Request By:
Honorable Peter E. Heiser, Jr.
Chief Deputy Attorney General of Idaho
P.O. Box 1975
New Haven, Connecticut
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have requested our opinion as to the legal effect or status of attorney general opinions in Kentucky.
KRS 15.020 provides that the attorney general is the chief law officer of the state and all of its departments and agencies, and its political subdivisions. The attorney general, when requested in writing by state or local officials, shall furnish to them his written opinion touching any of their official duties. KRS 15.025 reads:
"The attorney general, when requested in writing, under KRS 15.020, shall furnish such opinions subject to the following conditions:
"(1) When questions of law of interest to the commonwealth are submitted by a state department, agency, board or commission;
"(2) When public questions of law are submitted by either house of the legislature or by any member of the legislature;
"(3) When public questions of law pertaining to local government are submitted in writing by the proper public official of the county or other political subdivision of the commonwealth;
"(4) When, in the discretion of the attorney general, the question presented is of such public interest that an attorney general's opinion on the subject is deemed desirable and when provided for by regulation pursuant to the provisions of this section."
Implementing regulations designed to assure uniformity, clarity and completeness in the request by officials for an opinion are found in 40 KAR 1:010. Opinions may be prepared for nonofficials on subjects relating to eligibility for public office and their election rights, duties and liabilities, on questions involving licenses and taxation, and on questions [concerning official acts and conduct of public officials] broad enough to be of interest to the general public, the Bar, or other officials in similar positions. 40 KAR 1:020. Official opinions must concern current factual situations and will not be rendered where litigation is underway or contemplated.
Beginning with the English Common Law experience and extending through the colonial period and including the statutory treatment of this subject, the opinions of the attorney general have been considered advisory only. See Carroll's Kentucky Statutes, § 112-2 (1908, C. 32, p. 85, § 2).
The Attorney Generals of Kentucky, their assistants, the state and local government officials and employees, and the public generally, have all understood that KRS 15.020 provides for advisory opinions only.
It is our view that there is really no legal confusion about the status of attorney general opinions. This view is amply buttressed by the precise and explicit language of KRS 15.020 and by the perpetual characterization given by the press and wire-service writers who never fail, while giving an analysis of an opinion of this office, to add by way of some deeply felt need of caveat that the opinions of the attorney general are "only advisory. "
The Office of the Attorney General comes to us with the common law, even before the first General Assembly in Kentucky could pass a bill.
Respass v. Commonwealth, 131 Ky. 807, 115 S.W. 1131 (1909) 1132.
During the constitutional struggles ensuing from the 1688 Revolution, the Attorney General in England emerged as the legal adviser for the government as a whole, that is, the Attorney General for the Crown. Cooley, "Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, " 2 Am.J. Legal History 307 (1958).
The colonization of America by England brought with it the Office of Attorney General, coming into existence either by executive or legislative action. However, the colonies made little effort to define the duties of the office in America; and it became generally accepted that the Attorney General possessed the common law powers of the English Attorney General except where changed by statute or constitution. Hammonds, "The Attorney General in the American Colonies, " Anglo-American Legal History Series VI, No. 3 (1939). In 1667, the North Carolina Colonial records reveal that the Attorney General of that colony had all the powers of the English Attorney General, including the providing of advisory opinions when requested by the Governor, the Council, or the Judges of the Courts. N.C. Colonial Records, Vol. 7, 1765 to 1768, p. 486. In Pennsylvania the Attorney General gave advisory opinions to the Governor and Council. Hammonds, supra, at p. 14.
It is generally recognized throughout the United States that, unless denied by statute, the attorney general, as the Chief Law Officer, is clothed with all the powers incident and traditionally belonging to his office. They are implicit in the relationships; in other words, inherently ex officio.
Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 826.
The contemporary source of authority of the attorney general is the people who establish the government, and his primary obligation is to the people. KRS 15.020 designates the attorney general as the chief law officer of the Commonwealth and all its departments, political subdivisions, agencies, etc.
Hancock v. Terry Elkhorn Mining Company, Inc., Ky., 503 S.W.2d 710 (1974) 715; and
Commonwealth Ex. Rel. Hancock v. Paxton, Ky., 516 S.W.2d 865 (1974) 867. The statute also makes him the legal adviser of all state officers, departments, commissions, and agencies, and when requested in writing he must furnish his written opinion covering any of their official duties. Implicit in this statute is the idea that such opinions are advisory only. There is absolutely nothing in KRS 15.020 suggesting anything to the contrary.
