Small v. Federal Nat'l Mortgage Ass'n ( 2013 )


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  • PRESENT: All the Justices
    JEFFREY S. SMALL, AS CLERK OF
    THE CIRCUIT COURT OF THE CITY
    OF FREDERICKSBURG, VIRGINIA,
    INDIVIDUALLY AND ON BEHALF OF
    ALL OTHERS SIMILARLY SITUATED
    OPINION BY
    v. Record No. 130317             CHIEF JUSTICE CYNTHIA D. KINSER
    SEPTEMBER 12, 2013
    FEDERAL NATIONAL MORTGAGE
    ASSOCIATION,
    A/K/A FANNIE MAE, ET AL.
    UPON A QUESTION OF LAW CERTIFIED BY THE
    UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF VIRGINIA
    The United States District Court for the Eastern District
    of Virginia entered an order of certification requesting that
    this Court exercise jurisdiction pursuant to Article VI, Section
    1 of the Constitution of Virginia and Rule 5:40, and answer the
    following questions of law:
    1.) Under Virginia law, does a clerk of
    court possess statutory standing to
    initiate a lawsuit, in his official
    capacity, to enforce the real estate
    transfer tax on the recording of
    instruments?
    2.) If a clerk of court does possess
    authority to bring suit in his official
    capacity as described in Certified
    Question No. 1, does Virginia law
    authorize him to do so as a class
    representative on behalf of all clerks
    of court throughout the Commonwealth?
    Because the ministerial duties of a clerk of court do not extend
    to enforcing the state taxes at issue, we answer the first
    certified question in the negative and accordingly do not
    address the second certified question.
    RELEVANT FACTS AND PRIOR PROCEEDINGS 1
    Jeffrey S. Small, in his official capacity as clerk of the
    Circuit Court of the City of Fredericksburg, filed a putative
    class action in the United States District Court for the Eastern
    District of Virginia (the federal district court) against the
    Federal National Mortgage Association (Fannie Mae), and the
    Federal Home Loan Mortgage Corporation (Freddie Mac). 2
    Purporting to represent the class of all clerks of court in the
    Commonwealth, Small alleged that Fannie Mae and Freddie Mac had
    failed to pay the taxes imposed by Code §§ 58.1-801 and -802.
    Code § 58.1-801 levies "[o]n every deed admitted to record,
    except a deed exempt from taxation by law . . . a state
    recordation tax."   Code § 58.1-802(A) imposes an additional tax,
    to be paid by the grantor, "on each deed, instrument, or writing
    by which lands, tenements or other realty sold is granted,
    assigned, transferred, or otherwise conveyed to, or vested in
    1
    The pertinent facts are taken from the certification order
    in Small v. Federal National Mortgage Ass'n, No. 3:12CV487-HEH
    (E.D. Va. Feb. 20, 2013).
    2
    The term "clerk of court" as used in the certified
    questions and in this opinion refers to the position created by
    Article VII, Section 4 of the Constitution of Virginia.
    2
    the purchaser, or any other person, by such purchaser's
    direction." 3
    Small further alleged that Fannie Mae and Freddie Mac had
    improperly claimed exemption from paying the taxes as
    governmental entities.   Small requested that the federal
    district court certify the class action and prayed for, among
    other things, a declaratory judgment holding that the defendants
    are not exempt governmental entities and are therefore required
    to pay the real estate transfer taxes when recording
    instruments.
    Among other defenses, Fannie Mae and Freddie Mac asserted
    that Small lacked the authority as clerk of court to bring an
    enforcement action under Code §§ 58.1-800, et seq.    The federal
    district court ordered the parties to brief the issue and, after
    reviewing the parties' arguments, determined that no controlling
    authority on the question exists.    The court stated:
    Clearly, a clerk of court is vested with the
    ministerial duty to assess and collect Virginia's
    recordation tax whenever he records a deed. But,
    he is not explicitly authorized to initiate an
    enforcement action under Virginia law. . . . This
    Court has found no controlling authority
    interpreting the applicable statutes, one way or
    the other.
