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The office of attorney general is not mentioned in any of the successive versions of the Fundamental Constitutions of Carolina, the elaborate schemes of government devised by the Lords Proprietors of Carolina from 1669 to 1698. The position existed from an early date, however. George Durant acted as attorney general as early as 1679, and there are frequent references to the title in higher court records after they begin to be abundant in 1696. An act of 1715, which may be a reenactment of an earlier one, provided a table of fees for his remuneration. The attorney general, who was appointed by the governor and Council until the last few years of proprietary rule (1663-1729), when he was appointed directly by the proprietors, represented both the crown and the Lords Proprietors in civil and criminal actions heard by the General Court. During the royal period (1729-1776), the attorney general received his office by royal warrant. The governor could make an appointment only when a vacancy occurred, and it was valid only until the crown selected a replacement. As crown officials, attorneys general were supposed to be paid from royal revenues in the colony; but the sums raised were paltry, and the attorney general consequently was poorly paid from this source. However, an act of 1746, renewed periodically, levied a tax to compensate judges and attorneys general for their extra expenses when they rode the circuit. The attorney general also received fees for giving legal advice to the governor and Council, and for undertaking the various activities connected with prosecuting an action. The General Assembly set and regulated the taxes and fees, thereby making the attorney general almost entirely dependent on that body for his livelihood. Deputy attorneys general, appointed by the attorney general, were from 1760 required by statute to represent the crown in county courts, and also in higher courts if the attorney general found it inconvenient to attend. Like the attorneys general, the deputies received fees set by the assembly. The attorney general under the state Constitution of 1776 was appointed by the General Assembly, commissioned by the governor, and held office for an unspecified term. The constitution also ensured the attorney general an "adequate" salary. In 1835 a constitutional amendment limited the attorney general's term to four years, and an act of 1846 empowered the North Carolina Supreme Court to appoint a replacement if the attorney general failed to fulfill his duties. The Constitution of 1776 set forth no duties for the office, but subsequent legislation specified a variety of tasks, such as attending to all state business in the Supreme Court; requiring trustees of estates to file accounts; and filing bills in equity against corporations not living up to their charters, among other responsibilities. The Constitution of 1868 placed the attorney general, along with the governor, lieutenant governor, and other statewide officials, in an Executive Department, and made their offices elective, with terms of four years. As with the other officials in the Executive Department, the governor was to fill vacancies occasioned by death, resignation, "or otherwise." The sole responsibility assigned the attorney general was that of acting as legal advisor to the Executive Department. Beyond that, the constitution provided only that the duties of the various offices in the Executive Department, including that of attorney general, would be prescribed by law. Within four years after ratification of the Constitution of 1868, the General Assembly had passed two acts enumerating a total of six duties of the office of attorney general: to represent the state before the North Carolina Supreme Court in all actions relating to the state, and before any other court when requested by the governor or either house of the assembly; to act for the governor, secretary of state, treasurer, auditor, and superintendent of public instruction in prosecuting or defending lawsuits relating to their departments, when requested by those officials; to advise solicitors (county prosecutors) in all matters relating to their duties; to give advisory opinions when requested by the General Assembly, governor, "or any other state officer;" to pay into the treasury all sums received for debts or penalties due the state; and to report the decisions of the Supreme Court. With only a few changes, the constitutional position of the attorney general remains the same to the present. A constitutional amendment of 1937 authorized the General Assembly to create a Department of Justice under the supervision of the attorney general; one of 1943 restated the relevant provisions of the Constitution of 1868, with only an inconsequential change regarding the tenure of executive officers; another of 1961 also made a minor revision relating to vacancies; and one of 1961 enshrined in the constitution a provision that executive officers would receive a compensation set by the General Assembly, and that it would "not be diminished during the time for which they shall have been