Moreau v. Fuller

Present: All the Justices

THE HONORABLE STACEY W. MOREAU, JUDGE
OF THE JUVENILE AND DOMESTIC RELATIONS
DISTRICT COURT FOR THE 22ND JUDICIAL DISTRICT

v. Record No. 062688 OPINION BY JUSTICE DONALD W. LEMONS
June 6, 2008
WILLIAM H. FULLER, III,
COMMONWEALTH’S ATTORNEY
OF THE CITY OF DANVILLE

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge

In this appeal, we consider among other issues, whether a

circuit court may issue a writ of mandamus directing a

juvenile and domestic relations district court judge, who has

taken a case involving criminal charges under advisement for

deferred disposition, to immediately make a final disposition

in the case.

I. Facts and Proceedings Below

The Honorable Stacey W. Moreau (“Judge Moreau”), a judge

of the Juvenile & Domestic Relations District Court of the

City of Danville presided over the case of Commonwealth v.

Dareance Montae Skipwith, Case No. JA016152-01-00. Skipwith,

an adult, was charged with contributing to the delinquency of

a minor, a misdemeanor under Code § 18.2-371. Upon hearing

the evidence in the case, Judge Moreau found the evidence

sufficient to convict the defendant, however, upon request of

the victim’s mother, she did not enter a judgment of
conviction, and took the matter under advisement for final

disposition at a later date. The court stated it would “defer

judgment given the facts and request of the victim’s mother.”

Judge Moreau checked the box on the back of the warrant

stating, “place accused on probation, §§ 4.1-305, 18.2-57.3,

18.2-251 or 19.2-303.2. Costs imposed on defendant.”

However, there is no signature of the judge on this document.

A separately prepared order which was signed stated:

FINDINGS OF THE COURT:

Sufficient evidence to convict the defendant of
the charge. The Court finds that it has the
authority to take that matter under advisement
per Powell v. Commonwealth, 36 Va. App. 231
(2001) and the dicta noted in the Danville
Circuit Court opinion in the matter of
Commonwealth v. Bryant, 57 Cir. 162 (12/3/2001),
noting “(a)fter considering the authorities
cited, this court is of the opinion that to the
extent it has the authority to defer judgment,
it is nevertheless inappropriate to do so in
this case.”

It IS ORDERED THAT:
The Court finds that it is appropriate in this
matter to defer judgment given the facts and
request of the victim’s mother. The matter is
continued to 09/28/2006 at 8:00 a.m.

Contemporaneous records of the Juvenile and Domestic Relations

District Court of the City of Danville indicated that if there

were “no problems” then no appearance of the defendant or any

witnesses would be required and the case would be dismissed.

2
These contemporaneous records were not in the form of an

order.

William H. Fuller, III, Commonwealth’s Attorney for the

City of Danville (“Fuller”) objected to Judge Moreau’s

continuance of the matter for deferred disposition and filed a

Petition for a Writ of Mandamus in the Circuit Court of the

City of Danville. The Petition requested that Judge Moreau be

directed to render final judgment in the underlying Skipwith

case and that she desist taking matters under advisement in

the future.

The Circuit Court of the City of Danville issued a writ

of mandamus ordering Judge Moreau to “enter final judgment in

the case of Commonwealth v. Dareance Montae Skipwith” and

further held that:

Deferred adjudication/disposition is only
available to a trial court when a defendant is
charged under a criminal statute that specifically
authorizes such deferment wherein the judge can
then dismiss the case.

Section 18.2-371, contribution to the delinquency
of a minor, does not specifically provide for
deferred adjudication/disposition.

A deferred adjudication/disposition of a violation
of § 18.2-371, contributing to the delinquency of
a minor, exceeds the scope of Virginia law.

[Judge Moreau’s] finding of facts as to the
sufficiency of the evidence was a discretionary
function. However, nothing in this order prevents
[Judge Moreau] from revisiting that discretionary
finding. But, once [Judge Moreau] has made a

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 finding as to the sufficiency of the evidence,
then a determination as to the guilt or innocence
of the accused is a ministerial and not a
discretionary judicial function.

