In re Horan

• Decision Date: 19 January 2006
• Docket Number: Record No. 060024.,Record No. 060023.
• Citation: 634 S.E.2d 675
• Court: Virginia Supreme Court
• Parties: In re Robert F. HORAN, Jr., Commonwealth's Attorney, Petitioner.

Page 675

634 S.E.2d 675

In re Robert F. HORAN, Jr., Commonwealth's Attorney, Petitioner.

Record No. 060023.

Record No. 060024.

Supreme Court of Virginia.

January 19, 2006

Proceeding under the Court's original jurisdiction pursuant to Article VI, § 1 of the Constitution of Virginia and Code § 17.1-309, the petitioner, Robert F. Horan, Jr., Commonwealth's Attorney of Fairfax County, seeks the issuance of a writ of mandamus and/or a writ of prohibition directed to the Honorable Leslie M. Alden, Judge of the Circuit Court of Fairfax County. Upon consideration of the petitions and the parties' briefs, a writ of mandamus is issued and the petition for a writ of prohibition is dismissed.

On January 3, 2006, in the capital murder case of Commonwealth v. Dinh Pham, Criminal No. K105537, pending in the Circuit Court of Fairfax County, Judge Alden granted Pham's motion to prohibit the death penalty. In a letter opinion incorporated in that order, Judge Alden concluded that the Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (the "Vienna Convention"), confers judicially enforceable individual rights and that the Commonwealth violated those rights with regard to Pham. Judge Alden further concluded that the preclusion of the death penalty was an appropriate remedy for the violation of Pham's rights under the Vienna Convention and thus prohibited the Commonwealth from seeking the death penalty in that criminal proceeding. The Commonwealth's Attorney then filed the petitions for a writ of mandamus and a writ of prohibition.

"Mandamus is an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon him by law." Richlands Med. Ass'n v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985); accord In re Commonwealth's Attorney for the City of Roanoke, 265 Va. 313, 317, 576 S.E.2d 458, 461 (2003). "A ministerial act is `one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.'" Richlands Med. Ass'n, 230 Va. at 386, 337 S.E.2d at 739 (quoting Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)). "However, when the act to be performed involves the exercise of judgment or discretion on the part of the court or judge, it becomes a judicial act and mandamus will not lie." In re Commonwealth's Attorney for the City of Roanoke, 265 Va. at 318, 576 S.E.2d at 461.

As this Court previously explained:

[Mandamus] may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered.

Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).

The provisions of Code § 18.2-31 specify the offenses that constitute capital murder in Virginia, each one being punishable as a Class 1 felony. The authorized punishment for a Class 1 felony is "death, if the person so convicted was 16 years of age or older at the time of the offense and is not determined to be mentally retarded . . ., or imprisonment for life and . . . a fine of not more than $100,000." Code § 18.2-10(a); see also Code § 18.2-10(g) (except in cases for which the sentence of death is imposed, a court may impose life imprisonment without a fine). In other words, there are three sentencing options if a defendant is found guilty of capital murder: (1) death; (2) life imprisonment and a fine of not more than $100,000; or (3) life imprisonment.

In the context of ruling on a pre-trial motion, Judge Alden precluded the Commonwealth's Attorney from seeking the death penalty in the event Pham is found guilty of capital murder. Under Judge Alden's order, only life imprisonment, or life imprisonment and a fine of not more than $100,000, would be at issue in a penalty phase hearing. Judge Alden's pre-trial order not only eliminated one of the statutorily prescribed sentences that could be imposed if Pham is found guilty of capital murder, but her ruling is also tantamount to a refusal by Judge Alden to conduct a penalty phase hearing at which the "future dangerousness" and "vileness" aggravating factors set forth in Code §§ 19.2-264.2 and — 264.4(C) would be at issue. The provisions of Code § 19.2-264.3(C), however, state that "[i]f the jury finds the defendant guilty of an offense which may be punishable by death, then a separate proceeding before the same jury shall be held as soon as practicable on the issue of the penalty, which shall be fixed as is provided in § 19.2-264.4." (Emphasis added.) When the action of a court is "a simple refusal to hear and decide the case; and this [C]ourt having held that no appeal lies from such refusal, it is exactly the case to which the highly remedial writ of mandamus is most frequently applied, in order to prevent a defect or failure of justice." Cowan v. Fulton, 64 Va. (23 Gratt.) 579, 584 (1873).

