William L. Respess v. VMI Alumni Association
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Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Causey and Raphael PUBLISHED
Argued at Lexington, Virginia
WILLIAM L. RESPESS, ET AL. OPINION BY v. Record No. 1290-23-3 JUDGE STUART A. RAPHAEL JUNE 25, 2024 VMI ALUMNI ASSOCIATION
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Christopher B. Russell, Judge
Paul McCourt Curley (Six East Law Group – Curley Law Firm, PLLC, on briefs), for appellants.
Michael E. Derdeyn (Matt Von Schuch; Flora Pettit, PC, on brief), for appellee.
Four alumni of the Virginia Military Institute sued the VMI Alumni Association under
the Virginia Nonstock Corporation Act to force the Association to give them the email addresses
of their fellow members. The Act requires nonstock corporations like the Association to
maintain a “record of members that includes the names and addresses of all members.” Code
§ 13.1-932(C). The Association collects its members’ email addresses. And Code
§ 13.1-933(B)(3) entitles persons who have been members for more than six months and who
have a proper purpose to inspect and copy “[t]he record of members.” The Association denied
petitioners’ request, arguing (among other things) that Code § 13.1-933(B)(3) does not require
nonstock corporations to disclose their members’ email addresses. The trial court agreed and
dismissed the petition.
We affirm. Subsection (E)(2) of Code § 13.1-933 makes clear that the Act does not limit
the power of a court to enforce a member’s common-law right to inspect and copy the corporation’s records, which could include the email addresses of its members. But petitioners
here limited their claim to enforcing only their statutory rights. And we agree with the trial court
that a member’s statutory right to inspect the record of members does not extend to the members’
email addresses.
BACKGROUND
The VMI Alumni Association is a Virginia nonstock corporation that consists of roughly
20,000 alumni of the Virginia Military Institute. Its records hold “very detailed” information
about every alumnus, including their graduation year, rank, employment history, and other
confidential information. The Association’s primary method of communicating with its
members is by email.
The four petitioners are alumni of VMI and long-standing and active members of the
Association. Two are graduates of the Class of 1961: William L. Respess and Salvatore J.
Vitale, Jr. Two are graduates of the Class of 1974: Ronald M. Stelmasczyk and Mark W.
Prentice.
In March 2023, citing Code §§ 13.1-845(B) and 13.1-933(B), petitioners requested the
Association in writing to provide an electronic copy of “the record of members” that included
“their email addresses.”1 Respess and Vitale wrote that they needed the email addresses “to
solicit alumni participation in person at the upcoming Annual Meeting of the Members . . . to
elect new members of the Board.” They said that Vitale wanted “to be elected to the Board and
require[d] the list to promote his candidacy.” They noted that the Board’s decision in 2019 to
eliminate voting by proxy warranted alerting Association members that they needed to appear in
person for the upcoming meeting in Lexington. Stelmasczyk and Prentice signed a similar
1 “The right to copy records under § 13.1-933 includes, if reasonable, the right to receive copies by xerographic or other means, including copies through an electronic transmission if available and so requested by the member.” Code § 13.1-934(B). -2- request stating that they intended to use the list to communicate with fellow members “on issues
we feel are important to the Membership and [to] build consensus on these issues regarding the
Alumni Association’s operations and VMI.”
The Association answered that it would make available a paper copy of the names and
mailing addresses of its members. The printout would be 400 pages long. But on “advice of
counsel,” the Association refused to provide email addresses, which it said were not required to
be disclosed to members under Code § 13.1-933(B). The Association also wrote that petitioners
had not shown a proper purpose. It expressed concern that disclosing members’ email addresses
could lead to “general communications” from petitioners that “could cause confusion and unrest
among the alumni and potential harm to VMI.”
On April 25, 2023, the four alumni filed a verified petition for mandamus seeking to
compel the Association to produce an electronic copy of the record of members that included
members’ email addresses. They asserted inspection rights under Code §§ 13.1-845(B) and
13.1-933(B) and (C). Petitioners requested that the court “enter an order permitting inspection
and copying of the record of members, to include the members’ names, physical addresses, and
email addresses and that such information be transmitted in electronic form.” Petitioners also
sought attorney fees under Code § 13.1-935(C), production of the email addresses as part of the
members’ list for the upcoming meeting on May 6, and an order under Code § 13.1-845(D)
postponing that meeting until the list was provided. Petitioners did not assert any right of
inspection under Virginia common law.
The Association filed a verified opposition to the petition, arguing that the record of
members that it was required to produce did not have to include members’ email addresses. The
Association also claimed that petitioners had failed to establish a “proper purpose” for having
member email addresses.
-3- Applications under Code § 13.1-933(B) and (C) must be heard “on an expedited basis,”
Code § 13.1-935(B), and the trial court promptly conducted an evidentiary hearing on May 4,
2023, two days before the scheduled alumni meeting in Lexington. The trial court heard
testimony from the Association’s CEO and from Respess. The court made no findings about
whether petitioners had a proper purpose to request the email addresses. Instead, the court
concluded that neither “Code § 13.1-845 nor . . . § 13.1-933 require that a Virginia nonstock
corporation provide or disclose the electronic mail addresses of its members.” The court entered
a final order dismissing the petition, and petitioners noted a timely appeal.
ANALYSIS
Virginia law distinguishes between stock corporations governed by the Virginia Stock
Corporation Act (Code §§ 13.1-601 to -792) and nonstock corporations governed by the Virginia
Nonstock Corporation Act (Code §§ 13.1-801 to -946). A “shareholder” of a stock corporation
typically has an equity interest in the company, Code § 13.1-603, while a “member” of a
nonstock corporation has no ownership interest but may have certain rights associated with
membership, including voting rights, Code § 13.1-803. See generally 1 Marilyn E. Phelan,
Nonprofit Organizations: Law & Taxation §§ 1:1, 1:2 (2010).
Whether a member or shareholder has the right to inspect and copy the email addresses of
the corporation’s other members or shareholders presents a question of law that we review de
novo. Berry v. Bd. of Supervisors, 302 Va. 114, 127 (2023). This question is a subset of the
larger question about the rights of a member or shareholder to inspect a corporation’s books and
records. There are two sources for such rights: the common law and the Code of Virginia. We
summarize the legal history of those rights before turning to whether a nonstock corporation
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COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Causey and Raphael PUBLISHED
Argued at Lexington, Virginia
WILLIAM L. RESPESS, ET AL. OPINION BY v. Record No. 1290-23-3 JUDGE STUART A. RAPHAEL JUNE 25, 2024 VMI ALUMNI ASSOCIATION
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Christopher B. Russell, Judge
Paul McCourt Curley (Six East Law Group – Curley Law Firm, PLLC, on briefs), for appellants.
Michael E. Derdeyn (Matt Von Schuch; Flora Pettit, PC, on brief), for appellee.
Four alumni of the Virginia Military Institute sued the VMI Alumni Association under
the Virginia Nonstock Corporation Act to force the Association to give them the email addresses
of their fellow members. The Act requires nonstock corporations like the Association to
maintain a “record of members that includes the names and addresses of all members.” Code
§ 13.1-932(C). The Association collects its members’ email addresses. And Code
§ 13.1-933(B)(3) entitles persons who have been members for more than six months and who
have a proper purpose to inspect and copy “[t]he record of members.” The Association denied
petitioners’ request, arguing (among other things) that Code § 13.1-933(B)(3) does not require
nonstock corporations to disclose their members’ email addresses. The trial court agreed and
dismissed the petition.
