COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
CAROL A. BRUNTY, COMMISSIONER,
VIRGINIA DEPARTMENT OF SOCIAL SERVICES
OPINION BY
v. Record No. 0725-95-2 JUDGE ROSEMARIE ANNUNZIATA
MARCH 26, 1996
BARBARA SMITH
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
Charles L. McCormick, III, Judge
Craig M. Burshem, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
William H. Hurd, Deputy Attorney General;
Siran S. Faulders, Senior Assistant Attorney
General, on brief), for appellant.
John M. Boswell for appellee.
A local department of appellant, Virginia Department of
Social Services ("DSS"), determined that appellee, Barbara Smith
("Smith"), had committed "Founded-Physical Abuse-Level 3" against
J. H. ("child"). Smith appealed to the Commissioner of DSS
("Commissioner"), who affirmed the local department's finding.
Smith appealed to the Circuit Court of Lunenburg County, which
reversed the Commissioner's decision and dismissed the case. DSS
appealed, contending that the trial court erred in reversing the
Commissioner's affirmance. DSS also filed a motion to vacate
both the trial court's order appointing a "special prosecutor"
and its order reversing the Commissioner's affirmance. We agree
with DSS' contention that the court had no authority to appoint a
special prosecutor and remand this case for a new hearing. 1
The facts are as follows. After Smith appealed the
Commissioner's decision to the Lunenburg County Circuit Court,
the court appointed Edwin B. Baker ("Baker"), Commonwealth's
Attorney of Charlotte County, as a special prosecutor to act on
behalf of DSS after finding that Smith was a personal friend of
the Commonwealth's Attorney for Lunenburg County. Neither DSS
nor the Attorney General's Office received notice of Baker's
appointment. Meanwhile, the Attorney General's Office entered
its appearance as counsel of record by filing an answer to
Smith's petition for appeal. Notwithstanding the Attorney
General's appearance in the case, neither it nor DSS was notified
of the circuit court hearing scheduled on the matter.
At the hearing, Baker, after reviewing the evidence in the
case, represented to the court that he found the evidence
insufficient to support the finding of child abuse. Baker
thereafter prepared an order which the court entered, dismissing
the matter and ordering that Smith's name be removed from any
register identifying her as having been found guilty of Physical
Abuse-Level 3. Baker signed the order under the heading, "We ask
for this." The order states that Baker "acted with full
knowledge and concurrence of the office of the Attorney General."
DSS' motion to vacate is based on the trial court's
1
Because we decide the case on the grounds raised in
DSS' motion to vacate, we address neither Smith's motion to
dismiss nor the merits of the issues raised on appeal.
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appointment of a prosecutor to act on behalf of DSS. DSS claims
the appointment was improper and deprived it of legal
representation before the court. DSS contends that the case was
civil, not criminal, and that Code § 2.1-121 requires that DSS be
represented by the Attorney General's Office in such cases. We
agree.
The matter before the court was civil in nature rather than
criminal. See Jackson v. W., 14 Va. App. 391, 410, 419 S.E.2d
385, 396 (1992); cf. Commonwealth v. Gray, 248 Va. 633, 635-36,
449 S.E.2d 807, 809 (1994) (proceedings on unreasonable refusal
charge are civil and administrative in nature). Code § 2.1-121 2
2
Code § 2.1-121 provides, in part:
All legal service in civil matters for
the Commonwealth, the Governor, and every
state department, institution, division,
commission, board, bureau, agency, entity,
official, court, or judge, including the
conduct of all civil litigation in which any
of them are interested, shall be rendered and
performed by the Attorney General, except as
hereinafter provided in this chapter and
except for any litigation concerning a
justice or judge initiated by the Judicial
Inquiry and Review Commission. No regular
counsel shall be employed for or by the
Governor or any state department,
institution, division, commission, board,
bureau, agency, entity, or official. The
Attorney General, in his discretion, may
represent personally or through one or more
of his assistants any number of state
departments, institutions, divisions,
commissions, boards, bureaus, agencies,
entities, officials, courts, or judges which
are parties to the same transaction or which
are parties in the same civil or
administrative proceeding and may represent
multiple interests within the same
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provides that the Office of the Attorney General shall provide
all legal services for the Department of Social Services in civil
matters. See also Code § 2.1-121.2. 3 In the context of Code
§ 2.1-121, the term "shall" is mandatory and reflects the General
Assembly's intention that there be no discretion in complying
with statute, except as provided in the statute itself. See Sink
v. Commonwealth, 13 Va. App. 544, 546-47, 413 S.E.2d 658, 659-60
(1992). Code § 2.1-121 contains three exceptions: (1) where the
(..continued)
department, institution, division,
commission, board, bureau, agency, or entity.
