iable of contents
TRANSCRIPT
'IABLE OF CONTENTS
Appendix Page
Petition for Mandamus with Exhibits A & B attached filed on or aOOut 7 /28/76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Plea of Lack of Jurisdiction filed 8/1/86 ••••••••••••••••••••••••• 17
Transcript of oral ruling by the Honorable William E. Spahn dated 9/3/86 .••••..•.•..... •....••.....•.•....•.•. .•.• .• • • 19
Final Judgment Order entered 10/20/86 •• • •••••••••••••••••••••••••• 28
Order entered by Supreme Court of Virginia on 12/11/86 (Record No. 860939) ..•..•.••..••••• • .••.. .•.• . .••.. .•...••.•.•.. 30
Assignment of Error ..•••..•.....•.•••.. •.... .•••.•.••••••••••.•. •. 31
Serve at: c / o George W. Bryant, Jr. 1220 Bank Street Richmond, VA 23219
Respondents.
PETITION FOR MANDAMUS
(1) Atlas Underwriters, Ltd. (Atlas) is a Virginia
corporation with its principal place of business at 415 West
Franklin street, Richmond, Virginia. Alfred T. Curlee (Curlee),
a resident of the Commonwealth of Virginia, is the sole
stockholder of Atlas.
(2) Respondents State Corporation Commission (SCC) and
Virginia Bureau of Insurance (VBI) are "public bodies" as that
term is defined in the Virginia Freedom of Information Act
(FOIA). Va. Code §2.0l-34l(e).
(3) Respondent Thomas P. Harwood, Jr . is Chairman of the
SCC; George W. Bryant is clerk of the SCC; James M. Thomson is
Commissioner of Insurance of VBI; and Lewis s. Minter is general
counsel to the sec. All are managing or responsible members of
the "public bodies" referred to in paragraph 2 of this Petition
and are custodians o f the records that are the subject of this
litigation .
(4) By letter dated June 16, 1986, a copy of which is
attached as Exhibit A, L. B. Cann, III, attorney for Atlas and
Curlee, requested the release of certain public documents
pursuant to the provisions of FOIA. Va. Code §2.1-340, et seq.
The Act requires, subject to certain limited exceptions not
applicable in this case, that official state records, including
those records sought in petitioners' request, be open for
inspection by all citizens of the Commonwealth,
(5) By letter dated June 26, 1986, a copy of which is
attached as Exhibit B, Minter advised petitioners' on behalf of
the sec and VBI that he refused to comply with the request for
inspection of public documents, alleging that the "State
Corporation Commission is not subject to the provisions of the
Virginia Freedom of Information Act." No specific authority was
cited for this contention and no other reason for the refusal to
produce public documents was given by Minter or any other
official of the sec or VBI.
Count one
(6) Petitioners repeat and reallege all of the
allegations of paragraphs (1) through (5) inclusive with the same
force and effect as if set forth in full herein.
(7) FOIA requires that public records be made available
to Virginia citizens on request, except in limited circumstances
not applicable in this case. Section 2 .1-342(a) provides, in
part, as follows:
If the requested records or public body are excluded from the provisions of this chapter, the public body to which the request is directed shall within fourteen calendar days from the receipt of the request tender a written explanation as to why the records are not available to requester. Such explanation shall make specific references to the applicable provisions of this chapter or other Code Sections which make the requested records unavailable. (emphasis added).
(8) Minter ' s June 26 letter fails to provide specific
references to the applicable provisions of state law purporting
to exclude the sec from coverage under FOIA or otherwise to
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exclude the requested records from production by the sec. No
reason whatever has been provided for the failure and refusal of
VBI to produce the requested records.
(9) Failure by the sec and VBI adequately to describe the
reason for their noncompliance with petitioners' request is a
clear violation of FOIA. Va. Code §2 . 1-342 .
Count Two
(10) Petitioners repeat and reallege all of the
allegations of paragraphs {l} through (9) inclusive with the same
force and effect as if set forth in full herein.
(11) Va. Code §2 . 1- 345 lists the agencies which are
exempt from the otherwise mandatory requirements of FOIA.
Neither the sec nor VBI is among the listed agencies to which the
Act does not apply.
(12) Since neither the sec nor VBI is exempt from FOIA
and no other reason exists for their failure to make available
the requested documents, the failure of the sec and VBI to comply
with petitioners' request is a violation of the mandatory
requirements of Section 2.1-342 of FOIA to make such documents
available.
WHEREFORE, in consideration of the foregoing, petitioners
respectfully demands the following relief:
(a) that a Writ of Mandamus issue from this Court
compelling respondents to comply immediately with the document
request of June 16, 1986 (Exhibit A};
(b) that petitioners be awarded their reasonable
costs and attorney's fees for prosecuting this action as provided
in Va. Code §2.1-346;
(c) that the Court award petitioners such other and
further relief as the Court deems appropriate.