    Pursuant to Rule 5:40(a), a certified question must be
    "determinative in any proceeding pending before the certifying
    3
    In this opinion, we will refer to both taxes collectively
    as the "real estate transfer taxes."
    3
    court."   The certified questions in this case are determinative
    because if Small does not have standing to bring the action
    against the defendants to enforce collection of the real estate
    transfer taxes, the case will be dismissed.    Accordingly, we
    accepted the certified questions of law by order entered
    February 28, 2013.
    ANALYSIS
    The first certified question asks whether Small has
    "statutory standing."   Under federal law, the concept of
    statutory standing "applies only to legislatively-created causes
    of action and concerns whether a statute creating a private
    right of action authorizes a particular plaintiff to avail
    herself of that right of action."    CGM, LLC v. Bellsouth
    Telecomm., Inc., 
    664 F.3d 46
    , 52 (4th Cir. 2011) (internal
    quotation marks omitted).   "[T]he statutory standing inquiry"
    addresses "whether the plaintiff 'is a member of the class given
    authority by a statute to bring suit.'"     Id. (quoting In re
    Mutual Funds Inv. Litig., 
    529 F.3d 207
    , 216 (4th Cir. 2008)).
    The inquiry at the heart of statutory standing is whether the
    legislature "has accorded this injured plaintiff the right to
    sue the defendant to redress his injury."     Graden v. Conexant
    Sys. Inc., 
    496 F.3d 291
    , 295 (3rd Cir. 2007); see Steel Co. v.
    Citizens for a Better Env't, 
    523 U.S. 83
    , 97 n.2 (1998)
    (statutory standing deals with "whether this plaintiff has a
    4
    cause of action under the statute").   Determining whether a
    plaintiff has statutory standing is therefore "simply statutory
    interpretation."   Graden, 496 F.3d at 295; see also Washington-
    Dulles Transp., Ltd. v. Metropolitan Washington Airports Auth.,
    
    263 F.3d 371
    , 377 (4th Cir. 2001) ("[W]hether [the legislature]
    intended to confer standing on a litigant . . . to bring an
    action under [the statute at issue] is essentially one of
    statutory construction.").
    Although the term "statutory standing" does not appear in
    this Court's jurisprudence, the concept does.   "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."
    Goldman v. Landsidle, 
    262 Va. 364
    , 371, 
    552 S.E.2d 67
    , 71
    (2001); see also Livingston v. Virginia Dep't of Trans., 
    284 Va. 140
    , 154, 
    726 S.E.2d 264
    , 272 (2012) (same).    When a plaintiff
    files an action under a particular statute, as Small has done
    here, the standing inquiry does not turn simply on whether the
    plaintiff has "a personal stake in the outcome of the
    controversy," Goldman, 262 Va. at 371, 552 S.E.2d at 71, or
    whether the plaintiff's "rights will be affected by the
    disposition of the case."    Livingston, 284 Va. at 154, 726
    S.E.2d at 272 (quoting Westlake Props. v. Westlake Point Prop.
    Owners Ass'n, 
    273 Va. 107
    , 120, 
    639 S.E.2d 257
    , 265 (2007)).
    5
    Rather, the plaintiff must possess the "legal right" to bring
    the action, which depends on the provisions of the relevant
    statute.
    The Court's analysis in Concerned Taxpayers v. County of
    Brunswick, 
    249 Va. 320
    , 
    455 S.E.2d 712
     (1995), is illustrative.
    There, the plaintiffs brought a suit to enforce provisions of
    the Virginia Public Procurement Act, Code §§ 11-35 to -80 (the
    Procurement Act).         Id. at 330, 455 S.E.2d at 718.   Because the
    Procurement Act "provide[d] remedies for individuals or entities
    who have been denied rights conferred by the [Procurement] Act,"
    the Court examined those statutes to determine whether the
    plaintiffs had standing.         Id.   The Court concluded that the
    plaintiffs were "not among those afforded remedies" under the
    Procurement Act and thus lacked standing to assert violations of
    it. 4       Id.
