Chapter 5

Opinions

By Emily Myers, Antitrust Chief Counsel, NAAG

Providing legal opinions to government officials was one of the original functions of the office of attorney general1 and it remains a key function today. The Illinois Supreme Court has held that the attorney general's opinion writing function is an inherent part of the attorney general's duty to represent public bodies. 2 It is such an important aspect of the offices’ duties that many state statutes and office policies are devoted to the issuance of opinions. Although each state attorney general issues opinions, no two offices do so in exactly the same way. Statutes, policies and procedures vary from state to state, although there are many common features.

Attorney General Opinions and Their Purpose

Most public officials are not lawyers. Sometimes it is difficult to determine the meaning of a law without the application of legal training. Attorney general offices provide legal opinions to their clients every day in a variety of ways. Oral advice is given through telephone calls or meetings between a state agency employee and a lawyer in the attorney general’s office. Letters and memoranda containing legal advice are written to client agencies or officials. That advice may be privileged, and typically is not disclosed publicly.3

Advice is also given in more formal written opinions prepared by and reviewed by attorneys in the office, including the attorney general, through an established process. These are the opinions commonly known as Attorney General Opinions, which have the

1 Heiser, Jr., The Opinion Writing Function of Attorneys General, 18 IDAHO L. REV. 10 (1982).

2 Illinois Education Association v. Illinois State Board of Education, 204 Ill. 2d 456, 466, 791 N.E.2d 522, 529 (Ill. 2003).

3 See, e.g., Error! Main Document Only.Paff v. Division of Law, 988 A.2d 1239

(N.J. Super. 2010) (unpublished Administrative Agency Advice (AAA) letters issued by the New Jersey attorney general which interpret the statutes and regulations the attorney general’s administrative agency clients are required to apply and enforce are not disclosable government records for purposes of the state open records act because they are protected by the attorney-client privilege.)

authority of the office behind them.4

Formal written legal opinions of the attorney general answer questions of law from state agencies or officials. Generally these questions are about the agency’s or official’s legal duties. Often the question is posed simply because an answer is needed in order to determine a future course of action. For example, there may be disagreements within the agency about the course of action required by law due to the ambiguity of a statute.5 Policy choices have to be made and advice on the legality of those choices is desired. Sometimes the question is asked not because the answer is unclear but because the clear answer is unpopular. The agency or official wants the “cover” of legal support from the state’s chief legal officer for the agency’s action.

Guidelines for Issuing Opinions

All states have some guidelines for issuing opinions. Most include the following:

Appropriate requester. Many statutes governing opinions state that the opinions are rendered to state officials. Some also require the attorney general to provide opinions to certain local officials.6 Some

4 Some attorney general offices also issue informal opinions, which are more formal than client advice, but less so than a formal opinion.

5 See, e.g., Anonymous v. Delaware, 2000 Del. Ch. LEXIS 84 (Del. Ch. 2000) (attorney general opinion that statute was unconstitutional was basis for plaintiff’s suit seeking declaratory judgment).

6 For example, Mississippi statutes require the attorney general to provide opinions to a long list of officials: “to the Legislature, or either house or any committee thereof, and to the Governor, the Secretary of State, the Auditor of Public Accounts, the State Treasurer, the Superintendent of Public Education, the Insurance Commissioner, the Commissioner of Agriculture and Commerce, the State Geologist, the State Librarian, the Director of Archives and History, the Adjutant General, the State Board of Health, the Commissioner of Corrections, the Public Service Commission, Chairman of the State Tax Commission, the State Forestry Commission, the Transportation Commission, and any other state officer, department or commission operating under the law, or which may be hereafter created; the trustees and heads of any state institution, the trustees and heads of the universities and the state colleges, the district attorneys, the boards of supervisors of the several counties, the sheriffs, the chancery clerks, the circuit clerks, the superintendents of education, the tax assessors, county surveyors, the county attorneys, the attorneys for the boards of supervisors, mayor or council or board of aldermen of any municipality of  this  state,  and  all  other  county  officers  (and  no  others),”MISS.  CODE  ANN.

§ 7-5-25; ALA. CODE §36-15-1 (attorney general to give opinions to “certain enumerated local, county, and municipal officials and bodies”); FL. STAT. §16.01 (attorney general may in his discretion give opinion to “officer of a county, municipality, other unit of local government, or political subdivision”). But see 29 DEL.C. §2504 (attorney general to provide legal advice, counsel and services for

expressly state that opinions are not to be rendered to private persons.

Appropriate topic. Despite a lack of exceptions in the statutes, most offices have determined that the subject of the request must be one which is appropriate to discuss in an opinion. Common topics deemed inappropriate by many offices include: issues in litigation before a court or administrative tribunal7; issues that are not really legal issues but rather matters of policy; issues involving the interpretation of a local ordinance; hypothetical issues; issues unrelated to the requester’s duties; and moot issues.8

Writing. Requests for opinions must typically be in writing.9

The Opinion Process

When an opinion request has been received and it has been determined that the office should answer it, the opinion is assigned to the appropriate division in the office. The assignment depends on how opinion writing is handled within the particular attorney general’s office. Some offices take a decentralized approach under which the opinion is assigned to a division of the office that handles the substantive area at issue. The supervisor of the division then assigns it to an attorney for preparation. Other offices centralize the preparation of opinions in a unit or division to which all opinion requests are assigned no matter the topic. Each approach has advantages and disadvantages. The decentralized approach assigns opinions to attorneys who are already familiar with the area of law involved in the opinion. Although this specialization enables the attorney to prepare the opinion more efficiently, the attorney must also deal with litigation deadlines and other matters that often take precedence over preparation of an opinion. The centralized approach reduces the likelihood that the attorney will be diverted to other litigation or projects. The attorneys in the opinion unit become particularly adept at research and writing. On the other hand, the attorney must often deal with unfamiliar subject

administrative offices, agencies, departments, boards, commissions and officers of the state government; courts, counties and incorporated municipalities specifically excepted).

