Rivera v. Long (Virginia Supreme Court)


                   Friday        8th           February, 2008.
Andrew A. Rivera,     Appellant,
 against  Record No. 070274
   Circuit Court No. L05-2754
Elisa Long, General Registrar,    Appellee.
        Upon an appeal from a judgment rendered by the Circuit Court of the City of Norfolk.
 Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion that the judgment of the trial court should be affirmed in part, reversed in part, and the award of attorney’s fees vacated and remanded for recalculation. 

 The General Registrar for the City of Norfolk rejected more than 55% of voter registration applications prior to the 2005 election.  Andrew Rivera ("Rivera"), a citizen and registered voter of the Commonwealth of Virginia and a member of the Advancement Project, an organization that monitors voter registration, filed a request under the Freedom of Information Act ("FOIA") seeking copies of the invalid voter registration applications and copies of the letters sent by Elisa Long, General Registrar ("Registrar") to the rejected applicants.  The Registrar did not produce these documents, stating that they were exempt from production under Code § 24.2-444.  

 Rivera then filed a petition for mandamus in the City of Norfolk General District Court.  Upon denial of the petition, Rivera appealed de novo to the Circuit Court of the City of Norfolk.  The trial court held that Rivera should be permitted to inspect, but not copy, the correspondence to voters whose applications were rejected based on the language used in Code § 24.2-444, but denied Rivera access to the voter registration application forms pursuant to Code § 24.2-444(A) because they contain Social Security numbers.  The trial court granted in part Rivera’s request for attorney’s fees, awarding $2,000 of the $5,167.50 requested, and denied Rivera’s request for forty randomly selected denied applications to be produced and kept under seal for an appellate record.  Rivera appeals the adverse rulings of the trial court.  

 Rivera’s first assignment of error states that the trial court erred by sustaining an objection to Rivera’s request for the production, under seal, of original documents and not making those documents part of the record.  When a trial court refuses to make evidence that it considered part of the record, appellate review is frustrated.  Bland v. Virginia State University, 272 Va. 198, 201-02, 630 S.E.2d 525, 527.  Here, however, the court did not review the completed forms.  Finding it sufficient to review the blank forms, the trial court did not abuse its discretion in refusing to make the completed forms a part of the record.  Accordingly, Rivera’s first assignment of error is without merit.  

 Rivera’s second assignment of error states that "[t]he trial court erroneously ruled that Rivera has no right to copies of documents that are produced for his inspection." Code § 24.2-444 addresses two different types of records in subsections A and B. Subsection A addresses "registration records," whereas subsection B addresses "records concerning the implementation of programs and activities . . . ."  The version of Code § 24.2-444(A) in effect at the time provided, in pertinent part, "registration records shall be kept and preserved by the general registrar and shall be opened to inspection by any registered voter . . . ."  Code § 24.2-444(B), on the other hand, explicitly provided for "public inspection and copying."  "We determine the meaning of certain statutory language from the express words contained in the statute . . . and may not give the words a construction that amounts to holding that the General Assembly did not mean what it actually stated."  Young v.
Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493 (2007) (internal citations omitted).  The General Assembly could have added "copying" to subsection A, just as it did to subsection B, but it did not.  The voter registration records discussed in subsection A, therefore, were available only for inspection, not copying.  Rivera’s second assignment of error is without merit. 

 Rivera’s third assignment of error states "[t]he trial court erroneously ruled that Rivera was not entitled to inspect and copy denied applications to register, after redaction of the applicants’ Social Security numbers."  Code § 24.2-444(A) provided, in pertinent part" "[n]o voter registration record containing an individual’s social security number shall be made available for inspection or copying by anyone."  Obviously, if the Social Security numbers are redacted from the registration records, the documents will no longer contain a Social Security number.  Consequently, they will no longer be exempt from inspection.  The trial court erred as to Rivera’s third assignment of error and the registration records must be made available to Rivera after redaction of the Social Security numbers. The Registrar, of course, may request payment related to this production pursuant to Code § 2.2-3704(H).    

 Rivera’s fourth assignment of error states that the court erroneously denied part of his claim for attorney’s fees.  Code § 2.2-3713(D) provides for "reasonable costs and attorneys’ fees" when a party "substantially prevails on the merits of the case, unless special circumstances would make an award unjust."  In light of this reversal on appeal, Rivera has "substantially prevailed."  On remand, the trial court must recalculate the award of attorney's fees.  "Where, as here, a statute authorizes recovery of attorney's fees and expenses, the fact finder is required to determine from the evidence the amount of the reasonable fees under the facts and circumstances of each particular case.  . . .In determining a reasonable fee, the fact finder should consider such circumstances as the time consumed, the effort expended, the nature of the services rendered, and other attending circumstances.’"  Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 111-12, 413 S.E.2d 611, 621 (1992) (quoting Mullins v. Richlands National Bank, 241 Va. 447, 449, 403 S.E.2d 334, 335 (1991)).  Additionally, the trial court is directed to include in its recalculation of attorney's fees, the additional fees necessitated by this successful appeal.     

 Accordingly, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for further proceedings.   This order shall be certified to the said circuit court.           
      A Copy,