Goldman v. Landsidle, Record No. 001947.

• Decision Date: 14 September 2001
• Docket Number: Record No. 001947.
• Citation: 552 S.E.2d 67,262 Va. 364
• Parties: Paul GOLDMAN, et al. v. William E. LANDSIDLE, Comptroller, State of Virginia.
• Court: Virginia Supreme Court

552 S.E.2d 67

262 Va. 364

Paul GOLDMAN, et al. v. William E. LANDSIDLE, Comptroller, State of Virginia.

Record No. 001947.

Supreme Court of Virginia.

September 14, 2001.

Paul Goldman, Pro Se; Alexander B. McMurtrie, Jr. (McMurtrie, Grubbs & Associates, on brief), Richmond, for appellants.

Gregory E. Lucyk, Senior Asst. Atty. Gen. (Mark L. Earley, Atty. Gen., Francis Ferguson, Deputy Atty. Gen., Michael K. Jackson, Senior Asst. Atty. Gen., Donald R. Ferguson, Asst. Atty. Gen., on brief), for appellee.

Clerk of Senate of VA and Clerk of VA House of Delegates (H. Lane Kneedler; Gail D. Jaspen; Megan E. Owen; Joseph A. Rieser, Jr.; Prof. A.E. Dick Howard; Roger C. Wiley; Christopher R. Nolen; E.M. Miller, Jr.; Virginia A. Edwards; Reed Smith Hazel & Thomas; Hefty & Wiley; Sands Anderson Marks & Miller; Div. of Legislative Services, on brief), Amici Curiae, in support of appellee.

Present: CARRICO, C.J., HASSELL, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, Senior Justice.

BARBARA MILANO KEENAN, Justice.

In this appeal, the dispositive issue is whether "citizens" and "taxpayers" have standing to seek a writ of mandamus against the Commonwealth challenging the application of certain statutes when their alleged injury is no different from that incurred generally by the public at large.

In April 1999, Paul Goldman and Alexander B. McMurtrie, Jr. (collectively, the petitioners), filed a petition in the circuit court seeking a writ of mandamus. The petitioners asked the court to direct William E. Landsidle, the Comptroller of Virginia (the Comptroller), to determine that certain public officials actually have incurred office expenses before disbursing state funds to them for those expenses.

The petitioners alleged that the Comptroller disburses state funds monthly to the members of the General Assembly pursuant to Code § 30-19.14 and Item 1A8 in the Commonwealth's general appropriation act. Code § 30-19.14 provides, in material part, that "[e]ach member of the General Assembly shall receive as an allowance for office expenses and supplies such sums as shall be set forth in the general appropriation act." Item 1A8 of the 2000 Appropriation Act authorizes payment to each member of the General Assembly certain fixed amounts per month as "[r]eimbursement for office expenses." 2000 Va. Acts of Assembly, ch. 1073 (effective July 1, 2000).¹ The petitioners also alleged that the Comptroller disburses state funds monthly to the Lieutenant Governor, the Speaker of the House of Delegates, and the Attorney General for office expenses and supplies "not otherwise reimbursed," pursuant to appropriation Items 1A4, 44-3, and 45A2.² Id. at ch. 1072-73.

The petitioners stated that the Comptroller routinely makes these payments without requiring proof from recipients that office expenses in the specified amounts actually have been incurred. The petitioners alleged that the Comptroller has a ministerial duty "to [e]nsure that state money authorized for the sole purpose of reimbursement for office expenses and supplies is not being converted to personal use." The petitioners asserted that since the Comptroller does not require recipients of such funds to submit proof of office-related expenditures, the Comptroller has failed to fulfill his statutory duties.

The petitioners alleged that as citizens of the Commonwealth and as "representatives of the people of Virginia," the petitioners may ask the courts to compel the Comptroller to perform his required duties. However, the petitioners did not allege any direct injury from the Comptroller's performance of his duties distinct from that of the public at large.

The petitioners relied chiefly on language in Code § 2.1-20.5 to support their assertion that proof of expenditures is required before funds may be disbursed for these purposes. This statute provides, in relevant part:

The salaries, expenses and other allowances, including mileage, mentioned in this chapter, Chapter 5 (§ 2.1-38 et seq.) of this title and Chapter 1.1 (§ 30-19.11 et seq.) of Title 30 shall, except where otherwise specifically provided, be paid out of the state treasury after being duly audited, and the Comptroller shall draw his warrants on the State Treasurer for the payment thereof. . . . Expenses shall be paid when they shall have been incurred, and the other allowances shall be paid when the services shall have been rendered or the travel shall have been performed.

