Chapter 5

Opinions

By Emily Myers, Antitrust Chief Counsel, NAAG

Providing legal opinions to government officials was one of the original functions of the office of attorney general1 and it remains a key function today. The Illinois Supreme Court has held that the attorney general's opinion writing function is an inherent part of the attorney general's duty to represent public bodies. 2 It is such an important aspect of the offices’ duties that many state statutes and office policies are devoted to the issuance of opinions. Although each state attorney general issues opinions, no two offices do so in exactly the same way. Statutes, policies and procedures vary from state to state, although there are many common features.

Attorney General Opinions and Their Purpose

Most public officials are not lawyers. Sometimes it is difficult to determine the meaning of a law without the application of legal training. Attorney general offices provide legal opinions to their clients every day in a variety of ways. Oral advice is given through telephone calls or meetings between a state agency employee and a lawyer in the attorney general’s office. Letters and memoranda containing legal advice are written to client agencies or officials. That advice may be privileged, and typically is not disclosed publicly.3

Advice is also given in more formal written opinions prepared by and reviewed by attorneys in the office, including the attorney general, through an established process. These are the opinions commonly known as Attorney General Opinions, which have the

1 Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 IDAHO L. REV. 10 (1982).

2 Illinois Education Association v. Illinois State Board of Education, 204 Ill. 2d 456, 466, 791 N.E.2d 522, 529 (Ill. 2003).

3 See, e.g., Error! Main Document Only.Paff v. Division of Law, 988 A.2d 1239

(N.J. Super. 2010) (unpublished Administrative Agency Advice (AAA) letters issued by the New Jersey attorney general which interpret the statutes and regulations the attorney general’s administrative agency clients are required to apply and enforce are not disclosable government records for purposes of the state open records act because they are protected by the attorney-client privilege.)

authority of the office behind them.4

Formal written legal opinions of the attorney general answer questions of law from state agencies or officials. Generally these questions are about the agency’s or official’s legal duties. Often the question is posed simply because an answer is needed in order to determine a future course of action. For example, there may be disagreements within the agency about the course of action required by law due to the ambiguity of a statute.5 Policy choices have to be made and advice on the legality of those choices is desired. Sometimes the question is asked not because the answer is unclear but because the clear answer is unpopular. The agency or official wants the “cover” of legal support from the state’s chief legal officer for the agency’s action.

Guidelines for Issuing Opinions

All states have some guidelines for issuing opinions. Most include the following:

Appropriate requester. Many statutes governing opinions state that the opinions are rendered to state officials. Some also require the attorney general to provide opinions to certain local officials.6 Some

4 Some attorney general offices also issue informal opinions, which are more formal than client advice, but less so than a formal opinion.

5 See, e.g., Anonymous v. Delaware, 2000 Del. Ch. LEXIS 84 (Del. Ch. 2000) (attorney general opinion that statute was unconstitutional was basis for plaintiff’s suit seeking declaratory judgment).

6 For example, Mississippi statutes require the attorney general to provide opinions to a long list of officials: “to the Legislature, or either house or any committee thereof, and to the Governor, the Secretary of State, the Auditor of Public Accounts, the State Treasurer, the Superintendent of Public Education, the Insurance Commissioner, the Commissioner of Agriculture and Commerce, the State Geologist, the State Librarian, the Director of Archives and History, the Adjutant General, the State Board of Health, the Commissioner of Corrections, the Public Service Commission, Chairman of the State Tax Commission, the State Forestry Commission, the Transportation Commission, and any other state officer, department or commission operating under the law, or which may be hereafter created; the trustees and heads of any state institution, the trustees and heads of the universities and the state colleges, the district attorneys, the boards of supervisors of the several counties, the sheriffs, the chancery clerks, the circuit clerks, the superintendents of education, the tax assessors, county surveyors, the county attorneys, the attorneys for the boards of supervisors, mayor or council or board of aldermen of any municipality of  this  state,  and  all  other  county  officers  (and  no  others),”MISS.  CODE  ANN.

§ 7-5-25; ALA. CODE §36-15-1 (attorney general to give opinions to “certain enumerated local, county, and municipal officials and bodies”); FL. STAT. §16.01 (attorney general may in his discretion give opinion to “officer of a county, municipality, other unit of local government, or political subdivision”). But see 29 DEL.C. §2504 (attorney general to provide legal advice, counsel and services for

expressly state that opinions are not to be rendered to private persons.

Appropriate topic. Despite a lack of exceptions in the statutes, most offices have determined that the subject of the request must be one which is appropriate to discuss in an opinion. Common topics deemed inappropriate by many offices include: issues in litigation before a court or administrative tribunal7; issues that are not really legal issues but rather matters of policy; issues involving the interpretation of a local ordinance; hypothetical issues; issues unrelated to the requester’s duties; and moot issues.8

Writing. Requests for opinions must typically be in writing.9

The Opinion Process

When an opinion request has been received and it has been determined that the office should answer it, the opinion is assigned to the appropriate division in the office. The assignment depends on how opinion writing is handled within the particular attorney general’s office. Some offices take a decentralized approach under which the opinion is assigned to a division of the office that handles the substantive area at issue. The supervisor of the division then assigns it to an attorney for preparation. Other offices centralize the preparation of opinions in a unit or division to which all opinion requests are assigned no matter the topic. Each approach has advantages and disadvantages. The decentralized approach assigns opinions to attorneys who are already familiar with the area of law involved in the opinion. Although this specialization enables the attorney to prepare the opinion more efficiently, the attorney must also deal with litigation deadlines and other matters that often take precedence over preparation of an opinion. The centralized approach reduces the likelihood that the attorney will be diverted to other litigation or projects. The attorneys in the opinion unit become particularly adept at research and writing. On the other hand, the attorney must often deal with unfamiliar subject

administrative offices, agencies, departments, boards, commissions and officers of the state government; courts, counties and incorporated municipalities specifically excepted).

7 Under Mississippi law, the attorney general may not issue an opinion on a matter in litigation. MISS. CODE ANN. § 7-5-2.

8 For example, the Illinois attorney general’s office has a Policy Relating to Written Opinions, which states that no opinion will be issued “regarding the exercise of executive judgment or discretion nor on questions of fact,” nor where the question is scheduled for determination by the courts. Statement of Policy of the Illinois Attorney General Relating to Furnishing Written Opinions (March 29, 1962).

9 But see, GA. CODE ANN. § 45-15-3 (opinions “in writing, or otherwise”)

areas and therefore spend more time researching than would an attorney specializing in the area.

The research conducted for an opinion depends on the question asked. It may be as simple as locating a statute that answers the question. However, complicated questions can involve case law from other states, state or federal legislative history or even historical research concerning state constitutional provisions. Generally research begins with an examination of prior opinions. This review helps the researcher find statutes and case law as well as ensuring that whatever is finally written does not contradict prior opinions unless the intent is to overrule them. Attorney general’s offices do occasionally overrule prior opinions, usually when subsequent statutes or case law affects the reasoning or result of the opinion.

Many offices have time limits within which a draft of the opinion must be ready for review. Most time limits are internal guidelines. Montana’s statute, for example, states: “The attorney general shall give the opinion within 3 months following the date that it is requested unless the attorney general certifies in writing to the requesting party that the question is of sufficient complexity to require additional time.”10 Texas law contains a 180 day period for issuing  the opinion unless the requesting party is notified it will be delayed or not rendered and the reason.11 Tennessee law requires that questions from legislators concerning pending legislation be answered as expeditiously as possible.12

The review process is different in each office, but typically the draft is reviewed by the supervisor of the preparer. Then the draft may go for further review to an opinion review committee or it may proceed on to the chief deputy and/or solicitor general. The draft may be edited or returned to the assistant attorney general for more research and revision at any step along this process. The final reviewer is the attorney general. Once the attorney general has approved it, the opinion is ready for issuance and distribution.

The distribution and maintenance of attorney general opinions is different in each state. Idaho law, for example, requires a copy of the opinions be furnished to the state supreme court and the state librarian.13 North Dakota and Washington are expressly required to

10 MONT. CODE ANN. § 2-15-501(7).

11 TEX. GOV’T CODE ANN. § 402.042(c)(2).

12 TENN. CODE ANN. § 8-6-109(b)(6).

13 IDAHO CODE § 67-1401(6).

keep books in which all official opinions are recorded,14 And the Illinois attorney general must keep official opinions issued and deliver them to his or her successor.15 All attorneys general keep copies of their opinions for their own reference. Some states are statutorily required to make their opinions open to public inspection.16 All state attorneys general now place their opinions on their office web sites.

Legal Effect of Attorney General Opinions

The legal effect of an attorney general’s opinion upon the recipient varies from state to state. The general rule seems to be that the recipient “is free to follow it or not as he or she chooses.”17 The rationale often given is that if state officers were bound by an attorney general’s opinion, “any executive office of the state could be controlled by the opinion of the attorney general specifying what the law requires to be done in that office.”18 This rationale, however, does not prevail in every state. States that take the opposite view stress the fact that the attorney general is the chief legal officer of the state and the legal adviser for state officers and agencies. In State ex rel. Johnson v. Baker 19 the court stated, “[I]f such officers may disregard the provision made by the legislature for obtaining advice from the attorney general on constitutional questions and presume to pass upon such questions themselves, they will supplant that officer.” After observing that many public officials are not lawyers, the Oklahoma Supreme Court held that an attorney general opinion was binding on the officials affected by it. In Grand River Dam Authority v. State20 the Court determined that “an official who has sought an opinion from the attorney general should, even though not compelled to do so by statute, follow the advice which is given to him.” A similar view is found in Cummings v. Beeler, 21 which concerned the constitutionality of a Tennessee law requiring the expenditure of funds. The attorney general of Tennessee had issued an opinion that the law was unconstitutional. The Tennessee Supreme Court did not speak in terms of whether state officials are bound by the attorney general’s opinion. Rather, the Court

14 N.D.CENT.CODE §54-12-01;WASH. REV. CODE ANN § 3.10.030(10).

15 15 ILL. COMP. STAT. 205/4(11).

16 IDAHO CODE § 67-1401(6); TENN. CODE ANN. § 8-6-109(b)(6).

17 7 AM. JUR. 2d Attorney General § 11 at 14 (1997). 18 Follmer v. State, 142 N.W. 908, 910 (Neb. 1913). 19 21 N.W.2d 355, 372 (Neb. 1945).

20   645 P.2d 1011, 1016 (Okla.1982).

21 223 S.W.2d 913 (Tenn. 1949).

spoke in terms of duty:

State officials are presumed to do their duty and we feel sure and have no hesitancy in saying that they will and do do their duty as they see it. Would it not be the duty of the Comptroller to refuse to approve these warrants when he knows that his official legal advisor has held that the act under which these warrants were to be issued was illegal, invalid and unconstitutional?22

Only a few state statutes have made the attorney general’s opinion binding on state agencies.23 In some states, acting in accord with the opinion of the attorney general grants a state official immunity. A Mississippi statute declares:

there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support.24

Similarly, the North Dakota Supreme Court has said that if officials follow the attorney general’s opinion, “they will perform their duty, and even though the opinion thus given them be later held to be erroneous, they will be protected by it. If they do not follow this course, they will be derelict to their duty and act at their peril.”25 Officers should have a right to rely on the attorney general’s opinion “as he is the officer designated by law to render such service for their guidance

22 223 S.W.2d at 916.

23 In re I/M/O Town of Harrison and Fraternal Order of Police, Lodge No. 116, 440

N.J. Super. 268 (App.Div. Apr. 15, 2015) (opinions are binding on state agencies and officers); Michigan Beer & Wine Wholesalers Ass'n v. Attorney Gen., 370 N.W.2d 328 (Mich. Ct. App. 1985) (same); 71 PA. CONS. STAT. § 732-204 (opinion binding on state agencies, excepting governor).

24 MISS. CODE ANN. § 7-5-25. See also ALA. CODE § 36-15-19; ARIZ. REV. STAT. ANN. § 38-446; 71 PA. CONS. STAT. § 732-204.

25 State ex rel. Johnson v. Baker, 21 N.W.2d at 364 (N.D. 1945). The North Dakota Supreme Court has also held that attorney general opinions “guide state officers until superseded by judicial opinions.” Werlinger v. Champion Healthcare Corp., 1999 ND 173 N.D. 1999).

and protection.”26

Challenges to Attorney General Opinions

Because in many states, attorney general opinions are not binding on the courts or on the state officers receiving the opinion, they are not subject to challenge in the courts in those states. For example, plaintiffs in a Tennessee case sought to remove a peace officer because he had been convicted of criminal contempt. The attorney general had issued an opinion that such convictions were not offenses that required removal from office under the relevant statutes. Plaintiffs sought a declaratory judgment. Tennessee law allows parties to seek declaratory judgment against the state when their rights are affected by “a statute, municipal ordinance, contract, or franchise.” The court held that attorney general opinions are advisory, do not carry the weight of law, and are thus not similar to the legal rulings outlined in the statute. The court also determined that in Tennessee there is “no cause of action under which a party can sue the attorney general on the basis of disagreement with an opinion issued by the attorney general.”27

Similarly, Arizona voters unhappy with the attorney general’s

opinion on the interpretation of immigration legislation filed a mandamus action against the attorney general, alleging that he had abused his discretion by issuing an erroneous legal opinion. The court of appeals first described the difference between the function of courts, to “declare the existing law” and the function of the attorney general, “not to decide what the law is but merely opine about the law.” Because of this difference, permitting mandamus actions in this situation would “be an inappropriate usurpation by the courts of responsibility assigned to the attorney general and, in our view, a violation of the separation of powers.”