ATLAS UNDERWRITERS, LTD. ALFRED T. CURLEE
VERIFICATION
I am Herbert s. Curlee, President of Atlas Underwriters,
Ltd., a petitioner in this action. I have read the foregoing
Petition for Mandamus and, based on my personal knowledge and
information supplied to me by responsible agents of Atlas, I aver
that the allegations contained in the Petition for Mandamus are
true and correct to the best of my knowledge, information, and
belief. .1 , I . /·/ '---/ I .. ·I / / :·_ ·· - , . . ;
ij · . I : . " -~ ·~ . \ - ' · ~-----:--:=-.,.,___ ' - ,,, . . v . ./ Herbert S. Curle~, President of Atlas Underwriters, Ltd.
, : I ., ,....... ~L ( ;, ;1 Subscribed and sworn to before me this ._/( :;; day of ,~,
1986. In testimony whereof, I have hereunto set my h a nd the day,
month and year aforesaid.
My commission expires:
[Seal]
4
George B. Little, Esq. L. B. Cann, III, Esq. Timothy M. Kaine, Esq.
LITTLE, PARSLEY & CLUVERIUS, P.C. 1300 Federal Reserve Bank Building P. O. Box 555 Richmond, Virginia 23204
5
GCORGC B . LfTT\.C .J . TCRR't P.ARSLCY
., .
.JAMES K . C:L.UVC R IU S At.CXANOE:R C. G RAMAM, .JR. L . 8.CA NN. llI
DOUGLAS L. G IBl.EN CLIZABCTH TURLEY TIM O TMY M . KA I N£
.JOANNE SCHC"""L AOBCRT M • .JACl'C. SO N
( LAw O•nce: s
LITTLE, PARSLEY & CLUVER! US, P. c. 1300 Fe::oe::RAl.. Re::se::Rve:: SANK Bu11..01NG
POST 0F"F"ICE: Bo x S SS
RICHMON'D, VIROIN"IA 20204
June 16, 1986
BY HAND
EXHI BIT A
CAROLYN A . H , SOUROOW
COVNS CL
ARCA Cooc 904
TCL.E:PMONC 644•4100
Mr. George W. Bryant, Jr., Clerk State Corporation Commission Jefferson Building - 12th Floor 1220 Bank Street
Mr. James M. Thomson Commissioner of Insurance Bureau of Insurance State Corporation Commission Jefferson Building - 2nd Floor 1220 Bank Street
Richmond, Virginia 23219
Richmond, Virginia 23219
Atlas Underwriters, Ltd.
Gentlemen:
In accordance with the provisions of §2.1-340 et~ ("Virginia Freedom of Information Act"), I am requesting that the State Corporation Commission ( 11 SCC11
) permit me to inspect and copy certain official records identified herein, relating to the abovereferenced matter, during the regular office hours of the SCC's custodian of such records.
The records requested to be produced are listed separately in Attachment A to this letter. ~~ I would also like to arrange for the copying of those records selected by me, but request that no copying be performed until such time as I inspect all of the material. I agree to pay the reasonable charges of the sec for the copying and search time expended in supplying such records; however, I would like to be furnished with an estimate of such charges in advance.
Thank you in advance for your cooperation on this req?est.
L. B. Cann, III
LBC:sed
Enclosure
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ATTACHMENT A
A. Requested Official Records and Documents
Please produce all official records and/or documents (as
defined herein) concerned with, reflecting, or in any way related
to the following:
(1) All communications between Frank D. Hargrove and
the Virginia State Corporation Commission, Preston Shannon, or
any other present or former commissioner, member, or employee
thereof, concerned with, reflecting, or in any way related to
Atlas Underwriters, Ltd., Herbert s. Curlee, Alfred T. Curlee,
Parker A. Curlee, Chesapeake Underwriters, Ltd., or Interco, Inc.
(2) All communications between Cyril J. Warrilow and
the Virginia State Corporation Commission, Preston Shannon, or
any other present or former commissioner, member, or employee
thereof, concerned with, reflecting, or in any way related to
Atlas Underwriters, Ltd., Herbert S. Curlee, Alfred T. Curlee,
Parker A. Curlee, Chesapeake Underwriters, Ltd., or Interco, Inc.
(3) All communic~tions between Elliston, Ltd. and the
Virginia State Corporation Commission, Preston Shannon, or any
other present or former commissioner, member, or employee
thereof, concerned with, reflecting, or in any way related to
Atlas Underwriters, Ltd., Herbert s. Curlee, Alfred T. Curlee,
Parker A. Curlee, Chesapeake Underwriters, Ltd., or Interco, Inc.
