Cartwright v. Commonwealth Transportation Comm'r , 270 Va. 58 ( 2005 )

Present: All the Justices
RAYMOND D. CARTWRIGHT
OPINION BY
v. Record No. 042240 JUSTICE LAWRENCE L. KOONTZ, JR.
June 9, 2005
COMMONWEALTH TRANSPORTATION
COMMISSIONER OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
In this appeal, the issue we consider is whether the
circuit court erred in denying a petition for writ of mandamus
brought pursuant to Code § 2.2-3713 on the ground that the
petitioner had an adequate remedy at law and, thus, mandamus
would not lie.
BACKGROUND
The pertinent facts are not disputed. On January 19, 2004,
Raymond D. Cartwright, a citizen of this Commonwealth, made a
request to the Virginia Department of Transportation (VDOT)
under The Virginia Freedom of Information Act (FOIA), Code
§§ 2.2-3700 through 2.2-3714, seeking a photocopy of the “sales
brochure” compiled by VDOT in connection with VDOT’s highway
construction project on Route 17 in the City of Chesapeake.
Cartwright was a joint owner of property located on Route 17
that VDOT had determined was needed to complete the project. A
sales brochure, as used in this context, is a document prepared
by VDOT for the purpose of preparing appraisals and offers for
property that is subject to condemnation for public use. VDOT
denied the request, expressly contending that the sales brochure
was exempt from disclosure under the FOIA by Code § 2.2-3705(8),
permitting a public body to withhold “[l]egal memoranda and
other work product compiled specifically for use in litigation,”
and Code § 2.2-3705(35), permitting a public body to withhold
“[a]ppraisals and cost estimates of real property subject to a
proposed purchase, sale or lease, prior to the completion of
such purchase, sale or lease.”1
At the time Cartwright filed the FOIA request, he was a
party to a pending condemnation proceeding regarding his
property on Route 17, which VDOT had initiated in the Circuit
Court of the City of Chesapeake. Cartwright had requested the
same document from VDOT through discovery served on August 26,
2003. Although VDOT had not produced the document in response
to the discovery request, Cartwright had not sought to compel
compliance with his request at that time.
On January 30, 2004, Cartwright filed a petition for writ
of mandamus in the same circuit court pursuant to Code § 2.2-
3713 seeking an order directing the Commonwealth Transportation
1
Code § 2.2-3705 was repealed in 2004. Acts 2004, c. 690.
The exclusions relied upon by VDOT now appear at Code § 2.2-
3705.1(3) (legal memoranda) and Code § 2.2-3705.1(8) (appraisals
and cost estimates).
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Commissioner2 to provide a copy of the sales brochure to
Cartwright. In addition, Cartwright requested an award of
“reasonable costs and attorneys’ fees” as permitted by Code
§ 2.2-3713(D). On March 2, 2004, VDOT filed a demurrer to the
petition for writ of mandamus, asserting that the refusal of
Cartwright’s request “was made in good faith and based upon a
plainly correct interpretation of the wording of the statute.”
VDOT further asserted that mandamus was not appropriate because
Cartwright could seek to obtain the same information through a
motion to compel discovery in the pending condemnation action
and, therefore, he had an adequate remedy at law.
Following a hearing, the circuit court entered a final
order dated July 9, 2004, sustaining VDOT’s demurrer and denying
Cartwright’s petition for writ of mandamus. The circuit court
found that Cartwright had “an adequate remedy at law.
Consequently, mandamus does not lie, under [T]he Virginia
Freedom of Information Act.” The circuit court expressly
withheld making a ruling on whether the sales brochure was
exempt from disclosure under the FOIA. We awarded Cartwright
this appeal.
2
The Commonwealth Transportation Commissioner is the chief
executive officer of VDOT. Code § 33.1-3. For clarity, we will
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DISCUSSION
Initially, we note that VDOT has filed a motion to dismiss
this appeal, averring therein that on January 31, 2005, VDOT
“mailed [Cartwright] a copy of the sales brochure that was the
subject of Cartwright’s mandamus petition.” VDOT contends that
the appeal should be dismissed as moot because “there no longer
is any dispute whether Cartwright will be furnished a copy of
the sales brochure,” and because VDOT has offered assurance that
it will honor future requests for sales brochures made under the
FOIA.
We hold that Cartwright’s appeal is not moot. It is true
that VDOT provided Cartwright with the requested sales brochure.
However, this action does not resolve the issue joined in this
appeal, that is, whether a mandamus action brought pursuant to
Code § 2.2-3713 is barred by the petitioner having an adequate
remedy at law. This is so because, if Cartwright prevails, the
issues whether his petition for mandamus should have been
granted because VDOT violated the FOIA and, if so, his
entitlement to recover his costs and fees would remain to be
resolved in the circuit court. Thus, the issue raised by this
appeal “is not one in which there is no actual controversy or in
refer to VDOT’s actions rather than to those of the Commissioner
in his representative capacity.
