Moreau v. Fuller

• Decision Date: 06 June 2008
• Docket Number: Record No. 062688.
• Citation: 661 S.E.2d 841,276 Va. 127
• Parties: The Honorable Stacey W. MOREAU, Judge of the Juvenile and Domestic Relations District Court for the 22nd Judicial District v. William H. FULLER, III, Commonwealth's Attorney of the City of Danville.
• Court: Virginia Supreme Court

661 S.E.2d 841

276 Va. 127

The Honorable Stacey W. MOREAU, Judge of the Juvenile and Domestic Relations District Court for the 22nd Judicial District v. William H. FULLER, III, Commonwealth's Attorney of the City of Danville.

Record No. 062688.

Supreme Court of Virginia.

June 6, 2008.

Glenn L. Berger (Berger & Thornhill, on brief), Altavista, for appellant.

William H. Fuller, III, Commonwealth's Atty. (James C. Martin, Sr. Asst. Com. Atty., Michael J. Newman, Sr. Asst. Com. Atty., C. David Sands, III, Asst. Com. Atty., Roger R. Mayhew, Jr., Asst. Com. Atty., on brief), pro se.

Amicus Curiae: Virginia Trial Lawyers Association (David B. Hargett, Hargett & Watson, on brief), in support of appellant.

Amicus Curiae: Virginia Association of Criminal Defense Lawyers (Marvin D. Miller, John R. Maus, on briefs), in support of appellant.

Amicus Curiae: Virginia Association of Commonwealth's Attys. (Harvey L. Bryant, Com. Atty., on brief), in support of appellee.

Present: All the Justices.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider among other issues, whether a circuit court may issue a writ of mandamus directing a juvenile and domestic relations district court judge, who has taken a case involving criminal charges under advisement for deferred disposition, to immediately make a final disposition in the case.

I. Facts and Proceedings Below

The Honorable Stacey W. Moreau ("Judge Moreau"), a judge of the Juvenile & Domestic Relations District Court of the City of Danville presided over the case of Commonwealth v. Dareance Montae Skipwith, Case No. JA016152-01-00. Skipwith, an adult, was charged with contributing to the delinquency of a minor, a misdemeanor under Code § 18.2-371. Upon hearing the evidence in the case, Judge Moreau found the evidence sufficient to convict the defendant, however, upon request of the victim's mother, she did not enter a judgment of conviction, and took the matter under advisement for final disposition at a later date. The court stated it would "defer judgment given the facts and request of the victim's mother." Judge Moreau checked the box on the back of the warrant stating, "place accused on probation, §§ 4.1-305, 18.2-57.3, 18.2-251 or 19.2-303.2. Costs imposed on defendant." However, there is no signature of the judge on this document. A separately prepared order which was signed stated:

FINDINGS OF THE COURT:

Sufficient evidence to convict the defendant of the charge. The Court finds that it has the authority to take that matter under advisement per Powell v. Commonwealth, 36 Va.App. 231, 548 S.E.2d 926 (2001) and the dicta noted in the Danville Circuit Court opinion in the matter of Commonwealth v. Bryant, 57 Cir. 162 (12/3/2001), noting "(a)fter considering the authorities cited, this court is of the opinion that to the extent it has the authority to defer judgment, it is nevertheless inappropriate to do so in this case."

It IS ORDERED THAT:

The Court finds that it is appropriate in this matter to defer judgment given the facts and request of the victim's mother. The matter is continued to 09/28/2006 at 8:00 a.m.

Contemporaneous records of the Juvenile and Domestic Relations District Court of the City of Danville indicated that if there were "no problems" then no appearance of the defendant or any witnesses would be required and the case would be dismissed. These contemporaneous records were not in the form of an order.

William H. Fuller, III, Commonwealth's Attorney for the City of Danville ("Fuller") objected to Judge Moreau's continuance of the matter for deferred disposition and filed a Petition for a Writ of Mandamus in the Circuit Court of the City of Danville. The Petition requested that Judge Moreau be directed to render final judgment in the underlying Skipwith case and that she desist taking matters under advisement in the future.

The Circuit Court of the City of Danville issued a writ of mandamus ordering Judge Moreau to "enter final judgment in the case of Commonwealth v. Dareance Montae Skipwith" and further held that:

Deferred adjudication/disposition is only available to a trial court when a defendant is charged under a criminal statute that specifically authorizes such deferment wherein the judge can then dismiss the case.