7 Under Mississippi law, the attorney general may not issue an opinion on a matter in litigation. MISS. CODE ANN. § 7-5-2.

8 For example, the Illinois attorney general’s office has a Policy Relating to Written Opinions, which states that no opinion will be issued “regarding the exercise of executive judgment or discretion nor on questions of fact,” nor where the question is scheduled for determination by the courts. Statement of Policy of the Illinois Attorney General Relating to Furnishing Written Opinions (March 29, 1962).

9 But see, GA. CODE ANN. § 45-15-3 (opinions “in writing, or otherwise”)

areas and therefore spend more time researching than would an attorney specializing in the area.

The research conducted for an opinion depends on the question asked. It may be as simple as locating a statute that answers the question. However, complicated questions can involve case law from other states, state or federal legislative history or even historical research concerning state constitutional provisions. Generally research begins with an examination of prior opinions. This review helps the researcher find statutes and case law as well as ensuring that whatever is finally written does not contradict prior opinions unless the intent is to overrule them. Attorney general’s offices do occasionally overrule prior opinions, usually when subsequent statutes or case law affects the reasoning or result of the opinion.

Many offices have time limits within which a draft of the opinion must be ready for review. Most time limits are internal guidelines. Montana’s statute, for example, states: “The attorney general shall give the opinion within 3 months following the date that it is requested unless the attorney general certifies in writing to the requesting party that the question is of sufficient complexity to require additional time.”10 Texas law contains a 180 day period for issuing  the opinion unless the requesting party is notified it will be delayed or not rendered and the reason.11 Tennessee law requires that questions from legislators concerning pending legislation be answered as expeditiously as possible.12

The review process is different in each office, but typically the draft is reviewed by the supervisor of the preparer. Then the draft may go for further review to an opinion review committee or it may proceed on to the chief deputy and/or solicitor general. The draft may be edited or returned to the assistant attorney general for more research and revision at any step along this process. The final reviewer is the attorney general. Once the attorney general has approved it, the opinion is ready for issuance and distribution.

The distribution and maintenance of attorney general opinions is different in each state. Idaho law, for example, requires a copy of the opinions be furnished to the state supreme court and the state librarian.13 North Dakota and Washington are expressly required to

10 MONT. CODE ANN. § 2-15-501(7).

11 TEX. GOV’T CODE ANN. § 402.042(c)(2).

12 TENN. CODE ANN. § 8-6-109(b)(6).

13 IDAHO CODE § 67-1401(6).

keep books in which all official opinions are recorded,14 And the Illinois attorney general must keep official opinions issued and deliver them to his or her successor.15 All attorneys general keep copies of their opinions for their own reference. Some states are statutorily required to make their opinions open to public inspection.16 All state attorneys general now place their opinions on their office web sites.

Legal Effect of Attorney General Opinions

The legal effect of an attorney general’s opinion upon the recipient varies from state to state. The general rule seems to be that the recipient “is free to follow it or not as he or she chooses.”17 The rationale often given is that if state officers were bound by an attorney general’s opinion, “any executive office of the state could be controlled by the opinion of the attorney general specifying what the law requires to be done in that office.”18 This rationale, however, does not prevail in every state. States that take the opposite view stress the fact that the attorney general is the chief legal officer of the state and the legal adviser for state officers and agencies. In State ex rel. Johnson v. Baker 19 the court stated, “[I]f such officers may disregard the provision made by the legislature for obtaining advice from the attorney general on constitutional questions and presume to pass upon such questions themselves, they will supplant that officer.” After observing that many public officials are not lawyers, the Oklahoma Supreme Court held that an attorney general opinion was binding on the officials affected by it. In Grand River Dam Authority v. State20 the Court determined that “an official who has sought an opinion from the attorney general should, even though not compelled to do so by statute, follow the advice which is given to him.” A similar view is found in Cummings v. Beeler, 21 which concerned the constitutionality of a Tennessee law requiring the expenditure of funds. The attorney general of Tennessee had issued an opinion that the law was unconstitutional. The Tennessee Supreme Court did not speak in terms of whether state officials are bound by the attorney general’s opinion. Rather, the Court

14 N.D.CENT.CODE §54-12-01;WASH. REV. CODE ANN § 3.10.030(10).

15 15 ILL. COMP. STAT. 205/4(11).

16 IDAHO CODE § 67-1401(6); TENN. CODE ANN. § 8-6-109(b)(6).

17 7 AM. JUR. 2d Attorney General § 11 at 14 (1997). 18 Follmer v. State, 142 N.W. 908, 910 (Neb. 1913). 19 21 N.W.2d 355, 372 (Neb. 1945).

20   645 P.2d 1011, 1016 (Okla.1982).

