PRESENT: All the Justices
HONORABLE THOMAS J. KELLEY, JR., GENERAL DISTRICT COURT JUDGE FOR ARLINGTON COUNTY OPINION BY v. Record No. 120579 JUSTICE DONALD W. LEMONS JANUARY 10, 2013 THEOPHANI K. STAMOS, COMMONWEALTH'S ATTORNEY FOR ARLINGTON COUNTY
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William T. Newman, Jr., Judge
In this appeal, we consider whether the Circuit Court of
Arlington County ("circuit court") erred when it issued a writ
of mandamus against the Honorable Thomas J. Kelley, Jr. ("Judge
Kelley"), a general district court judge, directing Judge Kelley
to sentence a criminal defendant within twenty-one days of its
order on the charge of driving while intoxicated.
I. Facts and Proceedings
On May 22, 2009, Alexander Nobles ("Nobles") pled guilty to
driving while intoxicated ("DWI") in violation of Code § 18.2-
266 before Judge Kelley in general district court. The case was
continued until July 7, 2009, on which date Judge Kelley
continued the case until August 2, 2011, and required that
Nobles be of good behavior and complete an alcohol safety action
program and 200 hours of community service. At the August 2,
2011 hearing, Judge Kelley found Nobles guilty of reckless
driving and fined him $250. The record does not contain sufficient evidence for us to
determine whether Judge Kelley found Nobles guilty of DWI at the
May 22, 2009 hearing. On the warrant, the box located next to
the disposition of "guilty as charged" is marked, but that mark
is scratched through. It is not possible for the Court to
determine from the record when those marks were made or whether
they reflect a certain disposition by Judge Kelley that was
later changed as opposed to a mistake by Judge Kelley that was
rectified. The only disposition that is clearly marked
indicates Nobles was tried and found by Judge Kelly to be
"guilty of __" with the charge of "reckless driving" supplied by
Judge Kelley.
The Commonwealth objected to Judge Kelley's decision to
find Nobles guilty of reckless driving instead of finding him
guilty and sentencing him for DWI, and filed a motion to
reconsider. Judge Kelley held a hearing on the motion to
reconsider on August 31, 2011, but subsequently denied the
motion.
Theophani K. Stamos ("Stamos"), the Chief Deputy
Commonwealth's Attorney, 1 filed a petition for a writ of mandamus
in the circuit court, seeking an order compelling Judge Kelley
to sentence Nobles on the charge of DWI. Judge Kelley filed a
1 Stamos became the Commonwealth's Attorney on January 1, 2012.
2 demurrer, and a hearing was held on the demurrer on December 19,
2011. On January 6, 2012, the circuit court dismissed the
demurrer. On January 17, 2012, the circuit court issued a writ
of mandamus, ordering Judge Kelley to sentence Nobles on the
charge of DWI within twenty-one days.
Judge Kelley filed a motion for reconsideration and an
answer on January 26, 2012. On February 6, 2012, the circuit
court sent a letter to the parties informing them that the
motion for reconsideration was denied.
Judge Kelley then filed his petition for appeal with this
Court, and we granted an appeal on the following assignments of
error:
1. The circuit court erred when it deprived the Hon. Thomas J. Kelley, Jr. of procedural due process by ruling on the petition without permitting him to answer the petition and without first conducting a hearing on the merits.
2. The circuit court erred by not dismissing the petition on the grounds that the Chief Deputy Commonwealth's Attorney lacked standing to file the petition for writ of mandamus.
3. The circuit court erred in granting the petition on the grounds that a writ of mandamus cannot be used to undo action that has already been taken.
4. The circuit court erred by not dismissing the petition on the grounds that the Hon. Thomas J. Kelley, Jr. lacked subject matter jurisdiction to alter the order entered on August 2, 2011 because more than twenty-one days had elapsed since entry of the order.
