Gilmore v. Finn

Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan, Koontz,
and Kinser, JJ.

JAMES S. GILMORE, III,
GOVERNOR OF THE COMMONWEALTH
OF VIRGINIA, ET AL.

v. Record No. 990779

MICHELE P. FINN
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2000
MICHELE P. FINN

v. Record No. 990796

JAMES S. GILMORE, III, ET AL.

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Judge

In these appeals, we consider whether the trial court erred

in awarding sanctions pursuant to Code § 8.01-271.1, limited to

the actual attorney’s fees and costs incurred by the opposing

party, against the Governor and the Commonwealth (hereafter

collectively, the Governor) for filing a lawsuit that allegedly

was neither “well grounded in fact [nor] warranted by existing

law or a good faith argument for the extension, modification, or

reversal of existing law.”

1
Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.
 BACKGROUND

On March 9, 1995, Hugh Finn was injured in an automobile

accident. As a result of the accident, he suffered severe brain

damage and required continuous nursing home care, including

artificially administered hydration and nutrition through

feeding tubes. At all times relevant to these appeals, Hugh

Finn was a resident of Annaburg Manor Nursing Home in the City

of Manassas.

In June 1998, Michele P. Finn, Hugh Finn’s wife and legal

guardian, determined that it would not have been her husband’s

wish that he be kept alive by artificial means, including the

administration of hydration and nutrition, if there were no

reasonable possibility of his recovering from a persistent

vegetative state. Michele Finn then informed Hugh Finn’s

immediate family of her decision that pursuant to the provisions

of the Virginia Health Care Decisions Act (the Act), Code

§ 54.1-2981 et seq., she intended to direct the medical staff at

Annaburg Manor Nursing Home to withdraw this life-prolonging

procedure from her husband. A series of legal actions between

the various members of Hugh Finn’s family followed. These legal

actions were emotionally difficult for the family, ultimately

became the subject of public debate and, indeed, led to the

involvement of the Governor of Virginia.

2
A. The John Finn Lawsuit

Several members of Hugh Finn’s immediate family disagreed

with Michele Finn’s decision. John Finn, Hugh Finn’s brother,

filed a chancery suit in the Circuit Court of Prince William

County (the trial court) seeking a permanent injunction to

prohibit the withdrawal of hydration and nutrition from Hugh

Finn and to remove Michele Finn as Hugh Finn’s guardian (the

John Finn lawsuit). On July 17, 1998, the trial court granted a

temporary restraining order prohibiting Michele Finn from taking

action to withdraw the life-prolonging procedure being

administered to Hugh Finn.

On July 29, 1998, the trial court held a hearing to

consider John Finn’s request for a permanent injunction and to

remove Michele Finn as guardian. The trial court received

testimony from Hugh Finn’s neurologist, his physiatrist and Dr.

Robin B. Merlino, his attending physician. The trial court

found that the unanimous diagnosis of these three physicians

provided “clear and convincing evidence that Hugh Finn has been

and remains in a persistent vegetative state as defined in Va.

Code § 54.1-2982, that can be characterized as a permanent

vegetative state, meaning that, to a reasonable degree of

medical probability, it is irreversible.” The trial court

further found that there was credible testimony from Michele

Finn and in the de bene esse deposition of Kenneth L. Sales,

3
Hugh Finn’s attorney, that Hugh Finn had on “multiple occasions

before his tragic accident” expressed that “he would not wish to

have his life artificially prolonged with artificial life

sustaining medical treatment, and that he would specifically

wish to have [artificially administered] nutrition and hydration

withdrawn if he were in a persistent or permanent vegetative

state.” 2

Addressing the provisions of the Act found in Code § 54.1-

2986, the trial court found that Michele Finn had satisfied the

requirement that she make “a good faith effort to ascertain the

risks and benefits of and alternatives to the treatment and the

religious beliefs and basic values of . . . the patient

receiving treatment.” The trial court further found that it was

“impossible to communicate with Hugh Finn as a result of the

permanent vegetative state” and, thus, it was appropriate for

Michele Finn to “base[] her decision on [her husband’s]

2
Although not referenced in the trial court’s order, the
record reflects that the testimony of Hugh Finn’s sister, Karen
Finn, corroborated Michele Finn’s and Sales’ testimony. The
evidence further showed that Sales had been asked by Hugh Finn
to draft a Medical Directive, or “Living Will,” expressing his
desires a short time prior to his accident.