21 223 S.W.2d 913 (Tenn. 1949).

spoke in terms of duty:

State officials are presumed to do their duty and we feel sure and have no hesitancy in saying that they will and do do their duty as they see it. Would it not be the duty of the Comptroller to refuse to approve these warrants when he knows that his official legal advisor has held that the act under which these warrants were to be issued was illegal, invalid and unconstitutional?22

Only a few state statutes have made the attorney general’s opinion binding on state agencies.23 In some states, acting in accord with the opinion of the attorney general grants a state official immunity. A Mississippi statute declares:

there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support.24

Similarly, the North Dakota Supreme Court has said that if officials follow the attorney general’s opinion, “they will perform their duty, and even though the opinion thus given them be later held to be erroneous, they will be protected by it. If they do not follow this course, they will be derelict to their duty and act at their peril.”25 Officers should have a right to rely on the attorney general’s opinion “as he is the officer designated by law to render such service for their guidance

22 223 S.W.2d at 916.

23 In re I/M/O Town of Harrison and Fraternal Order of Police, Lodge No. 116, 440

N.J. Super. 268 (App.Div. Apr. 15, 2015) (opinions are binding on state agencies and officers); Michigan Beer & Wine Wholesalers Ass'n v. Attorney Gen., 370 N.W.2d 328 (Mich. Ct. App. 1985) (same); 71 PA. CONS. STAT. § 732-204 (opinion binding on state agencies, excepting governor).

24 MISS. CODE ANN. § 7-5-25. See also ALA. CODE § 36-15-19; ARIZ. REV. STAT. ANN. § 38-446; 71 PA. CONS. STAT. § 732-204.

25 State ex rel. Johnson v. Baker, 21 N.W.2d at 364 (N.D. 1945). The North Dakota Supreme Court has also held that attorney general opinions “guide state officers until superseded by judicial opinions.” Werlinger v. Champion Healthcare Corp., 1999 ND 173 N.D. 1999).

and protection.”26

Challenges to Attorney General Opinions

Because in many states, attorney general opinions are not binding on the courts or on the state officers receiving the opinion, they are not subject to challenge in the courts in those states. For example, plaintiffs in a Tennessee case sought to remove a peace officer because he had been convicted of criminal contempt. The attorney general had issued an opinion that such convictions were not offenses that required removal from office under the relevant statutes. Plaintiffs sought a declaratory judgment. Tennessee law allows parties to seek declaratory judgment against the state when their rights are affected by “a statute, municipal ordinance, contract, or franchise.” The court held that attorney general opinions are advisory, do not carry the weight of law, and are thus not similar to the legal rulings outlined in the statute. The court also determined that in Tennessee there is “no cause of action under which a party can sue the attorney general on the basis of disagreement with an opinion issued by the attorney general.”27

Similarly, Arizona voters unhappy with the attorney general’s

opinion on the interpretation of immigration legislation filed a mandamus action against the attorney general, alleging that he had abused his discretion by issuing an erroneous legal opinion. The court of appeals first described the difference between the function of courts, to “declare the existing law” and the function of the attorney general, “not to decide what the law is but merely opine about the law.” Because of this difference, permitting mandamus actions in this situation would “be an inappropriate usurpation by the courts of responsibility assigned to the attorney general and, in our view, a violation of the separation of powers.”

The plaintiffs also asked the court to direct the attorney general to withdraw his opinion. The court declined to do so, because a mandamus action can only compel an action that an official is required to perform. There is no state constitutional or statutory obligation on the part of the attorney general to withdraw an opinion.28

On the other hand, California courts allow a challenge to an

26 State ex rel. Moltzner v. Mott, 97 P.2d 950, 954 (Ore. 1940).

27 State ex rel. Deselm v. Tennessee Peace Officers Standards Commission, 2008 Tenn. App. LEXIS 625 (Tenn. Ct. App. 2008).

28 Error! Main Document Only.Yes on Prop 200 v. Napolitano, Error! Main Document Only.160 P.3d 1216 (Ariz. App. Div. 1, 2007); see also, O’Neal v. Board of Chiropractic Examiners, 2004 Tex. App. LEXIS 8254 (Tex. App. Ct. 2004).

attorney general opinion by a petition for extraordinary writ. This proceeding is available because the attorney general's opinion is given great weight by the courts, and because the state agency to whom the opinion was issued was acting in accordance with the opinion and in violation of the state constitution. Because declaratory actions and/or a test case would take too long, the court held that the extraordinary writ was the appropriate means to challenge the attorney general’s opinion.29

In Oklahoma, a writ of mandamus is not appropriate to compel the attorney general to revise or withdraw an opinion, although it may be appropriate to require him to issue an opinion:

Mandamus will lie to compel the Attorney General to exercise his discretion, but it does not lie to control his action regarding matters within his discretion, unless his discretion has been clearly abused. A difference

of opinion is not an abuse of discretion. Where there is room for two opinions, the action is not arbitrary or capricious when it is exercised honestly upon due consideration even though it may be believed that an erroneous conclusion has been reached.30

However, the Oklahoma Supreme Court has held that attorney general opinions, if followed by the administrative agency, become de facto rules, and may therefore be challenged under the state’s Administrative Procedures Act.31

Parties challenging the attorney general’s opinion have used the fact that state officers relying on the opinion are protected from liability as an argument supporting a judicial order to withdraw the opinion. For example, in an Arizona case, plaintiffs argued that the opinion should be withdrawn because an attorney general’s opinion would provide immunity from criminal liability to any state employee who complied with the attorney general’s opinion. The court noted that protection from liability is only available if the government official acts “in good faith” and if there were a judicial decision that rejected