5. The circuit court erred in ordering the Hon. Thomas J. Kelley, Jr. to sentence Mr. Nobles for the charge of driving while intoxicated within twenty-one days of its order because the temporal requirement infringes upon the
3 Hon. Thomas J. Kelley's judicial discretion in imposing a sentence.
We also directed the parties to brief the following issue:
6. Whether the defendant in the underlying criminal prosecution was a necessary party to the mandamus action in the circuit court.
II. Analysis
A. Standard of Review
The issues whether 1) Stamos had standing to file the
petition for a writ of mandamus, 2) the August 2, 2011 order was
voidable, 3) mandamus lies and 4) Nobles was a necessary party
are all questions of law subject to de novo review upon appeal.
Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 844-45
(2008).
B. Standing
Stamos filed the petition for a writ of mandamus in her
individual capacity as Chief Deputy Commonwealth's Attorney.
Judge Kelley argues that the right to bring a mandamus action is
reserved for the Attorney General and the Commonwealth's
Attorney, and there is no authority for a Chief Deputy
Commonwealth's Attorney to bring a mandamus action.
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
4 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)
(citations omitted).
In Moreau, we held that a Commonwealth's Attorney had
standing to seek mandamus or prohibition in a matter involving
an ongoing criminal prosecution. 276 Va. at 135, 661 S.E.2d at
845. The question presented in this appeal is whether that
authority extends to the Chief Deputy Commonwealth's Attorney.
Code § 15.2-1627(B) states:
The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1,2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine. He shall enforce all forfeitures, and carry out all duties imposed upon him by § 2.2-3126. He may enforce the provisions of subsection D of § 18.2-268.3.
This statute plainly indicates that both the Commonwealth's
Attorney and his assistant "shall have the duties and powers
imposed upon him by general law . . . ." It is clear from this
language that in this respect the assistant attorney has the
same powers and duties as the Commonwealth's Attorney.
5 Accordingly, if the Commonwealth's Attorney had standing to file
a petition for a writ of mandamus in a particular matter, then
the Chief Deputy Commonwealth's Attorney would have the same
standing.
Judge Kelley also argues that Stamos lacked standing to
file this mandamus action because there was "no ongoing criminal
prosecution." Judge Kelley contends that the August 2, 2011
order became final after 21 days, and the petition for a writ of
mandamus was not filed until September 29, 2011.
This petition for a writ of mandamus is unquestionably
related to a criminal prosecution. The issue whether there is
still an "ongoing criminal prosecution" will be determined by
the outcome of this opinion. Under such circumstances, this
petition for a writ of mandamus is so closely related to a
criminal prosecution that the Commonwealth's Attorney has
standing to file the petition. Accordingly, the Chief Deputy
Commonwealth's Attorney had the same standing, and the circuit
court did not err in failing to dismiss the petition for a writ
of mandamus on that basis.
C. Mandamus and Subject Matter Jurisdiction
Stamos argues that convicting a defendant of a crime he was
not charged with, and which is not a lesser-included offense,
exceeded the authority of the court, is void ab initio, and
therefore a judicial nullity. She contends that since a valid
6 sentencing event has yet to occur in this matter, the general
district court retains subject-matter jurisdiction over this
ongoing criminal proceeding, and mandamus is an appropriate
remedy to compel a prospective sentencing event.
The general powers of the judiciary in Virginia are
conferred by Article VI, Section 1 of the Constitution of
Virginia. This section by itself confers jurisdiction upon the
Supreme Court of Virginia in certain matters and further states:
"Subject to the foregoing limitations, the General Assembly
shall have the power to determine the original and appellate
jurisdiction of the courts of the Commonwealth." The concept of
jurisdiction defines power. With regard to the Court of Appeals
of Virginia, the Circuit Courts and the General District and
Juvenile and Domestic Relations District Courts, the powers of
such courts are entirely prescribed by statute.
