Wilder v. Attorney General of Virginia

439 S.E.2d 398, 247 Va. 119, 10 Va. Law Rep. 764, 1994 Va. LEXIS 20

• Court: Supreme Court of Virginia
• Decided: January 7, 1994
• Docket: Record 930413
• Status: Published

Opinions

JUSTICE HASSELL

delivered the opinion of the Court.

Code § 2.1-122 permits the Governor of Virginia, under certain circumstances, to employ “special counsel” to act instead of the Attorney General. The narrow issue we consider in this appeal is whether under the facts presented, counsel appointed by the Governor to provide comprehensive legal representation to a state agency constitutes special counsel within the intendment of Code § 2.1-122.

The facts relevant to our resolution of this controversy are not in dispute. The Office of the Attorney General provides regular legal representation to the Commonwealth, her agencies and officers. On December 10, 1992, Governor L. Douglas Wilder informed Attorney General Mary Sue Terry, by letter, that he intended to appoint special legal counsel to represent the Virginia Retirement System pursuant to Code § 2.1-122(a). This letter declares, in part:

I have stated previously my great concern as to whether your office can now meet its obligation to provide appropriate legal representation to the Virginia Retirement System. I have said this publicly as well.

From the onset, recent circumstances presented you with a number of legal entanglements due to the potential for conflicts. In your role as Attorney General you have set out to represent individual members of the Virginia Retirement System Board in their practices relative to the Freedom of Information Act. You have also led an investigation which resulted in your drawing and making public certain legal and administrative policy conclusions about those same sensitive matters. Much of this was aired publicly prior to the conclusion of your investigation.

It has become only too apparent that the results of these acts of “representation” may be used in an adverse manner against individual members of the Board and with legal predicates which are based upon your very own policy declarations. In essence, you have condemned the client and then purport to represent the same. The attorney-client privilege is thereby breached.

In such circumstances, the Code of Virginia recognizes the importance of authorizing the Governor to intervene by certifying the need for independent counsel. I do so certify such a need for the Virginia Retirement System pursuant to [Code §] 2.1-122(a).

The Attorney General forwarded a letter to the Governor dated December 11, 1992 in which she disagreed strongly with the Governor’s assertion that a conflict of interests existed. She denied any acts of ethical impropriety, and challenged the Governor’s authority to appoint special legal counsel for the Virginia Retirement System.

The Governor sent another letter to the Attorney General dated December 21, 1992 that states, in part:

This letter, together with my December 10 letter, will serve ... as my exemption order pursuant to [Code §] 2.1-122(a). This letter has the full force and effect of a formal Executive Order regardless of its form.

As my December 10 letter indicates, there has been a breakdown of the attorney-client relationship between your office and the Virginia Retirement System which, and in my judgment, renders your office unable to render effective legal representation to [the Virginia Retirement System] and requires the appointment of other counsel for [the Virginia Retirement System]. At the root of my conclusion is the fact that you decided to make your criticisms and conclusions publicly rather than maintaining the confidences of your clients.

I anticipate that [the Virginia Retirement System] will continue to need independent counsel in the roles described above until such time as the conflicts between your office and [the Virginia Retirement System] have abated and your office will once again be able to provide legal representation to [the Virginia Retirement System], I anticipate that that period will run at least until the termination of [certain] litigation, but I will be glad to revisit the issue at such earlier time as you may suggest.

The Attorney General initiated the present action by filing a bill of complaint against the Governor. The Attorney General sought, among other things, a declaration that Code § 2.1-122 does not authorize the Governor to appoint special counsel to provide comprehensive legal services to the Virginia Retirement System. The Governor filed responsive pleadings and asserted that his appointment of special counsel is consistent with and authorized by Code §§2.1-121 and 2.1-122.

Code § 2.1-121 states, in relevant part:

All legal service in civil matters for the Commonwealth, the Governor and every state department, institution, division, commission, board, bureau, agency, entity, official, court or judge, including the conduct of all civil litigation in which any of them are interested, shall be rendered and performed by the Attorney General, except as hereinafter provided in this chapter and except for any litigation concerning a justice or judge initiated by the Judicial Inquiry and Review Commission. No regular counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity or official.

