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Official Opinions

 

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Commonwealth of Virginia
Office of the Attorney General

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For media inquiries only, contact:  
Michael Kelly, Director of Communications
Phone: (804)786-5874 
Email: mkelly@oag.state.va.us

HERRING MARKS FIRST 100 DAYS IN OFFICE

~ Takes action to protect rights of Virginians and modernize Office of the Attorney General ~

RICHMOND--Today marks 100 days since Mark R. Herring was sworn in as Virginia's 48th Attorney General. In that time, the office has continued to serve the people of Virginia by providing high-quality and timely legal advice and representation to state government, by investigating and advising the public of scams and predatory business practices, and by working to ensure justice in the prosecution and appeals processes, particularly in drug crimes and child exploitation cases.

"Working together, we have hit the ground running to provide greater opportunity for all Virginians, promote equality, protect our shared assets, work in a bipartisan way on legislation to make Virginia more secure, and restore trust in the public sector," Attorney General Herring said. "I've heard directly from public safety and elected officials all across the Commonwealth about critical, emerging issues we can help address. I'm proud of the work we have done and look forward to tackling the challenges that lie ahead."

In addition to maintaining the core functions of the office, below are some of the more noteworthy initiatives undertaken in these first 100 days:

Installed a new ethics policy in the Office of the Attorney General--On the day he was sworn in, Attorney General Herring announced a new ethics policy that applies to all employees of the Office of Attorney General, including the Attorney General himself. The policy prohibits employees of the Office of Attorney General from soliciting or accepting any gift over $100 in value, with no distinction between tangible and intangible gifts, with common sense exceptions like gifts from family members and personal friends. The policy conforms closely to the executive order signed by Governor McAuliffe. 

Defended the right of all Virginia couples to marry--Attorney General Herring exercised his power to set the Commonwealth's legal position in Bostic vs. Rainey, arguing that, in light of the most recent and powerful judicial guidance, Virginia's same-sex marriage ban violates the Due Process and Equal Protection Clauses of the 14th Amendment. The U.S. District Court for the Eastern District of Virginia agreed with his analysis, ruling on February 13 that Virginia's statutory and constitutional bans on marriage for same-sex couples were in violation of the U.S. Constitution. He continues to defend the rights of Virginians to marry while the case advances with both sides vigorously arguing for and against the constitutionality of the ban.

Conducted an unprecedented public safety tour--In March, Attorney General Herring held a two week public safety tour during which he traveled more than 2,500 miles to hold 22 regional meetings with representatives from more than 60 cities, counties, and towns in every corner of the state. Along the way he heard from local public safety and law enforcement leaders and local elected officials about unique challenges in their area and ways that he can help protect our communities. Many mayors and sheriffs said they could not recall an Attorney General ever coming to their community to solicit ideas in this way, including a Republican Sheriff in the northern Shenandoah Valley who said "it's the first time I've ever been sought out by an attorney general asking my opinion, and I think that's commendable."

Defended Virginia's Chesapeake Bay cleanup plan-- On April 9, Attorney General Herring filed an amicus brief to protect Virginia's efforts to restore the Chesapeake Bay and to defend the right of Virginia and other Bay states to work together to protect and restore the Bay, making Virginia the first Bay state to defend the restoration plan in the case that is currently challenging it. The brief lays out the economic, environmental, and historic reasons Virginia is compelled to weigh in on the case and the reasons that the long history of cooperation between Bay states should be honored.

Ended Bob McDonnell's taxpayer funded lawyers--In one of his first actions after being sworn in, Attorney General Herring protected Virginia taxpayers by terminating the contracts with two law firms who had been representing former Governor McDonnell and his office. The outside counsel contracts were entered into because of a conflict held by the prior attorney general which was rendered moot with the changing of administration.

Launched a top to bottom review of the operations of the Office of Attorney General-- In February, Attorney General Herring created a three-member review panel charged with identifying reforms and efficiencies within the Office of the Attorney General that advance his priority of delivering high-quality, timely, and cost-effective legal work to the people of Virginia and their state government. The primary goal of the panel is to ensure that the Office of the Attorney General is operated in a manner befitting a modern, major law firm representing the interests of the people of Virginia. It includes Bill Leighty, contributing extensive state government experience, W. Taylor Revely, III, contributing large law firm management experience, and Katherine Busser, offering the perspective of efficient business governance and operations to the review. The panel is currently working to evaluate and generate recommendations related to the budget and finances of the office, execution of the office's duties and responsibilities under the Freedom of Information Act and the Conflict of Interest Act, use of outside counsel and information technology infrastructure.

Updated a decades old policy regarding free speech at Virginia community colleges-- Attorney General Herring's administration rewrote the speech policy for the Virginia Community College System to address First Amendment concerns and ensure the fair and free expression of ideas on Virginia's community college campuses.

Won passage of important public safety and consumer protection legislation--The General Assembly passed a number of public safety and consumer protection bills that were introduced on behalf of the Attorney General or which the Office of the Attorney General helped craft and pass. In addition to these bills, which were sponsored and passed in a bipartisan fashion, the Attorney General's office was extremely active throughout the legislative process, reviewing thousands of bills and working as requested with legislators in both houses to provide legal advice on dozens more bills.

