The Rules Of Statutory Construction


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"[t]he solemn decisions of the judges upon a statute become part of the statute, 1 Burr. 419; and the security of men's lives and property, require that they should be adhered to: for precedents serve to regulate our conduct ; and there is more danger to be apprehended from uncertainty, than from any exposition; because, when the rule is settled, men know how to conform to it; but, when all is uncertain, they are left in the dark, and constantly liable to error; for the same offence which, at one time, was thought entitled to clergy, at another, may be deemed capital ; and thus the life or death of the citizen will be made to depend, not upon a fixt rule, but upon the opinion of the judge, who may happen to try him, than which a more miserable state of things cannot be conceived. 1 Vern. 18, 3 Burr. 1730, per Wilmot, J. " Commonwealth v. Posey, 8 Va. (4 Call) 109, 120 (1787).


 Presumption of Correctness

1) "When testing the constitutional validity of statutes, courts shall presume the statute to be valid."  Gray v. Commonwealth, 30 Va. App. 725, 731, 519 S.E.2d 825, 828 (1999).  "Consequently, the burden to show the constitutional defect is on the challenger."  Id. at 732, 519 S.E.2d at 828. "Every act of the legislature is presumed to  be constitutional, and the Constitution is  to be given a liberal construction so as to sustain the enactment in question, if practicable."  "When the constitutionality  of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge.  All laws are presumed to be constitutional and this presumption is one of the strongest known to the law."  Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451, 454 (1998) (citations omitted). cited from Quarles v. Commonwealth, Va. App. (2001 Unpublished)


2) "Another rule of statutory construction requires the presumption that, in enacting statutes, the General Assembly has full knowledge of existing law and interpretations thereof .11 Although the repeal of statutes by implication is not favored, if two statutes are in pari materia, then to the extent that their provisions are irreconcilably inconsistent and repugnant, the latter enactment repeals or amends the earlier enacted statute. 12 - Op. Va. Att'y Gen. Op. No. 03-032, Sept. (2003).

3) "The legislature is presumed to know the law when enacting legislation. See Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005). We must therefore presume that the legislature knew that both a preliminary hearing and a grand jury indictment operate as screening procedures for probable cause determination when the legislature enacted Code § 19.2-218. Nevertheless, the legislature decreed that "no indictment shall be returned in a court of record against any such person prior to such hearing . . . ." By the plain language of the statute, the validity of any indictment against a person who has been arrested prior to the indictment depends on the occurrence of a preliminary hearing or a valid waiver. To decide that a subsequent indictment cures any violation of Code § 19.2-218 would be to ignore the command of the legislature." Wright v. Commonwealth, 52 Va. App. 690, 667 S.E.2d 787 (2008).

4) "Accordingly, we hold that the amendments to The Act pertinent to this litigation were changes of form, which merely interpreted the 1973 Act and made it more detailed and specific. They were not changes of substance, which add rights to, or withdraw existing rights from, and original act. See 1A Sutherland Statutory Construction § 22.30 at 179. When amendments are enacted soon after controversies arise "as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act, a formal change-rebutting the presumption of substantial change." Boyd v. Commonwealth, 216 VA. 16, 215, S.E.2d 915 (1975).
 

5) " We "assume that the legislature chose, with care,  the words it used when it enacted the relevant statute."  Barr v.  Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563, (2004).
 

6) "However, when current and prior versions of a  statute are at issue, there is a presumption that the  General Assembly, in amending a statute, intended to effect  a substantive change in the law." Virginia-American Water  Co. v. Prince William County Serv. Auth., 246 Va. 509, 517,  436 S.E.2d 618, 622-23 (1993); Dale v. City of Newport  News, 243 Va. 48, 51, 412 S.E.2d 701, 702 (1992). "Further,  we assume that the General Assembly's amendments to a  statute are purposeful, rather than unnecessary. AAA  Disposal Servs. v. Eckert, 267 Va. 442, 446, 593 S.E.2d  260, 263 (2004); Virginia-American Water Co., 246 Va. at  517, 436 S.E.2d at 623; Cape Henry Towers, Inc. v. National  Gypsum Co., 229 Va. 596, 600, 331 S.E.2d 476, 479 (1985)." West Lewinsville Heights Citizens Association et. al v. Board of Supervisors of Fairfax County, 270 Va. 259, 618 S.E.2d. 311 (2005).

7) "The Supreme Court repeatedly has affirmed that  it  is  a presumption  of statutory  construction  that,   where  both general  and  specific   statutes  appear  to address  a   matter,  the General  Assembly intends the  specific statute to  control the subject." See Dodson v. Potomac Mack Sales & Service, 241 Va.  89, 400 S.E.2d  178 (1991);  Barr v. Town  &  Country   Properties,  240 Va.  292, 396 S.E.2d 672  (1990); Va.  National Bank v. Harris, 220 Va.  336, 257 S.E.2d  867 (1979)

8) "When a statute begins with the phrase "notwithstanding any other provision of law," it is presumed that the General Assembly intended to override any potential conflicts with earlier legislation.1" Op. Va. Att'y Gen.: Op. No. 01-010, Jan. (2001).

9) "The construction of statutes by agencies charged with administration of those statutes is entitled to great weight.23 A decision of an agency charged by the General Assembly with statewide administration, unless it is clearly wrong, carries great weight and is entitled to deference.24 The grant of regulatory authority extends only to duties or powers conferred by law. As such, "regulations, promulgated pursuant to definitive statutory authority, have the force and effect of law."25 Moreover, those regulations which "clearly and explicitly mirror" statutory authority are likeliest to be sustained.26 Any regulation of the Department must be reasonably grounded in an identifiable and definitive statutory foundation." Op. Va. Att'y Gen. No. 02-074, Sept. (2002). See Also: National Wildlife Federation v. Carol M. Browner, EPA, (D.C. Cir, 1997), "Generally, the court accords substantial deference to an agency's interpretations of its own regulations. See Auer v. Robbins, 117 S. Ct. 905, 911 (1997); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). Provided the interpretation "does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.' " Stinson v. United States, 508 U.S. 36, 45 (1993) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).

10) "Similarly, when the appellant challenges a judgment call on a topic on which "the agency has been entrusted with wide discretion by the General Assembly," we will overturn the decision only if it can be fairly characterized as  "arbitrary or capricious" and thus a "clear abuse of delegated discretion." Vasaio v. Dep't of  Motor Vehicles, 42 Va. App. 190, 196-97, 590 S.E.2d 596, 599 (2004) (citations omitted). On the other hand, an "agency does not possess specialized competence over the  interpretation of a statute merely because it addresses topics within the agency's delegable  authority." Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 634, 593 S.E.2d 568, 571 (2004);  see also 7-Eleven, Inc. v. Dep't of Envtl. Quality, 42 Va. App. 65, 73, 590 S.E.2d 84, 88 (2003) (en banc). Pure statutory construction, a matter within the "core competency of the judiciary,"  Finnerty, 42 Va. App. at 635, 593 S.E.2d at 571, requires de novo review. Mattaponi Indian Tribe, 43 Va. App. at 707, 601 S.E.2d at 675 (citation omitted). "This axiom stems from basic principles of separation of powers. 'It is emphatically the province and duty of the judicial department to say what the law is.'" Finnerty, 42 Va. App. at 635, 593 S.E.2d at 571 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). It necessarily follows that the a priori question whether the statute delegates or withholds discretion is itself a question of statutory interpretation, one implicating our duty of de novo review." - Citland Ltd. v. Attorney General Kilgore, 45 Va. App. 268, 610 S.E.2d 310 (2005).