    Small asserts statutory standing in his capacity as clerk
    of court.         The position of clerk of court, among others, is
    created by Article VII, Section 4 of the Constitution of
    Virginia.         Section 4 states that the "duties and compensation of
    4
    For examples of other statutes that confer "a legal right"
    on a particular plaintiff to institute an action, see Code §§
    8.01-50(C) (allowing personal representative of a deceased
    person to bring an action for wrongful death); 15.2-2314
    (conferring standing on certain aggrieved persons to appeal a
    decision of a board of zoning appeals); 55-79.80(B) (permitting
    condominium unit owners' association to litigate any actions
    related to common elements); 59.1-204(A) (defining who may bring
    a private action under Virginia Consumer Protection Act).
    6
    such officers," including clerks, "shall be prescribed by
    general law or special act."    Va. Const. art. VII, § 4.   As is
    true with other constitutional officers established by Article
    VII, Section 4, the "duties of a clerk are prescribed by
    statute." 5   First Virginia Bank-Colonial v. Baker, 
    225 Va. 72
    ,
    80, 
    301 S.E.2d 8
    , 12 (1983).
    This Court has consistently characterized the duties of a
    clerk of court as "ministerial" in nature.    Town of Falls Church
    v. Myers, 
    187 Va. 110
    , 119, 
    46 S.E.2d 31
    , 36 (1948); Harvey v.
    Chesapeake & Potomac Tel. Co., 
    198 Va. 213
    , 218, 
    93 S.E.2d 309
    ,
    313 (1956); see also Patrick v. Commonwealth, 
    115 Va. 933
    , 935-
    38, 
    78 S.E. 628
    , 629-30 (1913) (holding clerk of court acted
    outside scope of express statutory authority by drawing and
    placing more names on a venire facias than permitted by the
    applicable statute); Page v. Taylor, 16 Va. (2 Munf.) 492, 498-
    99 (1811) (holding clerk not liable for non-execution of a bond
    because his duties did not extend to taking the bond, a judicial
    act to be done in open court).    By definition, ministerial acts
    are non-discretionary.    See Black's Law Dictionary 28 (9th ed.
    2009); Moreau v. Fuller, 
    276 Va. 127
    , 135, 
    661 S.E.2d 841
    , 845-
    46 (2008) ("A ministerial act is one which a person performs in
    a given state of facts and prescribed manner in obedience to the
    5
    See Hilton v. Amburgey, 
    198 Va. 727
    , 729, 
    96 S.E.2d 151
    ,
    152 (1957) (sheriffs); McGinnis v. Nelson County, 
    146 Va. 170
    ,
    172, 
    135 S.E. 696
    , 697 (1926) (commissioners of revenue).
    7
    mandate of legal authority without regard to, or the exercise
    of, his own judgment upon the propriety of the act being done.")
    (internal quotation marks omitted).
    According to Small, his authority to bring an action to
    enforce the collection of unpaid real estate transfer taxes
    derives from Code §§ 58.1-801 and -802 and other statutes
    addressing those taxes.   Whether those provisions impose a
    ministerial duty to bring such an action, i.e., whether Small
    has statutory standing, is thus a question of statutory
    interpretation.
    As with all issues of statutory interpretation, we are
    bound by the plain language of the statutes at issue.     Jenkins
    v. Mehra, 
    281 Va. 37
    , 47, 
    704 S.E.2d 577
    , 583 (2011).     "[W]e
    examine a statute in its entirety, rather than by isolating
    particular words or phrases."     Cummings v. Fulghum, 
    261 Va. 73
    ,
    77, 
    540 S.E.2d 494
    , 496 (2001).    "It is a cardinal rule of
    construction that statutes dealing with a specific subject must
    be construed together in order to arrive at the object sought to
    be accomplished."   Alston v. Commonwealth, 
    274 Va. 759
    , 769, 
    652 S.E.2d 456
    , 462 (2007) (internal quotation marks omitted).     In
    addition, "[o]ne of the basic principles of statutory
    construction is that where a statute creates a right and
    provides a remedy for the vindication of that right, then that
    remedy is exclusive unless the statute says otherwise."     School
    8
    Bd. of the City of Norfolk v. Giannoutsos, 
    238 Va. 144
    , 147, 
    380 S.E.2d 647
    , 649 (1989); see First Am. Title Ins. Co. v. Western
    Sur. Co., 
    283 Va. 389
    , 397, 
    722 S.E.2d 637
    , 640 (2012) (holding
    that the Virginia Consumer Real Estate Protection Act's express
    remedies for violations of the statute did not include a private
    cause of action against a surety and the surety bond).