29 Planned Parenthood Affiliates of California v. Van de Kamp, 181 Cal. App. 3d 245 (Cal. Ct. App. 1986).

30 Oklahoma City News Broadcasters Association v. Nigh, 683 P.2d 72(Okla. 1984).

31 Independent School District No. I-20 of Muskogee County v. Oklahoma State Dept. of Educ., 65 P.3d 612 (Okla. 2003).

the attorney general’s opinion, there could be no reliance on it.32

Attorney General Opinions and the Courts

The giving of advisory opinions is an executive, rather than a judicial function.33 Attorney general opinions are not binding on courts34 because they are “neither statutes nor municipal ordinances, [and] do not carry the weight of law.” 35 How they are treated, however, varies with the state and with the circumstances. They are frequently given a certain level of respect by the courts which is phrased in many different ways, such as “entitled to respect,”36 “given respectful attention,37” “entitled to considerable deference,”38 entitled to considerable weight,” 39 “persuasive,” 40 or “instructive.” 41 The Washington Supreme Court articulated three reasons for giving weight to attorney general opinions:

First, such opinions represent the considered legal opinion of the constitutionally designated “legal adviser of the state officers.” Second, we presume that the legislature is aware of formal opinions issued by the attorney general and a failure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. The weight of this factor increases over time and decreases where the opinion is inconsistent with previous formal opinions,

32 Yes on Prop 200 v. Napolitano, Error! Main Document Only.160 P.3d 1216 (Ariz. App. Div. 1, 2007).

33 State ex rel. Morrison v. Sebelius, 285 Kan. 875, 885 (Kan. 2008).

34 7 Am. Jur. 2d Attorney General § 11 and cases cited therein; State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995).

35 City of Cleveland v. Bradley County, 1999 Tenn. App. LEXIS 261, (Tenn. Ct. App. Apr. 16, 1999).

36 North Dakota Fair Housing Council, Inc. v. Peterson, 625 N.W.2d 551, 557-58 (N.D. 2001), quoting North Dakota Fair Housing Council, Inc. v. Haider, No. A1-98-077 (D.N.D. 1999).

37 Schwartzenberger v. McKenzie County Board of County Comm’rs, 2017 ND 211 (N.D. 2017).

38 State v. Black, 897 S.W.2d 680, 683 (Tenn. 1985).

39 Burris v. White, 232 Ill. 2d 1, 8, 901 N.E. 2d 895, 899 (Ill. 2009).

40 Whaley v. Holly Hills Mem. Park, Inc., 490 S.W.2d 532, 533 (Tenn. Ct. App. 1972).

41 Abrahamson v. St. Louis County Sch. Dist., 802 N.W.2d 393, 401 (Minn. Ct. App. 2011).

administrative interpretations, or court opinions. Third, where the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government.42

As described in the Washington Supreme Court’s opinion, the particular circumstances can affect how an attorney general opinion is viewed. For example, it has been said that administrative interpretations of statutes made pursuant to attorney general opinions are entitled to great weight in statutory interpretation cases. 43 Similarly, “opinions of the Attorney General are entitled to great weight when the legislature has failed over a long period of time to make any change in the statute. Such failure is some indication of an acquiescence by the legislature to . . . the opinion of the Attorney General.”44 In other words, a court “may give additional weight to an attorney general’s opinion implicitly approved by the Legislature.”45 In a decision in Wisconsin, the state supreme court further refined this idea: "[S]tatutory interpretation by the Attorney General is accorded even greater weight, and is regarded as presumptively correct, when the legislature later amends the statute but makes no changes in response to the attorney general's opinion."46

Other criteria cited by courts for stronger reliance on attorney general

opinions  include  the  consistency  of  Attorney  General  opinions over

42  Five Corners Family Farmers v. State, 173 Wn.2d 296, 308 (Wash. 2011).

43  Coble Systems, Inc. v. Armstrong, 660 S.W.2d 802 (Tenn. Ct. App. 1983).

44 Pub. Serv. Comm’n v. Formal Complaint of WWZ, Co., 641 P.2d 183, 186 (Wyo. 1982). See, also Gomez v. Jackson Hewitt, Inc., 427 Md. 128 (Md. June 22, 2012) ("The Legislature is presumed to be aware of the Attorney General's statutory interpretation and, in the absence of enacting any change to the statutory language, to acquiesce in the Attorney General's construction."); Napa Valley Educators' Ass'n v. Napa Valley Unified School Dist., 194 Cal. App. 3d 243, 251 (Cal. Ct. App. 1987) (Opinions entitled to great weight and in the absence of controlling authority, are persuasive 'since the legislature is presumed to be cognizant of that construction of the statute.').

45 Hilton v. North Dakota Education Ass’n, 655 N.W.2d 60, 65 (N.D. 2002). See also Travis v. Board of Trustees of California State University, 161 Cal. App. 4th 335, 345 (Cal. App. 2d Dist. 2008)(“Those opinions, while not binding on us, are entitled to great weight, especially when the Legislature either amends a statute to conform to such an opinion, or fails to pass an amendment that is contrary to an earlier Attorney General's opinion.”).

46 Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, P126 (Wis. 2010) (internal quotations omitted).

Order Vacated by Aid for Women v. Foulston, 10th Cir.(Kan.), September 20, 2007

427 F.Supp.2d 1093

United States District Court, D. Kansas.

AID FOR WOMEN, et al., Plaintiffs, v.

Nola FOULSTON, et al., Defendants.

No. 03–1353–JTM.

|

April 18, 2006. 

Synopsis

Background: Professionals subject to Kansas’ mandatory reporting statute, requiring doctors, teachers, and others to notify state government of suspected injury to a minor resulting from sexual abuse brought § 1983 action for declaratory and injunctive relief against Kansas Attorney General and all county and district attorneys in state, alleging that reporting statute was unconstitutional as applied to consensual underage sexual activity. Following remand, 441 F.3d 1101, bench trial was held.