elected." The state's last constitution, that of 1971, restated the placement of the attorney general within the executive branch of government, provided that the office would be elective, that terms would be four years, and that the duties of office would be prescribed by law. The constitution also for the first time made the attorney general a member of the Council of State. A constitutional amendment of 1984 required the attorney general and district attorneys to be authorized to practice law prior to election or appointment. The myriad of post-1868 legislation affecting the office of attorney general in large measure reflects the increasing complexity of society over the next century and more. Most of the changes relate to the attorney general's expanding role as enforcer of state laws consequent upon the ever-increasing involvement of the state in the lives of its citizens. The trend was under way by the end of the nineteenth century, by which time the attorney general had been given important duties in such matters as enforcement of legislation relating to the regulation of corporations and the gathering of statistics relating to criminal activity. In more recent times the Office of the Attorney General has played a crucial role in assisting in the enforcement of laws relating to public health and safety, and the state's natural resources, by advising and representing in legal proceedings a variety of departments and agencies of state government, such as the Department of Labor, Department of Insurance, Marine Fisheries Commission, Wildlife Commission, Pesticide Board, and numerous other regulatory bodies. As previously mentioned, in 1937 a constitutional amendment authorized the creation of a Department of Justice under the supervision of the attorney general, and a statute of 1939 formally brought it into being. The department did not, however, achieve functional significance until 1971, with the Act to Reorganize State Government. That act "created a Department of Justice" with the attorney general as its head, and placed within the department the State Bureau of Investigation and the General Statutes Commission. The act also assigned the new department the duties of the commissioner of insurance with respect to the investigation of certain types of fires, as well as the governor's former powers relating to the appointment and commissioning of special police. Currently, the Attorney General's responsibilities lie in two main areas: legal services and law enforcement. The six units within the legal service areas consist of the criminal, civil, trade and commerce, administrative, and special litigation divisions, and the Division of Legislative Drafting and Codification of Statutes. The Criminal Division of the Office of the Attorney General advises and represents state agencies, and includes all sections of the office dealing with criminal matters: the Special Prosecutions Section; the Corrections Section, dealing with the Department of Correction (established 1973); the Crime Control Section, dealing with the Highway Patrol (established 1929) and the Department of Crime Control and Public Safety (established 1977); the Federal Habeas Corpus Section, representing the state in appeals of criminal convictions to the federal courts; and the Appellate Section, which supervises and/or prepares criminal briefs in all appeals to which the state is a party. The Civil Division handles all civil claims and litigation involving the state, and is divided into a number of service sections. The Property Control Section, which advises state agencies concerning real property, public building and construction law, and public procurement. The Education Section represents the state's university system and the Department of Community Colleges in all areas of law except tort claims and revenue; staff also advise attorneys and administrators in the public schools. The Revenue Section provides legal counsel to the Department of Revenue and representation in state and federal litigation, as well as providing tax counsel to other state agencies. The Labor Section acts as legal advisor to the commissioner of labor and handles cases arising from enforcement of labor laws and occupational safety and health matters. The Motor Vehicles Section furnishes legal assistance to the Division of Motor Vehicles. The Highway Section acts as legal advisor to the secretary of transportation and the State Board of Transportation, and provides legal representation to the Department of Transportation. The Trade and Commerce Division represents the public interest in maintaining a free, fair, and competitive marketplace, and in promoting the protection of the natural environment. The sections within this division are the Consumer Protection and Anti-Trust Section; the Utilities Section; the Environmental Section, representing the Department of Environment, Health, and Natural Resources; and the Insurance Section. The Administrative Division comprises six separate legal sections, each of which is responsible for particular clients or areas of the law. (1) The Mental Health/Medical Facilities Section represents various