    Certain principles govern our review of the tax statutes at
    issue here.   "Taxes can only be assessed, levied and collected
    in the manner prescribed by express statutory authority."     City
    of Richmond v. SunTrust Bank, 
    283 Va. 439
    , 442, 
    722 S.E.2d 268
    ,
    270 (2012) (internal quotation marks omitted).   "'[A]n executive
    officer who seeks to enforce a tax must always be able to put
    his finger upon the statute which confers such authority.'"     Id.
    (quoting Commonwealth v. P. Lorillard Co., 
    129 Va. 74
    , 82, 
    105 S.E. 683
    , 685 (1921)).   The General Assembly alone "determin[es]
    what machinery shall be exercised in carrying out the provisions
    of a law authorizing the imposition of taxes."   P. Lorillard
    Co., 129 Va. at 81, 105 S.E. at 685.   Taxing statutes are
    "construed most strongly against the government and are not to
    be extended beyond the clear import of the language used."     City
    of Lynchburg v. English Constr. Co., 
    277 Va. 574
    , 583, 
    675 S.E.2d 197
    , 201 (2009) (internal quotation marks omitted).
    Title 58.1 of the Code governs taxation in the
    Commonwealth.   Within that title, the General Assembly
    9
    separately addressed three types of taxes, each in its own
    subtitle: "Taxes Administered by the Department of Taxation,"
    (Subtitle I); "Taxes Administered by Other Agencies," (Subtitle
    II); and "Local Taxes," (Subtitle III). 6     The real estate taxes
    at issue in this case are found in Chapter 8 of Subtitle I,
    titled "State Recordation Tax," Code §§ 58.1-800, et seq., and
    are administered by the Department of Taxation (the Department).
    As stated previously, Code § 58.1-801(A) levies a tax "[o]n
    every deed admitted to record, except a deed exempt from
    taxation by law," and Code § 58.1-802(A) imposes an additional
    tax on each deed or other instrument by which realty is
    conveyed.
    Pursuant to Code § 58.1-812(A), "no deed, deed of trust,
    contract or other instrument shall be admitted to record without
    the payment of the tax imposed thereon by law" except as
    otherwise provided in Chapter 8.       The tax imposed under Code §
    58.1-802(B) "shall be collected as provided in § 58.1-812 and
    the clerk shall return taxes collected hereunder one-half into
    the state treasury and one-half into the treasury of the
    locality."     With regard to the assessment and collection of the
    real estate transfer taxes, Code § 58.1-812(B) states:
    The tax on every deed, deed of trust,
    contract or other instrument shall be
    6
    Title 58.1 also includes a fourth subtitle addressing the
    State Lottery Tax.
    10
    determined and collected by the clerk in
    whose office the instrument is first offered
    for recordation. The clerk may ascertain the
    consideration of the deed or of the
    instrument, the actual value of the property
    conveyed, and the qualification of the deed
    or instrument for any exemption claimed by
    inquiry, affidavit, declaration or other
    extrinsic evidence acceptable to the clerk.
    Clerks of court collecting taxes imposed under Code § 58.1-802
    are "entitled to compensation for such service at five percent
    of the amount so collected and paid."   Code § 58.1-802(B); see
    also Code § 58.1-3176.
    Small contends his authority to file the enforcement action
    arises from his affirmative duty, as clerk of court, to collect
    the real estate transfer taxes.    See Code §§ 58.1-802(B) and
    -812(B).   Small notes that clerks of court are compensated
    according to the amount of real estate transfer taxes collected
    and thus have "a personal stake" in their proper collection.