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MEMORANDUM OPINION AND ORDER

MARTEN, District Judge.

This matter comes before the court on plaintiffs’ action for declaratory and injunctive relief. Plaintiffs seek to prevent enforcement of Kansas Attorney General Phill Kline’s application of the state mandatory reporting statute, through an Attorney General’s Opinion,1 to consensual underage sexual activity.2 Specifically, as filed, this case turns on whether Kan. Stat. Ann. § 38–1522, commonly referred to as the “Kansas reporting statute,” requires reporting of all consensual underage sexual activity as sexual abuse.

*** 

[1] [2] [3] The court heard approximately seven days of testimony in a bench trial commencing January 30, 2006. For clarity, the court notes that neither side objects to the reporting of: 1) incest; 2) sexual abuse of a child by an adult; and 3) sexual activities involving a child under the age of twelve. Therefore, the only issue presented is whether consensual underage sexual activity must be reported under the Kansas reporting statute. After extensive review of the record, this court holds that the Kansas reporting statute: 1) does not make all underage sexual activity inherently injurious; and 2) requires that the reporter have reason to suspect both injury and that  the injury resulted from illegal sexual activity, as defined by Kansas law, before reporting is required.  In addition, to require reporting in accordance with Attorney General Kline’s opinion would violate a minor’s limited right of informational privacy. Thus, this court permanently enjoins enforcement of Kan. Stat. Ann. § 38–1522 in any manner inconsistent with this decision, which includes the Kline Opinion. 

I.  FINDINGS OF FACT

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 B. The Kansas Reporting Statute

Kansas law recognizes the state’s interest in reporting abuse of children:

It is the policy of this state to provide for the protection of children who have been subject to physical, mental or  emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventive and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children.  

Kan. Stat. Ann. § 38–1521. See also Clevenger v. Catholic Social Serv. of the Archdiocese of Kansas City, 21 Kan.App.2d 521, 529, 901 P.2d 529, 535 (1995) (“It is

apparent that the public policy of this state is to encourage persons with information concerning possible child abuse to report this information to the proper authorities.”); Kansas State Bank & Trust Co. v. Specialized Transp. Serv.,  Inc.,  249  Kan.  348,  372,  819  P.2d  587  (1991) (purpose of reporting statute is to provide protection for children by encouraging reporting of suspected child abuse and insuring thorough and prompt investigation of such reports); Kennedy v. Kansas Dept. of Social and Rehabilitation Serv., 26 Kan.App.2d 98, 981 P.2d 266 (1999) (public policy of state is to encourage reporting of possible child abuse).

As part and parcel of this obligation, Kansas requires reporting to the state government whenever certain persons have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522 (emphasis added). The mandatory reporting requirement extends to various medical and health care providers, school officials, law enforcement, child care service providers, social workers, counselors, and emergency response personnel. See Kan. Stat. Ann. § 38–1522(a) (listing the persons who are considered mandatory reporters). Such persons are required to notify the designated state agency, or, in limited circumstances, law enforcement. Kan. Stat. Ann. § 38–1522(c), (e). “Willful and knowing failure to make a report” is a misdemeanor criminal offense. Kan. Stat. Ann. § 38–1522(f).

Kansas law defines “sexual abuse” as “any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated.” Kan. Stat. Ann. § 38–1502(c). The referenced chapter criminalizes a range of sexual activities involving a minor under the age of sixteen.3 See, e.g., Kan. Stat. Ann. § 21–3503(a)(1) (“any lewd fondling or touching ... done or submitted to  with the intent to arouse or to satisfy ... sexual desires”); Kan. Stat. Ann. § 21–3501(2) (“oral contact ... of the female genitalia or ... of the male genitalia”); Kan. Stat. Ann. § 21–3501(1) ( “any penetration of the female sex organ by a finger, the male sex organ or any object”). Based on the very language of the relevant provisions, sexual activity of minors younger than sixteen is illegal, regardless of whether the activity is voluntary or the sexual activity involves an age-mate.4 The only exception to this criminal ban is in the case of consensual sexual contact between a person under sixteen and that person’s spouse. See, e.g., Kan. Stat. Ann. §§ 21–3503(b); 21–3504(b);  21–2502(b). Kansas has long allowed twelve-year-old females and fourteen-year-old males to marry with parental or judicial consent, although the Kansas legislature is now considering raising these ages. State v. Sedlack, 246 Kan. 305,  307, 787 P.2d  709,  710 (Kan.1990)  (citing State v. Johnson,  216  Kan.  445,  448,  532  P.2d  1325   (1975)). Kansas law requires both parties to be at least eighteen years of age before recognizing a common law marriage as valid. Kan. Stat. Ann. § 23–101(b) (2004).

3                  The term “minor” as used throughout this opinion means a person who is under the age of sixteen, i.e., a person who is under the age to legally consent to sexual intercourse.

4                  Kansas Department of Social and Rehabilitation Services officials testified that they consider “age-mates” to be persons within three years of age of each other. 

The reporting statute does not define “injury.”

 ***

D.  Advisory Opinions

In 1992, Kansas Attorney General Robert Stephan issued an opinion defining the reporting requirements in cases of unmarried pregnant minors. In pertinent part, the opinion states:

Whether a particular minor in a particular case has been injured as a result of sexual intercourse and a resulting pregnancy must be determined on a case-by-case basis. The fact of pregnancy certainly puts one on notice that sexual abuse (as statutorily defined) has probably occurred, and requires persons listed in K.S.A.1991 Supp. 38–1522(a) to investigate further whether the child has suffered injury, physical or emotional, as a result of such activity. If there is reason to suspect that the child has been injured, that person is then required to report such suspicions and the reasons therefore.