An order of a court of the Commonwealth can be "void" by
operation of two concepts. An order may be "void ab initio,"
meaning it was without effect from the moment it came into
existence. In that respect it is "void." Such a void order is
a nullity without force or effect and may be collaterally
challenged. An order of a court may also be "voidable" if it
contains reversible error. Singh v. Mooney, 261 Va. 48, 52, 541
S.E.2d 549, 551 (2001). However, the order is not "void" until
7 it is directly and successfully challenged. Id. at 51, 541
S.E.2d at 551.
Of critical distinction is the difference between a court
lacking jurisdiction to act upon a matter and the court, while
properly having jurisdiction, nonetheless erring in its
judgment. In Singh, we held that:
[a]n order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court "could not lawfully adopt."
Id. at 51-52, 541 S.E.2d at 551 (internal citations
omitted)(holding that an order entered in violation of Rule 1:13
was voidable, not void ab initio).
There is no dispute that in this case the general district
court had jurisdiction over the subject matter and the parties.
The remaining possibilities pursuant to Singh, depend upon
whether the court had the power to render the judgment being
collaterally attacked.
In Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544
(2009), a case involving collateral attack after conviction, we
declared a sentence in excess of statutory limitations to be
void ab initio. We stated that the "character of the judgment
was not such as the [C]ourt had the power to render." Id. at
221, 683 S.E.2d at 549 (internal quotation marks omitted). Of
8 course, the reason the court did not have "power to render" was
because the General Assembly authorized a punishment for the
offense and the punishment imposed was in excess of the
authority granted by the General Assembly. To restate the
obvious: the Constitution of Virginia authorized the General
Assembly to confer power upon the circuit courts. The General
Assembly prescribed the applicable punishments for criminal
offenses. The punishment imposed in Rawls exceeded the power
granted to the circuit court.
Rawls quoted from a 19th century case involving liability
of a surety. See Anthony v. Kasey, 83 Va. 338, 5 S.E. 176
(1887). In that case the court repeatedly stated that Kasey,
the surety, had not been a party to the suit in question.
Nonetheless, the trial court proceeded upon a rule to show cause
against the surety after a deficiency had been determined upon
sale of property. The manner in which the court proceeded "was
such a departure from the established mode of procedure as to
render the decree not only erroneous, but void." Id. at 342, 5
S.E. at 178. We stated with regard to sureties, "[t]heir
liability, if any, grows out of their undertaking as sureties on
the bond, and can be ascertained and enforced only by suit on
the bond in a common law court, where full opportunity for
making defense and the constitutional right of trial by jury can
be had." Id. (quoting Thurman v. Morgan, 79 Va. 367, 372
9 (1884)). Clearly, the trial court had proceeded against Kasey
when he was not a party to the action, depriving him of his
constitutional and statutory right to a trial by jury. The
trial court was without power to proceed in such a manner.
In Evans v. Smith-Wythe Airport Commission, 255 Va. 69, 495
S.E.2d 825 (1998), we held that the circuit court's order
restricting the exercise of the power of eminent domain of an
airport authority was void ab initio because the circuit court
did not have the power to render a judgment which permitted a
governmental entity to relinquish the power or right of eminent
domain. Id. at 74, 492 S.E.2d at 828. In 1981, the Airport
Commission initiated condemnation proceedings against the
Evanses which subsequently resulted in an order reflecting a
settlement which purported to limit the Airport Commission's
right to initiate a condemnation action against the Evanses'
property as long as they or their children owned the property.
Id. at 71, 495 S.E.2d at 826. In 1996, the Airport Commission
initiated a declaratory judgment action alleging that the order
entered in the condemnation proceeding was void ab initio. Id.
at 71, 495 S.E.2d at 827. In this respect, the second action
was a collateral challenge to the order in the first action.
The character of the first judgment was not such that the court
had the power to render, because the power of eminent domain is
an inalienable attribute of sovereignty, and the court acted
10 outside the scope of Code § 25-46.34(e) when it divested the
Airport Commission of the power or right of eminent domain given
to it by the General Assembly. Id. at 73, 495 S.E.2d at 827.
