.; WRITINGS NECESSARY TO BE RECORDED.
COURTS OF RECORD: CLERKS, CLERKS' OFFICES AND RECORDS -RECORDS, RECORDATION AND INDEXING GENERALLY.
Recordation occurs when circuit court clerk has endorsed on Instrument day and time of day instrument is admitted. Settlement agent Is obligated to diligently accomplish all things to cause recordation of instrument and to distribute settlement proceeds, without violating statutory prohibi­ tion against disbursing proceeds prior to recordation of instrument If settlement agent is unable to verify admission to record at time instrument Is delivered to clerk, agent must continue to determine when admission to record has been effected.
The Honorable Frederick M. Quayle Member, Senate of Virginia January 6, 1997
You inquire regarding recordation of instruments for purposes of compliance with § 6.1-2.13 of the Code of Virginia,1 a portion of the Wet Settlement Act, Chapter 1.1 of Title 6.1.
2 You first ask what constitutes "recordation" for purposes of the Wet
Settlement Act. You next ask whether a settlement agent should disburse settlement proceeds when recordation of an instrument has not occurred within two business days of settlement, as required by § 6.1-2.13.
1l99'J Repolrt of the AttoJrlmey Genelr;;d
You relate that there are some jurisdictions in which the circuit court clerk is unable, because of the work load, to issue a recording receipt or cer