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GILMORE, III, et al. v. FINN



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GILMORE, III, et al.

v.

FINN


March 3, 2000

Record Nos. 990779 & 990796

James S. Gilmore, III, Governor of the
Commonwealth of Virginia, et al.

v.

Michele P. Finn

Michele P. Finn

v. Record No.

James S. Gilmore, III, et al.

FROM THE circuit court of Prince WIlliam County

Frank A. Hoss, Judge

Present: Carrico, C.J., Compton,[1] Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.


In these appeals, we consider whether the trial
court erred in awarding sanctions pursuant to Code
? 8.01-271.1, limited to the actual attorney’s fees
and costs incurred by the opposing party, against the Governor
and the Commonwealth (hereafter collectively, the Governor) for
filing a lawsuit that allegedly was neither "well grounded
in fact [nor] warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing
law."

BACKGROUND

On March 9, 1995, Hugh Finn was injured in an
automobile accident. As a result of the accident, he suffered
severe brain damage and required continuous nursing home care,
including artificially administered hydration and nutrition
through feeding tubes. At all times relevant to these appeals,
Hugh Finn was a resident of Annaburg Manor Nursing Home in the
City of Manassas.

In June 1998, Michele P. Finn, Hugh Finn’s
wife and legal guardian, determined that it would not have been
her husband’s wish that he be kept alive by artificial
means, including the administration of hydration and nutrition,
if there were no reasonable possibility of his recovering from a
persistent vegetative state. Michele Finn then informed Hugh
Finn’s immediate family of her decision that pursuant to the
provisions of the Virginia Health Care Decisions Act (the Act),
Code ? 54.1-2981 et seq., she intended to direct the
medical staff at Annaburg Manor Nursing Home to withdraw this
life-prolonging procedure from her husband. A series of legal
actions between the various members of Hugh Finn’s family
followed. These legal actions were emotionally difficult for the
family, ultimately became the subject of public debate and,
indeed, led to the involvement of the Governor of Virginia.

A. The John Finn Lawsuit

Several members of Hugh Finn’s immediate
family disagreed with Michele Finn’s decision. John Finn,
Hugh Finn’s brother, filed a chancery suit in the Circuit
Court of Prince William County (the trial court) seeking a
permanent injunction to prohibit the withdrawal of hydration and
nutrition from Hugh Finn and to remove Michele Finn as Hugh
Finn’s guardian (the John Finn lawsuit). On July 17, 1998,
the trial court granted a temporary restraining order prohibiting
Michele Finn from taking action to withdraw the life-prolonging
procedure being administered to Hugh Finn.

On July 29, 1998, the trial court held a
hearing to consider John Finn’s request for a permanent
injunction and to remove Michele Finn as guardian. The trial
court received testimony from Hugh Finn’s neurologist, his
physiatrist and Dr. Robin B. Merlino, his attending physician.
The trial court found that the unanimous diagnosis of these three
physicians provided "clear and convincing evidence that Hugh
Finn has been and remains in a persistent vegetative state as
defined in Va. Code ? 54.1-2982, that can be characterized
as a permanent vegetative state, meaning that, to a reasonable
degree of medical probability, it is irreversible." The
trial court further found that there was credible testimony from
Michele Finn and in the de bene esse deposition of Kenneth
L. Sales, Hugh Finn’s attorney, that Hugh Finn had on
"multiple occasions before his tragic accident"
expressed that "he would not wish to have his life
artificially prolonged with artificial life sustaining medical
treatment, and that he would specifically wish to have
[artificially administered] nutrition and hydration withdrawn if
he were in a persistent or permanent vegetative state."
[2]

Addressing the provisions of the Act found in
Code ? 54.1-2986, the trial court found that Michele Finn
had satisfied the requirement that she make "a good faith
effort to ascertain the risks and benefits of and alternatives to
the treatment and the religious beliefs and basic values of
. . . the patient receiving treatment." The trial
court further found that it was "impossible to communicate
with Hugh Finn as a result of the permanent vegetative
state" and, thus, it was appropriate for Michele Finn to
"base[] her decision on [her husband’s] religious
beliefs and basic values and [his] preferences previously
expressed . . . regarding such treatment."

Based upon these findings, the trial court
determined that "the termination of [Hugh Finn’s] medical treatment . . . including the withdrawal of
[artificially administered] nutrition and hydration, is a
medically appropriate, ethical treatment decision that is not
inconsistent with Hugh Finn’s personal wishes or his
personal religious beliefs." Accordingly, the trial court
concluded that John Finn had not satisfied his burden of
demonstrating the likelihood of ultimately prevailing on the
merits of a challenge to either the appropriateness of Michele
Finn’s decision or to her suitability as Hugh Finn’s
guardian.