The Comptroller filed an answer to the amended petition denying that he had failed to fulfill any ministerial duty. He also denied the petitioners' allegation that by failing to ensure that the authorized funds are "not being converted to personal use, the State Comptroller continues to expend funds in violation of the law." The parties filed cross-motions for summary judgment. In support of their motion, the petitioners relied on the language of Code § 2.1-20.5 mandating that such disbursements "shall . . . be paid . . . after being duly audited," and on a similar statutory directive in Code § 2.1-227, which provides:

The Comptroller shall not issue a disbursement warrant unless and until he shall have audited, through the use of statistical sampling or other acceptable auditing techniques the bill, invoice, account, payroll or other evidence of the claim, demand or charge and satisfied himself as to the regularity, legality and correctness of the expenditure or disbursement, and that the claim, demand or charge has not been previously paid. If he be so satisfied, he shall approve the same; otherwise, he shall withhold his approval. In order that such regularity and legality may appear, the Comptroller may, by general rule or special order, require such certification or such evidence as the circumstances may demand.

The petitioners contended that a writ of mandamus was the proper remedy to compel the Comptroller to perform his statutory duties. They asked the court to direct the Comptroller "to examine and audit the requests for reimbursements or expenses submitted by members of the General Assembly," but made no request with regard to the Lieutenant Governor, the Speaker of the House of Delegates, or the Attorney General.

In support of his cross-motion for summary judgment, the Comptroller argued, among other things, that he has broad discretion under Code §§ 2.1-196.1 and -227 to establish policies governing internal controls over all expenditures. He further asserted that he has exercised his statutory discretion to ensure that disbursements are properly made.

After hearing argument, the circuit court entered an order dismissing the petition and granting summary judgment in favor of the Comptroller. The petitioners appealed.

The petitioners argue on appeal that as "citizens" and "taxpayers" of this Commonwealth, they have standing to seek mandamus relief to compel the Comptroller to require proof of actual expenditures before making the disbursements at issue. The petitioners contend that they are not required to demonstrate any special or pecuniary interest in the controversy because they are merely seeking to compel the Comptroller's exercise of a statutory "public" duty. In support of this argument, the petitioners rely on our decisions in Harrison v. Barksdale, 127 Va. 180, 102 S.E. 789 (1920), and Clay v. Ballard, 87 Va. 787, 13 S.E. 262 (1891).

In response, the Comptroller asserts that the petitioners lack standing to seek a writ of mandamus. The Comptroller contends that parties seeking mandamus relief against the Commonwealth must be able to demonstrate something more than a threat to a "perceived public right," but generally must show that they have a direct special or pecuniary interest in the subject matter of the litigation. We agree with the Comptroller.

A writ of mandamus is an extraordinary remedy that may be used to compel a public official to perform a purely ministerial duty that is mandatory in nature and is imposed on the official by law. Hertz v. Times-World Corp., 259 Va. 599, 607, 528 S.E.2d 458, 462 (2000); Earley v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999); Town of Front Royal v. Front Royal and Warren County Indus. Park Corp., 248 Va. 581, 584, 449 S.E.2d 794, 796 (1994); Gannon v. State Corp. Com'n, 243 Va. 480, 481-82, 416 S.E.2d 446, 447 (1992). Mandamus is awarded not as a matter of right, but only in the exercise of sound judicial discretion. Hertz, 259 Va. at 607, 528 S.E.2d at 462; Gannon, 243 Va. at 482, 416 S.E.2d at 447; Board of Supervisors v. Heatwole, 214 Va. 210, 213, 198 S.E.2d 613, 615 (1973); Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151, 104 S.E.2d 813, 816 (1958).

Since the writ is drastic in character, the law has erected safeguards around its issuance. Hertz, 259 Va. at 607,528 S.E.2d at 462. Consideration must be given to the urgency that prompts the exercise of the discretion, the public interest and interest of other persons, the results that will occur if the writ is denied, and the promotion of substantial justice. Id.

In doubtful cases, the writ will be denied. However, when the right involved and the duty sought to be enforced are clear and certain, and when there is no other specific, adequate remedy that is available, the writ will issue. Id. at 607-08, 528 S.E.2d at 462-63; Town of Front Royal, 248 Va. at 584, 449 S.E.2d at 796; Gannon, 243 Va. at 482, 416 S.E.2d at 447; Heatwole, 214 Va. at 213, 198 S.E.2d at 615-16; Richmond-Greyhound Lines, 200 Va. at 151-52, 104 S.E.2d at 816.

In the present case, the petitioners rely solely on their status as citizens and taxpayers to establish standing to request mandamus relief. Generally, we have held that a party has standing to initiate litigation if the party has sufficient interest in the subject matter to ensure that the litigants will be actual adversaries and that the issues will be fully and faithfully developed. Radin v. Crestar Bank, 249 Va. 440, 442, 457 S.E.2d 65, 66 (1995); Weichert Co....