Can a Virginia Circuit Court Clerk refuse to perform a statutory duty because the Clerk thinks the statute is unconstitutional?

Plain-English summary

The Lunenburg Circuit Court Clerk asked the AG a politically charged question with deep institutional roots. Could he, or any other constitutional officer, decide that a Virginia statute imposing a duty on him was unconstitutional and refuse to perform the duty? And if he refused, could he be charged with malfeasance?

The opinion expressly addressed only Circuit Court Clerks (since the requesting Clerk could only ask under § 2.2-505 about his own duties), but its reasoning generalized.

Authority to declare a statute unconstitutional. Clerks are constitutional officers (Va. Const. art. VII, § 4) whose powers and duties are prescribed by statute. The Supreme Court of Virginia "has consistently characterized the duties of a Clerk as ministerial in nature" (Small v. Federal National Mortgage Ass'n, 2013). A ministerial act is one performed "in obedience to the mandate of legal authority without regard to, or the exercise, of his own judgment upon the propriety of the act being done" (Moreau v. Fuller). No provision of the Code of Virginia gives a Clerk authority to determine whether a particular law is constitutional.

The power "to declare what the law is" is judicial. From Marbury v. Madison (1803) forward, "it has been the indisputable and clear function of the courts, federal and state, to pass on the constitutionality of legislative acts." The Supreme Court of Virginia in Wise v. Bigger (1884) confirmed that "[t]he power to declare what the law is, of necessity involves the power to declare what acts of the legislature are, and what acts of the legislature are not laws." That power is in courts, not in administrative officials. The opinion analogized to administrative agencies, which the AG cited as also lacking power to determine statutory constitutional validity.

Article I, § 7 (the suspension clause). Even apart from the ministerial-duty point, the Virginia Constitution's Article I, § 7 prohibits the suspension of laws "by any authority, without consent of the representatives of the people." A Clerk who unilaterally refused to apply a statute would be exercising the suspending power Virginia's constitutional framers explicitly denied to anyone.

Presumption of constitutionality. Duly enacted laws are presumed constitutional, and any reasonable doubt is resolved in favor of validity (Tanner v. Virginia Beach; Roanoke v. Elliot). A statute is not to be declared unconstitutional unless a court is "driven to that conclusion." Even though the government bears the burden of proving validity when a suspect classification is at issue (Fisher v. Univ. of Texas), the decision belongs to the courts.

Malfeasance. Malfeasance is a common-law misdemeanor: "the doing of an act for which there is no authority or warrant of law" (Warren v. Commonwealth). The Code of Virginia specifies certain conduct that constitutes malfeasance (purchasing violations under § 2.2-1115; willful violation of the State and Local Government Conflict of Interests Act under § 2.2-3122; issuing a search warrant without an affidavit under § 19.2-55; certain school division expenditure violations under § 22.1-91), but otherwise the common-law definition applies. Whether a particular Clerk's refusal to perform a duty is malfeasance is a fact-specific question. As a general principle, however, the AG concluded that a Clerk who in good faith performs his ministerial duties, in the absence of a clear judicial decree directing him not to do so, has not engaged in malfeasance. The proper way for someone to challenge the constitutionality of a statute a Clerk is applying is by civil action (mandamus, injunction, prohibition, declaratory judgment), not by the quasi-criminal route of prosecuting the Clerk for malfeasance.

Note on the Attorney General's role. A footnote distinguished the AG, who "may and should use his independent judgment when there is a question of the constitutionality of a state law" (citing Gilmore v. Landsidle). The AG's role in declining to defend or to enforce a statute is different from a clerk's role; the AG has discretionary authority over litigation that a Clerk does not have over ministerial duties.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The political moment that produced this question was the period following the May 2014 Bostic v. Schaefer district-court ruling and the appellate proceedings that followed, when some Virginia constitutional officers were considering whether to refuse to issue same-sex marriage licenses based on their personal view of the Virginia marriage amendment. Bostic in the Fourth Circuit struck down the Virginia marriage amendment in July 2014; the Supreme Court denied review in October 2014; and Obergefell v. Hodges settled the question nationwide in 2015. The opinion's analytical framework (ministerial duties, constitutional review reserved to courts, malfeasance as a fact-specific question) remains generally applicable. The doctrinal frame in Marbury, Wise v. Bigger, Small v. Federal National Mortgage Ass'n, and Moreau v. Fuller is unchanged.

Common questions

What is a "ministerial duty"?
A duty that an officer "performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise, of his own judgment upon the propriety of the act being done" (Moreau v. Fuller). The opposite is a discretionary duty, where the officer has decision-making authority.

