In Re Phillips

PRESENT: All the Justices

IN RE: IRIS LYNN PHILLIPS

Record No. 020479 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 10, 2003

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge

In this appeal, we consider whether Code § 53.1-231.2,

which allows a convicted felon to petition a circuit court for

approval of a petition for restoration of the felon's

eligibility to register to vote, violates the Constitution of

Virginia (the Constitution).

In August 1995, the petitioner, Iris L. Phillips, was

convicted in the Circuit Court of the City of Lynchburg of

making a false written statement incident to the purchase of a

firearm, in violation of Code § 18.2-308.2:2(K), a Class 5

felony. Phillips received a jail sentence of 90 days, which was

suspended on the condition that she be of good behavior for five

years and pay the costs of her prosecution.

In October 2000, Phillips filed a petition in the same

circuit court asking the court to approve the restoration of her

eligibility to register to vote. Her request was based on Code

§ 53.1-231.2, which allows persons convicted of non-violent

felonies, except certain drug-related offenses and election
fraud, to petition a circuit court for approval of a restoration

of voting rights. Code § 53.1-231.2 provides, in relevant part:

Any person . . . may petition the circuit court
of the county or city in which he was convicted of a
felony, or the circuit court of the county or city in
which he presently resides, for restoration of his
civil right to be eligible to register to vote through
the process set out in this section. On such
petition, the court may approve the petition for
restoration to the person of his right if the court is
satisfied from the evidence presented that the
petitioner has completed, five or more years
previously, service of any sentence and any
modification of sentence including probation, parole,
and suspension of sentence; that the petitioner has
demonstrated civic responsibility through community or
comparable service; and that the petitioner has been
free from criminal convictions, excluding traffic
infractions, for the same period.

If the court approves the petition, it shall so
state in an order, provide a copy of the order to the
petitioner, and transmit its order to the Secretary of
the Commonwealth. The order shall state that the
petitioner's right to be eligible to register to vote
may be restored by the date that is ninety days after
the date of the order, subject to the approval or
denial of restoration of that right by the Governor.
The Secretary of the Commonwealth shall transmit the
order to the Governor who may grant or deny the
petition for restoration of the right to be eligible
to register to vote approved by the court order. . . .
The Governor's denial of a petition for the
restoration of voting rights shall be a final decision
and the petitioner shall have no right of appeal.

In her petition, Phillips stated that more than five years

had passed since her conviction, and that she had served her

sentence and had paid all required fines and costs. Phillips

also alleged that she had "demonstrated her civi[c]

responsibility through community or comparable service," and

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that she had "had no criminal convictions, excluding traffic

infractions," since the date of her felony conviction.

The circuit court declined to consider Phillips' petition,

holding that Code § 53.1-231.2 violates the separation of powers

doctrine established in the Constitution. The court stated that

the Constitution gives the Governor the power to remove

political disabilities resulting from criminal convictions and

prohibits the General Assembly from delegating that power to the

courts. The circuit court further observed that courts are not

permitted to render advisory opinions. Thus, the court

concluded that it was not permitted to act under the provisions

of Code § 53.1-231.2 because such action would exceed the

authority that the Constitution vests in the courts.

The circuit court alternatively held that, even if Code

§ 53.1-231.2 were constitutional, the statute is "so

fundamentally flawed that it would be impossible for a circuit

court to render an informed decision" because the statute does

not provide for notice to the Commonwealth. The court stated,

in relevant part:

The statute makes no provision for notice to or
service upon any officer or agency of the
Commonwealth; and there is no opportunity or
requirement for an officer or agency of the
Commonwealth to respond to the petition for
restoration, or to appear in court to be heard upon
the merits of the petition. The statute permits a
circuit court to make findings of fact predicated upon

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 the unchallenged allegations and evidence of the
petitioner.

In accordance with these holdings, the circuit court dismissed

Phillips' petition without prejudice to her right to petition

the Governor directly to restore her voting eligibility.

Phillips appeals.

Phillips argues that Code § 53.1-231.2 does not violate the

constitutional mandate of separation of powers because the

statute merely authorizes a circuit court to determine whether a

petitioner has complied with the conditions set forth in the

statute. She notes that the decision whether to remove a

petitioner's political disability still rests solely with the

Governor, who may grant or deny a petition without explanation.

Phillips also argues that notice to the Commonwealth is not

necessary before a court determines whether a petitioner has met

the prescribed statutory standards. We agree with Phillips'

arguments.

We are guided by the established principle that all acts of

the General Assembly are presumed to be constitutional. Yamaha

Motor Corp., U.S.A. v. Quillian, 264 Va. 656, 665, 571 S.E.2d

122, 126 (2002); Finn v. Virginia Retirement System, 259 Va.

144, 153, 524 S.E.2d 125, 130 (2000); Pulliam v. Coastal

Emergency Servs. of Richmond, Inc., 257 Va. 1, 9, 509 S.E.2d

307, 311 (1999). In applying this principle, we are required to

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resolve any reasonable doubt regarding the constitutionality of

a statute in favor of its validity. Finn, 259 Va. at 153, 524

S.E.2d at 130; Walton v. Commonwealth, 255 Va. 422, 427, 497

S.E.2d 869, 872 (1998); Supinger v. Stakes, 255 Va. 198, 202,

495 S.E.2d 813, 815 (1998). Any judgment concerning the wisdom

or propriety of a statute remains solely a legislative function,

and we will declare a statute null and void only when it is

plainly repugnant to a state or federal constitutional

provision. Pulliam, 257 Va. at 9, 509 S.E.2d at 311; Supinger,

255 Va. at 202, 495 S.E.2d at 815.

Three provisions of the Constitution are central to our

analysis of Code § 53.1-231.2. The first such provision,

Article VI, § 1, states in part that subject to certain

limitations not applicable here, "the General Assembly shall

have the power to determine the original and appellate

jurisdiction of the courts of the Commonwealth."