Attorney General's bills included:

SB640, Witness Confidentiality (Howell)
This bill will make witnesses of drug-related crimes and violent felonies eligible for important protections, including the ability to keep identifying and contact information confidential during court proceedings. The Office of the Attorney General's Division of Public Safety and Enforcement drafted the bill and brought it to the General Assembly based on feedback from Commonwealth's Attorneys who have had difficulty getting witnesses to testify because of fear of reprisal. This bill was supported by a broad coalition of public safety advocates including the Virginia Association of Commonwealth's Attorneys, Fraternal Order of Police, Chiefs of Police Association, Virginia Sexual and Domestic Violence Action Alliance, Virginia Network for Victims & Witnesses of Crime, and Protect.org.

HB 1233, Address Confidentiality (Toscano)
This bill, drafted by Attorney General's office and introduced on his behalf, extends the Address Confidentiality Program to victims of stalking. As with victims of domestic violence, protecting residential address information can be critical for the safety of victims of stalking who move to addresses unknown to their perpetrators.  This legislation allows victims to protect their residential address from public disclosure when applying for services from state and local agencies.

SB150 (Stuart)/HB 375 (O'Quinn) Patent trolling
These identical bills are compromise legislation crafted by the Office of Attorney General Herring to protect Virginia businesses from "patent trolling." These bad faith claims of patent infringement force businesses, including many small businesses, to choose between paying exorbitant and unjustified license fees or fighting the claim through costly litigation. The bills enjoy the support of a broad, bipartisan coalition including the Northern Virginia Technology Council, Virginia Chamber, Fairfax County Chamber of Commerce, Virginia Bankers Association, Virginia Retail Association, and Virginia Hospitality and Travel Association. The bills establish criteria for determining that a patent infringement claim is being made in bad faith, a practice that costs the United States' economy as much as $29 billion per year, according to a recent study. Those criteria include issuing a letter claiming infringement which includes false statements, does not identify the patent holder, or fails to specify how the target is infringing, demanding an unreasonable license fee, or reasserting infringement claims that have previously been declared baseless by a court.

SB42, Elimination of Fox Penning (Marsden)
This bill was a compromise brokered by the office of Attorney General Mark R. Herring which will limit and eventually phase out fox-penning in Virginia, a practice in which wild foxes are trapped, confined, and hunted by dogs for purposes of training, or in some cases, sport, competition, and gambling. After years of legislative stalemate on the issue, the Office of the Attorney General, working on behalf of its client agencies, the Department of Game and Inland Fisheries and the Secretary of Natural Resources, developed amendments to SB42, sponsored by Senator Dave Marsden, which will address questions regarding the legality of current operations and enact a moratorium on any new facilities. The bill establishes an annual statewide cap of 900 animals that can be confined in the state's 36 operating pens. Facilities will be allowed a limited number of animals according to their size, but as facilities close, their allotment will be removed from the statewide cap. No new facilities will be permitted and facilities currently in operation can operate for a maximum of 40 more years.

HB 1112, Synthetic/Analog Drugs (Garrett)
Attorney General Herring carried the original synthetic/analog drug bill as a state senator. This bill was developed with assistance from the Attorney General's office to give prosecutors and law enforcement officials more tools to keep dangerous synthetic drugs off the streets and away from young people. The bill updates some definitions based on the latest chemistry, makes selling or distributing these substances a class 5 rather than class 6 felony, and establishes a faster process for the Board of Pharmacy to add designer drugs to the controlled substances schedule so that they can respond more quickly to emerging threats.

SB503(Ebbin)/HB492 (Albo) Regulating notaries
The Attorney General's office worked with patrons on this legislation which will prohibit a notary public from offering or providing legal advice to any person in immigration matters or representing any person in immigration proceedings unless such notary public is an attorney or a federally accredited representative. Notaries engaged in non-English advertising will have to include in such advertising, as well as post within their place of business, a statement that the notary is not licensed to practice law and has no authority to give advice on immigration or other legal matters. The bill also provides for civil penalties and revocation of the notary commission for failing to include the required statements and postings.

HB403, Admissibility of prior offenses during prosecution of child sex crimes (Bell)
Attorney General Herring had previously introduced this legislation as a state senator. This bill, which was developed with and advocated for by the Office of the Attorney General, provides that in a criminal case in which the defendant is accused of a felony sexual offense involving a child victim, evidence of the defendant's conviction of another sexual offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant. This rule of evidence is to be applied in conjunction with the Virginia Rules of Evidence.

HB1248, Self authentication of 911 phone calls (Surovell)
This bill, introduced at the request of Attorney General Herring's public safety staff, will make it easier to admit 911 calls in criminal proceedings. As long as the recording is authenticated by the custodian of the record, such as an emergency communications center manager, it will be considered admissible in court, similar to the way a toxicology or autopsy report is handled. The current rules require a complex and burdensome process for authenticating and admitting 911 calls. The bill has support from the Fraternal Order of Police, many emergency managers, and the Virginia Association of Commonwealth's Attorneys.

HB439, Updates to the Fraud and Abuse Whistle Blower Protection Act (LeMunyon)
Attorneys from the Office of the Attorney General created this bill to conform Virginia law with federal law and ensure the Commonwealth recovers as much money as possible during action under the Fraud Against Taxpayer Act.

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