Opinions of the Attorney General and Report to the Governor of Virginia 1997
353
OPINIONS OF THE ATTORNEY GENERAL AND REPORT TO THE GOVERNOR OF VIRGINIA FROM JANUARY - DECEMBER 1997 (Cite as : 1997 Up . Va . Att 'y GeD . I COMMONWEALTH OF VIRGINIA OFFICE OF THE ATTORNEY GENERAL RICHMOND 1997
Opinions of the Attorney General and Report to the Governor of Virginia 1997
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