State AG Opinions
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Can Maryland limit a charter county's ordinances from overriding a town's own home rule laws without amending the state constitution?
In this 1982 opinion, the Maryland Attorney General concluded that limiting how charter county ordinances apply to municipalities within that county does not require a constitutional amendment, becaus…
Could Maryland have required public schools to give equal classroom time to creation-science and evolution?
In this 1982 opinion, the Maryland Attorney General concluded that House Bill 1078, which would have required public schools to give creation-science and evolution-science equal time, equal textbook p…
If Maryland spouses jointly own a house, does a lender need both signatures to use the house as loan collateral?
In this 1982 opinion, the Maryland Attorney General concluded that state law did not require a lender to obtain a spouse's or co-owner's signature to make individually-owned or jointly-owned (non-enti…
Could Maryland's Governor issue a binding executive order setting statewide development policy that agencies had to follow?
In this 1982 opinion, the Maryland Attorney General concluded that the Governor had statutory authority under Article 41 to issue a proposed executive order setting statewide physical and economic dev…
May a North Carolina county adopt an ordinance regulating the method of trapping wildlife?
No. The AG concluded the General Assembly had preempted the entire field of wildlife regulation in G.S. 113-133.1, leaving only ordinances with 'minor and incidental' impact (such as a no-firearm-disc…
If a convicted Maryland official's felony conviction is reversed on appeal, are they owed back pay right away, or only once the appeal is completely final?
In this 1982 opinion, the Maryland Attorney General concluded that the 1979 payment of back pay to former Governor Marvin Mandel was lawful, because Article XV, Section 2 of the Maryland Constitution …
Did the 1981 amendment to North Carolina's interest-on-judgments statute, G.S. 24-5, allow clerks to assess interest on costs?
No. The AG concluded the 1981 amendment to G.S. 24-5 (Session Laws 1981, c. 327) was aimed at changing the accrual period for interest on compensatory damages in tort actions covered by liability insu…
Could a Maryland bank in 1980 raise the interest rate on an existing credit card balance after the state's usury ceiling went up?
In this 1982 opinion, the Maryland Attorney General concluded that a bank could raise the interest rate on a cardholder's existing credit card balance after Maryland raised its usury ceiling in 1980, …
If a North Carolina business holds a federal firearms license and brings handguns into inventory for resale, does the business also need a sheriff's permit for each handgun, and what happens when a pawn shop owner pulls a handgun out of inventory for personal use?
No sheriff's permit is required to bring a handgun into a federally licensed dealer's or pawn shop's resale inventory. But once a handgun is removed from inventory and converted to the dealer's or paw…
When can a North Carolina sheriff deny a permit to possess a machine gun for scientific or experimental purposes, and does federal firearms registration override the state permit requirement?
The AG concluded a sheriff had wide discretion under G.S. 14-409. The sheriff had to satisfy himself the applicant fit within the statute's scientific-or-experimental exception and complied with any c…
If Maryland closed or merged a state college, would it lose federal Land Grant Act funding, and what would happen to tenured faculty?
In this 1982 opinion, the Maryland Attorney General concluded that closing or consolidating a public college that received Morrill-Nelson land grant funding would not jeopardize the State's federal fu…
When a Maryland circuit judge's 15-year term expires and the judge holds over until retirement, when must the newly appointed successor run for election?
In this 1982 opinion, the Maryland Attorney General concluded that when a circuit court judge's 15-year term expired and the judge then held over in office under Article IV until reaching mandatory re…
SDCL 46-5-6.4 lets the Department of Agriculture take water samples from wells to validate water analyses submitted with irrigation permit applications. Some samples submitted by applicants turn out to be invalid (improper sampling, fraud). Does the Department's validation power continue after the irrigation permit has been conditionally or unconditionally approved, or after a water right based on the permit has been acquired? And who pays for the validation sampling?
The validation power is ongoing. The Department can validate water samples both during the application process and afterward, including after a permit has been granted and even after a water right has…
Does the 1981 dual-compensation rule in G.S. 135-72 cut off Uniform Judicial Retirement System benefits for North Carolina judges who had already retired and started serving as federal judges before the statute's October 9, 1981 effective date?