    Because clerks of court cannot force the Department to bring
    enforcement actions, Small argues, they cannot protect their
    interests without the ability to file enforcement actions.
    Finally, Small maintains that there is nothing inconsistent with
    allowing both clerks of court and the Department to enforce
    these tax statutes because, according to Small, the General
    Assembly created a "multi-track system of tax collection."    We
    disagree with Small.
    11
    The General Assembly granted exclusive authority to the
    Department to collect the real estate transfer taxes if they
    remain unpaid for thirty days.
    The Department may assess and collect any
    tax imposed by this chapter[, i.e., Chapter
    8,] which has remained uncollected for
    thirty days. The Department, prior to
    collecting such tax, shall give notice to
    the clerk of court in whose office the tax
    was to be collected. The Department may then
    proceed to assess and collect the unpaid tax
    in the same manner and by the same methods
    used for the collection of any state tax
    administered by the Department.
    Any local tax collected hereunder in
    conjunction with the collection of a state
    tax by the Department shall be deposited
    into the state treasury. The Comptroller
    shall, by warrant drawn on the Treasurer of
    Virginia, remit to the proper city or county
    any amounts due to such city or county.
    Code § 58.1-813.   Thus, after notifying the clerk "in whose
    office the tax was to be collected," the Department takes over
    the collection of any unpaid taxes.    Code § 58.1-813.
    Moreover, the Department may assess and collect the unpaid
    taxes "in the same manner and by the same methods used for the
    collection of any state tax." Code § 58.1-813.    The real estate
    transfer taxes are state taxes.    See Code §§ 58.1-800, et seq. 7
    Chapter 18 of Subtitle I addresses the "Enforcement, Collection,
    7
    The General Assembly has authorized the governing body of
    any city or county to impose "a city or county recordation tax
    in an amount equal to one-third of the amount of state
    recordation tax." Code § 58.1-814. This case does not involve
    such a local recordation tax.
    12
    Refund, Remedies and Review of State Taxes."     Code §§ 58.1-1800,
    et seq.     Under this Chapter, the General Assembly granted to the
    Department and the Tax Commissioner numerous enforcement
    mechanisms.    Code § 58.1-1803 permits the Department to appoint
    a collector in any jurisdiction to collect delinquent state
    taxes that were "assessed at least 90 days" previously.     The Tax
    Commissioner is authorized to collect "by levy, by a proceeding
    in court, or by any other means available . . . under the laws
    of the Commonwealth" any tax imposed by Subtitle I.    Code §
    58.1-1802.1.    Code § 58.1-1806 provides that
    [t]he payment of any state taxes . . . may
    . . . be enforced by action at law, suit in
    equity or by attachment in the same manner,
    to the same extent and with the same rights
    of appeal as now exist or may hereafter be
    provided by law for the enforcement of
    demands between individuals. . . . Such
    proceedings shall be instituted and
    conducted in the name of the Commonwealth.
    No provision in these or any other statutes expressly authorize
    clerks of court to utilize such enforcement mechanisms to
    collect unpaid real estate transfer taxes.    See City of
    Richmond, 283 Va. at 442, 722 S.E.2d at 270 ("Taxes can only be
    assessed, levied, and collected in the manner prescribed by
    express statutory authority.") (internal quotation marks
    omitted).
    Nevertheless, Small contends that the taxes at issue here
    have a local character because the locality receives one-half of
    13
    the amount collected under Code § 58.1-802(A).    See Code § 58.1-
    802(B).   Even so, the General Assembly specifically designated
    the real estate transfer taxes as state taxes to be enforced by
    the Department.    Moreover, clerks of court are not authorized to
    enforce local taxes either.   Just as Chapter 18 of Subtitle I of
    Title 58.1 addresses the enforcement of state taxes, Chapter 39
    of Subtitle III provides for the enforcement and collection of
    local taxes.   Code §§ 58.1-3900, et seq.   Mirroring Code § 58.1-
    1806, Code § 58.1-3953 permits the use of "action[s] at law" to
    enforce the payment of local taxes, and such proceedings "shall
    be instituted . . . in the name of the county, city, or town in
    which such taxes are assessed."    Code § 58.1-3954.   These
    provisions bolster what is already apparent: the General
    Assembly authorized the Department to enforce state taxes, and
    localities to enforce local taxes.     And in neither case is the
    clerk of court authorized to collect unpaid real estate transfer
    taxes by filing an enforcement action.