The plaintiffs also asked the court to direct the attorney general to withdraw his opinion. The court declined to do so, because a mandamus action can only compel an action that an official is required to perform. There is no state constitutional or statutory obligation on the part of the attorney general to withdraw an opinion.28

On the other hand, California courts allow a challenge to an

26 State ex rel. Moltzner v. Mott, 97 P.2d 950, 954 (Ore. 1940).

27 State ex rel. Deselm v. Tennessee Peace Officers Standards Commission, 2008 Tenn. App. LEXIS 625 (Tenn. Ct. App. 2008).

28 Error! Main Document Only.Yes on Prop 200 v. Napolitano, Error! Main Document Only.160 P.3d 1216 (Ariz. App. Div. 1, 2007); see also, O’Neal v. Board of Chiropractic Examiners, 2004 Tex. App. LEXIS 8254 (Tex. App. Ct. 2004).

attorney general opinion by a petition for extraordinary writ. This proceeding is available because the attorney general's opinion is given great weight by the courts, and because the state agency to whom the opinion was issued was acting in accordance with the opinion and in violation of the state constitution. Because declaratory actions and/or a test case would take too long, the court held that the extraordinary writ was the appropriate means to challenge the attorney general’s opinion.29

In Oklahoma, a writ of mandamus is not appropriate to compel the attorney general to revise or withdraw an opinion, although it may be appropriate to require him to issue an opinion:

Mandamus will lie to compel the Attorney General to exercise his discretion, but it does not lie to control his action regarding matters within his discretion, unless his discretion has been clearly abused. A difference

of opinion is not an abuse of discretion. Where there is room for two opinions, the action is not arbitrary or capricious when it is exercised honestly upon due consideration even though it may be believed that an erroneous conclusion has been reached.30

However, the Oklahoma Supreme Court has held that attorney general opinions, if followed by the administrative agency, become de facto rules, and may therefore be challenged under the state’s Administrative Procedures Act.31

Parties challenging the attorney general’s opinion have used the fact that state officers relying on the opinion are protected from liability as an argument supporting a judicial order to withdraw the opinion. For example, in an Arizona case, plaintiffs argued that the opinion should be withdrawn because an attorney general’s opinion would provide immunity from criminal liability to any state employee who complied with the attorney general’s opinion. The court noted that protection from liability is only available if the government official acts “in good faith” and if there were a judicial decision that rejected

29 Planned Parenthood Affiliates of California v. Van de Kamp, 181 Cal. App. 3d 245 (Cal. Ct. App. 1986).

30 Oklahoma City News Broadcasters Association v. Nigh, 683 P.2d 72(Okla. 1984).

31 Independent School District No. I-20 of Muskogee County v. Oklahoma State Dept. of Educ., 65 P.3d 612 (Okla. 2003).

the attorney general’s opinion, there could be no reliance on it.32

Attorney General Opinions and the Courts

The giving of advisory opinions is an executive, rather than a judicial function.33 Attorney general opinions are not binding on courts34 because they are “neither statutes nor municipal ordinances, [and] do not carry the weight of law.” 35 How they are treated, however, varies with the state and with the circumstances. They are frequently given a certain level of respect by the courts which is phrased in many different ways, such as “entitled to respect,”36 “given respectful attention,37” “entitled to considerable deference,”38 entitled to considerable weight,” 39 “persuasive,” 40 or “instructive.” 41 The Washington Supreme Court articulated three reasons for giving weight to attorney general opinions:

First, such opinions represent the considered legal opinion of the constitutionally designated “legal adviser of the state officers.” Second, we presume that the legislature is aware of formal opinions issued by the attorney general and a failure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. The weight of this factor increases over time and decreases where the opinion is inconsistent with previous formal opinions,

32 Yes on Prop 200 v. Napolitano, Error! Main Document Only.160 P.3d 1216 (Ariz. App. Div. 1, 2007).

33 State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885 (Kan. 2008).

34 7 Am. Jur. 2d Attorney General § 11 and cases cited therein; State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995).

35 City of Cleveland v. Bradley County, 1999 Tenn. App. LEXIS 261, (Tenn. Ct. App. Apr. 16, 1999).

36 North Dakota Fair Housing Council, Inc. v. Peterson, 625 N.W.2d 551, 557-58 (N.D. 2001), quoting North Dakota Fair Housing Council, Inc. v. Haider, No. A1-98-077 (D.N.D. 1999).

37 Schwartzenberger v. McKenzie County Board of County Comm’rs, 2017 ND 211 (N.D. 2017).

38 State v. Black, 897 S.W.2d 680, 683 (Tenn. 1985).

39 Burris v. White, 232 Ill. 2d 1, 8, 901 N.E. 2d 895, 899 (Ill. 2009).

40 Whaley v. Holly Hills Mem. Park, Inc., 490 S.W.2d 532, 533 (Tenn. Ct. App. 1972).

41 Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393, 401 (Minn. Ct. App. 2011).

administrative interpretations, or court opinions. Third, where the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government.42

As described in the Washington Supreme Court’s opinion, the particular circumstances can affect how an attorney general opinion is viewed. For example, it has been said that administrative interpretations of statutes made pursuant to attorney general opinions are entitled to great weight in statutory interpretation cases. 43 Similarly, “opinions of the Attorney General are entitled to great weight when the legislature has failed over a long period of time to make any change in the statute. Such failure is some indication of an acquiescence by the legislature to . . . the opinion of the Attorney General.”44 In other words, a court “may give additional weight to an attorney general’s opinion implicitly approved by the Legislature.”45 In a decision in Wisconsin, the state supreme court further refined this idea: "[S]tatutory interpretation by the Attorney General is accorded even greater weight, and is regarded as presumptively correct, when the legislature later amends the statute but makes no changes in response to the attorney general's opinion."46

Other criteria cited by courts for stronger reliance on attorney general

opinions  include  the  consistency  of  Attorney  General  opinions over

42  Five Corners Family Farmers v. State, 173 Wn.2d 296, 308 (Wash. 2011).

43  Coble Systems, Inc. v. Armstrong, 660 S.W.2d 802 (Tenn. Ct. App. 1983).

44 Pub. Serv. Comm’n v. Formal Complaint of WWZ, Co., 641 P.2d 183, 186 (Wyo. 1982). See, also Gomez v. Jackson Hewitt, Inc., 427 Md. 128 (Md. June 22, 2012) ("The Legislature is presumed to be aware of the Attorney General's statutory interpretation and, in the absence of enacting any change to the statutory language, to acquiesce in the Attorney General's construction."); Napa Valley Educators' Ass'n v. Napa Valley Unified School Dist., 194 Cal. App. 3d 243, 251 (Cal. Ct. App. 1987) (Opinions entitled to great weight and in the absence of controlling authority, are persuasive 'since the legislature is presumed to be cognizant of that construction of the statute.').

45 Hilton v. North Dakota Education Ass’n, 655 N.W.2d 60, 65 (N.D. 2002). See also Travis v. Board of Trustees of California State University, 161 Cal. App. 4th 335, 345 (Cal. App. 2d Dist. 2008)(“Those opinions, while not binding on us, are entitled to great weight, especially when the Legislature either amends a statute to conform to such an opinion, or fails to pass an amendment that is contrary to an earlier Attorney General's opinion.”).

46 Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, P126 (Wis. 2010) (internal quotations omitted).

KeyCite Red Flag - Severe Negative Treatment

Order Vacated by Aid for Women v. Foulston, 10th Cir.(Kan.), September 20, 2007

427 F.Supp.2d 1093

United States District Court, D. Kansas.

AID FOR WOMEN, et al., Plaintiffs, v.

Nola FOULSTON, et al., Defendants.

No. 03–1353–JTM.

|

April 18, 2006.

Synopsis

Background: Professionals subject to Kansas’ mandatory reporting statute, requiring doctors, teachers, and others to notify state government of suspected injury to a minor resulting from sexual abuse brought § 1983 action for declaratory and injunctive relief against Kansas Attorney General and all county and district attorneys in state, alleging that reporting statute was unconstitutional as applied to consensual underage sexual activity. Following remand, 441 F.3d 1101, bench trial was held.

***

Attorneys and Law Firms

*1095 Anamika Samanta, Bonnie Scott Jones, Galen L. Sherwin, Simon Heller, New York City, Janet Lynne Crepps, Simpsonville, SC, Laura B. Shaneyfelt, Hulnick Law Offices, Wichita, KS, for Plaintiffs.

Steven D. Alexander, Brian D. Sheern, Steven D. Alexander, Kansas Attorney General, William Scott Hesse, Camille A. Nohe, Office of Attorney General, Topeka, KS, Mark A. Sevart, Wichita, KS, for Defendants.

MEMORANDUM OPINION AND ORDER

MARTEN, District Judge.

This matter comes before the court on plaintiffs’ action

for declaratory and injunctive relief. Plaintiffs seek to prevent enforcement of Kansas Attorney General Phill Kline’s application of the state mandatory reporting statute, through an Attorney General’s Opinion,1 to consensual underage sexual activity.2 Specifically, as

*1096 filed, this case turns on whether Kan. Stat. Ann. § 38–1522, commonly referred to as the “Kansas reporting statute,” requires reporting of all consensual underage sexual activity as sexual abuse.

***

[1] [2] [3] The court heard approximately seven days of testimony in a bench trial commencing January 30, 2006. For clarity, the court notes that neither side objects to the reporting of: 1) incest; 2) sexual abuse of a child by an adult; and 3) sexual activities involving a child under the age of twelve. Therefore, the only issue presented is whether consensual underage sexual activity must be reported under the Kansas reporting statute. After extensive review of the record, this court holds that the Kansas reporting statute: 1) does not make all underage sexual activity inherently injurious; and 2) requires that the reporter have reason to suspect both injury and that  the injury resulted from illegal sexual activity, as defined by Kansas law, before reporting is required.  In addition, to require reporting in accordance with Attorney General Kline’s opinion would violate a minor’s limited right of informational privacy. Thus, this court permanently enjoins enforcement of Kan. Stat. Ann. § 38–1522 in any manner inconsistent with this decision, which includes the Kline Opinion.

I.  FINDINGS OF FACT

***

B. The Kansas Reporting Statute

Kansas law recognizes the state’s interest in reporting abuse of children:

It is the policy of this state to provide for the protection of children who have been subject to

physical, mental or  emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children.

Kan. Stat. Ann. § 38–1521. See also Clevenger v. Catholic Social Serv. of the Archdiocese of Kansas City, 21 Kan.App.2d 521, 529, 901 P.2d 529, 535 (1995) (“It is

apparent that the public policy of this state is to encourage persons with information concerning possible child abuse to report this information to the proper authorities.”); Kansas State Bank & Trust Co. v. Specialized Transp. Serv.,  Inc.,  249  Kan.  348,  372,  819  P.2d  587  (1991)

(purpose of reporting statute is to provide protection for children by encouraging reporting of suspected child abuse and insuring thorough and prompt investigation of such reports); Kennedy v. Kansas Dept. of Social and Rehabilitation Serv., 26 Kan.App.2d 98, 981 P.2d 266 (1999) (public policy of state is to encourage reporting of possible child abuse).

As part and parcel of this obligation, Kansas requires reporting to the state government whenever certain persons have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522 (emphasis added). The mandatory reporting

*1098 requirement extends to various medical and health care providers, school officials, law enforcement, child care service providers, social workers, counselors, and emergency response personnel. See Kan. Stat. Ann. § 38–1522(a) (listing the persons who are considered mandatory reporters). Such persons are required to notify the designated state agency, or, in limited circumstances, law enforcement. Kan. Stat. Ann. § 38–1522(c), (e). “Willful and knowing failure to make a report” is a misdemeanor criminal offense. Kan. Stat. Ann. § 38–1522(f).

Kansas law defines “sexual abuse” as “any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated.” Kan. Stat. Ann. § 38–1502(c). The referenced chapter criminalizes a range of sexual activities involving a minor under the age of sixteen.3 See, e.g., Kan. Stat. Ann. § 21–3503(a)(1) (“any

lewd fondling or touching ... done or submitted to  with the intent to arouse or to satisfy ... sexual desires”); Kan. Stat. Ann. § 21–3501(2) (“oral contact ... of the female genitalia or ... of the male genitalia”); Kan. Stat. Ann. § 21–3501(1) ( “any penetration of the female sex organ by a finger, the male sex organ or any object”). Based on the very language of the relevant provisions, sexual activity of minors younger than sixteen is illegal, regardless of whether the activity is voluntary or the sexual activity involves an age-mate.4 The only exception to this criminal ban is in the case of consensual sexual contact between a person under sixteen and that person’s spouse. See, e.g., Kan. Stat. Ann. §§ 21–3503(b); 21–3504(b);  21–2502(b).

