COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Friedman, Callins and White
Argued by videoconference
DERRICK A. EDWARDS
MEMORANDUM OPINION* BY
v. Record No. 0937-22-3 JUDGE KIMBERLEY SLAYTON WHITE
APRIL 11, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Charles N. Dorsey, Judge
Derrick A. Edwards, pro se.
No brief or argument for appellee.
Derrick A. Edwards, pro se, appeals the circuit court’s order granting the Commonwealth’s
plea in bar and motion to dismiss, and dismissing Edwards’ motion for declaratory judgment with
prejudice. On appeal, Edwards argues that the circuit court erred in dismissing his motion on the
ground that it did not present a case of “actual controversy.” 1 For the following reasons, the
circuit court’s judgment is reversed and remanded for further proceedings consistent with this
opinion.
BACKGROUND
“When reviewing a trial court’s decision on appeal, we view the evidence in the light
most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
*
This opinion is not designated for publication. See Code § 17.1-413.
1
Edwards states that he did not preserve his assignment of error for appeal but asks this
Court to invoke the “good cause” exception in Rule 5A:18. Our review of the record, however,
confirms that he did preserve the error he now seeks to challenge.
Nielsen v. Nielsen, 73 Va. App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va. App.
255, 258 (2003)).
Edwards, an inmate,2 was charged under Virginia Department of Corrections (VDOC)
Operating Procedure (“OP”) 861.1 for violating disciplinary offense code 213, “failing to follow
institutional count procedures or interfering with count.” Edwards then refused to appear at his
disciplinary hearing on August 5, 2020. Under OP 861.1, refusal to appear “shall be considered
an admission of guilt,” and accordingly Edwards was found guilty and received a $5 penalty. 3
On March 2, 2021, Edwards filed a motion for declaratory judgment in the Circuit Court
of Roanoke County requesting, inter alia, that Code § 53.1-25 and OP 861.1 be declared facially
unconstitutional and void ab initio in violation of “Virginia Constitution Article 3, Section I—
‘Separation of Power Clause.’”4 On March 25, 2021, the Commonwealth filed a plea in bar
arguing that declaratory judgment was barred by sovereign immunity and Edwards’ failure to
present an “actual controversy” pursuant to Code § 8.01-184. Edwards filed his “Response and
Objection” to the Commonwealth’s plea in bar on April 12, 2021, arguing, in part, that our
Supreme Court, in Daniels v. Mobley, 285 Va. 402, 407 (2013), held that challenges to the
constitutionality of a statute present an “actual controversy.”
The circuit court, pursuant to Code § 8.01-695, granted the Commonwealth’s plea in bar
and motion to dismiss with prejudice based on the record without a hearing on February 16,
2
At the time Edwards was confined at River North Correctional Facility, operated by
VDOC. He is currently confined at Red Onion State Prison, also operated by VDOC.
3
Code § 53.1-25 provides that the director of a correction facility “may prescribe rules
for the preservation of state property and the health of prisoners in state correctional facilities
and for the government thereof.” OP 861.1 provides for the Offender Disciplinary Procedure,
https://vadoc.virginia.gov/files/operating-procedures/800/vadoc-op-861-1.pdf.
4
Although Edwards’ motion requested additional relief from the trial court, he waives
these arguments on appeal by failing to raise them in his opening brief. See Rule 5A:20.
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2022. The circuit court determined Edwards failed to present an “actual controversy” within the
scope of Code § 8.01-184 rendering his request not justiciable. In addition, the circuit court
noted that to the extent that Edwards was attempting to challenge the penalty imposed for the
infraction, other adequate legal remedies existed rendering declaratory relief inappropriate. The
circuit court did not, however, address Edwards’ argument under Daniels. Edwards then timely
filed this appeal.
ANALYSIS
Edwards argues that he presented the circuit court with an “actual controversy” and that his
declaratory judgment action is an appropriate means by which to pursue his constitutional
challenges to Code § 53.1-25 and OP 861.1. We agree. As such, we reverse the judgment of the
circuit court and remand for further proceedings only on the merits of Edwards’ separation of
powers constitutional challenge to Code § 53.1-25 and OP 861.1.5
Our declaratory judgment statute, Code § 8.01-184, states:
In cases of actual controversy, circuit courts within the scope of their
respective jurisdictions shall have power to make binding
adjudications of right, whether or not consequential relief is, or at the
time could be, claimed and no action or proceeding shall be open to
objection on the ground that a judgment order or decree merely
declaratory of right is prayed for. Controversies involving
interpretation of deeds, wills, and other instruments of writing,
statutes, municipal ordinances and other governmental regulations,
may be so determined, and this enumeration does not exclude other
instances of actual antagonistic assertion and denial of right.
“Therefore, a circuit court cannot acquire jurisdiction over a declaratory judgment action
unless the proceeding involves an actual adjudication of rights.” Daniels, 285 Va. at 408. See also
5
“Rule 5A:20(e) requires that an appellant’s opening brief contain ‘the principles of law,
the argument, and the authorities relating to each question presented.’ Unsupported assertions of
error ‘do not merit appellate consideration.’” Bartley v. Commonwealth, 67 Va. App. 740, 744
(2017) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734 (2008)). “When a party’s
‘failure to strictly adhere to the requirements of Rule 5A:20(e) is significant,’ this Court may
treat the question as waived.” Id. (quoting Parks v. Parks, 52 Va. App. 663, 664 (2008)).
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Charlottesville Area Fitness Club Operators Ass’n v. Albemarle Cnty. Bd. of Supervisors
(“Charlottesville Fitness”), 285 Va. 87, 98 (2013). Declaratory judgment must involve “specific
adverse claims, based upon present rather than future or speculative facts.” Daniels, 285 Va. at 408
(quoting City of Fairfax v. Shanklin, 205 Va. 227, 229 (1964)). For an actual, justiciable
controversy to exist, a circuit court must be able to render specific relief affecting plaintiff’s rights.
Id. Therefore, when “the ‘actual objective in the declaratory judgment proceeding is a
determination of a disputed issue rather than an adjudication of the parties’ rights,’ the case is not
one for declaratory judgment.” Id. (quoting Charlottesville Fitness, 285 Va. at 99). “A challenge to
the constitutionality of a statute based upon United States law or self-executing provisions of the
Virginia Constitution . . . presents a justiciable controversy.” Id. at 412. See also DiGiacinto v.
Rector & Visitors of George Mason Univ., 281 Va. 127, 137 (2011).
Edwards’ separation of powers constitutional challenge of Code § 53.1-25 and OP 861.1
presents an actual controversy for the circuit court to decide. See Daniels, 285 Va. at 407; see also
DiGiacinto, 281 Va. at 137. Although the circuit court may have deemed the merits of Edwards’
claim baseless, it was still error for the circuit court to dismiss his motion with prejudice based upon
the reasoning that he did not present an “actual controversy.” Therefore, as to Edwards’ separation
of powers constitutional challenge alone, we reverse and remand to the circuit court for further
proceedings in accordance with this opinion.
CONCLUSION
The circuit court erred by holding that Edwards’ complaint did not present a case of
“actual controversy” under Code § 8.01-184. Accordingly, we reverse the circuit court’s
judgment and remand this case for further proceedings in accordance with this opinion.
Reversed and remanded.
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