The trial court also reviewed the de bene esse deposition
of John Collins Harvey, M.D., Ph.D., a Catholic physician
theologian and expert on the subject of Catholic doctrines
regarding euthanasia and related issues. Hugh Finn was a
practicing Catholic prior to his incapacitation. Dr. Harvey
expressed the opinion that Hugh Finn’s wishes were not
inconsistent with the doctrines of the Catholic faith.

4
religious beliefs and basic values and [his] preferences

previously expressed . . . regarding such treatment.”

Based upon these findings, the trial court determined that

“the termination of [Hugh Finn’s] medical treatment . . .

including the withdrawal of [artificially administered]

nutrition and hydration, is a medically appropriate, ethical

treatment decision that is not inconsistent with Hugh Finn’s

personal wishes or his personal religious beliefs.”

Accordingly, the trial court concluded that John Finn had not

satisfied his burden of demonstrating the likelihood of

ultimately prevailing on the merits of a challenge to either the

appropriateness of Michele Finn’s decision or to her suitability

as Hugh Finn’s guardian.

In an order dated August 31, 1998, the trial court denied

John Finn’s request for a permanent injunction, dissolved the

temporary injunction issued in the July 17, 1998 order, and

dismissed John Finn’s petition to remove Michele Finn as Hugh

Finn’s guardian. Although granting Michele Finn authority to

proceed with her decision to direct the withdrawal of Hugh

Finn’s artificially administered hydration and nutrition, the

trial court stayed that authority for 21 days. 3 The trial court

3
The trial court subsequently amended the period of the stay
to 30 days, that is, until September 30, 1998, to permit an
appeal to this Court.

5
further required John Finn to pay one-half of the fees for the

guardian ad litem appointed for Hugh Finn, one-half of the fees

for the expert witnesses, and one-half of the attorney’s fees

and costs incurred by Michele Finn in defending the suit.

During the period of the stay imposed on Michele Finn by

the trial court, John Finn filed a motion for reconsideration.

In that motion, he asserted that new evidence had been acquired

to show that his brother was not in a persistent vegetative

state.

On September 21, 1998, the trial court held a hearing on

that motion and reviewed the affidavit of Marie F. Saul, R.N., a

utilization review nurse employed by the Commonwealth’s

Department of Medical Assistance Services. In that affidavit,

Saul stated that while reviewing Hugh Finn’s medical records,

she attempted to communicate with him. After repeatedly saying

“Hi” to him, Saul believed she heard him respond in a similar

fashion. Saul further stated that she then persisted in

attempting to communicate with Hugh Finn for over an hour, but

received no further response, although she observed Hugh Finn

“[s]moothing” his hair. Saul also testified at the hearing,

essentially reiterating the statements in her affidavit.

By proffer, the trial court received evidence from Michele

Finn that the Commonwealth’s Department of Health and Human

Resources had conducted its own investigation of Hugh Finn’s

6
condition and that the Department’s report concurred in the

diagnosis of his treating physicians that Hugh Finn was in a

persistent vegetative state. Michele Finn further proffered

evidence that it was beyond the usual responsibility or training

of a utilization review nurse, such as Saul, to make clinical

observations or to report on the physical or medical condition

of a patient. The evidence further showed that there had been

no change in Hugh Finn’s condition or in the diagnosis of that

condition by his treating physicians since the entry of the

August 31, 1998 order.

The trial court found that Saul’s affidavit and testimony

did not constitute new evidence and, moreover, “did not

contradict a finding that [Hugh Finn] is [] in a persistent

vegetative state” as previously determined by that court.

Accordingly, the trial court denied the motion for

reconsideration. John Finn was ordered to pay the additional

fees and costs arising from the hearing on his motion.

B. Michele Finn’s Motion to Prohibit Intervention by the
Commonwealth

At various times following the July 29, 1998 hearing and

continuing after the trial court’s denial of John Finn’s motion

for reconsideration, agencies of the Commonwealth, apparently

responding to requests from a relative of Hugh Finn and a member

of the General Assembly of Virginia, made a series of

7
investigative visits to Annaburg Manor Nursing Home to examine

Hugh Finn. These visits were conducted without the knowledge of

Michele Finn and contrary to her express instructions that

access to her husband be limited to family members and medical

staff. On September 20, 1998, twenty members of the General

Assembly released an informal declaration “In the Matter of Hugh

Finn” in which they asserted that “the provision of comfort care

as well as food and water should not be denied patients where

such removal will be the underlying cause of death.”

Under the aegis of the prior action filed by John Finn,

Michele Finn filed a motion seeking an order to enjoin the

Commonwealth from making further intrusions into her husband’s

privacy. The trial court conducted a hearing on Michele Finn’s

motion on September 25, 1998. At that hearing, the evidence

showed that three physicians employed by the Commonwealth’s

Department of Health and Human Resources had examined Hugh Finn

and determined that he was in a persistent vegetative state.

