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Gannon v. State Corporation Commission
SUPREME COURT OF VIRGINIA
416 S.E.2d 446, 243 Va. 480
April 17, 1992
STEPHEN T. GANNON v. STATE CORPORATION COMMISSION, ET AL.
ORIGINAL PETITION FOR WRIT OF MANDAMUS.
John V. Robinson (Stephen T. Gannon; Michael V. Hernandez;
McSweeney, Burtch & Crump, on brief), for appellant.
Joel H. Peck (Stewart E. Farrar; Anthony J. Gambardella, on
brief), for appellees.
Present: All the Justices.
The opinion of the court was delivered by: Hassell
OPINION BY JUSTICE LEROY R. HASSELL
In this proceeding, which invokes this Court's original
jurisdiction, we consider whether mandamus is a proper remedy.
Stephen T. Gannon, by letter, filed a Virginia Freedom of
Information Act request, seeking certain records in the possession
and control of the State Corporation Commission (Commission). The
request was sent to Lewis W. Brothers, Jr., director of the
Commission's Division of Securities and Retail Franchising and to
William Bridge, clerk of the Commission.
Joel H. Peck, senior counsel to the Commission, denied Gannon's
request by stating in a letter that "the State Corporation
Commission has long maintained that it is not subject to the
[Virginia Freedom of Information Act]" and that Code sec.
13.1-518(B) prohibits disclosure of the requested
information.* In a subsequent
letter, a copy of which was sent to Gannon, Peck stated, "If Mr.
Gannon was dissatisfied with my response, his next step should have
been to pursue the remedies available under the Commission's Rules
of Practice and Procedure."
Gannon did not seek a review of Peck's decision by the
Commission. Rather, he filed in this Court a Petition for Writ of
Mandamus Against the Commission, its Commissioners, its Division of
Securities and Retail Franchising, and certain of its employees.
Gannon requested that this Court issue a writ of mandamus requiring
that the Commission produce the requested documents for inspection
as purportedly required by the Virginia Freedom of Information Act,
Code sec. 2.1-340, et seq. The Commission filed responsive
pleadings, including a motion to dismiss the Petition because "the
elements necessary for the issuance of a writ of mandamus are
absent."
Mandamus is an extraordinary remedy which may be used to compel
a public official to perform a duty which is purely ministerial and
which is imposed upon the official by law. Richlands Medical
Assoc. v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739
(1985). We have consistently stated the principles which govern the
issuance of a writ of mandamus:
A writ of mandamus is an extraordinary remedial process, which
is not awarded as a matter of right but in the exercise of a sound
judicial discretion. Due to the drastic character of the writ, the
law has placed safeguards around it. Consideration should be had
for the urgency which prompts an exercise of the discretion, the
interests of the public and third persons, the results which would
follow upon a refusal of the writ, as well as the promotion of
substantial justice. In doubtful cases the writ will be denied, but
where the right involved and the duty sought to be enforced are
clear and certain and where there is no other available specific
and adequate remedy the writ will issue.
Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151-52,
104 S.E.2d 813, 816 (1958) (emphasis added). See also Early v.
Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977);
Prince William Co. v. Hylton Enterprises, 216 Va. 582, 584,
221 S.E.2d 534, 536 (1976); Railroad Company v. Fugate, 206
Va. 159, 162, 142 S.E.2d 546, 548 (1965).
Gannon's petition must be dismissed because he has an adequate
remedy at law. Rule 3:2 of the Rules of the Commission states:
Administrative acts of officers and employees are the acts of
the Commission, subject to review by the Commissioner under whose
assigned supervision within the Commission's internal division the
function was performed.
Rule 3:3 of the Rules of the Commission states, in part:
Anyone dissatisfied with any administrative action of an
employee should make informal complaint to the division head, and
if not thereby resolved, may present a complaint . . . for review
by the Commissioner under whose supervision the division head
acted.
Rule 3:4 of the Rules of the Commission states:
Upon written petition of any person in interest dissatisfied
with any action taken by a division of the Commission, or by its
failure to act, resulting from disputed facts or from disputed
statutory interpretation or application, the Commission will set
the matter for hearing. If the dispute be one of law only, in lieu
of a hearing, the Commission may order a stipulation of facts and
submission of the issues and argument by written briefs. Oral
argument in any such case shall be with the consent of the
Commission.
(Emphasis added).
As illustrated above, Rules 3:2, 3:3, and 3:4 permit Gannon to
challenge Peck's interpretation that the Commission is not subject
to the Virginia Freedom of Information Act. Gannon, however, failed
to avail himself of this legal remedy. It is of no consequence that
Gannon believes that the Commission may have denied his request. We
cannot say as a matter of law that the Commission would have
rejected Gannon's legal contention. Because mandamus is an
extraordinary remedy, Gannon is required to avail himself of his
"specific and adequate remedy" under the Commission's Rules before
seeking a writ of mandamus in this Court.
Therefore, we do not consider whether the Commission must comply
with the provisions of the Virginia Freedom of Information Act.
Rather, we will dismiss Gannon's petition because mandamus does not
lie.
Dismissed.
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Opinion Footnotes
* Code sec. 13.1-518(B) states, in part:
"Information or documents obtained or prepared by any member,
subordinate or employee of the [State Corporation] Commission in
the course of any examination or investigation conducted pursuant
to the provisions of this chapter shall be deemed confidential and
shall not be disclosed to the public."
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