Are Clerks' duties always ministerial?
The Virginia Supreme Court has "consistently characterized the duties of a Clerk as ministerial in nature" (Small v. FNMA). Clerks may have some discretion over the manner in which they perform their statutory duties, but they do not have discretion over whether to perform them. Performance is mandatory.

Can a Clerk refuse to record a document he thinks is invalid?
Prior AG opinions limit a Clerk's ability to refuse recordation. A 1973-74 opinion held that "a clerk is not justified in rejecting a deed which appears to meet the requirements of [the applicable statute] on the basis that the acknowledgement ... may be held to be invalid by a court." A 2002 opinion held the clerk "has no duty to inquire beyond the statutory requirements for the recordation of an instrument" and is "limited in his ability to refuse to record an instrument that meets the statutory requirements."

What is the remedy if a Clerk refuses?
Mandamus, the extraordinary writ used to compel a public official to perform a purely ministerial duty (Richland Medical Ass'n v. Commonwealth). Civil remedies (mandamus, injunction, prohibition, declaratory judgment) are the proper way to challenge or to compel a Clerk's conduct, not criminal prosecution for malfeasance.

What is malfeasance, exactly?
A common-law misdemeanor defined by the Supreme Court of Virginia as "the doing of an act for which there is no authority or warrant of law" (Warren v. Commonwealth). It is also a ground for removal from office under § 24.2-233 and is specifically defined for certain statutory contexts (purchasing violations, conflict of interest violations, certain warrant issuances, certain school expenditures).

Why is constitutional review reserved to courts?
Marbury v. Madison (1803) established the framework: "[i]t is emphatically the province and duty of the Judicial Department to say what the law is." Virginia adopted the same principle in Wise v. Bigger (1884). Allowing individual administrators to make constitutional judgments would fragment the legal system and undermine uniform application of the law.

Can the Attorney General refuse to defend a statute?
Yes. The opinion noted in a footnote that the AG "may and should use his independent judgment when there is a question of the constitutionality of a state law" (Gilmore v. Landsidle). The AG occupies a different institutional position from a Clerk; the AG has discretion over litigation, while the Clerk has ministerial duties.

What about an officer who believes a statute violates the U.S. Constitution?
Same answer. Federal courts (and the Supreme Court of Virginia in cases raising federal constitutional issues) decide federal constitutional questions. Administrative officials do not have that authority on their own. If a litigant believes a statute is unconstitutional under either constitution, the remedy is a court challenge, not a Clerk's unilateral refusal to apply the statute.

Background and statutory framework

• Va. Const. art. VII, § 4: Clerks are constitutional officers.
• Va. Const. art. I, § 7: prohibits the suspension of laws by any authority without legislative consent.
• Va. Code § 15.2-1634: Clerks shall exercise all powers and duties imposed by general law.
• Va. Code § 24.2-233: court-removal procedure for elected officials (including for malfeasance-like grounds).
• Va. Code § 2.2-1115: certain purchasing violations are malfeasance.
• Va. Code § 2.2-3122: willful violation of the State and Local Government Conflict of Interests Act is malfeasance.
• Va. Code § 19.2-55: issuing a search warrant without an affidavit is malfeasance.
• Va. Code § 22.1-91: certain school division expenditure violations are malfeasance.

The interpretive moves:

• Clerks' duties are ministerial; ministerial duties must be performed.
• Constitutional review of statutes is reserved to the judicial branch.
• A Clerk has no authority to suspend or refuse to apply a statute on his own view of its constitutionality.
• A Clerk who in good faith applies an enacted statute, absent a clear judicial decree to the contrary, has not engaged in malfeasance.