We affirm. Subsection (E)(2) of Code § 13.1-933 makes clear that the Act does not limit
the power of a court to enforce a member’s common-law right to inspect and copy the corporation’s records, which could include the email addresses of its members. But petitioners
here limited their claim to enforcing only their statutory rights. And we agree with the trial court
that a member’s statutory right to inspect the record of members does not extend to the members’
email addresses.
BACKGROUND
The VMI Alumni Association is a Virginia nonstock corporation that consists of roughly
20,000 alumni of the Virginia Military Institute. Its records hold “very detailed” information
about every alumnus, including their graduation year, rank, employment history, and other
confidential information. The Association’s primary method of communicating with its
members is by email.
The four petitioners are alumni of VMI and long-standing and active members of the
Association. Two are graduates of the Class of 1961: William L. Respess and Salvatore J.
Vitale, Jr. Two are graduates of the Class of 1974: Ronald M. Stelmasczyk and Mark W.
Prentice.
In March 2023, citing Code §§ 13.1-845(B) and 13.1-933(B), petitioners requested the
Association in writing to provide an electronic copy of “the record of members” that included
“their email addresses.”1 Respess and Vitale wrote that they needed the email addresses “to
solicit alumni participation in person at the upcoming Annual Meeting of the Members . . . to
elect new members of the Board.” They said that Vitale wanted “to be elected to the Board and
require[d] the list to promote his candidacy.” They noted that the Board’s decision in 2019 to
eliminate voting by proxy warranted alerting Association members that they needed to appear in
person for the upcoming meeting in Lexington. Stelmasczyk and Prentice signed a similar
1 “The right to copy records under § 13.1-933 includes, if reasonable, the right to receive copies by xerographic or other means, including copies through an electronic transmission if available and so requested by the member.” Code § 13.1-934(B). -2- request stating that they intended to use the list to communicate with fellow members “on issues
we feel are important to the Membership and [to] build consensus on these issues regarding the
Alumni Association’s operations and VMI.”
The Association answered that it would make available a paper copy of the names and
mailing addresses of its members. The printout would be 400 pages long. But on “advice of
counsel,” the Association refused to provide email addresses, which it said were not required to
be disclosed to members under Code § 13.1-933(B). The Association also wrote that petitioners
had not shown a proper purpose. It expressed concern that disclosing members’ email addresses
could lead to “general communications” from petitioners that “could cause confusion and unrest
among the alumni and potential harm to VMI.”
On April 25, 2023, the four alumni filed a verified petition for mandamus seeking to
compel the Association to produce an electronic copy of the record of members that included
members’ email addresses. They asserted inspection rights under Code §§ 13.1-845(B) and
13.1-933(B) and (C). Petitioners requested that the court “enter an order permitting inspection
and copying of the record of members, to include the members’ names, physical addresses, and
email addresses and that such information be transmitted in electronic form.” Petitioners also
sought attorney fees under Code § 13.1-935(C), production of the email addresses as part of the
members’ list for the upcoming meeting on May 6, and an order under Code § 13.1-845(D)
postponing that meeting until the list was provided. Petitioners did not assert any right of
inspection under Virginia common law.
The Association filed a verified opposition to the petition, arguing that the record of
members that it was required to produce did not have to include members’ email addresses. The
Association also claimed that petitioners had failed to establish a “proper purpose” for having
member email addresses.
-3- Applications under Code § 13.1-933(B) and (C) must be heard “on an expedited basis,”
Code § 13.1-935(B), and the trial court promptly conducted an evidentiary hearing on May 4,
2023, two days before the scheduled alumni meeting in Lexington. The trial court heard
testimony from the Association’s CEO and from Respess. The court made no findings about
whether petitioners had a proper purpose to request the email addresses. Instead, the court
concluded that neither “Code § 13.1-845 nor . . . § 13.1-933 require that a Virginia nonstock
corporation provide or disclose the electronic mail addresses of its members.” The court entered
a final order dismissing the petition, and petitioners noted a timely appeal.
ANALYSIS
Virginia law distinguishes between stock corporations governed by the Virginia Stock
Corporation Act (Code §§ 13.1-601 to -792) and nonstock corporations governed by the Virginia
Nonstock Corporation Act (Code §§ 13.1-801 to -946). A “shareholder” of a stock corporation
typically has an equity interest in the company, Code § 13.1-603, while a “member” of a
nonstock corporation has no ownership interest but may have certain rights associated with
membership, including voting rights, Code § 13.1-803. See generally 1 Marilyn E. Phelan,
Nonprofit Organizations: Law & Taxation §§ 1:1, 1:2 (2010).
Whether a member or shareholder has the right to inspect and copy the email addresses of
the corporation’s other members or shareholders presents a question of law that we review de
novo. Berry v. Bd. of Supervisors, 302 Va. 114, 127 (2023). This question is a subset of the
larger question about the rights of a member or shareholder to inspect a corporation’s books and
records. There are two sources for such rights: the common law and the Code of Virginia. We
summarize the legal history of those rights before turning to whether a nonstock corporation
must disclose its members’ email addresses to a member who requests them.
-4- I. The common law and the Code of Virginia govern a Virginia corporation’s obligation to disclose member or shareholder email addresses.
A. Inspection rights under the common law
Under Code § 1-200, the common law of England continues “in full force” in Virginia
and provides the “rule of decision, except as altered by the General Assembly.” Although we
have noted the “continuing uncertainty about whether 1776 or 1792 ‘fixes the date of the
Commonwealth’s adoption of English common law,’” Butler v. Stegmaier, 77 Va. App. 115, 135
(2023) (quoting White v. United States, 300 Va. 269, 277 n.5 (2021)), that date does not matter
here.
Long before 1776, English common law recognized the qualified right of a shareholder to
inspect the corporation’s books and records. See, e.g., Rex v. Fraternity of Hostmen, 2 Str. 1223,
1223, 93 Eng. Rep. 1144, 1144 (K.B. 1745) (“[E]very member of the corporation had, as such, a
right to look into the books for any matter that concerned himself, though it was in a dispute with
others . . . .”); Gery v. Hopkins, 7 Mod. 129, 129, 87 Eng. Rep. 1142, 1142 (Q.B. 1702) (ordering
company to produce its books, “it being a cause between parties having stock there”); see also In
re Steinway, 53 N.E. 1103, 1105 (N.Y. 1899) (collecting cases); 5A William Meade Fletcher,
Fletcher Cyclopedia of the Law of Corporations § 2214, at 269 (2020) (“The common-law rule
was recognized in the early English decisions.”).
“When our ancestors migrated to America, they brought with them the common law of”
England. Livingston v. Jefferson, 15 F. Cas. 660, 665 (C.C.D. Va. 1811) (No. 8,411) (opinion of
Marshall, C.J.). As the United States Supreme Court said more than a century ago, “[t]here can
be no question that the decisive weight of American authority recognizes the common law right
of the shareholder, for proper purposes and under reasonable regulations as to place and time, to
inspect the books of the corporation of which he is a member.” Guthrie v. Harkness, 199 U.S.