In an order dated August 31, 1998, the trial
court denied John Finn’s request for a permanent injunction,
dissolved the temporary injunction issued in the July 17, 1998
order, and dismissed John Finn’s petition to remove Michele
Finn as Hugh Finn’s guardian. Although granting Michele Finn
authority to proceed with her decision to direct the withdrawal
of Hugh Finn’s artificially administered hydration and
nutrition, the trial court stayed that authority for 21 days.
[3] The trial court further required
John Finn to pay one-half of the fees for the guardian ad litem
appointed for Hugh Finn, one-half of the fees for the expert
witnesses, and one-half of the attorney’s fees and costs
incurred by Michele Finn in defending the suit.

During the period of the stay imposed on
Michele Finn by the trial court, John Finn filed a motion for
reconsideration. In that motion, he asserted that new evidence
had been acquired to show that his brother was not in a
persistent vegetative state.

On September 21, 1998, the trial court held a
hearing on that motion and reviewed the affidavit of Marie F.
Saul, R.N., a utilization review nurse employed by the
Commonwealth’s Department of Medical Assistance Services. In
that affidavit, Saul stated that while reviewing Hugh Finn’s
medical records, she attempted to communicate with him. After
repeatedly saying "Hi" to him, Saul believed she heard
him respond in a similar fashion. Saul further stated that she
then persisted in attempting to communicate with Hugh Finn for
over an hour, but received no further response, although she
observed Hugh Finn "[s]moothing" his hair. Saul also
testified at the hearing, essentially reiterating the statements
in her affidavit.

By proffer, the trial court received evidence
from Michele Finn that the Commonwealth’s Department of
Health and Human Resources had conducted its own investigation of
Hugh Finn’s condition and that the Department’s report
concurred in the diagnosis of his treating physicians that Hugh
Finn was in a persistent vegetative state. Michele Finn further
proffered evidence that it was beyond the usual responsibility or
training of a utilization review nurse, such as Saul, to make
clinical observations or to report on the physical or medical
condition of a patient. The evidence further showed that there
had been no change in Hugh Finn’s condition or in the
diagnosis of that condition by his treating physicians since the
entry of the August 31, 1998 order.

The trial court found that Saul’s
affidavit and testimony did not constitute new evidence and,
moreover, "did not contradict a finding that [Hugh Finn] is
[] in a persistent vegetative state" as previously
determined by that court. Accordingly, the trial court denied the
motion for reconsideration. John Finn was ordered to pay the
additional fees and costs arising from the hearing on his motion.

B. Michele Finn’s Motion to Prohibit
Intervention by the Commonwealth

At various times following the July 29, 1998
hearing and continuing after the trial court’s denial of
John Finn’s motion for reconsideration, agencies of the
Commonwealth, apparently responding to requests from a relative
of Hugh Finn and a member of the General Assembly of Virginia,
made a series of investigative visits to Annaburg Manor Nursing
Home to examine Hugh Finn. These visits were conducted without
the knowledge of Michele Finn and contrary to her express
instructions that access to her husband be limited to family
members and medical staff. On September 20, 1998, twenty members
of the General Assembly released an informal declaration "In
the Matter of Hugh Finn" in which they asserted that
"the provision of comfort care as well as food and water
should not be denied patients where such removal will be the
underlying cause of death."

Under the aegis of the prior action filed by
John Finn, Michele Finn filed a motion seeking an order to enjoin
the Commonwealth from making further intrusions into her
husband’s privacy. The trial court conducted a hearing on
Michele Finn’s motion on September 25, 1998. At that
hearing, the evidence showed that three physicians employed by
the Commonwealth’s Department of Health and Human Resources
had examined Hugh Finn and determined that he was in a persistent
vegetative state. The physicians had further stated in an
interview with David Tucker, Administrator of Annaburg Manor
Nursing Home, that removal of Hugh Finn’s feeding tubes
would have been warranted as much as a year and a half prior to
the date of their examination. Additional evidence showed that
the Commonwealth’s physicians discounted Saul’s report
that Hugh Finn had actually responded to her efforts to
communicate with him. The trial court sustained the
Commonwealth’s demurrer to Michele Finn’s motion on the
ground that the Commonwealth was not a party to the John Finn
lawsuit.

