News Post

By Ryan W. Shaw

Readers of The Alabama Lawyer were last introduced to the Alabama Attorney General’s Opinions Division 22 years ago. William H. Pryor, Jr., A Report from the State’s Law Firm, 62 Ala. Law 264 (2001). This article will reintroduce you to the Opinions Division with a comprehensive look at every stage from opinion request to published opinion. But first, a quick review of the attorney general’s authority to issue opinions.

The attorney general is required by law to provide advisory opinions upon request to state and local public officials and public entities on issues related to any question of law that the official or entity has an immediate duty to perform.[1] Ala. Code § 36-15-1(1)a-b (2013).

The legal opinions of the attorney general are advisory and not binding; however, a requestor’s compliance with an opinion provides protection from liability to state, county, or other municipal divisions and is persuasive authority for courts. § 36-15-19 (2013); Poe v. Grove Hill Mem’l Hosp. Bd., 441 So. 2d 861, 863 (Ala. 1983) (“[O]pinions of the Attorney General are not binding on this Court…”). The attorney general is prohibited from answering questions that are “moot, private, or personal questions . . . or questions that are subject to ongoing litigation.” § 36-15-1(1)d (2013). In addition, the attorney general is not authorized to provide opinions to private citizens.

State officials who may request an opinion include the “Governor, Secretary of State, Auditor, Treasurer, Superintendent of Education, Commissioner of Agriculture and Industries, Director of Finance, Comptroller, State Health Officer, Public Service Commissioners, Commissioner of Conservation and Natural Resources, . . . the Commissioner of Revenue,” other eligible officers or departments of state, and “the Chairman of the Judiciary Committee of either house.” Id. at (1)a. In addition, upon request, the attorney general shall issue opinions to the “Judge of probate, clerk of the circuit court, sheriff, city and county boards of education, county commission, register of the circuit court, tax collector, tax assessor, mayor or chief executive officer of any incorporated municipality, city council or like governing body of any incorporated municipality,” plus any officer “required to collect, disburse, handle, or account for public funds.” Id. at (1)b.[2]

Given the diversity of public officials eligible to request an attorney general’s opinion, it follows that the opinion topics covered are just as diverse. Questions addressed include issues requiring an analysis of the Competitive Bid Law, the Public Works Law, the Open Records Law, ad valorem taxes, election law, use of county or municipal funds, use of law enforcement funds, compliance with firearms laws, and the Alabama Memorial Preservation Act, to name a few.

Opinions issued by the attorney general can have a local or statewide impact. Therefore, as demonstrated below, great care is taken to ensure that all opinions issued are thoroughly reviewed prior to their publication.

In the Opinions Division there are three full-time attorneys (including the division chief), a part-time contract attorney, and a legal research assistant. The division chief handles daily inquiries, drafts letters notifying requestors if an opinion request was previously answered by another opinion, and assigns opinion requests to the other attorneys. In 2021, the Opinions Division received 87 opinion requests that resulted in 55 published opinions. In 2022, 82 opinion requests were received, resulting in 52 published opinions. The current average turnaround time is 97 days from the date the opinion request is received to publication. What follows is a look at what takes place during those 97 days.

Once an opinion request is received it is evaluated to make certain that it complies with all statutory requirements governing the submission of opinion requests. § 36-15-1(1)(d). If the opinion request is properly submitted, the division chief assigns the request to an attorney within the division, a contract attorney, or, if the request requires specialized knowledge of a subject matter, to another assistant attorney general serving in a different department. For example, an opinion request regarding the division of proceeds from gasoline taxes may be assigned to the Alabama Department of Revenue for a response.

Attorneys are typically given two weeks to research and draft a response to an opinion request. Once submitted, the opinion request is reviewed by the division chief, who will either return the draft with comments or begin circulating the draft to a committee comprised of a representative of each division within the attorney general’s office.

Occasionally, additional attorneys with specialized knowledge of the issue presented or representatives of those organizations directly impacted by the opinion are added to the initial committee to provide comments. Committee members will either concur or dissent with comments. If the initial committee has comments, the opinion request is returned to the drafting attorney for a response. A response by the drafting attorney may require discussion with the dissenter, no action, small edits, or a total rewrite. If the opinion draft clears the first committee, it is then sent to the executive committee.

The executive committee is made up of members from the attorney general’s executive division. The executive committee will either concur in the draft opinion or dissent with comments. Again, if a dissent occurs, the draft opinion is returned to the drafting attorney for response, and the comments may cause the document to be edited or rewritten.

If the draft opinion clears the executive committee, it is then sent to the attorney general for his review. As with the initial committee and the executive committee, the attorney general will either concur with the result or dissent with comments. If the draft opinion is approved, it is then prepared for publication.

Typically, a copy of the opinion is sent to the requester two weeks prior to publication. The opinion is then assigned a number and published to the attorney general’s website in compliance with state law. § 36-15-1(3).

If a published opinion is later modified or overturned by a new law, court case, or a new opinion, a box is appended to the upper right-hand corner of the opinion noting that it is modified or overruled, or a note may be added providing the reader with necessary context before relying on the opinion. As of now, opinions with notes providing status updates are only available on the attorney general’s website since legal search engines do not go back and check for updates once they upload them to their search engines. Caution is urged if relying on an opinion found on a legal search engine, and you should check the current status of the opinion on the attorney general’s website.

Archived opinions on the attorney general’s website go back to 1979. Plans include adding older opinions to the attorney general’s website. Until then, physical copies of attorney general’s opinions published before 1979 are available at the attorney general’s office or at the Alabama Department of Archives and History. The attorney general’s office will provide copies of opinions issued prior to 1979 at no cost.

Endnotes

[1] Forms for submitting an opinion request and searchable archived opinions are available to the public at www.alabamaag.gov/opinions. The opinion request form must be printed, contain an original signature, and a resolution (if required), and be mailed to the Alabama Attorney General’s Office.

[2] Note that “[a]ny officer or governing body of a municipality or county or officer or governing body of any other elected or appointed body” shall submit a resolution along with their opinion request “setting forth the facts showing the nature and character of the question which makes the advice or opinion sought necessary to the present performance of some official act that the officer or governing body must perform.” § 36-15-1(1)(c) (2013).