148, 153 (1905); see Fletcher Cyclopedia of the Law of Corporations, supra, § 2214, at 265
-5- (“The general rule at common law is that all shareholders of a corporation have the right, by
reason of their interest therein, to inspect and examine the books and records of the corporation
at reasonable times and places and for proper purposes.”).
The Supreme Court observed in Guthrie that “[i]n many of the States this right has been
recognized in statutes which [were] generally held to be merely in affirmance of the common
law.” 199 U.S. at 153. “The books are not the private property of the directors or managers, but
are the records of their transactions as trustees for the stockholders.” Id. at 154 (quoting Huylar
v. Cragin Cattle Co., 2 A. 274, 278 (N.J. Ch. 1885)). The Court said that “[t]he right of
inspection rests upon the proposition that those in charge of the corporation are merely the agents
of the stockholders who are the real owners of the property.” Id. at 155.2
In Virginia, before “1956, a shareholder’s right to compel production of corporate records
was governed by common law principles.” Retail Prop. Invs., Inc. v. Skeens, 252 Va. 36, 40
(1996). A Virginia shareholder enjoyed the right “to inspect corporate books and records at a
proper time and place and for a proper purpose.” Bank of Giles Cnty. v. Mason, 199 Va. 176,
181 (1957). That right, however, “is not absolute and uncontrolled but must be exercised in
good faith and for some reasonable purpose germane to his interest as a stockholder.” Id.
By the start of the 20th century, Virginia’s statutes governing corporations had still not
addressed shareholder inspection rights, did not require corporations to maintain a record of the
names and addresses of shareholders, and did not distinguish between stock and nonstock
2 Guthrie held that a federal law governing national banks did not bar a common-law action by a shareholder to inspect records for a proper purpose. 199 U.S. at 156. The Court recognized that such a right “may be abused,” but it concluded that “[t]he possibility of the abuse of a legal right affords no ground for its denial.” Id. at 155-56. Rather, the trial judge, in determining whether to grant access, must “exercise a sound discretion and grant the right under proper safeguards to protect the interests of all concerned.” Id. at 156. “The writ should not be granted for speculative purposes or to gratify idle curiosity or to aid a blackmailer, but it may not be denied to the stockholder who seeks the information for legitimate purposes.” Id. -6- corporations. See Code of 1887, tit. 17, ch. 46, §§ 1068 to 1105; Code of 1849, tit. 17, ch. 56,
§§ 1-28. That changed in 1903, when the General Assembly required for the first time that
“[e]very stockholder . . . furnish to the secretary of such corporation . . . the address to which
notice . . . may be mailed,” and further required the secretary to “keep a register of the address of
each stockholder so furnished.” 1903 Va. Acts ch. 270, ch. IV, § 49 at 481.3 That provision was
carried forward in later codes. See Code of 1904, § 1105e(49); Code of 1919, § 3829; Code of
1942, § 3829; Code of 1950, § 13-199. The 1903 law also provided for the chartering of
nonstock corporations, permitting three or more members to incorporate (among other
benevolent endeavors) “an alumni association . . . in which no capital stock is required.” 1903
Va. Acts ch. 270, ch. IV, § 1 at 461.
B. The 1956 amendments to the Stock Corporation and Nonstock Corporation Acts
In 1956, the General Assembly completely rewrote the Virginia corporation code. See
1956 Va. Acts ch. 428 (codified at Code §§ 13.1-1 through 13.1-527). “The new corporate law
was adopted following a study by the Code Commission of Virginia at the direction of the
General Assembly.” Video Eng’g Co. v. Foto-Video Elecs., 207 Va. 1027, 1029 (1967); see
House Doc. No. 5, Report by the Code Commission of Virginia for Revision of the Laws Relating
to Corporations (1956) [“1956 House Doc.”]. “An exhibit filed with the report of the Code
Commission stated that the Model Business Corporation Act [“Model Act”] prepared by the
American Bar Association Committee on Corporate Laws was the basis of the proposed revision
of the corporate laws.” Video Eng’g, 207 Va. at 1029; see 1956 House Doc., supra, at 3-4. Our
1956 law was thus “patterned on” the Model Act. O’Brien v. Socony Mobil Oil Co., 207 Va.
3 The 1903 “Act concerning corporations” was enacted the year after ratification of the Constitution of 1902, which barred the General Assembly from granting private corporate charters and created and empowered the State Corporation Commission to grant corporate charters going forward. See Va. Const. art. IV, § 63(17) (1902); id. art. XII §§ 154, 156(a). -7- 707, 710 (1967); see also Fisher v. Tails, Inc., 289 Va. 69, 75 (2015) (“tracks closely”); Hill v.
Hill, 227 Va. 569, 577 & n.2 (1984) (“based upon”); White v. Perkins, 213 Va. 129, 134 (1972)
(“suggested by”).
The Virginia Nonstock Corporation Act, in turn, was “drawn from the [ABA’s] Model
Non-Profit Corporation Act.” George D. Gibson, The Virginia Corporation Law of 1956, 42
Va. L. Rev. 445, 450 (1956).4 But the provisions were “almost precisely parallel to the stock
corporation provisions, with variations only where necessary or desirable because of the
membership aspect.” Id.
The 1956 law included a “Books and Records” provision in both the Stock Corporation
Act and the Nonstock Corporation Act. See 1956 Va. Acts ch. 428 (Code §§ 13.1-47, 13.1-228).
Both provisions carried forward the 1903 requirement that the corporation keep a record of the
“names and addresses” of the stockholders or members entitled to vote. Id. But the statutory
information rights differed slightly for stock and nonstock corporations.
The 1956 Stock Corporation Act in Code § 13.1-47 gave shareholders the statutory right
to inspect the “books and records of account, minutes and record of stockholders,” provided the
shareholder either (i) held shares “for at least six months immediately preceding his demand,” or
(ii) held “at least” 5% of the outstanding shares, and (in either case) provided further that the
shareholder had a “proper purpose” and had made a “written demand stating the purpose.” Our
Supreme Court twice noted that this provision “[did] not materially differ from the rules of the
common law with respect to the rights of a stockholder to inspect the books and records of a
corporation. Such statutes are generally held to be merely in affirmance of the common law.”
4 For the current version, see Nonprofit Organization Committee, Model Nonprofit Corporation Act (4th ed. 2022). -8- Skeens, 252 Va. at 40-41 (quoting Bank of Giles, 199 Va. at 181). What is more, Code § 13.1-47
provided a saving clause to preserve common-law inspection rights:
Nothing herein contained shall impair the power of any court of competent jurisdiction, upon proof by a stockholder of proper purpose, irrespective of the period of time during which such stockholder shall have been a stockholder of record, and irrespective of the number of shares held by him to compel the production for examination . . . of the books and records of account, minutes, and record of stockholders of a corporation.
Id.5
The parallel provision in the 1956 Nonstock Corporation Act provided broader inspection
rights: “All books and records of a corporation may be inspected by any member . . . for any
proper purpose at any reasonable time.” 1956 Va. Acts ch. 428 (Code § 13.1-228) (emphases
added).