The Attorney General, in his discretion, may
represent personally or through one of his
assistants any of the following persons who
are made defendant in any civil action for
damages arising out of any matter connected
with their official duties: any member,
agent, or employee of . . . the Department of
Social Services. . . . If, in the opinion of
the Attorney General, it is impracticable or
uneconomical for such legal service to be
rendered by him or one of his assistants, he
may employ special counsel for this purpose,
whose compensation shall be fixed by the
Attorney General.
3
Code § 2.1-121.2 provides:
Notwithstanding any other provision of
law, if the Attorney General finds after
consultation with the head of the affected
department that it is in the best interests
of the Commonwealth to do so, the Attorney
General may, in his discretion, authorize any
employee of his office or any employee of a
department to represent that department or an
affiliated body in any administrative
proceedings before the department, an
affiliated body or before any hearing officer
or examiner appointed or employed by the
department or affiliated body.
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chapter expressly grants an exception, see Code § 2.1-122; 4 (2)
4
Code § 2.1-122 provides:
No special counsel shall be employed for
or by the Governor or any state department,
institution, division, commission, board,
bureau, agency, entity, official, justice of
the Supreme Court, or judge of any circuit
court or district court except in the
following cases:
(a) Where because of the nature of the
service to be performed, the Attorney
General's office is unable to render same,
the Governor after issuing an exemption order
stating with particularity the facts and
reasons upon which he bases his conclusion
that the Attorney General's office is unable
to render such service, may employ special
counsel to render such service as the
Governor may deem necessary and proper.
(b) In cases of legal services in civil
matters to be performed for the Commonwealth,
where it is impracticable or uneconomical for
the Attorney General to render same, he may
employ special counsel whose compensation
shall be paid out of the appropriation for
the Attorney General's office.
(c) In cases of legal services in civil
matters to be performed for any state
department, institution, division,
commission, board, bureau, agency, entity,
official, justice of the Supreme Court, or
judge of any circuit court or district court
where it is impracticable or uneconomical for
the Attorney General's office to render same,
special counsel may be employed but only upon
the written recommendation of the Attorney
General, who shall approve all requisitions
drawn upon the Comptroller for warrants as
compensation for such special counsel before
the Comptroller shall have authority to issue
such warrants.
(d) In cases where the Attorney General
certifies to the Governor that it would be
improper for the Attorney General's office to
render legal services due to a conflict of
interests, or that he is unable to render
certain legal services, the Governor may
employ special counsel or other assistance to
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where the litigation, initiated by the Judicial Inquiry and
Review Commission, involves a justice or judge; and (3) where the
Attorney General determines that it is impractical or
uneconomical for his or her office to render the services.
None of the exceptions apply in this case. The trial court
had no authority to appoint a "special prosecutor" to represent
DSS in a civil proceeding. Baker had no authority to represent
DSS either at the hearing or by his signature on the final
order. 5 For these reasons, the final order was entered
improperly, without endorsement of counsel of record. See Rule
1:13; Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717,
719 (1988); Westerberg v. Westerberg, 9 Va. App. 248, 250, 386
S.E.2d 115, 116 (1989).
Accordingly, both the trial court's order appointing Baker
as "special prosecutor" and its order reversing the
Commissioner's decision in this case are vacated and the matter
remanded for any further proceedings deemed appropriate.
(..continued)
render such services as may be necessary.
5
Smith contends the Attorney General knew that the
matter had been assigned to a prosecutor and concurred in the
decision to allow the prosecutor to proceed with the case. It is
unclear from the evidence to what extent the Attorney General's
Office was aware of Baker's representation of DSS. However, the
Attorney General's knowledge or concurrence, even if established,
is not determinative under the facts of this case. Neither
waiver nor estoppel may be raised to bar the government from
exercising its governmental functions. See Sink, 13 Va. App. at
547-48, 413 S.E.2d at 660-61; Monument Associates v. Arlington
County Board, 242 Va. 145, 151, 408 S.E.2d 889, 892 (1991); cf.
Falls v. Virginia State Bar, 240 Va. 416, 418, 397 S.E.2d 671,
672 (1990) (applying same principle to administrative agency).
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Vacated and remanded.
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