Burrell v. Commonwealth, 283 Va. 474, 722 S.E.2d 272
(2012), is the most recent case in which we have found that a
court rendered a judgment it did not have the power to render,
and that the judgment was therefore void ab initio. In Burrell,
the circuit court order contained a provision stating that the
court would reduce the defendant's conviction from a felony to a
misdemeanor following the defendant's incarceration and
successful completion of probation. Id. at 476, 722 S.E.2d at
272.
The circuit court ruled that Code § 19.2-303 gave it
jurisdiction to change the offense of conviction in the
sentencing order after the court had lost jurisdiction to modify
the sentencing order pursuant to Rule 1:1. Id. at 479, 722
S.E.2d at 274. That statute, however, did not authorize the
circuit court to reduce a conviction from a felony to a
misdemeanor after a defendant had served the active portion of a
sentence. Rather, it authorized the circuit court to "suspend
or otherwise modify the unserved portion of such a sentence."
Id. We held that the circuit court did not have the power to
render a judgment reducing Burrell's conviction from a felony to
a misdemeanor more than five years after the entry of the
11 sentencing order, and the order was therefore void ab initio. 2
Id. at 480, 722 S.E.2d at 275.
In the cases analyzed above, the court orders were void ab
initio because the courts did not have the power to render the
judgments at issue. In this case, however, Judge Kelley did
have such power as a general district court judge to render the
judgment at issue.
The case was begun in a normal manner not unlike thousands
of cases brought in the Commonwealth every year. We are aware
that warrants are routinely amended, particularly in the general
district courts. The power to do this is plainly evident in
Code § 16.1-129.2, which provides in pertinent part:
Upon the trial of a warrant, the court may, upon its own motion or upon the request either of the attorney for the prosecution or for the accused, amend the form of the warrant in any respect in which it appears to be defective. But when the warrant is so defective in form that it does not substantially appear from the same what is the offense with which the accused is charged, or even when it is not so seriously defective, the judge of the court having examined on oath the original complainant, if there be one, or if he sees good reason to believe that an offense has been committed, then without examination of witnesses, may issue under his own hand his warrant reciting the offense and requiring the defendant in the original warrant to be arrested and brought before him. Upon the arrest of the defendant on the new warrant and his production or appearance in court the trial shall proceed
2 Burrell, long after the 21-day period prescribed in Rule 1:1 had made the conviction order final, sought to collaterally attack the order in this proceeding.
12 upon the new warrant. When there is an amendment of the original warrant the trial shall proceed on the amended warrant. But whether the warrant is amended or a new warrant is issued, the court before proceeding to trial on the same may grant a continuance to the prosecution or to the defendant upon such terms as to costs as may be proper under the circumstances of the case; provided, however, that if the warrant be amended or if a new warrant be issued after any evidence has been heard, the accused shall be entitled to a continuance as a matter of right.
Code § 16.1-129.2 (emphasis added).
Stamos argues that the doctrine of separation of powers
does not permit the court to do exactly what is permitted by
Code § 16.1-129.2. The record in this case does not
specifically reference the basis for Judge Kelley's ruling.
However, this statute clearly demonstrates that the power to
amend warrants and even issue a new warrant is vested in the
general district court judge. The issue is not whether the
court had the power to do so. It did. The issue is whether the
court erred when it did so.
The dissent maintains that once a plea of guilty is
accepted by the court, it is the equivalent of a conviction for
that offense, and imposition of punishment is then authorized.
As we stated earlier, however, the record does not support
Stamos' contention that Nobles' guilty plea was ever accepted by
Judge Kelley. If Judge Kelley never found Nobles guilty of DWI,
13 Judge Kelley retained the authority to amend the warrant as
provided in Code § 16.1-129.2.
