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On the topic of civil investigative demands issued by the Attorney General

As Virginia’s 2011 legislative session winds to a close, I am pleased to announce that two bills which sought to strip the Virginia Attorney General of his powers to issue civil investigative demands have failed to pass the House of Delegates. 

Thus all eyes interested in the CID portions of the Virginia Fraud Against Taxpayers Act now turn to the Supreme Court of Virginia, which should be hearing oral argument soon on the AG’s appeal of a Circuit Court order quashing his civil investigative demand to the University of Virginia.  The opening brief was filed (by the AG) on Dec. 14, 2010, and UVa’s response was filed in January. 

In Virginia, as an aside, there is no appeal as of right–thus, the AG’s first battle will be in getting SCOVA to accept this case for appeal.  It has been a number of years since SCOVA dealt with any CID issues, and even then, those CIDs were issued under a different law, so it is possible they will accept this one.  

If they do, as I said a few weeks ago in an interview with a Charlottesville-area newspaper, the decision should be clear.  (And by the way, I have every confidence in the world that SCOVA will get it right).        

Although there isn’t much SCOVA precedent on the topic of CIDs generally and there is zero SCOVA authority regarding CIDs under the Virginia Fraud Against Taxpayers Act, we need only look to the case law from other states and from the United States Supreme Court to see how this one should turn out.   

In fact, in an interesting aside, the state of Florida has perhaps the best-developed body of case law concerning the scope of CIDs.   Florida courts have repeatedly held that the state attorney acts as a one-person grand jury in carrying out investigations into noncapital criminal conduct, and the state attorney must be granted reasonable latitude in that role. Doe v. State, 634 So.2d 613, 615 (Fla.1994)

In an earlier post, I made the analogy between a CID and a grand jury proceeding.  Other Courts, including the United States Supreme Court, agree: 

[The AG] has a power … which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.

See, U.S. v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357 (1950).  

I could go on and on, but readers will get the point.