No. The AG concluded G.S. 135-72 (enacted by Chapter 978 of the 1981 Session Laws) used the future-oriented phrases 'members who are appointed' and 'should a retired former member be appointed,' which…
Can a North Carolina nonprofit raffle off a house or other real estate, and if so, who has to be licensed (the organization, the ticket sellers, real estate brokers), and is there a cap on how valuable the property can be?
Yes, an exempt nonprofit may raffle real estate. The $500 prize cap in G.S. § 14-292.1(g) covers cash raffle prizes only, leaving no statutory cap on real estate prize value. The exempt organization's…
When Congress changed federal depreciation rules in August 1981 to apply retroactively to property placed in service after December 31, 1980, did NC corporations get to use those faster federal write-offs for state income tax purposes too, given that NC's corporate tax statute cross-referenced the Internal Revenue Code 'in effect on January 1, 1981'?
Yes. The AG concluded that the federal Economic Recovery Tax Act of 1981's accelerated depreciation rules flowed through to NC corporate income tax for taxable years beginning on or after January 1, 1…
Can a North Carolina court order a criminal defendant to take psychotropic medication against his will, when the medication is needed to make him competent to stand trial and he is refusing it?
Yes, under limited conditions. The AG concluded that a NC court can order involuntary administration of psychotropic medication if a psychiatrist testifies directly that the medication is likely to re…
Can a city police officer tow a car off a private restaurant's parking lot just because the restaurant owner asks, and does the city police department have any duty to arrest people loitering on that private lot?
No on both counts. The AG concluded that the police should not tow a vehicle from private property unless the owner first puts the request in writing and assumes responsibility for damages. And police…
A meat truck operator brings fresh meat to Mitchell one day a week, every week, for six months. He has paid the transient merchant license fee throughout. Now he wants to claim his business is permanent (and therefore not subject to the transient merchant statute). Does one day a week, repeated, qualify as 'permanent' under SDCL ch. 37-12?
Yes, if he followed the right paperwork. SDCL 37-12-1 says a business operated more than six months in one place by the same person is deemed permanent. SDCL 37-12-3 sets up the filing procedure for t…
If a retired North Carolina district or superior court judge bought back his military service time within the Uniform Judicial Retirement System, does that purchased military service count toward the 15 years of creditable service required to be commissioned as an emergency judge?
Yes. The AG concluded that purchased military service in the Uniform Judicial Retirement System is creditable service for purposes of the 15-year requirement to serve as an emergency judge under G.S. …
Once a North Carolina felon is fully released from probation, parole, and the Department of Correction, can he legally possess a handgun outside his home or business right away, and does a Governor's Pardon of Forgiveness give him his full firearms rights back?
No on both counts. The AG concluded that, after the 1975 repeal of the restoration-of-citizenship exception, a NC felon cannot possess a handgun or weapon of mass destruction outside his home or busin…
If a North Carolina district court judge was serving as a non-attorney judge on January 1, 1981, when a new constitutional amendment required judges to be licensed attorneys, can that judge later sit out a term and then run again, or does taking a break end the grandfather protection?
The judge can run again. AG Rufus L. Edmisten concluded that Article IV, Section 22 of the NC Constitution creates a permanent grandfather clause for any person who was elected or serving as a judge o…
When a child gets a dental exam or dental treatment under North Carolina's Medicaid EPSDT program (Early Periodic Screening, Diagnosis and Treatment), do the regular Medicaid prior-approval rules and copayment rules apply, or are EPSDT dental services treated separately?
EPSDT dental services are separate and are not subject to prior approval or copayment. The AG concluded that the 1979-81 Appropriations Act's prior-approval requirement for 'dental services' applied o…
If someone in North Carolina got welfare benefits by lying on the application and then files for bankruptcy, does the bankruptcy wipe out the county's claim to be paid back, or does the county still have a route to recover the money?
The county can still recover, if the county DSS properly presents its claim in the bankruptcy. A debt for public assistance obtained by fraud, false representation, or a materially false written finan…
Can a North Carolina city deny a special use permit for a bingo establishment to a for-profit corporation whose prizes exceed ten dollars per game?
