VanValkenburg, Rosie's, and a Fast-Tracked AG's Opinion from Miyares
Recent history suggests VanValkenburg should feel lucky to get an opinion from the Attorney General at all, regardless of the timeline.
Sen. Schuyler VanValkenburg (D-Henrico) wants a formal opinion from Attorney General Jason Miyares, and he wants it fast. Yet recent history suggests VanValkenburg should feel lucky to get an opinion from the Attorney General at all, regardless of the timeline.
The law appears straightforward on this issue. Va. Code § 2.2-505(A) states in relevant part: “The Attorney General shall give his advice and render official advisory opinions in writing only when requested in writing so to do by one of the following: the Governor; a member of the General Assembly…”
Keyword “shall.”
VanValkenburg is a member of the General Assembly and thus apparently entitled to an opinion from Miyares, although there’s no apparent requirement for the AG to respond within any specific timeframe.
As Sean Jones reported in the Richmond Times-Dispatch, VanValkenburg “is asking Miyares for an advisory opinion to clarify whether the legal and legislative history behind horse racing should also allow for these machines in Henrico County.” Here’s a key excerpt from VanValkenburg’s December 9, 2024 request for an opinion concerning Rosie’s:
You can download the entire request here:
VanValkenburg appealed to Miyares to “render your opinion expeditiously as a matter of urgency…” And while, to my knowledge, Miyares has so far responded to all legitimate requests for opinion, former Attorney General Mark Herring took the position in federal court that issuing opinions to members of the General Assembly is completely discretionary.
On April 26, 2021, former Del. Lee Carter (D-Manassas) requested an opinion from Herring about the constitutionality of running 2021 House of Delegates elections on maps from a decade prior, therefore violating the one-person, one-vote rule and effectively diluting the votes of Virginians.
You can download the 2021 Carter request here:
On June 28, 2021, Richmond activist Paul Goldman filed a federal lawsuit challenging the government’s plan to hold elections with old, unconstitutional maps. I attempted to intervene in the case (unsuccessfully), but U.S. District Judge David J. Novak took part of my brief seriously, ordering the government on October 8, 2021 to explain why Herring hadn’t yet provided an opinion to Carter. Ned Oliver covered this facet of the saga for the Virginia Mercury in his piece “Federal judge presses AG to weigh in on election calendar. ‘I want him to do his job.’”
You can download Judge Novak’s October 8, 2021 Order here:
How did Herring’s Office respond to the federal judge? Incredibly, they told Judge Novak that they couldn’t comment on pending requests because “opinion requests received by the Office of the Attorney General are considered attorney/client privileged requests for legal advice.”
The AG’s Office made several other key claims, including:
(1) “Virginia Code does not require that the Office of Attorney General provide opinions. Rather, the text of the statute uses language of exclusion, not compulsion.”
(2) “With respect to timing, Code § 2.2-505 does not compel a response or set any deadlines on the Attorney General’s consideration of requests for advisory opinions.”
(3) “Under Code § 2.2-505, the Attorney General has a longstanding practice of exercising discretion to decline, when appropriate, to respond to requests for official advisory opinions, including requests from legislators.”
(4) “Throughout the many decades that the Attorney General has followed this practice, the General Assembly has never changed the statute to require a different result and has accordingly acquiesced in what is now settled policy.”
You can download AG Herring’s Response to Judge Novak’s October 8 Order here:
As Washington Post columnist Norman Leahy noted at the time, “perhaps Herring’s office has redefined ‘shall’ from an ‘imperative command’ to merely a guideline.”
Leahy continued: “Eventually, Herring’s office may get around to issuing an opinion. But it hasn’t been in a hurry to address an issue central to Virginia voters and the principle of one person, one vote for whatever reason.”
To this date, Carter claims to have never received an opinion from the AG on redistricting, and no such opinion shows up on the AG’s Official Opinions online database. What you will find in the database is Herring’s January 22, 2021 opinion to Carter concerning potential insurrectionists in the General Assembly, an opinion he issued a mere two weeks after Carter first requested it.
There’s no reason to think the AG’s Office has changed policy since 2021 when it comes to treating their duty to issue opinions to members of the General Assembly as discretionary.
VanValkenburg might end up getting his expedited opinion from Miyares in the end. But without General Assembly action, you can be sure the AG’s Office will continue to treat “shall” as “may” as a matter of policy and political convenience.