Earley v. Landsidle

Present: All the Justices

MARK L. EARLEY,
ATTORNEY GENERAL OF VIRGINIA

v. Record No. 981552 OPINION BY JUSTICE BARBARA MILANO KEENAN
February 26, 1999
WILLIAM E. LANDSIDLE,
COMPTROLLER OF VIRGINIA

UPON A PETITION FOR WRIT OF MANDAMUS

This is an original petition for a writ of mandamus brought

by the Attorney General of Virginia, Mark L. Earley, under the

provisions of Code § 8.01-653. The issue before us is whether

to grant a motion to dismiss the Attorney General's motion to

join as parties Bruce F. Jamerson, Clerk, Virginia House of

Delegates, and Susan Clarke Schaar, Clerk, Senate of Virginia

(the Clerks). The Clerks assert in their motion to dismiss,

among other things, that this Court lacks subject matter

jurisdiction to consider the Attorney General's petition.

The Comptroller of Virginia, William E. Landsidle, notified

the Attorney General by letter dated July 1, 1998, that he

entertained doubt concerning the constitutionality of two

spending provisions enacted by the General Assembly as part of

the Commonwealth's 1998-2000 Biennial Budget (the 1998 Budget).

1998 Va. Acts of Assembly, ch. 464; 1998 Va. Acts of Assembly,

Special Session, ch. 1. The Comptroller questioned Item 1A6 of

the 1998 Budget, which increased the so-called "per diem" paid
to legislators for legislative activities involving the

discharge of their duties when the General Assembly is not in

session from $100 to $200. The Comptroller also questioned Item

1A8, which increased the legislators' monthly allowance for

office expenses and supplies from $750 to $1250.

The Comptroller stated that his doubt was based on Article

IV, § 5 of the Constitution of Virginia (the Constitution),

which provides that an increase in salary for a given legislator

shall not take effect until after the end of the legislative

term for which the legislator was elected. As directed by Code

§ 8.01-653, the Comptroller informed the Attorney General that

he would not make payments for these items at the new levels

authorized in the 1998 Budget until the constitutionality of

those items had been adjudicated by this Court. However, the

Comptroller stated that he would continue to make payments for

those items at the levels authorized before the 1998 Budget was

enacted.

In July 1998, the Attorney General filed with this Court

the present petition for writ of mandamus naming the Comptroller

as party defendant. The Attorney General asked this Court to

declare unconstitutional the increased payment levels authorized

in Items 1A6 and 1A8 of the 1998 Budget, which became effective

before the end of the present term of the members of the General

Assembly. The Attorney General requested that this Court direct

2
the Comptroller to continue to make payment for these items at

the previously authorized levels until the next term of the

General Assembly begins in January 2000, and, thereafter, to

make payment at the increased levels fixed in the 1998 Budget.

The Attorney General later filed a motion to join the

Clerks as additional parties defendant. The Attorney General

alleged that the Clerks "have responsibilities in conjunction

with the payments called into question in this action, and

therefore, have a direct and substantial interest in the issues"

before the Court. The Clerks have moved to dismiss the Attorney

General's motion to join them as additional parties.

The Clerks assert that this Court lacks subject matter

jurisdiction to hear the petition for a writ of mandamus because

Code § 8.01-653 requires the Attorney General to defend the

constitutionality of spending provisions challenged by the

Comptroller. The Clerks also contend that they are not proper

parties under Code § 8.01-653 because the statute only permits

joinder of additional parties defendant who stand in the same

position as the Comptroller and might be involved in

implementing the challenged spending provisions. The Clerks

argue that the Attorney General and the Comptroller essentially

are "two respondents in search of a petitioner," and that Code

§ 8.01-653 does not permit the joinder of additional parties to

furnish someone to oppose the Comptroller.

3
 In response, the Attorney General contends that § 8.01-653

is a remedial statute that must be construed liberally to

accomplish its purpose of permitting prompt judicial review of

"questionable" appropriations of public funds. The Attorney

General asserts that when he believes that a spending provision

is unconstitutional, he is obligated to challenge its

constitutionality by filing a petition for writ of mandamus

under Code § 8.01-653, and that he may seek the joinder of

additional defendants to argue in support of the challenged

provision. He argues that the present petition properly seeks

an affirmative order directing the Comptroller to make payments

under the challenged provisions after the next term of the

General Assembly convenes in January 2000. We disagree with the

Attorney General's arguments.

Mandamus is an extraordinary remedy that may be used to

compel public officers to perform their ministerial duties.

Town of Front Royal v. Front Royal & Warren County Indus. Park,

Corp., 248 Va. 581, 584, 449 S.E.2d 794, 796 (1994); Williams v.

Matthews, 248 Va. 277, 281, 448 S.E.2d 625, 627 (1994);

Morrissette v. McGinniss, 246 Va. 378, 382, 436 S.E.2d 433, 435

(1993). When a public official has failed to perform his

ministerial duty at a time required by law, mandamus will lie to

compel the discharge of such duty within a reasonable time after

issuance of the writ. Andrews v. Shepherd, 201 Va. 412, 416,

4
111 S.E.2d 279, 282 (1959); Moore v. Pullem, 150 Va. 174, 198,

142 S.E. 415, 422 (1928).

Code § 8.01-653 authorizes this Court to consider a

petition for a writ of mandamus in the particular circumstances

detailed in the statute. Under basic rules of statutory

construction, we examine the statute in its entirety, rather

than by isolating particular words or phrases. Ragan v.

