Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.
WALTER H. HORNER OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 031475 June 10, 2004
DEPARTMENT OF MENTAL HEALTH,
MENTAL RETARDATION AND SUBSTANCE
ABUSE SERVICES, WESTERN STATE HOSPITAL
FROM THE COURT OF APPEALS OF VIRGINIA
This is an employment dispute involving an agency of the
Commonwealth of Virginia and one of the agency's employees.
The decision of the appeal turns upon interpretation of the
clear terms of the applicable statute.
In 2001, appellant Walter H. Horner, a physician, worked
as an internist on the staff of Western State Hospital for
appellee Department of Mental Health, Mental Retardation and
Substance Abuse Services (the Department). On May 15, 2001,
the Hospital's Medical Director issued the employee two
notices for so-called "Group II" offenses. He was charged
with failure to follow a supervisor's instructions and
violation of state policy regarding personnel records
disclosure. Issuance of the notices resulted in the
employee's immediate termination. The employee contested the
dismissal under the Commonwealth's statutory grievance
procedure.
According to the procedure, which deals with the
Commonwealth's program of employee relations management, the
Department of Employment Dispute Resolution (DEDR) developed a
grievance procedure, which the applicable statute required to
include "not more than three successively higher grievance
resolution steps and a formal hearing." Code § 2.2-3003(A).∗
At the first level of management review, the employee's
immediate supervisor (the so-called "first-step respondent")
determined that he supported "the complete reversal" of the
disciplinary actions and supported the employee's
"reinstatement with back pay and restoration of all his fringe
benefits." The employee's response to this ruling was to
conclude his grievance.
However, management proceeded to the "second-step
respondent" and the "third-step respondent" (the Medical
Director and the Hospital Director, respectively), who both
disagreed with the first-step respondent, and ruled that the
employee should be denied the relief he sought. The matters
then were considered by a DEDR hearing officer who "affirmed"
both notices, denying the employee relief.
After the hearing officer, upon reconsideration, upheld
the termination, the employee appealed to the DEDR, which
∗
Effective in 2001, after this grievance commenced, the
relevant statutes were recodified. Acts 2001, ch. 844. We
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upheld the hearing officer. The employee also appealed to the
Department of Human Resource Management, which upheld the
hearing officer.
After exhausting these administrative appeals of the
hearing officer's decisions, the employee appealed to the
Circuit Court of the City of Staunton pursuant to the
provisions of Code § 2.2-3006(B), which permits an appeal of
the hearing officer's final decision "on the grounds that the
determination is contradictory to law." Upon review, the
circuit court "may affirm the decision or may reverse or
modify the decision." Id.
In the circuit court, the employee asserted, inter alia,
that Virginia's statutory grievance procedure requires that
the remedy provided by the employee's first-level respondent
be given effect.
Although subsequently amended in 2003, Code § 2.2-
3003(D), the focus of this appeal, provided, at the time of
the grievance and circuit court decision in this case, for
management review of the employee's complaint. The statute
read: "Each level of management review shall have the
authority to provide the employee with a remedy."
Interpreting the statute, the circuit court ruled that
the General Assembly's explicit use of the term "remedy" means
shall refer to the numbers of current sections.
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that the first-level respondent's decision was not a mere
recommendation, as the Attorney General implicitly had argued,
but that the respondent had the authority to provide the
employee with a remedy, according to that term's accepted
definition. Thus, the court found that the decisions of the
hearing officer were "contradictory to law," and reinstated
the remedies of the first-step respondent.
Upon review, addressing only the issue that is the focus
of this appeal, the Court of Appeals of Virginia reversed the
circuit court's judgment. Department of Mental Health v.
Horner, 40 Va. App. 338, 579 S.E.2d 372 (2003). The court
ruled the circuit court erroneously decided that the
Department was bound by the determination of the first-level
respondent and precluded from pursuing the matter to the next
levels of management review. Id. at 340, 579 S.E.2d at 373.
The Court of Appeals said that such an interpretation of
the statute, and the policy and procedure manuals promulgated
under the state's statutory grievance procedures, "would
essentially allow an immediate, lower-level supervisor to make
a final, conclusive determination and would provide the lower-
level supervisor with more authority on disciplinary matters
than an agency director." Id. at 342, 579 S.E.2d at 374.
Continuing, the court stated: "A system which provides
such disparate remedies and which allows only the employee to
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proceed to subsequent resolution steps would hardly be 'fair.'
More importantly, such an interpretation of the statute and
the procedure is absurd and irrational." Id.
We awarded the employee this appeal, because the case
involves a matter of significant precedential value. See Code
§ 17.1-410(B).
Settled principles apply here. Statutory interpretation
presents a pure question of law subject to de novo review by
this Court. Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d
246, 248 (2003).
While interpreting statutes, courts must ascertain and
give effect to the legislature's intention, which is to be
deduced from the words used, unless a literal interpretation
would result in a manifest absurdity. When, as here, the
General Assembly uses words that are clear and unambiguous,
courts may not interpret them in a way that amounts to a
holding that the legislature did not mean what it actually has
expressed. Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445,
447 (1934). Accord Abbott v. Willey, 253 Va. 88, 91, 479
S.E.2d 528, 530 (1997). In other words, courts are bound by
the plain meaning of clear statutory language. Earley v.
Landsidle, 257 Va. 365, 370, 514 S.E.2d 153, 155 (1999).
Guided by these controlling principles, we hold that the
Court of Appeals erred. In clear language, the General
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Assembly mandated in Code § 2.2-3003(D): "Each level of
management review shall have authority to provide the employee
with a remedy." The noun "remedy" is defined as "[t]he means
of enforcing a right or preventing or redressing a wrong;
legal or equitable relief." Black's Law Dictionary 1296 (7th
ed. 1999).