(4) All communications between Rogovin, Huge &
Lenzner, or any attorney thereof, and the Virginia State
Corporation Commission, Preston Shannon, or any other present or
former commissioner, member, or employee thereof, ·concerned with,
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reflecting, or in any way related to Atlas Underwriters, Ltd.,
Herbert S. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(5) All communications between LeBoeuf, Lamb, Leiby &
MacRae or any attorney thereof, and the Virginia State
Corporation Commission, Preston Shannon, or any other present or
former commissioner, member, or employee thereof concerned with,
reflecting, or in any way related to Atlas Underwriters, Ltd.,
Herbert s. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(6) All communications between Mendes & Mount or any
attorney thereof, and the Virginia State Corporation Commission,
Preston Shannon, or any other present or former commissioner,
member, or employee the~eof, concerned with, reflecting, or in
any way related to Atlas Underwriters, Ltd., Herbert s. Curlee,
Alfred T. Curlee , Parker A. Curlee, Chesapeake Underwriters,
Ltd., or Interco , Inc.
(7) All communications between Harlan, Knight, Dudley -& Pincus or any attorney thereof, and the Virginia State
Corporation Commission, Preston Shannon, or any other present or
former commissioner, member, or employee thereof, concerned with,
reflecting, or in any way related to Atlas Underwriters, ·Ltd .,
Herbert S. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(8) All communications between any past or present
employee of Atlas Underwriters, Ltd. and the Virginia State
Corporation Commission, Preston Shannon, or any other present or
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former commissioner, member, or employee thereof, concerned with,
reflecting, or in any way related to Atlas Underwriters, Ltd.,
Herbert s. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(9) All communications between Gibbs, Hartley &
Cooper or any attorney thereof, and the Virginia State
Corporation Commission, Preston Shannon, or any other present or
former commissioner, member, or employee thereof, concerned with,
reflecting, or in any way related to Atlas Underwriters, Ltd.,
Herbert S. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(1 0) All communications between Frank D. Hargrove and
the Virginia State Bureau of Insurance or any employee thereof,
incJudi~g but limited to James Thomson, Peter Smith, or Paul
Synnot, Jr., concerned with, reflecting, or in any way related to
Atlas Underwr iters, Ltd., Herbert S. Curlee, Alfred T. Curlee,
Parker A. cur l~e , or Chesapeake Underwriters, Ltd.
( 11) All communigations between Cyril J. Warrilow and
the Virginia s~ate Bureau of Insurance or any employee thereof,
including but no t limited to James Thomson, Peter Smith, or Paul
synnot, Jr., ccncerned with , reflecting, or in any way related to
Atlas Underwriters, Ltd., Herbert s. Curlee, Alfred T. Curlee,
Parker A. Cur L:.e , or Chesapeake Underwriters, Ltd.
{l ~) All communications between Elliston, Ltd. and
the Virginia ~ : ~ te Bureau o f Insurance or any employee thereof,
including but . ~ ·:J t limit~d to James Thomson, Peter Smith, or Paul
Synnot, Jr., c. :;cerned with, reflecting, or in any way related to
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Atlas Underwriters, Ltd., Herbert S. Curlee, Alfred T. Curlee,
Parker A. Curlee, Chesapeake Underwriters, Ltd., or Interco, Inc.
(13) All communications between Rogovin, Huge &
Lenzner or any attorney thereof, and the Virginia State Bureau of
Insurance or any employee thereof, including but not limited to
James Thomson, Peter Smith, or Paul Synnot, Jr., concerned with,
reflecting, or in any way related to Atlas Underwriters, Ltd . ,
Herbert S . Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(14) All communications between LeBoeuf, Lamb, Leiby
& MacRae or any attorney thereof, and the Virginia State Bureau
of Insurance or any employee thereof, including but not limited
to James Thomson, Peter Smith, or Paul Synnot, Jr., concerned
with, reflecting, or in any way related to Atlas Underwriters,
Ltd., Herbert s. Curlee, Alfred T. Curlee, Parker A. Curlee,
Chesapeake Underwriters, Ltd., or Interco, Inc.
(15) All communications between Harlan, Knight,
Dudley & Pincus and th~ Virginia State Bureau of Insurance or any
employee thereof, including but not limited to James Thomson,
Peter Smith, or Paul Synnot, Jr., concerned with, reflecting, or
in any way related to Atlas Underwriters, Ltd., Herbert s.
Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(16) All communications between Mendes & Mount or any
attorney thereof, and the Virginia State Bureau of Insurance or
any employee thereof, including but not limited to James Thomson,
Peter Smith, or Paul synnot, Jr., concerned with, reflecting, or
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in any way related to Atlas Underwriters , Ltd., Herbert s.
Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake
Underwriters, Ltd., or Interco, Inc.
(17) All communications between any past or present
employee o f Atlas Underwriters, Ltd., and the Virginia State
Bureau of Insurance or any employee thereof, including but not
limited to James Thomson, Peter Smith, or Paul Synnot, Jr.,
concerned with, reflecting, or in any way related to Atlas
Underwriters, Ltd., Herbert s. Curlee, Alfred T. Curlee, Parker
A. Curlee, Chesapeake Underwriters, Ltd., or Interco, Inc.
(18) All communications between Gibbs, Hartley &
Cooper and Virginia State Bureau of Insurance or any employee
thereof, including but not limited to James Thomson, Peter Smith,
or Paul Synnot, Jr ., concerned with , reflec~ing, or in any way
related to Atlas Underwriters, Ltd., Herbert s. Curlee, Alfred T.
Curlee, Parker A. Curlee, Chesapeake Underwriters, Ltd., or
Interco, Inc.
(19) All c~mmunications between the Virginia Bureau
of Insurance or any employee thereof including but not limited to
James Thomson, Peter Smith, or Paul Synnot, Jr., and any third
party including but not limited to any member of the Virginia
General Assembly or any legislative assistant or staff members
thereof, concerned with, reflecting or in any way related to
House Bill 803 of the Virginia General Assembly, 1984 Session.
(20) All internal or intra-office communications of
the Virginia Bureau of Insurance of any employee thereof
including but not limited to James Thomson, Peter Smith, or Paul
( ( .
Synnot, Jr., concerned with, reflecting, or in any way related to
House Bill 803 of the Virginia General Assembly, 1984 Session.
(21) All communications in any way involving the
Virginia Bureau of Insurance or any employee thereof including
but not limited to James Thomson, Peter Smith, or Paul Synnot,
Jr., not produced in response to paragraphs 20 and 21, concerned
with, reflecting, or in any way related to House Bill 803 of the \
Virginia General Assembly, 1984 Session.
(22) All communications between the Virginia Bureau
of Insurance or any employee thereof including but not limited to
James Thomson, Peter Smith, or Paul Synnot, Jr., and any third
party including but not limited to any member of the Virginia
General Assembly or any legislative assistant or staff member
thereof, concerned with , reflecting or in any way relating to
PET/East Franklin Street Associates, a Virginia limited
partnership, a . k . a. Scandal's or Scandal ' s International, or the
cancellation of its insurance by Atlas Underwriters, Ltd.
{23) All internal or intra-office communications of
the Virginia Bureau of Insurance of any employee thereof
including but not limited to James Thomson, Peter Smith, or
Paul Synnot, Jr., concerned with , reflecting, or in any way
related to PET/East Franklin Street Associates, a Virginia
limited partnership, a.k.a. Scandal's or Scandal's International,
or cancellation of its insurance by Atlas Underwriters, Ltd.
(24) All communications involving the Virginia Bureau
of Insurance or any employee thereof including but not limited to
James Thomson , Peter Smith, or Paul Synnot, Jr., not produced in
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response to paragraphs 23 and 24 above, concerned with,
reflecting, or in any way related to PET/ East Franklin Street
Associates, a Virginia limited partneship, a.k.a. Scandal's or
Scandal's International, or cancellation of its insurance by
Atlas Underwriters, Ltd.
(25) All communications between the Vizginia State
Corporation Commission, Preston Shannon, or any other present or \
former commissioner, member, or employee thereof, and any third
party including but not limited to any member of the Virginia
General Assembly or any legislative assistant or staff member
thereof, concerned with, reflecting, or in any way related to
PET/East Franklin Street Associates, a Virginia limited
partnership, a.k.a. Scandal's or Scandal's International, or
cancellation of its insur~~ce by Atlas Underwriters, Ltd.
(26) All internal or intra-office communications of
the Virginia State Corporation Commission, Preston Shannon, or
any other present or former commissioner, member, or employee
thereof, concerned wit.~, reflecting, or in any way related to
PET/East Franklin Street Associates, a Virginia limited
partnership, a.k.a. Scandal's or Scandal's International, or
cancellation of its insurance by Atlas Undewriters, Ltd.
B. Definitions
(1) "Cyril J. Warrilow" means Cyril J. Warrilow and
all syndicate members, investors or participants in any manner in
the syndicate(s) headed or participated in by Warrilow, and in
addition, the agents, employees, representatives, attorneys,
experts, inv estigators, consultants, or anyone acting or
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purporting to act directly or indirectly on behalf of any of the
foregoing, including but not limited to · Elliston, Ltd., Gibbs ,
Hartley & Cooper , or Toplis & Harding.