Therefore, a writ of mandamus is appropriate to
compel [Judge Moreau] to perform the ministerial
act of making a final disposition of the case in
Commonwealth v. Dareance Montae Skipwith.

We granted Judge Moreau an appeal upon three assignments

of error that challenge the propriety of mandamus to compel

her to enter final judgment in the underlying case and include

the following procedural claims: “There was no service of

process on the criminal defendant, Skipwith[,] 1 [t]he

[p]etition for [m]andamus failed to allege that [p]etitioner

had no other adequate remedy[,] 2 [t]he Commonwealth’s Attorney

lacked standing to bring the [p]etition for [m]andamus in his

name, and the Commonwealth’s Attorney exceeded his authority

to pursue a civil suit on behalf of the Commonwealth of

Virginia.” Further, Judge Moreau maintains that the trial

1
On brief, Judge Moreau argues that Skipwith was a
necessary party and that failure to make him a party by
serving him in the mandamus proceedings invalidated the
granting of the writ. There is some divergence between the
expression of this contention in the assignment of error and
in the brief, but in view of our disposition of the appeal on
other grounds it is not necessary to consider whether the
argument provided on brief impermissibly departs from the
wording of this assignment of error under Rules 5:27 and
5:17(c).
2
A review of the record indicates that this assignment of
error is factually inaccurate. Fuller did maintain in the
trial court, in arguments made in a memorandum of law filed in
support of his petition, that he had no other adequate remedy.

4
court erred in issuing a writ of mandamus because she “had

authority to take the case under advisement and dismiss the

charge.”

II. Analysis

A. Standard of Review

The issue whether Fuller has standing to file the

petition for a Writ of Mandamus, the question of Judge

Moreau’s authority to grant a “deferred sentence,” and the

determination whether mandamus lies as an extraordinary remedy

are all questions of law subject to de novo review upon

appeal. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41,

630 S.E.2d 301, 303 (2006).

B. Standing

Judge Moreau contests Fuller’s authority as

Commonwealth’s Attorney to pursue the civil remedy of

mandamus. The general requirements of standing have often

been stated:

The purpose of requiring standing is to make
certain that a party who asserts a particular
position has the legal right to do so and that his
rights will be affected by the disposition of the
case. Thus, a party claiming standing must
demonstrate a personal stake in the outcome of the
controversy.

Goldman v. Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71

(2001) (internal citations omitted). Judge Moreau further

argues that only the Attorney General of Virginia has the

5
authority to pursue this civil action. Recently, we have

considered petitions brought by elected Commonwealth’s

Attorneys seeking the issuance of special writs of prohibition

or mandamus. In re: Robert F. Horan, Jr., 271 Va. 258, 634

S.E.2d 675 (2006); In re: Commonwealth’s Attorney for the City

of Roanoke, 265 Va. 313, 576 S.E.2d 458 (2003). The issue of

standing or authority of the Commonwealth’s Attorney to bring

such actions was not raised in either of those cases. While

it is clear that Commonwealth’s Attorneys are limited in the

matters they may pursue, they are not entirely confined to

criminal actions. As Fuller points out, the Commonwealth’s

Attorney’s civil responsibilities include, among others, 3

3
See, e.g., Code §§ 2.2-3126(A) (conflict of interest
opinions); 3.1-249.70(B) (enjoining pesticide violations);
3.1-616(2) (apple injunctions); 3.1-722.11(B) (farm produce
injunctions); 6.1-2.27(C) (Consumer Real Estate Settlement
Protection Act injunctions); 8.01-622.1(B) (enjoining assisted
suicide); 8.01-637(A) (instituting actions in quo warranto);
10.1-1320.1 (seeking fines and penalties for Air Pollution
Control Board); 18.2-245(b) (enjoining continuing sales frauds
in addition to any available criminal sanctions); 18.2-339
(enjoining gambling); 18.2-371.2(D) (civil actions for sale of
tobacco to minors); 18.2-384(1) (determining obscenity of
books); 21-220 (enjoining pollution of tidal waters); 32.1-
125.2(B) (medical care facilities and services injunctions);
40.1-49.6(A) (must represent the Commonwealth in civil matters
involving enforcement of health and safety labor provisions);
48-8 (prostitution injunctions); 54.1-2964(B) (enjoining
violations of laws relating to the disclosure of interest in
facilities and clinical laboratories); 54.1-3943 (attorney
solicitation injunctions); 57-23 (appointment or removal of
trustees of public cemeteries); 57-25 (condemnation of land to
establish local cemeteries); 57-59(C) (charitable solicitation
and terrorism injunctions); 58.1-339.10(D) (assisting the