Section 18.2-371, contribution to the delinquency of a minor, does not specifically provide for deferred adjudication/disposition.

A deferred adjudication/disposition of a violation of § 18.2-371, contributing to the delinquency of a minor, exceeds the scope of Virginia law.

[Judge Moreau's] finding of facts as to the sufficiency of the evidence was a discretionary function. However, nothing in this order prevents [Judge Moreau] from revisiting that discretionary finding. But, once [Judge Moreau] has made a finding as to the sufficiency of the evidence, then a determination as to the guilt or innocence of the accused is a ministerial and not a discretionary judicial function.

Therefore, a writ of mandamus is appropriate to compel [Judge Moreau] to perform the ministerial act of making a final disposition of the case in Commonwealth v. Dareance Montae Skipwith.

We granted Judge Moreau an appeal upon three assignments of error that challenge the propriety of mandamus to compel her to enter final judgment in the underlying case and include the following procedural claims: "There was no service of process on the criminal defendant, Skipwith[,]¹ [t]he [p]etition for [m]andamus failed to allege that [p]etitioner had no other adequate remedy[,]² [t]he Commonwealth's Attorney lacked standing to bring the [p]etition for [m]andamus in his name, and the Commonwealth's Attorney exceeded his authority to pursue a civil suit on behalf of the Commonwealth of Virginia." Further, Judge Moreau maintains that the trial court erred in issuing a writ of mandamus because she "had authority to take the case under advisement and dismiss the charge."

II. Analysis

A. Standard of Review

The issue whether Fuller has standing to file the petition for a Writ of Mandamus the question of Judge Moreau's authority to grant a "deferred sentence," and the determination whether mandamus lies as an extraordinary remedy are all questions of law subject to de novo review upon appeal. Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303 (2006).

B. Standing

Judge Moreau contests Fuller's authority as Commonwealth's Attorney to pursue the civil remedy of mandamus. The general requirements of standing have often been stated:

The purpose of requiring standing is to make certain that a party who asserts a particular position has the legal right to do so and that his rights will be affected by the disposition of the case. Thus, a party claiming standing must demonstrate a personal stake in the outcome of the controversy.

Goldman v. Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71 (2001) (internal citations omitted). Judge Moreau further argues that only the Attorney General of Virginia has the authority to pursue this civil action. Recently, we have considered petitions brought by elected Commonwealth's Attorneys seeking the issuance of special writs of prohibition or mandamus. In re: Robert F. Horan, Jr., 271 Va. 258, 634 S.E.2d 675 (2006); In re: Commonwealth's Attorney for the City of Roanoke, 265 Va. 313, 576 S.E.2d 458 (2003). The issue of standing or authority of the Commonwealth's Attorney to bring such actions was not raised in either of those cases. While it is clear that Commonwealth's Attorneys are limited in the matters they may pursue, they are not entirely confined to criminal actions. As Fuller points out, the Commonwealth's Attorney's civil responsibilities include, among others,³ enjoining common nuisances relating to alcohol, Code § 4.1-335, and instituting seizures of property used in the sale and distribution of drugs, Code § 19.2-386.1.

Clearly, the general delegation of authority to the Attorney General to handle civil matters on behalf of the Commonwealth contained in Code § 2.2-507 has been subject to exceptions. We have considered such petitions in the recent past without objection by the parties or the Commonwealth and we now hold that at a minimum, the Commonwealth's Attorney has standing to seek mandamus or prohibition in a matter involving an ongoing criminal prosecution.

C. Mandamus

As we have recently stated:

"Mandamus is an extraordinary remedy that may be used `to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.'" Ancient Art Tattoo Studio, Ltd. v. City of Virginia Beach, 263 Va. 593, 597, 561 S.E.2d 690, 692 (2002) (quoting Board of County Supervisors v. Hylton Enters., Inc., 216 Va. 582, 584, 221 S.E.2d 534, 536 (1976)). "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 Medical Ass'n. v. Commonwealth of Virginia, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985) (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. Dovel, 184 Va. at 22, 34 S.E.2d at 370.

In re Commonwealth's Attorney, 265 Va. at 317-18, 576 S.E.2d at 461.

As we explained in Page v. Clopton, 71 Va. (30 Gratt.) 415 (1878):

[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.

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