Kansas has long allowed twelve-year-old females and fourteen-year-old males to marry with parental or judicial consent, although the Kansas legislature is now considering raising these ages. State v. Sedlack, 246 Kan. 305,  307, 787 P.2d  709,  710 (Kan.1990)  (citing State v.

Johnson,  216  Kan.  445,  448,  532  P.2d  1325   (1975)).

Kansas law requires both parties to be at least eighteen years of age before recognizing a common law marriage as valid. Kan. Stat. Ann. § 23–101(b) (2004).

3                  The term “minor” as used throughout this opinion means a person who is under the age of sixteen, i.e., a person who is under the age to legally consent to sexual intercourse.

4                  Kansas Department of Social and Rehabilitation Services officials testified that they consider “age-mates” to be persons within three years of age of each other.

The reporting statute does not define “injury.”

***

D.  Advisory Opinions

In 1992, Kansas Attorney General Robert Stephan issued an opinion defining the reporting requirements in cases of unmarried pregnant minors. In pertinent part, the opinion states:

Whether a particular minor in a particular case has been injured as a result of sexual intercourse and a resulting pregnancy must be determined on a case-by-case basis. The fact of pregnancy certainly puts one on notice that sexual abuse (as statutorily

defined) has probably occurred, and requires persons listed in K.S.A.1991 Supp. 38–1522(a) to investigate further whether the child has suffered injury, physical or emotional, as a result of such activity. If there is reason to suspect that the child has been injured, that person is then required to report such suspicions and the reasons therefore.

Kansas Att’y Gen. Op. No. 92–48, 1992 WL 613410 (April 6, 1992) (hereafter “Stephan Opinion”) (emphasis added). The Stephan Opinion did not equate underage pregnancy with “inherent injury,” which would automatically trigger reporting. Instead, it placed reporters on notice that the statutory standard of sexual abuse probably had occurred and that the reporter should investigate further to determine if there was injury. Thus, the Stephan Opinion acknowledged the broad statutory scope of the term “sexual abuse,” but it left the reporter to determine if there was reason to suspect the child had suffered an injury requiring reporting, which is consistent in every respect with the statutory language.

pregnancy:

We are aware that although this opinion is limited to the question posed, the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter’s obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active.

Attorney General Stephan’s successor, Carla Stovall, reached a similar conclusion in a letter dated June 3, 1999. However, on June 18, 2003, Kansas Attorney General Phill Kline issued an opinion seeking to significantly change the standard for reporting. His opinion, in part, states:

Kansas law clearly provides that those who fall under the scope of the reporting requirement must report any reasonable suspicion that a child has been injured as a result of sexual abuse, which would be any time a child under the age of

16 has become pregnant. As a matter of law such child has been the victim of rape or one of the other sexual abuse crimes and such crimes are inherently injurious.

*1100 Kansas Att’y Gen. Op. No.2003–17, 2003 WL 21492493 (June 18, 2003) (emphasis added). In reaching this conclusion, the Attorney General looked beyond the statute’s language and beyond the law of the State of Kansas. His opinion that the minor’s pregnancy is “inherently injurious” eliminated the reporter’s discretion to determine whether the minor had been “injured.” Further, as the Attorney General’s opinion acknowledges, such “inherent injury” reaches beyond a minor’s

Kline Opinion, 2003 WL 21492493, at *6 (emphasis added). Thus, if all illegal sexual activity of a minor is considered sexual abuse and is per se injurious, then pursuant to the Kline Opinion, a mandatory reporter must automatically report any indication that a minor is sexually active.

E.  Procedural History

On October 9, 2003, a few months after the Kline Opinion issued, plaintiffs brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against application of the reporting statute to incidents of consensual sexual activity between minors under the age of sixteen and persons of similar age when mandatory reporters conclude, in their professional judgment, that  the sexual activity did not injure the minor. Complaint, ¶

11 (same as Third Amended Complaint, ¶ 11). The  district court certified the plaintiffs as a class largely comprising licensed professionals, including physicians, nurses, social workers, psychologists and sexuality educators. Dkt. No. 60. The Complaint named as defendants the Attorney General of Kansas and all county and district attorneys of Kansas. Complaint, ¶ 46 (identifying all county and district attorneys of Kansas); Third Amended Complaint, ¶¶ 38, 39 (identifying Attorney General Kline).

***

As relief, the complaint sought: 1) preliminary and

permanent injunctions “barring the defendant class from enforcing the reporting statute to require plaintiffs to report consensual sexual activity between an adolescent under the age of 16 and a person of similar age where plaintiffs do not reasonably suspect injury to the adolescent;” and 2) a declaration “that the reporting statute is unconstitutional as applied to consensual sexual activity between an adolescent under the age of 16 and a person of similar age where the mandatory reporter does not reasonably suspect injury to the adolescent.” Complaint, ¶ 70. Since then, plaintiffs have *1101 amended the complaint to include other grounds.

***

II.  CONCLUSIONS OF LAW

A. Statutory Interpretation

The interpretation of the Kansas reporting statute is of central importance to this case. That being so, the court considered certification to the Kansas Supreme Court. Because a federal court’s determination of state law is not final, the state court’s interpretation on this issue would be helpful. See United States v. Thirty–Seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28

L.Ed.2d 822 (1971) (noting that federal courts “lack jurisdiction authoritatively to construe state legislation”).

[4] However, such certification should be utilized only if the construction of state law is subject to doubt. See Stenberg v. Carhart, 530 U.S. 914, 945, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Houston v. Hill, 482 U.S. 451, 468–471, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (certification should not be used where “there is no uncertain question of state law”); Grant v. Meyer, 828 F.2d 1446, 1448 n. 5 (10th Cir.1987) (refusing certification “since the statute is unambiguous”). As more fully discussed below, the court finds that the reporting statute is clear and unambiguous; therefore, certification is unnecessary.

[5] As a general rule, if the language of a statute is clear in its application, the court is bound by it. Hubbard v.  United States, 514 U.S. 695, 703, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995). “If the statutory language is clear, this will ordinarily end the analysis.” See, e.g., United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.1991), cert. denied, 501 U.S. 1207, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991).

As noted above, the Kansas statute mandates reporting by certain persons who have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522(a) (emphasis added). This language has remained unchanged since its enactment in 1982. Senate Bill No. 520, ch. 182 § 19 (1982).

Examining its separate components, the clause recognizes that a mandatory reporter must identify two things: 1) there is reason to suspect that the child has been injured; and 2) the injury resulted from sexual abuse. The meaning of the terms “injured” and “sexual abuse” are important to the court’s analysis. As mentioned above, the legislature has defined “sexual abuse” in Article 35, Chapter 21 of the Kansas Statutes. Kan. Stat. Ann. § 38–1502(c). However, it has not defined “injury.”

*1102 The Stephan Opinion noted that “injury” is not defined in the code for care of children, Kan. Stat. Ann. § 38–1501 et seq., which includes the reporting statute. Although some statutory provisions recognize that “injury” includes physical, mental or emotional abuse or neglect, Kan. Stat. Ann.1991 Supp. § 38–1502(b), past SRS programs did not list pregnancy as a per se injury. After reviewing the scant legislative history and case law approaches to pregnancy, the Stephan Opinion concluded that “... pregnant, unmarried minors may likely display signs of emotional, physical or mental injuries which should be reported. However, we do not believe that pregnancy of an unmarried minor necessarily constitutes injury even when that term is understood in its broadest sense.” (Emphasis added). Ultimately, the Stephan Opinion held that pregnancy is not itself an injury but a natural condition, so reporting a pregnancy as sexual abuse must be determined on a case-by-case basis.

The Kline Opinion, on the other hand, shifted the focus away from the condition of pregnancy and toward the underlying sexual intercourse, which it claims constitutes an inherently injurious and harmful act. Since the legislative history of the reporting statute is limited, the Kline Opinion examined insurance case law where a federal district court in this district described sexual abuse as inherently harmful.6 The Kline Opinion states that the consensus opinion of the courts is that sexual abuse of a minor is inherently harmful. Despite the focus on case law to understand statutory language, the Kline Opinion noted that it is not the function of the courts to write legislation but only to construe statutes.

***

If “injury” is the equivalent of “sexual abuse,” as the Attorney General contends, then the requirement of an

“injury” in the reporting statute is rendered meaningless. The statutory language does not require reporting of all illegal sexual activity of minors; it requires reporting of such sexual activity if there is “reason to suspect injury.” Therefore, the statute requires reporting of illegal sexual activity that causes injury, not all illegal sexual activity. See United States. v. American Trucking Ass’ns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)

(“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”).

The legislature included a very specific phrase in the statute: “reason to suspect that a child has been injured as a result of ... sexual abuse     ” This phrase vests a degree

of discretion in the reporter not only to determine suspected sexual abuse, but also resulting injury. Cortez v. Pawnee Mental Health Serv., Inc., 77 P.3d 1288, 2003 WL 22283159, at *3 (Kan.App.2003) (noting that the Kan. Stat. Ann. § 38–1522 requires a “reason to suspect” before mandating reporting); Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 372, 819 P.2d 587, 604 (1991) ( “The decision to report suspected abuse should be based on something more than suspicion.”). The legislature acknowledged that not all illegal sexual activity involving a minor necessarily results in “injury;” thus, not all unlawful sexual activity warrants reporting. The language of the statute recognizes that some illegal sexual conduct, such as consensual, voluntary sexual activity with an age-mate, falls outside the scope of the *1103 statute, as it may not cause injury. See BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124

S.Ct.   1587,   1593,   158   L.Ed.2d   338   (2004)   citing

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“The

preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ”).

Therefore, the court finds that the legislature’s inclusion of the phrase “reason to suspect that a child has been injured” requires reporters to determine if there is a  reason to suspect injury resulting from sexual abuse. “Injury” and “sexual abuse” are distinct concepts under the statute. Any attempt to conflate the meaning of these terms is contrary to a plain reading of this statute.

This reading is consistent with the agency policies developed following enactment of the statute, as set out in an earlier part of this opinion. See American Trucking,

310 U.S. at 544, 60 S.Ct. at 1064 (“A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a settled policy, excepting as a different purpose is plainly shown.’

”) (citations omitted). SRS policy acknowledges sexual abuse to be coextensive with the statutory definitions,7 but it does not consider investigation of all illegal sexual activity involving a minor to be necessary or appropriate. SRS Manual § 1361. Where a report does not indicate a child “has been harmed or is likely to be harmed” or where the report concerns “ ‘lifestyle’ issues that do not directly harm a child or place a child in a likelihood of harm,” SRS screens out the report. SRS Manual § 1361. SRS does not extend services in cases of consensual, age-mate sexual exploration with no evidence of force, coercion, or significant age disparities. SRS Manual § 1361, Practice Notes. SRS’s policy interpretation creates  a distinction between broad statutory definitions and working definitions on which investigations are actually conducted.

7                  SRS Manual § 160 defines “sexual abuse” as “any act committed with a child that is described in, [Kan. Stat. Ann. § ] 21–3501 et seq. and amendments thereto and the acts described in [Kan. Stat. Ann. § ] 21–3602 and [Kan. Stat. Ann. § ] 21–3603 and amendments thereto.”

The 1992 Stephan Opinion and the Stovall letter of 1999 both were plain language readings of the reporting statute. Both Stephan and Stovall gave full meaning to the reporting statute, requiring that the reporter have not only reason to suspect abuse, but also reason to suspect injury resulting from it. From a reporter’s standpoint, as supported by their trial testimony, the reporting statute was clear, and the reporters were not only authorized, but compelled, to make a case-by-case determination as to whether injury occurred.

