Gannon v. State Corp. Com'n, 911765

• Decision Date: 17 April 1992
• Docket Number: No. 911765,911765
• Citation: 416 S.E.2d 446,243 Va. 480
• Court: Virginia Supreme Court
• Parties: Stephen T. GANNON v. STATE CORPORATION COMMISSION, et al. Record

Page 446

416 S.E.2d 446

243 Va. 480

Stephen T. GANNON v. STATE CORPORATION COMMISSION, et al.

Record No. 911765.

Supreme Court of Virginia.

April 17, 1992.

John V. Robinson, Richmond (Stephen T. Gannon, Michael V. Hernandez, McSweeney, Burtch & Crump, on brief), for appellant.

Joel H. Peck, Richmond (Stewart E. Farrar, Anthony J. Gambardella, on brief), for appellees.

Present: All the Justices.

HASSELL, Justice.

In this proceeding, which invokes this Court's original jurisdiction, we consider whether mandamus is a proper remedy.

Stephen T. Gannon, by letter, filed a Virginia Freedom of Information Act request, seeking certain records in the possession and control of the State Corporation Commission (Commission). The request was sent to Lewis W. Brothers, Jr., director of the Commission's Division of Securities and Retail Franchising and to William Bridge, clerk of the Commission.

Joel H. Peck, senior counsel to the Commission, denied Gannon's request by stating in a letter that "[t]he State Corporation Commission has long maintained that it is not subject to the [Virginia Freedom of Information Act]" and that Code § 13.1-518(B) prohibits disclosure of the requested information. ^* In a subsequent letter, a copy of which was sent to Gannon, Peck stated, "[I]f Mr. Gannon was dissatisfied with my response, his next step should have been to pursue the remedies available under the Commission's Rules of Practice and Procedure."

Gannon did not seek a review of Peck's decision by the Commission. Rather, he filed in this Court a Petition for Writ of Mandamus Against the Commission, its Commissioners, its Division of Securities and Retail Franchising, and certain of its employees. Gannon requested that this Court issue a writ of mandamus requiring that the Commission produce the requested documents for inspection as purportedly required by the Virginia Freedom of Information Act, Code § 2.1-340, et seq. The Commission filed responsive pleadings, including a motion to dismiss the Petition because "[t]he elements necessary for the issuance of a writ of mandamus are absent."

Mandamus is an extraordinary remedy which may be used to compel a public official to perform a duty which is purely ministerial and which is imposed upon the official by law. Richlands Medical Assoc. v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985). We have consistently stated the principles which govern the issuance of a writ of mandamus:

A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it. Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but where the right involved and the duty sought to be enforced are clear and certain and where there is no other available specific and adequate remedy the writ will issue.

Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958) (emphasis added). See also Early v. Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977); Prince William Co. v. Hylton Enterprises, 216 Va. 582, 584, 221 S.E.2d 534, 536 (1976); Railroad Company v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548 (1965).

Gannon's petition must be dismissed because he has an adequate remedy at law. Rule 3:2 of the Rules of the Commission states:

Administrative acts of officers and employees are the acts of the Commission, subject to review by the Commissioner under whose assigned supervision within the...