On September 28, 1998, Hugh Finn’s family
members who had opposed Michele Finn’s decision to withdraw
the life-prolonging procedure being administered to Hugh Finn
agreed not to pursue further legal action. Accordingly, no appeal
was taken from the judgment rendered in the John Finn lawsuit.

C. The Governor’s Lawsuit

On September 30, 1998, James S. Gilmore, III,
"acting in his official capacity [as Governor of the
Commonwealth of Virginia] and in the name of the
Commonwealth," filed a bill of complaint against Annaburg
Manor Nursing Home, Dr. Merlino, and Michele Finn seeking a
temporary restraining order and a permanent injunction to
prohibit the respondents from withdrawing the administration of
hydration and nutrition from Hugh Finn (the Governor’s
lawsuit). The Governor asserted in the bill of complaint that the
suit was brought pursuant to Code ? 2.1-49, which provides,
in pertinent part, that "pursuant to his duty to protect or
preserve the general welfare of the citizens of the Commonwealth,
the Governor may institute any action, suit, motion or other
proceeding on behalf of its citizens, in the name of the
Commonwealth acting in its capacity as parens patriae, where he
shall determine that existing legal procedures fail to adequately
protect existing legal rights and interests of such
citizens."

In addition, it was asserted that the suit was
brought pursuant to Code ? 54.1-2986(E), which provides
that: "On petition of any person to the circuit court
of the county or city in which any patient resides or is located
for whom treatment will be or is currently being provided,
withheld or withdrawn pertinent to this article, the court may
enjoin such action upon finding by a preponderance of the
evidence that the action is not lawfully authorized by this
article or by other state or federal law." (Emphasis added.)

The Governor, as pertinent to the present
appeal, contended that Hugh Finn is "dependent upon the
artificial administration of nutrition and hydration in order to
survive" and that the withdrawal of this procedure
"will initiate a process of dying which will cause Hugh Finn
to die from starvation and/or dehydration." Accordingly, the
Governor further contended that "the Virginia Health Care
Decisions Act . . . does not authorize the withholding
of nutrition and hydration from Hugh Finn" because Code
? 54.1-2990 expressly provides that "nothing in [the
Act] shall be construed to condone, authorize or approve mercy
killing or euthanasia, or to permit any affirmative or deliberate
act or omission to end life other than to permit the natural
process of dying." The Governor further contended that
"[u]pon information and belief, Hugh Finn is not in a
persistent vegetative state as defined under Code
? 54.1-2982; however, even if Hugh Finn were in a
persistent vegetative state, the Respondents would not be
authorized under the Act . . . to withhold or withdraw
the administration of nutrition and/or hydration" from Hugh
Finn.

On October 1, 1998, the trial court held a
hearing on the Governor’s request for a temporary
restraining order. At that hearing, the Governor, represented by
the Office of the Attorney General, conceded that there was no
new evidence to present in support of the contention that Hugh
Finn was not in a persistent vegetative state and relied solely
on Saul’s affidavit. The Governor contended, however, that
Hugh Finn’s medical condition was not dispositive inasmuch
as the principal contention of the bill of complaint was that the
withdrawal of hydration and nutrition under the circumstances of
the case was prohibited by Code ? 54.1-2990.

Hugh Finn’s guardian ad litem advised the
trial court that there was new evidence in the form of a medical
report prepared for the Department of Medical Assistance Services
by Dr. Naurang S. Gill, which the guardian ad litem had obtained
from the Office of the Attorney General. Dr. Gill’s report
confirmed the previous diagnoses of Hugh Finn’s personal
physicians and the physicians employed by the Department of
Health and Human Resources that Hugh Finn "had been and
remained in a persistent vegetative state." Dr. Gill further
opined "that [Hugh Finn’s] chances of any meaningful
recovery . . . are practically zero."

On the day the hearing was held, the trial
court denied the Governor’s request for a temporary
restraining order. In that order, the trial court reviewed the
prior proceedings and its factual findings in the John Finn
lawsuit and then reiterated its prior determination that Michele
Finn had "full authority under the Act, to withhold and
withdraw life-prolonging medical procedures," including the
artificial administration of hydration and nutrition. Addressing
the argument that Code ? 54.1-2990 prohibited the
withdrawal of hydration and nutrition, the trial court concluded
that "a person in a persistent vegetative state is, as a
matter of law, in the natural process of dying within the meaning
of [Code ? 54.1-2990] and . . . the withholding
and/or withdrawal of artificial nutrition or hydration from a
person in a persistent vegetative state merely permits the
natural process of dying and is not mercy killing or euthanasia
with[in] the meaning of [Code ? 54.1-2990]."