Plainly, the legislature provided the employee with the
substantive right to be afforded a remedy by the first-level
respondent. Once the employee accepted the remedy, the
statutory scheme existing at the time precluded management
from contesting the first-level decision. A contrary ruling,
embracing the Court of Appeals' view, would reduce the first-
level respondent's decision to a mere recommendation that
could either be followed or be ignored. That idea effectively
renders the disputed language meaningless.
In this appeal, the Attorney General echoes the Court of
Appeals' view that it is not "fair" to the Commonwealth to
permit an employee to accept the remedy provided him at the
first step, and that the employee's interpretation of the
statute is "absurd." We disagree.
Even though one may argue from a policy standpoint that
the enactment was unwise, there is nothing unfair or absurd
about it. The Commonwealth will not be heard to complain of
fairness when it, through the General Assembly and DEDR,
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created the system. And, to allow an employee a remedy at the
first stage of review is not absurd. Whether an enactment is
wise, and matters of policy, are questions for the legislative
branch of government, and not the judicial branch. See City
of Portsmouth v. City of Chesapeake, 232 Va. 158, 163, 349
S.E.2d 351, 353 (1986).
The Attorney General also argues that a recent amendment
to the statutory sentence at issue supports the Commonwealth's
view, viz., that the General Assembly intended the authority
granted the first-level respondent to be subject to the
statutory authority granted the other respondents and the
hearing officer.
Effective in 2003, as a part of the amendment and
reenactment of Code § 2.2-3003 (Cum. Supp. 2003), the General
Assembly added language to the sentence. Acts 2003, ch. 252.
The sentence now reads (italics supplied): "Each level of
management review shall have the authority to provide the
employee with a remedy, subject to the agency head's
approval." As we have said, this legislative action occurred
after the circuit court's decision in this case.
The Attorney General contends the amendment clarifies the
legislative intent and explains the meaning of the law as it
existed before the amendment, relying on Boyd v. Commonwealth,
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216 Va. 16, 215 S.E.2d 915 (1975). We disagree. Actually the
amendment supports a contrary view.
"Legislation is presumed to effect a change in the law
unless there is a clear indication that the General Assembly
intended that the legislation declare or explain existing
law." Chappell v. Perkins, 266 Va. 413, 420, 587 S.E.2d 584,
587-88 (2003), citing Boyd. Nothing in the 2003 amendment,
such as the words "declaratory of existing law," indicates
that the General Assembly enacted the amendment as a
clarification of existing law. Therefore, applying the
presumption, we conclude that a change in the law, not a
clarification, was intended by the amendment.
And, Boyd is inapposite. There, an exception was applied
to the rule that a change in the law is intended when new
provisions are added to prior legislation by amendment.
Unlike the present case, the amendments in Boyd were changes
in form, which merely interpreted the existing law and made it
more specific. The changes "were not changes of substance,
which add rights to, or withdraw existing rights from, an
original act." 216 Va. at 20, 215 S.E.2d at 918. Here, in
contrast, the amendatory change was substantive, withdrawing
existing rights. Prior to the amendment, an employee had a
right to accept the remedy provided by the first-level
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respondent. After the amendment, that right is now "subject
to the agency head's approval."
Finally, we have considered the additional issues the
Attorney General has presented here, some of which also were
raised in the courts below and not ruled upon there. These
arguments are either substantively meritless or are
procedurally barred in this appeal as not being based on any
assignments of cross-error. Only one issue merits further
discussion.
The Attorney General contends the circuit court lacked
"jurisdiction" to hear the matter, because the employee failed
to ensure that his grievance appeal was heard in a timely
fashion, as required by Code § 2.2-3006(B). Acknowledging the
time limit had not been met, the circuit court nevertheless
denied a motion to dismiss filed on this basis, and the Court
of Appeals did not address this issue, although it was raised
there by the Attorney General.
Code § 2.2-3006(B) provides, in part, that: "Within 30
days of receipt of the grievance record, the court, sitting
without a jury, shall hear the appeal on the record." This
provision is directory and procedural rather than mandatory
and jurisdictional, because it merely directs the mode of
proceeding by the circuit court. Jamborsky v. Baskins, 247
Va. 506, 511, 442 S.E.2d 636, 638 (1994) (use of "shall" in
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statute requiring action by public official is directory
unless statute manifests contrary intent). See Welding, Inc.
v. Bland County Serv. Auth., 261 Va. 218, 225, 541 S.E.2d 909,
912-13 (2001).
And, this issue has not been properly preserved by an
assignment of cross-error for review by this Court. Rule
5:18(b) (cross-error not assigned in brief in opposition not
to be noticed).
The Court of Appeals did not rule in favor of the
Department on the issue of the circuit court's lack of
jurisdiction. In order to preserve that issue for our review,
an assignment of cross-error citing the Court of Appeals'
failure to so rule was necessary. Wells v. Shoosmith, 245 Va.
386, 388 n.1, 428 S.E.2d 909, 910 n.1 (1993).
Consequently, the judgment of the Court of Appeals in
favor of the Department will be reversed, and the order of the
Circuit Court of the City of Staunton dated September 5, 2002
shall be reinstated and affirmed. The case will be remanded
to the Court of Appeals with direction that the matter be
remanded to the said circuit court.
Upon remand, the circuit court shall consider, in view of
these appeals, only its award of reasonable attorneys' fees
and costs pursuant to Code § 2.2-3006(E).
Reversed and remanded.
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