In Kirk v. Carter, 202 Va. 335, 335, 117 S.E.2d 135, 136 (1960), a petition for a writ of mandamus was filed "to require the three-judge court . . . to hear and determine an election contest . . . instituted by the petitioners." The three-judge court decided that the complaint filed in the election contest proceeding had not been properly served on four of the officers whose elections were being challenged. Id. at 336, 117 S.E.2d at 136. Consequently, the three-judge court sustained a motion to dismiss the complaint. Id. In the mandamus proceeding before this Court, the respondents argued

that the decision represented their composite judicial discretion as to the right and justice of the motion, and that the writ of mandamus should not issue to compel a change in their judicial opinion and thereby provide a review in a case in which the statute, [former Code] § 24-439, prohibited an appeal.

Id.

In granting the writ of mandamus, this Court disagreed with the conclusion of the three-judge court regarding service of process. The Court concluded that there was no statutory requirement that the election contest complaint be filed prior to the service of the complaint on the officers whose elections were being contested. Id. at 336, 117 S.E.2d at 137. Because former Code § 24-436 required that, "[i]n judging of such election or return, the court shall proceed on the merits thereof and decide the same according to the [C]onstitution and laws," this Court held that it was manifest error to deny a decision on the merits. Id. at 337, 117 S.E.2d at 137. Relying on the rationale in Richardson v. Farrar, 88 Va. (13 Hans.) 760, 15 S.E. 117 (1892), the Court stated:

[T]he lower court [in Richardson] had declined jurisdiction on a preliminary question or point of form, and had erroneously and illegally dismissed the complaint, for which the petitioners were entitled to a writ of mandamus directing the lower court to reinstate the case and proceed to hear and determine it on its merits.

Kirk, 202 Va. at 337, 117 S.E.2d at 137.

Similarly, in Davis v. Sexton, 211 Va. 410, 177 S.E.2d 524 (1970), the Court held that a judge's ruling in direct contravention of a specific statutory provision was not within his discretion. At the time of the decision in Davis, a municipal judge (of a court not of record) was allowed to act as counsel of record in cases not pending in the court where the judge presided or in certain statutorily prescribed localities. Id. at 411, 177 S.E.2d at 525. Richard W. Davis, a municipal judge in the City of Radford, entered an appearance in a criminal case pending in the Circuit Court of Giles County. Id. at 410, 177 S.E.2d at 525. The circuit court judge hearing the case entered an order removing Davis as counsel of record, stating that it was the circuit court's practice that county and municipal judges would not be allowed to practice criminal law in the circuit courts of that judicial circuit. Id. at 411, 177 S.E.2d at 525.

Davis sought a writ of mandamus to compel the circuit court judge to allow him to practice criminal law in the Circuit Court of Giles County, as allowed under the relevant statutes in effect at that time. Id. In response, the circuit court judge argued that his action fell "within his statutory rule-making power and his inherent judicial authority." Id. Since the statutes specifically allowed judges of courts not of record to practice law in certain circumstances, this Court held that it was beyond the scope of the circuit court judge's authority to rule otherwise; "[t]he action taken by the [circuit court judge] was therefore not within his discretion." Id. at 413, 177 S.E.2d at 526. Thus, the Court issued a writ of mandamus directing that Davis be permitted to practice criminal law in the Circuit Court of Giles County. Id.

Similarly, in three cases from the late 1800's, the Court found that mandamus was proper because the respective judges were without authority to decide that they could not hear a particular case, which they had jurisdiction to decide. See Page, 71 Va. (30 Gratt.) at 428 ("If a judge . . . refuses to sign a proper bill, or to proceed to settle the matter of a bill objected to, he may, in either case, be compelled by mandamus to act"); Kent, Paine & Co. v. Dickinson, 66 Va. (25 Gratt.) 817, 823 (1875) ("It is well settled that applications for a mandamus to a subordinate court are warranted by the principles and usages of law in cases where the subordinate court having jurisdiction of a case refuses to hear and decide the controversy"); Cowan, 64 Va. (23 Gratt.) at 585 (mandamus proper when a court refused to hear a case it had jurisdiction to...