Va.N-pilot Media Companies v. Dow Jones & Co. Inc

Decision Date16 September 2010
Docket NumberRecord No. 091661.
Citation280 Va. 464,698 S.E.2d 900
CourtVirginia Supreme Court

Brett A. Spain (Conrad M. Shumadine; Willcox & Savage, Norfolk, on briefs), for appellant.

Brian A. Coleman (Kenneth M. Vorassi; Drinker Biddle & Reath, Washington, DC, on brief), for appellee.


This appeal presents two questions: (1) whether a circuit court has subject matter jurisdiction to determine whether a newspaper meets the requirements of Code § 8.01-324(A) for the publication of legal notices and to enter an ex parte order ruling on that subject, and (2) whether another newspaper has standing to intervene to assert the court's lack of subject matter jurisdiction.

Facts and Proceedings

No material facts are in dispute and the appeal presents pure questions of law. Dow Jones & Company, Inc. (Dow) is the publisher of a newspaper, the Wall Street Journal (the WSJ). Virginian-Pilot Media Companies, LLC, is the publisher of a newspaper, the Virginian-Pilot (collectively, the Pilot).

On May 7, 2009, Dow filed in the Circuit Court of the City of Virginia Beach a Petition for Authority to Publish Legal Notices and Other Legal Business Pursuant to Va.Code § 8.01-324(A).” The petition was ex parte and gave no notice to any others who might have an interest. It recited that the WSJ met each of the five requirements of Code § 8.01-324(A): (1) it had a bona-fide list of paying subscribers, (2) it had been published and circulated at least once per week for 24 consecutive weeks without interruption for the dissemination of news of a general legal character, (3) it had a general circulation in the area in which the notice is required to be published, (4) it was printed in English, and (5) it has a second-class mailing permit from the U.S. Postal Service. The petition asked for entry of an order granting the WSJ authority to publish legal notices and other legal business in the City of Virginia Beach. Dow attached as exhibits to the petition copies of ex parte orders of a similar nature that it had secured in six other circuit courts in Virginia.

On May 14, 2009, the circuit court entered an ex parte order authorizing the WSJ to publish “ordinances, resolutions, notices and advertisements required by law in the City of Virginia Beach.” On June 4, 2009, the Pilot filed a Motion to Intervene and to Set Aside Order.” The court heard arguments of counsel for Dow and the Pilot and ruled that (1) it had subject matter jurisdiction and (2) the Pilot lacked standing to challenge the court's jurisdiction because it could not show that it had any right germane to the proceeding or that it would suffer a cognizable legal injury arising out of the court's order. The court denied the motion to intervene and we awarded the Pilot an appeal.


Code § 8.01-324 provides, in pertinent part:

Newspapers which may be used for legal notices and publications.-A. Whenever any ordinance, resolution, notice, or advertisement is required by law to be published in a newspaper, such newspaper, in addition to any qualifications otherwise required by law, shall:
1. Have a bona fide list of paying subscribers;
2. Have been published and circulated at least once a week for twenty-four consecutive weeks without interruption for the dissemination of news of a general or legal character;
3. Have a general circulation in the area in which the notice is required to be published;
4. Be printed in the English language; and
5. Have a second-class mailing permit issued by the United States Postal Service.
B. However, a newspaper which does not have a second-class mailing permit may petition the circuit court for the jurisdiction in which the newspaper is located for authority to publish ordinances, resolutions, notices or advertisements.

Subject matter jurisdiction is the power of a court to adjudicate a class of cases or controversies. Article III, Section 1 of the Constitution of Virginia provides, in pertinent part: “The legislative, executive, and judicial departments shall be separate and distinct, so that none shall exercise the powers properly belonging to the others....” Because of that basic constitutional principle, subject matter jurisdiction exists in the courts only when it has been granted by a constitution or statute. In re Commonwealth of Virginia, 278 Va. 1, 11, 677 S.E.2d 236, 240 (2009). The lack of subject matter jurisdiction cannot be waived and such jurisdiction cannot be conferred on a court by the litigants. The lack of subject matter jurisdiction may be raised at any time. Id.