The physicians had further stated in an interview with David

Tucker, Administrator of Annaburg Manor Nursing Home, that

removal of Hugh Finn’s feeding tubes would have been warranted

as much as a year and a half prior to the date of their

examination. Additional evidence showed that the Commonwealth’s

physicians discounted Saul’s report that Hugh Finn had actually

responded to her efforts to communicate with him. The trial

8
court sustained the Commonwealth’s demurrer to Michele Finn’s

motion on the ground that the Commonwealth was not a party to

the John Finn lawsuit.

On September 28, 1998, Hugh Finn’s family members who had

opposed Michele Finn’s decision to withdraw the life-prolonging

procedure being administered to Hugh Finn agreed not to pursue

further legal action. Accordingly, no appeal was taken from the

judgment rendered in the John Finn lawsuit.

C. The Governor’s Lawsuit

On September 30, 1998, James S. Gilmore, III, “acting in

his official capacity [as Governor of the Commonwealth of

Virginia] and in the name of the Commonwealth,” filed a bill of

complaint against Annaburg Manor Nursing Home, Dr. Merlino, and

Michele Finn seeking a temporary restraining order and a

permanent injunction to prohibit the respondents from

withdrawing the administration of hydration and nutrition from

Hugh Finn (the Governor’s lawsuit). The Governor asserted in

the bill of complaint that the suit was brought pursuant to Code

§ 2.1-49, which provides, in pertinent part, that “pursuant to

his duty to protect or preserve the general welfare of the

citizens of the Commonwealth, the Governor may institute any

action, suit, motion or other proceeding on behalf of its

citizens, in the name of the Commonwealth acting in its capacity

as parens patriae, where he shall determine that existing legal

9
procedures fail to adequately protect existing legal rights and

interests of such citizens.”

In addition, it was asserted that the suit was brought

pursuant to Code § 54.1-2986(E), which provides that: “On

petition of any person to the circuit court of the county or

city in which any patient resides or is located for whom

treatment will be or is currently being provided, withheld or

withdrawn pertinent to this article, the court may enjoin such

action upon finding by a preponderance of the evidence that the

action is not lawfully authorized by this article or by other

state or federal law.” (Emphasis added.)

The Governor, as pertinent to the present appeal, contended

that Hugh Finn is “dependent upon the artificial administration

of nutrition and hydration in order to survive” and that the

withdrawal of this procedure “will initiate a process of dying

which will cause Hugh Finn to die from starvation and/or

dehydration.” Accordingly, the Governor further contended that

“the Virginia Health Care Decisions Act . . . does not authorize

the withholding of nutrition and hydration from Hugh Finn”

because Code § 54.1-2990 expressly provides that “nothing in

[the Act] shall be construed to condone, authorize or approve

mercy killing or euthanasia, or to permit any affirmative or

deliberate act or omission to end life other than to permit the

natural process of dying.” The Governor further contended that

10
“[u]pon information and belief, Hugh Finn is not in a persistent

vegetative state as defined under Code § 54.1-2982; however,

even if Hugh Finn were in a persistent vegetative state, the

Respondents would not be authorized under the Act . . . to

withhold or withdraw the administration of nutrition and/or

hydration” from Hugh Finn.

On October 1, 1998, the trial court held a hearing on the

Governor’s request for a temporary restraining order. At that

hearing, the Governor, represented by the Office of the Attorney

General, conceded that there was no new evidence to present in

support of the contention that Hugh Finn was not in a persistent

vegetative state and relied solely on Saul’s affidavit. The

Governor contended, however, that Hugh Finn’s medical condition

was not dispositive inasmuch as the principal contention of the

bill of complaint was that the withdrawal of hydration and

nutrition under the circumstances of the case was prohibited by

Code § 54.1-2990.

Hugh Finn’s guardian ad litem advised the trial court that

there was new evidence in the form of a medical report prepared

for the Department of Medical Assistance Services by Dr. Naurang

S. Gill, which the guardian ad litem had obtained from the

Office of the Attorney General. Dr. Gill’s report confirmed the

previous diagnoses of Hugh Finn’s personal physicians and the

physicians employed by the Department of Health and Human

11
Resources that Hugh Finn “had been and remained in a persistent

vegetative state.” Dr. Gill further opined “that [Hugh Finn’s]

chances of any meaningful recovery . . . are practically zero.”