The general district court has jurisdiction over the
offense of reckless driving (Code § 16.1-123.1(1)(b)); the
defendant was before the court; Judge Kelley did not sentence
Nobles beyond the statutory range. While Judge Kelley had the
jurisdiction to amend the warrant, he may have erred in the
manner in which he did so. We have previously stated: "A
challenge to an order based on a trial court's misapplication of
statute generally raises a question of court error, not a
question of the court's jurisdiction." Hicks v. Mellis, 275 Va.
213, 219, 657 S.E.2d 142, 145 (2008). Accordingly, the August
2, 2011 order was not void ab initio.
The August 2, 2011 order became final after 21 days in
accordance with Rule 1:1. Judge Kelley has lost subject matter
jurisdiction to modify the August 2, 2011 order. Additionally,
mandamus is not the appropriate remedy here, as "[m]andamus is
applied prospectively only; it will not be granted to undo an
act already done." In re Commonwealth, 278 Va. 1, 9, 677 S.E.2d
236, 239 (2009). Because the August 2, 2011 order is final and
can no longer be undone, the circuit court erred when it issued
a writ of mandamus against Judge Kelley.
In light of our holding that mandamus does not lie, we need
not address the issues raised in assignments of error 1 and 5
14 regarding whether Kelley's procedural due process rights were
violated in the circuit court or whether the circuit court erred
in imposing a temporal requirement of twenty-one days in the
writ of mandamus.
D. Necessary Parties
Although Nobles may be indirectly affected by the outcome
of this appeal, he is not a necessary party to the appeal. This
Court has previously ruled on the merits of petitions of
mandamus and prohibition where the underlying case was criminal
in nature and the defendant in the underlying case was not made
a party. See, e.g., In re Commonwealth, 278 Va. 1, 677 S.E.2d
236 (2009); Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841
(2008); In re Horan, 271 Va. 258, 634 S.E.2d 675 (2006).
A mandamus proceeding is properly directed against the
person or body who may be compelled to perform a ministerial
duty. See Moreau, 276 Va. at 135, 661 S.E.2d at 845-46.
Because a defendant in an underlying case would have no right to
prevent a judge from performing a ministerial act, the
defendant's presence in cases adjudicating writs of mandamus or
prohibition is not required.
III. Conclusion
We hold that the circuit court did not err in its
determination that Stamos had standing to file the petition for
a writ of mandamus. However, we hold that the circuit court
15 erred in issuing a writ of mandamus ordering Judge Kelley to
sentence Nobles on the charge of DWI.
Accordingly, we will reverse the order of the circuit court
and dismiss the petition for a writ of mandamus.
Reversed and petition dismissed.
JUSTICE McCLANAHAN, dissenting.
Simply dismissing the constitutional doctrine of separation
of powers, the majority concludes Judge Kelley possessed
statutory authority to exercise acts within the inherent power
of the executive branch. Under the majority's rationale, then,
the separation of powers doctrine has no application to lower
courts because the Constitution of Virginia confers power upon
the General Assembly to determine the jurisdiction of the lower
courts. Yet this proposition runs counter to fundamental
constitutional principles that guide our three separate branches
of government and ignores the distinction between judicial power
and jurisdiction.
The majority's analysis stems from its misconception that
the General Assembly, rather than the Constitution of Virginia,
vests the lower courts with their judicial power. Article VI,
Section 1 provides that "[t]he judicial power of the
Commonwealth shall be vested in a Supreme Court and in such
other courts of original or appellate jurisdiction subordinate
16 to the Supreme Court as the General Assembly may from time to
time establish." Although the General Assembly is given "the
power to determine the original and appellate jurisdiction of
the courts of the Commonwealth," the concepts of judicial power
and jurisdiction are not the same. Va. Const. art. VI, § 1.
"The power under the constitution [is] judicial; the mode of
exerting it [is] prescribed by law in regulating the
jurisdiction. Clothed by the constitution with all judicial
power, vested by law with the jurisdiction to exercise it, the
obligation upon the Judges to perform the duties, is complete."
