Goldman v. Landsidle

Present: Carrico, C.J., Hassell, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

PAUL GOLDMAN, ET AL.

v. Record No. 001947 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 14, 2001
WILLIAM E. LANDSIDLE,
COMPTROLLER, STATE OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

In this appeal, the dispositive issue is whether "citizens"

and "taxpayers" have standing to seek a writ of mandamus against

the Commonwealth challenging the application of certain statutes

when their alleged injury is no different from that incurred

generally by the public at large.

In April 1999, Paul Goldman and Alexander B. McMurtrie, Jr.

(collectively, the petitioners), filed a petition in the circuit

court seeking a writ of mandamus. The petitioners asked the

court to direct William E. Landsidle, the Comptroller of

Virginia (the Comptroller), to determine that certain public

officials actually have incurred office expenses before

disbursing state funds to them for those expenses.

The petitioners alleged that the Comptroller disburses

state funds monthly to the members of the General Assembly

pursuant to Code § 30-19.14 and Item 1A8 in the Commonwealth's

general appropriation act. Code § 30-19.14 provides, in

material part, that "[e]ach member of the General Assembly shall
receive as an allowance for office expenses and supplies such

sums as shall be set forth in the general appropriation act."

Item 1A8 of the 2000 Appropriation Act authorizes payment to

each member of the General Assembly certain fixed amounts per

month as "[r]eimbursement for office expenses." 2000 Va. Acts

of Assembly, ch. 1073 (effective July 1, 2000). 1 The petitioners

also alleged that the Comptroller disburses state funds monthly

to the Lieutenant Governor, the Speaker of the House of

Delegates, and the Attorney General for office expenses and

supplies "not otherwise reimbursed," pursuant to appropriation

Items 1A4, 44-3, and 45A2. 2 Id. at ch. 1072-73.

1
Item 1A8 provides:
Out of the amounts for Legislative Sessions shall be paid:
Reimbursement for office expenses and supplies of members
of the General Assembly, in the amount of $1,250 for each
month of each calendar year. An additional $500 for each
month of each calendar year shall be paid to the Majority
and Minority Leaders of the House of Delegates and the
Senate and to the President Pro Tempore of the Senate.

2000 Va. Acts of Assembly, ch. 1073 (effective July 1, 2000).
2
Item 1A4 provides:
Out of the amounts for Legislative Sessions shall be paid:
Expenses of the Speaker of the House of Delegates not
otherwise reimbursed, $16,200 each year, to be paid in
equal monthly installments during the year.

Item 44-3 provides:
Expenses of the Lieutenant Governor not otherwise
reimbursed, on the same basis as specified in Item 1,
paragraph A 4, of this act for the Speaker of the House.

Item 45A2 provides:

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 The petitioners stated that the Comptroller routinely makes

these payments without requiring proof from recipients that

office expenses in the specified amounts actually have been

incurred. The petitioners alleged that the Comptroller has a

ministerial duty "to [e]nsure that state money authorized for

the sole purpose of reimbursement for office expenses and

supplies is not being converted to personal use." The

petitioners asserted that since the Comptroller does not require

recipients of such funds to submit proof of office-related

expenditures, the Comptroller has failed to fulfill his

statutory duties.

The petitioners alleged that as citizens of the

Commonwealth and as "representatives of the people of Virginia,"

the petitioners may ask the courts to compel the Comptroller to

perform his required duties. However, the petitioners did not

allege any direct injury from the Comptroller's performance of

his duties distinct from that of the public at large.

The petitioners relied chiefly on language in Code § 2.1-

20.5 to support their assertion that proof of expenditures is

Out of the amounts for State Agency/Local Legal Assistance
and Advice shall be paid:
Expenses of the Attorney General not otherwise reimbursed,
$9,000 each year in equal monthly installments.

Id. at ch. 1072-73.

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required before funds may be disbursed for these purposes. This

statute provides, in relevant part:

The salaries, expenses and other allowances, including
mileage, mentioned in this chapter, Chapter 5 (§ 2.1-
38 et seq.) of this title and Chapter 1.1 (§ 30-19.11
et seq.) of Title 30 shall, except where otherwise
specifically provided, be paid out of the state
treasury after being duly audited, and the Comptroller
shall draw his warrants on the State Treasurer for the
payment thereof. . . . Expenses shall be paid when
they shall have been incurred, and the other
allowances shall be paid when the services shall have
been rendered or the travel shall have been performed.