11) "The circuit court nonetheless deferred to the Technical Review Board's reasoning, correctly noting that courts give "great deference" to an agency's interpretation of its own regulations. See Holtzman Oil Corp. v. Commonwealth, 32 Va. App. 532, 539, 529 S.E.2d 333, 337 (2000). This deference stems from Code § 2.2-4027, which requires that reviewing courts "take due account" of the "experience and specialized competence of the agency" promulgating the regulation. Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 160-61, 384 S.E.2d 622, 627 (1989) (interpreting former Code § 9-6.14:17). Even so, "deference is not abdication, and it requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ." EEOC v. Arabian American Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J., concurring). No matter how one calibrates judicial deference, the administrative power to interpret a regulation does not include the power to rewrite it. When a regulation is "not ambiguous," judicial deference "to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation." Christensen v. Harris County, 529 U.S. 576, 588 (2000). Though agencies may be tempted to adjudicate their way around unwanted regulations, such overreaching undermines the notice and public hearing procedures of the rulemaking process - thereby putting in jeopardy the "enhanced political accountability of agency policy decisions adopted through the rulemaking process" and the democratic virtue of allowing "all potentially affected members of the public an opportunity to participate in the process of determining the rules that affect them." 1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.8, at 369, 372 (4th ed. 2002); see generally 1 Charles H. Koch, Jr., Administrative Law & Practice § 2.12, at 53 (2d ed. 1997)." Board of Supervisors of Culpeper County v. State Building Code Technical Review Board, 52 Va. App. 460, 663 S.E.2d 571 (2008).

 

12) "While it is not binding on this Court, an Opinion of the  Attorney General is "entitled to due consideration." Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d  858, 861 (1998).  This is particularly so when the General  Assembly has known of the Attorney General's Opinion, in this case for five years, and has done nothing to change it.  "The legislature is presumed to have had knowledge of the Attorney General's interpretation of the statutes, and its failure to make corrective amendments evinces legislative acquiescence in the Attorney General's view." Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06 (1983).  Beck v. Shelton, 267 Va 482; 593 S.E.2d 195 ( 2004).
 

13) "The jurisdiction of the legislature of any state, however, generally is limited to the geographical area governed by that state. Therefore, "legislative enactments apply only to persons or things within the territory over which the enacting legislature exercises jurisdiction."9 Furthermore, as a general rule, the statutory law of a state can have no effect outside the territorial limits of that state, unless it is given effect in a foreign jurisdiction by courtesy or comity. The Supreme Court of Virginia notes that "[s]tatutes derive their force from the authority of the Legislature, and as a necessary consequence their effect will be limited to the boundaries of the State." Op, Va. Att'y. Gen. 04-080, (2004), See Also: it will be presumed ...that a legislative body... did not intend to give its enactments an impermissible extraterritorial operation. 82 C.J.S. Statutes § 310 (1999).  Enacting a statute with an impermissible extraterritorial effect would violate due process. " Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).  

14) "Finding that the Commissioner of the DMV is a public  official, and recognizing that we presume "public officials will obey the law," we held that,  absent evidence to the contrary, we must presume the commissioner followed the statute's  requirements for mailing the notice. " Smith v. Commonwealth, Va. App. (2004 Unpublished).
 

15) "However, whenever an "agency's statutory interpretation conflicts with the language of the statute or when the interpretation has not been consistently and regularly applied, the usual deference accorded to an agency's interpretation should be withheld." Commonwealth, Dept. of Mines, Minerals & Energy v. May Bros., 11 Va. App. 115, 119, 396 S.E.2d 695, 697 (1990) (citing Univ. of Richmond v. Bell, 543 F. Supp. 321, 327 (E.D. Va. 1982))." Williams v. Commonwealth , 57 Va. App. 108, 698 S.E.2d 917, 923 (2010).


16) "When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implementation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule's meaning. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to permit the person who promulgates a law to interpret it as well. "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949).

Deferring to an agency's interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency's interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappropriateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends." Talk America v. Michigan Bell Telephone Company, 564 U.S. _ (2011)(Justice Scalia's Concurrence). See Auer v. Robbins, 519 U. S. 452, 461 (1997).


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Construed Against the State/ Vagueness

1) "It is an ancient maxim of the law that all such statutes must be construed strictly against the state and favorably to the liberty of the citizen.  The maxim is founded on the tenderness of the law for the rights of individuals and on the plain principle that the power of punishment is vested in  the legislature and not in the judicial department. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penalty.  There can be no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute.  If these principals are violated, the fate of the accused is determined by the arbitrary discretion of the judges and not by the express authority of the law." Wither's Case, 109 Va. 837 (1909).

2) "When a statute is penal in nature, it "must be strictly construed against the Commonwealth and in favor of an accused." Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994).

3) "It would be dangerous indeed to carry the principal  that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute because it is of a kindred character with those which are enumerated. If the statute be less comprehensive than the legislature intended, it is for that body to extend its operation and not for the courts to do so." Sutherland's Case, 109 Va. 834 (1909).

4) "Upon our review of the language in Code § 46.2-894, we note that the word "involved" is used as a participle modifying a noun. There are 19 definitions of the word "involved" and the word "involve" in Webster's Third New International Dictionary, the source upon which the Court of Appeals relied in its opinion. The use of such expansive definitions of a word in a penal statute is contrary to our well-established principle that when a statute "is penal in nature, it must be strictly construed against the state and limited in application to cases falling clearly within the language of the statute." Turner, 226 Va. at 459, 309 S.E.2d at 338...."If a penal statute be so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty."...And, we note, that in the application of legal principles pertinent to a finding of proximate causation, we have held that "[t]hese principles are constant whether considered in a civil or criminal context." Gallimore v. Commonwealth, 246 Va. 441, 447, 436 S.E.2d 421, 425 (1993)....We have repeatedly held that a statute that creates a criminal offense "must specify with reasonable certainty and definiteness the conduct which is commanded or prohibited . . . so that a person of ordinary intelligence may know what is thereby required of him." Swisher v. Commonwealth, 256 Va. 471, 486, 506 S.E.2d 763, 771 (1998) (quoting Caldwell v. Commonwealth, 198 Va. 454, 458, 94 S.E.2d 537, 540 (1956)); McCutcheon v. Commonwealth, 224 Va. 30, 35, 294 S.E.2d 808, 811 (1982)." Robinson v. Commonwealth, 274 Va. 45, 51, 645 S.E.2d 470, 473 (2007).

5) "While it is true that penal statutes must be strictly  construed against the Commonwealth in criminal cases, "we will  not apply 'an unreasonably restrictive interpretation of the statute' that would subvert the legislative intent expressed therein."  Armstrong, 263 Va. at 581, 562 S.E.2d at 144. Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563, (2004).