divisions of the Department of Human Resources, the hospitals of the University of North Carolina, and the Office of the State Controller. (2) The Health and Public Assistance Section represents the Division of Social Services and the Division of Medical Assistance of the Department of Human Resources, and all of the health components of the Department of Environment, Health, and Natural Resources. (3) The Tort Claims Section represents the state in tort and workers compensation claims, and attends to litigation for the collection of debts for the University of North Carolina and the Community College System. (4) The Services to State Agencies Section represents the state treasurer, the retirement systems, the Office of State Personnel, the Administrative Offices of the Courts, the Department of Agriculture, the General Statutes Commission, the Wildlife Resources Commission, and numerous licensing boards. (5) The Elections Section represents the State Board of Elections and advises numerous state and local officials on legal matters related to elections. (6) The Real Estate Commission Section represents the North Carolina Real Estate Commission and handles cases involving licensed real estate brokers. The Division of Legislative Drafting and Codification of Statutes (established 1939) prepares bills at the request of the governor, state officials, and members of the General Assembly; supervises the recodification of all statute law of the state; and maintains a system of continuous statute research and correction. The Special Litigation Division consists of the Special Litigation Unit and the Education Unit. The Special Litigation Unit has responsibility for representing the state and its officials and employees in complex or controversial civil litigation. The Education Section represents the State Board of Education, the Department of Public Instruction, the State Board of Community Colleges, the Department of Community Colleges, and the Education Assistance Authority. It also undertakes litigation for the University of North Carolina and consults with local school boards and local school officials. The law enforcement area comprises a number of agencies and functions. (1) The State Bureau of Investigation is divided into three major areas of operation: Field Investigations; the Crime Laboratory; and the Division of Criminal Information, which receives, processes, and disseminates data to participating law enforcement agencies. (2) The Division of Training and Standards comprises four major units: the North Carolina Justice Academy in Salemburg: the Criminal Justice Standards Division, which administers programs of education and training, and establishes minimum standards for law enforcement and related occupations; the Sheriffs' Standards Division, which undertakes the same for county law enforcement; and the Law Enforcement Liaison Section, which provides legal advice to the majority of local police forces that do not have legal advisors, and also represents the Sheriffs' and Criminal Justice Commissions, other boards and commissions, and responds to inquiries from the public. The Justice Academy and the Criminal Justice Standards Division administer the programs of the Criminal Justice Education and Standards Commission, established by the General Assembly in 1979: and the Sheriffs' Standards Division does the same for the Sheriffs' Education and Training Standards Commission, established by the General Assembly in 1983. REFERENCES: P.L., 1715, c. 68. P.L., 1736, c. 1. P.L., 1746, c. 2 (December session). P.L., 1748, c. 2 (April session). P.L., 1749-1750, c. 7 (March session). P.L., 1753, c. 3. P.L., 1754, cc. 1, 2, 8 (December session). P.L., 1758, c. 12 (November session). P.L., 1760, c. 1 (April session). P.L., 1761, c. 2 (March session). P.L., 1764, c. 8 (January session). P.L., 1765, c. 4. P.L., 1806, c. 693. P.L., 1831, c. 24. P.L., 1832, c. 14. P.L., 1846, c. 29. P.L., 1868-1869, c. 270. P.L., 1871-1872, c. 112. P.L., 1889, cc. 341, 533. P.L., 1899, c. 164. P.L., 1929, c. 218. P.L., 1937, c. 349. P.L., 1939, c. 315. S.L., 1971, cc. 864, 963. S.L., 1973, cc. 749, 1262. S.L., 1977, c. 20. S.L., 1979, c. 763. S.L., 1983, c. 558. G.S., 95-13 [1994]. North Carolina Constitution of 1776. Amendments of 1835, Art. III. North Carolina Constitution of 1868. Amendments of 1937, Art. II. Amendments of 1943, Art. I. Amendments of 1961, Art. III. North Carolina Constitution of 1971. Office of the Secretary of State. NORTH CAROLINA MANUAL, 1993-1994. Edited by Lisa A. Marcus. Raleigh, 1994. Pp. 188-195. Parker, Mattie Erma Edwards, William S. Price, Jr., and Robert J. Cain, eds. NORTH CAROLINA HIGHER-COURT RECORDS. Vols. 2-6, THE COLONIAL RECORDS OF NORTH CAROLINA (SECOND SERIES). Raleigh: Division of Archives and History, Department of Cultural Resources, 1968-1980. Paschal, Herbert Richard, Jr., PROPRIETARY NORTH CAROLINA: A STUDY IN COLONIAL GOVERNMENT. Ph.D. diss., University of North Carolina, at Chapel Hill, 1961. Raper, Charles Lee. NORTH CAROLINA, A STUDY IN ENGLISH COLONIAL GOVERNMENT. New York: The Macmillan Company, 1904. |
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