Sharpe v. Robertson, 46 Va. (5 Gratt.) 518, 633 (1849). In
other words, the judicial power of the lower courts is not
"entirely prescribed by statute." Rather, the Constitution of
Virginia vests judicial power in the courts; the General
Assembly, however, is only empowered to determine the
jurisdiction of the courts, i.e., the mode of exercising that
judicial power.
The controlling issue in this case is not whether Judge
Kelley exceeded his jurisdiction or any statutory authority he
had to act in the underlying criminal proceedings, but whether
he exceeded his constitutional power in refusing to enter
judgment on the offense charged by the Commonwealth and, sua
sponte, charging a new offense of an entirely different nature
and character. The General Assembly cannot confer executive
17 power upon the courts by a grant of statutory authority. See In
re Phillips, 265 Va. 81, 86, 574 S.E.2d 270, 273 (2003) ("The
General Assembly's power under Article VI, § 1 [of the
Constitution of Virginia] to enact legislation fixing the
original jurisdiction of circuit courts is subject to the
separation of powers mandate of Article III, § 1.")
In our system of government all power and authority are derived from the people. They have seen fit by organic law to distribute the powers of government among three great co-ordinate departments – the executive, the legislative, and the judicial. The Constitution of the State, which is the law to all, declares, in the seventh section of the first article, that "the legislative, executive, and judicial powers should be separate and distinct." This is a quotation from the Bill of Rights, an instrument which should never be mentioned save with the reverence due to the great charters of our liberties. Of such importance is this principle deemed that it is repeated, and constitutes a distinct article, which declares that "the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others; nor shall any person exercise the power of more than one of them at the same time, except as hereinafter provided."
Carter v. Commonwealth, 96 Va. 791, 812, 32 S.E. 780, 784
(1899) (quoting former Va. Const. art. II (1870)). The
separation of powers doctrine, currently embodied in
Article I, Section 5, and Article III, Section 1, is no
less important today and applies to all branches of the
government including the lower courts within our judicial
branch.
18 The record establishes that Judge Kelley declined, over the
Commonwealth's objection, to render judgment on the charge for
driving while intoxicated. Instead, Judge Kelley sua sponte
entered a judgment of guilty on a charge of reckless driving – a
charge never made by the commonwealth attorney and a charge that
is not a lesser included offense of driving while intoxicated.
See Spickard v. City of Lynchburg, 174 Va. 502, 505-06, 6 S.E.2d
610, 611-12 (1940) (court properly refused instruction on
reckless driving as lesser-included offense since crime of
reckless driving and that of driving while intoxicated are
distinct offenses established by different evidence). Thus,
Nobles could not be convicted by Judge Kelley of the offense of
reckless driving. See, e.g., Commonwealth v. Dalton, 259 Va.
249, 255, 524 S.E.2d 860, 863 (2000) ("[B]efore a defendant can
be tried and convicted of [an offense], he must be charged with
that offense.").
Commonwealth's Attorneys, not courts, are vested with the
discretion to charge under applicable criminal statutes. Thus,
Judge Kelley could not try and convict Nobles of the reckless
driving offense.
"[I]t is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth's Attorney." Kauffmann v. Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989). Indeed, "the institution of criminal charges, as well as their order and timing, are
19 matters of prosecutorial discretion." Bradshaw v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572 (1984).
Barrett v. Commonwealth, 268 Va. 170, 178, 597 S.E.2d 104, 107-
08 (2004) (quoting Barrett v. Commonwealth, 41 Va. App. 377,
391, 585 S.E.2d 355, 362 (2003)). " 'A prosecutor has the
discretion to decide under which of several applicable statutes
the charges shall be instituted.' " In re Horan, 271 Va. 258,
264, 634 S.E.2d 675, 679 (2006) (quoting Hensley v. City of
Norfolk, 216 Va. 369, 373, 218 S.E.2d 735, 739 (1975)). The
"'conduct of a prosecution on behalf of the people by the
prosecutor is an executive act' " and " 'prosecutorial
discretion is an inherent executive power.' " Id. at 263-64,
634 S.E.2d at 679 (quoting Genesee Prosecutor v. Genesee
Circuit Court, 194 N.W.2d 693, 698 (Mich. 1972) and Polikov v.