6) "In determining whether a legislative enactment is  unconstitutionally vague, the Supreme Court has considered whether the words used have a  well-settled . . . meaning . . . ."  Id.; see also, e.g., Pedersen v. City of Richmond, 219 Va. 1061, 1065, 254 S.E.2d 95, 98 (1979) (citing dictionary to determine "generally understood" meaning  for adjective in ordinance). "A penal statute is void for vagueness if it both fails to give a person of ordinary  intelligence notice that her contemplated conduct is forbidden by the statute and encourages  selective prosecution.  Woodfin v. Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988)...."  Tingle v. City of Richmond,Va. App. (2004 Unpublished)

7) "The point relative to clergy was settled, in Powlter's case, upwards of two hundred years ago ; and that resolution ought not now to be shaken ; for the solemn decisions of the judges upon a statute become part of the statute, 1 Burr. 419; and the security of men's lives and property, require that they should be adhered to: for precedents serve to regulate our conduct ; and there is more danger to be apprehended from uncertainty, than from any exposition; because, when the rule is settled, men know how to conform to it; but, when all is uncertain, they are left in the dark, and constantly liable to error; for the same offence which, at one time, was thought entitled to clergy, at another, may be deemed capital ; and thus the life or death of the citizen will be made to depend, not upon a fixt rule, but upon the opinion of the judge, who may happen to try him, than which a more miserable state of things cannot be conceived. 1 Vern. 18, 3 Burr. 1730, per Wilmot, J." Commonwealth v. Posey, 8 Va. (4 Call) 109, 120 (1787).

8)  "[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id., at 353-35"   Marks v. United States, 430 U.S. 188 (1977).


Statutory Exceptions, Negative Element v. Affirmative Defense


1) "When construing penal statutes which contain qualifications, exceptions or exemptions to their application, the limiting language may be viewed as a negative element of the offense which the prosecution must disprove. Alternately, the court may determine that the exemption is a statutory defense, which the accused can assert to defeat the prima facie case of the prosecution. In determining whether specific limiting language is an element of the offense or a statutory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert the existence or absence of the underlying facts sustaining the applicability of the limitation. When determining whether the limiting language is a negative element or a statutory defense, this Court has identified four factors to be considered: 'the wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e.,sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant.' An application of these factors to the present case demonstrates that the phrase "except as provided by law," as used in Code § 29.1-553, establishes a statutory defense as opposed to a negative element." Goble v. Commonwealth, 57 Va. App. 137, 698 S.E.2d 931 (2010).


2) "In order to resolve whether there is a due process violation in this case, we first must address the threshold issue of whether the absence of a valid prescription is an affirmative defense or a negative element of the offense. If it is the latter, the burden of proof is on the Commonwealth, and it cannot be shifted to the accused...When construing penal statutes which contain qualifications, exceptions or exemptions to their application, the limiting language may be viewed as a negative element of the offense which the prosecution must disprove. Alternately, the court may determine that the exemption is a statutory defense, which the accused can assert to defeat the prima facie case of the prosecution. Regular Veterans [Association, Ladies Auxiliary v. Commonwealth], 18 Va. App. [683,] 688, 446 S.E.2d [621,] 624 [(1994)] (. . . [The accused bears] the burden of producing evidence [of the negation of circumstances] sufficient to raise a reasonable doubt of [his] guilt). In determining whether specific limiting language is an element of the offense or a statutory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert the existence or absence of the underlying facts sustaining the applicability of the limitation. Accordingly, we should consider the wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant. Commonwealth v.Stoffan, 323 A.2d 318, 324 (Pa. Super. Ct. 1974); See also State v. Williamson, 206 N.W.2d 613, 618 (Wis. 1973) (It is undoubtedly the general rule that the state must prove all the essential facts entering into the description of the offense. But it has been held in many cases that when a negation of a fact lies peculiarly within the knowledge of the defendant it is incumbent on him to establish that fact). Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995) at 489-90, 458 S.E.2d at 307-08 (internal quotations and some citations omitted).

We next observe that the "valid prescription" exemption of Code § 18.2-250 relates to a fact that would be solely within the knowledge of the accused. If we accept appellant's contention that the Commonwealth must prove appellant had no valid prescription, the offense would be virtually unprovable. Under appellant's theory, to obtain a conviction under the facts of this case, the Commonwealth would be required to prove that no medical professional, wherever located, in this Commonwealth or elsewhere, had prescribed the drug to appellant. This would involve a nationwide search of chain drugstores, as well as independent pharmacies, hospitals, prison infirmaries, etc. Appellant, at oral argument, conceded that such an undertaking would most likely be impossible. The General Assembly clearly did not intend such a result, nor would they enact such an impotent statute." Williams v. Commonwealth , 57 Va. App. 108, 698 S.E.2d 917 (2010).




Constitutional Construction

1)  "The rights enumerated in this Bill of Rights shall not be construed to limit other rights of the people not therein expressed." Article I, Section 17, Virginia Constitution (1971). "For (not to mention the liberal and beneficial manner of Construction which we have a right to) the plain, natural, and obvious meaning of the charter is, to grant and confirm certain Rights, Privileges, and Immunities to all his Majesty's subjects who then did or ever should inhabit that tract of country in America usually called Virginia, according to the Descriptions and Boundaries of the original Charters, not before otherwise appropriated or disposed of by His Majesty's Ancestors." - George Mason, July 1773, Extracts From The Virginia Charters, With Some Remarks On Them Made In The Year 1773
 

2)“The office and purpose of the constitution is to shape and fix the limits of governmental activity. It thus proclaims, safeguards and preserves in basic form the pre-existing laws, rights, mores, habits, and modes of thought and life of the people as developed under the common law and as existing at the time of its adoption to the extent and therein stated…The purpose and object sought to be attained by the framers of the constitution is to be looked for, and the will and intent of the people who ratified it is to be made effective.” Dean v. Paolicelli, 194 Va. 219, (1952).  See also Marshall v. NVTA, 275 Va. 419, 657 S.E.2d. 71 (2008): " The Constitution of Virginia “is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit.” Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504, 511 (1959); accord City of Roanoke v. Elliott, 123 Va. 393, 406, 96 S.E. 819, 824 (1918). As we have stated, the General Assembly may enact any law or take any action “not prohibited by express terms, or by necessary implications by the State Constitution or the Constitution of the United States.” Kirkpatrick, 146 Va. at 126, 136 S.E. at 190."

3)“A fundamental right is one explicitly or implicitly implied guaranteed by the constitution.” Ballard v. Commonwealth, 228 Va. 216 (1984). See also Marshall v. NVTA, 275 Va. 419, 657 S.E.2d. 71 (2008).

4) "It is an "established principle of constitutional law that a court will not rule upon the constitutionality of a statute unless such a determination is absolutely necessary to decide the merits of the case" Volkswagen of America, Inc. v. Smit, 266 Va. 444, 454, 587  S.E.2d 526, 532 (2003). See Also: "[A] statute will be construed to avoid a  constitutional question whenever this is possible." Yamaha Motor Corp. v. Quillian, 264 Va.  656, 665, 571 S.E.2d 122, 126-127 (2002).

5) "The construction of a constitutional  provision by the General Assembly is entitled to consideration, and if the construction is  contemporaneous with adoption of the constitutional provision, it is entitled to great  weight. In addition, "[l]ong acquiescence in such an announced  construction so strengthens it that it should not be changed unless plainly wrong." Op. Att'y Gen. No. 04-004, April , (2004).

6) Constitutional provisions are either self-executing  or mandatory.2 A self-executing provision does not require enabling legislation  for its enforcement.3 A mandatory provision declares or imposes a duty or  requirement that must be followed.4 A directory provision sets forth procedures  or "confer[s] discretion on the legislature" for its implementation.5 Op. Va. Att'y Gen. No. 04-074, Oct. (2004).