Citations

• Va. Const. art. VII, § 4
• Va. Const. art. I, § 7
• Va. Const. art. II, § 7
• Va. Code § 2.2-505
• Va. Code § 15.2-1634
• Va. Code § 24.2-233
• Va. Code § 2.2-1115
• Va. Code § 2.2-3122
• Va. Code § 19.2-55
• Va. Code § 22.1-91
• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
• Small v. Fed. Nat'l Mortgage Ass'n, 286 Va. 119, 747 S.E.2d 817 (2013)
• Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841 (2008)
• Wise v. Bigger, 79 Va. 269 (1884)
• Wolfe v. McCaull, 76 Va. 876 (1882)
• Loving v. Virginia, 388 U.S. 1 (1967)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
• NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960)
• Tanner v. Virginia Beach, 277 Va. 432, 674 S.E.2d 848 (2009)
• Roanoke v. Elliot, 123 Va. 393, 96 S.E. 819 (1918)
• Fisher v. Univ. of Texas, 570 U.S. 297 (2013)
• Brown v. Saunders, 159 Va. 28, 166 S.E. 105 (1932)
• Warren v. Commonwealth, 136 Va. 573, 118 S.E. 125 (1923)
• Richland Med. Ass'n v. Commonwealth, 230 Va. 384, 337 S.E.2d 737 (1985)
• Gilmore v. Landsidle, 252 Va. 388, 478 S.E.2d 307 (1996)
• 1969-70 Op. Va. Att'y Gen. 211A
• 1973-74 Op. Va. Att'y Gen. 65A
• 1987-88 Op. Va. Att'y Gen. 69
• 1987-88 Op. Va. Att'y Gen. 208
• 2001 Op. Va. Att'y Gen. 121
• 2002 Op. Va. Att'y Gen. 270
• 2003 Op. Va. Att'y Gen. 60
• 2007 Op. Va. Att'y Gen. 30
• 2009 Op. Va. Att'y Gen. 38
• 2009 Op. Va. Att'y Gen. 80
• 2013 Op. Va. Att'y Gen. 151

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-008_Erby.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Richmond 23219

900 East Main Street
Richmond, Virginia 23219
804-786-2071

May 30, 2014

804-371-8946 TDD

The Honorable Gordon F. Erby
Clerk of Court
Lunenburg Circuit Court
11435 Courthouse Road
Lunenburg, Virginia 23952

Dear Mr. Erby:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire regarding the authority of Clerks of Circuit Court (hereinafter simply "Clerks") and other local elected officials to determine the constitutionality of laws of the Commonwealth. You also seek guidance related to a Clerk's potential liability for malfeasance if he declines to perform a ministerial duty that he believes to be contrary to the federal or state constitution.

Response

This response addresses only Clerks, and not any other elected officials.[1] It is my opinion that while a Clerk is governed by the federal and state constitutions, he has no authority to deem unconstitutional a statute imposing on him a ministerial duty. Such determinations are made only by the judicial branch, and thereafter interpreted by the judicial branch and other officials charged with doing so.[2] The duties of a Clerk are ministerial, and decisions relating to constitutionality are discretionary, not ministerial. Whether particular conduct of a Clerk declining to apply a statute constitutes malfeasance is a fact-specific determination beyond the scope of an official Opinion of this Office. Conversely, it is my further opinion that, as a general principle, a Clerk who in good faith performs his ministerial duties in the absence of clear judicial authority directing him not to do so has not engaged in malfeasance.

Applicable Law and Discussion

I. Determinations of Constitutionality

Clerks are constitutional officers whose powers and duties are prescribed by statute.[3] Numerous prior opinions of this Office note the broad discretion Clerks have with respect to only the manner in which they fulfill their statutory duties, but they do not have the ability to decide whether or not to perform such duties.[4] Performance of a required ministerial duty is mandatory and not discretionary. As a general rule, Clerks have no inherent powers. The scope of their authority must be determined by reference to applicable statutes,[5] and no provision of the Code of Virginia affords a clerk legal authority to determine whether a particular law is constitutional.

The Supreme Court of Virginia "has consistently characterized the duties of a Clerk as 'ministerial' in nature."[6] A ministerial act is non-discretionary.[7] It is "one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise, of his own judgment upon the propriety of the act being done."[8] For example, in addressing issues arising from a Clerk's ministerial duty of recordation, this Office routinely has noted that a Clerk has no authority to weigh the legal sufficiency of a document beyond what is necessary to perform the duty.[9] I also note that the correct performance of ministerial duties is enforceable through a writ of mandamus.[10]

If there is a question about whether any statutory duty of a Clerk is constitutional, it is to be raised by parties in interest in a proper judicial proceeding.[11] Since Marbury v. Madison,[12] "it has been the indisputable and clear function of the courts, federal and state, to pass on the constitutionality of legislative acts ...."[13] Indeed, it is well-established that the power indisputable and clear function of the courts, federal and state, to pass on the constitutionality of legislative acts ...." Indeed, it is well-established that the power

"to interpret law -- to declare what a law is or has been -- is judicial power. The power to declare what is the law of the state, is delegated to the courts. The power to declare what the law is, of necessity involves the power to declare what acts of the legislature are, and what acts of the legislature are not laws."[14]