[6] The Attorney General is not only allowed to, but also is required to render an opinion on his interpretation of the law under certain circumstances. See Kan. Stat. Ann. § 75–704 (the Attorney General, when required, provides written opinions “ ... upon all questions of law submitted to him or her by the legislature, or either branch thereof, or by the governor, secretary of state, state treasurer, state board of education, or commissioner of insurance.”); Kan. Stat. Ann. § 77–420 (directing Attorney General review of any state agency rule or regulation). However, true interpretation of law is a judicial function, not an executive or legislative function. Board of Comm’rs v. General Sec. Corp., 157 Kan. 64, 138 P.2d 479, 479 (1943). An executive branch official, such as the Attorney General, cannot effectively amend *1104 legislation by reinterpreting its language through an “advisory” opinion. See In re Allen, Gibbs & Houlik, L.C., 29 Kan.App.2d 537, 545, 29 P.3d 431, 439 (Kan.App.2001) (“[A] statute should not be so read as to add that which is not readily

found therein or to read out what as a matter [of] ordinary English language is in it.” (citations omitted)). The legislature has not chosen to delete the “reason to suspect that a child has been injured” language from the reporting statute; the Attorney General cannot amend the statute by an advisory opinion See State ex rel. Stephan v. Finney, 251  Kan.  559,  578,  836  P.2d  1169,  1182   (Kan.1992)

(“And in accordance with the general principles of the separation of powers, the executive department cannot generally usurp or exercise judicial or legislative power

....”). In view of both the statutory language and the long-standing interpretation of the reporting statute, the Kline Opinion effectively amends the reporting statute by eliminating the discretion the legislature gave mandatory reporters to determine if there had been an injury. Under the Kline Opinion, the mandatory reporter has no discretion with respect to reporting illegal sexual activity of a minor,8 in contravention of the plain language of the statute and legislative intent as evidenced in the statute’s clear and unambiguous language. American Trucking, 310

U.S. at 543, 60 S.Ct. at 1063. The court’s interpretation neither reads phantom language into the statute, nor cuts from the statute language the legislature deliberately placed there.

***

Accordingly, the court holds that the Kline Opinion contradicts the plain meaning of the statute for two related reasons. First, the Kline Opinion inappropriately strikes the legislature’s placement of discretion in the hands of licensed professionals by ignoring the phrase “reason to suspect that a child has been injured” as a result of sexual abuse. Second, the opinion wrongly redefines the common understanding of both state agencies and mandatory reporters by denoting all sexual activity to be “inherently injurious.”

***

IV. CONCLUSION

This opinion does not change in any respect the law or policy as it has been applied in Kansas since 1982;

has a reasonable suspicion of injury caused by abuse of any kind, the reporter must continue to notify SRS. So this case is not about whether adult sexual predators will escape detection. The reporting statute, as enacted by the Kansas legislature, concerns identifying true victims of abuse so they can obtain assistance and protection. Contrary to defendants’ claims, a prosecutor is not in a better position to make an initial determination of “injury,” as required by statute, than is a health care professional.

This case certainly is not about promoting sexual promiscuity among underage persons. Each and every witness testified that underage sex should be discouraged. No witness suggested that sexual intercourse under the age of twelve should not be reported. At the same time, a plain language interpretation of the reporting statute acknowledges the importance of the health care professional’s ability to obtain and maintain a young patient’s confidence in order to treat the patient appropriately. It recognizes that sexual activity among underage persons occurs, and that any such activity that injures the minor will be reported.

The court holds that a plain reading of the statute vests mandatory reporters, such as health care providers, with discretion to determine when there is “reason to suspect a child has been injured” as a result of sexual abuse. The Attorney General would impose a “zero tolerance” reporting rule for a broad but as yet undetermined range of underage sexual activity, eliminating all discretion on the part of the reporter. Where the legislature has unquestionably placed such discretion in reporters, to require reporting in every instance would be as contrary  to the law of Kansas as not reporting at all.

IT IS ACCORDINGLY ORDERED this 18th day of April 2006, that the court grants plaintiffs a permanent injunction as prayed for in their Amended Complaint.

All Citations

427 F.Supp.2d 1093

Attorney General: Tobacco trust funds off limits to lawmakers

By TIM TALLEY

Associated Press Writer

OKLAHOMA CITY (AP) -- The state Legislature has no constitutional authority to spend earnings from the Oklahoma Tobacco Settlement Endowment Trust Fund or to tell the fund's board how to spend the money,

according to an opinion by Attorney General Drew Edmondson's office.

The opinion, rendered by Edmondson's    officeon                                                                          Thursday, says a constitutional amendment approved by voters in November 2000 that created the trust fund gives the fund's board of        directors sole power to

spend fund money and that legislation to give that power to lawmakers would be inconsistent with the state Constitution.

"Under the unambiguous terms of the Constitution, it is the responsibility of the board of directors rather than the Legislature to determine the expenditures to be made from the trust fund earnings," the opinion states.

The endowment was established after the 1998 tobacco settlement agreement in which big tobacco companies agreed to return money to states to help pay health expenses associated with smoking.

Earnings from the endowment are dedicated to tobacco use prevention and cessation programs, said Tracey Strader, executive director of the endowment trust.

"All of the earnings are directed toward reducing our state's leading preventable cause of death," Strader said.

The legislation, known as the All Kids Act, was eventually passed without the trust fund language, Strader said.

A total of 415,000 children had been enrolled in the program and the change would provide coverage for as many as 42,000 additional children, according to projections from the governor's office.

Editorial: All-day kindergarten costs money; legislature must figure out whose

Sunday, September 23, 2007

When Ohio Attorney General Marc Dann issued an opinion that it was

illegal for school districts to charge parents extra for all-day kindergarten, he raised more questions than he answered.

Would some schools have to tell their kindergartners to roll up their nap-time blankets and head home for half the day?

Did the legislature - which has long ignored the practice of charging parents for extended kindergarten - mean to give the policy a pass?

It's hard to fault Dann for this confusion. He didn't go looking for trouble. He was answering a question put to him by the Ohio Department of Education.

And he found the answer in an Ohio law that states quite bluntly that public education in Ohio is free - from the 12th grade right down to kindergarten.

It doesn't say a word about all-day kindergarten.

His opinion leaves school districts in a quandary. Dann told them they should give refunds to parents, which would cut into this year's budget.

They don't have many good options.

Only poor schools get subsidies for full -day kindergarten. The rest can retreat to half-day kindergarten, which is mandated and subsidized by the state. But that idea doesn't sit well with the most ambitious districts. Educators know the benefits of early childhood education. And let's not forget about the pressure of academic testing.

The Ohio Department of Education is lobbying for a plan that could resolve this impasse. It wants legislators to change the law so districts that are ineligible for state subsidies for all-day kindergarten can charge tuition on a sliding income scale.

It's a reasonable compromise, and it could allow some districts to keep the classes going for now. In the future, it could even open the door for more youngsters to go to full-day kindergarten.

Attorney General Opinion Rules Parole Board Cannot Commute Parole-

Ineligible Sentences To Parole Eligible

(Media-Newswire.com) - Attorney General Richard Blumenthal today issued a formal legal opinion finding that the state Board of Pardons and Paroles cannot commute sentences of felons convicted of murder, rape and similar offenses to make them eligible for parole.

Board of Pardons and Paroles Chairman Robert Farr asked Blumenthal in April for the opinion after 13 convicted murderers petitioned to have their sentences commuted to make them parole eligible. In his letter seeking the opinion, Farr said that "it would be beneficial to commute certain applicant's sentences to parole eligible" so they are subject to state supervision upon release.

"No parole means no parole," Blumenthal said. "The board's powers to commute cannot be misapplied to enable parole for offenses prohibited from parole. They cannot convert any portion of a parole-ineligible sentence to make it parole eligible. Granting parole to felons convicted of serious offenses such as murder or rape would mock the letter and spirit of the law."

Under state law, Blumenthal said anyone convicted of murder, capital murder, felony murder, first degree rape and aggravated sexual assault is ineligible for parole. Blumenthal said that the state law bars the Board of Pardons and Paroles from commuting the parole- ineligible portion of a convict's sentence so that it can consider him or her for parole.

"The General Assembly has determined that the public's interest and safety are best served by making anyone convicted of murder or other crimes specified in

54-125a( b )( 1 ) ineligible for parole," Blumenthal wrote in the opinion. "That statute explicitly and particularly denies parole to those convicted of offenses enumerated in the statute and is a specific limitation on the general pardon and commutation powers granted to the Board of Pardons and Paroles.

"Accordingly, we conclude that a pardons panel of the Board of Pardons and Paroles does not have the legal authority to commute a sentence which is categorized as ineligible for parole so as to enable a person convicted of such offense to be eligible for parole."

(c) Media-Newswire.com - All Rights Reserved

Attorney General: Gay couples can adopt children in Tennessee

NASHVILLE (AP) -- Tennessee Attorney General Bob Cooper says there are no constitutional obstacles to gay couples adopting children.

The opinion released Wednesday was requested by Wilson County Circuit Judge Clara Byrd.

In it, Cooper wrote that, under the state constitution, same-sex couples should be eligible to adopt children as long as the court finds the placement to be in the child's best interest.

Cooper found the constitution doesn't mention adoption, meaning the process is governed solely by statutes.

Tennessee law doesn't require people petitioning for adoption to be married. Court records for adoption and juvenile cases are generally sealed from the public and details of the case prompting the opinion weren't immediately available.

LIV: Phil Power: Cox's anti-immigrant move falls flat (2/21/08)

Two days after Christmas, while Lansing was silent and largely deserted for the holiday season, Michigan Attorney General Mike Cox issued an opinion indicating that only permanent Michigan residents may get a driver's license. It appeared to say that people living here legally but on a temporary basis couldn't get one.

That opinion came in response to a request by state Rep. Rick Jones, R- Grand

Ledge. It was clearly not produced overnight. The opinion was five single- spaced pages in length and was accompanied by 13 footnotes and case citations.

Nobody I talked with in preparing this column - and I talked with plenty of people - knew Cox's opinion was coming.

But it was a bombshell.

It provoked a round of furious finger-pointing with Secretary of State Terri Lynn Land, Cox's fellow Republican. Her office was responsible for implementing Cox's complex ruling. It enraged the business community, which employs nearly

400,000 aliens legally in Michigan on valid visas.

It infuriated state universities when they suddenly discovered that thousands of their students and faculty members living legally in Michigan could not get a driver's license.

It wounded economic developers across the state who found themselves trying to explain that Michigan really didn't want to slam the door against international business expansion. And it provoked official protests from the governments of Japan and India.

All this from one little opinion by a state attorney general!

Of course, there was a political dimension to all this. (Surprise, surprise.) The subject of illegal aliens has been one of consuming interest during the presidential campaign, especially to many Republicans who want the border with Mexico closed and all illegals chucked out. (That is, unless they employ any on the sly.)

The issue has more than just Republic-ans squirming: Sen. Hillary Clinton, D-N.Y., got herself into trouble during the presidential debates with a series of confusing and contradictory responses when asked whether illegal aliens should get driver's licenses.

Most Lansing sources I talked with figure that Cox was doing little more than

pandering to the anti-immigrant wing of the GOP. I tried to ask Cox's PR guy about this, but my call was not returned.

In any event, once people returned to Lansing and the national press started saying that Michigan was now the toughest state in the country for aliens to get drivers' licenses, all hell broke loose.

Jim Epolito, CEO of the Michigan Economic Development Corp., was politely furious. He fired off a letter to Cox noting that his troops "have been receiving frantic telephone calls, e-mails and letters from Michigan's international business community regarding this issue. Your

opinion, issued with no advanced warning to the business community and with no opportunity for a hearing or public comment, has given the international business community the perception that Michigan is not open for business."

Epolito cited more than 375,000 employees who were in Michigan on perfectly legal visas, who could not effectively conduct their business without being able to drive a car.

Birgit Klohs, the highly effective economic developer for Grand Rapids, told me she'd been on the phone at all hours, trying to explain what was going on to angry foreign companies considering - at least, they had been - Michigan as a possible place for expansion.

Universities were just as dismayed. University of Michigan President Mary Sue Coleman pointed out that our universities are on the front line of bringing capable people to Michigan. I got a call from Linda Lim, the head of U-M's Southeast Asia Center, saying that she had an office full of students in tears.

Meanwhile, once the secretary of state's personnel started figuring out what the opinion really meant, they ran into all kinds of trouble trying

to work their way through the complex opinion. Lawyers quickly pointed out that Cox's language appeared to mean that even U.S. citizens living in Michigan temporarily could not obtain a driver's license.

Implementing rules were issued on Jan. 22, and were promptly attacked by a suit from the American Civil Liberties Union.

Cox's office complained that the secretary of state "misread" the opinion, which is the legal equivalent of "I wrote it, but it's your problem to figure out what I meant."

Fingers were pointed back and forth all over Lansing, with feelings (mostly anger) running especially high between the attorney general's office and that of the secretary of state, both Republicans.

Meanwhile, Gov. Jennifer Granholm urged the Legislature to find a fix to overturn the Cox opinion. Acting with unusual speed and bipartisanship, both the House and Senate overwhelmingly passed legislation that allowed foreign citizens living temporarily in Michigan to obtain a driver's license. The governor promptly signed the bill last Friday.

But the damage has been done. With his state facing terrible economic times and desperate for skilled immigrant workers and students, Cox's opinion succeeded in holding our foot up to be shot with our own pistol.

What's sad, embarrassing and all too predictable about this particular

episode of pandering-gone-wrong is that it was totally and completely unnecessary.

Attorney general: Use of funds from lottery unconstitutional

How Can Gaithersburg Prevent Day Laborers From Gathering?

March 6, 2008 - 8:51am

GAITHERSBURG, Md. (AP) - Gaithersburg officials say they are looking for new ways to prevent day laborers from looking for work by gathering near public roads.