The Comptroller filed an answer to the amended petition

denying that he had failed to fulfill any ministerial duty. He

also denied the petitioners' allegation that by failing to

ensure that the authorized funds are "not being converted to

personal use, the State Comptroller continues to expend funds in

violation of the law."

The parties filed cross-motions for summary judgment. In

support of their motion, the petitioners relied on the language

of Code § 2.1-20.5 mandating that such disbursements "shall

. . . be paid . . . after being duly audited," and on a similar

statutory directive in Code § 2.1-227, which provides:

The Comptroller shall not issue a disbursement warrant
unless and until he shall have audited, through the use of
statistical sampling or other acceptable auditing
techniques the bill, invoice, account, payroll or other
evidence of the claim, demand or charge and satisfied
himself as to the regularity, legality and correctness of
the expenditure or disbursement, and that the claim, demand
or charge has not been previously paid. If he be so
satisfied, he shall approve the same; otherwise, he shall

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 withhold his approval. In order that such regularity and
legality may appear, the Comptroller may, by general rule
or special order, require such certification or such
evidence as the circumstances may demand.

The petitioners contended that a writ of mandamus was the

proper remedy to compel the Comptroller to perform his statutory

duties. They asked the court to direct the Comptroller "to

examine and audit the requests for reimbursements or expenses

submitted by members of the General Assembly," but made no

request with regard to the Lieutenant Governor, the Speaker of

the House of Delegates, or the Attorney General.

In support of his cross-motion for summary judgment, the

Comptroller argued, among other things, that he has broad

discretion under Code §§ 2.1-196.1 and -227 to establish

policies governing internal controls over all expenditures. He

further asserted that he has exercised his statutory discretion

to ensure that disbursements are properly made.

After hearing argument, the circuit court entered an order

dismissing the petition and granting summary judgment in favor

of the Comptroller. The petitioners appealed.

The petitioners argue on appeal that as "citizens" and

"taxpayers" of this Commonwealth, they have standing to seek

mandamus relief to compel the Comptroller to require proof of

actual expenditures before making the disbursements at issue.

The petitioners contend that they are not required to

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demonstrate any special or pecuniary interest in the controversy

because they are merely seeking to compel the Comptroller's

exercise of a statutory "public" duty. In support of this

argument, the petitioners rely on our decisions in Harrison v.

Barksdale, 127 Va. 180, 102 S.E. 789 (1920), and Clay v.

Ballard, 87 Va. 787, 13 S.E. 262 (1891).

In response, the Comptroller asserts that the petitioners

lack standing to seek a writ of mandamus. The Comptroller

contends that parties seeking mandamus relief against the

Commonwealth must be able to demonstrate something more than a

threat to a "perceived public right," but generally must show

that they have a direct special or pecuniary interest in the

subject matter of the litigation. We agree with the

Comptroller.

A writ of mandamus is an extraordinary remedy that may be

used to compel a public official to perform a purely ministerial

duty that is mandatory in nature and is imposed on the official

by law. Hertz v. Times-World Corp., 259 Va. 599, 607, 528

S.E.2d 458, 462 (2000); Earley v. Landsidle, 257 Va. 365, 369,

514 S.E.2d 153, 155 (1999); Town of Front Royal v. Front Royal

and Warren County Indus. Park Corp., 248 Va. 581, 584, 449

S.E.2d 794, 796 (1994); Gannon v. State Corp. Com'n, 243 Va.

480, 481-82, 416 S.E.2d 446, 447 (1992). Mandamus is awarded

not as a matter of right, but only in the exercise of sound

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judicial discretion. Hertz, 259 Va. at 607, 528 S.E.2d at 462;

Gannon, 243 Va. at 482, 416 S.E.2d at 447; Board of Supervisors

v. Heatwole, 214 Va. 210, 213, 198 S.E.2d 613, 615 (1973);

Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151, 104 S.E.2d

813, 816 (1958).

Since the writ is drastic in character, the law has

erected safeguards around its issuance. Hertz, 259 Va. at

607, 528 S.E.2d at 462. Consideration must be given to the

urgency that prompts the exercise of the discretion, the

public interest and interest of other persons, the results

that will occur if the writ is denied, and the promotion of

substantial justice. Id.