In the decades that followed, the ABA’s Committee on Corporate Laws made “periodic
amendments to the Model Act, including a complete revision in 1984 and a second revision in
2016. Virginia was the first state to adopt the 1984 revision and in the spring of 2019 became
one of the first states to adopt the 2016 revision.” Allen C. Goolsby & Steven M. Haas, Goolsby
Cf. White v. United States, 300 Va. 269, 275 n.3 (2021) (“Under settled principles, 5
‘[t]he common law will not be considered as altered or changed by statute unless the legislative intent is plainly manifested. A statutory change in the common law is limited to that which is expressly stated or necessarily implied because the presumption is that no change was intended.’” (quoting Boyd v. Commonwealth, 236 Va. 346, 349 (1988))); Crosby v. ALG Tr., LLC, 296 Va. 561, 570 (2018) (“[T]his Court has repeatedly admonished that, where a statute does not expressly or by necessary implication change the common law, that statute is ‘to be read “in conjunction with the common law, giving effect to both.”’” (quoting Cherry v. Lawson Realty Corp., 295 Va. 369, 377 (2018))); Artis v. Commonwealth, 76 Va. App. 393, 402 (2023) (“The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.” (quoting Wicks v. City of Charlottesville, 215 Va. 274, 276 (1974))). -9- & Haas on Virginia Corporations ix (7th ed. 2022).6 Those bills, discussed below, both bear on
the inspection rights at issue here.
C. The 1985 amendments to the Stock Corporation and Nonstock Corporation Acts
In its 1985 report to the General Assembly, the Code Commission recommended revising
both the Virginia Stock Corporation Act and the Nonstock Corporation Act. See Report of the
Virginia Code Commission on the Revision of Chapters 1 and 2 of Title 13.1 of the Code of
Virginia, H. Doc. No. 13, at 2-3 (1985) [“1985 Code Commission Report”]. The report
presented a section-by-section commentary. Id. at 6-157. It also appended a section-by-section
analysis of the Stock Corporation Act by a “special joint committee of the business law sections
of the Virginia State Bar and the Virginia Bar Association.” Goolsby & Haas, supra, at ix; see
1985 Code Commission Report at 200.
The 1985 amendments required both stock and nonstock corporations to maintain a
“record” of shareholders or members “in a form that permits preparation of a list of the names
and addresses.” 1985 Va. Acts ch. 522, at 928 (Code § 13.1-770(C)); id. at 971 (Code
§ 13.1-932(C)). Both types of corporations needed to produce a “list” for meetings that
identified (among other things) the persons “entitled to vote at such meeting” and their
“address.” Id. at 888 (Code § 13.1-661(A)); id. at 945 (Code § 13.1-845(A)).
The inspection rights of shareholders in stock corporations were placed in Code
§ 13.1-771, and inspection rights of nonstock-corporation members in § 13.1-933. The two
provisions were substantially similar. Compare 1985 Va. Acts ch. 522, at 928-29, with id. at
972. They were based on “Model Act § 16.02 except for [one subsection] that [was] taken from
Virginia Code § 13.1-47.” 1985 Code Commission Report at 99. Code § 13.1-771 carried
6 As of November 2023, 35 States and the territory of Guam had enacted some version of the Model Act. See Committee on Corporate Laws, MBCA Enactments by States (Nov. 13, 2023) (collecting statutes), https://perma.cc/BGD3-7Q4L. - 10 - forward the 1956 provision conditioning statutory inspection rights on the shareholder’s having
held stock for six months or owning at least 5% of the shares. Id. Since nonstock corporation
members do not own shares, Code § 13.1-933 in the Nonstock Corporation Act conditioned
statutory inspection rights simply on the member’s having “been a member for a least six months
immediately preceding his demand.” 1985 Va. Acts ch. 522, at 972 (Code § 13.1-933(C)(1)).
Subsection (C) of both provisions imposed additional conditions: the demand must have been
“made in good faith and for a proper purpose”; the requestor must describe “with reasonable
particularity” his “purpose and the records he desires to inspect”; and the records must be
“directly connected with his purpose.” Id. at 928-29 (Code § 13.1-771(C)(1)-(4)), 972 (Code
§ 13.1-933(C)(1)-(4)).
Both statutes also included a saving clause like the one in the prior Stock Corporation
Act. Subsection (E)(2) (the “Saving Clause”) of both Code § 13.1-771 and Code § 13.1-933
stated that “This section does not affect . . . (2) The power of a court, independently of this
chapter, to compel the production of corporate records for examination.” 1985 Va. Acts ch. 522,
at 929 (Code § 13.1-771(E)(2)); id. at 972 (Code § 13.1-933(E)(2)). As the Joint Bar Committee
noted, the Saving Clause was “thought to preserve the common law inspection rights of a
shareholder.” 1985 Code Commission Report at 288. Accord Model Business Corporation Act
(1984 Revision), § 16.02 cmt. 4 (stating that § 16.02(e) of the 1984 Model Act “provides that the
right of inspection granted by § 16.02 is an independent right of inspection that is not a substitute
for or in derogation of rights of inspection that may exist . . . as a ‘common law’ right of
inspection . . . . Section 16.02(e) simply preserves whatever independent right of inspection
exists under these sources”), https://perma.cc/6EXM-HFVE.7
7 Virginia did not adopt all of the provisions of the 1984 Model Act. For instance, the General Assembly “rejected § 8.30,” governing a director’s duty of care. Willard v. Moneta
- 11 - D. The 2019 amendments to the Virginia Stock Corporation Act
The ABA’s Corporate Laws Committee revised the Model Act again in 2016, “based on
the 1984 version,” but incorporating “amendments . . . [that] had been published in supplements”
since then. See Corporate Laws Committee, Model Business Corporation Act (2016 Revision), at
v (ABA 2016) [“2016 MBCA Revision”]. The drafters hoped that the 2016 revision would
“encourage state legislatures—in states that have already adopted all or a substantial part of the
Model Act and in other states as well—to consider adopting the Model Act in full.” Id. at 6.
The 2016 revision contained many changes, some small, some large.