6
enjoining common nuisances relating to alcohol, Code § 4.1-

335, and instituting seizures of property used in the sale and

distribution of drugs, Code § 19.2-386.1.

Clearly, the general delegation of authority to the

Attorney General to handle civil matters on behalf of the

Commonwealth contained in Code § 2.2-507 has been subject to

exceptions. We have considered such petitions in the recent

past without objection by the parties or the Commonwealth and

we now hold that at a minimum, the Commonwealth’s Attorney has

standing to seek mandamus or prohibition in a matter involving

an ongoing criminal prosecution.

C. Mandamus

As we have recently stated:

“Mandamus is an extraordinary remedy that may be
used ‘to compel performance of a purely
ministerial duty, but it does not lie to compel
the performance of a discretionary duty.’ ”
Ancient Art Tattoo Studio, Ltd. v. City of
Virginia Beach, 263 Va. 593, 597, 561 S.E.2d 690,
692 (2002) (quoting Board of County Supervisors v.
Hylton Enters., Inc., 216 Va. 582, 584, 221 S.E.2d
534, 536 (1976)). “A ministerial act is ‘one which
a person performs in a given state of facts and
prescribed manner in obedience to the mandate of
legal authority without regard to, or the exercise
of, his own judgment upon the propriety of the act
being done.’ ” Richlands Medical Ass'n. v.

State Forester in collecting taxes); 58.1-3354 (correcting
assessments); 59.1-68.4 (Home Solicitations Sales Act and
deceptive trade practices injunctions); 62.1-194.1(B)
(enjoining obstruction or contamination of waters); 62.1-
194.3(c) (enjoining obstruction or dumping in the Big Sandy
River).

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 Commonwealth of Virginia, 230 Va. 384, 386, 337
S.E.2d 737, 739 (1985) (quoting Dovel v. Bertram,
184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)).
However, when the act to be performed involves the
exercise of judgment or discretion on the part of
the court or judge, it becomes a judicial act and
mandamus will not lie. Dovel, 184 Va. at 22, 34
S.E. at 370.

In re: Commonwealth's Attorney, 265 Va. at 317-18, 576 S.E.2d

at 461.

As we explained in Page v. Clopton, 71 Va. (30 Gratt.)

415 (1878):

[Mandamus] may be appropriately used and is
often used to compel courts to act where they
refuse to act and ought to act, but not to direct
and control the judicial discretion to be
exercised in the performance of the act to be
done; to compel courts to hear and decide where
they have jurisdiction, but not to pre-determine
the decision to be made; to require them to
proceed to judgment, but not to fix and prescribe
the judgment to be rendered.

Id. at 418.

The Constitution of Virginia declares fundamental powers

in three branches of government: “The chief executive power

of the Commonwealth shall be vested in a Governor.” Va.

Const. art. V, § 1. “The legislative power of the

Commonwealth shall be vested in a General Assembly, which

shall consist of a Senate and House of Delegates.” Va. Const.

art. IV, § 1. “The judicial power of the Commonwealth shall

be vested in a Supreme Court and in such other courts of

original or appellate jurisdiction subordinate to the Supreme

8
Court as the General Assembly may from time to time

establish.” Va. Const. art. VI, § 1. The division of these

fundamental powers is to be distinct: “The legislative,

executive, and judicial departments shall be separate and

distinct, so that none exercise the powers properly belonging

to the others . . .” Va. Const. art. III, § 1.