Pursuant to Code ? 8.01-626, the Governor
filed an emergency petition in this Court for review of the trial
court’s order. The Governor’s sole assignment of error
asserted that the denial of the motion for a temporary
restraining order "was error, and was based on an erroneous
interpretation of Va. Code ? 54.1-2990." Without
conceding that Hugh Finn was in a persistent vegetative state,
the Governor argued for reversal of the trial court’s order
on the ground that a person in a persistent vegetative state is
not in the "natural process of dying," but rather that
the withdrawal of hydration and nutrition would "initiate
a dying process not previously present." Thus, the Governor
contended, as he had in the trial court, that a plain reading of
Code ? 54.1-2990 would prohibit the withdrawal of hydration
and nutrition from a person not otherwise in the process of dying
from some other disease or condition. The Governor further
contended that even if this Court were unwilling to construe the
statute in this manner, the failure to issue the temporary
restraining order deprived the parties of the opportunity
"to make [a] more deliberate investigation" of Hugh
Finn’s condition, "whatever that condition may
be."

By order entered October 2, 1998, we denied the
Governor’s emergency petition for review. In that order, we
held that the "withholding and/or withdrawal of artificial
nutrition and hydration from . . . a person in a
persistent vegetative state[] merely permits the natural process
of dying and is not mercy killing or euthanasia within the
meaning of Code ? 54.1-2990." Gilmore, et al. v.
Annaburg Manor Nursing Home, et al.
, Order Denying Emergency
Petition for Review (October 2, 1998). Hugh Finn subsequently
died following the withdrawal of the life-prolonging procedure in
question.

D. Michele Finn’s Motion for Fees and
Sanctions

On November 5, 1998, pursuant to Code
? 8.01-271.1, Michele Finn filed in the trial court a
motion seeking an award of fees and sanctions against the
Governor, the Attorney General, and the attorneys in the Attorney
General’s office who had endorsed the pleadings in the
Governor’s lawsuit. Michele Finn contended that the
Governor’s lawsuit was supported by "no law, nor facts,
on which to base [the] claim for injunctive relief, and no
standing to justify the Governor’s intervention
. . . when [the Governor and his counsel] brought this
ill-advised, improvident and spurious lawsuit."

In a memorandum in opposition to this motion,
the Governor responded to Michele Finn’s motion contending
that his lawsuit was filed in good faith and based upon a
reasonable belief in the merits of both the factual assertion
that Hugh Finn was not in a persistent vegetative state and the
legal assertion that the Act did not permit the withdrawal of
artificially administered hydration and nutrition from any person
not otherwise in the natural process of dying. In support of his
assertion that the factual issue of Hugh Finn’s medical
condition was controverted and, thus, raised in good faith, the
Governor referenced Saul’s affidavit. In addition, for the
first time the Governor cited medical studies on misdiagnosis of
patients thought to be in a persistent vegetative state, an
alleged failure to correct a problem with a drainage shunt
intended to relieve pressure on Hugh Finn’s brain, and
reports from Annaburg Manor Nursing Home that Hugh Finn had
demonstrated improvement in manual dexterity and verbal
responsiveness to questions. The Governor also supplied an
affidavit of a lay Catholic minister who related that "tears
came to Mr. Finn’s eyes" when the minister told him he
could not receive the physical Eucharist due to medical reasons
and that Hugh Finn once "reached up and took [the
minister’s] hand" during prayer.

In support of his contention that his legal
challenge concerning the construction of Code ? 54.1-2990
was made in good faith, the Governor noted that this statute had
not been authoritatively construed by the courts and contended
that the statute was susceptible to two interpretations. The
interpretation advocated by the Governor was that the
artificially administered hydration and nutrition merely
compensated for Hugh Finn’s inability to chew and swallow
and could have sustained his life indefinitely. Thus, he was not
in the natural process of dying and the withdrawal of this
life-prolonging procedure would have the effect of initiating a
dying process in violation of the statute. The second
interpretation, acknowledged by the Governor, was that because
Hugh Finn was in a persistent vegetative state, he was already in
the process of dying as a matter of law and, thus, the withdrawal
of the life-prolonging procedure merely permitted that process to
continue. Although conceding that the latter interpretation was
ultimately adopted by the trial court and upheld by this Court,
the Governor contended that at the time he filed suit his
interpretation was "warranted by existing law or good faith
argument for the extension, modification, or reversal of existing
law such that the imposition of sanctions under Code
? 8.01-271.1 would not be warranted." In addition, the
Governor further contended that the imposition of sanctions would
impermissibly invade executive decision-making and violate the
separation of powers doctrine.