Two of the smaller changes are at issue here. They clarified that a corporation did not
have to include shareholder email addresses either in shareholder lists prepared for a shareholder
meeting or in the corporation’s record of shareholders.8
Bldg. Supply, Inc., 258 Va. 140, 151 (1991); see also Fisher, 289 Va. at 75 (“While the General Assembly has incorporated most of the MBCA’s appraisal rights provisions into Virginia Code § 13.1-730, it has not incorporated the MBCA’s provision granting appraisal rights to shareholders in the event of a change in corporate domicile.”). 8 The amendment to Model Act § 7.20 (“Shareholders’ List for Meeting”) added to subsection (a): “Nothing contained in this subsection shall require the corporation to include on such list the electronic mail address or other electronic contact information of a shareholder.” 2016 MBCA Revision at 7-21. Similarly, the amendment to Model Act § 16.01 (“Corporate Records”), added to subsection (d): “Nothing contained in this subsection shall require the corporation to include in such record the electronic mail address or other electronic contact information of a shareholder.” Id. at 16-2. - 12 - In 2019, the General Assembly amended the Virginia Stock Corporation Act to
incorporate the 2016 Model Act revisions. 2019 Va. Acts ch. 734.9 Those changes included
verbatim the email-address amendments in §§ 7.20(a) and 16.01(d) of the 2016 Model Act.10
The 2019 bill kept the Saving Clause in Code § 13.1-771 in the Stock Corporation Act
but moved it to subsection (F)(2). 2019 Va. Acts ch. 734, at 1693.11 Because conforming
changes to the Nonstock Corporation Act have not been enacted, the Saving Clause there
remains as subsection (E)(2) of Code § 13.1-933.12
9 The sponsor explained on second reading in the House that the bill “updates and modernizes the Virginia Stock Corporation Act to conform to the many provisions of the 2016 revision of the Model Business Corporation Act prepared by the American Bar Association’s Business Law Section.” Statement of Del. Kilgore, House of Delegates (Feb. 4, 2019), https://tinyurl.com/2fn7sexe, at 12:39:28 p.m. 10 See 2019 Va. Acts ch. 734, at 1632 (Code §§ 13.1-661(A)) (“Nothing contained in this subsection shall require the corporation to include on such list the electronic mail address or other electronic contact information of a shareholder.”); id. at 1693 (Code § 13.1-770(C)) (“Nothing contained in this subsection shall require the corporation to include in such record the electronic mail address or other electronic contact information of a shareholder.”). 11 That change accommodated the addition of new subsection E, providing that “The corporation may enforce reasonable restrictions on the confidentiality, use, or distribution of records described in subsection C.” 2019 Va. Acts ch. 734, at 1693. 12 In a departure from the 2016 Model Act, the 2019 Virginia amendment to Code § 13.1-771 in the Stock Corporation Act limited the Saving Clause for common-law inspection rights to “any corporation that is not a public corporation.” 2019 Va. Acts ch. 734 (Code § 13.1-771(G)(2)) (emphasis added). A “public corporation” is “a corporation that has shares listed on a national securities exchange or regularly traded in a market maintained by one or more members of a national or affiliated securities association.” Code § 13.1-603. As Goolsby and Haas explain, “Because public corporations have a duty to disclose material information to shareholders under federal law, only shareholders of privately held corporations should need the additional protection provided by the exception.” Goolsby & Haas, supra, § 18.1, at 439. They conclude that the Saving Clause for common-law inspection rights under the 2019 amendment applies only “to corporations that are not publicly owned.” Id. As that issue is not presented here, however, we express no opinion on whether the 2019 amendment extinguished shareholders’ common-law rights to inspect the records of a “public corporation.” - 13 - II. Code §§ 13.1-845(A) and 13.1-933(B) do not require nonstock corporations to disclose member email addresses to requesting members.
Petitioners claim that if a Virginia nonstock corporation decides to collect its members’
email addresses, as the Association has done here, the corporation must
• disclose the members’ email addresses as part of the “members’ list” required to
be produced for member meetings under Code § 13.1-845(A), and
• include the members’ email addresses in the “record of its members,” which is
subject to disclosure to members who request it under Code §§ 13.1-932(C)
and -933(B)(3).
Oral argument identified three possible theories for that claim, and we address them in turn.
A. The term “address” does not mean “email address.”
The first theory posits that “address” in Code §§ 13.1-845(A) and -932(C) includes a
member’s email address as well as any physical or postal mailing address. At oral argument,
however, petitioners expressly disclaimed that theory. And for good reason. As shown above,
the requirement for a corporation to maintain shareholder or member addresses dates to 1903,
when address meant “the address to which notice . . . of every kind may be mailed.” See 1903
Va. Acts ch. 270, § 49. It took nearly another century for electronic mail to be invented and then
become a standard means of communication.13 Yet the Virginia Nonstock Corporation Act has
not been amended to specify that a member’s “address” must or should include an email address.
That omission is conspicuous, given that the General Assembly has amended other provisions of
the Act to facilitate electronic transmissions of notices and other communications. See 2010 Va.
Acts ch. 171.
13 E.g., Martin Campbell-Kelly & Daniel D. Garcia-Swartz, The History of the Internet: The Missing Narratives, 28 J. of Info. Tech. 18, 20, 27-28 (2013). - 14 - The dissent offers its own variation of this theory, but we find it implausible. The dissent
would hold that “addresses” in Code § 13.1-932(C)) includes “every address kept” for every
member, including email addresses. Infra at 28. Even if petitioners had come up with this
theory on their own, we would think it unsound. The theory requires penciling in the word all
before addresses in Code § 13.1-932(C). But the statute requires “a list of the names and
addresses of all members,” not “a list of the names and [all] addresses of all members,” as the
dissent would rewrite it. The dissent offers no sound rationale to make sense of this novel
requirement. We fail to see the point of requiring a corporation to disclose upon request all
addresses of each shareholder and member, including work addresses, home addresses, vacation
addresses, email addresses, and any other addresses where the shareholder or member might be
found.
B. Statutory inspection rights do not include all member information in the corporation’s records.
The second theory is petitioners’ main argument. Petitioners claim that any member
information collected by a nonstock corporation—including member email addresses—must be
disclosed as part of the “members’ list” under Code § 13.1-845(B), and as part of the “record of
members” under Code § 13.1-933(B)(4). Petitioners could not identify any court in the country
that has reached that conclusion. The Association recoils at petitioners’ broad construction,
which it fears would require it to disclose confidential alumni information. The Association tells
us that other VMI-related associations share alumni information with it, so the Association does
not necessarily own the information itself. The Association also worries that the threat of
disclosure would chill alumni from sharing their confidential information in the first place.
We find no support for petitioners’ theory in the text of Code § 13.1-845 governing the
“members’ list.” The members’ list is “an alphabetical list of the names of all [the corporation’s]
members who are entitled to notice of a members’ meeting.” Code § 13.1-845(A). The list must - 15 - “be arranged by voting group[] and show the address of each member.” Id. The corporation
must make the members’ list “available for inspection by any member, beginning two business
days after notice of the meeting is given for which the list was prepared and continuing through
the meeting.” Code § 13.1-845(B). Petitioners cannot point to any language in Code § 13.1-845
that suggests that all information a corporation keeps about its members must also be included in
the members’ list produced for a member meeting. The function of the members’ list is obvious.
It shows who is a member entitled to vote at the upcoming meeting. It is not a vehicle to
discover all other information about a member that may happen to reside in the corporation’s
files.
Petitioners’ argument is more plausible about the record of members described in Code
§§ 13.1-932(C) and -933(B)(3), but we ultimately find it unpersuasive. Code § 13.1-932(C)
requires every nonstock corporation to “maintain a record of its members, in a form that permits
preparation of a list of the names and addresses of all members, in alphabetical order by class, if
any.” Members who qualify for statutory-inspection rights under Code § 13.1-933(C) are then
“entitled to inspect and copy . . . (3) The record of members.” Code § 13.1-933(B)(3).
Petitioners read record of members broadly to include any information that the
corporation chooses to keep about a member. To petitioners, anything in a corporation’s records
about members must be disclosed. By contrast, the Association reads record of members as a
term of art to mean simply the “list of the names and addresses of all members, in alphabetical
order by class, if any.”14
14 The CEO described the “very detailed” alumni records kept by the Association, but he did not call it the “record of members.” He and the parties referred to the electronic recordkeeping system instead as “VMI Ranks.” And the evidence showed that the member list containing the members’ names and addresses could be produced from the VMI Ranks database. In other words, VMI Ranks “maintain[s] a record of its members[] in a form that permits preparation of a list of the names and addresses of all members,” Code § 13.1-932(C), as the statute requires. - 16 - The Association has the better reading. If the General Assembly had intended
petitioners’ reading, it would have written the statute differently. It would have required
nonstock corporations in Code § 13.1-932(C) to maintain a record of members that includes the
names and addresses of all members. Then a member would be entitled under Code
§ 13.1-933(B)(3)—if the “demand is made in good faith and for a proper purpose,” Code
§ 13.1-933(C)(2)—to inspect the entire record of members, which would include but not be
limited to the names and addresses of members.
