Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
COMMONWEALTH OF VIRGINIA, EX REL.
VIRGINIA DEPARTMENT OF CORRECTIONS
OPINION BY
v. Record No. 991079 JUSTICE LAWRENCE L. KOONTZ, JR
April 21, 2000
DEMETRIOUS ERIC BROWN, A/K/A, ETC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
In this appeal, we consider whether general district courts
have the statutory authority to issue transportation orders for
prisoners confined within a state correctional facility in order
that they may appear in civil proceedings.
BACKGROUND
On July 23, 1996, Demetrious Eric Brown, a prisoner
confined at the Buckingham Correctional Center, purchased a
television at the prison commissary from Thomson Consumer
Electronics (Thomson), an out-of-state corporation. On August
27, 1997, while confined in the Greensville Correctional Center
to which he had been transferred, Brown filed a warrant in debt
in the City of Richmond General District Court against Thomson
alleging that the television was defective. Brown sought $4,000
in damages for breach of contract and breach of warranty.
Brown requested that the general district court issue
witness subpoenas for “L. Cox,” the business manager of the
Buckingham Correctional Center, and for David Lee Wright and
Lawrence Johnson, fellow prisoners of Brown at the Greensville
Correctional Center. Brown met Johnson and Wright after being
transferred to the Greensville Correctional Center, and neither
was confined at the Buckingham Correctional Center when Brown
purchased the television.
No appearance was made in the general district court by
either party on the original return date of September 22, 1997.
The case was rescheduled for trial on November 6, 1997. The
letter informing Brown of the new trial date indicated that a
transportation order would be issued for his appearance on that
date.
On September 25, 1997, the general district court issued a
transportation order with special instructions directing the
Virginia Department of Corrections, rather than the Richmond
City Sheriff’s Office, to transport Brown to Richmond for the
trial on November 6, 1997. On October 7, 1997, the general
district court issued the subpoenas Brown had requested and
issued additional transportation orders directing the Virginia
Department of Corrections to transport Wright and Johnson to
appear as witnesses at the trial.
The subpoena to Cox and the three transportation orders
issued by the general district court were the first notice to
the Department of Corrections of Brown’s lawsuit. On October
21, 1997, the Office of the Attorney General, on behalf of the
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Department of Corrections and Cox (collectively, the
Commonwealth), filed a motion to quash the three transportation
orders and the subpoenas in the general district court. Citing
Code § 8.01-410, the Commonwealth asserted that only circuit
courts are authorized to issue prisoner transportation orders in
civil cases. In addition, the Commonwealth asserted that no
provision in any of the statutes governing the operation of the
general district courts grants that authority to the general
district courts. Accordingly, the Commonwealth contended that
the transportation orders were void.
On November 12, 1997, having continued the trial of Brown’s
lawsuit until January 20, 1998, the general district court
advised Brown, Thomson, and the Commonwealth by letter that,
barring notice of an earlier hearing date or waiver of a
hearing, the motion to quash would be resolved immediately prior
to trial. 1 On November 18, 1998, the Commonwealth responded to
the general district court’s letter, contending that the motion
to quash was ripe for decision without the necessity of a
hearing, but that if a hearing were required, it could be
conducted by telephone. Brown responded by refusing to consent
1
From this point in the proceedings, Thomson, though it was
advised of all the proceedings relevant to this case, took no
active part in the dispute between Brown and the Commonwealth.
3
to the general district court’s ruling on the motion to quash
without a hearing.
Thereafter, the general district court, by letter to the
parties, expressed concern that the Commonwealth’s argument in
favor of its motion to quash, if sustained, would bar the
general district court from issuing prisoner transportation
orders in criminal cases, and asked the parties to submit briefs
on this point. The Commonwealth responded by letter brief and,
relying primarily upon Code § 19.2-267, asserted that while both
the circuit courts and the general district courts have the
authority to issue prisoner transportation orders in criminal
cases, in civil cases that authority is limited to the circuit
courts. Brown’s response did not directly address the court’s
concern, but, rather, contended that no statute prohibited the
general district court from issuing prisoner transportation
orders in civil cases and that he had an absolute right to be
transported to court in order to conduct civil litigation.