(2) "Document" shall mean and include the original,
each non-identical copy (whether differe~t from the· original by
means of notes made on such copy or otl1erwise) and--if the
original is not in existence or subject to your control--each
copy, regardless of origin or location; it shall also mean any
handwritten, typewritten, printed, recorded, transcribed,
punched, taped, photocopied, photostatic, "telexed," filmed,
microfilmed, or otherwise prepared matter, however produced or
reproduced, which is in your possession, custody or control,
including but not limited to, all letters, correspondence,
bordereaux, audits, evaluations, memoranda, telegrams, telexes,
cables, memoranda or minutes of meetings or conversations
(personal or telephonic), reports, summaries, notes, surveys,
analyses, studies, ledgers, journals, and other formal or
informal books of reco~d or account, bulletins, announcements,
manuals, instructions, agreements, legal documents, notebooks,
and writings of every description, including drawings, graphs,
charts, photographs, films, recordings, computer tapes and
printouts, any retrievable data, whether carded, taped, coded,
electrostatically, electromagnetically, or otherwise, and other
data compilations from which information can be obtained and
translated, if necessary, by you into reasonably usable form.
(3) "Communications" or "communication" shall mean
the recording, transmissio n, giving or exchanging of information
( (
or data of any kind by any means whatsoever , including but not
limited to by document(s), as the term bdocument" is defined
hereinabove.
15
STATE CORPORATION COMMISSION
OFFICE OF GENERAL COUNSEL BOX 1197, RICHMOND, VIRGIN IA 23209
(804) 786-8671
June 26, 1986
L. B. Cann, III, Esquire Little, Parsley & Cluverius, P.C. 1300 Federal Reserve Bank Building P . O. Box 555 Richmond, Virginia 23204
Re: Atlas Underwriters, Ltd.
Dear Mr. Cann:
EXHIBIT B
Your letters of June 16, 1986 to George w. ··sryani, Jr., Clerk of the Commission and James M. Thomson, Commissioner of Insurance, Bureau of Insurance, State Corporation Commission, have been referred to me for reply .
The State Corporation Commission is not subject to the provisions of the Virginia Freedom of Information Act (§2.1-340 et §.fill., Code of Virginia (1950), as amended). Therefore, we must decline to comply with your request.
Notwithstanding the foregoing, however, the record of the proceeding before the Commission i n Commonwealth v. Atlas Underwriters, Ltd,, Case No . INS850146, is available for your inspection and copying in the Commission's Document Control Center, located on Floor Bl of the Jefferson Building, Monday through Friday, between the hours of 8:15 a.m. and 5:00 p.m. Moreover, should you wish to confirm any company for which Atlas may be appointed or authorized to represent, you may do so by telephoning the Bureau of Insurance during business hours, 786-2631, and stating the company's name and asking whether Atl as i s appointed or authorized to represent such company.
Yours very truly,
~Y/};i·~ Le wis s. Minterv---General Counsel
LSM:pj
1.6
VIRGINIA:
IN THE CIRCUIT COURT OF THE CITY OF RICHMOND JOHN MARSHALL COURTS BUILDING
ATLAS UNDERWRITERS, LTD., tl ll· ) Petitioners, )
) PLEA OF LACK v. ) JURISDICTION
) VIRGINIA STATE CORPORATION COMMISSION, ) Court File tl ll· ) No.
Respondents. )
PLEA OF LACK OF JURISDICTION
Come now the respondents, appearing specially by counsel,
and move the Court to dismiss this proceeding for lack of juris-
diction upon the following grounds, to-wit:
1. That by virtue of Article IX, Section 4 of the Constitution
of Virginia, this Court is without jurisdiction to review, reverse,
correct or annul "any action" of the Virginia State Corporation
Commission (the Commission).
2. That by virtue of the same provision of the Virginia
Constitution, as well as Virginia ~' §1 7-96, exclusive
original jurisdiction to grant relief by writ of mandamus against
the Commission or its members lies in the Virginia Supreme Court.
3. The statutory relief provisions available under Code
§2.1-346 do not expand the jurisdiction of circuit courts to
issue writs of mandamus established by Virginia ~' §17-123; by
virtue of Article IX, Section 3 of the Virginia Constitution and
Virginia ~' §§12.1-13 and 12.1-30, the Commission has the
17
.. - . - ..• ··- . ---·-- ··--,_ . ( : ·. = \ :. . , ..... , c ~ :4 \ ! : ' ~ : :~ \
· fi. ! \ ~ 1·.: ·19ss·-· 1
·~ 1 ~ . ~ . " - ·' y ' . ,.. . -. _, ...... ~~ . '-· ·. _ .. ... I
·"?11 ;!.J:.t..... . . -- --- ·
status of a court of record; and such status precludes this
court from granting the relief sought, since in no sense could
the Commission be considered an "inferior" tribunal to the circuit
court within the meaning of Virginia ~' §17-123.
