Morrissette v. McGinniss

• Decision Date: 05 November 1993
• Docket Number: No. 921868,921868
• Parties: Raymond MORRISSETTE v. Patricia S. McGINNISS, et al. Record
• Court: Virginia Supreme Court

Page 433

436 S.E.2d 433

246 Va. 378

Raymond MORRISSETTE v. Patricia S. McGINNISS, et al.

Record No. 921868.

Supreme Court of Virginia.

Nov. 5, 1993.

Andrew M. Sacks, Norfolk (Michael F. Imprevento, Sacks, Sacks & Imprevento, on briefs), for appellant.

William G. Broaddus, Richmond (Robert L. Hodges, Richmond, Jean Masten Kelly, County Atty., Fredericksburg, McGuire, Woods, Battle & Boothe, Richmond, on brief), for appellees.

Present: CARRICO, C.J., COMPTON, STEPHENSON, WHITING, LACY and KEENAN, JJ., and HARRISON, Retired Justice.

COMPTON, Justice.

According to the Virginia Water and Sewer Authorities Act, Code §§ 15.1-1239 to -1270, the governing body of a political subdivision may create a combination water, sewer, sewage disposal, and garbage and refuse collection and disposal authority by ordinance after holding a public hearing on the question of its adoption and after approval at a referendum, if one be ordered. Code § 15.1-1241. The Act also provides that at such hearing, if "substantial opposition is heard," the governing body "may" call for a referendum or "if ten per centum of the qualified voters in such subdivision file a petition with the governing body at the hearing calling for a referendum such governing body shall order a referendum." Code § 15.1-1244.

This appeal stems from a trial court's refusal to grant a citizen's "Petition For Mandamus" seeking to force a local governing body to hold a referendum on the question of adopting an ordinance creating such an authority. The central appellate issue is whether mandamus will lie under the circumstances of this case. The chronology is important.

On April 21, 1992, appellee King George County Board of Supervisors, after publication and notice required by Code § 15.1-1243, held a public hearing on the question of adoption of an ordinance creating the King George County Service Authority. The purpose for which the Authority was to be formed was to acquire, construct, operate, and maintain facilities in the County for (1) a water supply, treatment, and distribution system, (2) a sewage collection, disposal and treatment system, and (3) a garbage and refuse collection and disposal system.

At the hearing, appellant Raymond Morrissette, a County citizen, presented to the Board petitions, purportedly signed by ten percent of the County's qualified voters, requesting the Board to arrange for a referendum to be held on the question of establishing the Authority. At the hearing, the Board denied the petitions and enacted the ordinance establishing the Authority. The appellate record does not reveal why the Board rejected the petitions and refused to call for a referendum.

The Board then filed articles of incorporation for the Authority with the State Corporation Commission, as authorized by Code § 15.1-1245. On April 29, 1992, the Commission issued a certificate of incorporation of the King George County Service Authority and declared that the Authority was authorized to transact business. The Act provides that after an authority's certificate of incorporation has been issued, "such authority shall be conclusively deemed to have been lawfully and properly created and established and authorized to exercise its powers." Code § 15.1-1246.

On May 5, 1992, appellee Patricia S. McGinniss, General Registrar for the County, responded to a request from the County Attorney and certified to the Board "that the petitions submitted in this matter did not meet the ten-percent requirement for a referendum." Following the certification, the Registrar was repeatedly asked by citizens to change her certification, and she refused to do so.

On May 7, 1992, the court below considered the petitions, which by then had been filed in the circuit court clerk's office, and ruled, after argument by counsel for Morrissette and the Board, that the petitions were "in substantial compliance" with the ten-percent requirement of Code § 15.1-1244.

In June 1992, two special meetings of the Authority's Board were held. The Board adopted bylaws, elected officers, and authorized the acquisition of assets and assumption of obligations of the two County sanitary districts.

On July 24, 1992, the present petition for a writ of mandamus was filed by Morrissette, naming as respondents the Registrar and the County Board. Morrissette alleged that the petition presented at the April public hearing "contained sufficient number of signatures" to require the County Board to hold a referendum on the question whether to establish the Authority. Asserting that many citizens attending the public hearing "vehemently expressed their opposition to the adoption" of a public service authority, Morrissette alleged that the County Board improperly rejected the petitions and that the Registrar incorrectly certified that the petitions failed to meet the statutory requirements, thereby failing to discharge lawfully the duties of her office.

In the prayer of the petition for mandamus, Morrissette asked the trial court to order the Registrar to amend and correct her certification to show that the required number of qualified voters had signed the petitions...