Home / Fulltext Opinions / Supreme Court of Virginia / EARLEY, ATTY. GEN. OF VA v. LANDSIDLE, COMPTROLLER OF VA





February 26, 1999
Record No. 981552




Present: All the Justices

This is an original petition for a writ of
mandamus brought by the Attorney General of Virginia, Mark L.
Earley, under the provisions of Code Sect. 8.01-653. The
issue before us is whether to grant a motion to dismiss the
Attorney General’s motion to join as parties Bruce F. Jamerson,
Clerk, Virginia House of Delegates, and Susan Clarke Schaar,
Clerk, Senate of Virginia (the Clerks). The Clerks assert in
their motion to dismiss, among other things, that this Court
lacks subject matter jurisdiction to consider the Attorney
General’s petition.

The Comptroller of Virginia, William E.
Landsidle, notified the Attorney General by letter dated July 1,
1998, that he entertained doubt concerning the constitutionality
of two spending provisions enacted by the General Assembly as
part of the Commonwealth’s 1998-2000 Biennial Budget (the 1998
Budget). 1998 Va. Acts of Assembly, ch. 464; 1998 Va. Acts of
Assembly, Special Session, ch. 1. The Comptroller questioned Item
1A6 of the 1998 Budget, which increased the so-called "per
diem" paid to legislators for legislative activities
involving the discharge of their duties when the General Assembly
is not in session from $100 to $200. The Comptroller also
questioned Item 1A8, which increased the legislators’ monthly
allowance for office expenses and supplies from $750 to $1250.

The Comptroller stated that his doubt was based
on Article IV, Sect. 5 of the Constitution of Virginia (the
Constitution), which provides that an increase in salary for a
given legislator shall not take effect until after the end of the
legislative term for which the legislator was elected. As
directed by Code Sect. 8.01-653, the Comptroller informed
the Attorney General that he would not make payments for these
items at the new levels authorized in the 1998 Budget until the
constitutionality of those items had been adjudicated by this
Court. However, the Comptroller stated that he would continue to
make payments for those items at the levels authorized before the
1998 Budget was enacted.

In July 1998, the Attorney General filed with
this Court the present petition for writ of mandamus naming the
Comptroller as party defendant. The Attorney General asked this
Court to declare unconstitutional the increased payment levels
authorized in Items 1A6 and 1A8 of the 1998 Budget, which became
effective before the end of the present term of the members of
the General Assembly. The Attorney General requested that this
Court direct the Comptroller to continue to make payment for
these items at the previously authorized levels until the next
term of the General Assembly begins in January 2000, and,
thereafter, to make payment at the increased levels fixed in the
1998 Budget.

The Attorney General later filed a motion to
join the Clerks as additional parties defendant. The Attorney
General alleged that the Clerks "have responsibilities in
conjunction with the payments called into question in this
action, and therefore, have a direct and substantial interest in
the issues" before the Court. The Clerks have moved to
dismiss the Attorney General’s motion to join them as additional

The Clerks assert that this Court lacks subject
matter jurisdiction to hear the petition for a writ of mandamus
because Code Sect. 8.01-653 requires the Attorney General to
defend the constitutionality of spending provisions challenged by
the Comptroller. The Clerks also contend that they are not proper
parties under Code Sect. 8.01-653 because the statute only
permits joinder of additional parties defendant who
stand in the same position as the Comptroller and might be
involved in implementing the challenged spending provisions. The
Clerks argue that the Attorney General and the Comptroller
essentially are "two respondents in search of a
petitioner," and that Code Sect. 8.01-653 does not
permit the joinder of additional parties to furnish someone to
oppose the Comptroller.

In response, the Attorney General contends that
Sect. 8.01-653 is a remedial statute that must be construed
liberally to accomplish its purpose of permitting prompt judicial
review of "questionable" appropriations of public
funds. The Attorney General asserts that when he believes that a
spending provision is unconstitutional, he is obligated to
challenge its constitutionality by filing a petition for writ of
mandamus under Code Sect. 8.01-653, and that he may seek the
joinder of additional defendants to argue in support of the
challenged provision. He argues that the present petition
properly seeks an affirmative order directing the Comptroller to
make payments under the challenged provisions after the next term
of the General Assembly convenes in January 2000. We disagree
with the Attorney General’s arguments.

Mandamus is an extraordinary remedy that may be
used to compel public officers to perform their ministerial
duties. Town of Front Royal v. Front Royal & Warren County
Indus. Park, Corp.
, 248 Va. 581, 584, 449 S.E.2d 794, 796
(1994); Williams v. Matthews, 248 Va. 277, 281, 448 S.E.2d
625, 627 (1994); Morrissette v. McGinniss, 246 Va. 378,
382, 436 S.E.2d 433, 435 (1993). When a public official has
failed to perform his ministerial duty at a time required by law,
mandamus will lie to compel the discharge of such duty within a
reasonable time after issuance of the writ. Andrews v.
, 201 Va. 412, 416, 111 S.E.2d 279, 282 (1959); Moore
v. Pullem
, 150 Va. 174, 198, 142 S.E. 415, 422 (1928).