Neth, 699 N.W.2d 802, 808 (Neb. 2005)).
The legislative, executive, and judicial branches of
government "shall be separate and distinct" and no one branch
can "exercise the powers properly belonging to the others."
Va. Const. art. III, § 1. We have observed the importance of
recognizing the "roles that are uniquely allocated to the
[three branches of government]" in determining "what is within
the inherent authority of the judiciary and what may be beyond
its boundaries." Moreau v. Fuller, 276 Va. 127, 136-37, 661
S.E.2d 841, 846 (2008). When a "defendant has been duly
20 indicted for an offense found to be within [a] statute, and the
proper authorities seek to proceed with the prosecution, the
court cannot refuse to try the case in the constitutional
method because it desires to let the defendant go free."
Sorrells v. United States, 287 U.S. 435, 450 (1932). Doing so
"is inconsistent with the Constitution, since its exercise in
the very nature of things amounts to a refusal by the judicial
power to perform a duty resting upon it and, as a consequence
thereof, to an interference with both the legislative and
executive authority as fixed by the Constitution." Ex parte
United States, 242 U.S. 27, 51-52 (1916).
The Commonwealth charged Nobles with driving while
intoxicated in violation of Code § 18.2-266 and not reckless
driving. It did not seek to amend or reduce the charge for
driving while intoxicated. Judge Kelley's refusal to enter
judgment on the charge of driving while intoxicated and
substitution, sua sponte, of a charge for reckless driving and
entry of judgment thereon was without constitutional authority.
It infringed upon the executive power properly belonging to the
Commonwealth's Attorney to decide which charges to institute
against Nobles. 1
1 Code § 16.1-129.2 governs the "[p]rocedure" to be followed by the trial court "when [a] warrant [is] defective" and permits the trial court to amend the form of the warrant or issue a new warrant under specified conditions when the warrant is defective
21 Article VI, § 1 of the Constitution of Virginia confers
"judicial power" upon the courts, and Article III, § 1 prohibits
the exercise of executive power by the courts. Where, as here,
a trial court has exceeded the scope of its constitutional
authority by exercising "power[] [that] properly belong[s]" to
the executive department, we need look no further than the
Constitution of Virginia to conclude its exercise of such power
is of no effect. Lacking the power to institute the charge of
reckless driving and enter judgment thereon, Judge Kelley's
order of August 2, 2011, finding Nobles guilty of reckless
driving and imposing a fine of $250 was "void ab initio because
'the character of the judgment was not such as [Judge Kelley]
had the power to render.' " Rawls v. Commonwealth, 278 Va. 213,
in form. This statute has no application to this case since Judge Kelley did not amend or issue a new warrant to correct a warrant that was defective in form. In fact, there is no claim advanced here that the warrant was defective in form or that an amended or new warrant was issued for this or any other reason. Furthermore, this statute does not even purport to confer special jurisdiction or power upon trial courts to choose the offense for which a criminal defendant will be charged – the statute only delineates the procedure governing defective warrants. A statutory construction that suggests Code § 16.1- 129.2 granted power to Judge Kelley to refuse to enter judgment on the offense charged in the warrant and substitute an offense of a different nature and character violates the separation of powers doctrine. See In re Phillips, 265 Va. at 86, 574 S.E.2d at 273 ("The General Assembly's power under Article VI, § 1 [of the Constitution of Virginia] to enact legislation fixing the original jurisdiction of circuit courts is subject to the separation of powers mandate of Article III, § 1."). Thus, the majority's strained construction of Code § 16.1-129.2 only begs the question of whether Judge Kelley had the constitutional authority, in the first place, to exercise executive power.