Code § 2.1-122 states, in relevant part:

No special counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, official, justice of the Supreme Court, or judge of any circuit court or district court except in the following cases:

(a) Where because of the nature of the service to be performed, the Attorney General’s office is unable to render same, the Governor after issuing an exemption order stating with particularity the facts and reasons upon which he bases his conclusion that the Attorney General’s office is unable to render such service, may employ special counsel to render such service as the Governor may deem necessary and proper.

The trial court conducted a hearing and issued a decree that the Governor’s letters dated December 10, 1992 and December 21, 1992 “reflect and demonstrate his intention to replace the Office of the Attorney General as ‘regular counsel’ for the Virginia Retirement System, in conflict with [Code §] 2.1-121” and that Code § 2.1-122(a) does not authorize the Governor to replace the Office of the Attorney General as regular counsel for a state agency. We awarded the Governor an appeal.

The Governor contends that Code § 2.1-122(a) permits him to appoint special counsel if he issues an exemption order that states with particularity the facts and reasons upon which he bases his conclusion that the Office of the Attorney General is unable to provide legal services to a state agency. The Governor asserts that his powers conferred by Code § 2.1-122(a) are not substantively limited, except by the arbitrary and capricious standard applied in the course of judicial review.

The Attorney General argues, however, that the trial court made a finding of fact “that the Governor acted to employ counsel to replace the Office of the Attorney General as counsel for the [Virginia Retirement System] ‘in all representative capacities’ ” and that this factual finding is binding on appeal. Furthermore, the Attorney General argues that the appointment of counsel to act in all representative capacities constitutes the appointment of regular counsel that is prohibited by Code § 2.1-121.

Contrary to the assertions of the Attorney General, the trial court’s “finding” that the Governor appointed regular counsel is not merely a finding of fact, but a mixed question of law and fact, and, therefore, is not binding on this Court. See Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 95, 294 S.E.2d 840, 841 (1982); Clinchfield Carbocoal Corp. v. Kiser, 139 Va. 451, 456, 124 S.E. 271, 273 (1924). Consistent with the Attorney General’s assertions, however, we do not resort to the rules of statutory interpretation where, as here, language contained in a statute is free from ambiguity. Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990); Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987). Thus, we will look at the plain language contained in Code §§ 2.1-121 and 2.1-122 and apply the language contained therein.

Code § 2.1-121 prohibits the Governor, state agencies, entities, and officials from employing “regular counsel.” However, Code § 2.1-122(a) confers a grant of power upon the Governor to employ “special counsel” in certain limited instances. The Governor may only exercise this grant of power when, because of the nature of the legal services to be performed, the Office of the Attorney General is “unable” to perform those legal services. As a condition of the exercise of this grant of power, the Governor is required to issue an exemption order that states, with particularity, the facts and reasons underlying his decision that the Office of the Attorney General is unable to render legal services.

In his letters dated December 10, 1992 and December 21, 1992, the Governor asserted that “there has been a breakdown of the attorney-client relationship” between the Office of the Attorney General and the Virginia Retirement System which, in the Governor’s judgment, rendered the Office of the Attorney General unable to provide effective legal representation to that agency. The Governor also was of opinion that a conflict of interests existed that would impair the ability of the Office of the Attorney General to represent the Virginia Retirement System. Therefore, the Governor appointed certain private attorneys to act as special counsel who would provide general representation to the Virginia Retirement System “until such time as the conflicts between [the Office of the Attorney General and the Virginia Retirement System] have abated.” Additionally, the Governor stated that special counsel would probably be employed until the termination of certain litigation, but he would “be glad to revisit the issue at such earlier time as [the Attorney General] may suggest.”