    The statutory enforcement mechanisms for state and local
    taxes also undercut Small's reliance on the word "collect[]" in
    Code § 58.1-812.   According to Small, Code § 58.1-812's command
    that clerks of court "shall . . . collect[]" the real estate
    transfer taxes is mandatory and encompasses the filing of an
    enforcement action.   Indeed, Small is compelled to construe Code
    § 58.1-812 in this manner in light of our holdings that the
    14
    duties of clerks of court are purely ministerial.    See Harvey,
    198 Va. at 218, 93 S.E.2d at 313.    But, as the statutes for
    collecting and enforcing state taxes make clear, filing an
    enforcement action is necessarily discretionary.    State
    officials charged with enforcing the state taxes are given a
    range of options for collecting unpaid taxes, including filing
    enforcement proceedings.   See Code §§ 58.1-1803 ("may appoint a
    collector") (emphasis added); -1802.1 ("may be collected by
    levy") (emphasis added); -1806 ("may . . . be enforced by action
    at law . . . or by attachment") (emphasis added); see also
    Harper v. Virginia Dep't of Taxation, 
    250 Va. 184
    , 194, 
    462 S.E.2d 892
    , 898 (1995) ("[T]he word 'may' is prima facie
    permissive, importing discretion.") (internal quotation marks
    omitted).   Small asserts, therefore, that a clerk of court is
    compelled to file an enforcement action for unpaid real estate
    transfer taxes, while the Department has the discretion to do
    so.   This position is untenable as a matter of both statutory
    interpretation and practicality.
    Reading the statutory concept of "collect" in its entire
    context, see Cummings, 261 Va. at 77, 540 S.E.2d at 496, we
    conclude that to "collect" the real estate transfer taxes is a
    purely ministerial act, as the federal district court noted.
    When an instrument is offered for recordation, the clerk of
    court "ascertain[s] the consideration of the deed or of the
    15
    instrument, the actual value of the property conveyed," and the
    applicability of any exemption claimed.   Code § 58.1-812(B).
    The clerk of court then "determine[s] and collect[s]" the taxes.
    Id.   Under the statute, the clerk of court is prohibited from
    recording the deed or instrument until the taxes have been paid
    and no other action is authorized in the absence of payment.
    Code §§ 58.1-802, -812(A).   In contrast, Code § 58.1-813 directs
    the Department to collect unpaid taxes, and expressly authorizes
    the "manner and . . . methods" of enforcement outlined in
    Chapter 18 of Title 58.1.    See Newberry Station Homeowners Ass'n
    v. Board of Supervisors, 
    285 Va. 604
    , 616, 
    740 S.E.2d 548
    , 554
    (2013) ("[W]hen the General Assembly has used specific language
    in one instance, but omits that language or uses different
    language when addressing a similar subject elsewhere in the
    Code, we must presume that the difference in the choice of
    language was intentional.") (internal quotation marks omitted).
    In sum, Small fails to "put his finger upon the statute"
    which authorizes him to enforce the real estate transfer taxes.
    See City of Richmond, 283 Va. at 442, 722 S.E.2d at 270
    (internal quotation marks omitted).   To imply from the word
    "collect" the authority to file an enforcement proceeding would
    "extend[] [Code § 58.1-812] by implication beyond the clear
    import of the statutory language."    Shelor Motor Co. v. Miller,
    
    261 Va. 473
    , 478, 
    544 S.E.2d 345
    , 348 (2001).   The General
    16
    Assembly "determin[ed] what machinery shall be exercised in
    carrying out the provisions" of Code §§ 58.1-800, et seq.     See
    P. Lorillard Co., 129 Va. at 81, 105 S.E. at 685.    That machine
    is the Department.   The Department's remedies for enforcing the
    real estate transfer taxes are exclusive, and we will not imply
    a power the General Assembly has not seen fit to grant.      See
    Giannoutsos, 238 Va. at 147, 380 S.E.2d at 649.
