Can a Virginia Commonwealth's Attorney appeal a circuit court tax ruling to the Virginia Supreme Court?

Plain-English summary

Commonwealth's Attorney Ervin of Augusta County asked the AG whether he could appeal a tax ruling to the Virginia Supreme Court. The chain of events: residents had filed a petition with Ervin under § 58.1-3003 demanding that he appeal a tax order issued by the Augusta County Board of Supervisors. Ervin filed the appeal in the Augusta County Circuit Court, as the statute requires. The county filed a demurrer; the circuit court granted it and dismissed the appeal. Some constituents then asked Ervin to appeal further to the Virginia Supreme Court. Could he?

The AG said no.

Section 58.1-3003 imposes a duty on the Commonwealth's Attorney to appeal "an order for imposition of taxes made by his governing body" to the circuit court if (a) the CA believes it is illegal or (b) one percent of the registered voters of the county (no fewer than 50) demand it. The statute is silent about appeals beyond the circuit court. Under the standard interpretive rule that statutes specifying a particular forum and procedure imply no other, the AG read the statute as a single-court authority. The Commonwealth's Attorney is not required to appeal, and an authority that does not exist cannot be exercised.

The AG drew an analogy to a previous opinion of this office concluding that the General Assembly had not granted the Commonwealth's Attorney authority to appeal a circuit court's decision to grant a concealed weapon permit. The reasoning: when the legislature wants to grant appellate authority, it does so in plain language. Section 58.1-3003 does not do that.

The AG also noted that the modern role of the Commonwealth's Attorney consists principally of representing the Commonwealth in criminal cases and in certain civil matters closely related to criminal cases. Pursuing a tax appeal to the Supreme Court is outside that core.

Finally, the AG pointed to § 8.01-670(1)(f), which allows "any person" who believes himself aggrieved by a judgment in a tax controversy to petition for an appeal to the Supreme Court. The Commonwealth's Attorney does not qualify as an "aggrieved party" in this setting. The taxpayers who are aggrieved may pursue their own Supreme Court appeal at their own initiative and expense.

Currency note

This opinion was issued in 2011. 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.

Virginia's appellate structure changed substantially when the Court of Appeals gained jurisdiction over civil appeals in 2022. The route for a tax case today may go through the Court of Appeals before reaching the Supreme Court. Section 58.1-3003 itself and § 8.01-670 should also be checked in their current form before relying on the specific framework this opinion describes.

Common questions

Why doesn't the Commonwealth's Attorney count as an aggrieved party?

Because the Commonwealth's Attorney files the § 58.1-3003 appeal in a representative capacity (either acting on the CA's own opinion that the levy is illegal, or under a citizen petition). The CA is not personally subject to the tax. The real economic injury sits with the taxpayers. Section 8.01-670(1)(f) is keyed to the aggrieved party with the personal stake.

Could the petitioning citizens force the CA to pursue an appeal?

The opinion says the CA is not required by § 58.1-3003 to appeal an adverse circuit court decision. If the citizens want to push higher, they can file their own appeal as the aggrieved parties.

What if the Board of Supervisors really did impose an illegal tax?

The remedy is in the taxpayers' hands at that point. They can mount an appeal under § 8.01-670(1)(f). They may also have direct refund claims or other remedies under Virginia tax law. The AG opinion is not a blessing of the underlying tax; it is a procedural ruling on who can take the next appellate step.

What does the Dillon Rule have to do with this?

The AG did not invoke the Dillon Rule by name, but the reasoning is similar in spirit. Constitutional officers have powers spelled out by statute and constitution; what is not granted is not implied. The Commonwealth's Attorney's authority in this area comes from statutes like § 58.1-3003. Beyond those, no implied appellate power exists.

Does this apply to city Commonwealth's Attorneys too?

The opinion addresses § 58.1-3003 which mentions "the attorney for the Commonwealth of any county," but the same statutory-construction logic would apply to similar limits on city CAs in their own statutes. A city Commonwealth's Attorney seeking to appeal a tax matter beyond circuit court would face the same question of express statutory authority.

Background and statutory framework

The constitutional and statutory anchors for the Commonwealth's Attorney:

• Va. Const. art. VII, § 4. Office of Commonwealth's Attorney is a constitutional office.
• The opinion noted that the duties and compensation of such constitutional officers are prescribed by general law or special act, and that their duties principally involve criminal prosecution plus certain related civil matters (the opinion gave no section numbers for these points).

The specific tax-appeal statute:

• Va. Code Ann. § 58.1-3003. Commonwealth's Attorney must appeal an order for imposition of taxes to the circuit court if he believes it illegal or if 1% of registered voters (minimum 50) petition for it.

The general aggrieved-party appeal route:

• Va. Code Ann. § 8.01-670(1)(f). "Any person" believing himself aggrieved may petition for a Supreme Court appeal in tax controversies.