4. That the granting of such relief by this Court against
the respondents named herein who are not members of the Commission
would constitute the prohibited assumption of such jurisdiction
with respect to the Commission, itself, as aforesaid.
WHEREFORE, the respondents move the Court that this proceeding
be dismissed with prejudice; and that they recover their costs
herein expended and reasonable attorneys fees.
Respectfully submitted,
VIRGINIA STATE CORPORATION COMMISSION, et al.
Ste art E. Farrar, Deputy General unsel
Jonathan B. Orne, Assistant General Counsel
Virginia State Corporation Commission P.O. Box 1197 Richmond, Virginia 23209
CERTIFICATE
I hereby certify that a true copy of the foregoing Plea of -s f
Lack of Jurisdiction was delivered by hand this Jl - day of
July, 1986 to L.B. Cann, III, Little, Parsley & Cluverius, P.C.,
1300 Federal Reserve Building, P.O. Box 555, Richmond, Virginia
23204.
Counsel
1
2 VIRGIN IA:
3 IN THE CIRCUIT COURT OF THE CITY OF RICHMOND
4 JOHN MARSHALL COURTS BUILDING
5 -------------------------------------------------
ATLAS UNDERWRITERS, LTD., et al., Petitioners,
6
7
8 v. Case No. LK-1521
9 VIRGINIA STATE CORPORATION
10
11
COMMISSION, et al., Respondents.
12 -------------------------------------------------
13
14
ls I 16 '
17 I
18 1
BEFORE: Hon. William Eldridge Spain, Judge
DATE: September 3, 1986
19 -------------------------------------------------
20
ARGUMENT
19
Dennis c. Johnson & Associates
1
2
3 APPEARANCES:
4
5
6
7
8
9
10
11
12
13
George B. Little, Esquire
Timothy Kaine, Esquire
Counsel for the Petitioners
Stewart E. Farrar, Esquire
Jonathan B. Orne, Esquire
Counsel for Virginia State Corporation
Commission
14 -------------------------------------------------
15
16
17
18 ARGUMENT:
I N D E X
19 By Mr. Kaine .••••••.•••.•••••.•••••••••• 4
20 By Mr. Farrar .•••••.••••••••..••••...••• 33
21 By Mr. Kaine ••••••••••••.•..•••.•..•••• 53
22
2 3 ! RU L ING • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 6 5
24
20
Dennis c. Johnson & Associates
2
65
1 of the Freedom of Information Act, and because of
2 the narrowness of the constutional provisions in
3 Article IX, Section 4. We would point out once
4 again that we are entitled to relief in this matter.
5 Thank you.
6 THE COURT: Gen~lemen, I have studied
7 these briefs and listened to your argument with a
8 great deal of interest, and I suppose I'm probably
9 the only Circuit Judge in Virginia who has had one
10 of his former cases cited to him as authority by
11 both sides as sustaining their position, when their
12 positions are diametrically opposed. I was a little
13 bit interested when I found that in both briefs.
14 Counsel say the Court decided Howell
15 ' against Cattrall right, but that decision supported
16 both sides, and I can see some reason for that. In
17 one sense of the word, the Howell case was a much
18 easier case to decide, because it was an appendix to
19 , an ongoing rate case and was appealable as of right
20 to the Supreme Court of Virginia.
21 It could have been appealed in the
22 principal case, and that indeed, is about what the
23 Supreme Court did with it when they consolidated
24 Howell's appeal from my order of February 17, 1970.
21
Dennis c. Johnson & Associates
1 as a decree, dated February 17, 1970. They simply
2 combined it with the principal case, reversed the
3 j principal case, and said that the question of the
4 j Commission's refusal to grant Lt. Governor Howell
5 j his statutory right of appeal was moot.
66
6 I The other thing that bothered me a little I I
7 j was that this Howell case was an action of the I
8 ; Commission in its official capacity, whereas the
9 matter before the Court now is a letter from a
10 department head or bureau head, and not an official
11 action by the Commission. I think we have taken
12 care of that by the order you say you have today,
13 though, where we on August 6 substituted the
14 , Commissioners as parties defendants.
15 The next point that I wish to come to is
16 that I find nothing in the statutes or anywhere else
17 · that would lead me to believe that the State
18 Corporation Commission is exempt from the Freedom of
19 Information Act or that the Freedom of Information
20 Act is unconstitutional as applied to the State
21 Corporation Commission, quote, "in the context of
22 , this case," unquote. It would therefore appear that
23 since this action of the Commission is not
24 appealable, the only remedy the Petitioners have is
22
Dennis c. Johnson & Associates
1 a suit for mandamus.
