DRHI v. HANBACK (2014)

While the majority's conclusion that the circuit court abused its discretion may be correct, the Court has no subject matter jurisdiction to reach it. Therefore, I must respectfully dissent.

The majority correctly concludes that these appeals arise from a judgment for civil contempt. Code § 19.2–318 vests subject matter jurisdiction over such judgments in the Court of Appeals. The majority nevertheless reaches the merits, asserting that the nature of the judgment was not clear when we granted the petition for appeal in Record Number 131974 and certified Record Number 140605 from the Court of Appeals. The majority also asserts that the certification and ultimate disposition are in the interests of judicial economy. These assertions are well-founded, yet cannot create subject matter jurisdiction over these appeals.

“[S]ubject matter jurisdiction ․ is the authority granted through constitution or statute to adjudicate a class of cases or controversies․” Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). “While a court always has jurisdiction to determine whether it has subject matter jurisdiction, a judgment on the merits made without subject matter jurisdiction is null and void.” Id. at 170, 387 S.E.2d 755–56.

Through Code § 19.2–318, the General Assembly vests subject matter jurisdiction over appeals from circuit courts' judgments for civil contempt in the Court of Appeals.³ Although the General Assembly vests subject matter jurisdiction over judgments of the Court of Appeals in this Court through Code § 17.1–411 (except in cases where the judgment of the Court of Appeals is final), our jurisdiction in civil contempt cases is derivative. We do not have subject matter jurisdiction to review a circuit court's judgment for civil contempt by operation of these two statutes; rather, in such cases we have subject matter jurisdiction only to review the judgment rendered by the Court of Appeals.

Accordingly, once the majority concluded that the judgment appealed from was a judgment for civil contempt, the Court's authority to review it in Record Number 131974 ended.

The majority finds an independent basis to review the circuit court's judgment in Record Number 140605 under the authority conferred by Code § 17.1–409. In that section, the General Assembly empowered us to certify “any case in which an appeal has been taken to or filed with the Court of Appeals.” Code § 17.1–409(A) (emphasis added). “The effect of such certification shall be to transfer jurisdiction over the case to the Supreme Court for all purposes.” Id.

Through Code § 17.1–409(A), the General Assembly effectively makes the subject matter jurisdiction of this Court coextensive with the subject matter jurisdiction of the Court of Appeals, enabling us to review any judgment that court may review. However, our subject matter jurisdiction is contingent. Code § 17.1–409(B). It is predicated upon the existence of either of two exigent circumstances. In the words of the statute, we may certify a case from the Court of Appeals

only when, in its discretion, the Supreme Court determines that:

1. The case is of such imperative public importance as to justify the deviation from normal appellate practice and to require prompt decision in the Supreme Court; or

2. The docket or the status of the work of the Court of Appeals is such that the sound or expeditious administration of justice requires that jurisdiction over the case be transferred to the Supreme Court.

Id. (emphasis added).

While the statute commits this decision to our discretion, discretion does not “mean that the court may do whatever it pleases,” Landrum v. Chippenham & Johnston–Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir.1984)) (alteration omitted). The General Assembly said “only,” Code § 17.1–409(B), using “simple, clear and unambiguous language” and we must “ ‘read it to mean what it says.’ “ Commonwealth v. Morris, 281 Va. 70, 79, 705 S.E.2d 503, 507 (2011) (quoting Blowe v. Peyton, 208 Va. 68, 74, 155 S.E.2d 351, 356 (1967)).

The first predicate exigent circumstance, imperative public importance, is not at issue in this case. Our certification order invoked only the second predicate exigent circumstance, the administration of justice. DRHI, Inc. v. Hanback, Record No. 140605 (Apr. 22, 2014). However, the plain language of Code § 17.1–409(B)(2) makes clear that the General Assembly intended that predicate to apply only when the Court of Appeals cannot timely do its work. Such a determination should not be made lightly. Neither that court nor the parties represented to us that such a condition existed and we had no basis to believe it did.

Nevertheless, the majority asserts that certification was warranted here in the interests of judicial economy. But the General Assembly did not include judicial economy in Code § 17.1–409(B) as a predicate for certifying a case from the Court of Appeals. Thus, mere judicial economy cannot create subject matter jurisdiction.

The majority compares this case to Nusbaum v. Berlin, 273 Va. 385, 641 S.E.2d 494 (2007), and Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700, 643 S.E.2d 151 (2007). In Nusbaum, the circuit court imposed on an attorney both a monetary sanction for misconduct and a criminal penalty for contempt, arising from a single incident. Id. at 390, 397, 641 S.E.2d at 496, 500. The attorney filed a petition for appeal in this Court challenging the monetary sanction for misconduct. He filed a separate appeal in the Court of Appeals challenging the contempt penalty. Id.

In Petrosinelli, the circuit court imposed on an attorney a civil penalty for contempt. 273 Va. at 705–06 & n.12, 643 S.E.2d at 154 & n.12. It also imposed on the attorney's firm a monetary sanction for misconduct under Code § 8.01–271.1. Williams & Connolly, LLP v. People for the Ethical Treatment of Animals, Inc., 273 Va. 498, 509, 643 S.E.2d 136, 140 (2007). The firm filed a petition for appeal in this Court, id., and the attorney filed an appeal in the Court of Appeals. Petrosinelli, 273 Va. at 706, 643 S.E.2d at 154.

In both cases, the Court certified the contempt appeal pending in the Court of Appeals under the administration of justice predicate set forth in Code § 17.1–409(B)(2). Nusbaum, 273 Va. at 390, 641 S.E.2d at 496; Petrosinelli, 273 Va. at 706, 643 S.E.2d at 154.

Assuming, arguendo, that the circumstances in Nusbaum and Petrosinelli actually were sufficient to satisfy Code § 17.1–409(B)(2), they are distinguishable. Both of the appeals certified from the Court of Appeals involved a ruling imposing a penalty for contempt-a ruling factually intertwined with a separate ruling awarding monetary sanctions. This Court unquestionably had subject matter jurisdiction over the latter under Code § 8.01–670(A)(3). Accordingly, it may have been appropriate to certify the appeals pending in the Court of Appeals where this Court already had an independent basis for subject matter jurisdiction to review an issue “derive[d] from a common nucleus of operative fact,” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966) (discussing federal pendent jurisdiction over state law claims), with an issue then before the Court of Appeals.

However, there is no need to explore whether Nusbaum and Petrosinelli were correctly decided because in this case there is only one ruling. The fact that the party dissatisfied with a judgment pursued appeals in two courts at the same time is not an adequate basis for this Court to certify the appeal pending in the Court of Appeals under the administration of justice predicate set forth in Code § 17.1–409(B)(2).

Accordingly, having determined that the subject matter of the petition for appeal in Record Number 131974 is, under Code § 19.2–318, within the jurisdiction of the Court of Appeals, this Court lacks subject matter jurisdiction to hear it. The Court therefore should dismiss the petition for appeal as improvidently granted. Similarly, having improperly certified the appeal in Record Number 140605 from the Court of Appeals without justification under either of the predicates set forth in Code § 17.1–409(B), the Court should vacate its order certifying that appeal, thereby returning the case to that court for review on the merits. While such a disposition may not be in the interests of judicial economy, lack of subject matter jurisdiction trumps judicial economy. I therefore must dissent.

FOOTNOTES

3.  Code § 16.1–69.24 provides for appeals of district courts' judgments for civil contempt.̌