Dee Akers, in his article on the advisory function of the attorney general, 38 K.L.J. 561, wrote that "The character of this function is patently less than judicial, but it does have a restraining effect on the administration of government, and in Kentucky the answers it provides make up a considerable portion of the layman's version of the law." He also pointed out that, in connection with this "legal advisory service, courts have notoriously declined to act as legal advisors to the other divisions of government, and in this state the right of the legislature to require the courts to give advisory opinions has been denied." Id., p. 569 and re constitutionality of H.B. No. 222, 262 Ky. 437, 90 S.W.2d 692, 103 A.L.R. 1085 (1936). The court held that the Kentucky Constitution forbids an assignment to the judiciary of any duties not properly judicial. The court said that rendering advisory opinions is not a judicial act, and may not be required by the courts. Thus the general conception is that the powers and duties of attorneys general are primarily executive and administrative in nature. Mr. Akers points out, however, that the attorney general's opinions in practice have a judicial effect upon the client, since the opinions are usually followed. He characterized the attorney general opinions as "legal in essence, administrative in its character, and quasi-judicial in effect." Id., p. 571.
In the absence of a statute, the good faith of an official in following the opinion of the attorney general will not render him immune from civil liability for any loss resulting to the
Commonwealth. Dishman v. Coleman, 244 Ky. 239, 50 S.W.2d 504 (1932) 508.
In 7 Am.Jur.2d, Attorney General, § 8, p. 8, the advisory opinion of the attorney general is described as follows:
"In most jurisdictions statutes expressly impose upon him the duty of advising the chief executive and departmental heads upon questions of law touching their official duties. In the discharge of this function he acts in an advisory and ministerial, rather than a judicial, capacity, his opinion being for the information of the officer to whom it is rendered. While it may be persuasive, it is neither conclusive nor binding, and the recipient of it is free to follow it or not as he chooses." (Emphasis added).
The opinions of the attorney general are in actual practice usually followed.
Van Riper v. Jenkins, 140 N.J. Eq. 99, 45 A.2d 844, 163 A.L.R. 1343. And his "advice and opinions are of great influence in affecting public interests and the rights of all persons within the state." 7 Am.Jur.2d, Attorney General, § 8, p. 10. Courts generally hold that an opinion of the attorney general "while in no sense binding upon this court, is of the most persuasive character, and is entitled to due consideration."
Barber v. City of Danville, 149 Va. 418, 424, 141 S.E. 126. See also
Leddy v. Cornell, 52 Colo. 189, 120 Pac. 153 (1912); and
Blanchard v. Mitchell, (La.) 146 So.2d 50 (1962). Opinions of the attorney general are held to "serve as important guides to those charged with the administration of the law. They frequently constitute valuable contemporaneous constructions of statutes recently enacted."
State v. Cadwalader, 227 Md. 21, 174 A.2d 786 (1961). A committee on the Office of the Attorney General [National Association] survey showed that opinions are advisory only in most states, but are considered to have great weight and would be considered persuasive by the courts.
Judge Robert Larson, writing on "The Importance and Value of Attorney General Opinions" in 41 Iowa Law Review 357 (1956) 367, 368, concluded that:
"Attorney General opinions on matters of law, the law's application and construction, while perhaps outside the principle of stare decisis, are entitled to careful consideration and respect by state officers, the legislature, the courts, and the general public. Although they are occasionally upset by the courts, the court gives more than a passing thought to them in its effort to reach the final decision . . . The Attorney General, after careful and responsible study, writes and officially issues the opinion for the guidance of other officers of the state who are bound to respect and should follow it until it is judicially overruled or changed by legislative action. "
A New Jersey Court, in Van Riper v. Jenkins, 140 N.J. Eq. 99, 45 A.2d 844 (1946) holds that formal opinions of the attorney general carry the force of law in the absence of judicial decisions to the contrary. In the absence of judicial decision, his opinions become the guide for governmental executives.
The Supreme Court of New Mexico in Hanagan v. Board of County Commissioners, 64 N.M. 103, 325 P.2d 282 (1958) 284, conceded that opinions of the attorney general are entitled to great weight, but may be overruled where in conflict with judicial decision.