2
3 Of this
Now we come to what I consider the heart
case. No matter how many times I have read
4 it, and they have been numerous in the past,
5 especially since August 6 when we had our first
6 hearing, and that is, there appears to me to be a
67
7 real conflict between Section 2.1-346 of the Code of
8 Virginia, being a part of the Freedom of Information
9 Act, says that a petition for a writ of mandamus in
10 a case like this one shall be addressed to the
11 circuit court of the City of Richmond.
12 Now, that is plain enough, but somehow I
13 can't get away from Section 4 of Article IX of the
14 Constitution, which reads, quote, "No other Court of
15 the Commonwealth shall have jurisdiction to review,
16 reverse, correct, or annul . any action of the
17 Commission ••• " Now, there is no period at that
18 point, but it could very well be, because the next
19
20
word is disjunctive.
restrain it •••. "
It says" ••. or to enjoin or
21 And then we come to some most unnecessary
22 language in the Constitution, if it is unnecessary.
23 and one object of the Constitution of 1971 was to
24 cut out unnecessary verbage, as shown by the report
23
Dennis c. Johnson & Associates
68
1 of the Commission to the Governor. That language
2 is, " ••• provided, however, that the writs of
3 mandamus and prohibition shall lie from the Supreme
4 Court to the Commission."
5 Well, we already knew that. The Supreme
6 Court already had that power without it being
7 repeated here either for emphasis or some other
8 reason. · And I think it was repeated here for
9
10
emphasis, particularly when read in conjunction with
11
12
13 !
14 ! I
15 i I
16 I '
17 I 18 1
I '
19 I I
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21
the debates of the Constitional Convention of 1901,
that they didn't want circuit courts interfering
with the conduct of the Commission.
Now, I am fully conscious of the fact
that that can well be argued this applies only to
internal operations. I don't get bothered much
about the Corporation Commission being a court. We
know it has certain judicial powers. It also has
legislative and executive powers. And I don't think
in all instances that the only way you can get away
from them is by appeal.
Generally, appeal is the way to ask that
22 the Commission's actions be annuled, reviewed,
23 reversed, or corrected. But it's certainly not the
2 4 only way. If it
24
Dennis c. Johnson & Associates
69
1 were, then why this language:
2 " ••• provided, however, that writs of mandamus and
3 prohibition shall lie from the Supreme Court to the
4 Commission"?
5 I had asked counsel to let me know if
6 they could find any case where a circuit court had
7 issued or refused to issue a writ of mandamus,
8 prohibition, injunction, or any other extraordinary
9 legal writ against the Corporation Commission in the
10 84 years of existence.
11 It is conceded at bar that the Bowell
12 case is the only case that can be found by either
13 side. Certainly in 84 years this question must have
14 become important to somebody. And certainly if a
15 circuit court had issued, such a writ or refused to
16 do so, it would have been important enough to appeal
17 and could have been found somewhere. The reasonable
18 1 construction of Section 4, Article IX, is that the
19 Petitioners proceed for a writ of mandamus, but that
20 such Petition be addressed to the Supreme Court.
21 If I may be so bold as to quote myself in
22 Howell against Cattrall, we have this language." It
23 was the intention of the framers of the Constitution
24 of Virginia to place the actions of the State
25
Dennis c. Johnson & Associates
. i I
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2 I
3 I
4 ' ;
5
6
7
8
9
10
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12
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la I 19
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70
Corporation Commission beyond the civil processes of
the several courts of record of the Commonwealth.
See Constitution of Virginia, Section 156 (b) ," the
forerunner of Section 4, Article IX of the present I
Constitution," and quoted also debates of the
Constitutional Convention, 1901-2, Volume 2, page
2499. That was the genesis of the Commission. It
was debated long and ably.
To conclude, I think the Petitioners have
a forum, but this Court is not that forum, and that
they should proceed in the Supreme Court.
Gentlemen, that is the best that I can
do.
MR. LITTLE: Judge, thank you very
much for the attention. May I make one comment?
THE COURT: Yes.
MR. LITTLE: I think for the appeal
purposes, and others, if the Court could make a
finding that 346 as applied to the Corporation
Commission insofar as it gives jurisdiction to this
Court --
THE COURT: I did. I thought I did.
MR. LITTLE: No, you didn't rule it
unconstitutional as it applied to providing the
26
Dennis c. Johnson & Associates
71
1 remedy of this Court. I think for the record,
2 Judge, let's get it up there and let's clean it up.
3 THE COURT: Oh, yes, yes, as applied
4 to this Court. Well, that is inherent in what I
5 said.