Last week, Maryland Attorney General Douglas Gansler rejected an anti- solicitation ordinance passed by the City Council that would have made looking for work or workers along city streets a misdemeanor.

Gansler said the rule violated the First Amendment and Maryland's vehicle laws. City officials say the measure was intended to protect both workers' and drivers' safety.

That is leading residents to pursue other options. Assistant city manager Fred Felton says some property owners have given police permission to ban people from their land, which can be enforced through citation or arrest.

Information from: The Washington Examiner

(Copyright 2008 by The Associated Press. All Rights Reserved.)

Attorney General won’t say whether governor not living in Governor’s Mansion violates law

By David McGrath Schwartz · April 30, 2008 · 4:09 PM

The fact that marital problems are keeping Gov. Jim Gibbons from living in the Governor’s Mansion in Carson City has caused some consternation.

Nevada law says the governor must “keep his office and reside at the seat of government.”

So is Gibbons breaking the law by living in Reno while First Lady Dawn Gibbons lives in the Governor’s Mansion?

Attorney General Catherine Cortez Masto will not say.

In a written response to the Sun, the Attorney General’s office said it has not interpreted the state law and whether the governor’s current residential situation might violate it.

“While we appreciate your request for a legal interpretation of this provision, we do not provide legal analysis for the press. This office also does not discuss our interactions with our clients,” said the statement from Cortez Masto spokeswoman Nicole Moon.

The Attorney General’s client, in this case, would be Gibbons.

Moon noted that the Attorney General’s office is prohibited by state law from making legal interpretations requested by members of the public.

So it seems that Gibbons would have to ask the Attorney General whether he is breaking the law a highly unlikely scenario.

Attorney general: No funds for vouchers Weiers can't grant excess House money for education, office says

Amanda J. Crawford - Jul. 17, 2008 12:00 AM The Arizona Republic

The speaker of the state House of Representatives can't use excess House funds to pay for two private-school voucher programs axed in the state budget, according to an opinion released Wednesday by the Attorney General's Office.

House Speaker Jim Weiers announced last week a plan to use $ 5 million of about $9 million in a House contingency fund to pay for the programs, which provided scholarships to hundreds of disabled and foster- care children to attend private schools. The programs, which were declared unconstitutional by the Arizona Court of Appeals, were not funded in the new state budget that began July 1.

"I am very disheartened and very upset," Weiers said of the opinion, written by the state solicitor general. "It seemed like a perfect solution for a god-awful situation."

Weiers said he planned to meet with state schools Superintendent Tom Horne next week to see if there are other ways to save the programs.

Last week, Weiers and Horne entered into an interagency agreement to fund the programs with the House monies. They then requested that Attorney General Terry Goddard approve the move, which Horne said he needed before going forward.

In the informal opinion, Solicitor General Mary O'Grady said Weiers does not have the authority to give money to the programs. Under the state

Constitution, public money must be appropriated by the House, Senate and the governor.

"I know this is an emotional and personal issue for the families who have received these scholarships in the past, and I appreciate their frustration," Goddard said in a statement. "But the law is clear. The Speaker of the House of

Representatives has no power to spend funds for these scholarships, or for any other purpose, without going through the appropriations process."

Tennessee AG says photo ID bill likely unconstitutional

By Andy Sher

Wednesday, April 13, 2011

NASHVILLE — In a just-released legal opinion, Tennessee Attorney General

Bob Cooper says courts would “likely” rule as unconstitutional a proposed law that requires voters to present qualified photo identification before casting their ballots.

The problem, Cooper says in his seven-page opinion, is the bill makes no provision for free government photo IDs, such as a driver’s license. Courts would probably interpret that as a “poll tax” that “unduly burdens” those who cannot afford such ID, Cooper wrote.

Cooper said it would probably violated the U.S. Constitution’s 24th

Amendment with respect to federal elections and the Equal Protection Clause with regard to state and local elections.

In addition, he said, a state court would find it also violates the Tennessee Constitution because of a provision that confers protections similar to the Equal Protection Clause.

House and Senate Democratic leaders sought the opinion on the Republican- backed bill which passed the GOPHouse. The Senate is controlled by Democrats.

McKenna: Don't ask me about medical pot

By CHRIS GRYGIEL, SEATTLEPI.COM STAFF

Updated 02:49 p.m., Monday, May 9, 2011

At the request of state lawmakers, Attorney General Rob McKenna's office on

Monday released his office's informal opinion about the legal implications of proposed medical marijuana legislation now being considered in Olympia.

Citing various factors, McKenna essentially declined to answer the lawmakers' questions, which centered around how the federal government might react to changes in the state's medical cannabis law.

"...your letter asks for our views with respect to how a federal law...would be interpreted, administered and enforced by the federal government. As you likely appreciate, this Office neither controls nor influences such decisions," wrote Jeffrey T. Even, deputy solicitor general.

More than a dozen state lawmakers sent McKenna a letter last week. That's because Gov. Chris Gregoire has vetoed the most critical parts of a medical cannabis bill, Senate Bill 5073, reiterating her concerns that state workers could be prosecuted under federal law the way the measure

was written.

The legislation was passed to set clearer regulations on medical marijuana use and to establish a licensing system and patient registry to protect qualifying patients, doctors and providers from criminal liability. Gregoire vetoed provisions of the bill that would have licensed and regulated medical marijuana dispensaries and producers. She also vetoed a provision for a patient registry under the Department of Health, but said she would support legislation creating a registry as long as state workers weren't put at risk.

The lawmakers said in their letter to McKenna that the veto has left the medical marijuana program into crisis. They wanted to know the likelihood that federal prosecutors would target state employees for regulating the industry.Some legal experts say Gregoire's worry that Uncle Sam would come after state workers is unfounded.

Last week Gregoire signed off on an idea to revive a medical marijuana bill she largely vetoed last week. She supports the idea of "non-profit patient cooperatives. Local governments would have the ability to license and zone the pot shops. Legislation outlining the new proposals is expected to be introduced in Olympia this week.

Published May 16, 2011, 03:56 PM

AG declines request for formal opinion on Sioux nickname

By: Chuck Haga, Grand Forks Herald

Attorney General Wayne Stenehjem has declined — for now — a request from 10 state lawmakers that he issue a formal opinion on the constitutionality of the Sioux nickname law adopted by the Legislature in March.

In a letter to Rep. Lonny Winrich, D-Grand Forks, Stenehjem said that because the State Board of Higher Education is weighing legal action against the law, a formal opinion from his office now would be premature.

“It is my understanding that the president of the State Board of Higher

Education recently asked board members to consider, for the board’s next meeting, whether litigation is appropriate,” Stenehjem wrote in a letter dated

Thursday. “As a result, it is reasonably foreseeable that I will be asked to consult with the board regarding its legal options, either at the board’s next meeting or a subsequent meeting.

“Since it has been the longstanding policy of this office not to issue an opinion on a matter when litigation is pending or likely,” he said, “I must respectfully decline to address your questions at this time.”

Stenehjem sent copies of his response to the nine other lawmakers who had signed Winrich’s request, including two other Grand Forks Democrats: Rep. Eliot Glassheim and Sen. Connie Triplett.

One Republican, Fargo Rep. Kathy Hawken, was among the signers of

Winrich’s letter. The nickname law, signed March 15 by Gov. Jack

Dalrymple, requires UND to retain its Fighting Sioux nickname and logo despite a legal agreement between the university and the

NCAA, which has threatened sanctions if the Indian imagery isn’t dropped. The 2007 agreement had given UND three years to obtain the blessing of two namesake tribes or discontinue use of the name.

The school, under direction of the state board, had been about a year into a transition process that was to end with the nickname’s retirement by Aug. 15. After the law was adopted, the board told UND to halt the transition.

Board President Jon Backes asked members at a board meeting May 9 to think about ways to resolve the situation, which leaves UND facing a renewed threat of sanctions if it complies with the state law.

Backes has asked attorneys in the North Dakota University System to review whether the law infringes on the board’s constitutional authority to manage

UND and the other institutions under its control, and he said last week that he also would like to hear from Stenehjem.

“I certainly don’t think there would be any action taken by the board” at that session, Shaft said, and he doubts any legal action would be taken before the new law takes effect. But board members “don’t want efforts (to resolve the situation) to languish over the summer,” he said. Winrich said it’s important to resolve questions about the nickname’s status quickly.

“I believe the bill we passed is unconstitutional,” the retired UND computer science professor said.

In addition to undercutting the state board’s authority, “there’s also a constitutional issue because the legislation tries to overturn a court decision,” the 2007 legal settlement agreed to by UND and the NCAA, he said.

Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or

send e-mail to chaga@gfherald.com.

Last updated: February 23, 2012 11:01 a.m. Attorney general backs Lugar on residency

Brian Francisco Washington editor

The Indiana attorney general's office has issued an opinion supporting the assertion of Sen. Richard Lugar, R-Ind., that he is an Indiana resident despite not owning or renting a home in the state.

Matthew Light, chief counsel to Attorney General Greg Zoeller, issued an advisory letter dated Wednesday agreeing with a 1982 opinion by then- Attorney General Linley Pearson.

"The analysis and conclusions in the 1982 advisory letter remain valid. Members of Congress do not lose their residency for voting purposes when they leave the state so that they may fulfill their duties," Light wrote in the letter released Thursday by Lugar's re-election campaign.

"You have served continuously in the U.S. Senate as an Indiana Senator since

1977. To the extent you have been absent from the state since that time, the absence has been directly related to the business of the state of Indiana and the United States. Therefore the residence you established in Indiana is not lost by reason of that absence," Light wrote, citing state law and legal cases.

For voting purposes, Lugar has used the address of an Indianapolis house he sold in 1977, his first year in the Senate. He has lived since then in McLean, Va.

The Indiana Election Commission on Friday will hear complaints filed about Lugar's residency status.

The Indiana Democratic Party, tea party activists and Lugar's foe in the

May 8 Republican primary election, state Treasurer Richard Mourdock, have taken Lugar to task for not maintaining a residence in Indiana. Lugar has said he stays at hotels when visiting the state.

Attorney General declines to issue legal opinion on Price Lab

By JON ERICSON, Posted: Wednesday, March 28, Price Laboratory School

DES MOINES --- The Iowa Attorney General will not issue a ruling regarding the decision to close Malcolm Price Lab School because of concerns about interfering with pending litigation.

A lawsuit filed Tuesday by a group of parents, educators and residents seeks to overturn the Feb. 27 decision by the Iowa Board of Regents to close the school on the University of Northern Iowa campus. In early March, a number of legislators asked the Attorney General’s office for an opinion on whether the board had the authority to close the school.

On Wednesday the attorney general’s office declined to issue the decision, citing a section of Iowa code that states the office may do so if “the matter is pending in litigation or litigation is imminent, or other formal proceeding provided by law for resolution of the issue and issuance of the opinion could interfere with the authority of the other forum.”

Deputy Attorney General Julie Pottorff indicated it was normal for the office to decline to issue opinions when a court case is pending and it could interfere with the office’s ability to defend state officials.

“Generally, we do not issue opinions when to do so would interfere with the authority of the courts,” Pottorff wrote. The lawsuit includes 37 plaintiffs.

Under UNI President Ben Allen’s recommendation to the Board of

Regents, the school would close after June 30. Posted at 06:00 AM ET, 05/31/2012, Wa Post, Virginia Politics Blog By Laura Vozzella

Virginia Attorney General Ken Cuccinelli II has issued a legal opinion indicating that a new tuition tax credit, which critics say amounts to school vouchers, is constitutional.

Virginia Attorney General Ken Cuccinelli II speaks during a news conference in

2010. (AP Photo/Richmond Times-Dispatch, Bob Brown)Cuccinelli (R) provided the opinion at the request of Del. Scott A. Surovell (D-Fairfax), who questions the legality of the credit created by the General Assembly this year.

The Virginia Constitution prohibits the General Assembly from appropriating funds to any non-public schools, private charities or churches. Surovell asked Cuccinelli if such a credit would run afoul of those prohibitions. He made the request in December, anticipating that the issue, which Republicans had pushed without success in previous sessions, would resurface in 2012.

Responding with a formal advisory opinion Friday, Cuccinelli said that while the General Assembly is prohibited from appropriating money for private- or parochial-school tuition, it may provide tax credits for that purpose.

His opinion did not directly address the law passed this year, which offers tax credits to businesses and individuals donating private- and parochial-school tuition to poor, middle-class and disabled students.

Republicans contend the tax credit will open doors for students, while Democrats say it will undermine public education.

Attorney General's office won't issue opinion on constitutionalityof state budget

By Jeff Adelson, NOLA.com | The Times-Picayune, December 05,2012

Attorney General Buddy Caldwell released a letter Wednesday saying he will not issue an opinion on whether the current state budget is constitutional, despite a request by state lawmakers. In explaining his decision, Caldwell noted that his office is charged with defending state laws and raised concerns about the possibility that the budget might soon be challenged in court.