At the heart of this declaration and separation of powers

are roles that are uniquely allocated to the identified

departments of government. For example, the judiciary and the

legislature may not assume a power of clemency or pardon which

is a unique function of executive power. The Governor and the

judiciary may not assume the function of statutory enactment,

a power unique to the legislative function. And although the

subject matter of the judiciary’s power may, in some ways be

limited by legislative action, the essential function of the

judiciary – the act of rendering judgment in matters properly

before it – may not be abridged by either the executive or

legislative branches.

The judiciary’s inherent power derives from its existence

as an institution entrusted with the function of rendering

judgment. To deny this function is to deny the very

institution itself. The court’s inherent power has been

recognized to extend to matters “incident to the exercise of

the judicial power which is vested” in it. Button v. Day, 204

9
Va. 547, 553, 132 S.E.2d 292, 296 (1963) (citation omitted).

See 2 A. E. Dick Howard, Commentaries on the Constitution of

Virginia 718-20 (1974). The United States Supreme Court

addressed this fundamental power and observed that division of

powers within the federal constitution “gives the Federal

Judiciary the power, not merely to rule on cases, but to

decide them, subject to review only by superior courts in the

Article III hierarchy – with an understanding, in short, that

‘a judgment conclusively resolves the case’ because ‘a

“judicial Power” is one to render dispositive judgments.’ ”

Plaut v. Spendthrift Farm, 514 U.S. 211, 218-19 (1995).

The case before us immediately presents definitional

problems. Terms such as “deferred judgment,” “taking under

advisement,” and “continuance for disposition” appear at times

to be used interchangeably. We must penetrate the confusion

created by descriptive terms and address the underlying

conduct to determine what is within the inherent authority of

the judiciary and what may be beyond its boundaries.

Upon hearing the evidence in the criminal proceeding at

issue in this case, it was within the inherent authority of

the court to “take the matter under advisement” or “continue

the case for disposition” at a later date. Such practices

involve the essence of rendering judgment. No one contends

that the judge must immediately render judgment upon the

10
instant that the presentation of evidence has been concluded.

What may in a proper case be reasonably subject to

challenge is whether the judge may decline to render judgment

and continue the case with or without terms akin to probation

status with the promise from the court of a particular

disposition at a later date. 4 However, the case before us does

not present such questions.

The purported disposition on the back of the warrant is

not an order because it is not signed by the judge.

Consequently, the order of the juvenile court that we must

consider is the independently generated order that is signed

by the judge. This order finds that there is “sufficient

evidence to convict the defendant of the charge” and “finds

that it is appropriate in this matter to defer judgment given

the facts and request of the victim’s mother. This matter is

continued to 09/28/2006 at 8:00 a.m.”

We have repeatedly stated that a court speaks only

through its written orders. Conyers v. Martial Arts World of

Richmond, Inc., 273 Va. 96, 103, 639 S.E.2d 174, 177 (2007).

The underlying juvenile court order in this case has no terms

4
We note that while a case is pending, a court retains
the power to continue bail requirements pursuant to statutory
authority. We need not determine whether such power is within
the inherent power of the courts because the issue is not
before us and there is express statutory authority that
supports it.

11
or conditions and no provision of a future disposition. It

merely declares that the evidence is sufficient to convict the

defendant and continues the matter to a date certain. Nothing

contained in the order is beyond the power of the court. 5

In the case before us, the trial court issued a Writ of

Mandamus to Judge Moreau compelling her to “perform the

ministerial act of making a final disposition of the case in

Commonwealth v. Dareance Montae Skipwith.” However, in

reaching its decision, the trial court made the following

holding as well:

[Judge Moreau’s] finding of facts as to the
sufficiency of the evidence was a discretionary
function. However, nothing in this order prevents
[Judge Moreau] from revisiting that discretionary
finding. But, once [Judge Moreau] has made a
finding as to the sufficiency of the evidence,
then a determination as to the guilt or innocence
of the accused is a ministerial and not a
discretionary judicial function.

