Following the enactment of the controversial immigration law in Arizona last week, Virginia Attorney General Ken Cuccinelli has ruled that state law enforcement offers are permitted to check the immigration status of anyone who is “stopped or arrested”.
At a news conference on Monday, Cuccinelli (R) said, “Our opinion basically said that Virginia law enforcement has the authority to make such inquiries so long they don’t extend the duration of a stop by any significant degree”.
He added that he believed his decision was, “consistent with Supreme Court authority.”
Cuccinelli issued the opinion in response to a question from State Del. Robert G. Marshall (R) of Prince William County who had asked for clarification on whether or not police and other types of law enforcement officials could ask about legal status when stopping someone. Prince William County already has implemented a local ordinance that requires police to check the immigration status only of persons they arrest, not everyone they come in legal contact with.
Marshall sought the ruling from the Republican AG because he did not believe the State Senate, under Democratic control, would allow legislation on this issue to pass since similar measures have failed in recent years.
Senate Majority Leader Richard L. Saslaw (D-Fairfax) said he predicts that these types of ordinances will be challenged in court as was the case with the Arizona law.
Last week, one day prior to the law going into effect, a federal judge that blocked Arizona from implementing a provision that would require law enforcement officers to check the immigration status of anyone they stop and suspect is residing in the country illegally.
According to the Pew Hispanic Center, between 275,000 and 325,000 undocumented immigrants reside in Virginia.
As a resident of Virginia, I am scared. We cannot be the next ARIZONA!
This is a backward move. Cuccinelli is a radical.
I received the following information in an email today from Claire Guthrie Gastanaga:
An AG’s opinion does not have the force of law. Moreover, it is in direct conflict with the federal court ruling in Arizona.
This unattributed statement from the Post Virginia Politics blog today is an overstatement to say the least:
“In Virginia, official opinions of the attorney general are considered law unless a judge disagrees with the legal analysis after an opinion has been challenged in court.”
AG’s opinions are entitled to deference in a court of law when a judge is interpreting a state statute, but in no way are they considered “law” and a judge may decide not to grant the opinion any deference at all. The one exception in Virginia is AG’s opinions on conflicts law, which by statute, someone can rely on absolutely. Folks hold “official opinions” up to say what the law is, but in no way do they have the force of a statute, a regulation or a court ruling. In this case, since he’s interpreting federal law, and issuing an opinion after a federal judge has already rejected his opinion, it would be foolhardy for anyone to rely on the opinion as authoritative, much less treat it as settled law.
Here’s how the Minnesota AG describes the import of an AG’s opinion:
While these opinions do not generally have legally binding effect as would a court decision, they are helpful in guiding the actions of public officials and are often accorded substantial deference by the courts.
Here’s a Md AG memo about some folks who relied on an AG opinion to their detriment:http://www.oag.state.md.us/Courts/1995/1995_12_18.pdf
Here’s an interesting fair housing case from North Dakota http://www.court.state.nd.us/court/opinions/20000130.htm that includes this citation, in deciding a question about whether it is a civil rights violation to refuse to rent to unmarried couples:
Attorney general’s opinions and federal court decisions are given deference if they are persuasive. Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 47, 598 N.W.2d 820.
So to say such opinions are considered “law” unless set aside is to raise the hopes of those who would wish it so and create unnecessary concern among those who are concerned about the approach to law enforcement the AG is advocating.
This is something we need to reinforce with everyone we talk with!
Claire
http://www.blogger.com/profile/17911593051798008011
Thanks Marisa for sharing. I guess are we jumping the gun then?