A judgment or order entered by a court that lacks jurisdiction of the subject matter is a nullity. Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990); Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 893 (1947); Barnes v. American Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925).

Dow argues that Code § 8.01-324(A) should be construed to confer upon the circuit courts authority to decide whether a newspaper meets that section's requirements because circuit courts have broad jurisdiction over civil cases, courts are authorized by many statutes to order the publication of legal notices, and the courts must necessarily apply Code § 8.01-324(A) in order to determine what newspapers are appropriate for the publication of such notices. Dow contends that, for those reasons, a circuit court's authority to entertain a petition such as Dow's arises by necessary implication.

The short answer to Dow's contention is that if the General Assembly had so intended, it knew how to include such a provision. Code § 8.01-324(B), the first sentence of which is quoted above, expressly confers upon the circuit courts subject matter jurisdiction to entertain a petition from a newspaper that lacks a second-class mailing permit for authority to publish legal notices. Subsection (A) of that statute, with which we are here concerned, applies only to newspapers which, like the WSJ, “have a second-class mailing permit issued by the United States Postal Service.” Subsection (A) conspicuously lacks any such grant of jurisdiction to the circuit courts. The General Assembly highlighted the distinction between the two subsections by separating them with the word “However.”

Dow's reading of Code § 8.01-324(A) requires us to add language to the statute that the General Assembly declined to employ. We have consistently refused to engage in that enterprise. See, e.g., Jackson v. Fidelity & Deposit Co. of Md., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005) ( [c]ourts cannot ‘add language to [a] statute the General Assembly has not seen fit to include’) (quoting Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)). The maxim expressio unius est exclusio alterius applies when mention of a specific item in a statute implies that omitted items were not intended to be included. Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992). “The question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said.” Id. (quoting Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406-07 (1963)).

We construe Code § 8.01-324(A) to lack any grant of subject matter jurisdiction to the circuit courts, in contrast to the express grant of jurisdiction made by the subsection that follows it. Section 8.01-324(A) is not, as Dow contends, rendered meaningless or superfluous by that construction. The purpose of Code § 8.01-324(A) is to set standards for the guidance of those charged with the responsibility of publishing legal notices in order to achieve the highest likelihood that fair notice will be given to parties in interest. That subsection also provides a useful rule of decision in any litigation that may subsequently arise, in which the sufficiency of notice by publication is at issue.

Dow contended, in response to the Pilot's motion to intervene, that the Pilot lacked standing to challenge the circuit court's jurisdiction or to intervene in the case. The circuit court agreed with Dow's position, holding that the Pilot “has not shown that it has or will suffer a cognizable legal injury arising out of the Order or that it has a right germane to this proceeding [and therefore the Pilot] lacks standing to challenge this Court's jurisdiction....” Dow argues that the Pilot's injury would only consist of a possible increase in competition, which would fall far short of an “immediate, pecuniary, and substantial interest in the litigation, [but would rather be] a remote or indirect interest,” citing Harbor Cruises, Inc. v. Corporation Comm., 219 Va. 675, 676, 250 S.E.2d 347, 348 (1979) and its progeny.

It is unnecessary to discuss the question of standing in the present case because a court's orders, entered in a case over which it has no subject matter jurisdiction, “are absolute nullities, and may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner; and may be declared void by every court in which they are called in question.” Barnes, 144 Va. at 705, 130 S.E. at 906. “The lack of subject matter jurisdiction may be raised at any time during the proceeding, even by this Court sua sponte.” Earley v. Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999). “The point may be raised at any time, in any manner, before any court, or by the court itself.” Humphreys, 186 Va. at 772, 43 S.E.2d at 893. The point may even be raised for the first time on appeal by the appellate court sua sponte. Morrison, 239 Va. at 170, 387 S.E.2d at 756.

We do not depart in any manner from our decisions on the subject of standing, but hold only that they are not relevant to the inquiry whether an...

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