On the day the hearing was held, the trial court denied the

Governor’s request for a temporary restraining order. In that

order, the trial court reviewed the prior proceedings and its

factual findings in the John Finn lawsuit and then reiterated

its prior determination that Michele Finn had “full authority

under the Act, to withhold and withdraw life-prolonging medical

procedures,” including the artificial administration of

hydration and nutrition. Addressing the argument that Code

§ 54.1-2990 prohibited the withdrawal of hydration and

nutrition, the trial court concluded that “a person in a

persistent vegetative state is, as a matter of law, in the

natural process of dying within the meaning of [Code § 54.1-

2990] and . . . the withholding and/or withdrawal of artificial

nutrition or hydration from a person in a persistent vegetative

state merely permits the natural process of dying and is not

mercy killing or euthanasia with[in] the meaning of [Code

§ 54.1-2990].”

Pursuant to Code § 8.01-626, the Governor filed an

emergency petition in this Court for review of the trial court’s

order. The Governor’s sole assignment of error asserted that

the denial of the motion for a temporary restraining order “was

12
error, and was based on an erroneous interpretation of Va. Code

§ 54.1-2990.” Without conceding that Hugh Finn was in a

persistent vegetative state, the Governor argued for reversal of

the trial court’s order on the ground that a person in a

persistent vegetative state is not in the “natural process of

dying,” but rather that the withdrawal of hydration and

nutrition would “initiate a dying process not previously

present.” Thus, the Governor contended, as he had in the trial

court, that a plain reading of Code § 54.1-2990 would prohibit

the withdrawal of hydration and nutrition from a person not

otherwise in the process of dying from some other disease or

condition. The Governor further contended that even if this

Court were unwilling to construe the statute in this manner, the

failure to issue the temporary restraining order deprived the

parties of the opportunity “to make [a] more deliberate

investigation” of Hugh Finn’s condition, “whatever that

condition may be.”

By order entered October 2, 1998, we denied the Governor’s

emergency petition for review. In that order, we held that the

“withholding and/or withdrawal of artificial nutrition and

hydration from . . . a person in a persistent vegetative state[]

merely permits the natural process of dying and is not mercy

killing or euthanasia within the meaning of Code § 54.1-2990.”

Gilmore, et al. v. Annaburg Manor Nursing Home, et al., Order

13
Denying Emergency Petition for Review (October 2, 1998). Hugh

Finn subsequently died following the withdrawal of the life-

prolonging procedure in question.

D. Michele Finn’s Motion for Fees and Sanctions

On November 5, 1998, pursuant to Code § 8.01-271.1, Michele

Finn filed in the trial court a motion seeking an award of fees

and sanctions against the Governor, the Attorney General, and

the attorneys in the Attorney General’s office who had endorsed

the pleadings in the Governor’s lawsuit. Michele Finn contended

that the Governor’s lawsuit was supported by “no law, nor facts,

on which to base [the] claim for injunctive relief, and no

standing to justify the Governor’s intervention . . . when [the

Governor and his counsel] brought this ill-advised, improvident

and spurious lawsuit.”

In a memorandum in opposition to this motion, the Governor

responded to Michele Finn’s motion contending that his lawsuit

was filed in good faith and based upon a reasonable belief in

the merits of both the factual assertion that Hugh Finn was not

in a persistent vegetative state and the legal assertion that

the Act did not permit the withdrawal of artificially

administered hydration and nutrition from any person not

otherwise in the natural process of dying. In support of his

assertion that the factual issue of Hugh Finn’s medical

condition was controverted and, thus, raised in good faith, the

14
Governor referenced Saul’s affidavit. In addition, for the

first time the Governor cited medical studies on misdiagnosis of

patients thought to be in a persistent vegetative state, an

alleged failure to correct a problem with a drainage shunt

intended to relieve pressure on Hugh Finn’s brain, and reports

from Annaburg Manor Nursing Home that Hugh Finn had demonstrated

improvement in manual dexterity and verbal responsiveness to

questions. The Governor also supplied an affidavit of a lay

Catholic minister who related that “tears came to Mr. Finn’s

eyes” when the minister told him he could not receive the

physical Eucharist due to medical reasons and that Hugh Finn

once “reached up and took [the minister’s] hand” during prayer.