In an order entered December 12, 1997, the general district
court ruled that because any reference to general district
courts is “expressly” omitted therein, Code § 8.01-410 does not
preclude the issuance of prisoner transportation orders by
general district courts in civil cases. The court reasoned that
construing the statute otherwise would result in an
unconstitutional deprivation of a prisoner’s due process rights.
4
The court concluded that Code § 16.1-69.27, which authorizes a
general district court to “issue all appropriate orders . . . in
aid of the jurisdiction conferred upon” the court, grants the
general district court the authority to issue transportation
orders of prisoners in both civil and criminal cases.
On December 22, 1997, the Commonwealth appealed the
decision of the general district court to the Circuit Court of
the City of Richmond (the trial court). The trial court
received letter briefs from Brown and the Commonwealth
reiterating the positions they had taken in the general district
court.
By letter opinion dated January 19, 1999, the trial court
stated that Code § 8.01-410 did not preclude general district
courts from issuing transportation orders and that “[t]he
matters other than § 8.01-410 to be considered” as discussed by
the general district court in its ruling led the trial court to
conclude that “it is within the power and right of the General
District Court to order the transport[ation of prisoners] as
witnesses in proceedings there.” By order dated February 22,
1999, the trial court adopted by reference the reasoning set
forth in the general district court’s December 12, 1997 order,
and dismissed the Commonwealth’s motion to quash. We awarded
the Commonwealth this appeal.
5
DISCUSSION
Initially, we stress that the issue we consider in this
appeal is limited to a determination of the authority of the
general district courts to issue prisoner transportation orders
in civil cases. While the record reflects that in the
proceedings below the Commonwealth appears to have recognized
that these courts have the authority to issue such orders in
criminal cases, that issue is not before us. See Code § 19.2-
267. Accordingly, nothing in this opinion is to be construed to
limit the authority of the general district courts to issue
prisoner transportation orders in criminal cases.
As a general proposition, the authority of any court to
issue prisoner transportation orders in civil cases is
undoubtedly an outgrowth of legislative recognition of the
modern view that prisoners, after judgments of conviction and
while incarcerated, have a right to bring civil actions. See
Dunn v. Terry, Administratrix, 216 Va. 234, 239, 217 S.E.2d 849,
854 (1975); see also Cross v. Sundin, 222 Va. 37, 38-39, 278
S.E.2d 805, 805-06 (1981). It does not necessarily follow,
however, that such prisoners have an absolute right, as Brown
contends here, to be transported to court in order to conduct
civil litigation initiated by them. After all, prisoners, as a
result of their conduct in committing criminal offenses, have
forfeited their unfettered freedom of movement during their
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period of incarceration. Their right to conduct civil
litigation in the courts of this Commonwealth during that time
is necessarily limited by that circumstance and appropriately
balanced against public safety concerns presented by
transporting prisoners from prisons to court.
The current version of Code § 8.01-410, 2 in clear and
unambiguous terms, specifically addresses just such situations
and provides the judicial authority and the mechanism by which
the patent conflict between prisoners’ incarceration and their
ability to exercise the right to conduct civil litigation is
appropriately resolved. This statute provides that:
Whenever any party in a civil action in any
circuit court in this Commonwealth shall require as a
witness in his behalf, a convict or prisoner in a
correctional or penal institution as defined in
§ 53.1-1, the court, on the application of such party
or his attorney may, in its discretion and upon
consideration of the importance of the personal
appearance of the witness and the nature of the
offense for which he is imprisoned, issue an order to
the Director of the Department of Corrections to
deliver such witness to the sheriff of the county or
the city, as the case may be, who shall go where such
witness may then be. Under such conditions as shall
be prescribed by the superintendent of the
institution, such officer shall carry the convict to
the court to testify as such witness, and after he
2
Code § 8.01-410 was amended effective July 1, 1998 while
this case was under consideration by the trial court. That
amendment removed from the circuit court’s discretion the
decision whether or not to assess costs. This amendment is not
material to the issue raised in this appeal and, accordingly, we
will consider the statute in its current form.