7) "We review arguments regarding the constitutionality of a statute de novo. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005) (citing Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003)) When the constitutionality of a statute is challenged, we are guided by the principle that all acts of the General Assembly are presumed to be constitutional. Va. Society for Human Life v. Caldwell, 256 Va. 151, 156-57, 500 S.E.2d 814, 816 (1998)...."[W]here a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation." Esper Bonding Co. v. Commonwealth, 222 Va. 595, 597, 283 S.E.2d 185, 186 (1981). As a general rule, "[a] party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights." County Court of Ulster County v. Allen, 442 U.S. 140, 154-55 (1979). We conclude that appellant falls within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are unconstitutionally infringed. Accordingly, appellant lacks standing to challenge facially the constitutionality of Code § § 18.2-266 and 18.2-269. Thus, we consider the constitutionality of the statutes only as they apply to appellant in this case. See DePriest v. Commonwealth, 33 Va. App. 754, 761, 537 S.E.2d 1, 4 (2000) ("An individual may challenge the constitutionality of a law only as it applies to him or her.").   Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523 (2007).

8) "However, when a court, in determining the constitutionality of a statute, departs from the express limitations of the Constitution and relies instead on implied constitutional restrictions, the legislative usurpation must be very clear and palpable to justify the court’s holding that an enactment is unconstitutional. Whitlock v. Hawkins, 105 Va. 242, 249, 53 S.E. 401, 403 (1906)." Marshall v. NVTA, 275 Va. 419, 657 S.E.2d. 71 (2008).

9) "This Court’s jurisprudence with respect to Article IV, Section 12 is well established. “The fact that many things of a diverse nature are authorized or required to be done in the body of the act, though not expressed in its title is not objectionable, if what is authorized by the act is germane to the object expressed in the title, or has a legitimate and natural association therewith, or is congruous therewith, the title is sufficient.” Town of Narrows v. Board of Supervisors, 128 Va. 572, 582-83, 105 S.E. 82, 85 (1920). Thus, Article IV, Section 12 requires that subjects encompassed in a statute, but not specified in the statute’s title, be congruous, and have a natural connection with, or be germane to, the subject stated in the title. Commonwealth v. Brown, 91 Va. 762, 772, 21 S.E. 357, 360 (1895) (construing former Va. Const. art. V, § 15 (1869)). This mandate, however, does not require that an act’s title include an index to each provision of the act. Southern Ry. Co. v. Russell, 133 Va. 292, 298, 112 S.E. 700, 702 (1922) (construing former Va. Const. art. IV, § 52 (1902))... “[I]f there is doubt as to the sufficiency of the title, the doubt must be resolved in favor of its sufficiency, as courts will not declare an act of the legislature unconstitutional unless it is plainly so.” Commonwealth v. Dodson, 176 Va. 281, 305-06, 11 S.E.2d 120, 131 (1940) (citations omitted); accord State Bd. of Health, 219 Va. at 71, 245 S.E.2d at 434. Due to the nature of Article IV, Section 12, the analysis of a particular act must necessarily “stand on its own,” and we must look to both the body and to the title of the act under scrutiny to determine whether the act violates the Constitution. State Bd. of Health, 219 Va. at 72, 245 S.E.2d at 434. Marshall v. NVTA, 275 Va. 419, 657 S.E.2d. 71 (2008).

10) "As a general rule, where a statute is constitutional as applied to a litigant, the litigant has no standing to challenge the statute on the ground that it may be unconstitutional on its face, that is, as applied to a third person in a hypothetical situation."  Esper Company v. Commonwealth, 222 Va. 595, 597, 283  S.E.2d 185, 186 (1981) (citation omitted)...."We have  said that classification ordinarily will be upheld "if any state of facts  can be reasonably conceived that would support it."  But where the  statute creates a "suspect classification" (e.g. race, sex, or religion) or  where it affects a fundamental constitutional right, the presumption  of constitutionality fades, and the "strict scrutiny" test, rather than the  more relaxed "rational relationship" test applies."   James Jackson v. Commonwealth, 44 Va. App. 218, 604 S.E.2d 122 (2004).

11) "Statutory interpretation presents a pure question of law and is accordingly subject to de novo review by this Court." Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006)., Jones v. Commonwealth, 276, Va. 121, 661 S.E.2d 412 (2008).


Retroactive Enactment of Laws

1) "Accordingly, when a statute is amended while an action is pending, the rights of the parties are  to be deemed in accordance with the law in effect when the action is begun, unless the amended  statute shows a clear intention to vary such rights.Id. (citing Burton v. Seifert Plastic Relief  Co., 108 Va. 338, 350-51, 61 S.E. 933, 938 (1908)) (emphasis added); see also Berner v. Mills,  265 Va. 408, 413, 579 S.E.2d 159, 161 (2003) (Our analysis is guided by the fundamental  principles of statutory construction that retroactive laws are not favored, and that a statute is  always construed to operate prospectively unless a contrary legislative intent is manifest.);  Parker v. County of Madison, 244 Va. 39, 41, 418 S.E.2d 855, 856 (1992) ([N]ew laws will  apply only to future cases unless there is something in the very nature of the case, or in the  language of the new provision, which shows that the new law was intended to have a  retrospective effect.(citing Glouster Realty Corp. v. Guthrie, 182 Va. 869, 875, 30 S.E.2d 686,  688-89 (1944))).  Further, [e]very reasonable doubt is resolved against a retroactive operation of  a statute, and words of a statute ought not to have a retrospective operation unless they are so  clear, strong and imperative that no other meaning can be annexed to them . . . . Shilling v.  Commonwealth, 4 Va. App. 500, 507, 359 S.E.2d 311, 315 (1987) (citing 17 Michies Jurisprudence Statutes § 73 (1979)); see also Foster v. Smithfield Packing Co., 10 Va. App. 144,  147, 390 S.E.2d 511, 513 (1990) ([R]etroactive effect will be given to a statute only when  legislative intent that a statute be so applied is stated in clear, explicit, and unequivocal terms.). Taylor v. Commonwealth, 44 Va. App. 179, 604 S.E.2d 103 (2004).
 

 


Common Law

 

1) "In  construing statutes, the statutory definition must prevail over the common law definition."  Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374 (2000).
 

2) " [The General Assembly] is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law." Isbel v. Commercial Invetsments Associates, Inc., 273 Va. 605, 644 S.E.2d 72 (2007). See Also: Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003).
 
 

3) "We also apply the established principle that a statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.  Linhart v. Lawson, 261 Va. 30, 35, 540 S.E.2d 875, 877 (2001); Schwartz v. Brownlee, 253 Va. 159, 166, 482 S.E.2d 827, 831 (1997); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988).  Therefore, a statutory change in the common law will be recognized only in that which is expressly stated in the words of the statute or is necessarily implied by its language.  Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000); Boyd, 236 Va. at 349, 374 S.E.2d at 302." Herndon v. St. Mary's Hospital,Inc., 266 Va. 472, 587 S.E. 567 (2003). 