In support of his contention that his legal challenge

concerning the construction of Code § 54.1-2990 was made in good

faith, the Governor noted that this statute had not been

authoritatively construed by the courts and contended that the

statute was susceptible to two interpretations. The

interpretation advocated by the Governor was that the

artificially administered hydration and nutrition merely

compensated for Hugh Finn’s inability to chew and swallow and

could have sustained his life indefinitely. Thus, he was not in

the natural process of dying and the withdrawal of this life-

prolonging procedure would have the effect of initiating a dying

process in violation of the statute. The second interpretation,

15
acknowledged by the Governor, was that because Hugh Finn was in

a persistent vegetative state, he was already in the process of

dying as a matter of law and, thus, the withdrawal of the life-

prolonging procedure merely permitted that process to continue.

Although conceding that the latter interpretation was ultimately

adopted by the trial court and upheld by this Court, the

Governor contended that at the time he filed suit his

interpretation was “warranted by existing law or good faith

argument for the extension, modification, or reversal of

existing law such that the imposition of sanctions under Code

§ 8.01-271.1 would not be warranted.” In addition, the Governor

further contended that the imposition of sanctions would

impermissibly invade executive decision-making and violate the

separation of powers doctrine.

In a reply memorandum, Michele Finn contended that the

Governor’s basis for supporting his challenge to Hugh Finn’s

medically diagnosed condition was “unworthy of belief and

ignores the prior findings of [the trial court], as well as the

very results [of] the Governor’s own investigation.” She

further contended that Code § 54.1-2990, when read in the

context of the other definitions and provisions of the Act, was

not reasonably subject to the interpretation advanced by the

Governor and that in any case the issues of mercy killing and

euthanasia had been litigated in the John Finn lawsuit.

16
 On November 25, 1998, the trial court heard argument from

the parties in support of their positions. In summarizing its

findings and conclusions, the trial court stated, “[T]he real

issue in this case is whether or not the [Governor’s] pleadings

were well grounded in fact and warranted by existing law.” With

respect to the Governor’s argument that he had a good faith

belief that the diagnosis of Hugh Finn’s medical condition was

controverted, the trial court found that the evidence cited by

the Governor was too far removed in time to contradict the

evidence that had been developed during the John Finn lawsuit.

The trial court further found that the Governor had “simply

glossed over” Dr. Gill’s report that Hugh Finn was in a

persistent vegetative state with almost no hope of improvement,

which the trial court found “compelling on the issue of whether

the Commonwealth, the Attorney General, or the Governor could,

in good faith, argue otherwise.”

The trial court further stated that “[t]here is precious

little construction that needs to be made” when Code § 54.1-2990

is read in the context of the other definitions and provisions

of the Act. The trial court found that the Governor’s assertion

that this statute was subject to two constructions was not

warranted by existing law and stated that this finding “is

supported by the unprecedented manner in which this case was

decided by a unanimous Supreme Court of Virginia within just a

17
few days of the signing of [the trial] Court’s order.” In

addition, with regard to the Governor’s legal assertions

concerning the Act, the trial court further stated that “[i]t

seems clear to [this court] from all that [this court has]

observed in this case since it gained such public prominence is

that there are legislators, and apparently the Governor too,

that do not favor this law. This is certainly their

prerogative. But the challenge that should be mounted . . . is

one to be made in the political arena and not in the court, and

certainly not in the manner that it was done in this case.”

The trial court further rejected the Governor’s contention

that any imposition of sanctions against him would impermissibly

invade his executive decision-making prerogative and would

violate the separation of powers doctrine. The trial court

assumed that Code § 2.1-49 provided the Governor with standing

to bring the lawsuit in the name of the Commonwealth, but

further reasoned that having thus submitted himself to the

authority of the courts, the Governor could not claim executive

privilege to avoid the consequences of that authority being

exercised.

Accordingly, the trial court imposed on the Governor and

the Commonwealth, jointly and severally, a compensatory sanction

in the form of an award of attorney’s fees and costs to Michele

18
Finn in the amount of $13,124.20. 4 The trial court declined a

request by Michele Finn that it assess a punitive sanction

against the Governor, the Commonwealth, the Attorney General,

and the attorneys in the Attorney General’s office who had

signed the pleadings, finding that a punitive sanction was not

appropriate under the facts of this case.

The Governor and the Commonwealth filed a petition for writ

of error in this Court asserting that the trial court had erred

in rejecting the separation of powers doctrine argument, in

considering evidence outside the record, in determining that the

Governor’s lawsuit was not well grounded in fact, and in ruling

that the Governor’s legal argument was sanctionable. Michele

Finn also filed a petition for writ of error asserting that the

trial court erred in failing to assess a punitive sanction and

in failing to assess liability for the compensatory sanction

against the Attorney General and the individual attorneys who

signed the pleadings. We awarded appeals to both the Governor

and Michele Finn.