Instead, the General Assembly required corporations to “maintain a record of its
members, in a form that permits preparation of a list of the names and addresses of all members,
in alphabetical order by class, if any.” Code § 13.1-932(C) (emphasis added). The statutory text
speaks to the function of what must be produced for inspection. The records must be maintained
in a way that enables the corporation to produce the required list. In other words, the “record of
members” that Code § 13.1-933(B)(3) entitles a nonstock-corporation member to inspect is
simply the “record of its members” that § 13.1-932(C) requires the corporation to maintain for
the purpose of producing the “list of the names and addresses of its members.” It is not a generic
term to describe all member information residing in the corporation’s files.
This interpretation has the added benefit of avoiding the dangers of over-disclosure
posited by the Association from granting statutory rights to inspect anything and everything that
might be found in the corporation’s confidential records about its members. Petitioners disclaim
wanting such far-reaching information; they just want member email addresses. But they offer
no limiting principle to cabin the broad sweep of the statutory inspection rights they assert here.
C. The 2019 amendment to the Stock Corporation Act did not implicitly amend the Nonstock Corporation Act.
Petitioners also posit that member-email addresses must be disclosed to requesting
members because the General Assembly amended the Stock Corporation Act in 2019 to negate - 17 - such a claim without making the same change to the Nonstock Corporation Act. The dissent
embraces that argument too. Infra at 24. But we are not persuaded.
As described above, the 2019 amendments to the Stock Corporation Act implemented the
ABA Corporate Law Committee’s changes in the 2016 Model Act. Those changes made clear
that a stock corporation does not have to include shareholder email addresses either in the
shareholder list prepared for a shareholder’s meeting, Code § 13.1-661(A), or in the record of
shareholders that must be maintained under § 13.1-770(C), and produced to requesting
shareholders under § 13.1-771(C)(3). No parallel amendments were made to the Nonstock
Corporation Act. So petitioners invite us to infer that the legislature must have intended
nonstock corporations to disclose their members’ email addresses.
That inference is unwarranted for at least two reasons.
First, the 2019 amendments to Code §§ 13.1-661(A) and -770(C) of the Stock
Corporation Act were clarifying changes to avoid any suggestion that corporations must collect
and disclose email addresses as part of the record of shareholders. It is true, of course, that
“[o]rdinarily, a statutory change will be deemed to bespeak a legislative intent to change the
law.” Commonwealth v. Boone, 30 Va. App. 439, 442 (1999). But “that rule does not apply
where the change is plainly intended to clarify the meaning of the existing statute.” Id. We
think the email-address clarifications fit that exception.
The parties have not cited any court ruling in the country that had interpreted address as
used in the Model Act before the 2016 amendments to mean a shareholder’s email address. The
2016 amendments to the Model Act, incorporated verbatim into the 2019 amendments to the
Virginia Stock Corporation Act, do not change the definition of address. They simply negated
the potential misinterpretation that a shareholder’s address could mean the email address. See
notes 8 & 10, supra. Those were “changes in form, which merely interpreted the existing law
- 18 - and made it more specific. The changes ‘were not changes of substance, which add rights to, or
withdraw existing rights from, an original act.’” Horner v. Dep’t of Mental Health, Mental
Retardation, & Substance Abuse Servs., 268 Va. 187, 193 (2004) (quoting Boyd v.
Commonwealth, 216 Va. 16, 20 (1975) (per curiam)).15 Indeed, the email-address changes in the
2016 Model Act were so trifling that the ABA’s Corporate Laws Committee failed to mention
them in the accompanying commentary. See 2016 MBCA Revision at 7-21 to 7-24, 16-1 to
16-4; Corporate Laws Committee, Changes in the Model Business Corporation Act-Proposed
Amendments to Chapter 16, 71 Bus. Law. 547 (2016).
Second, petitioners and the dissent read too much into the fact that the General Assembly
did not amend the Nonstock Corporation Act in 2019 when it amended the Stock Corporation
Act. They view the legislature’s failure to simultaneously add the email-address disclaimer to
the Nonstock Corporation Act as a coded signal that nonstock corporations must disclose
member email addresses upon request. We find that inference unreasonable.
For one thing, amending the Stock Corporation Act would have been a most unusual way
to impose the opposite rule under the Nonstock Corporation Act. “Like Congress, the General
Assembly does not generally ‘hide elephants in mouse holes.’” NAACP (Hanover Cnty.
Chapter) v. Commonwealth ex rel. Va. State Water Control Bd., 74 Va. App. 702, 715 (2022)
(per curiam) (quoting Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)). Here,
the mouse hole would not even be in the Nonstock Corporation Act, but in an adjacent chapter in
Title 13.1.
15 Horner was overruled in part on other grounds not relevant here. See Woolford v. Va. Dep’t of Tax’n, 294 Va. 377, 390 n.4 (2017) (overruling Horner’s holding that “an appellee must assign cross-error to a lower tribunal’s failure to rule on alternative grounds to preserve the issue for appellate review”). - 19 - For another thing, changes to the Virginia Nonstock Corporation Act have typically
lagged changes to the Virginia Stock Corporation Act. Six years passed between the 2016
amendments to the Model Act and the 2022 amendments to the Model Nonprofit Corporation
Act. See Nonprofit Organization Committee, Model Nonprofit Corporation Act xx (4th ed.
2022) (“[T]he 2016 revision of the [Model Business Corporation Act] and the [Uniform Business
Organizations Code] were the main reasons why the preparation of the Fourth Edition was
undertaken.”). The Model Nonprofit Corporation Act had not yet been updated in 2019, when
Virginia updated the Virginia Stock Corporation Act. Courts should be cautious about inferring
legislative intent from the General Assembly’s inaction in this situation. What the Supreme
Court has said about judicial review in areas of social and economic policy applies here as well:
“the legislature must be allowed leeway to approach a perceived problem incrementally.” FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993).
D. The General Assembly has not enacted the 2021 changes to the Model Act that would have entitled petitioners to the email addresses they seek.
Finally, we note that the ABA’s Corporate Laws Committee amended the Model Act in
2021 in a way that, if applied to the Virginia Nonstock Corporation Act, would likely give
petitioners the statutory inspection rights to the member email addresses they seek here. See
Model Business Corporation Act (2023 update), §§ 7.20(a)-(b), 16.01(d), 16.02(b)(4), (d),
https://perma.cc/SSC6-RVK2. Under the 2021 revision to the Model Act, a stock corporation
must include a shareholder’s email address in the shareholders’ list for a meeting if the
corporation sends notices or other communications about the meeting to the shareholder by
electronic mail. See Corporate Laws Committee, Changes in the Model Business Corporation
Act—Proposed Amendments to Sections 1.40, 1.41, 7.20 and 16.01 Relating to Electronic Notice,
76 Bus. Law. 547, 554-56 (2021) [“2021 MBCA Amendments”]; Model Act (2023), § 7.20(a).
If so, the corporation must make a copy of that list available to any shareholder who requests it, - 20 - but a shareholder who receives that list may use it “only for purposes related to the meeting . . .
and must keep the information on that list confidential.” Model Act (2023) § 7.20(b). The
corporation must also include shareholder email addresses in the record of shareholders, id.