"It must be noted that while your opinion request raises issues regarding the legality of the state budget, all laws passed by the legislature are presumed constitutional and it is the role of the Attorney General to defend the constitutionality of such laws," Caldwell wrote. "Accordingly, our office is not currently in a position to render an opinion on the questions presented."

Last month, 19 lawmakers asked Caldwell to issue an opinion on the constitutionality of the 2012-13 budget., passed during the Spring legislative session and enacted in July. That request, written by Rep. Kirk Talbot, argued that the budget violated the state constitution by engaging in deficit spending, relying on uncertain future events for revenue and using one-time money for recurring expenses.

….

In addition to citing the potential conflict between his office's role in defending state laws and issuing a non-binding opinion on the constitutionality of the state budget, Caldwell also noted that his office does not typically offer opinions when "the relevant facts are in dispute or the where the prospect of litigation appears imminent."

"It appears from your request that this is a matter that is or will be presented to the courts for determination and therefore not at this time an issue to be addressed in an Attorney General Opinion," Caldwell wrote.

Cities cannot mandate smoke-free parks, Oklahoma attorney general opinion rules

Because of restrictions in Oklahoma's state law, cities cannot pass ordinances banning smoking in public parks, according to an Oklahoma attorney general opinion released last week.

By Jaclyn Cosgrove | Published: February 12, 2013

Drive to a local city park in Oklahoma, and you might see a sign letting you know you're banned from smoking in that park.

These signs are apparently irrelevant, as are the ordinances they help enforce.

An Oklahoma attorney general opinion released Feb. 5 ruled that cities cannot ban smoking in outdoor areas that they own or operate.

The ruling was based on the fact that Oklahoma's state law bans cities from passing smoking laws that are stricter than state law.

Tennessee attorney general says prohibiting U.N. election observers is 'constitutionally suspect'

By Hank Hayes – March 25, 2013 – Associated Press

Tennessee legislation prohibiting United Nations’ representatives from observing elections in the state is “constitutionally suspect,” according to a state attorney general’s opinion.

The legislation, sponsored by state Rep. James “Micah” Van Huss, calls for

U.N. representatives to face a misdemeanor offense if caught watching elections at state polling locations.

But the attorney general’s office said that because of the Supremacy

Clause in the U.S. Constitution, U.N. officials would be immune from prosecution under federal law.

“The federal government as part of its foreign affairs policy has decided to participate in the United Nations and has chosen to participate in reciprocal international programs regarding the observation of elections in participating countries by representatives of other participating countries,” the attorney general’s opinion said. “The Supremacy Clause precludes a state from interfering with the United States government’s exercise of its foreign affairs policy under federal law.”

Van Huss, R-Jonesborough, said in a past e-mail he authored the bill “out of a desire to reinforce our eroding national sovereignty.”

He cited a news story noting the U.N. and the Organization for Security and Cooperation in Europe (OSCE) sent a 44-member multinational delegation to the United States to monitor and observe America’s election process for human rights violations.

The attorney general’s office pointed out the United States is an OSCE member committed since 1990 to hold “free and democratic elections” and to allow member nations to observe each other’s elections.

“The OSCE’s policy is to comply with national, state and local laws when conducting its election observations,” the attorney general’s opinion explained.

Attorney General: Bryant can't run Medicaid by executive order Jun. 19, 2013

Written by Associated Press

Mississippi's governor does not have the legal authority to operate the Division of Medicaid by executive order, Attorney General Jim Hood said in a nonbinding legal opinion issued Wednesday.

The opinion from Hood, a Democrat, contradicts Republican Gov. Phil Bryant. The governor has said for weeks that he thinks he can run the program himself, even if lawmakers don't vote to keep it alive beyond June 30, the end of the current budget year.

Some lawmakers say the attorney general's opinion could increase pressure on Bryant to call the Legislature into special session by next week to reauthorize Medicaid, which covers 644,000 low-income, needy or disabled Mississippians.

But Bryant spokesman Mick Bullock had only a short response to what Hood wrote: "That's all it is, his opinion."

Hood issued his seven-page opinion in response to questions from Democratic Rep. Cecil Brown of Jackson, who has been working with other House

Democratic leaders on Medicaid issues. Attorney general's opinions are not legally binding but provide guidance for state leaders.

During their three-month session that ended in April, lawmakers locked up in a partisan dispute over whether to expand Medicaid, as allowed under the federal health law signed by President Barack Obama. Bryant and Republicans who control the House and Senate said the state can't afford to add people to an entitlement program, while Democrats said expansion would boost the economy and help 300,000 currently uninsured people. In the past few weeks, Democrats have proposed a twist on Medicaid expansion — allowing low-income people to use federal subsidies to buy health insurance through a government-sponsored exchange, or online marketplace.

Because of the dispute over Medicaid expansion, lawmakers did not reauthorize the existing Medicaid program or set its budget for the fiscal year that begins July 1.

Medicaid is one of several state programs that come up for legislative review and reauthorization every few years.

In the document Wednesday, Hood relied largely on a legal opinion his office

issued in 2009 during another dispute over the reauthorization of Medicaid. He

said that in the past four years, there have been no changes to state laws or rulings from the state Supreme Court that would take away the Legislature's responsibility for keeping Medicaid alive.

Arkansas Attorney General: Schools Can't Arm Teachers, Staff

by Andrew DeMillo, The Associated Press on Thursday, Aug. 1, 2013 3:45 pm

LITTLE ROCK - Arkansas' attorney general says school districts can't use

a state law to employ teachers and staff as licensed, armed security guards on campus.

Attorney General Dustin McDaniel on Thursday said in an opinion issued by his office that the Arkansas board of Private Investigators and Private Security Agencies doesn't have the authority to license school districts to employ teachers and staff as armed guards.

The opinion was requested after the Clarksville School District began training more than 20 teachers and staff to work as volunteer security guards who would carry concealed weapons on campus. The superintendent of the district said the opinion likely meant the schools couldn't continue with that program.

A state lawmaker requested the opinion the day after The Associated Press reported about Clarksville's program.

(Copyright 2013 The Associated Press. All rights reserved. This material may not be published, rewritten, broadcast or distributed.)

State AG: Public health districts must offer birth control, abortion, Wednesday, August 21, 2013 by: Joel Connelly

Any public health district in Washington that provides maternity care must continue to offer “substantially equivalent benefits” in the form of contraception and abortion services, even if it contracts with a religious- affiliated medical organization, state Attorney General Bob Ferguson said in an opinion Wednesday.

“I fully expect all public hospital districts to comply with this opinion,” Ferguson told a Seattle news conference.

Attorney General Bob Ferguson: Public health districts must provide contraceptive and abortion services, if they deliver babies.

The opinion impacts a growing trend in Washington, in which small local hospitals have chosen to affiliate with larger health organizations, including Catholic-affiliated PeaceHealth and Providence Health and Services.

Under a directive by the U.S. Conference of Catholic Bishops, church-affiliated hospitals cannot perform abortions, are restricted in contraceptive services and cannot assist in patient suicides.

State Sen. Kevin Ranker, D-Orcas, asked the AG if a public hospital district would violate the state’s Initiative 120 if it solely contracts with a health care provider — such as a Catholic-affiliated hospital — that does not provide reproductive care services such as contraception and abortion.

Under the terms of I-120, adopted by voters in 1991, a public hospital district

“may not provide maternity care without abortion and birth control . . . There are more than 50 public hospitals in Washington and this affects all of them,”

Ferguson said. The initiative did not impose the requirement on private hospitals.

I-120 is one of the nation’s most sweeping abortion rights laws. It was voted into law 21 years after the 1970 election in which Washington voted to make abortion legal.

It declares that Washington residents have a “fundamental right to choose or refuse” contraception or abortion, and prohibits the state from discriminating against the exercise of these rights in the “regulation or provision of benefits, facilities, services or information.”

It also requires that, if the state (including public hospital districts) provides maternity care services or information, it must furnish

“substantially equivalent benefits, services or information” regarding abortion and birth control.

The attorney general was not asked by Ranker to explain exactly how public hospital districts must comply with this requirement or what exactly constitutes “substantially equivalent benefits.”

Attorney general: Governor overstepped authority in stopping capital projects Martinez blocked $13.5 million in funding for construction work statewide By Milan Simonich Texas-New Mexico Newspapers

SANTA FE — State Attorney General Gary King issued an opinion Nov. 22 saying the governor overstepped her authority when she suspended funding for 122 capital improvement projects across the state.

"The governor is not permitted under current law and the separation of powers mandated by the New Mexico Constitution to unilaterally withhold capital outlay funds properly appropriated by the Legislature," King said.

Twelve Democratic state senators last May asked the attorney general to review Republican Gov. Susana Martinez's order that blocked $13.5 million in funding for projects statewide.

Martinez said local governments were behind on audits or there were findings questioning public expenditures.

Her executive order established completed audits as a basic but critical financial standard. "Millions of dollars are spent each year on capital projects in communities throughout our state," she said at the time. "It's important for the entities spending this money to show on a regular basis that they meet financial management standards."

State Sen. Howie Morales, D-Silver City, said the administration's contention that all local governments were behind on audits was incorrect.

Morales said he made sure that governments in his district had up-to-date audits before submitting any capital construction projects on their behalf. He said he was concerned that construction jobs and community improvements were being stalled unnecessarily.

….

King said New Mexico courts have held that a violation of separation of powers occurs when a governor's actions "disrupt the proper balance" between the legislative and executive branches. King said Martinez did just that in this instance.

Milan Simonich, Santa Fe Bureau chief of Texas-New Mexico Newspapers, can be reached at 505-820-6898. His blog is at nmcapitolreport.com.

Kansas AG: Guns OK in some polling places

December 4, 2013 – Witchita Eagle

Attorney General Derek Schmidt is advising state election officials that guns will have to be allowed in some polling places, but can be banned from others.

In an opinion issued Wednesday, Schmidt told Secretary of State Kris Kobach that election officers will have to allow concealed carry at polling places in municipal buildings under the terms of a state law that passed earlier this year.

However, public schools, churches and other privately owned buildings used as polling sites will be able to ban guns on Election Day if they prohibit firearms the rest of the year, the opinion said.

The attorney general’s opinion is not binding, but can be relied on for guidance on legal issues until and unless the matter is decided by a court.

The issue arose after the Legislature passed, and Gov. Sam Brownback signed, the Personal and Family and Protection Act, a law expanding the right of concealed-weapon-permit holders to carry guns in government buildings.

The law’s main provision allows concealed carry in most city and county buildings unless the agency secures the building with metal detectors and guards. Key exceptions are K-12 schools, courtrooms and secure areas of jails, prisons, juvenile corrections facilities and police stations.

The question before Schmidt was whether the county’s use of other people’s buildings for elections constituted a lease of the property, which would trigger the gun law’s requirements.

Schmidt ruled that when a private entity allows the state to use its building for a polling place, that’s a license, not a lease.

The only exception would be if a county rented an entire building for a polling place. “However, we do not imagine this circumstance occurring often if at all,” he wrote in the opinion.

Schools are in a separate class because they are not considered “municipal” buildings under the law, he wrote.

More than three-fourths of Sedgwick County’s polling places are in churches, parochial schools or other private facilities. Some ministers said they would have to reconsider hosting elections if it meant they had to allow guns in their buildings.

Sedgwick County Election Commissioner Tabitha Lehman said Schmidt’s opinion “won’t really change or affect our ability to keep the polling places we have.”

However, she said it will mean extra work for her staff because they will have to contact the owners of each private-sector polling place and advance-voting site to determine whether they allow firearms. She said her staff will compile a list of those that don’t so permit holders can call in and find out whether they can carry when they go to vote.

Twenty-three percent of the county’s polling sites are in municipal buildings where guns will be allowed, including Lehman’s own office in the Historic Courthouse downtown.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

Attorney General: Funds Transfer Unconstitutional By ASSOCIATED PRESS, November 21, 2014

OKLAHOMA CITY (AP) — Oklahoma's attorney general says a bill approved by the Legislature this year to fund state government violated the Oklahoma Constitution by transferring $5 million out of a trauma care fund.

In a formal opinion released Tuesday, Attorney General Scott Pruitt said the transfer of money violated Article 10, Section 19 of the state Constitution, which prohibits using taxes levied for one purpose to be used for another purpose.

The Trauma Care Assistance Revolving Fund is used to help reimburse doctors, hospitals and ambulance services for uncompensated care. The Legislature transferred $5 million from the fund for general spending.

Pruitt issued a separate opinion that a similar transfer of about $5.5 million from a workers' compensation fund also violates the Oklahoma Constitution.

Attorney general withdraws opinion sought by prosecutors who oppose pot legalization proposal

THE ASSOCIATED PRESS

First Posted: May 15, 2015 - 4:09 pm

Last Updated: May 15, 2015 - 4:13 pm

The state Attorney General's Office is having second thoughts about its advisory opinion that said Arizona officials could use public resources to educate the public about ballot measures.