In a reply memorandum, Michele Finn contended
that the Governor’s basis for supporting his challenge to
Hugh Finn’s medically diagnosed condition was "unworthy
of belief and ignores the prior findings of [the trial court], as
well as the very results [of] the Governor’s own
investigation." She further contended that Code
? 54.1-2990, when read in the context of the other
definitions and provisions of the Act, was not reasonably subject
to the interpretation advanced by the Governor and that in any
case the issues of mercy killing and euthanasia had been
litigated in the John Finn lawsuit.

On November 25, 1998, the trial court heard
argument from the parties in support of their positions. In
summarizing its findings and conclusions, the trial court stated,
"[T]he real issue in this case is whether or not the
[Governor’s] pleadings were well grounded in fact and
warranted by existing law." With respect to the
Governor’s argument that he had a good faith belief that the
diagnosis of Hugh Finn’s medical condition was controverted,
the trial court found that the evidence cited by the Governor was
too far removed in time to contradict the evidence that had been
developed during the John Finn lawsuit. The trial court further
found that the Governor had "simply glossed over" Dr.
Gill’s report that Hugh Finn was in a persistent vegetative
state with almost no hope of improvement, which the trial court
found "compelling on the issue of whether the Commonwealth,
the Attorney General, or the Governor could, in good faith, argue
otherwise."

The trial court further stated that
"[t]here is precious little construction that needs to be
made" when Code ? 54.1-2990 is read in the context of
the other definitions and provisions of the Act. The trial court
found that the Governor’s assertion that this statute was
subject to two constructions was not warranted by existing law
and stated that this finding "is supported by the
unprecedented manner in which this case was decided by a
unanimous Supreme Court of Virginia within just a few days of the
signing of [the trial] Court’s order." In addition,
with regard to the Governor’s legal assertions concerning
the Act, the trial court further stated that "[i]t seems
clear to [this court] from all that [this court has] observed in
this case since it gained such public prominence is that there
are legislators, and apparently the Governor too, that do not
favor this law. This is certainly their prerogative. But the
challenge that should be mounted . . . is one to be
made in the political arena and not in the court, and certainly
not in the manner that it was done in this case."

The trial court further rejected the
Governor’s contention that any imposition of sanctions
against him would impermissibly invade his executive
decision-making prerogative and would violate the separation of
powers doctrine. The trial court assumed that Code ? 2.1-49
provided the Governor with standing to bring the lawsuit in the
name of the Commonwealth, but further reasoned that having thus
submitted himself to the authority of the courts, the Governor
could not claim executive privilege to avoid the consequences of
that authority being exercised.

Accordingly, the trial court imposed on the
Governor and the Commonwealth, jointly and severally, a
compensatory sanction in the form of an award of attorney’s
fees and costs to Michele Finn in the amount of $13,124.20.
[4]
The trial court declined a request by Michele Finn that it assess
a punitive sanction against the Governor, the Commonwealth, the
Attorney General, and the attorneys in the Attorney
General’s office who had signed the pleadings, finding that
a punitive sanction was not appropriate under the facts of this
case.

The Governor and the Commonwealth filed a
petition for writ of error in this Court asserting that the trial
court had erred in rejecting the separation of powers doctrine
argument, in considering evidence outside the record, in
determining that the Governor’s lawsuit was not well
grounded in fact, and in ruling that the Governor’s legal
argument was sanctionable. Michele Finn also filed a petition for
writ of error asserting that the trial court erred in failing to
assess a punitive sanction and in failing to assess liability for
the compensatory sanction against the Attorney General and the
individual attorneys who signed the pleadings. We awarded appeals
to both the Governor and Michele Finn.

DISCUSSION

Our consideration of the trial court’s
imposition of sanctions under Code ? 8.01-271.1 in this
case necessarily begins with a review of the other pertinent
statutes that were the focal point in the proceedings below. The
Health Care Decisions Act, Code ? 54.1-2981 et seq.,
as the name implies is a legislative response to and
acknowledgement of the fact that a competent adult may decide not
to undergo life-prolonging medical procedures in the event such
person should have a terminal condition. The right to make that
decision is specially acknowledged in Code ? 54.1-2983. By
its very nature, however, such a decision, while reasonable and
perhaps even prudent in the abstract, in its application in a
given case is of considerable concern and impact, not only to the
terminally ill person, his family and physicians but, indeed, in
a broad sense, to the welfare of all the citizens of this
Commonwealth. This is so because society considers a human life
to be unique and precious and, in the context of this Act, its
termination is rightfully permitted only in "the natural
process of dying."