    The first certified question asks whether "a clerk of court
    possess[es] statutory standing to initiate a lawsuit, in his
    official capacity, to enforce the real estate transfer tax on
    the recording of instruments."   For the reasons stated, we
    answer that question in the negative.   Because the second
    certified question is premised on the first question being
    answered affirmatively, we need not address the second certified
    question.
    Certified question one
    answered in the negative.
    JUSTICE McCLANAHAN, concurring in part and dissenting in part.
    I agree with the majority's reasoning and conclusion with
    respect to a clerk of court's statutory authority to sue to
    collect alleged unpaid real estate transfer taxes.   I disagree,
    however, with the majority deciding that a clerk also does not
    have statutory authority to file a declaratory judgment action
    17
    regarding a party's qualification for exemption from transfer
    taxes, because that issue has not been put before the Court.
    1
    As the Court's opinion notes, "Small requested . . . among
    other things, a declaratory judgment holding that the defendants
    are not exempt governmental entities and are therefore required
    to pay the real estate transfer taxes when recording
    instruments."   Indeed, Small's complaint contained three counts:
    the first for defendants' alleged violations of Virginia's
    statute imposing the real estate transfer taxes, the second for
    unjust enrichment on the same basis, and the third for a
    declaratory judgment "that the Defendants are not exempt from
    payment of transfer taxes under state and/or federal law."   In
    the prayer for relief, Small separately requested "[t]hat the
    Court enter judgment awarding the Plaintiff and the class
    damages equal to the transfer taxes not paid" and a "judgment
    declaring that the practice complained of herein is in violation
    of law and that Defendants are subject to payment of the
    transfer taxes and are not governmental entities or
    1
    Because the Court's holding with respect to a clerk's
    standing to collect alleged unpaid transfer taxes is entirely
    dispositive of that issue, the Court has the power under Rule
    5:40(a) to answer the certified question. See Wyatt v.
    McDermott, 
    283 Va. 685
    , 691, 691 n.1, 
    725 S.E.2d 555
    , 557-58,
    557 n.1 (2012) (finding Rule 5:40(a) satisfied because the
    certified question was "determinative" of plaintiff's one
    tortious interference with parental rights claim among
    plaintiff's "numerous" other pending claims, which included
    conspiracy, fraud, and constructive fraud).
    18
    instrumentalities exempt therefrom or otherwise exempt therefrom
    under law."
    In its discussion framing the certified question to this
    Court, 2 the federal district court focused on the collection of
    taxes.   Likewise, neither party argued to this Court whether a
    clerk is or is not statutorily authorized to sue for a
    declaratory judgment regarding a party's qualification for
    exemption from the transfer taxes.
    The majority's position is that its opinion decides this
    unargued issue, because it believes that Small's declaratory
    judgment count seeks a ruling that the defendants were not
    exempt at the time the relevant deeds were recorded and that
    therefore the declaratory judgment count is a part of, not a
    separate claim from, Small's claims to collect the alleged
    unpaid taxes.   Thus, the majority's analysis subsumes and
    decides the issue of whether Small has statutory standing to
    pursue declaratory relief.
    Small's counts seeking to collect the alleged unpaid taxes
    and Small's count for a declaratory judgment ask a court to
    consider the defendants' qualification for exemption; but their
    similarity ends there.   The issue in the collection counts is
    2
    The dispositive certified question asked: "Under Virginia
    law, does a clerk of court possess statutory standing to
    initiate a lawsuit, in his official capacity, to enforce the
    real estate transfer tax on the recording of instruments?"