Woodcroft Village Apartments, 255 Va. 322, 325, 497 S.E.2d 740,

742 (1998); Buonocore v. C&P Tel. Co., 254 Va. 469, 472-73, 492

S.E.2d 439, 441 (1997). The legislature's intent must be

determined from the words used, unless a literal construction of

the statute would yield an absurd result. Ragan, 255 Va. at

325-26, 497 S.E.2d at 742; Abbott v. Willey, 253 Va. 88, 91, 479

S.E.2d 528, 530 (1997); Barr v. Town & Country Properties, Inc.,

240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Therefore, when

the language in a statute is clear and unambiguous, the courts

are bound by the plain meaning of that language. Harrison &

Bates, Inc. v. Featherstone Assoc., 253 Va. 364, 368, 484 S.E.2d

883, 885 (1997); Wall v. Fairfax County Sch. Bd., 252 Va. 156,

159, 475 S.E.2d 803, 805 (1996); Carr v. Forst, 249 Va. 66, 69-

70, 453 S.E.2d 274, 276 (1995).

Code § 8.01-653 provides, in material part:

Whenever the Comptroller or the Treasurer of the
Commonwealth shall notify the Attorney General, in
writing, that they, or either of them, entertain such

5
 doubt respecting the proper construction or
interpretation of any act of the General Assembly
which appropriates or directs the payment of money out
of the treasury of the Commonwealth, or respecting the
constitutionality of any such act, that they, or
either of them, do not feel that it would be proper or
safe to pay such money until there has been a final
adjudication by the Supreme Court determining any and
all such questions, and that, for such reason, they
will not make payments pursuant to such act until such
adjudication has been made, the Attorney General may
file in such court a petition for a writ of mandamus
directing or requiring the Comptroller or Treasurer of
the Commonwealth, or both, to pay such money as
provided by any such act at such time in the future as
may be proper. . . .The Comptroller and the Treasurer
of the Commonwealth, or either of them, as the case
may be, shall be made a party or parties defendant to
any such petition and the court may, in its
discretion, cause such other officers or persons to be
made parties defendant as it may deem proper. . .

This statutory language is clear and unambiguous. It

authorizes the Attorney General, after being informed by the

Comptroller that he entertains doubt concerning the

constitutionality of an act of the General Assembly requiring

payment of money from the Commonwealth's treasury, to request a

writ of mandamus directing the Comptroller to pay money as

provided by that act. Here, however, the Attorney General

assumes the role of a party defendant by effectively asking us

to direct the Comptroller not to pay money under the challenged

items until the next session of the General Assembly in January

2000.

We agree with the Clerks that this request by the Attorney

General raises a question concerning the subject matter

6
jurisdiction of this Court. Subject matter jurisdiction is the

authority granted to a court by constitution or by statute to

adjudicate a class of cases or controversies. Morrison v.

Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990); see

Ringstaff v. Metropolitan Life Ins. Co., 164 Va. 196, 199, 179

S.E. 66, 67 (1935). The lack of subject matter jurisdiction may

be raised at any time during a proceeding, even by this Court

sua sponte. Garrett v. Majied, 252 Va. 46, 48, 471 S.E.2d 479,

480 (1996); Morrison, 239 Va. at 170, 387 S.E.2d at 756; Thacker

v. Hubard, 122 Va. 379, 386, 94 S.E. 929, 930 (1918).

The present petition plainly exceeds the subject matter

jurisdiction granted to this Court by Code § 8.01-653. The

statute only permits the Attorney General to petition this Court

to seek payment of money that he believes the Comptroller is

improperly withholding. In the present case, the Attorney

General and the Comptroller agree that payment should not be

made on the challenged budget items at the amounts fixed in the

1998 Budget until the next session of the General Assembly

begins. Thus, there is no request before us to direct the

Comptroller to pay money under a contested budget item.

Code § 8.01-653 does not permit the Attorney General to

challenge the constitutionality of an act by adding parties in

the role of petitioners whom he expects will defend that act and

seek payment under it. As provided by the plain language of the

7
statute, the only parties who may be joined in such a proceeding

are parties defendant.

We find no merit in the Attorney General's argument that he

has satisfied the requirements of Code § 8.01-653 because he has

asked us to direct the Comptroller to make payment pursuant to

Items 1A6 and 1A8 after the beginning of the next General

Assembly session in January 2000. The Comptroller has not

notified the Attorney General that he doubts the

constitutionality of making payment for these items after that

date. Article IV, § 5 of the Constitution, on which the

Comptroller's doubts are based, relates only to salary increases

for legislators during their current term of office. Thus, the

Attorney General's request that payment be made after the next

legislative term of office begins is not responsive to the

constitutional question posed by the Comptroller, and does not

satisfy the statutory requirement that the Attorney General seek

payment of money authorized by an act that the Comptroller

questions.

For these reasons, we will dismiss the Attorney General's

petition for a writ of mandamus.

Petition dismissed.

8