Code Sect. 8.01-653 authorizes this Court
to consider a petition for a writ of mandamus in the particular
circumstances detailed in the statute. Under basic rules of
statutory construction, we examine the statute in its entirety,
rather than by isolating particular words or phrases. Ragan v.
Woodcroft Village Apartments
, 255 Va. 322, 325, 497 S.E.2d
740, 742 (1998); Buonocore v. C&P Tel. Co., 254 Va.
469, 472-73, 492 S.E.2d 439, 441 (1997). The legislature’s intent
must be determined from the words used, unless a literal
construction of the statute would yield an absurd result. Ragan,
255 Va. at 325-26, 497 S.E.2d at 742; Abbott v. Willey,
253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Barr v. Town &
Country Properties, Inc.
, 240 Va. 292, 295, 396 S.E.2d 672,
674 (1990). Therefore, when the language in a statute is clear
and unambiguous, the courts are bound by the plain meaning of
that language. Harrison & Bates, Inc. v. Featherstone
, 253 Va. 364, 368, 484 S.E.2d 883, 885 (1997); Wall
v. Fairfax County Sch. Bd.
, 252 Va. 156, 159, 475 S.E.2d 803,
805 (1996); Carr v. Forst, 249 Va. 66, 69-70, 453 S.E.2d
274, 276 (1995).

Code Sect. 8.01-653 provides, in material

Whenever the Comptroller or the
Treasurer of the Commonwealth shall notify the Attorney
General, in writing, that they, or either of them,
entertain such doubt respecting the proper construction
or interpretation of any act of the General Assembly
which appropriates or directs the payment of money out of
the treasury of the Commonwealth, or respecting the
constitutionality of any such act, that they, or either
of them, do not feel that it would be proper or safe to
pay such money until there has been a final adjudication
by the Supreme Court determining any and all such
questions, and that, for such reason, they will not make
payments pursuant to such act until such adjudication has
been made, the Attorney General may file in such court a
petition for a writ of mandamus directing or requiring
the Comptroller or Treasurer of the Commonwealth, or
both, to pay such money as provided by any such act at
such time in the future as may be
proper. . . .The Comptroller and the
Treasurer of the Commonwealth, or either of them, as the
case may be, shall be made a party or parties defendant
to any such petition and the court may, in its
discretion, cause such other officers or persons to be
made parties defendant as it may deem
proper. . .

This statutory language is clear and
unambiguous. It authorizes the Attorney General, after being
informed by the Comptroller that he entertains doubt concerning
the constitutionality of an act of the General Assembly requiring
payment of money from the Commonwealth’s treasury, to request a
writ of mandamus directing the Comptroller to pay
money as provided by that act. Here, however, the Attorney
General assumes the role of a party defendant by
effectively asking us to direct the Comptroller not to
pay money under the challenged items until the next
session of the General Assembly in January 2000.

We agree with the Clerks that this request by
the Attorney General raises a question concerning the subject
matter jurisdiction of this Court. Subject matter jurisdiction is
the authority granted to a court by constitution or by statute to
adjudicate a class of cases or controversies. Morrison v.
, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990); see
Ringstaff v. Metropolitan Life Ins. Co., 164 Va. 196, 199,
179 S.E. 66, 67 (1935). The lack of subject matter jurisdiction
may be raised at any time during a proceeding, even by this Court
sua sponte. Garrett v. Majied, 252 Va. 46,
48, 471 S.E.2d 479, 480 (1996); Morrison, 239 Va. at 170,
387 S.E.2d at 756; Thacker v. Hubard, 122 Va. 379, 386, 94
S.E. 929, 930 (1918).

The present petition plainly exceeds the
subject matter jurisdiction granted to this Court by Code
Sect. 8.01-653. The statute only permits the Attorney
General to petition this Court to seek payment of money that he
believes the Comptroller is improperly withholding. In the
present case, the Attorney General and the Comptroller agree that
payment should not be made on the challenged budget items at the
amounts fixed in the 1998 Budget until the next session of the
General Assembly begins. Thus, there is no request before us to
direct the Comptroller to pay money under a
contested budget item.

Code Sect. 8.01-653 does not permit the
Attorney General to challenge the constitutionality of an act by
adding parties in the role of petitioners whom he expects will
defend that act and seek payment under it. As provided by the
plain language of the statute, the only parties who may be joined
in such a proceeding are parties defendant.

We find no merit in the Attorney General’s
argument that he has satisfied the requirements of Code
Sect. 8.01-653 because he has asked us to direct the
Comptroller to make payment pursuant to Items 1A6 and 1A8 after
the beginning of the next General Assembly session in January
2000. The Comptroller has not notified the Attorney General that
he doubts the constitutionality of making payment for these items
after that date. Article IV, Sect. 5 of the Constitution, on
which the Comptroller’s doubts are based, relates only to salary
increases for legislators during their current term of office.
Thus, the Attorney General’s request that payment be made after
the next legislative term of office begins is not responsive to
the constitutional question posed by the Comptroller, and does
not satisfy the statutory requirement that the Attorney General
seek payment of money authorized by an act that the Comptroller

For these reasons, we will dismiss the Attorney
General’s petition for a writ of mandamus.

Petition dismissed.