22 221, 683 S.E.2d 544, 549 (2009) (quoting Anthony v. Kasey, 83
Va. 338, 340, 5 S.E. 176, 177 (1887)); accord Evans v. Smyth-
Wythe Airport Comm'n, 255 Va. 69, 73, 495 S.E.2d 825, 828
(1998). An order that is void ab initio is "a complete nullity"
and therefore, has no force and effect. Singh v. Mooney, 261
Va. 48, 52, 541 S.E.2d 549, 551 (2001). 2
Having found that Judge Kelley did not have the
constitutional power to refuse disposition of the charge of
driving while intoxicated and to institute the charge of
reckless driving, I would hold that Stamos is entitled to a writ
of mandamus compelling Judge Kelley to take action in the
underlying prosecution of Nobles. 3 "The office of the writ of
mandamus is to compel corporations, inferior courts and officers
to perform some particular duty incumbent upon them, and which
is imperative in its nature." Page v. Clopton, 71 Va. (30
2 The majority distinguishes cases in which the court orders were void ab initio because the courts exceeded the scope of power conferred upon them by the General Assembly. See Rawls, 278 Va. at 221, 683 S.E.2d at 549; Evans, 255 Va. at 73-74, 495 S.E.2d at 827-28; Burrell v. Commonwealth, 283 Va. 474, 480-81, 722 S.E.2d 272, 275 (2012). Thus, under the majority's rationale, while the order of a court exceeding the scope of its statutory authority may be void ab initio, the order of a court exceeding its constitutional power is mere error unless the General Assembly has enacted legislation reiterating this scope of power. 3 Because I would hold that Judge Kelley's order is void ab initio, I would further hold that the charge of driving while intoxicated is still pending and Judge Kelley has not lost subject matter jurisdiction over the underlying criminal proceedings.
23 Gratt.) 415, 417 (1878). With regard to inferior courts in
particular, the remedy of 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.
Id. at 418.
When the action of a court is "a simple refusal to hear and decide the case; and this [C]ourt having held that no appeal lies from such refusal, it is exactly the case to which the highly remedial writ of mandamus is most frequently applied, in order to prevent a defect or failure of justice."
In re Horan, 271 Va. at 260, 634 S.E.2d at 677 (quoting Cowan v.
Fulton, 64 Va. (23 Gratt.) 579, 584 (1873)). See, e.g., Page,
71 Va. (30 Gratt.) at 428 ("If a judge . . . refuses to sign a
proper bill, or to proceed to settle the matter of a bill
objected to, he may, in either case, be compelled by mandamus to
act" (emphasis removed)); Kent, Pain & Co. v. Dickinson, 66 Va.
(25 Gratt.) 817, 823 (1875) ("It is well settled that
applications for a mandamus to a subordinate court are warranted
by the principles and usages of law in cases where the
subordinate court having jurisdiction of a case refuses to hear
and decide the controversy.").
24 Applying these principles, therefore, Stamos was entitled
to a writ of mandamus compelling Judge Kelley to enter judgment
on the charge of driving while intoxicated. Although Nobles
entered a guilty plea to that charge as noted by Judge Kelley on
the warrant, Judge Kelley did not enter judgment on that plea as
he was required to do. See Code § 19.2-258 ("In all cases of a
misdemeanor upon a plea of guilty, tendered in person by the
accused or his counsel, the court shall hear and determine the
case without the intervention of a jury."). Judge Kelley's
refusal to adjudicate the case undermined the "roles that are
uniquely allocated to the [three branches of government]."
Moreau, 276 Va. at 136, 661 S.E.2d at 846. See Ex parte United
States, 242 U.S. at 42 ("[T]he possession by the judicial
department of power to permanently refuse to enforce a law would
result in the destruction of the conceded powers of the other
departments and hence leave no law to be enforced.").
Since there had been no disposition on the charge of
driving while intoxicated when the circuit court entered its
order, however, I would remand this case and instruct the
circuit court to issue a writ of mandamus directing Judge Kelley
to rule upon the charge of driving while intoxicated in
violation of Code § 18.2-266, and to impose sentencing as
required by law.