6 MR. LITTLE: I just wanted to clarify
7 that for the record. Thank you very much, sir.
8
9
10 recess.
11
THE COURT: All right.
THE BAILIFF: Court will stand in
MR. FARRAR: Your Honor, does the
12 Court want an order drafted?
13 THE COURT: Yes. And if you can't
14 agree on what the order should say, now -- don't
15 take this down.
16 (Discussion · off the record upon
17 1 direction of the Court.) I
18 1 (Hearing concluded.)
19 I 20
21
22
23
24
27
Dennis c. Johnson & Associates
-VIRGINIA:
IN THE CIRCUIT COURT OF THE CITY OF RICHMOND JOHN MARSHALL COURTS BUILDING
OCTOBER 20,1986
ATLAS UNDERWRITERS, LTD., et als.,
) ) ) ) ) ) ) )
Petitioners,
v. Case No. LK-1521
VIRGINIA STATE CORPORATION COMJ1ISSION, et als. , ' ,
Respondents. ) )
JUDGMENT
On September 3, 1986 came the parties to this cause, by
counsel, to be heard upon the issues raised by the pleadings and
memoranda filed herein, and final argument of counsel was heard.
The Court having announced its opinion on that date as to the
proper disposition of this cause and reasons therefore, which
reasons are incorporated herein, it is hereby
ADJUGED AND ORDERED as follows:
(a) The State Corporation Commission is not exempt from the Virginia Freedom of Information Act (Va. Code §2.1-340, et seq.) in the context of this case; -
(b) The remedial provision of the Virginia Freedom of Information Act, vesting jurisdiction in the Circuit Courts of this Commonwealth to resolve disputes under the Act (Va. Code §2.1-346), is not constitutional as applied to the State Corporation Commission because of the jurisdictional limitations of Article IX, Section 4 of the Virginia Constitution; and
28
. (c) The petition filed herein must, therefore, be dismissed for lack of jurisdiction.
ENTER: .ll/ ~C /8 £ .. _......_
/'"\ ~ / k!C~ b. ~~~~
" ·J Ju~ge Seen and Objected To: (_ ') ;R,~ '\; ,>
Stewart E. Farrar, Deputy General Counsel JonAthan B. Orne, Assistant General Counsel C9u.nsel for Respondents
--state Corporation Commission P. o. Box 1197 Richmond, Virginia 23209
Seen and Objected To:
George B. Little Alexander c . Graham, Jr. Timothy M. Kaine Counsel for Petitioners Atlas
Underwriters, Ltd., et als. LITTLE, PARSLEY & CLUVERIUS, P.C. 1300 Federal Reserve Bank Building P. o. Box 555 Richmond, Virginia 23204
29
)
)
)
' i' ;I I
,, ii :j
!1 ' I
VIRGINIA:
k Lk ~~W?n6' -G:uvd ,oj7 ~v..ua- ,/u;/d .at ,//WY ..ffo/"vwnw- ~"",£ !!lJ-ad:/i/'1#' A/tV ,//WY
~7 ~ !%Jl/rl'UMut ,a/fl/ Thursday ,//WY 11th ,e-far ,oj7 December , 19 8 6 .
Atlas Underwriters, Ltd., et al., Petitioners,
against Record No. 860939
State Corporation Commission, et al., Respondents.
Upon a Petition for a Writ of Mandamus
Ii On consideration of the petition and memorandum of law in ,. !~ support thereof, of Atlas Underwriters, Ltd., Alfred T. Curlee and
.i L. B. Cann, III praying that a writ of mandamus do forthwith issue, I
to be directed to the State Corporation Commission and others, the
,, respondents' motion to drop parties, motion to dismiss and grounds
'l
·i :·
1:
I
I ! ·' II
II
. L :I ,. :I 'I !, ii ;1 ii
!I ·: !
of defense, together with memorandum uf law in support filed in
answer thereto , and the petitioners' r eply to the respondents'
motions, the Court is of opinion that the writ of mandamus s_hQyl4
not issue as prayed for. It is therefore ordered that the said
pet ion be dismissed and that the respondents recover of the
petitioner their costs by them expended about their defense herein.
A Copy,
Teste :
David B. Beach, Clerk
. By: 0 ,Cil . c-t-_
Deputy Cl erk Respondents' costs:
Attorney's fee $50.00
Teste:
David B. Beach, Clerk
30 Deputy Cl er!~
ASSIGNMENT OF ERROR
The trial court erred in holding that Article IX, §4 of
the Virginia Constitut~on precluded its issuance of a writ of
mandamus to compel the Virginia State Corporation Commission to
comply with the Virginia Freedom of Information Act (VFOIA). Va .
Code §2.1-340, et. seq.
31