In doubtful cases, the writ will be denied. However,

when the right involved and the duty sought to be enforced

are clear and certain, and when there is no other specific,

adequate remedy that is available, the writ will issue.

Id. at 607-08, 528 S.E.2d at 462-63; Town of Front Royal,

248 Va. at 584, 449 S.E.2d at 796; Gannon, 243 Va. at 482,

416 S.E.2d at 447; Heatwole, 214 Va. at 213, 198 S.E.2d at

615-16; Richmond-Greyhound Lines, 200 Va. at 151-52, 104

S.E.2d at 816.

In the present case, the petitioners rely solely on

their status as citizens and taxpayers to establish

standing to request mandamus relief. Generally, we have

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held that a party has standing to initiate litigation if

the party has sufficient interest in the subject matter to

ensure that the litigants will be actual adversaries and

that the issues will be fully and faithfully developed.

Radin v. Crestar Bank, 249 Va. 440, 442, 457 S.E.2d 65, 66

(1995); Weichert Co. of Virginia, Inc. v. First Commercial

Bank, 246 Va. 108, 109, 431 S.E.2d 308, 309 (1993); Cupp v.

Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407, 411

(1984).

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. Cupp, 227 Va. at 589, 318

S.E.2d at 411; see W.S. Carnes, Inc. v. Board of

Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299 (1996).

Thus, a party claiming standing must demonstrate a personal

stake in the outcome of the controversy. Cupp, 227 Va. at

589, 318 S.E.2d at 411 (quoting Duke Power Co. v. Carolina

Env. Study Group, 438 U.S. 59, 72 (1978)).

For purposes of this standing inquiry, we treat the

words "citizen" and "taxpayer" as being synonymous. We

have addressed this type of standing in various suits

brought by taxpayers to restrain local, rather than state,

government officials from allegedly exceeding their powers

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in a manner that would cause injury to the locality's

taxpayers.

We have held that taxpayers had standing to seek in

equity an accounting and reimbursement of expenditures made

by members of a county board of supervisors to finance

allegedly unauthorized travel. Burk v. Porter, 222 Va.

795, 798, 284 S.E.2d 602, 604 (1981). We also have held

that taxpayers had standing to challenge an allegedly

invalid agreement for the issuance of local government

bonds to finance certain sanitary district expenditures.

Armstrong v. Henrico County, 212 Va. 66, 76, 182 S.E.2d 35,

42 (1971). We also have determined that taxpayers had

standing to seek equitable relief to prevent local

officials from lending governmental funds to an airport

authority for costs incident to the construction of an

airport. Gordon v. Board of Supervisors, 207 Va. 827, 831,

153 S.E.2d 270, 273 (1967). Likewise, we have held that

taxpayers had standing to resort to equity to prevent the

allegedly illegal issuance of local bonds to finance the

construction of an electric generating plant. Appalachian

Elec. Power Co. v. Town of Galax, 173 Va. 329, 333, 4

S.E.2d 390, 392 (1939); Vaughan v. Town of Galax, 173 Va.

335, 341, 4 S.E.2d 386, 389 (1939).

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 The right of taxpayers to challenge the legality of

expenditures by local governments is a right permitted in

almost every state. Gordon, 207 Va. at 831, 153 S.E.2d at

273. This right is premised on the peculiar relationship

of the taxpayer to the local government that makes the

taxpayer's interest in the application of municipal

revenues "direct and immediate." ASARCO Inc. v. Kadish,

490 U.S. 605, 613 (1989) (quoting Frothingham v. Mellon,

262 U.S. 447, 486-87 (1923)).

The same conclusion does not apply for federal and

state taxpayers. The Supreme Court has long held that

suits based on federal taxpayer status are ordinarily

inadequate to establish standing to challenge laws of

general application. The basis for this rule is that since

a taxpayer's interest in the United States Treasury's funds

is shared with several million persons, that interest is

"comparatively minute and indeterminable." ASARCO, 490

U.S. at 613 (quoting Frothingham, 262 U.S. at 487). The

effect on future taxation of payments made from these

federal funds is so remote, fluctuating, and uncertain,

that no basis is provided for judicial intervention. Id.