The importance of the attorney general opinions cannot be overemphasized. A study on the attorney general's opinions, and which stresses the importance of his advisory role in the opinion writing, indicates that: "The attorney general tends to act where there is a need for explanation of a particular area of the law, where judicial review is absent, and where no legislative provision has been made for defining proper state practice. It appears, then, that there is a need for state government officials to know the duties imposed on them by the law if it is to be followed. The attorney general explicates the state of the law, positive and customary. Where it has been struck down, he predicts the consequences. Where it has been obscured, he clarifies its prescriptions." Henry J. Abraham and Robert R. Benedetti, "The State Attorney General: A Friend of the Court?", 117 Univ. of Pa. L. Rev. 805 (April 1969).
Aside from the pure legal aspect of the attorney general's opinion, the practical or pragmatic aspect comes to surface when we consider precisely why opinions are sought. Judge Robert L. Larson, in article in 41 Iowa Law Review 351, 355, wrote that many questions arise in state departments which cannot be taken before the courts [Iowa courts do not write advisory opinions]. He spoke of a time factor in that an officer must act quickly and legally for the public welfare. The "administrative system could be bogged down while awaiting the answer to a troublesome question. So it is seen that the advice of this constitutional officer, trained in the law, is necessary to expedite, fix and clarify the powers, duties and obligations of those persons administering the necessary functions of government. Such an obligation places upon the attorney general the highest professional responsibility, for these opinions not only affect and control the administration of government in all its vast undertakings but also act as a protection and safeguard for the general public in its rights and privileges."
Judge Larson also points out that the attorney general's opinion is "entitled to no greater respect than the logic of its reasoning and the authority cited in support of its conclusion. This is the same test as to value of all legal opinions . . ." Ibid., p. 361. As Sir Edward Coke wrote, "Reason is the life of the law; nay, the common law itself is nothing else but reason . . . . The law, which is perfection of reason."
While the opinions of the Attorney General of Kentucky are not legally binding on the recipient, there are several reasons why there is a tendency to follow them. First, "it is likely that the agency's principal motivation is to do what the law requires, and it is this motivation that causes the request for an opinion in the first place. When the agency receives an apparently well researched and well reasoned opinion advising a course of action, that course is likely to be followed." 1970 Wis. L. Rev. 298, 326. Secondly, an administrator may seek the protection of the opinion from public criticism, even if he is not protected from legal liability. The author [Arlen C. Christenson] of the Wisconsin Law Review article, 1970, p. 298, 327, concludes that "whatever the motivations and whatever the legal effect of an opinion, however, the important point here is that an agency requesting an opinion is likely to follow its advice. "
It can be presumed that the legislature, in enacting KRS 15.020, had in mind that governmental officials seeking the opinion of the attorney general would follow well researched, considered, and written opinions of the attorney general in reliance upon the opinion. Indeed, it will not be presumed that the legislature did a vain or foolish thing by requiring the rendering of such opinions. See, as to this basic presumption,
County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S.W. 185 (1927) 187; and
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821.
The historical analysis of the Kentucky Attorney General's opinion points up these conclusions: (1) There is no confusion in the law and in the public mind as to the status of the attorney general's opinions. They are advisory, generally, in nature and are not legally binding on officials or other parties. (2) Under KRS 61.880 the opinion of the attorney general, in connection with questions relating to the inspection of public records, is binding upon the parties until or unless modified by court action. (3) There is a tendency for local officials to follow the opinions of the attorney general. As concerns the practical efficacy of his opinions, if the recipients believe in following the well reasoned opinions of the attorney general, then the historical and statutory purpose underlying the writing of such opinions will not be in vain. (4) The legal effect of an opinion of the attorney general in general has actually never been defined by statute nor the courts, and apparently the weight attaching to an opinion depends partly on the recipient's attitude as mentioned above. See 51 K.L.J. 129. (5) It must be borne in mind that opinions of the attorney general are designed to reflect not the private construction of the author but that construction the attorney general believes the courts would arrive at if faced with similar facts. To put it simply, opinions are arrived at from judicial construction. (6) As stated in the recent compilation, "powers, duties and operations of state attorneys general" [National Assoc. of Attorneys General, Committee on the Office of Attorney General], p. 193, opinion writing continues to be one of the most important functions of the attorney general.