When so viewed, the Act provides for various
procedures to be followed to ensure that the decision of a
terminally ill person not to undergo life-prolonging procedures
is communicated to his physician at the appropriate time. Under
the best of circumstances, this is accomplished by an
"advance directive" made by the person, and the Act
provides in detail the requirements for such a medical directive.
See Code ?? 54.1-2983 and 54.1-2884. In the absence
of an advance directive, Code ? 54.1-2986 provides the
conditions and requirements for permitting an attending
physician, upon authorization of the guardian of the patient or
other specified persons, to withhold or withdraw life-prolonging
procedures. Michele Finn, in her capacity as legal guardian of
Hugh Finn, invoked this statute when she made the decision to
direct her husband’s physicians to withdraw the hydration
and nutrition being artificially administered to him.

As we have previously noted, in addition to
issues raised as to whether that decision was consistent with
Hugh Finn’s religious beliefs and his previously expressed
preferences for treatment, this decision was challenged by some
of Hugh Finn’s family as not being consistent with the
statutory definitions of a life-prolonging procedure in the
specific context of Hugh Finn’s medical condition. Code
? 54.1-2982 defines "Life-prolonging procedure"
as "any medical procedure, treatment or intervention which
(i) utilizes mechanical or other artificial means to sustain,
restore or supplant a spontaneous vital function, or is otherwise
of such a nature as to afford a patient no reasonable expectation
of recovery from a terminal condition and (ii) when applied to a
patient in a terminal condition, would serve only to prolong the
dying process. The term includes artificially administered
hydration and nutrition
." (Emphasis added.) The statute
defines "Terminal condition" as "a
condition caused by injury, disease or illness from which, to a
reasonable degree of medical probability a patient cannot recover
and (i) the patient’s death is imminent or (ii) the
patient is in a persistent vegetative state
." (Emphasis
added.) The statute defines "Persistent vegetative state"
as "a condition caused by injury, disease or illness in
which a patient has suffered a loss of consciousness, with no
behavioral evidence of self-awareness or awareness of
surroundings in a learned manner, other than reflex activity of
muscles and nerves for low level conditioned response, and from
which, to a reasonable degree of medical probability, there can
be no recovery."

In the John Finn lawsuit, Michele Finn
prevailed on the factual and legal contentions that Hugh Finn was
in a persistent vegetative state and, therefore, as a matter of
law was in a terminal condition, and that the artificial
administration of hydration and nutrition was a life-prolonging
procedure the statute permitted her to direct to be withdrawn
because it would serve only to prolong the dying process of her
husband. No appeal was taken in that case. However, Code
? 54.1-2990 which, in pertinent part, provides that
"[n]othing in this article shall be construed to condone,
authorize or approve mercy killing or euthanasia, or to permit
any affirmative or deliberate act or omission to end life other
than to permit the natural process of dying" was neither
asserted nor expressly considered in that suit. The Governor did
not intervene in that suit and thus was not a party to it.
Instead, the Governor filed a separate suit in which this
provision of Code ? 54.1-2990 was the focal point of his
contention that, notwithstanding the provisions of Code
? 54.1-2982, this statute as applied to Hugh Finn’s
circumstances required the conclusion that the withdrawal of the
artificially administered hydration and nutrition was not
permitted because that withdrawal would initiate a dying
process because Hugh Finn was not otherwise in the process of
dying. That contention was rejected by the trial court and by
this Court on appeal.

It is then manifest that our consideration of
whether sanctions were appropriately imposed upon the Governor in
the present case is to be focused primarily upon the
Governor’s lawsuit and not the John Finn lawsuit.
Accordingly, we turn now to the statutes and legal principles
that guide our further analysis.

Initially we note that to the extent that
Michele Finn challenged the Governor’s "standing"
to file suit in this case, that challenge is totally without
merit. Code ?? 2.1-49 and 54.1-2986(E) provide that
standing. The question is whether the Governor pursued the
lawsuit in a fashion that was not in violation of Code
? 8.01-271.1.

Code ? 8.01-271.1, in pertinent part,
provides that:

The signature of an attorney or party
constitutes a certificate by him that (i) he has read the
pleading, motion, or other paper, (ii) to the best of his
knowledge, information and belief, formed after reasonable
inquiry, it is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification, or
reversal of existing law, and (iii) it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation.