The second provision we consider, Article III, § 1, states

in part that "[t]he legislative, executive, and judicial

departments shall be separate and distinct, so that none

exercise the powers properly belonging to the others, nor any

person exercise the power of more than one of them at the same

time . . . ." The third provision we review, Article V, § 12,

provides in part that "[t]he Governor shall have power . . . to

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remove political disabilities consequent upon conviction for

offenses committed . . . ."

The General Assembly's power under Article VI, § 1 to enact

legislation fixing the original jurisdiction of circuit courts

is subject to the separation of powers mandate of Article III,

§ 1. Thus, if any statute purporting to confer jurisdiction on

the courts impermissibly invades the powers of the Governor

granted by the Constitution, that legislation is subject to a

constitutional challenge in the Commonwealth's courts. See Art.

VI, § 1.

In considering constitutional challenges based on the

separation of powers doctrine stated in Article III, § 1, we

have long emphasized that reviewing courts must evaluate such

challenges in the contextual framework of the "whole power" of a

governmental department. We have defined both the scope of this

"whole power" principle and the practical reasons underlying its

application:

It is undoubtedly true that a sound and wise policy
should keep these great departments of the government
as separate and distinct from each other as
practicable. But it is equally true that experience
has shown that no government could be administered
where an absolute and unqualified adherence to that
maxim was enforced. The universal construction of
this maxim in practice has been that the whole power
of one of these departments should not be exercised by
the same hands which possess the whole power of either
of the other departments, but that either department
may exercise the powers of another to a limited
extent.

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Winchester & Strasburg R.R. Co. v. Commonwealth, 106 Va. 264,

268, 55 S.E. 692, 693 (1906); accord Roach v. Commonwealth, 251

Va. 324, 338, 468 S.E.2d 98, 106 (1996); Baliles v. Mazur, 224

Va. 462, 472, 297 S.E.2d 695, 700 (1982).

We hold that when Code § 53.1-231.2 is examined in

accordance with this principle, the statute does not violate the

Constitution's mandate of separation of powers. The plain

language of the statute does not authorize a circuit court to

exercise the "whole power," or any part of the power, granted to

the Governor to remove political disabilities resulting from a

felony conviction.

In this statute, the General Assembly has established

standards for identifying felons who may qualify for restoration

of their eligibility to vote. A circuit court's function under

the statute is limited to making a determination whether a

petitioner has presented competent evidence supporting the

specified statutory criteria, and a court's approval or denial

of a petition and transmittal of its order to the Secretary of

the Commonwealth completes this statutory process. The court's

order does not constitute the rendering of an advisory opinion

because the order adjudicates only the issue of the sufficiency

of the evidence in support of the statutory criteria and does

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not state an opinion whether the Governor should remove the

convicted felon's political disabilities.

We also observe that when a circuit court denies a petition

filed under the statute, that denial does not affect a convicted

felon's constitutional right to apply directly to the Governor

for restoration of the felon's voting eligibility. See Art. V,

§ 12. Moreover, a felon seeking restoration of these rights is

not required to file a petition in a circuit court before

applying to the Governor for such relief. Thus, under Code

§ 53.1-231.2, a circuit court does not exercise any function

that would restrict the power of the Governor to restore a

convicted felon's voting eligibility.

In either process chosen by a convicted felon, the power to

remove the felon's political disabilities remains vested solely

in the Governor, who may grant or deny any request without

explanation, and there is no right of appeal from the Governor's

decision. Therefore, we hold that Code § 53.1-231.2 does not

assign to the judicial branch of government a function reserved

to the Governor by the Constitution, and that the circuit court

erred in reaching a contrary conclusion.

We also disagree with the circuit court's conclusion that

Code § 53.1-231.2 is "fundamentally flawed" because it does not

provide for notice and the right to be heard to "any officer or

agency of the Commonwealth." The right to notice as a

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requirement of due process is limited to interested parties, so

that they may be apprised of an action and be given an

opportunity to be heard on matters pending before a court that

may affect their interests. See Volkswagenwerk

Aktiengesellschaft v. Schlunk, 486 U.S. 694, 707 (1988); Tulsa

Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 484

(1988); Assocs. Fin. Servs. Co. v. McPeek, 222 Va. 176, 178, 278

S.E.2d 847, 848 (1981). The language of Code § 53.1-231.2

reflects the General Assembly's determination that the

Commonwealth is not an interested party in an evidentiary

hearing conducted by a circuit court under the statute. This

determination does not offend the Commonwealth's right of due

process because, among other reasons, the statute does not

authorize a circuit court to take any action purporting to

remove a felon's political disabilities.

For these reasons, we will reverse the circuit court's

judgment and remand the case to that court for consideration of

Phillips' petition in conformance with the provisions of Code

§ 53.1-231.2.

Reversed and remanded.

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