Yes. The AG concluded a Goldsboro city ordinance conditioned on compliance with the Bingo and Raffles law could be enforced to deny a permit. G.S. 14-292.1 limits regular bingo to tax-exempt organizat…
Do the administrative and investigative assistants a district attorney can hire under G.S. 7A-68 and 7A-69 have to take an oath of office, or are they just employees?
No oath required by default. The 1981 AG concluded that these positions, as defined by the statutes, do not involve the exercise of sovereign State power, so they are employees and not public officers…
When North Carolina's Child Support Enforcement statute says 'the county attorney or an attorney retained by the county and/or State shall represent the State in all proceedings brought under this section' (G.S. 110-135), does that requirement reach only debt-collection actions under 110-135, or also subrogation actions under 110-137?
Both. The 1981 AG concluded that G.S. 110-135's last sentence requires representation by a county or retained attorney in all State-instituted child support enforcement proceedings, whether the action…
When a South Dakota city specially assesses state-owned property for a local improvement, three things are unclear: is the state property assessable at all, does the state owe interest and penalty when it pays the assessment in installments, and does SDCL 5-14-20 give the Bureau of Administration authority to approve interest payments?
State property is subject to special assessments, but the state is not subject to interest or penalty on installment payments because the legislature has not consented to it. The Bureau of Administrat…
Can a South Dakota township borrow money from a bank to buy a road maintainer (grader), spread payments over 10 years, and issue warrants to the bank for each annual payment?
No. A South Dakota township has no statutory power to enter into a 10-year financing contract for equipment. The only authorized methods to fund a road-maintainer purchase are (1) issuing bonds under …
When a fugitive in North Carolina waives extradition and agrees to return to the demanding state, can he post bond and walk out while waiting for officers from that state to come pick him up, or must he stay locked up until they arrive?
Must stay locked up. The 1980 AG concluded that the Uniform Criminal Extradition Act allows bail at one stage only (between arrest as a fugitive and issuance of the Governor's warrant). After arrest o…
Can a member of the Uniform Judicial Retirement System whose only prior service was as a Superior or Appellate Court judge retire from the bench before January 1984 and then later buy military service credit?
No. The 1980 AG concluded that the purchase right under G.S. 135-4(f)(6) requires ten years of 'membership service,' which for judges means service as a judge while a member of the system. The Uniform…
In a county health department's venereal disease clinic with no physician on site, can a registered nurse give gonorrhea treatment (penicillin, tetracycline if allergic, spectinomycin if pregnant) under written standing orders from a physician?
Yes. The 1980 AG concluded the protocol was valid: confirmation of a positive culture or contact status is not a diagnosis the nurse makes, and the physician who wrote the standing orders pre-selected…
In North Carolina, can a Chief Medical Examiner refuse to release a body to the surviving spouse or closest relative because that person is a suspect in the death?
No. Even when the spouse or next of kin is under suspicion, has been arrested, or has been indicted, the Medical Examiner must release the body for burial once examiner duties are complete. The Chapte…
Sioux Falls has grown across the Minnehaha-Lincoln county line, and those two counties are in different judicial circuits. For traffic and criminal offenses committed in the Lincoln County portion of Sioux Falls, can preliminary proceedings (like a guilty plea) be heard in Sioux Falls, Minnehaha County, without a change of venue? And could the legislature pass a statute letting offenses be tried wherever the city is, regardless of which county the offense actually occurred in?
Yes to the first, no to the second. SDCL 23A-17-1 lets a defendant in writing waive trial in the county where the charge is pending and consent to disposition in the arresting county, with the prosecu…
Do North Carolina foster parents who have cared for a child for two or more years have legal standing to file a petition to terminate the biological parents' rights, even if the foster parents are working as agents of the county Department of Social Services that placed the child with them?
Yes. The AG concluded that under G.S. § 7A-289.24(5), any person (including a foster parent) with whom a child has continuously resided for two or more years before the petition has standing to bring …
In North Carolina, can someone other than a licensed physician legally pronounce a person dead?
No, as a matter of medical-practice law: determining whether a person is dead is part of the practice of medicine and must be done by a licensed physician applying ordinary and accepted standards. But…
If a North Carolina defendant on probation falls behind on court-ordered restitution and then files Chapter 13 bankruptcy, does the automatic stay or the eventual discharge prevent the Superior Court from arresting him for violating probation?
