IABLE OF CONTENTS

'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

2

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

6

( ( .

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




Atlas Underwriters, Ltd., Herbert S. Curlee, Alfred T. Curlee,


(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




(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,

7

( ( ,

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


former commissioner, member, or employee thereof concerned with,


Herbert s. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake


(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


former commissioner, member, or employee thereof, concerned with,

reflecting, or in any way related to Atlas Underwriters, ·Ltd .,



(8) All communications between any past or present

employee of Atlas Underwriters, Ltd. and the Virginia State


8

( ( .



Herbert s. Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake


(9) All communications between Gibbs, Hartley &

Cooper or any attorney thereof, and the Virginia State






(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


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

9

( ( .

Atlas Underwriters, Ltd., Herbert S. Curlee, Alfred T. Curlee,


(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


(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


(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

10

. . ( (

in any way related to Atlas Underwriters , Ltd., Herbert s.

Curlee, Alfred T. Curlee, Parker A. Curlee, Chesapeake


(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


James Thomson, Peter Smith, or Paul Synnot, Jr., and any third


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


James Thomson , Peter Smith, or Paul Synnot, Jr., not produced in

12

( (

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


General Assembly or any legislative assistant or staff member



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



thereof, concerned wit.~, reflecting, or in any way related to


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

13

• • ( (

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


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


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


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


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

20

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


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

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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


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

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27


-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