 
 

4) "[A] statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested."Herndon v. St. Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567, 569 (2003). "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965). Accordingly, "[a] statutory change in the common law is limited to that which is expressly stated in the statute or necessarily implied by its language because there is a presumption that no change was intended." Mitchem v. Counts, 259 Va. 179, 186, 523 S.E.2d 246, 250 (2000). "When an enactment does not encompass the entire subject covered by the common law, it abrogates the common-law rule only to the extent that its terms are directly and irreconcilably opposed to the rule." Boyd [v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988)]." Wade v. Commonwealth, 56 Va. App. 689, 696 S.E.2d 258 (2010).

 


Previous Construction of a Statute

1) "Where a statute has been construed by the courts, and  is then re-enacted by the legislature, the construction given to  it is presumed to be sanctioned by the legislature, and  thenceforth becomes obligatory upon the courts."  Miller v. Commonwealth, 180 Va. 36, 43, 21 S.E.2d 721, 724 (1942)."  Jones, et al v. State Farm Mutual Auto. Ins. Co., 268Va. 396, 601 S.E.2d 645 (2004)

2) "The term "battery" possesses "a long history of definition by" the courts, and therefore, it "carr[ies] [its] historical construction" when used by the General Assembly in a statute. Quintana v. Commonwealth, 224 Va. 127, 140, 295 S.E.2d 643, 649 (1982) Gilbert v. Commonwealth, 45 Va. App. 67, 608 S.E.2d 509 (2005)., See Also: Op. Va. Att'y, Gen,No. 04-066, Sept (2004).

3) "We have said that “when judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its judicial interpretations as well.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 85 (2006)" Rowe v. New Hampshire Motor Transp. Assoc., 551 US 364 (2008).

New Law New Remedy

4) "It is an established principle of statutory interpretation that "[a] statute prescribing a new remedy for an existing right should never be construed to abolish a pre-existing remedy in the absence of express words or necessary implication." Levy v. Davis, 115 Va. 814, 821, 80 S.E. 791, 794 (1914). Further, " '[w]hen a statute gives a new remedy, and contains no negative, express or implied, of the old remedy, the new one provided by it is cumulative, and the party may elect between the two.' " Id. (citations omitted).SUP'RS of Stafford County v. Crucible, Inc., 278 Va. 152, 677 S.E.2d 283 (2009).

 


Two Statutes Pertaining to the Same Subject

1) "It is well accepted that statutes relating to the same subject should not be read in isolation.4 Such statutes should be considered in pari materia.5 Moreover, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent.6 An accepted principle of statutory construction is that, when it is not clear which of two statutes applies, the more specific statute prevails over the more general.7 Also, when statutes provide different procedures on the same subject matter, "the general must give way to the specific."8  - Op. Va. Att'y Gen. No. 03-032, Sept. (2003). See also: Peerless Ins. Co. v. County of Fairfax, 274 Va. 236, 244, 645 S.E.2d 478, 483 (2007).

2)"As a preliminary matter applicable to all of your questions and in accord with the rule of statutory construction in pari materia,2 statutory provisions are not to be considered as isolated fragments of law. Such provisions are to be considered as a whole, or as parts of a greater connected, homogeneous system of laws, or a single and complete statutory compilation.3 Statutes in pari materia are considered as if they constituted but one act, so that sections of one act may be considered as though they were parts of the other act.4 [A]s a general rule, where legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, and they should be so construed as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness. It will be assumed or presumed, in the absence of words specifically indicating the contrary, that the legislature did not intend to innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act." 5 Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7 (1957) (quoting 50 AM. JUR., Statutes, § 349, at 345-47, quoted in Washington v. Commonwealth, 46 Va. App. 276, 298, 616 S.E.2d 774, 785 (2005) (Benton, J. & Fitzpatrick, C.J., dissenting)); see also Smith v. Kelley, 162 Va. 645, 651, 174 S.E. 842, 845 (1934) (noting that in absence of words to contrary, legislature did not intend to alter or repeal general statute or system). Op. Va. Att'y Gen. Aug. (2008).

3) "Closely related statutes must be read as being consistent with one another. See Zamani v. Commonwealth, 26 Va. App. 59, 63, 492 S.E.2d 854, 856 (1997) ("[T]wo statutes which are closely interrelated must be read and construed together and effect given to all of their provisions."), aff'd, 256 Va. 391, 507 S.E.2d 608 (1998). Statutes should be construed, if possible, so as to harmonize, and force and effect should be given the provisions of each. Lillard v. Fairfax County Airport Auth., 208 Va. 8, 13, 155 S.E.2d 338, 342 (1967). Meierotto v. Commonwealth 50 Va. App. 1, 646 S.E.2d 1 (2007).

4) [T]he primary objective of statutory construction is to ascertain and give effect to legislative intent.'"  Crews v. Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d 1, 3 (1987) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)).  In interpreting statutes, "courts should give the fullest possible effect to the legislative intent embodied in the entire statutory enactment."  Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989).  To do so, "[t]wo statutes which are closely interrelated must be read and construed together and effect given to all of their provisions." ACB Trucking, Inc. v. Griffin, 5 Va. App. 542, 547-48, 365 S.E.2d 1, 3 (1988) (citations omitted).  Potentially conflicting statutes should be harmonized to give force and effect to each.  See Board of Supervisors v. Marshall, 215 Va. 756, 761, 214 S.E.2d 146, 150 (1975).
 
 

5) " County and municipal ordinances must be consistent  with the laws of the Commonwealth. Blanton v. Amelia  County, 261 Va. 55, 63, 540 S.E.2d 869, 873-74 (2001); Klingbeil Mgmt. Group Co. v. Vito, 233 Va. 445, 449, 357  S.E.2d 200, 202 (1987); King v. County of Arlington, 195  Va. 1084, 1090, 81 S.E.2d 587, 591 (1954); see Code 1-13.17. Such ordinances are inconsistent with state law  when they cannot coexist with a statute. Blanton, 261 Va.  at 64, 540 S.E.2d at 874; King, 195 Va. at 1091, 81 S.E.2d  at 591. The fact that a county or municipal ordinance enlarges  on a statute's provisions does not create a conflict with  the statute unless the statute limits the requirements for  all cases to its own terms. Blanton, 261 Va. at 64, 540  S.E.2d at 874; Allen v. City of Norfolk, 196 Va. 177, 181,  83 S.E.2d 397, 400 (1954); King, 195 Va. at 1090, 81 S.E.2d  at 591. Thus, if a statute and a local ordinance both can  be given effect, courts must harmonize them and apply them  together. Blanton, 261 Va. at 64, 540 S.E.2d at 874;  Klingbeil, 233 Va. at 449, 357 S.E.2d at 202; King, 195 Va.  at 1091, 81 S.E. at 591." West Lewinsville Heights Citizens Association et. al v. Board of Supervisors of Fairfax County,270 Va. 259, 618 S.E.2d. 311 (2005).

 


The Meaning of Words

 

1) In the absence of a contrary definition, the words in a statute are presumed to have their usual and ordinary meaning. See, e.g., Anderson v. Commonwealth, 182 Va. 560, 565, 29 S.E.2d 838, 840 (1944). "In the absence of a statutory definition, words in statutes are to be given their ordinary meaning within the statutory context." Grant v. Commonwealth, 223 Va. 680 (1982).