Kansas Att’y Gen. Op. No. 92–48, 1992 WL 613410 (April 6, 1992) (hereafter “Stephan Opinion”) (emphasis added). The Stephan Opinion did not equate underage pregnancy with “inherent injury,” which would automatically trigger reporting. Instead, it placed reporters on notice that the statutory standard of sexual abuse probably had occurred and that the reporter should investigate further to determine if there was injury. Thus, the Stephan Opinion acknowledged the broad statutory scope of the term “sexual abuse,” but it left the reporter to determine if there was reason to suspect the child had suffered an injury requiring reporting, which is consistent in every respect with the statutory language.

pregnancy: 

We are aware that although this opinion is limited to the question posed, the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter’s obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active.

Kansas law clearly provides that those who fall under the scope of the reporting requirement must report any reasonable suspicion that a child has been injured as a result of sexual abuse, which would be any time a child under the age of

16 has become pregnant. As a matter of law such child has been the victim of rape or one of the other sexual abuse crimes and such crimes are inherently injurious.

*1100 Kansas Att’y Gen. Op. No.2003–17, 2003 WL 21492493 (June 18, 2003) (emphasis added). In reaching this conclusion, the Attorney General looked beyond the statute’s language and beyond the law of the State of Kansas. His opinion that the minor’s pregnancy is “inherently injurious” eliminated the reporter’s discretion to determine whether the minor had been “injured.” Further, as the Attorney General’s opinion acknowledges, such “inherent injury” reaches beyond a minor’s

Kline Opinion, 2003 WL 21492493, at *6 (emphasis added). Thus, if all illegal sexual activity of a minor is considered sexual abuse and is per se injurious, then pursuant to the Kline Opinion, a mandatory reporter must automatically report any indication that a minor is sexually active.

E.  Procedural History

On October 9, 2003, a few months after the Kline Opinion issued, plaintiffs brought suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against application of the reporting statute to incidents of consensual sexual activity between minors under the age of sixteen and persons of similar age when mandatory reporters conclude, in their professional judgment, that  the sexual activity did not injure the minor. Complaint, ¶ 11 (same as Third Amended Complaint, ¶ 11). The  district court certified the plaintiffs as a class largely comprising licensed professionals, including physicians, nurses, social workers, psychologists and sexuality educators. Dkt. No. 60. The Complaint named as defendants the Attorney General of Kansas and all county and district attorneys of Kansas. Complaint, ¶ 46 (identifying all county and district attorneys of Kansas); Third Amended Complaint, ¶¶ 38, 39 (identifying Attorney General Kline).

 ***

As relief, the complaint sought: 1) preliminary and permanent injunctions “barring the defendant class from enforcing the reporting statute to require plaintiffs to report consensual sexual activity between an adolescent under the age of 16 and a person of similar age where plaintiffs do not reasonably suspect injury to the adolescent;” and 2) a declaration “that the reporting statute is unconstitutional as applied to consensual sexual activity between an adolescent under the age of 16 and a person of similar age where the mandatory reporter does not reasonably suspect injury to the adolescent.” Complaint, ¶ 70. Since then, plaintiffs have amended the complaint to include other grounds.

***

II.  CONCLUSIONS OF LAW

 A. Statutory Interpretation

The interpretation of the Kansas reporting statute is of central importance to this case. That being so, the court considered certification to the Kansas Supreme Court. Because a federal court’s determination of state law is not final, the state court’s interpretation on this issue would be helpful. See United States v. Thirty–Seven (37) Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28

L.Ed.2d 822 (1971) (noting that federal courts “lack jurisdiction authoritatively to construe state legislation”).

[4] However, such certification should be utilized only if the construction of state law is subject to doubt. See Stenberg v. Carhart, 530 U.S. 914, 945, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Houston v. Hill, 482 U.S. 451, 468–471, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (certification should not be used where “there is no uncertain question of state law”); Grant v. Meyer, 828 F.2d 1446, 1448 n. 5 (10th Cir.1987) (refusing certification “since the statute is unambiguous”). As more fully discussed below, the court finds that the reporting statute is clear and unambiguous; therefore, certification is unnecessary.

[5] As a general rule, if the language of a statute is clear in its application, the court is bound by it. Hubbard v.  United States, 514 U.S. 695, 703, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995). “If the statutory language is clear, this will ordinarily end the analysis.” See, e.g., United States v. Morgan, 922 F.2d 1495, 1496 (10th Cir.1991), cert. denied, 501 U.S. 1207, 111 S.Ct. 2803, 115 L.Ed.2d 976 (1991).

As noted above, the Kansas statute mandates reporting by certain persons who have “reason to suspect that a child has been injured as a result of ... sexual abuse.” Kan. Stat. Ann. § 38–1522(a) (emphasis added). This language has remained unchanged since its enactment in 1982. Senate Bill No. 520, ch. 182 § 19 (1982).

Examining its separate components, the clause recognizes that a mandatory reporter must identify two things: 1) there is reason to suspect that the child has been injured; and 2) the injury resulted from sexual abuse. The meaning of the terms “injured” and “sexual abuse” are important to the court’s analysis. As mentioned above, the legislature has defined “sexual abuse” in Article 35, Chapter 21 of the Kansas Statutes. Kan. Stat. Ann. § 38–1502(c). However, it has not defined “injury.”