DISCUSSION

Our consideration of the trial court’s imposition of

sanctions under Code § 8.01-271.1 in this case necessarily

4
The Commonwealth was further directed “not as a sanction
but pursuant to appropriate statutory authority” to pay the
guardian ad litem’s fee of $2,731.00. This assessment of the
guardian ad litem’s fee is not challenged in this appeal.

19
begins with a review of the other pertinent statutes that were

the focal point in the proceedings below. The Health Care

Decisions Act, Code § 54.1-2981 et seq., as the name implies is

a legislative response to and acknowledgement of the fact that a

competent adult may decide not to undergo life-prolonging

medical procedures in the event such person should have a

terminal condition. The right to make that decision is

specially acknowledged in Code § 54.1-2983. By its very nature,

however, such a decision, while reasonable and perhaps even

prudent in the abstract, in its application in a given case is

of considerable concern and impact, not only to the terminally

ill person, his family and physicians but, indeed, in a broad

sense, to the welfare of all the citizens of this Commonwealth.

This is so because society considers a human life to be unique

and precious and, in the context of this Act, its termination is

rightfully permitted only in “the natural process of dying.”

When so viewed, the Act provides for various procedures to

be followed to ensure that the decision of a terminally ill

person not to undergo life-prolonging procedures is communicated

to his physician at the appropriate time. Under the best of

circumstances, this is accomplished by an “advance directive”

made by the person, and the Act provides in detail the

requirements for such a medical directive. See Code §§ 54.1-

2983 and 54.1-2884. In the absence of an advance directive,

20
Code § 54.1-2986 provides the conditions and requirements for

permitting an attending physician, upon authorization of the

guardian of the patient or other specified persons, to withhold

or withdraw life-prolonging procedures. Michele Finn, in her

capacity as legal guardian of Hugh Finn, invoked this statute

when she made the decision to direct her husband’s physicians to

withdraw the hydration and nutrition being artificially

administered to him.

As we have previously noted, in addition to issues raised

as to whether that decision was consistent with Hugh Finn’s

religious beliefs and his previously expressed preferences for

treatment, this decision was challenged by some of Hugh Finn’s

family as not being consistent with the statutory definitions of

a life-prolonging procedure in the specific context of Hugh

Finn’s medical condition. Code § 54.1-2982 defines “Life-

prolonging procedure” as “any medical procedure, treatment or

intervention which (i) utilizes mechanical or other artificial

means to sustain, restore or supplant a spontaneous vital

function, or is otherwise of such a nature as to afford a

patient no reasonable expectation of recovery from a terminal

condition and (ii) when applied to a patient in a terminal

condition, would serve only to prolong the dying process. The

term includes artificially administered hydration and

nutrition.” (Emphasis added.) The statute defines “Terminal

21
condition” as “a condition caused by injury, disease or illness

from which, to a reasonable degree of medical probability a

patient cannot recover and (i) the patient’s death is imminent

or (ii) the patient is in a persistent vegetative state.”

(Emphasis added.) The statute defines “Persistent vegetative

state” as “a condition caused by injury, disease or illness in

which a patient has suffered a loss of consciousness, with no

behavioral evidence of self-awareness or awareness of

surroundings in a learned manner, other than reflex activity of

muscles and nerves for low level conditioned response, and from

which, to a reasonable degree of medical probability, there can

be no recovery.”

In the John Finn lawsuit, Michele Finn prevailed on the

factual and legal contentions that Hugh Finn was in a persistent

vegetative state and, therefore, as a matter of law was in a

terminal condition, and that the artificial administration of

hydration and nutrition was a life-prolonging procedure the

statute permitted her to direct to be withdrawn because it would

serve only to prolong the dying process of her husband. No

appeal was taken in that case. However, Code § 54.1-2990 which,

in pertinent part, provides that “[n]othing in this article

shall be construed to condone, authorize or approve mercy

killing or euthanasia, or to permit any affirmative or

deliberate act or omission to end life other than to permit the

22
natural process of dying” was neither asserted nor expressly

considered in that suit. The Governor did not intervene in that

suit and thus was not a party to it. Instead, the Governor

filed a separate suit in which this provision of Code § 54.1-

2990 was the focal point of his contention that, notwithstanding

the provisions of Code § 54.1-2982, this statute as applied to

Hugh Finn’s circumstances required the conclusion that the

withdrawal of the artificially administered hydration and

nutrition was not permitted because that withdrawal would

initiate a dying process because Hugh Finn was not otherwise in

the process of dying. That contention was rejected by the trial

court and by this Court on appeal.