2) "'When  the General Assembly uses two different terms in the same act, it is presumed to mean two  different things.'" Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987)  (quoting Forst v. Rockingham Poultry Marketing Coop., Inc., 222 Va. 270, 278, 279 S.E.2d 400,  404 (1981)); see also Morris v. Va. Retirement Sys., 28 Va. App. 799, 805-06, 508 S.E.2d 925,  928 (1999) ("Had the legislature intended that the phrases 'any payments' . . . and 'periodic  payments for disability or death' . . . [in the same statute] meant the same thing, they would have  used the same terms."). Citing Hodges v. Commonwealth, 45 Va. App. 735, 613. S.E.2d 834 (2005). , See Also: "When the [General Assembly] uses two different terms in the same act, it is presumed to mean two different things." City of Hopewell v. County of Prince George, 239 Va. 287, 294, 389 S.E.2d 685, 689 (1990). Op. Va. Att'y Gen. No. 04-067, Nov. (2004).

3) A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929). See Also :"We must assume that the legislature did not intend to do a vain and useless thing." Williams v. Commonwealth, 190 Va. 280, 293, 56 S.E.2d  537, 543 (1949).  "It is a well established rule of construction that a statute ought to  be interpreted in such a manner that it may have effect, and not  found to be vain and elusive. " Lampkins v. Commonwealth , 4 Va. App. 709, 607 S.E.2d 722 (2005). See Also: Hodges v. Commonwealth, 45 Va. App. 735, 613. S.E.2d 834 (2005) "A word or clause contained in a statute may only be rejected as surplusage if it "appears to have been inserted through inadvertence or mistake, and  which is incapable of any sensible meaning," or is otherwise repugnant to the rest of the statute.  Burnette v. Commonwealth, 194 Va. 785, 788-89, 75 S.E.2d 482, 485 (1953).
 

4) "We will not construe a statute by singling out a particular term or phrase, but will construe the words and terms at issue in the context of the other language used in the statute. See City of Virginia Beach, 246 Va. at 236-37, 435 S.E.2d at 384; Wertz, 245 Va. at 70, 425 S.E.2d at 501; VEPCO v. Bd. of Supervisors, 226 Va. 382,387-88, 309 S.E.2d 308, 311 (1983)." Buonocore v. Chesapeake and Potomac Telphone Company, 254 Va. 469 492 S.E.2d 439 (1997).

5) [w]hile in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. "The Court has stated the related principle that "the plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." Statutes should not be interpreted in ways that produce absurd or irrational consequences. Op Att'y Gen. No. 01-032, March, (2001) Citing: Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934), Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983), McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952); 1993 Op. Va. Att'y Gen. 192, 196, and opinions cited therein.
 

6) "A statute must be construed with reference to its subject  matter, the object sought to be attained, and the legislative  purpose in enacting it; the provisions should receive a  construction that will render it harmonious with that purpose  rather than one which will defeat it."  Stanley v. Tomlin, 143  Va. 187, 195, 129 S.E. 379, 382 (1925).
 

7)[i]f the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it. It is unnecessary to resort to any rules of statutory construction when the language of a statute is unambiguous. In those situations, the statute's plain meaning and intent govern. See Temple v. City of Petersburg, 182 Va. 418,  423, 29 S.E.2d 357, 358 (1944); see also 1993 Op. Va. Att'y Gen. 256, 257, See Also, See Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982); 1993 Op. Va.  Att'y Gen. 99, 100

"Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness." Gillespie v. Commonwealth, 272 Va. 753, 758, 636 S.E.2d 430, 432 (2006).

8) "The Commonwealth also contends our interpretation misses entirely the intent of the statute, which is to impose an enhanced punishment on those who assault law-enforcement officers and thereby deter violence against them. Here again, we do not in the slightest denigrate this perceived legislative purpose. But the "question here is not what the legislature intended to enact, but what is the meaning of that which it did enact. We must determine the legislative intent by what the statute says and not by what we think it should have said." Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d 401, 406 (1963). When it chooses to do so, the General Assembly includes "law-enforcement agents of the Armed Forces of the United States" and other federal officers within the statutory meaning of "law-enforcement officer." See, e.g., Code 18.2-308(M); Code 18.2-433.1. It simply did not choose to do so in Code 18.2-57(E)." South v. Commonwealth, 47Va. App. 247, 623 S.E.2d 419 (2005).

9) "Black's Law Dictionary 1586 (8th ed. 2004) defines "valid" as "[l]egally sufficient; binding." See Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc) (noting that if the Code of Virginia does not provide a statutory definition we may look to the dictionary definition to determine legislative intent)." Shreve v. Commonwealth, 44 Va. App. 541, 605 S.E.2d 780,(2004).

10) "In drafting the statute, the legislature separated the two prohibitions with a comma  followed by the disjunctive word "nor." We have noted that, pursuant to the rules of grammar,  "phrases separated by a comma and [a] disjunctive . . . are independent." Smoot v. Commonwealth, 37 Va. App. 495, 501, 559 S.E.2d 409, 412 (2002). The disjunctive serves to connect the two parts of the sentence but also to keep them separate and independent." See id. Shreve v. Commonwealth, 44 Va. App. 541, 605 S.E.2d 780 (2004).

11) "Whether or not the word "use" alone supplies a mens rea element, the parties primary focus on that word is too narrow. Particularly when interpreting a statute that features as elastic a word as use, we construe language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229 (1993); Bailey, supra, at 143. The critical aspect of §16(a) is that a crime of violence is one involving the use of physical force against the person or property of another. (Emphasis added.) As we said in a similar context in Bailey, use requires active employment. 516 U.S., at 145. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would use...physical force against another when pushing him; however, we would not ordinarily say a person use[s] . . . physical force against another by stumbling and falling into him. When interpreting a statute, we must give words their ordinary or natural meaning.  Smith, supra, at 228. The key phrase in §16(a) the use . . . of physical force against the person or property of another most naturally suggests a higher degree of intent than negligent or merely accidental conduct. See United States v. Trinidad-Aquino, 259 F.3d, at 1145; Bazan-Reyes v. INS, 256 F.3d, at 609. Petitioner s DUI offense therefore is not a crime of violence under §16(a)." - Leocal v. Ashcroft (03-583) U.S. (2004)

12) "The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without  justifiable excuse; stubbornly, obstinately,  perversely[.]  The word is also employed to characterize  a thing done without ground for believing it is lawful. United States v. Murdock, 290 U.S. 389, 394 (1933) (citations omitted).  The term "willful act" imports knowledge and consciousness that injury will result from the act done.  The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury. [T]he term "gross, wanton, and culpable" describes  conduct.  The word "gross" means "aggravated or increased  negligence" while the word "culpable" means "deserving of  blame or censure."  Bell [v. Commonwealth, 170 Va. 597,  611, 195 S.E. 675, 681 (1938)].  " 'Gross negligence' is  culpable or criminal when accompanied by acts of  commission or omission of a wanton or wilful nature,  showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts."  Id. at 611-12, 195 S.E. at 681. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220  (1992)." Barrett v. Commonwealth, 268 Va. 170, 597 S.E.2d 104 (2004).

13) "But, courts  are not permitted to add language to a statute nor are they  permitted to accomplish the same result by judicial interpretation."  Shackleford v. Commonwealth, 262 Va. 196, 213, 547 S.E.2d 899, 909 (2001) (internal quotation marks omitted); see also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001).  Rather, when the language of a statute is unambiguous, courts are bound by the plain meaning of that language and may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has stated.  Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003)." Orbe v. Johnson, 267 Va, 567 (2004 Dissenting Opinion).
 