* * * *

If a pleading, motion, or other paper is signed
or made in violation of this rule, the court, upon motion or upon
its own initiative, shall impose upon the person who signed the
paper or made the motion, a represented party, or both, an
appropriate sanction, which may include an order to pay to the
other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other
paper or making of the motion, including a reasonable
attorney’s fee.

We begin our consideration of the application
of this statute to the present case with the proposition that the
Governor is not above the law and, where appropriate, is fully
subject to the imposition of sanctions under Code
? 8.01-271.1. We also note that the Governor does not
contend otherwise in this appeal.

We have previously identified some of the
policy considerations in sanction cases. "The possibility of
a sanction can protect litigants from the mental anguish and
expense of frivolous assertions of unfounded factual and legal
claims and against the assertions of valid claims for improper
purposes. . . . Yet the threat of a sanction
should not be used to stifle counsel in advancing novel legal
theories or asserting a client’s rights in a doubtful
case." Oxenham v. Johnson, 241 Va. 281, 286, 402
S.E.2d 1, 3 (1991). All of these policy considerations are
facially implicated by the proceedings in this case.

"[W]e apply an abuse-of-discretion
standard in reviewing a trial court’s award or denial of a
sanction." Id. at 287, 402 S.E.2d at 4. In making
that review, we apply an objective standard of reasonableness in
order to determine whether a litigant and his attorney, after
reasonable inquiry, could have formed a reasonable belief that
the pleading was warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing
law. Nedrich v. Jones, 245 Va. 465, 471-72, 429 S.E.2d
201, 204 (1993).

There can be no real dispute that under an
objective standard of reasonableness the Governor’s
allegation in his bill of complaint that "Hugh Finn is not
in a persistent vegetative state" was not well grounded in
fact after a reasonable inquiry into the facts available to the
Governor and his counsel when the Governor’s lawsuit was
filed. However, this allegation appears in a single-count
pleading, in conjunction with the legal assertion in the pleading
that "even if Hugh Finn [is] in a persistent vegetative
state, the Respondents would not be authorized under the Act
. . . to withhold or withdraw the administration of
nutrition and/or hydration." While the factual and legal
viability of separate claims are individually assessed for
sanction purposes, see Nedrich, 245 Va. at 472-79,
429 S.E.2d at 205-07, this factual allegation was not essential
to the Governor’s unitary legal theory concerning the
asserted construction of Code ? 54.1-2990 upon which, if
correct, he could obtain the relief sought in his bill of
complaint.

Accordingly, for purposes of the imposition of
sanctions under Code ? 8.01-271.1, we must consider whether
there was a reasonable and good faith basis for the legal
assertions in the Governor’s pleading. That consideration,
as we stated in Nedrich, does not require that we decide
that the Governor’s pleading was actually warranted by
existing law but, rather, whether the Governor could have formed
a reasonable belief that his action was warranted by existing law
or a good faith argument for the extension, modification, or
reversal of existing law. In other words, "the wisdom of
hindsight should be avoided" in applying the appropriate
objectively reasonable standard of review. Tullidge v. Board
of Supervisors
, 239 Va. 611, 614, 319 S.E. 2d 288, 290
(1990).

While, as we have stated, the Governor is not
above the law, the Governor is also not merely "any
person" as contemplated by Code ? 54.1-1986(E) when
sanctions under Code ? 8.01-271.1 are at issue. Code
? 2.1-49(B) provides:

In accordance with subsection A and pursuant to
his duty to protect and preserve the general welfare of the
citizens of the Commonwealth, the Governor may institute any
action, suit, motion or other proceeding on behalf of its
citizens, in the name of the Commonwealth acting in its capacity
as parens patriae, where he shall have determined that existing
legal procedures fail to adequately protect existing legal rights
and interests of such citizens.

This statute, for purposes of our present
considerations, is more than a standing statute. It clearly
acknowledges the Governor’s duty, rather than a mere right,
to protect the general welfare of all citizens of the
Commonwealth. The trial court gave little significance to the
duty of the Governor under this statute in exercising its
discretion to impose sanctions in this case. We are of the
opinion, however, that the duty placed upon the Governor is a
highly significant factor to be considered in this and any case
in which the appropriateness of sanctions against a Governor is
at issue. No other litigant has the duty "to protect and
preserve the general welfare of the citizens of the
Commonwealth," including in this case the legal rights and
interests of Hugh Finn. With regard to the imposition of
sanctions, we do not suggest that the Governor’s action is
clothed with a dispositive presumption of reasonableness or good
faith. Rather, we are of the opinion that when, as here, the
Governor asserts a legal contention in the context of fulfilling
the duty to protect the welfare of one or all the citizens of
this Commonwealth acting in the capacity as parens patriae,
any doubts about the good faith of that action should be resolved
in favor of the Governor’s contention. It is only when the
Governor’s legal contention is totally without merit that
his action is appropriately sanctioned. See, Tullidge,
239 Va. at 614, 391 S.E.2d at 290.
[5]