No. The 1980 AG concluded that the defendant-probationer may be jailed. The bankruptcy automatic stay expressly does not apply to criminal proceedings (11 U.S.C. § 362(b)(1)). Restitution ordered as a…
Can a volunteer citizen group, even one sanctioned by the Chief District Court Judge to advise the Juvenile Court on custody review, see the confidential protective service case files DSS keeps on children in foster care?
No, unless the group's review is specifically authorized by Social Services Commission or DHR rules as 'directly connected with the administration of public assistance programs.' The 1980 AG concluded…
When a Mecklenburg County partition proceeding's clerk-issued interim ruling on commissioner fees is appealed to Superior Court, does the Superior Court take over the whole case, or does the case go back to the clerk after the judge rules on the appealed issue?
The Superior Court may keep the case. G.S. 1-276 lets the judge 'hear and determine all matters in controversy' in any civil action or special proceeding that comes up from the clerk, or remand to the…
If a North Carolina parent voluntarily admits their child to a psychiatric or mental-health treatment facility, can the parent later remove the child before the required judicial hearing happens?
No. Once the child is admitted on the parent's voluntary application, only the court or the treatment facility itself can release the child, and only when one of them determines the child does not nee…
If a North Carolina county can't pay its share of Medicaid because the legislature suddenly raised the county percentage, can the county borrow money from the State Public Assistance Contingency Fund without holding a referendum?
Yes, but only if the Governor formally declares in writing that the situation is an emergency immediately threatening public health or safety. That route uses the Art. V, Sec. 4(2)(e) constitutional e…
If the State drops or loses a criminal prosecution, does that automatically let the court tax court costs against the prosecuting witness, and does the judge have to make written findings of fact before doing so?
No to automatic taxation; yes to required findings. The 1980 AG concluded that G.S. 6-49 only authorizes taxing costs against the prosecuting witness when the court forms the opinion that 'there was n…
If a North Carolina defendant enters a no-contest (nolo contendere) plea to a felony charge and is sentenced, does that plea by itself strip away the defendant's right to vote, the way a guilty plea or jury verdict of guilty would?
No. The AG concluded that the 1971 NC Constitution, which disqualifies only persons 'adjudged guilty of a felony,' is more specific than the pre-1971 language that disqualified anyone 'convicted, or w…
If a North Carolina driver gets convicted of DWI in a different North Carolina county than where they live and loses their license, do they have to apply for a limited driving privilege in the same level of court (superior or district) that convicted them, or can they pick whichever court is easier in their home county?
The driver has to apply to the equivalent level of court. The AG concluded that when an in-state out-of-county conviction triggers the limited driving privilege application, the driver must apply in t…
If a county or the State has appropriated less money for Aid to the Needy Blind than is needed to pay every fully qualified applicant, can DHR or the county turn applicants away because the money ran out?
No. The 1980 AG concluded that the obligation to accept all duly qualified and otherwise eligible applicants is not reduced or limited by the amount appropriated. A county's failure to fund its share …
Under North Carolina's new Domestic Violence Act, if a police officer has probable cause to believe someone is violating a court protective order but the offender doesn't know the order exists, must the officer make a mandatory arrest under G.S. 50B-4(b)?
No. The 1980 AG concluded that the mandatory arrest provision should be read as requiring probable cause to believe the violation was 'willful.' Civil contempt requires willful disobedience, which req…
When a mineral exploration company drills a well, then signs an agreement turning over the well to the landowner so it can be used as a water well, is the company off the hook for the well? And does the state require a bond from the landowner before the conversion is complete?
Yes, the company is off the hook. SDCL 45-6A-6.14 statutorily allows the conversion and shifts the well's care to the water user (landowner or lessee). No bond may be required from the landowner: SDCL…
Can a South Dakota city operating under a city manager form of government hire a full-time fire chief for its volunteer fire department, and can the fire department's members elect the chief themselves?
Yes to hiring a full-time fire chief, but no to having the firefighters elect that person. Under SDCL 9-10-13, only the city manager appoints administrative officers in a city-manager city. The volunt…
When North Carolina police arrest a juvenile under age 14, can the juvenile waive the right to have an attorney present during interrogation, or does the law require an attorney to be present no matter what the child says?