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which no relief can be afforded,” and, consequently, it is not
moot. RF&P Corp. v. Little, 247 Va. 309, 315, 440 S.E.2d 908,
912 (1994); see also Hankins v. Town of Virginia Beach, 182 Va.
642, 643-44, 29 S.E.2d 831, 832 (1944).
We now turn our consideration to the merits of the issue
raised in this appeal. In doing so, we emphasize that the issue
decided by the circuit court and now before us in this appeal is
whether a petition for writ of mandamus brought pursuant to Code
§ 2.2-3713 can be properly denied on the ground that the
petitioner has an adequate remedy at law. The circuit court
expressly withheld making any ruling on whether the specific
FOIA request in this case was properly denied by VDOT.
Accordingly, that issue is not before us, and we express no
opinion regarding it.
Circuit courts have the jurisdiction to issue a writ of
mandamus in any case where it is “necessary to prevent the
failure of justice and in which mandamus may issue according to
the principles of common law.” Code § 17.1-513. The common law
issuance of a writ of mandamus is “an extraordinary remedy
employed to compel a public official to perform a purely
ministerial duty imposed upon [the official] by law.” Richlands
Medical Assoc. v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d
737, 739 (1985).
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We have consistently held that “[t]he writ of mandamus
. . . only issues when there is a clear and specific legal right
to be enforced, or a duty which ought to be and can be
performed, and where there is no other specific and adequate
legal remedy.” Hertz v. Times-World Corp., 259 Va. 599, 608,
528 S.E.2d 458, 463 (2000) (quoting Tyler v. Taylor, 70 Va. (29
Gratt.) 765, 766-67 (1878)); accord Town of Front Royal v. Front
Royal and Warren County Indus. Park Corp., 248 Va. 581, 584, 449
S.E.2d 794, 796 (1994); Hall v. Stuart, 198 Va. 315, 323-24, 94
S.E.2d 284, 290 (1956). We have further noted that to be
“adequate,” the legal remedy “must be equally as convenient,
beneficial, and effective as the proceeding by mandamus.”
Carolina, C & O Ry. v. Board of Supervisors, 109 Va. 34, 37, 63
S.E. 412, 413 (1909).
In developing this body of law with respect to the
extraordinary relief afforded by the issuance of a writ of
mandamus, we generally have considered petitions filed under the
general jurisdiction of the circuit courts. However, prior to
this case we have not considered whether a petition for writ of
mandamus filed in a circuit court and specifically authorized by
the FOIA may be denied based on the availability of another
adequate remedy at law.
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The intent of the General Assembly in enacting the FOIA is
clearly expressed in its provisions. As pertinent here, the
General Assembly’s intent is to “ensure[] the people of the
Commonwealth ready access to records in the custody of a public
body or its officers and employees” so as “to promote an
increased awareness by all persons of governmental activities
and afford every opportunity to citizens to witness the
operations of government.” Code § 2.2-3700(B). To effectuate
that intent, the General Assembly has expressly provided that
the provisions of the FOIA are to be “liberally construed.”
Id.; see also Beck v. Shelton, 267 Va. 482, 487, 593 S.E.2d 195,
197 (2004); City of Danville v. Laird, 223 Va. 271, 276, 288
S.E.2d 429, 431 (1982).
Specific provisions of the FOIA foster its salutary
statutory scheme to provide freedom of information consistent
with open government. Code § 2.2-3713(A) expressly authorizes
“[a]ny person . . . denied the rights and privileges conferred
by this chapter . . . to enforce such rights and privileges by
filing a petition for mandamus.” In addition, the statute
further provides that the petition for mandamus may be filed in
either the general district court or the circuit court of the
jurisdiction in which the denial of the right or privilege under
the FOIA is alleged to have occurred. Id. This is the only
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instance in which the general district courts are given
concurrent jurisdiction with the circuit courts to hear mandamus
proceedings. See Code § 16.1-77(6).
The statute further provides that “[t]he petition for
mandamus . . . shall be heard within seven days of the date when
the same is made.” Code § 2.2-3713(C). “A single instance of
denial of the rights and privileges conferred by this chapter
shall be sufficient to invoke the remedies granted herein.”
Code § 2.2-3713(D). And if the court finds the denial to
constitute a violation of the FOIA, “the petitioner shall be
entitled to recover reasonable costs and attorneys’ fees from
the public body if the petitioner substantially prevails on the
merits of the case, unless special circumstances would make an
award unjust.” Id.