Attorney General Mark Brnovich's office on Thursday withdrew the May 4 opinion that was requested by two prosecutors who oppose a marijuana legalization proposal.

The prosecutors, Maricopa County Attorney Bill Montgomery and Yavapai County Attorney Sheila Polk, wanted guidance on what they could do in their official capacities now that supporters of the marijuana legalization proposal have formally launched a ballot initiative campaign to put the issue on the November 2016 ballot.

The opinion said officials could use public resources to educate the public about ballot measures, but it said officials cannot urge that people vote in a particular matter.

Critics of the opinion said public officials may view it as opening the door for them to influence voters and seek to change the outcome of elections, the Arizona Capitol Times (http://goo.gl/z1D3zW ) reported.

The opinion "makes it easier for government-funded propaganda to take place in Arizona," said Kory Langhofer, an election attorney.

Christina Sandefur, vice president for policy for the Goldwater Institute, said the opinion doesn't take into account laws enacted in 2013 that restrict the use of public resources to influence elections.

Attorney General's Office spokesman Ryan Anderson said the office takes the

criticism seriously. "We are internally reviewing this opinion to make sure that we protect the First Amendment rights of public officials while ensuring that we are protecting taxpayer dollars," Anderson said.

Christie doesn't have to disclose gifts from friends, N.J. Attorney General's Office says

May 20, 2015, 1:00 PM   Last updated: Wednesday, May 20, 2015, 2:46 PM

By MELISSA HAYES

state house bureau | The Record

AP

Governor Christie talks with Dallas Cowboys team owner Jerry Jones on the field as the teams warm up before an NFL football game against the Indianapolis Colts, Sunday, Dec. 21, 2014, in Arlington, Texas.

Governor Christie does not have to disclose gifts from friends – including Dallas Cowboys owner Jerry Jones – according to a written opinion from the state Attorney General’s Office.

Susan Guerrero, executive director of the State Ethics Commission, asked Acting Attorney General John Hoffman for clarification on the definition of

“gifts” and disclosure requirements under an executive order Christie signed in 2010.

Christie, who is exploring a presidential run, came under scrutiny earlier this year after he was seen on television hugging Jones in a luxury box at a Dallas

Cowboys playoff game in Texas. Jones paid for Christie and his family to fly to that game and provided them with tickets. The Cowboys owner also provided tickets to two other games.

Related: Group files ethics complaint over Christie's Cowboys trips

At the time Christie said he was able to accept the tickets – despite the state’s strict ethics regulations barring such gifts for most elected officials – because Jones is a “personal friend,” and there’s an exemption for gifts from friends.

Christie and his family also traveled to Jordan in 2012 as guests of King Abdullah, someone the governor has also described as a “good friend.”

Hoffman issued his opinion to Guerrero – only the second written opinion issued by the Attorney General’s Office during Christie’s tenure – on Thursday. Christie filed his annual financial disclosure form for the year on Friday.

Hoffman interpreted the governor’s executive order to define gifts at “items received in return for performing some service, such as speaking at an event.”

Related: Gov. Christie will pay his own way to Cowboys-Packers playoff game

Christie has never claimed any gifts on his personal financial disclosure form, but his staff keeps a record of all gifts given to him at public events or sent to his office.

His disclosure for 2015 is similar to past years.

Christie lists his salary as between $100,000 and $250,000 – he’s paid $175,000 as governor. His wife Mary Pat’s income is listed at greater than $500,000. Mary Pat Christie’s employer is listed as Angelo, Gordon Co., however she resigned as a managing director last month, saying she wanted to spend more time with the couple’s children. The governor also lists royalties of between $5,000 and

$25,000 from McNeil-PCC, Inc.

Attorney general can’t amend university firearm policy

Sara Falligant | Opelika-Auburn News | Posted: Thursday, July 30, 2015 9:08 pm

Alabama Attorney General Luther Strange has determined Auburn University’s firearms policy, which prohibits the possession and use of firearms on university property, that the state’s 2013 gun law widely viewed as a victory for gun owners cannot be enforced on university campuses.

The Attorney General released his decision this week following a June 4 formal petition from an individual citing firearms policies at both Auburn and the

University of South Alabama. While the Office of the Attorney General can’t reveal the source of the complaint, spokesperson Mike Lewis said the petition was filed by a college student “who likes to carry his guns with him” while visiting friends on campus.

Strange cites both universities’ status as a public corporation under the Code of Alabama, rather than a political subdivision covered by the gun law, which leaves universities out of the attorney general's jurisdiction. The letter also explains both universities confirm that they “promulgate and enforce” their firearms policies.

“You can’t really enforce a law against them, since they’re not a political subdivision,” Lewis explained, adding political subdivisions in the eyes of state law include counties, cities and public local entities, among other institutions.

“It apparently didn’t apply to them in the first place. It seems apparent that the legislature would have to change that if they want the gun law to apply.”

Though Lewis said the Office of the Attorney General has not received complaints regarding enforcement of the law at any other state universities,

Auburn University spokesperson Charles Martin said the university’s policies are consentient with those of other schools in the state.

“These are the only ones for which we have received formal complaints,” Lewis said. “We can’t make a blanket ruling, per se, as we choose.”

Martin said Auburn University has not received any additional formal complaints

regarding the policy, but officials have received “the occasional letter or email voicing opinions on the policy.”

In addition to the university complaints, Strange also addressed complaints regarding the gun policies of the Alabama Department of Transportation, the City of Moulton and the Laurence County Sheriff’s Office.

“The Second Amendment Rights of Alabamians must be protected and I am committed to doing so,” Strange said in a release. “In a number of cases, violations of Alabama’s gun laws have been corrected after my office’s review.

Most notably, ALDOT has agreed to remove signs from all state rest areas prohibiting firearms.”

Same-Sex Couples Can Commit Adultery Too, Attorney General Says

By Jessica Anderson and Colin Campbell The Baltimore Sun

With marriage equality comes divorce equality.

To clear up a murky area of state law, Maryland Attorney General Brian E. Frosh has written a legal opinion that says cheating by spouses in same-sex marriages can also be considered adultery.

The opinion might seem superfluous, but for those couples struggling in an unfaithful marriage, the opinion is important when it comes to filing for divorce. A spouse, including one from a same-sex couple, clearly can now file for divorce over adultery, which is one of several fault-based grounds for divorce under Maryland law.

Under "fault" grounds such as adultery, a husband or wife can obtain an absolute divorce without first having to live apart from a spouse for a year. Adultery can also become a factor in alimony and child custody matters.

"We're pleased by it. It's an example that equality means equality," said Jer Welter, the deputy director and managing attorney for FreeState Legal, a legal advocacy organization for low-income lesbian, gay, bisexual and transgender residents in the state.

Frosh's July opinion is "an affirmation that Maryland will equally recognize the dignity of marriages between same sex couples," which can equally be harmed by adultery, Welter said.

Frosh wrote that the opinion was issued not only for the purpose of clearing up murkiness in family law, but also out of "the respect and dignity owed to same- sex marriages as equal to opposite-sex marriages under State law."

Maryland Del. Luke Clippinger requested in February that the attorney general's office review the issue and how it applies to same-sex couples under state law. The Baltimore Democrat, who sponsored the 2012 legislation that legalized same-sex marriage, said the Family Law Section of the Maryland State Bar Association, Free State Legal and Equality Maryland had raised the issue.

"It goes back to an issue of fairness," Clippinger said in an interview Thursday. "We don't often like to talk about the bad sides of marriage, but having said that, the same rules should apply."

He said the opinion applies the responsibilities of marriage equally.

"It means we're all in the same place," he said. "The same responsibilities that every partner in every married couple has — to be true to each other — that applies to everyone. And it should apply to everyone fairly."

Frosh's spokesman did not return a message seeking comment Thursday.

Same-sex marriage has been legal in Maryland since 2013 after voters approved a referendum the year before. The U.S. Supreme Court ruled in June that all states must legally recognize marriage between same-sex couples.

In his opinion on the adultery issue, Frosh wrote that the state should "recognize that sexual infidelity is a breach of the marriage vow and causes damage to the marriage, such that the injured party should be allowed to dissolve the marriage more easily than would otherwise be the case."

It continued, "Extramarital sexual activity with someone of the same sex is just as damaging to a marriage as sexual activity with someone of the opposite sex."

The Maryland Judiciary doesn't track same-sex marriage divorces, a spokeswoman said, but it tracks total divorce filings. In fiscal year 2012, there were 34,773 divorces in the state; in 2013, there were 33,291; and in 2014 there were 32,436, according the Judiciary's annual statistical report.

Adultery is one of several fault-based grounds for divorce in Maryland. Others include desertion, conviction of a serious crime and insanity. A couple without fault-based grounds must live apart for 12 consecutive months before a divorce is granted. But a new law that takes effect in October allows couples to bypass that requirement and dissolve a marriage by mutual consent if they have no minor children in common.

As a cause for divorce, adultery can be difficult to prove, said Lee Carpenter, an associate at Semmes, Bowen & Semmes, a Baltimore law firm.

"You need evidence of an inclination to engage in adultery and evidence of an opportunity to have done so," he said.

But Carpenter said simplifying the process for same-sex couples would be "helpful."

Carpenter, who prepares prenuptial agreements and handles LGBT estate planning, said divorces for adultery can prevent unfaithful ex-spouses from receiving possessions bequeathed to them in their exes' wills. Any changes to divorce law should be made carefully, he said.

"You don't want to make the law too broad," he said. "Is kissing adultery? Is oral sex adultery? It's a delicate thing to be talking about. This is one place where they need to use caution. It can vary from couple to couple."

Adultery has been recognized in Maryland law dating back to 1650, and it is still a misdemeanor but has not been enforced in some time, according to the attorney general's office. At one time, defendants charged with killing their spouse could argue that their cheating spouse drove them to commit murder, which provided grounds to reduce the charge to manslaughter, the office said.

In the past, some cases have shown a struggle in defining adultery — whether under the law it applied only to sexual intercourse between a married woman and a man who was not her husband. Eventually, all states had laws prohibiting adultery for both men and women, reflecting an evolving attitude toward gender equality.

But another issue raised is whether adultery "also encompasses other sexual acts — either between a man and a woman or between two persons of the same sex," the attorney general's office said.

Frosh's opinion points out that the plaintiff in a divorce case don't have to prove evidence of the sexual act, but merely that a spouse and paramour had the opportunity. There is no need to prove details about specific sexual acts.

The opinion said same-sex partners therefore should not have to meet a "higher burden by proving such details."

jkanderson@baltsun.com twitter.com/janders5 cmcampbell@baltsun.com twitter.com/cmcampbell6

Copyright © 2015, The Baltimore Sun

Va. Republican demands opinion on transgender issues from attorney general

Del. Dave Dave LaRock (Courtesy of Dave LaRock for Delegate) By Jenna Portnoy April 20 at 2:54 PM

RICHMOND — A conservative Republican lawmaker from northern Virginia is suing Attorney General Mark Herring (D) to try to force him to fulfill his request for an opinion related to the volatile issue of transgender rights.

Del. David A. LaRock (Loudoun) strongly criticized Herring on Wednesday for failing to provide legal guidance seven months after he was asked for clarity on how state law relates to individuals who identify with a sex that does not match their biological sex.

The call comes the day after a federal appeals court deferred to the U.S. Department of Education’s position that transgender students should have access to the bathrooms of the gender with which they identify.

Herring has built a national profile on left-leaning causes, from gay marriage and immigration to environmental policy and gun control. His office recently turned around a legal opinion on the death penalty in less than a week.

LaRock said Herring’s pattern of advocacy “infuriates” him.

“All this while he waltzes around the country making headlines and promoting things that have nothing to do with what the taxpayers of Virginia hired him do to,” he said at a news conference. “I’m just about fed up trying to get the attorney general to just do his job.”

Herring’s spokesman, Michael Kelly, said attorneys are researching LaRock’s request and a response will be provided “in due course.”

“Turnaround time on opinions depends on numerous factors and our first priority is always to provide strong, accurate legal advice,” Kelly said in a statement. “As evidenced by yesterday’s Fourth Circuit ruling, the law in this area is developing very rapidly in very significant ways.

LaRock was joined by eight Republican lawmakers in his call for an advisory opinion on the definition of the terms “sexual orientation” and “gender identity” as they relate to the state’s laws prohibiting sex discrimination.

9/1/2017                  Virginia attorney general issues opinion saying state law allows Confederate monument removal | Va Md Dc | fredericksburg.com

http://www.richmond.com/news/virginia/government-politics/virginia-attorney-general-issues-opinion-saying-state-law-allows-confederate/article_48d73268-5191-5a48- 9638-60e830ecd226.html

Virginia attorney general issues opinion saying state law allows Confederate monument removal

BY PATRICK WILSON Richmond Times-Dispatch Aug 25, 2017

Herring

DAVID CRIGGER / BRISTOL HERALD COURIER

Attorney General Mark R. Herring issued an advisory opinion Friday saying localities can remove or relocate a Confederate monument as long as there are no individual laws or restrictions governing those particular monuments.