§ 16.01(d), and the corporation must maintain such records “in a manner so that they may be
made available for inspection within a reasonable time,” id. § 16.01(e). See also id. cmt. 4. A
shareholder’s statutory inspection rights under § 16.02 of the revised Model Act include access
to “the record of shareholders,” including shareholder email address, id. § 16.02(b)(4), but “[t]he
corporation may impose reasonable restrictions on the confidentiality, use or distribution” of that
information, id. § 16.02(d).16 The ABA’s Corporate Laws Committee explained that these
changes were warranted because email use had become ubiquitous, “a conventional means of
communication in business, with reliability comparable, if not superior to postal service.” 2021
MBCA Amendments, supra, at 547.17
If the General Assembly had made those amendments to the Nonstock Corporation Act,
then petitioners here would likely have had a statutory right to the email addresses they seek.
But it is not for us to amend the Act by judicial fiat, let alone to decide whether doing so would
be good policy for Virginia corporations. See, e.g., Appalachian Power Co. v. State Corp.
Comm’n, 301 Va. 257, 279 (2022) (“In Virginia, . . . judicial review does not evaluate ‘the
propriety, wisdom, necessity and expediency of legislation.’” (quoting Willis v. Mullett, 263 Va.
653, 658 (2002)). That decision must be left to the General Assembly.
16 If preferred, a shareholder may direct the corporation not to use that shareholder’s email address for notices and other communications. Model Act (2023), supra, § 16.01(d). 17 Notably, however, the ABA’s Nonprofit Organization Committee has not yet made those same changes to the Model Nonprofit Corporation Act. See Model Nonprofit Corporation Act, note 4 supra, §§ 401-403, 406, 720. - 21 - ***
Although we hold that the Virginia Nonstock Corporation Act provides no statutory right
to inspect and copy member email addresses, nothing we say here impairs a member’s
common-law right to seek such records independently. As noted above, Code § 13.1-933(E)(2)
specifically preserves “[t]he power of a court, independently of [the Virginia Nonstock
Corporation] Act, to compel the production of corporate records for examination.” Members
thus retain their common-law right “to inspect corporate books and records at a proper time and
place and for a proper purpose,” provided the right is “exercised in good faith and for some
reasonable purpose germane to his interest.” Bank of Giles, 199 Va. at 181. But petitioners here
sued to enforce only their statutory rights, not their common-law rights. So we do not reach
whether petitioners would have been entitled to relief if they had based their petition on Virginia
common law.
CONCLUSION
A member’s statutory right to inspect a nonstock corporation’s record of members under
Code §§ 13.1-845 and -933(B)(3) does not include the right to inspect and copy member email
addresses. Accordingly, the trial court correctly denied the petition for mandamus.
Affirmed.
- 22 - Causey, J., dissenting.
I would hold that the record of members, at a minimum, includes names and addresses
and that the meaning of “addresses,” as stated in Code § 13.1-932(C), includes addresses
recorded as part of a nonstock corporation’s record of members, including email addresses.
Therefore, I respectfully dissent because the circuit court erred by finding that Code § 13.1-933
does not require a Virginia nonstock corporation [VMI] to provide or disclose the recorded email
addresses of its record of members.
The statute clearly entitles a member of a nonstock corporation to inspect and copy the
record of members. The nonstock corporation is responsible for what names and addresses are
included in that record of members. Once that record of members is created, corporations should
not arbitrarily remove any of those addresses from the record of members. In other words,
corporations must follow the statute and are not exempt when information included in the record
of members conflicts with the internal ideals of the corporation. Both at trial and at oral
argument before this Court, counsel for the appellants noted that the Association sells the email
addresses in a book, the “Registrar of Former Cadets.” At trial, counsel stated that for $150, a
person could purchase the Registrar of Former Cadets which contains the “name, address, [and]
email address” of alumni. Simply put, VMI chooses who will receive this information based on
who can afford to do so. This was not the intent of the statute.
When interpreting a statute, “our primary objective is to ascertain and give effect to the
legislative intent, which ‘is initially found in the words of the statute itself.’” Chaffins v. Atl.
Coast Pipeline, LLC, 293 Va. 564, 568 (2017) (quoting Crown Cent. Petroleum Corp. v. Hill,
254 Va. 88, 91 (1997)). The proper course is “to search out and follow the true intent of the
legislature, and to adopt that sense of the words which harmonizes best with the context, and
- 23 - promotes in the fullest manner the apparent policy and objects of the legislature.” Smith v.
Commonwealth, 66 Va. App. 382, 389 (2016) (quoting Marshall v. Commonwealth, 58 Va. App.
210, 215 (2011)). “[T]he plain, obvious, and rational meaning of a statute is always to be
preferred to any curious, narrow, or strained construction.” Id. at 388 (quoting Williams v.
Commonwealth, 57 Va. App. 341, 351 (2010)). While the majority gives a curious, narrow, and
strained historical overview of Virginia Stock Corporations versus Virginia Nonstock
Corporations, the main issue here is focused only on the plain, obvious, and rational meaning of
the current law affecting all Virginia Nonstock Corporations. The majority offers no sound
rationale for substituting the nonapplicable statute for the applicable statute.
The statute is clear and the General Assembly has chosen to distinguish between Virginia
Stock and Virginia Nonstock corporations clearly by addressing email address in one and not the
other. Moreover, “[w]here the General Assembly has expressed its intent in clear and
unequivocal terms, it is not the province of the judiciary to add words to a statute or alter its plain
meaning.” Couplin v. Payne, 270 Va. 129, 137 (2005). Additionally, “[w]hen the language of a
statute is unambiguous, we are bound by the plain meaning.” Id. “In interpreting [a] statute,
‘courts apply the plain meaning . . . unless the terms are ambiguous or applying the plain
language would lead to an absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576 (2012)
(second alteration in original) (quoting Boynton v. Kilgore, 271 Va. 220, 227 (2006)). Here, the
statute and its language are unambiguous. Thus, “[w]hen interpreting a statute, we must give
every word some meaning where possible.” Brandt v. Maha Lakshmi Motors, Inc., 48 Va. App.
493, 498 (2006). “To that end, we must evaluate each word within ‘the entire phrase of which it
is a part.’” Id. (quoting Kohlberg v. Va. Real Estate Comm., 212 Va. 237, 239 (1971)).
Moreover, as here, “when a particular word in a statute is not defined therein, a court must give it
- 24 - its ordinary meaning.” Otey v. Commonwealth, 61 Va. App. 346, 350 (2012) (quoting Moyer v.
Commonwealth, 33 Va. App. 8, 35 (2000) (en banc)).
Although Code § 13.1-932(C) does not explicitly define “addresses,” the Association’s
record collection practices and the Code’s statutory construction render email addresses subject
to nonstock corporation members’ inspection and copy entitlement under Code § 13.1-933(B)(3).