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shall have so testified and been released as such
witness, carry him back to the place whence he came.
If necessary the sheriff may confine the convict
for the night in a convenient city or county
correctional institution.
Under such rules and regulations as the
superintendent of such an institution may prescribe,
any party to a civil action in any circuit court in
this Commonwealth may take the deposition of a convict
or prisoner in the institution, which deposition, when
taken, may be admissible in evidence as other
depositions in civil actions.
The party seeking the testimony of such prisoner
shall advance a sum sufficient to defray the expenses
and compensation of the officers, which the court
shall tax as other costs.
This statute expressly grants to the circuit courts the
authority to issue prisoner transportation orders in civil
cases. Indeed, the statute is expressly limited to civil cases
“in” the circuit courts and makes no reference to general
district courts. In addition, this statute commits to the
discretion of the court the appropriate balance to be considered
between “the importance of the personal appearance of [the
prisoner] and the nature of the offense for which he is
imprisoned” in reaching the decision to grant or deny a request
for a prisoner transportation order or to permit the prisoner’s
evidence to be produced by deposition. 3 For the reasons that
3
Of course, there is no prohibition against producing the
prisoner’s evidence by other means such as video conference or
telephone.
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follow, we agree with the Commonwealth’s assertion that the
trial court erred in failing to hold that the authority to issue
prisoner transportation orders in civil cases granted by Code
§ 8.01-410 is vested solely in the circuit courts.
Code § 8.01-410 is the only statute that addresses the
issuance of prisoner transportation orders in civil cases
initiated by prisoners. 4 The maxim of statutory construction
expressio unius est exclusio alterius is applicable here. This
maxim provides that where a statute speaks in specific terms, an
implication arises that omitted terms were not intended to be
included within the scope of the statute. See, e.g., Turner v.
Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992). Thus, by
using this principle as an aid to construing a statute, we have
held that “[w]hen a legislative enactment limits the manner in
which something may be done, the enactment also evinces the
intent that it shall not be done another way.” Grigg v.
Commonwealth, 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982).
By expressly granting the specific authority to issue
prisoner transportation orders in civil cases in this statute
only to the circuit courts, we are of the opinion that the
General Assembly intended to exclude the general district courts
4
Cf. Code § 8.01-654 (habeas corpus proceedings limited to
circuit courts).
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from the authority to issue prisoner transportation orders in
civil cases. Were this not so, a general district court,
unconstrained by statutory limitations imposed upon the circuit
courts, would be able to order the transportation of any
prisoner to appear in a civil case, regardless of the importance
of the prisoner’s personal appearance, the inherent security
concerns, the mode of transportation, or its cost. Indeed,
contrary to these statutory mandates, the orders issued by the
general district court in the present case would have placed the
onus of transporting the prisoners on the Department of
Corrections, not the local sheriff’s office, with the expense
therefore devolving to the state taxpayers. Clearly, such
authority is contrary to the legislative intent expressed in
Code § 8.01-410.
We turn now to the trial court’s ruling that Code § 16.1-
69.27 grants authority to the general district courts to issue
prisoner transportation orders in civil cases. This statute
provides that:
A judge of a district court may take affidavits and
administer oaths and affirmations in all matters and
proceedings, may issue all appropriate orders or
writs, including orders appointing guardians ad litem
in all proper cases, in aid of the jurisdiction
conferred upon him, and may certify transcripts of the
records and proceedings of the court for use
elsewhere. But he shall have no authority to take
acknowledgments to deeds or other writings for
purposes of recordation.