It is then manifest that our consideration of whether

sanctions were appropriately imposed upon the Governor in the

present case is to be focused primarily upon the Governor’s

lawsuit and not the John Finn lawsuit. Accordingly, we turn now

to the statutes and legal principles that guide our further

analysis.

Initially we note that to the extent that Michele Finn

challenged the Governor’s “standing” to file suit in this case,

that challenge is totally without merit. Code §§ 2.1-49 and

54.1-2986(E) provide that standing. The question is whether the

Governor pursued the lawsuit in a fashion that was not in

violation of Code § 8.01-271.1.

23
 Code § 8.01-271.1, in pertinent part, provides that:

The signature of an attorney or party constitutes
a certificate by him that (i) he has read the
pleading, motion, or other paper, (ii) to the best of
his knowledge, information and belief, formed after
reasonable inquiry, it is well grounded in fact and is
warranted by existing law or a good faith argument for
the extension, modification, or reversal of existing
law, and (iii) it is not interposed for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation.

* * * *

If a pleading, motion, or other paper is signed
or made in violation of this rule, the court, upon
motion or upon its own initiative, shall impose upon
the person who signed the paper or made the motion, a
represented party, or both, an appropriate sanction,
which may include an order to pay to the other party
or parties the amount of the reasonable expenses
incurred because of the filing of the pleading,
motion, or other paper or making of the motion,
including a reasonable attorney’s fee.

We begin our consideration of the application of this

statute to the present case with the proposition that the

Governor is not above the law and, where appropriate, is fully

subject to the imposition of sanctions under Code § 8.01-271.1.

We also note that the Governor does not contend otherwise in

this appeal.

We have previously identified some of the policy

considerations in sanction cases. “The possibility of a

sanction can protect litigants from the mental anguish and

expense of frivolous assertions of unfounded factual and legal

claims and against the assertions of valid claims for improper

24
purposes. . . . Yet the threat of a sanction should not be used

to stifle counsel in advancing novel legal theories or asserting

a client’s rights in a doubtful case.” Oxenham v. Johnson, 241

Va. 281, 286, 402 S.E.2d 1, 3 (1991). All of these policy

considerations are facially implicated by the proceedings in

this case.

“[W]e apply an abuse-of-discretion standard in reviewing a

trial court’s award or denial of a sanction.” Id. at 287, 402

S.E.2d at 4. In making that review, we apply an objective

standard of reasonableness in order to determine whether a

litigant and his attorney, after reasonable inquiry, could have

formed a reasonable belief that the pleading was warranted by

existing law or a good faith argument for the extension,

modification, or reversal of existing law. Nedrich v. Jones,

245 Va. 465, 471-72, 429 S.E.2d 201, 204 (1993).

There can be no real dispute that under an objective

standard of reasonableness the Governor’s allegation in his bill

of complaint that “Hugh Finn is not in a persistent vegetative

state” was not well grounded in fact after a reasonable inquiry

into the facts available to the Governor and his counsel when

the Governor’s lawsuit was filed. However, this allegation

appears in a single-count pleading, in conjunction with the

legal assertion in the pleading that “even if Hugh Finn [is] in

a persistent vegetative state, the Respondents would not be

25
authorized under the Act . . . to withhold or withdraw the

administration of nutrition and/or hydration.” While the

factual and legal viability of separate claims are individually

assessed for sanction purposes, see Nedrich, 245 Va. at 472-79,

429 S.E.2d at 205-07, this factual allegation was not essential

to the Governor’s unitary legal theory concerning the asserted

construction of Code § 54.1-2990 upon which, if correct, he

could obtain the relief sought in his bill of complaint.

Accordingly, for purposes of the imposition of sanctions

under Code § 8.01-271.1, we must consider whether there was a

reasonable and good faith basis for the legal assertions in the

Governor’s pleading. That consideration, as we stated in

Nedrich, does not require that we decide that the Governor’s

pleading was actually warranted by existing law but, rather,

whether the Governor could have formed a reasonable belief that

his action was warranted by existing law or a good faith

argument for the extension, modification, or reversal of

existing law. In other words, “the wisdom of hindsight should

be avoided” in applying the appropriate objectively reasonable

standard of review. Tullidge v. Board of Supervisors, 239 Va.

611, 614, 319 S.E. 2d 288, 290 (1990).