    19
    whether the defendants were exempt at the time they offered
    instruments for recordation in the past.   That determination, in
    turn, would dictate whether the alleged unpaid taxes were
    previously owed.    In contrast, Small's declaratory judgment
    count is future-looking by seeking to resolve the controversy
    over defendants' exemption status that has not yet fully matured
    into real injury.   See Charlottesville Area Fitness Club
    Operators Ass'n v. Albemarle Cnty., 
    285 Va. 87
    , 99, 
    737 S.E.2d 1
    , 7 (2013) (declaratory judgment proceeding is intended to
    permit the declaration of rights before they mature).
    Since success on his collection counts requires Small to
    obtain a judgment that the defendants were not exempt in the
    past, the majority's position that Small's declaratory judgment
    count seeks the very same ruling renders that claim superfluous. 3
    To the contrary, given the forward-looking nature of Small's
    declaratory judgment count, as well as the high frequency with
    which these defendants record instruments, the declaratory
    judgment count seeks a separate ruling regarding the defendants'
    3
    For example, in a suit seeking damages for breach of
    contract, plaintiffs are neither required nor permitted to file
    a separate claim for a declaratory judgment that the defendant
    breached the terms of the contract. Instead, plaintiffs simply
    prove the breach as part of the legal claim for damages, and the
    existence of a normal contract remedy makes declaratory relief
    unavailable. USAA Cas. Ins. Co. v. Randolph, 
    255 Va. 342
    , 346,
    
    497 S.E.2d 744
    , 746 (1998); Liberty Mut. Ins. Co. v. Bishop, 
    211 Va. 414
    , 421, 
    177 S.E.2d 519
    , 524 (1970); American Nat. Bank,
    etc., Co. v. Kushner, 
    162 Va. 378
    , 386, 
    174 S.E. 777
    , 780
    (1934).
    20
    exemption status going forward, so that the parties avoid the
    almost certain disagreement that would spawn a new round of
    litigation.
    Moreover, while I agree with the Court's reasoning with
    respect to a clerk's authority to file a claim to collect
    alleged unpaid transfer taxes, that reasoning hardly yields the
    majority's conclusion that a clerk does not have statutory
    standing to file a declaratory judgment action regarding a
    party's exemption status.    The Court's opinion holds that a
    clerk's statutory duty to "collect" transfer taxes under Code
    § 58.1-812(B) is ministerial and thus does not authorize the
    discretionary act of suing to recover alleged unpaid taxes.      In
    the next sentence of the same statute, however, the General
    Assembly provided that "[t]he clerk may ascertain . . . the
    qualification of the deed or instrument for any exemption."
    Code § 58.1-812(B) (emphasis added).    As the Court's opinion
    makes clear, where the General Assembly uses "may" it grants
    discretionary authority.    Since a clerk's duty to decide
    exemption from the transfer taxes is discretionary, by the
    Court's own reasoning, this discretionary authority arguably
    empowers a clerk with statutory standing to file a declaratory
    judgment action to determine a party's exemption. 4
    4
    Again, because this question was not before the Court, I
    express no view on it.
    21
    Certainly, if Small were authorized to proceed on his two
    collection counts, then his declaratory judgment count would be
    rendered moot, since the issue of the defendants' exemption
    would necessarily be decided on the merits as part of the
    collection action.   But because the Court today holds that Small
    is without statutory standing to file such a collection action,
    the issue of the defendants' qualification for exemption will
    not be resolved in the course of those proceedings.
    Despite Small's inability to obtain a decision regarding
    defendants' exemption status through proving that they were not
    exempt in the past, he seeks resolution of this issue going
    forward through his declaratory judgment count.   Of course, as a
    clerk of court Small must have statutory standing to pursue this
    form of action.   Yet, this issue was not put before the Court,
    and the reasoning in the Court's opinion does not logically
    explain the majority's conclusion that a clerk is without such
    statutory authority.   Consequently, it remains an open question
    whether a clerk is statutorily empowered to file a declaratory
    judgment action regarding qualification for exemption and, in
    turn, whether Small has statutory standing to litigate the
    declaratory judgment count of his present federal action.
    22