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COMMONWEALTH, ex rel VIRGINIA DEPT. OF CORRECTIONS v. BROWN



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COMMONWEALTH, ex rel
VIRGINIA DEPT. OF CORRECTIONS

v.

BROWN


April 21, 2000

Record No. 991079

COMMONWEALTH OF VIRGINIA, EX REL VIRGINIA
DEPARTMENT OF CORRECTIONS

v.

DEMETRIOUS ERIC BROWN, A/K/A, ETC.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Melvin R. Hughes, Jr., Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice


OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR

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 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 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. 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.

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 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 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 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 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.

(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. 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).

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.

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.

 

FOOTNOTES:

[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.

[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.

[3] Of course, there is no
prohibition against producing the prisoner’s evidence by
other means such as video conference or telephone.

[4] Cf. Code ? 8.01-654
(habeas corpus proceedings limited to circuit courts).

 

 

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