14)  "It is  equally well established, however, that if the language of a  statute is clear and unambiguous, a regulatory interpretation by  the Department that is in conflict with the plain language of the statute cannot be sustained.  See Carr v. Forst, 249 Va. 66,  71, 453 S.E.2d 274, 276 (1995)." General Motors Corporation v. Commonwealth Dept. Of Taxation, 268 Va. 289, 602 S.E.2d 123 (2004).
 

15) "Under the rule of ejusdem generis, when a particular class of persons or things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words. East Coast Freight Lines v. City of Richmond, 194 Va. 517, 525, 74 S.E.2d 283, 288 (1953); Rochingham Bureau v. Harriosnburg, 171 Va. 339, 344, 198 S.E. 908, 911, (1938). Likewise, according to the maxim noscitur a sociis (associated words) when general and specific words are grouped, the general words are limited by the specific and will be construed to embrace only objects similar in nature to those things identified by the specific words. Commonwealth v. United Airlines, 219 Va. 374, 389, 248 S.E.2d 124, 132-33 (1978); Hensley v. City of Norfolk, 216 Va. 369, 374, n.5, 218 S.E.2d 735, 740, n.5 (1975)" Wood v. Henry County Public Schools, 255 Va. 85, 495 S.E.2d 255, (1998).

16) ""If a statute expressly excepts a class which would otherwise fall within its terms, the exception negates the idea that any other class is to be excepted." Reese v. Wampler Foods, Inc., 222 Va. 249, 252, 278 S.E.2d 870, 871 (1981) (citations omitted). See also Singleton v. Int'l Assoc. of Machinists, 240 Va. 403, 407, 397 S.E.2d 856, 859 (1990). Hutter v. Virginia Employment Commission, 50 Va. App. 590, 652 S.E.2d 151 (2007).
 

17)  One such rule, sometimes referred to as the last  antecedent doctrine, is particularly applicable here and can be summarized as follows: Referential and qualifying words and phrases,  where no contrary intention appears, refer solely to the last antecedent.  The last antecedent is  'the last word, phrase, or clause that can be  made an antecedent without impairing the meaning  of the sentence.'  Thus a proviso usually is  construed to apply to the provision or clause immediately preceding it. 2A Norman J. Singer, Sutherland on Statutory Construction  47.33 (6th rev. ed. 2000); see also Barnhart v. Thomas, ___ U.S. ___, ___, 124 S.Ct. 376, 380 (2003) (explaining and applying  "the grammatical 'rule of the last antecedent,' according to which a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows . . . ."); Nobelman v. American Savings Bank, 508 U.S. 324, 330 (1993) (noting that construction of a statute according to the last antecedent rule is "quite sensible as a matter of grammar"). Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004).

18) "We note that the Commonwealth's brief contains an extensive discussion of the history of Code § 18.2-266(iii) and its precursor statutes. That discussion, while interesting, has no legal significance because this Court has a duty to apply the plain language contained in Code § 18.2-266(iii)." Jackson v. Commonwealth, ___Va. ___, S.E.2d ___,____,___ (2007).

19) "An erroneous interpretation of a statute by those charged  with its enforcement cannot be permitted to override [the statute's] clear meaning. Amendments of statutes can only be made by the legislature and not by the courts or administrative  officers charged with their enforcement."  Volkswagen of America, Inc. v. Smit, 266 Va. 444, 587 S.E.2d 526 (2003).

20) "But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” 411 F. 3d, at 550. We also understand that “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932) . Thus, the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning … is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Ibid. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies." Environmental Defense Fund v. Duke Energy Corp., 549 U.S. 561 (2007).

21) "Generally, phrases separated by a comma and the disjunctive "or," are independent. See, e.g., Ruben v. Secretary of DHHS, 22 Cl. Ct. 264, 266 (1991) (finding that, the word "or" connects two parts of a sentence, "'but disconnect[s] their meaning'" (quoting G. Curme, A Grammar of the English Language, Syntax 166 (1986))); Quindlen v. Prudential Ins. Co., 482 F.2d 876, 878 (5th Cir. 1973) (noting disjunctive results in alternatives, which must be treated separately); United States v. Erdos, 474 F.2d 157, 160 (4th Cir. 1973) (finding that limiting phrase in statute is independent of and does not modify two earlier phrases because the limiting phrase is separated from the first two by a comma and the disjunctive "or"); United States v. Riely, 169 F.2d 542, 543 (4th Cir. 1948) (interpreting the use of a comma and the disjunctive "or" as implying two separate and independent phrases in a Virginia statute authorizing payment of dividends by corporation "out of net earnings, or out of its net assets in excess of its capital"). Accordingly, the phrase, "made by the Defendant to any law enforcement officer," is independent of and does not modify the phrase, "[a]ny written or recorded statement or confessions." Smoot v. Commonwealth, 37 Va. App. 495, 501, 559 S.E.2d 409,412 (2002).


22) "In a sentence in twhich the words "every county road or highway" are found, "county," though a noun, is used in the sense of and adjective and modifies both "road" and "highway". Washington-Va. Ry Co. v. Fisher, 121 Va. 229, 235, 92 S.E.2d 809, 811 (1917).


23) "Code §8.01-217(A) does not define what constitutes good cause for an application for change of name. Certainly, the inclusion of a good cause requirement in this subsection for applications for change of name filed by incarcerated persons contemplates a different determination than the one under the requirements of subsection (C) of the statute. And we are of opinion that the good cause requirement reflects a legislative intent to invest circuit courts with discretion regarding the summary disposition of, for example, frivolous applications. However, to be a proper exercise of discretion to determine under subsection (A) that an application lacks good cause, a circuit court's determination to that effect must be supported by evidence in the record.In this case, the facts contained in the record are limited to those asserted in Stephens' petition. The petition was filed under oath and complied with all of the other requirements set forth in Code § 8.01-217(B). The facts stated in the petition did not in any way suggest that the name change was sought with frivolous intentions. To the contrary, the petition unequivocally asserted that Stephens sought to change his name for "religious purposes" in furtherance of his faith in the Islamic religion. Accordingly, based on the record before us, the circuit court's implicit denial of Stephens' petition for lack of good cause was clearly an abuse of discretion requiring reversal and remand without further consideration of the good cause issue by the circuit court." Stephens v. Commonwealth, 274 Va. 157, 645 S.E.2d 276 (2007).


The Terms May/Shall

1) The term "may," as used in a statute, should be given its ordinary meaning intended by the General Assembly-permission, importing discretion. Masters v. Hart, 189 Va. 969, 979, 55 S.E.2d 205, 210 (1949).

2) It is also true, however, that  the Virginia Supreme Court has held that the word "may," while ordinarily  importing permission, will be construed to be mandatory when it is necessary to accomplish  the manifest purpose of the legislature. Chesapeake & Oh. Ry. Co. v.  Pulliam, 185 Va. 908, 41 S.E.2d 54 (1947).

3) The use of the word "shall" in a statute generally implies that its terms are intended to be mandatory, rather than permissive or directive. See Andrews v. Shepherd, 201 Va. 412, 111 S.E.2d 279 (1959); see also Schmidt v.  City of Richmond, 206 Va. 211, 218,  142 S.E.2d 573, 578 (1965); Op. Va. Att'y Gen.: 1996 at 178, 178; 1991 at 238, 240; 1989 at 250, 251?52; 1985?1986 at 133, 134.