The Court has applied the same rule to state

taxpayers, holding that they should be treated like federal

taxpayers for purposes of determining standing to challenge

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the application of state laws. ASARCO, 490 U.S. at 613;

Doremus v. Board of Education of Hawthorne, 342 U.S. 429,

434 (1952). Unless a state taxpayer can demonstrate a

statutory right to mandamus relief, such a taxpayer seeking

to challenge the application of a state statute generally

must be able to show direct injury, pecuniary or otherwise,

resulting from the enforcement of the statute. See ASARCO,

490 U.S. at 613-14; Doremus, 342 U.S. at 434 (quoting

Frothingham, 262 U.S. at 488).

Applying these principles, we hold that under the

present circumstances, in the absence of a statutory right,

a citizen or taxpayer does not have standing to seek

mandamus relief against the Commonwealth unless he can

demonstrate a direct interest, pecuniary or otherwise, in

the outcome of the controversy that is separate and

distinct from the interest of the public at large. The

petitioners in the present case have not identified any

such statutory right, or any direct interest in the

Comptroller's application of the statutes at issue.

Instead, they assert that our decisions in Harrison and

Clay provide them standing to seek the requested relief.

We disagree.

In Harrison, a citizen sought a writ of mandamus to

compel the trial court to order in a municipal election

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that the issue before the voters required approval by a

majority of the qualified voters entitled to vote, rather

than by a majority of voters who actually cast a ballot.

127 Va. at 183-86, 102 S.E.2d at 790-91. In addressing the

citizen's standing to petition the court for mandamus

relief, we held that although the citizen did not have a

special or pecuniary interest in the outcome of the local

election proceedings, he nonetheless had a right to seek

enforcement of a ministerial duty imposed by statute. 127

Va. at 188, 102 S.E.2d at 791.

This holding is consistent with our other decisional

law permitting challenges to actions taken by a local

government. As stated above, a citizen or taxpayer may

challenge the legality of certain actions of a local

government and its expenditures, because the interest of a

citizen in matters of local government is direct and

immediate, rather than remote and minute. See Burk, 222

Va. at 798, 284 S.E.2d at 604; Armstrong, 212 Va. at 76,

182 S.E.2d at 42; Gordon, 207 Va. at 831, 153 S.E.2d at

273; Appalachian Elec. Power, 173 Va. at 332-33, 4 S.E.2d

at 392; Vaughan, 173 Va. at 341, 4 S.E.2d at 388-89. Our

holding in Harrison is also consistent with the Supreme

Court's analysis in ASARCO and Doremus. See ASARCO, 490

U.S. at 613 (quoting Frothingham, 262 U.S. at 486);

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Doremus, 342 U.S. at 433-34 (quoting Frothingham, 262 U.S.

at 486). The direct and immediate interest of the citizen

in the operation of local government, whether based on

issues arising from a local election or a local

government's exercise of its fiscal authority, permits

these citizen or taxpayer challenges.

Our holding in Clay does not enlarge this right of

citizen or taxpayer standing. There, a citizen sought a

writ of mandamus to command the registrar of the City of

Newport News to allow the petitioner to inspect and make a

copy of the official voter registration books. 87 Va. at

787, 13 S.E. at 262. We held that the petitioner had

standing to seek the writ because the books in question

were of a public nature, and the right to inspect them was

secured by statute to each member of the general public.

Id. at 790, 13 S.E. at 263.

In reaching this conclusion, we were guided by the

language of former Code § 84, which provided in relevant

part that the voter registration books "shall at all times

be open to public inspection." Id. Thus, the language of

the statute under which the petition was brought afforded

the petitioner a legally enforceable right that gave him a

direct and immediate interest in the subject of the

mandamus relief sought.

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 Unlike the petitioner in Clay, the petitioners before

us cannot identify any statute that gives them a legally

enforceable right to have a court compel the Comptroller to

perform his duties in the manner they request. Because the

petitioners cannot identify a statutory right to mandamus

relief, and because they have not demonstrated that they

have a direct interest in the proceedings different from

that of the public at large, we hold that they lack

standing to seek the requested relief. See ASARCO, 490

U.S. at 613-14; Doremus, 342 U.S. at 434 (quoting

Frothingham, 262 U.S. at 488).

For these reasons, we conclude that the trial court

did not err in dismissing the petition for a writ of

mandamus. Accordingly, we will affirm the trial court's

judgment.

Affirmed.

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