While, as we have stated, the Governor is not above the

law, the Governor is also not merely “any person” as

26
contemplated by Code § 54.1-1986(E) when sanctions under Code

§ 8.01-271.1 are at issue. Code § 2.1-49(B) provides:

In accordance with subsection A and pursuant to
his duty to protect and preserve the general welfare
of the citizens of the Commonwealth, the Governor may
institute any action, suit, motion or other proceeding
on behalf of its citizens, in the name of the
Commonwealth acting in its capacity as parens patriae,
where he shall have determined that existing legal
procedures fail to adequately protect existing legal
rights and interests of such citizens.

This statute, for purposes of our present considerations,

is more than a standing statute. It clearly acknowledges the

Governor’s duty, rather than a mere right, to protect the

general welfare of all citizens of the Commonwealth. The trial

court gave little significance to the duty of the Governor under

this statute in exercising its discretion to impose sanctions in

this case. We are of the opinion, however, that the duty placed

upon the Governor is a highly significant factor to be

considered in this and any case in which the appropriateness of

sanctions against a Governor is at issue. No other litigant has

the duty “to protect and preserve the general welfare of the

citizens of the Commonwealth,” including in this case the legal

rights and interests of Hugh Finn. With regard to the

imposition of sanctions, we do not suggest that the Governor’s

action is clothed with a dispositive presumption of

reasonableness or good faith. Rather, we are of the opinion

that when, as here, the Governor asserts a legal contention in

27
the context of fulfilling the duty to protect the welfare of one

or all the citizens of this Commonwealth acting in the capacity

as parens patriae, any doubts about the good faith of that

action should be resolved in favor of the Governor’s contention.

It is only when the Governor’s legal contention is totally

without merit that his action is appropriately sanctioned. See,

Tullidge, 239 Va. at 614, 391 S.E.2d at 290. 5

It is undisputed that at the time the Governor filed his

lawsuit he was advancing a novel legal theory in the sense that

there was no prior authoritative construction of the Act. That

authoritative construction was obtained by the Governor’s

lawsuit upon appeal to this Court. Accordingly, we are of the

opinion that the trial court erred in giving any weight to the

promptness with which we rejected the Governor’s legal

assertions of the proper construction of the Act. That decision

addressed the merits of the Governor’s legal argument and had

nothing to do with whether it was objectively reasonable for the

Governor to have made that argument. Moreover, the immediacy

5
In this regard, however, we do not agree with the
Governor’s assertion that the doctrine of separation of powers
is implicated in this case on the theory that an imposition of
sanctions would have a “chilling effect” on the exercise of
executive discretion provided by Code § 2.1-49(B). The logical
extension of that contention would be the conclusion that the
Governor’s actions are not always required to be taken in good
faith, as are the actions of any other litigant. Accordingly,
we reject this contention.

28
with which that decision was rendered was mandated by the

circumstances of the case.

Continuing, we are further of the opinion that the

Governor’s legal assertion that Code § 54.1-2990 prohibited the

withdrawal of artificially administered hydration and nutrition

in this case because such withdrawal would initiate the dying

process rather than merely to permit the natural process of

dying, while ultimately incorrect, was nevertheless not totally

without merit. It cannot be said that this interpretation had

no reasonable possibility of being judicially adopted at the

time this assertion was made in the trial court. Thus, it

cannot be said that the Governor’s assertion that a conflict

existed between the provisions of Code § 54.1-2990 and Code

§ 54.1-2986 lacked any objectively reasonable basis, and the

trial court erred in holding otherwise. See Nedrich and

Tullidge, supra.

Finally, the record amply demonstrates that the Governor

was not alone in advancing the contention that the withdrawal of

artificially administered hydration and nutrition as the sole

form of life-sustaining medical treatment was not permitted

under the Act. A significant level of public debate concerning

the issue preceded the Governor taking action to intervene in

the matter. While Michele Finn asserts that the Governor’s suit

was motivated solely by some unidentified political objective,

29
the record does not support that assertion. Moreover, assuming

that the impetus for the Governor’s suit may have been

“politically” motivated to some degree, nonetheless after

reasonable inquiry the Governor could have formed the reasonable

belief that his suit was warranted by existing law or a good

faith argument that his legal assertions might be adopted by the

court.

Accordingly, we hold that, under the circumstances of this

case, the trial court abused its discretion in imposing

compensatory sanctions against the Governor and the Commonwealth

under Code § 8.01-271.1. 6

CONCLUSION

For these reasons, we will reverse the judgment of the

trial court and enter final judgment in favor of the Governor

and the Commonwealth.

Record No. 990779 — Reversed and final judgment.
Record No. 990796 — Dismissed.

6
In light of this holding, the issues raised in Michelle
Finn’s appeal are now moot, and that appeal will be dismissed.

30