Home Virginia Politics Del. Morrissey Writes Cuccinelli, McDonnell Citing Statute on Star Scienitific Case

Del. Morrissey Writes Cuccinelli, McDonnell Citing Statute on Star Scienitific Case


Paul Goldman just emailed to say, “Delegate Joe Morrissey, citing state statutes, alerts the AG and the GUV to possible problems with how special counsel was appointed in the Star Scientific tax case.”

April 17, 2013

The Honorable Ken Cuccinelli,

Attorney General of Virginia

900 East Main Street

Richmond, Virginia 23219


Dear General Cuccinelli:

I hope that this letter finds you well and enjoying this pleasant spring weather.  With respect to the above referenced matter, a reading of §2.2-510 of the Code of Virginia, 1950, as amended, reveals that your recent appointment of Mr. Rosenthal and Mr. Hurd to represent the Commonwealth in the state tax lawsuit against Star Scientific is improper and in violation of the Virginia Code.  

As you are aware, §2.2-510 of the Code sets forth the parameters as to when and how the Attorney General can appoint special counsel to represent either the Commonwealth of Virginia or one of its departments, institutions, agencies, etc.

In the instant matter, it is clear that §2.2-510 (4) controls.  That code section reads as follows:

“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 interest, or that he is unable to render certain legal services, the Governor may employee special counsel [emphasis added] or other assistance to render such services that may be necessary”

The other provisions under §2.2-510 (1), (2), (3), and (5) respectively, simply do not apply.  Specifically, in the matter involving Star Scientific, it is not the case that the Attorney General’s office is “unable to render such service” or that it is “uneconomical for the Attorney General to render such services.” Rather, it is clear that due to your association with Star Scientific (i.e. recipient of campaign funds, stockowner, recipient of lodging, etc.), you have a conflict.  In fact, if you were to solicit an opinion from the Virginia State Bar, they would most certainly opine that you and your office should recuse itself from the prosecution of any matter involving Star Scientific because of your conflict.

General Cuccinelli, conflicts occur all the time and I am not suggesting any improper or untoward behavior by either you or your office.  However, I am strongly suggesting that the manner in which you went about appointing counsel is contrary to the law and must be corrected.  

§2.2-510 (4) clearly states that it is the Governor – and not the Attorney General – that must employ special counsel.  Accordingly, since you, and not the Governor, did the appointment of Mr. Rosenthal and Mr. Hurd (two well-known and well-respected attorneys), any actions taken by them in the matter against Star Scientific could be challenged due to the failure to follow the law in their respective appointment.  Indeed, if the ultimate Court ruling went against Star Scientific, they could challenge any adverse decision due to the initial improper appointment of Messrs. Rosenthal and Hurd.

Finally, I would be remiss if I did not address the following.  The appointment of special counsel by the Governor under §2.2-510 (4) begs the following question.  What if the Governor, himself, has a conflict with Star Scientific? (Unquestionably, he does.)  In that case, I believe that the Governor should do what circuit courts routinely do and write the Supreme Court and request the appointment of independent special counsel.  

General Cuccinelli, I am not writing this letter to bring you any unwanted embarrassment or criticism.  At no time have I ever suggested that you – or the Governor for that matter – have done anything improper.  Further, unlike some of my democratic colleagues, I am not suggesting a Federal investigation.  However, as a member of the Virginia General Assembly, I am specifically stating that the appointment process was contrary to and inconsistent with Virginia law and must be addressed immediately.  

Sincerely yours,

Joseph D. Morrissey

Representative – 74th District

Cc; The Honorable Robert F. McDonnell, Governor

ENCLOSURE (Virginia Code §2.2-510)