Black’s Law Dictionary defines the term “address” as “the place where mail or other
communication is sent.” Address, Black’s Law Dictionary (11th ed. 2019). At trial, David Lee
Prasnicki, CEO of the VMI Alumni Association, testified regarding their record of member
collection practices. When Prasnicki was asked if the Association kept email addresses as part of
their record of members, Prasnicki answered “yes, we do.” He testified that (1) the Association
kept email addresses as part of their record of members and (2) email is the Association’s
primary means of communication. When asked if email was the Association’s “primary means
of communication,” Prasnicki testified that “[i]f you mean primary, fifty-one percent of
communications . . . [t]hen I’d say yes, it’s probably email.” Therefore, email addresses are part
of addresses within the record of members because as defined, it is the place where the majority
of VMI’s other communication is sent.
In compliance with Code § 13.1-932(C), the Association must provide email addresses as
part of its record of members. Because the Association not only collects email addresses as part
of its record of members but regularly uses email addresses to send communications. While my
colleagues argue that “[i]f the General Assembly had intended [this] reading [of the term record
of members], it would have written the statute differently,” “[t]his Court may not construe the
plain language of a statute ‘in a manner that amounts to holding that the General Assembly
meant to add a requirement to the statute that it did not actually express.’” Henthorne v.
- 25 - Commonwealth, 76 Va. App. 60, 67 (2022) (quoting Commonwealth v. Amos, 287 Va. 301, 307
(2014)). Again,“[w]here the General Assembly has expressed its intent in clear and unequivocal
terms, it is not the province of the judiciary to add words to a statute or alter its plain meaning.”
Couplin, 270 Va. at 137.
When “the General Assembly [chooses] not to include such limiting language in [a]
particular statute, we must presume that it did so intentionally, and we have no authority to add
words to the statute or to alter its plain meaning.” Haefele v. Commonwealth, 75 Va. App. 591,
602 (2022). “To hold otherwise ‘would have us write additional language’ into the statutes ‘not
found in the text of the statute[s].’” Canales v. Commonwealth, 78 Va. App. 353, 366 (2023)
(quoting Henthorne, 76 Va. App. at 67). “[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.” Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337
(2011); see also Hollingsworth v. Norfolk S. Ry., 279 Va. 360, 366 (2010). The General
Assembly did not intentionally amend the Virginia Nonstock Corporation Act. The “Corporate
Records” requirement of the Virginia Stock Corporation Act was amended to include language
pertaining to member addresses. See Code § 13.1-770 (“Nothing contained in this subsection
shall require the corporation to include in such record the electronic mail address or other
electronic contact information of a shareholder.” (emphasis added)). The “Corporate Records”
requirements of the Virginia Nonstock Corporation Act was not similarly amended. See Code
§ 13.1-932. We must presume that this choice was intentional.
The 2019 amendments to the Virginia Stock Corporation Act provide only that a stock
corporation need not keep member e-mail addresses as part of its record of members—not that
- 26 - those email addresses, if in fact recorded as part of the record of members, should be excluded
when the record of members is provided for inspection. The majority argues, “the legislature
must be allowed leeway to approach a perceived problem incrementally,” and applies this
Virginia Stock Corporation Act requirement to the Virginia Nonstock Corporation Act. See FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 316 (1993). The majority does so without any authority.
The majority ignores precedent, case law and rewrites the statute with the terms of the Virginia
Stock Corporation Act. Notably, to rewrite statutes as the majority would rewrite it here is not
the job of the judiciary. The Virginia Stock Corporation Act requirement is clearly not a
requirement of the Virginia Nonstock Corporation Act. Significantly, there is nothing in either
Act that requires that when email addresses are kept as part of the record of members those email
addresses should be excluded from copy and inspection. Unquestionably, the Nonstock
Corporation Act does not exclude emails addresses as part of its record of members. VMI’s
record of members, collection practices, primary means of communication, and testimony
demonstrate that email addresses are part of its record of members. Thus, the Association should
have provided appellants with the email addresses of its members. This is not, as the majority
contends, either in conflict with the 2019 amendments to the Virginia Stock Corporation Act or
in support of the notion that members requesting inspection are entitled to all member
information kept by the Association. At no time, did the appellants ask to inspect and copy more
than names and addresses—the record of members.
The Association should have provided appellants with the email addresses of its members
specifically because those addresses were recorded as a part of the record of members. The
record of members reproduced for inspection and copying should not be manipulated based on
- 27 - what a nonstock corporation chooses to provide. Especially, when the information omitted from
the record of members is readily available for purchase.
The statute does not specify exactly how the Association’s record of members must be
maintained, but it does specify that the record must be maintained in a “form that permits
preparation of a list of the names and addresses of all members.” Code § 13.1-932(C).
Therefore VMI, as a nonstock corporation, is required to provide those addresses—which
include email address—of its record of members for copy and inspection upon the request of a
member. Thus, regardless of where or how the information is stored, every address kept as part
of the record of members, including the kept email addresses within the record, should be
provided to a member who has the right to inspect such record of members in accordance with
Code § 13.1-933(B)(3).
Here, the appellants satisfied the member requirements of Code § 13.1-933(C), entitling
them to inspect and copy the record of members as provided in Code § 13.1-933(B)(3). That
record should include, as the statute requires, the names and addresses kept as part of the record
of members. As the Association testified, both electronic addresses and physical addresses are
recorded as part of that record of members, and thus both the physical and electronic addresses
of the members of the Association should be made available for copy and inspection.
Because email addresses are a place that communications are regularly sent by the
Association, it does not defy logic, contrary to the majority’s belief, that an email address is
beyond the scope of the term “addresses” as used in Code § 13.1-932(C). Additionally, to
exclude email addresses produces the absurd result of VMI picking and choosing who gets email
addresses. The Association attempts to avoid providing the email addresses to appellants by
arguing, on the advice of counsel, that it is not required to provide email addresses under Code
- 28 - § 13.1-933(B). Further, the Association contends that email addresses are not kept as part of the
Association’s record of members, but instead as part of its more extensive database, “VMI
Ranks.” However, at trial, when explicitly asked if the Association kept email addresses as part
of their record of members, Prasnicki answered “yes, we do.” Again, regardless of how the
information is stored, the Association was required to provide a complete record of members for
copy and inspection upon request. The record of members is available for all members not just
for those who can financially pay for the information. The statute does not make a difference in
who can pay and who cannot pay for the information. Accordingly, the email addresses
collected by the Association as part of its record of members should have been provided to the
appellants in accordance with Code § 13.1-932(C).
Appellants were denied their statutory right to inspect the record of members of the
Association when the Association refused to provide the appellants with the email addresses of
its members. Therefore, I would find that the circuit court erred by finding that Code
§ 13.1-933(C) does not require a Virginia nonstock corporation to provide or disclose the email
addresses of its members if those addresses are kept as a part of the record of members. VMI’s
primary communication is sent using email addresses from the record of members, and those
email addresses are provided to those privileged enough to afford the information. Thus, I would
hold that the appellants have a statutory right to inspect and copy the Association’s record of
members, which includes email addresses, under Code § 13.1-932(C) and reverse and remand
accordingly.
- 29 -
Related
Cite This Page — Counsel Stack
William L. Respess v. VMI Alumni Association, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-l-respess-v-vmi-alumni-association-vactapp-2024.