The opinion does not change or create law, but is Herring's interpretation of existing law. It comes as localities across Virginia debate whether to relocate Confederate monuments following violence in Charlottesville Aug. 11 and Aug. 12 at a rally organized under the pretext of defending the Robert E. Lee monument there, which drew white supremacists and turned violent.

9/1/2017                  Virginia attorney general issues opinion saying state law allows Confederate monument removal | Va Md Dc | fredericksburg.com

Virginia is debating whether a 1998 statute restricting the movement of war memorials is retroactive or only affects war memorials constructed after 1998. Herring says the law is not retroactive:

"When the General Assembly omits a clear manifestation of intent that a statutory change should apply retroactively, it generally should be concluded that the legislature did not intend such an application."

Additionally, because the existing law was first passed in 1904, it doesn't even apply to any war memorial or monument constructed before then, according to Herring's opinion.

Herring issued his opinion in response to a request from Julie Langan, director of the Virginia Department of Historic Resources.

Norfolk City Attorney Bernard A. Pishko also had asked Herring for an opinion. The City Council in Norfolk this week passed a resolution stating its desire to move a Confederate monument from downtown into a cemetery where rebels are buried.

Pishko wrote in an Aug. 18 opinion to the attorney general: "It is my opinion that neither the 'civil' nor the 'criminal' statute prohibits the relocation being considered by Norfolk City Council."

Norfolk also sent Herring a memo from the Norfolk Commonwealth's Attorney's Office that agreed:

"While the General Assembly has imposed certain restrictions on the removal or relocation of Monuments through Code § 15-2-1812 and its predecessor statutes going back to 1904, those restrictions do not appear to apply to most Monuments put up in municipalities prior to 1998.

"For that reason, the removal or relocation of a Monument put up in a municipality, especially if put up by order of a municipal governing body or a private entity with the permission of that governing body, would not implicate Code § 18.2-137 [the statute imposing criminal penalties for removal, etc. of war monuments]."

A Circuit Court judge in Danville also has ruled that state law is not retroactive prior to 1998. However, there is a pending lawsuit in Charlottesville Circuit Court over that issue. A Charlottesville judge has stopped the city from removing its Robert E. Lee statute while the case is pending.

pwilson@timesdispatch.com (804) 649-6061

Twitter: @patrickmwilson

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Attorney General William Tong Okays Captive Audience Bill; May Face Court Challenge if Passed

LABOR (HTTPS:// YANKEEINSTITUTE .ORG/CATEGORY/ LABOR)

M A RC E. FIT CH      M AY 20 , 2 01 9

William Tong Speaking at C T AF L-C IO Event

Connec ticut Att orney General W illiam Tong on Friday broke with former Attorney General George Jepsen and issued a sho rt, three- page opinion

(https://portal.ct.gov/- /media/AG/Opinions/2019/2019-03 Sen Fasano.pd£) stating

St at e Po ic e Co n t r act Exe m p t s

 Pe r so n n e Rec o rd s, Gr ie v an c e

 Hearings From Pubic Disc osu re

( h t t p s://y a n keeinst it u t e.o rg / 2019 / 0 5/ 17/ st po ic e - co n t r ac t - e xe m p t s- p e rs o n n e -

re co rd s-g ri eva nce-hea rings-from- pub ic-disc osu re/ )

MAY 17, 2019

Inthewake to two controversial police shootings in Connecticut, the latest Connecticut State Police contract exempts officers' personnel records and grievance hearings from public

READ MORE

( HTTPS: / / YA N K E E NST TUTE.ORC/2019/05/1 POL CE-CONTRACT-EXEMPTS-

PERSON NEL - R E CO R D S - C R ! EVA NC E-

H EARi NCS-FROM-PUBLIC-DISCLOSURE/)

one of Democratic lawmakers' latest captive audience bills would not be preempted by national labor law.

Former Attorney General Jepsen issued a formal opinion in 2018

(https://yankeeinstitute.org/2018/04/26/attorney-general-jepsen-connecticut­ captive-audience-bill-violates-national-labor-relations-act/) that Democrats' captive

Pubic Option Heath nsurance Bi Draws Rebuke from Insurance Companies; Raises Questions on Costs, Lega Liabi ities

audience legislation would be preempted by the National Labor Relations Act, effectively

(h t t p s:/ /y a n keeinstitute.o rg / 2019 /0 5/15/ p L

killing the bill that year.

Tong concurred with Jepsen on one of the bills, saying Senate Bill 64 - An Act Concerning Captive Audience Meetings - would be preempted by the NLRA but said a second bill from the Senate - Senate Bill 440 - is "materially different from the proposed legislation that was the subject of the 2018 O pinion."

"As a generally applicable state law aimed at protecting the constitutional rights of all Connecticut employees, the law, if enacted, can be fairly defended as outside the scope of NLRA preemptions as articulated by the courts," Tong wrote

The opinion was issued to Senate Republican Leader Len Fasano, R-North Haven, who had requested Jepsen's opinion in 2018.

The bill would prevent employers from holding mandatory meetings with employees regarding "religious or political matters," but labor unions have pushed hard for the legislation to prevent employers from holding meetings with

employees to discourage them from

option-heath-insurance-bi -draws- rebuke-f rom-insuranee-companies- raises-questions-on-costs-lega1-

  ia bi ities/)

MAY 15, 2019

A proposal to create a public health plan for small employers has some lawmakers and business associations wondering why the state of Connecticut is trying to compete against the state's

READ MORE

( HTTPS://YANKEE NST TUTE.ORG/2019/05/1 OPT ON-HEALTH- NSURANCE-B LL­ DRAWS-REBUKE-FROM- NSURANCE­

COMPAN IES-RAISES-QU ESTI ONS-ON­ COSTS-LEGAL-LIAB I LITI ES/)

orgamzmg.

Attorney General William Tong

If passed, an employee could 6le suit against an employer if they refuse to attend a mandatory meeting regarding politics or religion, including unionization efforts.

Certain exceptions are made if an employer is required by law to communicate government information to their employees and for religious institutions to be able to communicate religious issues to employees.

Tong, who rode to campaign victory on  a wave of union support and  advocated  for captive audience legislation in the past, wrote that because the legislation amends and clarifies existing state statute regarding freedom of speech for employees, it will fall outside the framework of the NLRA.

Similar proposed bills in the past - and the bills this year - have been opposed strongly by the Connecticut Hospital Association and the Connecticut Business and Industry Association, who say it limits employers' free speech and would be preempted by federal labor law .

According to a former chairman of the National Labor Relations Board, the SB 440 would be "invalid and unenforceable" (https://yankeeinstitute.org/2019/04/05/former­ national-labor-relations-board-chairman-captive-audience-bill-invalid-and­ unenforceable/) because it would still be preempted by the federal government and possibly violate the free speech rights of employers.

In a letter issued to CBIA President Joseph Brennan, Philip Miscimarra, who served as chairman of the NLRB for four years, wrote "Based on my evaluation of Senate Bill 440, I believe the legislation directly conflicts with the NLRA, and - if Senate Bill 440 were enacted - I believe the legislation would likely be declared invalid and unenforceable because it is preempted by the NLRA, and the legislation may also be deemed an unconstitutional restriction on free speech and the free exercise of religion under the First Amendment."

Law professor and Yankee Institute Director of Public Policy and Research Scott

Shepard agrees: "The courts have given every indication - and clear and recent indications

- that they will find this law pre-empted by the NLRA, and we expect that litigation will follow soon on any possible passage of S.B. 440 to establish that point."

Tong allowed that the state will likely face a lawsuit if the legislation is passed, but that "enacted legislation carries with it a strong presumption of constitutionality."

"This is not to say that the question is free from doubt. We acknowledge that SB 440 could face a preemption challenge in the courts," Tong wrote. "We conclude that it is defensible, and if enacted, this Office stands ready to defend it."

Marc E. Fitch

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D fi'NEWS https://www.ourmidland.com/news/article/Nessel-Civil-rights-panel-not-bound-by-ex-AG-s-140153.p1h8p

Nessel: Civil rights panel not bound by ex-AG's LGBT opinion

David Eggert, Associated Press Updated 10:34 pm EDT, Tuesday, June 18, 2019

In this June 4, 2019, photo, Dana Nessel, Attorney General of Michigan, listens to a question from reporters in Detroit.  Hundreds of boxes. Millions of records. From Texas to Michigan this month, attorneys  general  are  sifting through  "secret"  files, nondisclosure  agreements between the church and families, heart wrenching letters from parents begging for action, priests'  own psychiatric  evaluations. They're  looking to prosecute, and not just priests.

LANSING, Mich. (AP) - The Michigan Civil Rights Commission is not bound by a 2018 state opinion that says LGBT people have no protection under an anti-discrimination law, Attorney General Dana Nessel's office said Tuesday, citing the U.S. Supreme Court's pending consideration of whether sex-based discrimination covers sexual orientation and gender identity.

The Democratic attorney general's guidance came after her predecessor, Republican Bill Schuette, last year issued an opinion stating that Michigan law does not ban LGBT discrimination and that it would be up to legislators to change the statute to include such protections.

ing on state agencies unless reversed by a court. But Nessel's chief legal counsel Suzanne Sonneborn told the commission

- - • - ■ • · · ::, · · - - - - - - ·

Nessel declined to issue a new opinion, though, pointing to the office's longstanding policy of not doing so on issues subject to pending litigation.

In April, the Supreme Court said it would hear cases involving people who claim they were fired because of their sexual orientation and another - out of Michigan - that involves a funeral home employee who was fired after disclosing that she was transitioning from male to female and would begin dressing as a woman. The cases will be argued in the fall.

Nessel said she will file a brief supporting the position that Title VII of the federal civil rights act prohibits discrimination based on sexual orientation and gender identity.

"I urge the commission to continue its important mission to investigate allegations of unlawful discrimination and to secure the equal protection of civil rights without such discrimination, and I look forward to working together with the commission in doing so," Nessel said in a written statement.

The guidance from Nessel's office was questioned by Republicans who control the Legislature.

"Under the chief legal counsel's logic, the attorney general's opinions from earlier this year halting construction of the Mackinac Straits tunnel and threatening the integrity of the petition gathering process no longer bind state agencies because the underlying questions are the subject of pending litigation," House Speaker Lee Chatfield said in a statement. "I look forward to seeing how this new policy change plays out, and hopefully Michigan families will get the reforms they were promised and that they deserve."

When Nessel issued opinions regarding the planned oil pipeline tunnel and the ballot drive changes, however, no lawsuits had yet been filed . They came later.

After Schuette released his opinion last July, the Civil Rights Commission directed an agency to continue investigating complaints of discrimination based on sexual orientation and gender identity - reviews that had begun in May 2018.

Agustin Arbulu, who heads the state's Department of Civil Rights, welcomed Nessel's decision Tuesday.

"The uncertainty caused by the legal situation surrounding this important matter of equality points once again to the need for the Legislature to amend Elliott-Larsen to assure all individuals in Michigan are protected from discrimination," he said in a statement.

What’s Your Opinion?

1.                  With the election just a few weeks away, an emergency bill has just passed both houses that would require all political action committees to disclose their donors if they contribute more than $1000 to any state legislative race. The Governor of the State of Hampton has said that she will sign the bill if it is constitutional. The Governor’s counsel calls you for an opinion on the constitutionality of the bill, and says she needs a response immediately in light of the emergency nature of the bill. What is your response?

2.                  The Hampton Constitution has a strict separation of powers provision, which prohibits people from serving in two branches of government. A part–time, popularly elected, probate judge, whose term runs until next year, is running this year for the State Senate. His opponent, the incumbent State Senator, asks you for an opinion on whether it is constitutional to run for two offices at the same time. What is your response?

3.                  Long before you became Attorney General, the State of Hampton entered into a consent decree to settle a civil rights lawsuit concerning the State’s largest mental health hospital. Due to progress made under the consent decree, there is no longer a special master overseeing the hospital and there is no longer active federal court supervision, even though the case remains on the docket. Advocacy groups have gone to the press with evidence that the State is not providing certain services they believe are required under the consent order. A State Representative who is employed by one of the advocacy groups asks you for an opinion on whether the State should provide these services. What is your response?

4.                  A small town in a rural part of the State of Hampton would like to hold a block party for the town’s 150th anniversary and close off the only street that runs through the town for a Saturday night. The street is also a lightly traveled state highway. The Department of Transportation got wind of this plan, and told the town that they can’t block a state highway. The Mayor asks you for an opinion on whether they can hold their block party and close the street for four hours. What is your response?

5.                  Last year the Hampton Legislature passed a statute requiring doctors who perform abortions to have admitting privileges at the local hospital. Planned Parenthood and several doctors filed suit, and your office is defending the suit. In light of a ruling from the Fourteenth Circuit upholding a preliminary injunction against a similar statute in a neighboring state, the Governor has asked you whether the State’s statute should be enforced. Lawyers from National Right to Life, who have litigated this