Finally, and perhaps most significantly, the statute
provides that in such proceedings “the public body shall bear
the burden of proof to establish an exemption by a preponderance
of the evidence. Any failure by a public body to follow the
procedures established by this chapter shall be presumed to be a
violation of this chapter.” Code § 2.2-3713(E). This is
contrary to the rule in common law mandamus proceedings which
places the burden on the petitioner to prove the violation of a
right or privilege and in which there is a presumption of
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regularity in the conduct of government business. See Legum v.
Harris, 205 Va. 99, 103, 135 S.E.2d 125, 128 (1964).
VDOT acknowledges that these statutory provisions have
“modified” traditional principles and procedural requirements
relating to mandamus proceedings in the context of the FOIA. It
nevertheless contends that a petitioner must prove lack of an
adequate legal remedy to be entitled to mandamus for an alleged
violation of the rights and privileges conferred by the FOIA.
The thrust of this contention is that, in light of the above
express modifications, the omission of any reference in Code
§ 2.2-3713 to the common law requirement that the petitioner in
a mandamus proceeding prove that an adequate remedy at law does
not exist manifests the intent of the General Assembly not to
eliminate that requirement in a proceeding involving a FOIA
request.
In support of its position, VDOT first argues that we would
be required to add words to Code § 2.2-3713 “under the guise of
interpretation” in order to conclude that the General Assembly
intended to eliminate the traditional requirement of a
petitioner in a mandamus proceeding to prove lack of an adequate
legal remedy. VDOT relies upon well-established principles that
need not be recited at length here. See, e.g. Coca-Cola
Bottling Co. of Roanoke v. County of Botetourt, 259 Va. 559,
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565, 526 S.E.2d 746, 750 (2000). Our analysis of the issue
presented in this case simply does not involve our careful and
consistent refusal to add words to a statute even if such might
clarify the statute.
The provisions of Code § 2.2-3713 significantly distinguish
the right to mandamus it provides from the common law right to
mandamus. By granting concurrent jurisdiction to the circuit
and general district courts, expediting the proceedings,
providing for an award of costs and attorneys’ fees, and
shifting the burden of proof to the public body, the General
Assembly has evinced an intent to provide mandamus relief under
Code § 2.2-3713(A) different from that of common law mandamus.
These distinctions are entirely consistent with the express
purpose of the FOIA and manifestly facilitate access to
appropriate governmental records. Contrary to VDOT’s
contention, we are of opinion that the lack of any reference in
this statute to the common law requirement that the petition
prove a lack of adequate remedy at law evinces the intent of the
General Assembly to eliminate that common law prerequisite to
the issuance of a writ of mandamus. Such is clearly consistent
with the salutary statutory scheme of the FOIA.
VDOT principally relies upon our decision in Gannon v.
State Corporation Commission, 243 Va. 480, 416 S.E.2d 44610
(1992), to support its position in this case. This reliance is
misplaced. The petitioner in that case had filed a FOIA request
for certain records in the possession and control of the State
Corporation Commission, which was denied. Rather than availing
himself of the remedy provided by the pertinent Rules of the
Commission to challenge the denial of his request, the
petitioner filed a petition for writ of mandamus in this Court.
Under those circumstances, we dismissed Gannon’s petition,
holding that he was required to avail himself of his “‘specific
and adequate remedy’ under the Commission’s Rules before seeking
a writ of mandamus in this Court.” Id. at 483, 416 S.E.2d at
448. Gannon did not involve a mandamus petition filed in a
circuit court pursuant to Code § 2.2-3713(A), and does not
address the issue presented in this appeal.
We hold that a citizen alleging a violation of the rights
and privileges afforded by the FOIA and seeking relief by
mandamus pursuant to Code § 2.2-3713(A) is not required to prove
a lack of an adequate remedy at law, nor can the mandamus
proceeding be barred on the ground that there may be some other
remedy at law available. Accordingly, we hold that the circuit
court erred in sustaining VDOT’s demurrer and denying
Cartwright’s petition for writ of mandamus on the ground that he
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had an adequate remedy at law by means of discovery in the
pending condemnation proceeding.
Although Cartwright has received the information he sought
to compel VDOT to disclose, as we have noted above, a
determination that he would have been entitled to disclosure of
that information under the FOIA would further entitle him to
receive an award of reasonable costs and attorneys’ fees in the
absence of a finding by the circuit court of special
circumstances that would make such an award unjust.
Accordingly, because the circuit court did not reach the issue
whether the sales brochure was subject to disclosure under the
FOIA, we must remand the case for further consideration of that
issue, and, if the court finds Cartwright’s request was
improperly denied, for consideration of whether and in what
amount he should be awarded his reasonable costs and attorneys’
fees.
CONCLUSION
For these reasons, we will reverse the judgment of the
circuit court and remand the case for further proceedings
consistent with the views expressed in this opinion.
Reversed and remanded.
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