We hold that under the facts and circumstances of this case, the Governor’s appointment of “special counsel” did not contravene Code § 2.1-122(a). The plain import of the term “special counsel” is counsel independent of the Office of the Attorney General. The scope of the appointment of special counsel must, however, be limited by objective parameters specified within the Governor’s exemption order because such appointment must not conflict with Code § 2.1-121, which prohibits the appointment of regular counsel. Here, even though the special counsel appointed by the Governor will provide comprehensive legal services to the Virginia Retirement System, the scope of the appointment is limited in duration until such time that the purported conflict of interests abates.

We recognize that the Attorney General vigorously disputes the existence of any conflict of interests between her office and the Virginia Retirement System. However, in this instance, it is not the province of the judicial branch of government to question the motives or judgment of the head of the executive branch. Rather, our inquiry is limited to whether the Governor exceeded the scope of authority vested in his office by Code § 2.1-122(a) and whether, in the exercise of that grant of power, the Governor’s acts were arbitrary and capricious. Under the specific facts and circumstances of this case, as delineated with the required particularity in the Governor’s letters to the Attorney General, we hold that the Governor’s acts were not arbitrary and capricious.

The Attorney General argues that, as a matter of law, the Office of the Attorney General was not “unable” to render legal services to the Virginia Retirement System. The Attorney General says that the Governor relied upon “potential for conflicts; lack of faith in the possibilities for objective [legal] representation; and breakdown of the attorney-client relationship” to support his conclusion that the Office of the Attorney General was “unable” to serve as counsel to the Virginia Retirement System. The Attorney General states that the word “unable” does not encompass any of these reasons because “unable” and “conflict of interests” are mutually exclusive terms under subsection (d) of Code § 2.1-122, which provides:

In cases where the Attorney General certifies to the Governor that it would be improper for the Attorney General’s office to render legal services due to a conflict of interests, or that he is unable to render certain legal services, the Governor may employ special counsel or other assistance to render such services as may be necessary.

Thus, she argues, “unable” in Code § 2.1-122(a) cannot include a conflict of interests because “unable” in Code § 2.1-122(d) excludes “conflict of interests,” and the meaning of “unable” must be the same in each subsection.

We disagree with the Attorney General’s assertions. The Attorney General’s analysis is premised upon phrases that are used in different contexts, and in different statutory provisions, which prescribe separate and distinct limited grants of power to the Governor. The exercise of the powers in Code § 2.1-122(a) is initiated by the Governor whereas the exercise of the powers in Code § 2.1-122(d) is initiated by certification of the Attorney General. In Code § 2.1-122(a), the word “unable” is part of a phrase that refers to “the nature of the service to be performed” by the special counsel and permits consideration by the Governor of conflict of interests. However, the word “unable” in Code § 2.1-122(d) is narrower in scope and deals merely with “certain legal services,” the subject of conflict of interests having already been covered in the first clause of that subsection. Accordingly, we reject the Attorney General’s contention that the word “unable” and the phrase “conflict of interests” are mutually exclusive in Code § 2.1-122.

Finally, we find no merit in the Attorney General’s argument that Code § 2.1-122(a) may be unconstitutional because, she contends, it “permits a governor to remove duties and powers from an attorney general and to assume those same powers himself.” Initially, we observe that even though the Attorney General asserts that Code § 2.1-122(a) may be unconstitutional, she fails to identify the specific constitutional provision that she claims may be implicated.

Article V, § 15 of the Constitution of Virginia unequivocally permits the General Assembly to prescribe the duties of the Attorney General and the General Assembly did so by its enactment of statutes such as Code § 2.1-121. Contrary to the assertion of the Attorney General, the Governor did not remove her from office when he exercised the limited grant of power conferred upon him by Code § 2.1-122(a). Rather, utilizing that grant of power, he appointed special counsel to represent an agency of the Commonwealth because, in his judgment, the Attorney General was unable to act.

In view of our holding that Code § 2.1-122(a) authorizes the Governor to appoint special counsel to provide general representation to the Virginia Retirement System in this case, we need not consider the remaining assignments of error. Accordingly, we will reverse the judgment of the trial court and dismiss the bill of complaint.

Reversed and dismissed.