The juvenile under 14 can waive the right to have an attorney present. But the juvenile cannot waive the separate right to have some supporting adult, a parent, guardian, custodian, or attorney, prese…
Can a registered nurse give a refill dose of caudal anesthesia through a catheter the physician already set in place, when the physician orders the specific refill amount each time?
Yes. The 1979 AG concluded that injecting additional doses of a caudal analgesic through a catheter the physician inserted, on the physician's specific direct order each time, falls within the RN's sc…
Can the North Carolina State Auditor audit the books of hospitals and other Medicaid vendors to verify that DHR paid them correctly, and can the auditor see records that are confidential under state public-assistance law?
Yes to both. The 1979 AG concluded that G.S. 147-58(16) gives the State Auditor general authority to examine vendor books for transactions with State agencies. The confidentiality statute (G.S. 108-45…
Can Maryland's medical board discipline a doctor for pressuring opposing expert witnesses during his own malpractice trial?
In this 1979 opinion, the Maryland Attorney General concluded that the Commission on Medical Discipline had jurisdiction to discipline a physician for pressuring opposing expert witnesses during his o…
Does the State Budget Manual, which dictates how agencies prepare and execute the budget, count as 'rules' under North Carolina's Administrative Procedures Act, and if so does it have to be filed with the Attorney General and go through the standard rulemaking procedure?
Yes to both, with exceptions. The 1979 AG concluded that portions of the Budget Manual that are 'rules' under G.S. 150A-58 must be filed with the Attorney General (under Article 5, Publication of Admi…
Three configurations: (1) Can public assistance pay for care in a rest home owned by an employee of a State Alcoholic Rehabilitation Center? (2) Same, but the home is owned by a corporation where the employee is officer or shareholder? (3) The home is rented from an employee of an area mental health, mental retardation and substance abuse authority?
No, No, and Yes. The 1979 AG concluded that G.S. 108-65.2's prohibition reaches State Alcoholic Rehabilitation Center employees (they are DHR employees) whether they own the home directly or through a…
Can a North Carolina city be served with a garnishment for child support when the noncustodial parent is a city employee, or does sovereign immunity protect the city from garnishment proceedings?
Cities are not immune. The 1979 AG concluded that the general rule (governments cannot be garnished without statutory authorization) does not control under G.S. 110-136, because the statute starts wit…
When a sheriff's deputy or police officer serves or tries to serve a civil summons, does North Carolina law require the court to add a process fee to the case costs and collect it, then send the money to the right governmental unit?
Yes. The 1979 AG concluded that G.S. 7A-311(a)(1) requires the fee to be assessed, collected and remitted whether the officer successfully serves the process or only attempts to serve it. The legislat…
In a worthless check prosecution, can the prosecuting witness get the new $5 witness fee added to costs if the witness wasn't actually present when the magistrate took payment or when the defendant pleaded guilty in court?
No. The 1979 AG concluded that the witness must be in actual attendance on the court to be entitled to the fee. G.S. 14-107(5)'s new fee provision (added by Chapter 837, Session Laws of 1979) is an ex…
When the State of North Carolina is the majority stockholder of a railroad company chartered as a private corporation, can the railroad sell or buy land on its own, or does it need the Governor and Council of State to sign off first?
Sales (dispositions) need Governor and Council approval; ordinary purchases (acquisitions) do not. The 1979 AG read G.S. 124-5 as covering only dispositions, leases, mortgages, and other encumbrances …
When a person under 18 with no prior convictions has three misdemeanor charges consolidated for trial and gets a sentence within the limit for a single offense, can the judge expunge the whole batch under G.S. 15-223?
Yes. The 1979 AG concluded that consolidated misdemeanor charges receiving a single-offense sentence should be treated as one misdemeanor for expungement purposes. The statute is remedial and should b…
Can a North Carolina parent satisfy the state's compulsory attendance law by teaching her child at home, either under the new 1979 nonpublic-school deregulation statutes (Articles 32A and 32B) or under the longstanding 'private school' provision in G.S. 115-166?
No to both. The 1979 AG concluded that home instruction was not a 'school of religious charter' or a 'nonpublic school' under Articles 32A and 32B, which were intended to reach only established educat…
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