Alleged maladministration of office not a nuisance

Where petitioners seek to convene a grand jury under Code § 48-1 to investigate the management of the commonwealth attorney’s office for the city of Norfolk, the petition is dismissed. The statute pertains to public or common nuisances, and the alleged maladministration of a public office cannot be characterized as a nuisance.

The statute

“Code § 48-1 provides: ‘When complaint is made to the circuit court of any county, or the corporation court of any city of this Commonwealth, by five or more citizens of any county, city or town, setting forth the existence of a public or common nuisance, the court … shall summon a special grand jury, in the mode provided by law, to the next term of such court, to specially investigate such complaint.’

The complaint

“The petitioners complain that as Commonwealth’s Attorney for the City of Norfolk, Mr. Fatehi and those in his employ have failed to: (1) disclose Brady materials timely to defense counsel, (2) prepare adequately for trials, (3) prosecute wrongdoers competently, and (4) keep victims and witnesses informed of proceedings pursuant to Code§ 19.2-11.01.”

Motion to dismiss

Mr. Fatchi has moved to dismiss.

“The petitioners are correct that Code § 48-1 et seq. make no provision for the filing of a motion to dismiss by a person to be investigated by a special grand jury. …

“However, nothing in these statutes prohibits the filing of a motion to dismiss, and Code § 48-4 only allows defense to be made to a proceeding in rem ‘upon presentment.’ When the proceeding is, as here, in personam, may the person presented make no defense?

“This proceeding differs from a criminal prosecution by indictment in at least one significant particular. Unless the accused in a felony prosecution waives indictment, this Court has no jurisdiction over him until a grand jury returns an indictment ‘a true bill.’ …

“The Court would thus have no jurisdiction to entertain a motion to dismiss a non-existent indictment or to prevent a grand jury from considering an indictment.

“By contrast, the Court probably obtains jurisdiction over this proceeding upon the filing of the complaint, and certainly upon a general appearance by a person the petitioners seek to have presented.

“Furthermore, if, as petitioners concede, the Court can sua sponte dismiss a petition as insufficient, why should the person they seek to have presented be prohibited from making a defense?”

Nuisance

“In common parlance, a busybody or other bothersome or dangerous person is sometimes called a ‘public nuisance.’ Virginia law defines ‘nuisance’ in very general terms, but the courts’ application of the term over centuries – both here and in England, whence we derive our law of nuisance – has, with few exceptions, limited it to dangers on public ways and activities conducted upon or conditions existing upon land. …

“Virginia common law defines a public nuisance as an ‘annoyance … common to the public generally,’ … or ‘a condition that is a danger to the public[.] …

“Extensive lists of hundreds of annoyances and conditions American and English courts have deemed to be or not to be nuisances can be found in 66 C.J.S., ‘Nuisances,’§§ 28-62; 46 Corpus Juris, ‘Nuisances,’§§ 60-214 (1928); 10 Encyclopedic Digest of Virginia and West Virginia Reports, ‘Nuisances’ at 503-16 (1908). Maladministration by a public officer is not among them.

“Mr. Lawrence [counsel for petitioners] conceded at the hearing he was not aware of any decision of any court in the United States holding maladministration by a public officer to be a public nuisance. …

“Mr. Lawrence also conceded at the hearing that the Court could refuse to summon a special grand jury if it determined from the face of the complaint that the condition complained of was a private nuisance or no nuisance at all. …

“The present petition merely alleges the existence of a public or common nuisance. The Court finds as a matter of law it does not set forth the existence of one. The Court orders the petition dismissed.”

Sanctions

“As pertinent here, Code§ 8.01-271.l(B) provides: ‘The signature of an attorney … constitutes a certificate by him that (i) he has read the pleading … , (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[.]’…

“The Court has already determined the petition is not warranted by existing law. The Court also finds the petition is not warranted by a good faith argument for the extension or modification of existing law.”

Petitioners “rely … on the general and vague definitions of ‘nuisance’ and the proposition it should be broadened to include special relationships to the public.

“Were this the law any public official in Virginia might be haled into court on the complaint of five people.”

Improper purpose

“The Court also finds the petition was filed for an improper purpose: political publicity. On January 10, 2023, two days before she filed the petition, Ms. Matheny-Willard announced her candidacy for Commonwealth’s Attorney in 2025.

“In her Facebook post announcing her candidacy, she also stated: ‘I am trying to file a document in order to hold the Commonwealth’s Attorney accountable … I need plaintiffs … I only need five people.’ …

“Five citizens were necessary to file the present petition. She succeeded in her wish for publicity. At least two local television news stations reported the hearing. The Court does not appreciate being used by an attorney for political advertising.

“Mr. Fatehi requests a sanction of $1,000 payable to the Clerk of the Court. The Court imposes a sanction of$ 500 on Ms. Matheny-Willard, who signed the petition, payable to the Clerk of the Court within sixty days.

“Nothing further remaining to be done herein, this matter is ended and stricken from the docket.”

In re: A Petition to Impanel a Special Grand Jury to Investigate the Administration of the Office of the Commonwealth’s Attorney of the City of Norfolk, Case No. CL23-403, Feb. 10, 2023. City of Fairfax Circuit Court (Martin). The petitioners appeared in person and by counsel, Amina Matheny-Willard, Esq. and Zachary T. P. Lawrence, Esq. Ramin Fatehi, Esq. appeared pro se. VLW 023-8-015, 10 pp.