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In its brief and in much of its oral argument, the Commonwealth argued that "this Court should defer to the Executive Branch's interpretation unless that interpretation is patently unreasonable and represents an abuse of discretion" and that "it is well established that the interpretation of the agency entrusted with the administration of a statute is entitled to deference by this Court." In support of these contentions, the Commonwealth cites Department of Taxation v. Westmoreland Coal Co., 235 Va. 94, 366 S.E. 2d 78, 4 Va. Law Rep. 2024 (1988); Forst v. Rockingham Poultry Mktg. Coop., 222 Va. 270, 279 S.E. 2d 400 (1981); Commonwealth v. Lucky Stores, Inc., 217 Va. 121, 225 S.E. 2d 870 (1976); Commonwealth v. Bluefield Sanitarium, 216 Va. 686, 222 S.E. 2d 526 (1976); and Commonwealth v. Appalachian Elec. Power Co., 193 Va. 37, 68 S.E. 2d 122 (1951).
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The Commonwealth's first statutory interpretation argument involves 12 VAC § 5-550-100 involving a certificate of live birth and 12 VAC § 5-550-330 concerning the issuance of a new certificate after, among other circumstances, adoption. The Commonwealth reasons that a certificate of live birth provides for listing of a mother and a father and a new certificate "shall be on the form in use at the time of birth." 12 VAC § 5-550-330. The Commonwealth argues that Code § 32.1-261(B) provides that "when a new certificate of birth is established pursuant to subsection A of this section ...it shall be substituted for the original certificate of birth." Because the statute requires "substitution" and the certificate of live birth provides for a listing of a mother and a father, any new certificate "on the same form in use at the time of birth" is inadequate to list two same-sex adoptive parents.
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Additionally, the Court of Appeals of Virginia has stated that
"'the interpretation which an administrative agency gives its [law] must be accorded great deference. ' Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 159, 384 S.E. 2d 622, 626, 6 Va. Law Rep. 663 (1989). 'The trial courts may reverse the administrative agency's interpretation only if the agency's construction of its [law] is arbitrary or capricious or fails to fulfill the agency's purpose as defined by its basic law. ' Id. at 161, 384 S.E. 2d at 627."
Jackson v. W., 14 Va. App. 391, 400-401, 419 S.E. 2d 385, 390, 8 Va. Law Rep. 2880 (1992). Applying the well-established precedent of this Court and of the Court of Appeals, I would accord the Registrar's interpretation of Code § 32.1-261 the deference to which it is entitled, and I would affirm the judgment of the circuit court.
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Opening Brief of Appellant.
The opening brief of appellant shall contain:
(a) A subject index and table of citations with cases alphabetically arranged. Citations of all authorities shall include the year thereof.
Note: Similar rules apply to other filings with the court.