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Legal Opinions
Frequently Asked Questions
- Who may request an Attorney General's opinion?
- What is the process for requesting an opinion?
- How significant are the Attorney General's opinions?
- Are Attorney General's opinions public?
- What do Attorney General's opinions address?
- Will opinions be provided on conflict-of-interest questions?
- Will opinions be issued interpreting local laws?
- Are opinions issued on pending legislation or proposed constitutional amendments?
- Will opinions be issued on legal questions involving pending litigation?
- How long does it take to write an Attorney General's opinion?
- How do I submit my views concerning questions that had been submitted to the Attorney General for an opinion?
- How can I receive a copy of an Attorney General's opinion?
- What is Quo Warranto?
- Who may request an Attorney General's opinion?
The California Constitution and state law designate the state and local public officers who may request a legal opinion from the Attorney General on any question of law relating to their respective offices. However, this does not authorize a designated officer to request an opinion on a question posed by someone else. A request will be declined when it is apparent that the request is made on behalf of someone not authorized by Government Code section 12519. Those who may request an Attorney General's opinion are:
Constitutional Officers. Attorney General's opinions are provided to the state's constitutional officers - governor, lieutenant governor, secretary of state, controller, treasurer, state superintendent of public instruction, and insurance commissioner.
Legislators. Government Code section 12519 states that opinions shall be provided to "any Member of the Legislature." This language does not include legislative committees or their consultants.
State Agencies. Government Code section 12519 states that opinions shall be provided to "any state agency." The Attorney General has traditionally provided legal opinions to all state departments, agencies, boards and commissions, including those with staff counsel. However, requests for opinions from those having full time staff counsel must be accompanied by the legal analysis and conclusions of staff counsel with respect to the questions presented.
State Boards or Commissions. An opinion request from a board or commission must indicate that the request has been authorized by a majority vote of the board or commission. Opinion requests from individual members of a board or commission will be declined.
District Attorneys, County Counsels, and Sheriffs. All counties have access to Attorney General's opinions with respect to the laws relating to civil and criminal law. Requests from a sheriff must be accompanied by the legal analysis and conclusions of the district attorney or county counsel with respect to the questions presented.
City Prosecutors. Government Code section 12519 states that opinions shall be provided to "a city prosecuting attorney when requested, upon any question of law relating to criminal matters." This provision is limited to those city offices which actually prosecute misdemeanor cases arising in the city. It does not authorize opinions for city attorneys who do not prosecute criminal cases nor for city prosecutors on civil law questions.
Judges. The California Supreme Court and Court of Appeal are state agencies authorized to request opinions. Such requests should come from the court at the request of the chief justice or a presiding justice or, as is usually the case, be submitted by the Administrative Office of the Courts. However, Government Code section 12519 does not indicate whether other courts are state agencies authorized to request opinions. This ambiguity was resolved by Government Code section 27647 which authorizes the county counsel to represent the judges of the superior court in the county "in all matters and questions of law pertaining to any of such judge's duties." This evidences the Legislature's intent that advising trial judges is the responsibility of local public counsel.
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- What is the process for requesting an opinion?
Eligible public officials and governmental agencies should submit their legal questions to the Attorney General's Opinion Unit, P.O.Box 944255, Sacramento, CA 94244-2550. An opinion request should be signed by the public official, principal officer or head of the agency authorized to make the request. If the request is made by a deputy or assistant, inquiry will be made to verify that it was authorized by the principal and the opinion will issue to the principal officer, not to the deputy or assistant.
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- How significant are the Attorney General's opinions?
Courts have referred to the Attorney General's opinions in several ways, including:
"Although an official interpretation of a statute by the Attorney General is not controlling, it is entitled to great respect." (Thorning v. Hollister School Dist. (1992) 11 Cal.App.4th 1598, 1604.)
"Opinions of the Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive 'since the legislature is presumed to be cognizant of that construction of the statute.' [Citation.] " (Napa Valley Educators' Assn. v. Napa Valley Unified School Dist.(1987) 194 Cal.App.3rd 243, 251.)
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- Are Attorney General's opinions public?