While we agree with the trial court that finding of facts as

to the sufficiency of the evidence is a discretionary

function, we disagree that a determination as to the guilt or

innocence of the accused is a ministerial function. “[A]

judgment is a court's determination of the rights of the

5
To the extent that the decision of the Court of Appeals
in Gibson v. Commonwealth, 50 Va. App. 285, 649 S.E.2d 214
(2007), is inconsistent with the holding of this case, it is
expressly overruled. See also Gibson v. Commonwealth, 276 Va.
176, 180-81, 662 S.E.2d 54, 57 (2008) (this day decided).

12
parties upon matters submitted to it in a proceeding.” In re:

Commonwealth’s Attorney, 265 Va. at 319, 576 S.E.2d at 462.

“The rendition of a judgment is the judicial act of the

court.” Rollins v. Bazile, 205 Va. 613, 617, 139 S.E.2d 114,

117 (1964). The trial court recognized this broad

discretionary function when it observed that “nothing in this

order prevents [Judge Moreau] from revisiting that

discretionary finding.” The very essence of adjudication and

entry of judgment involves the discretionary power of the

court.

As previously noted herein, a court speaks only through

its orders and the underlying order of the juvenile court

merely finds the evidence sufficient to convict the defendant

of the charges and continues the case to a date certain. Such

a disposition is within the discretionary authority of the

court and as such is not subject to mandamus.

III. Conclusion

We hold that the act of rendering judgment is within the

inherent power of the court and that the very essence of

adjudication and entry of judgment by a judge involves

discretionary power of the court.

For these reasons, we will reverse the judgment of the

trial court, vacate the writ of mandamus, and dismiss the

petition.

13
 Judgment reversed,
writ vacated, and
petition dismissed.

JUSTICE KOONTZ, concurring.

I concur with the decision of the Court in this case,

which properly limits its scope to issues presented by the

record on appeal. I write separately to stress that our

decision in this case, as well as our decision in Gibson v.

Commonwealth, 276 Va. 176, 662 S.E.2d 54 (2008) (this day

decided), necessarily leaves unresolved a significant issue

concerning the inherent authority of the trial courts of this

Commonwealth to defer rendering final judgments in criminal

cases.

Specifically, the issue we are unable to reach is whether

a trial court, at the request of the accused and with the

agreement of the Commonwealth, may in the exercise of inherent

authority decline to render a judgment in a criminal case and

continue the case to permit the accused to satisfy terms akin

to probation with the understanding that the court will enter

a particular disposition at a later date upon compliance by

the accused with those terms. It is a matter of common

knowledge and practice of long standing in this Commonwealth

that our trial courts have been entrusted to render justice in

this manner in those exceptional cases that warrant this

practice.

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 Surely, in time a case will come before this Court with

the appropriate record to permit us to properly address this

issue. In the meantime, I am left only to observe that our

trial courts’ inherent authority to render justice in a given

case should extend in scope sufficient at least to permit this

procedure to be used in appropriate cases and upon consent of

the accused and the Commonwealth.

JUSTICE KINSER, with whom JUSTICE KEENAN and JUSTICE AGEE
join, concurring.

I agree in all respects with the majority opinion and the

Court’s decision in this case. Nevertheless, I write

separately to emphasize one point. The record on appeal does

not permit us to decide the question whether a trial court has

the inherent authority, as opposed to the statutory authority

in certain situations, see, e.g., Code §§ 16.1-278.8(A)(5);

18.2-61(C); 18.2-67.1(C) and 18.2-251, to decline to render

judgment in a criminal case and continue the case with or

without probationary-type terms with the understanding or

promise that the court will ultimately render a particular

disposition after a specified period of time. I stress this

point because of my concern that, according to Justice Koontz’

concurring opinion, it is a common practice by the trial

courts in this Commonwealth to dispose of criminal cases in

15
this manner when a defendant requests the court to do so and

the Commonwealth agrees although the General Assembly has not

authorized that type of disposition for the particular offense

at issue.

The concurrence also states that a trial court’s

“inherent authority to render justice in a given case should

extend in scope sufficient to permit this procedure to be used

in appropriate cases and upon consent of the accused and the

Commonwealth.” But, this is the precise question that the

Court does not answer today because it is not properly before

us. The Court’s inability to address this issue should not be

viewed as a tacit approval of the practice.

For this reason, I respectfully concur.

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