It is undisputed that at the time the Governor
filed his lawsuit he was advancing a novel legal theory in the
sense that there was no prior authoritative construction of the
Act. That authoritative construction was obtained by the
Governor’s lawsuit upon appeal to this Court. Accordingly,
we are of the opinion that the trial court erred in giving any
weight to the promptness with which we rejected the
Governor’s legal assertions of the proper construction of
the Act. That decision addressed the merits of the
Governor’s legal argument and had nothing to do with whether
it was objectively reasonable for the Governor to have made that
argument. Moreover, the immediacy with which that decision was
rendered was mandated by the circumstances of the case.

Continuing, we are further of the opinion that
the Governor’s legal assertion that Code ? 54.1-2990
prohibited the withdrawal of artificially administered hydration
and nutrition in this case because such withdrawal would initiate
the dying process rather than merely to permit the natural
process of dying, while ultimately incorrect, was nevertheless
not totally without merit. It cannot be said that this
interpretation had no reasonable possibility of being judicially
adopted at the time this assertion was made in the trial court.
Thus, it cannot be said that the Governor’s assertion that a
conflict existed between the provisions of Code ? 54.1-2990
and Code ? 54.1-2986 lacked any objectively reasonable
basis, and the trial court erred in holding otherwise. See
Nedrich and Tullidge, supra.

Finally, the record amply demonstrates that the
Governor was not alone in advancing the contention that the
withdrawal of artificially administered hydration and nutrition
as the sole form of life-sustaining medical treatment was not
permitted under the Act. A significant level of public debate
concerning the issue preceded the Governor taking action to
intervene in the matter. While Michele Finn asserts that the
Governor’s suit was motivated solely by some unidentified
political objective, the record does not support that assertion.
Moreover, assuming that the impetus for the Governor’s suit
may have been "politically" motivated to some degree,
nonetheless after reasonable inquiry the Governor could have
formed the reasonable belief that his suit was warranted by
existing law or a good faith argument that his legal assertions
might be adopted by the court.

Accordingly, we hold that, under the
circumstances of this case, the trial court abused its discretion
in imposing compensatory sanctions against the Governor and the
Commonwealth under Code ? 8.01-271.1.

[6]

CONCLUSION

For these reasons, we will reverse the judgment
of the trial court and enter final judgment in favor of the
Governor and the Commonwealth.

Record No. 990779 — Reversed and final
judgment
.

Record No. 990796 — Dismissed.

 

FOOTNOTES:

[1] Justice Compton participated in
the hearing and decision of this case prior to the effective date
of his retirement on February 2, 2000.

[2] Although not referenced in the
trial court’s order, the record reflects that the testimony
of Hugh Finn’s sister, Karen Finn, corroborated Michele
Finn’s and Sales’ testimony. The evidence further
showed that Sales had been asked by Hugh Finn to draft a Medical
Directive, or "Living Will," expressing his desires a
short time prior to his accident.

The trial court also reviewed the de bene
esse
deposition of John Collins Harvey, M.D., Ph.D., a
Catholic physician theologian and expert on the subject of
Catholic doctrines regarding euthanasia and related issues. Hugh
Finn was a practicing Catholic prior to his incapacitation. Dr.
Harvey expressed the opinion that Hugh Finn’s wishes were
not inconsistent with the doctrines of the Catholic faith.

[3] The trial court subsequently
amended the period of the stay to 30 days, that is, until
September 30, 1998, to permit an appeal to this Court.

[4] The Commonwealth was further
directed "not as a sanction but pursuant to appropriate
statutory authority" to pay the guardian ad litem’s fee
of $2,731.00. This assessment of the guardian ad litem’s fee
is not challenged in this appeal.

[5] In this regard, however, we do
not agree with the Governor’s assertion that the doctrine of
separation of powers is implicated in this case on the theory
that an imposition of sanctions would have a "chilling
effect" on the exercise of executive discretion provided by
Code ? 2.1-49(B). The logical extension of that contention
would be the conclusion that the Governor’s actions are not
always required to be taken in good faith, as are the actions of
any other litigant. Accordingly, we reject this contention.

[6] In light of this holding, the
issues raised in Michelle Finn’s appeal are now moot, and
that appeal will be dismissed.

 

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