10
(Emphasis added).
The contention that the general district courts have the
authority to issue prisoner transportation orders in civil cases
is based upon the phrases here italicized. That contention is
without merit. This statute is one of broad, general
application. Nowhere in this statute, nor anywhere else in the
statutes delineating the limited jurisdiction of the general
district courts, is there a specific grant of the authority to
order the transportation of prisoners to appear as witnesses in
civil cases. Thus, only by the most expansive reading of Code
§ 16.1-69.27 could the authority of the general district courts
be interpreted to include the authority to issue prisoner
transportation orders in civil cases. By contrast, Code § 8.01-
410 is a specific statute addressing prisoner transportation
orders in civil cases.
In such circumstances as this, we have employed the
established rule of statutory construction that when one statute
speaks to a subject generally and another deals with an element
of that subject specifically, the statutes will be harmonized,
if possible, and if they conflict, the more specific statute
prevails. Virginia Nat’l Bank v. Harris, 220 Va. 336, 340, 257
S.E.2d 867, 870 (1979); see also County of Fairfax v. Century
Concrete Services, Inc., 254 Va. 423, 427, 492 S.E.2d 648, 650
(1997); Dodson v. Potomac Mack Sales & Service, Inc., 241 Va.
11
89, 94-95, 400 S.E.2d 178, 181 (1991). This is so because a
specific statute cannot be controlled or nullified by a statute
of general application unless the legislature clearly intended
such a result. Ingram v. Commonwealth, 1 Va. App. 335, 341, 338
S.E.2d 657, 660 (1986); see also Peoples Bank of Danville v.
Williams, 449 F.Supp. 254, 257 (W.D.Va. 1978).
To the extent Code § 16.1-69.27 and Code § 8.01-410 can be
said to be in conflict in that the former appears to grant
broad, general authority to the general district courts to issue
appropriate orders in aid of their jurisdiction, while the
latter specifically grants the authority to issue prisoner
transportation orders in civil cases to the circuit courts, the
latter must prevail. Accordingly, we hold that Code § 16.1-
69.27 does not authorize general district courts to order the
transportation of prisoners to appear in civil cases.
Finally, Brown’s contention that such a limitation on the
authority of the general district courts may lead to a
deprivation of a prisoner’s due process rights is wholly without
merit. While it is true that a prisoner does not forfeit all
constitutional rights when he is incarcerated, incarceration
requires “the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system.” Price v. Johnston,
334 U.S. 266, 285 (1948).
12
Thus, while the Commonwealth may restrict a prisoner’s
right to personally appear in a civil case, this restriction
does not preclude a prisoner from asserting a civil claim before
the courts. If his claim falls within the jurisdictional limits
of the circuit court, he may bring the claim there and, under
Code § 8.01-410, the circuit court will have the discretion to
enter a transportation order to provide for his court
appearance. Moreover, Code §§ 53.1-221 and 53.1-222 provide a
prisoner convicted of a felony and sentenced to confinement in a
state correctional facility the opportunity to petition a
circuit court to appoint a committee who may sue “in respect to
all claims or demands of every nature in favor of” the prisoner.
The committee may elect to sue on behalf of the prisoner in the
circuit court or the general district court as the circumstances
of a particular case may dictate will best protect the rights of
the prisoner.
Similarly, there is no violation of a prisoner’s right to
due process inherent in a limitation on his witnesses’ ability
to appear in person in the general district court in a civil
case. Alternative means of producing evidence, by de bene esse
deposition or telephonic hearing, for example, are more than
adequate to assure the prisoner a fair hearing.
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CONCLUSION
For these reasons, we will reverse the judgment of the
trial court and remand the case with instructions that the case
be further remanded to the general district court for further
proceedings consistent with the views expressed in this opinion.
Reversed and remanded.
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