Marbury involved a federal court ruling on the federal constitutionality of a federal statute. The federal judiciary has also ruled on whether particular Virginia laws violate the federal constitution.[15] The Supreme Court of Virginia has ruled on whether Virginia laws violate the Constitution of Virginia,[16] and also on whether they violate the federal constitution.[17]

It is well-settled that duly enacted laws of the Commonwealth are presumed to be constitutional,[18] and courts are required to resolve any reasonable doubt concerning the constitutionality of a law in favor of its validity.[19] However, it also should be noted that where a statute is based on a suspect classification, the government bears the burden of proving its validity.[20] Although an unconstitutional law is unenforceable,[21] a statute is not to be declared unconstitutional unless a court is driven to that conclusion.[22] Moreover, the Constitution of Virginia has a unique provision, commonly called the "suspension clause," which provides, "that all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."[23]

Thus, a Clerk has no power to invalidate a statute. I therefore must conclude that a Clerk has no authority by which to make independent determinations respecting the constitutionality of statutes, nor may he decline to perform a ministerial duty because of his own personal opinion about constitutional infirmity.[24]

II. Malfeasance

A prior opinion of this Office explains that malfeasance is a common law crime, indictable as a misdemeanor, and it is an act wrongful in itself, performed under the authority of office.[25] The Supreme Court of Virginia has defined it as "the doing of an act for which there is no authority or warrant of law."[26] It can be the basis for removal from office.[27] There are only a few instances where the Code of Virginia specifies what conduct will constitute misfeasance or malfeasance.[28] Without a statutory definition, they remain common law terms.

The question of whether it is malfeasance for a Clerk to decline to perform a ministerial duty because of his personal doubts about constitutionality is fact-specific. For that reason, this Office cannot express an opinion on the question.

Nevertheless, for the foregoing reasons, it is my opinion that a Clerk who applies standing laws of the Commonwealth in good faith, in the absence of a final decree from a court of competent jurisdiction directing him to do otherwise, has not engaged in malfeasance. If a party wishes to challenge the constitutionality of a law being applied by a Clerk, the proper remedy would be mandamus, injunction, prohibition, or declaratory judgment, all civil remedies, not the quasi-criminal remedy of prosecution for malfeasance.

Conclusion

Accordingly, I conclude that while Clerks are subject to the federal and state constitutions, a Clerk performs ministerial duties, and the interpretation of the federal and state constitutions is a discretionary duty for the judicial branch and thus outside his authority. This Office can express no opinion regarding whether declining to apply a statute under the circumstances described herein constitutes malfeasance. Nonetheless, it is my opinion that a Clerk who in good faith enforces an applicable statute, in the absence of a judicial decree that clearly indicates he should do otherwise, has not engaged in malfeasance. Please note that these are only general rules. Again, whether particular conduct constitutes malfeasance is a determination of fact that is beyond the scope of an official opinion of this Office.[29]

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Your opinion request makes reference to "constitutional officers; whether they be clerks, sheriffs, commissioners, treasurers, commonwealth attorneys, board [sic] of supervisors, mayors, councilmembers, or other elected officials." As the Clerk of Lunenburg Circuit Court, you are authorized pursuant to § 2.2-505(A) of the Code of Virginia to request official advisory opinions of this Office; however, pursuant to § 2.2-505(B), the inquiry must be "directly related to the discharge of [your] duties." This response therefore applies only to Clerks of Circuit Courts. See, e.g., 2009 Op. Va. Att'y Gen. 80, 81 and n.17.

[2] For example, the Attorney General of Virginia may and should use his independent judgment when there is a question of the constitutionality of a state law. See Gilmore v. Landsidle, 252 Va. 388, 478 S.E.2d 307 (1996) (Attorney General James Gilmore).

[3] Va. Const. art. VII, § 4.

[4] See, e.g., 2013 Op. Va. Att'y Gen. 151 n.13, and opinions cited therein ("The clerk, as a constitutional officer, may choose the means by which he fulfills his duties unless the General Assembly has limited his discretion."). See id., at 153 ("The Clerk of Court, as a constitutional officer, must abide by the law and his oath of office, which requires him to 'faithfully and impartially discharge all the duties incumbent upon' him.") (quoting Va. Const. art. II, § 7). See also Va. Code Ann. § 15.2-1634 (2012) (providing expressly that the clerk "shall exercise all powers and all the duties imposed upon such officers by general law").

[5] 2009 Op. Va. Att'y Gen. 38, 40 (citing, inter alia, Mendez v. Commonwealth, 220 Va. 97, 255 S.E.2d 533 (1979); Harvey v. Chesapeake & Potomac Tel. Co., 198 Va. 213, 93 S.E.2d 309 (1956)); accord 2003 Op. Va. Att'y Gen. 60; 2001 Op. Va. Att'y Gen. 121.