*1102 The Stephan Opinion noted that “injury” is not defined in the code for care of children, Kan. Stat. Ann. § 38–1501 et seq., which includes the reporting statute. Although some statutory provisions recognize that “injury” includes physical, mental or emotional abuse or neglect, Kan. Stat. Ann.1991 Supp. § 38–1502(b), past SRS programs did not list pregnancy as a per se injury. After reviewing the scant legislative history and case law approaches to pregnancy, the Stephan Opinion concluded that “... pregnant, unmarried minors may likely display signs of emotional, physical or mental injuries which should be reported. However, we do not believe that pregnancy of an unmarried minor necessarily constitutes injury even when that term is understood in its broadest sense.” (Emphasis added). Ultimately, the Stephan Opinion held that pregnancy is not itself an injury but a natural condition, so reporting a pregnancy as sexual abuse must be determined on a case-by-case basis.

The Kline Opinion, on the other hand, shifted the focus away from the condition of pregnancy and toward the underlying sexual intercourse, which it claims constitutes an inherently injurious and harmful act. Since the legislative history of the reporting statute is limited, the Kline Opinion examined insurance case law where a federal district court in this district described sexual abuse as inherently harmful.6 The Kline Opinion states that the consensus opinion of the courts is that sexual abuse of a minor is inherently harmful. Despite the focus on case law to understand statutory language, the Kline Opinion noted that it is not the function of the courts to write legislation but only to construe statutes.

***

If “injury” is the equivalent of “sexual abuse,” as the Attorney General contends, then the requirement of an “injury” in the reporting statute is rendered meaningless. The statutory language does not require reporting of all illegal sexual activity of minors; it requires reporting of such sexual activity if there is “reason to suspect injury.” Therefore, the statute requires reporting of illegal sexual activity that causes injury, not all illegal sexual activity. See United States. v. American Trucking Ass’ns., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)

(“There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”).

The legislature included a very specific phrase in the statute: “reason to suspect that a child has been injured as a result of ... sexual abuse     ” This phrase vests a degree

of discretion in the reporter not only to determine suspected sexual abuse, but also resulting injury. Cortez v. Pawnee Mental Health Serv., Inc., 77 P.3d 1288, 2003 WL 22283159, at *3 (Kan.App.2003) (noting that the Kan. Stat. Ann. § 38–1522 requires a “reason to suspect” before mandating reporting); Kansas State Bank & Trust Co. v. Specialized Transp. Serv., Inc., 249 Kan. 348, 372, 819 P.2d 587, 604 (1991) ( “The decision to report suspected abuse should be based on something more than suspicion.”). The legislature acknowledged that not all illegal sexual activity involving a minor necessarily results in “injury;” thus, not all unlawful sexual activity warrants reporting. The language of the statute recognizes that some illegal sexual conduct, such as consensual, voluntary sexual activity with an age-mate, falls outside the scope of the *1103 statute, as it may not cause injury. See BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124

S.Ct.   1587,   1593,   158   L.Ed.2d   338   (2004)   citing

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“The

preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ”).

Therefore, the court finds that the legislature’s inclusion of the phrase “reason to suspect that a child has been injured” requires reporters to determine if there is a  reason to suspect injury resulting from sexual abuse. “Injury” and “sexual abuse” are distinct concepts under the statute. Any attempt to conflate the meaning of these terms is contrary to a plain reading of this statute.

This reading is consistent with the agency policies developed following enactment of the statute, as set out in an earlier part of this opinion. See American Trucking,

310 U.S. at 544, 60 S.Ct. at 1064 (“A few words of general connotation appearing in the text of statutes should not be given a wide meaning, contrary to a settled policy, excepting as a different purpose is plainly shown.’

”) (citations omitted). SRS policy acknowledges sexual abuse to be coextensive with the statutory definitions,7 but it does not consider investigation of all illegal sexual activity involving a minor to be necessary or appropriate. SRS Manual § 1361. Where a report does not indicate a child “has been harmed or is likely to be harmed” or where the report concerns “ ‘lifestyle’ issues that do not directly harm a child or place a child in a likelihood of harm,” SRS screens out the report. SRS Manual § 1361. SRS does not extend services in cases of consensual, age-mate sexual exploration with no evidence of force, coercion, or significant age disparities. SRS Manual § 1361, Practice Notes. SRS’s policy interpretation creates  a distinction between broad statutory definitions and working definitions on which investigations are actually conducted.

7                  SRS Manual § 160 defines “sexual abuse” as “any act committed with a child that is described in, [Kan. Stat. Ann. § ] 21–3501 et seq. and amendments thereto and the acts described in [Kan. Stat. Ann. § ] 21–3602 and [Kan. Stat. Ann. § ] 21–3603 and amendments thereto.”

The 1992 Stephan Opinion and the Stovall letter of 1999 both were plain language readings of the reporting statute. Both Stephan and Stovall gave full meaning to the reporting statute, requiring that the reporter have not only reason to suspect abuse, but also reason to suspect injury resulting from it. From a reporter’s standpoint, as supported by their trial testimony, the reporting statute was clear, and the reporters were not only authorized, but compelled, to make a case-by-case determination as to whether injury occurred.