All formal opinions issued by the Attorney General are open to public inspection under the Public Records Act and most are published. The Attorney General may provide informal advice and confidential opinions to state public officials regarding pending or anticipated litigation that the Attorney General is likely to handle on behalf of that public official.
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- What do Attorney General's opinions address?
Government Code section 12519 states that opinions shall be provided on "questions of law." Thus requests for opinions to resolve factual disputes or to resolve conflicting inferences which may arise from certain facts will be declined.
The Attorney General has long followed the practice of rephrasing the questions presented. This is done not only to assure a response that will properly address the legal problem confronted by the requester, but also to sufficiently define the circumstances so that an opinion response based on precise legal analysis may be made. To that end the requester will often be contacted for more particulars of the problem. However, the Attorney General's office will not conduct surveys or make investigations to ascertain the facts needed to properly frame a question for legal analysis.
If the law requires a public officer to be a lawyer or the office is provided with full time staff counsel, that lawyer has the primary responsibility for resolving the legal issues which relate to that office. The legislative authorization for such an officer to request an opinion from the Attorney General was intended as a means of reviewing the exercise of that primary responsibility at the officer's request, not as a replacement for it. This is the rationale which underlies the longstanding practice that an opinion request from an officer who must be an attorney or who has full time staff counsel will be declined unless it is accompanied by the legal conclusions, supported by a full legal analysis, prepared by such counsel.
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- Will opinions be provided on conflict-of-interest questions?
The Attorney General normally recommends that opinion requests concerning conflict-of-interest questions arising from the Political Reform Act of 1974 (Gov. Code, §§ 81000-91015) be directed to the Fair Political Practices Commission, which administers the act. A public official may rely on the commission's opinion as a defense in enforcement actions regarding the requirements of the Political Reform Act.
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- Will opinions be issued interpreting local laws?
The Attorney General declines opinions requests calling for interpretation of local charters, ordinances, resolutions, regulations or rules. Since these measures have no application outside the local jurisdiction there is no need to review local counsel's interpretations for statewide uniformity, the principal purpose of providing Attorney General's opinions to local counsel. Further, since the principal responsibility for interpreting and enforcing local measures rests with local counsel, opinions which might conflict with the views of local counsel would hinder rather than aid the enforcement of such local laws.
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- Are opinions issued on pending legislation or proposed constitutional amendments?
Sometimes an opinion request concerns proposed legislation or constitutional amendments. Providing opinions on pending bills would involve the Attorney General in the bill drafting process, a function the law specifically assigns to the Office of Legislative Counsel. Providing opinions on proposed constitutional amendments might inappropriately interfere with the election process. For these reasons the Attorney General's office has traditionally declined opinion requests regarding the validity or interpretation of proposed legislation or constitutional amendments prior to their enactment.
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- Will opinions be issued on legal questions involving pending litigation?
The Attorney General's office has traditionally declined to provide opinions on legal questions that are before a court or an administrative proceeding. First, resolution of the litigation will often provide the answer to the question. More significantly, the issuance of an Attorney General's opinion while litigation is pending on the issue might be considered as an attempt to interfere with or influence the litigation. When the Attorney General's office becomes aware of the litigation, the assignment to prepare the opinion will be cancelled.
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- How long does it take to write an Attorney General's opinion?
It generally takes four to six months to write an opinion.
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- How do I submit my views concerning questions that had been submitted to the Attorney General for an opinion?
Send your letter to the Opinion Unit at the address presented below. We will need the opinion number referenced on the letter.
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- How can I receive a copy of an Attorney General's opinion?
You can write or call the Opinion Unit at the following:
Office of the Attorney General
Opinion Unit, Attn. Patricia Freeman
P. O. Box 944255
Sacramento, CA 94244-2550
(916) 324-5172
e-mail: Patti.Freeman@doj.ca.gov
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- What is Quo Warranto?
Typically a quo warranto action is filed to remove a person from public office. For example, if a public officer moves out of the locality and no longer qualifies to hold his or her office, a quo warranto action may be maintained to declare the office vacant. The Attorney General must approve all quo warranto actions filed by private individuals. This protects public officers from frivolous lawsuits. The Opinion Unit reviews the written pleadings filed by the parties and issues an opinion either granting or denying the application to sue. If approval is given, the lawsuit is maintained under the direction of the Attorney General.
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