[6] Small v. Fed. Nat'l Mortgage Ass'n, 286 Va. 119, 127, 747 S.E.2d 817, 821 (2013) (citing cases).

[7] Id. (citing Black's Law Dictionary 28 (9th ed. 2009)).

[8] Id. (emphasis added) (quoting Moreau v. Fuller, 276 Va. 127, 135, 661 S.E.2d 841, 845-46 (2008)).

[9] See, e.g., 1973-74 Op. Va. Att'y Gen. 65A (concluding that "[w]hether a deed which is admitted to record gives constructive notice is a judicial question, and a clerk is not justified in rejecting a deed which appears to meet the requirements of [the applicable statute] on the basis that the acknowledgement ... may be held to be invalid by a court"); 2002 Op. Va. Att'y Gen. 270, 271 ("clerk has no duty to inquire beyond the statutory requirements for the recordation of an instrument" and "clerk is limited in his ability to refuse to record an instrument that meets the statutory requirements for recordation"); 1987-88 Op. Va. Att'y Gen. 208, 210 and opinions cited therein.

[10] See Richland Med. Ass'n v. Commonwealth, ex rel. State Health Comm'r, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985) ("Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed on him by law.").

[11] See Brown v. Saunders, 159 Va. 28, 35-36, 166 S.E. 105, 107 (addressing whether apportionment bill conformed with constitutional mandates).

[12] 5 U.S. (1 Cranch) 137 (1803).

[13] Wise v. Bigger, 79 Va. 269, 273 (1884) (citing Marbury, 5 U.S. at 170-80).

[14] Id., at 274 (quoting Wolfe v. McCaull, 76 Va. 876 (1882)). As Chief Justice Marshall observed in Marbury, "the Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish." 5 U.S. (1 Cranch) at 166. "It is emphatically the province and duty of the Judicial Department [i.e., the federal courts] to say what the law is." Id., at 177.

[15] See Loving v. Virginia, 388 U.S. 1 (1967).

[16] Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008).

[17] NAACP v. Harrison, 202 Va. 142, 116 S.E.2d 55 (1960).

[18] Tanner v. Virginia Beach, 277 Va. 432, 438, 674 S.E.2d 848, 852 (2009).

[19] Roanoke v. Elliot, 123 Va. 393, 406, 96 S.E. 819, 824 (1918).

[20] Fisher v. Univ. of Texas, 570 U.S. 297 (2013), slip op. at 8 (Kennedy, J.).

[21] See Loving, 388 U.S. at 1.

[22] Roanoke v. James W. Michael's Bakery Corp., 180 Va. 132, 142, 21 S.E.2d 788, 792 (1942) (citing Richmond Linen Supply Co. v. Lynchburg, 160 Va. 644, 647, 169 S.E. 554 (1942), affirmed by 291 U.S. 641 (1934)).

[23] Va. Const. art. I, § 7.

[24] Cf. 2007 Op. Va. Att'y Gen. 30 n.8 (citing cases supporting the proposition that administrative agencies have no power to determine the constitutional validity of statutes).

[25] 1987-88 Op. Va. Att'y Gen. 69, 71.

[26] Warren v. Commonwealth, 136 Va. 573, 118 S.E. 125, 129 (1923).

[27] See Va. Code Ann. § 24.2-233 (2011) (providing that, "[u]pon petition, a circuit court may remove from office any elected officer ... [f]or neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office ...").

[28] See, e.g., Va. Code Ann. §§ 2.2-1115 (2011) (certain purchasing violations constitute malfeasance), 2.2-3122 (2011) (willful violation of State and Local Government Conflict of Interests Act is malfeasance); Va. Code Ann. § 19.2-55 (2008) (person who issues a search warrant without affidavit guilty of malfeasance); Va. Code Ann. § 22.1-91 (2011) (certain school division officers guilty of malfeasance in office for expenditures exceeding the funds available for school purposes for that fiscal year).

[29] See 1969-70 Op. Va. Att'y Gen. 211A, 212 (concluding that factual situation involving action of a sheriff would have to be judicially weighed to determine whether malfeasance had occurred); 1987-88 Op. Va. Att'y Gen. 69, 72 (explaining, in context of inquiry implicating potential criminal liability for malfeasance or misfeasance for violation of a statute by a public officer, that the application of elements of a criminal offense to a specific set of facts is a function properly reserved to the Commonwealth's attorney, the grand jury, and the trier of fact).