The interpretive principle:

• Expression of one mode of authority is exclusion of others. When the General Assembly specifies the forum and procedure, it implies no other.

The supporting precedent:

• A previous opinion from this office: the Commonwealth's Attorney lacks authority to appeal a circuit court's grant of a concealed weapon permit because the statute did not provide it. "Had the General Assembly intended to permit a Commonwealth's attorney to appeal the circuit court decision to grant a concealed weapon permit application, it could have done so in plain language."

The factual posture:

• Augusta County, population over 35,000.
• 2010: citizen petition filed under § 58.1-3003.
• CA filed appeal in Augusta County Circuit Court.
• County's demurrer granted; appeal dismissed.
• Constituents asked CA to appeal further.

Citations

• Va. Code § 2.2-505
• Va. Const. art. VII, § 4
• Va. Code Ann. § 8.01-670(1)(f)
• Va. Code Ann. § 58.1-3003

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-019-Ervin.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

March 18, 2011

The Honorable A. Lee Ervin, Esquire
Commonwealth's Attorney of Augusta County
6 East Johnson Street
Staunton, Virginia 24401

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Ervin:

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

Issue Presented

You ask whether the Commonwealth's Attorney has the authority to appeal a ruling of the County Circuit Court to the Supreme Court of Virginia, when that ruling dismissed an appeal challenging the imposition of taxes by the Augusta County Board of Supervisors.

Response

It is my opinion that the limited authority found in § 58.1-3003 does not authorize a Commonwealth's Attorney to appeal to the Supreme Court of Virginia an order from a circuit court with respect to the imposition of taxes by a local governing body.

Background

You relate that you are the Commonwealth's Attorney for Augusta County, which has a population in excess of 35,000. You report that, in 2010, you received a petition filed with your office pursuant to § 58.1-3003 of the Code of Virginia, which demanded that you appeal an order for the imposition of taxes that had been imposed by the Augusta County Board of Supervisors. You state that, in conformity with § 58.1-3003, you appealed this tax levy to the Augusta County Circuit Court. The attorney for Augusta County filed a demurrer requesting the dismissal of the appeal, and the Augusta County Circuit Court granted the demurrer and dismissed your appeal. You indicate that a request has been made that you appeal this ruling to the Supreme Court of Virginia.

Applicable Law and Discussion

The office of Commonwealth's Attorney is a constitutional office created pursuant to Article VII, § 4 of the Constitution of Virginia. The duties and compensation of such constitutional officers are prescribed by general law or special act. Although the duties of the Commonwealth's Attorney principally involve the prosecution of crime, the Code also imposes duties that are civil in nature.

Section 58.1-3003 establishes such a duty. It requires a Commonwealth's Attorney to appeal a tax levied by a county to the circuit court "[i]f the attorney for the Commonwealth of any county is of the opinion that an order for imposition of taxes made by his governing body is illegal or if he receives a petition of one per centum of the registered voters of the county, but no fewer than fifty such voters, demanding that he appeal such order[.]" No provision is made with regard to subsequent appeals to the Supreme Court of Virginia.

In this instance, the statutory command is limited to a filing in the circuit court. Certainly, the Commonwealth's Attorney is not required under the plain language of § 58.1-3003 to appeal an adverse decision from a circuit court. Whether the Commonwealth's Attorney may appeal is a closer question. A previous opinion from this office concluded that the General Assembly had not granted the Commonwealth's Attorney the authority to appeal from a decision to grant a concealed weapon permit application. The court observed that the Commonwealth's Attorney's role was specifically delineated in the statute, and this did not include the authority to appeal. This Office concluded that "[h]ad the General Assembly intended to permit a Commonwealth's attorney to appeal the circuit court decision to grant a concealed weapon permit application, it could have done so in plain language." I conclude in this specific context that the same reasoning applies. This conclusion accords with the modern conception of the role of the Commonwealth's Attorney, whose duties principally consist of representation of the Commonwealth in criminal cases and in certain civil matters that are closely related to criminal cases.

Finally, I note that § 8.01-670(1)(f) allows "any person" to "petition for an appeal to the Supreme Court if he believes himself aggrieved . . . [b]y any judgment in a controversy concerning [t]he right of the Commonwealth, or a county, or municipal corporation to levy tolls or taxes . . . ." The Commonwealth's Attorney is not an aggrieved party in this situation. Rather, the taxpayers who are aggrieved may appeal to the Supreme Court of Virginia at their own initiative and expense.

Conclusion

Accordingly, it is my opinion that the limited authority found in § 58.1-3003 does not authorize a Commonwealth's Attorney to appeal an order from a circuit court with respect to the imposition of taxes by a governing body to the Supreme Court of Virginia.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General