[6] The Attorney General is not only allowed to, but also is required to render an opinion on his interpretation of the law under certain circumstances. See Kan. Stat. Ann. § 75–704 (the Attorney General, when required, provides written opinions “ ... upon all questions of law submitted to him or her by the legislature, or either branch thereof, or by the governor, secretary of state, state treasurer, state board of education, or commissioner of insurance.”); Kan. Stat. Ann. § 77–420 (directing Attorney General review of any state agency rule or regulation). However, true interpretation of law is a judicial function, not an executive or legislative function. Board of Comm’rs v. General Sec. Corp., 157 Kan. 64, 138 P.2d 479, 479 (1943). An executive branch official, such as the Attorney General, cannot effectively amend *1104 legislation by reinterpreting its language through an “advisory” opinion. See In re Allen, Gibbs & Houlik, L.C., 29 Kan.App.2d 537, 545, 29 P.3d 431, 439 (Kan.App.2001) (“[A] statute should not be so read as to add that which is not readily found therein or to read out what as a matter [of] ordinary English language is in it.” (citations omitted)). The legislature has not chosen to delete the “reason to suspect that a child has been injured” language from the reporting statute; the Attorney General cannot amend the statute by an advisory opinion See State ex rel. Stephan v. Finney, 251  Kan.  559,  578,  836  P.2d  1169,  1182   (Kan.1992)

(“And in accordance with the general principles of the separation of powers, the executive department cannot generally usurp or exercise judicial or legislative power

....”). In view of both the statutory language and the long-standing interpretation of the reporting statute, the Kline Opinion effectively amends the reporting statute by eliminating the discretion the legislature gave mandatory reporters to determine if there had been an injury. Under the Kline Opinion, the mandatory reporter has no discretion with respect to reporting illegal sexual activity of a minor,8 in contravention of the plain language of the statute and legislative intent as evidenced in the statute’s clear and unambiguous language. American Trucking, 310

U.S. at 543, 60 S.Ct. at 1063. The court’s interpretation neither reads phantom language into the statute, nor cuts from the statute language the legislature deliberately placed there.

***

Accordingly, the court holds that the Kline Opinion contradicts the plain meaning of the statute for two related reasons. First, the Kline Opinion inappropriately strikes the legislature’s placement of discretion in the hands of licensed professionals by ignoring the phrase “reason to suspect that a child has been injured” as a result of sexual abuse. Second, the opinion wrongly redefines the common understanding of both state agencies and mandatory reporters by denoting all sexual activity to be “inherently injurious.”

***

IV. CONCLUSION

This opinion does not change in any respect the law or policy as it has been applied in Kansas since 1982;

has a reasonable suspicion of injury caused by abuse of any kind, the reporter must continue to notify SRS. So this case is not about whether adult sexual predators will escape detection. The reporting statute, as enacted by the Kansas legislature, concerns identifying true victims of abuse so they can obtain assistance and protection. Contrary to defendants’ claims, a prosecutor is not in a better position to make an initial determination of “injury,” as required by statute, than is a health care professional.

This case certainly is not about promoting sexual promiscuity among underage persons. Each and every witness testified that underage sex should be discouraged. No witness suggested that sexual intercourse under the age of twelve should not be reported. At the same time, a plain language interpretation of the reporting statute acknowledges the importance of the health care professional’s ability to obtain and maintain a young patient’s confidence in order to treat the patient appropriately. It recognizes that sexual activity among underage persons occurs, and that any such activity that injures the minor will be reported.

The court holds that a plain reading of the statute vests mandatory reporters, such as health care providers, with discretion to determine when there is “reason to suspect a child has been injured” as a result of sexual abuse. The Attorney General would impose a “zero tolerance” reporting rule for a broad but as yet undetermined range of underage sexual activity, eliminating all discretion on the part of the reporter. Where the legislature has unquestionably placed such discretion in reporters, to require reporting in every instance would be as contrary  to the law of Kansas as not reporting at all.

IT IS ACCORDINGLY ORDERED this 18th day of April 2006, that the court grants plaintiffs a permanent injunction as prayed for in their Amended Complaint.

                                                                             © 2019 Thomson Reuters. No claim to original U.S. Government Works.

What’s Your Opinion?

1.                  With the election just a few weeks away, an emergency bill has just passed both houses that would require all political action committees to disclose their donors if they contribute more than $1000 to any state legislative race. The Governor of the State of Hampton has said that she will sign the bill if it is constitutional. The Governor’s counsel calls you for an opinion on the constitutionality of the bill, and says she needs a response immediately in light of the emergency nature of the bill. What is your response?

2.                  The Hampton Constitution has a strict separation of powers provision, which prohibits people from serving in two branches of government. A part–time, popularly elected, probate judge, whose term runs until next year, is running this year for the State Senate. His opponent, the incumbent State Senator, asks you for an opinion on whether it is constitutional to run for two offices at the same time. What is your response?

3.                  Long before you became Attorney General, the State of Hampton entered into a consent decree to settle a civil rights lawsuit concerning the State’s largest mental health hospital. Due to progress made under the consent decree, there is no longer a special master overseeing the hospital and there is no longer active federal court supervision, even though the case remains on the docket. Advocacy groups have gone to the press with evidence that the State is not providing certain services they believe are required under the consent order. A State Representative who is employed by one of the advocacy groups asks you for an opinion on whether the State should provide these services. What is your response?

4.                  A small town in a rural part of the State of Hampton would like to hold a block party for the town’s 150th anniversary and close off the only street that runs through the town for a Saturday night. The street is also a lightly traveled state highway. The Department of Transportation got wind of this plan, and told the town that they can’t block a state highway. The Mayor asks you for an opinion on whether they can hold their block party and close the street for four hours. What is your response?

5.                  Last year the Hampton Legislature passed a statute requiring doctors who perform abortions to have admitting privileges at the local hospital. Planned Parenthood and several doctors filed suit, and your office is defending the suit. In light of a ruling from the Fourteenth Circuit upholding a preliminary injunction against a similar statute in a neighboring state, the Governor has asked you whether the State’s statute should be enforced. Lawyers from National Right to Life, who have litigated this