4) "[T]he use of ‘shall,’ in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent."14 "A statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute." Op. Va. Att'y. Gen. No. 05-040, (2005).


The Term Aggrieved

1)  ""The term 'aggrieved' has a settled meaning in Virginia when it becomes necessary to determine who is a proper party to seek court relief from an adverse decision.  In order for a petitioner to be  'aggrieved,' it must affirmatively appear that such  person had some direct interest in the subject matter of the proceeding that he seeks to attack. . . .  The petitioner 'must show that he has an immediate, pecuniary and substantial interest in the litigation, and not a remote or indirect  interest.' . . .  Thus, it is not sufficient that  the sole interest of the petitioner is to advance some perceived public right or to redress some anticipated public injury when the only wrong he has suffered is in common with other persons similarly situated.  The word 'aggrieved' in a statute contemplates a substantial grievance and means a denial of some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally. Board of Supervisors of Fairfax County v. Board of Zoning Appeals of Fairfax County, (2004). Citing Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415, 418, 344 S.E.2d 899 (1986).


Mens Rea/ Scienter/  Intent

1) "In the final analysis, the issue whether mens rea or  scienter is a necessary element in the indictment and proof of a  particular crime becomes a question of legislative intent to be  construed by the court.  United States v. Balint, 258 U.S. 250,  251-52 (1922)....Thus, to insert a mens rea element into the offense, and to require proof thereof, would defeat the statutory purpose, which is to criminalize the introduction of firearms into a school environment.  So we will not add, by implication, language to  the statute that the legislature expressly has chosen not to include. Consequently, we hold that the trial court correctly decided, in refusing the instruction in question, that this statute is one of strict criminal liability, and that the  Commonwealth was required to prove only that the defendant had possessed, on school property, a firearm of the type described in the statute. Esteban v. Commonwealth, 266 Va. 605, 587 S.E.2d 523 (2003).
 

2) "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. 4  A relation between some mental element and punishment for a [342 U.S. 246, 251] harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. 5  Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will." 6  Common-law commentators of the Nineteenth Century early pronounced the same principle, 7  although a few exceptions not relevant to our present problem came to be recognized. 8

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism  [342 U.S. 246, 252] and took deep and early root in American soil. 9  As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. 10  The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes....The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly 22  admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

We hold that mere omission from 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced."  Morissette v. Uited States, 342 U.S. 246 (1952)

3) "The presence of a "vicious will" or mens rea (Morissette v. United States,  342 U.S. 246, 251 ) was long a requirement of criminal responsibility. But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254. The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category. 13  Id., at 260-261.

"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning  [401 U.S. 601, 608] of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Id., at 263.

At the other extreme is Lambert v. California,  355 U.S. 225 , in which a municipal code made it a crime to remain in Los Angeles for more than five days without registering if a person had been convicted of a felony. Being in Los Angeles is not per se blameworthy. The mere failure to register, we held, was quite "unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Id., at 228. The fact that the ordinance was a convenient law enforcement technique did not save it.

"Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community." Id., at 229-230.  United States v. Freed, 401 U.S. 601 (1971)


The Dillon Rule and Grants of Authority

1) "Virginia adheres to the Dillon Rule of strict construction, which provides that [local governing bodies] have only those powers which are expressly granted by the state legislature, those powers fairly or necessarily implied from expressly granted powers, and those which are essential and indispensable. 6 Any doubt as to the existence of a power must be resolved against the locality.7 The Dillon Rule recognizes that localities are political subdivisions of the Commonwealth, which, in turn, rest on the foundation of Article I, § 14 of the Constitution of Virginia.8 " Op. Va. Att'y Gen. No. 02-29, April (2002).
 

2) "[t]he Dillon Rule of strict construction controls our determination of the powers of local governing bodies.  This rule provides that municipal corporations have only those powers  that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.  Ticonderoga Farms v. County of Loudoun, 242 Va. 170, 173-74, 409 S.E.2d 446, 448 (1991); City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990)." Accord Board of Supervisors v. Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 612-13 (1999); City of Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 314, 316 (1999).  We specifically discussed the application of the Dillon Rule to counties in Board of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975):

"In Virginia the powers of boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication.  Gordon v. Fairfax County, 207 Va. 827, 832, 153 S.E.2d 270, 274 (1967); Johnson v. Goochland County, 206 Va. 235, 237, 142 S.E.2d 501, 502 (1965).  This rule is a corollary to Dillon's Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable.  City of Richmond v. County Board, 199 Va. 679, 684-85, 101 S.E.2d 641, 644-45 (1958)."

We have stated the following principles that we must apply when ascertaining whether a power may be implied from a statutory grant to a county : "In questions of implied power, the answer is to be found in legislative intent.  To imply a particular power from a power expressly granted, it must be found that the legislature intended that the grant of the express also would confer the implied.

"In determining legislative intent, the rule is clear that where a power is conferred and the mode of its execution is specified, no other method may be selected; any other means would be contrary to legislative intent and, therefore, unreasonable.  A necessary corollary is that where a grant of power is silent upon its mode of execution, a method of exercise clearly contrary to legislative intent, or inappropriate to the ends sought to be accomplished by the grant, also would be unreasonable.

"Consistent with the necessity to uphold legislative intent, the doctrine of implied powers should never be applied to create a power that does not exist or to expand an existing power beyond rational limits.  Always, the test in application of the doctrine is reasonableness, in which concern for what is necessary to promote the public interest is a key element." Commonwealth v. Arlington County Board, 217 Va. 558, 577, 232 S.E.2d 30, 42 (1977) (citations omitted); accord Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 119, 400 S.E.2d 523, 526 (1991). Arlington County v. White, 259 Va. 708, 528 S.E.2d 706 (2000).

3)  "Finally, when a statute creates a specific grant of authority, the authority exists only to the extent specifically granted in the statute." 2A Norman J. Singer, Sutherland Statutory Construction § 47.23 (5th ed. 1992 & Supp. 1998) Op. Va. Att'y Gen. No. 01-104, Dec. (2001).
 

4) 'The Dillon Rule requires a narrow interpretation of all powers  conferred on local governments since they are delegated powers." Op. Va, Att'y Gen, No. 04-071, Oct. (2004) Citing: Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497, 522 S.E.2d 610 (1999).

5) "Decisions of the Virginia Supreme Court and prior opinions of this Office recognize that there are occasions when a mechanical application of the Dillon Rule is inappropriate... that "it would be unrealistic, inefficient, and unnecessary to require the General Assembly to define every aspect of each mechanism available" to a local government to carry out the powers granted to it." Op. Va. Att'y Gen. No. 05-061, Sept. (2005).

 

6) “When the legislature delegates authority to an administrative agency to promulgate regulations, those regulations must neither exceed the scope of the authority delegated nor be inconsistent with it. See, e.g., Brown, 34 Va. App. at 276, 540 S.E.2d at 522. Furthermore, "delegations of legislative power are valid only if they establish specific policies and fix definite standards to guide the official, agency, or board in the exercise of the power. Delegations of legislative power which lack such policies and standards are unconstitutional and void." Ames v. Town of Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990). For example, language in an enabling statute which provides merely "that the regulations be designed to protect and promote the safety and health of employees" is insufficient. Bell v. Dorey Elec. Co., 248 Va. 378, 381, 448 S.E.2d 622, 624 (1994). "[T]he General Assembly cannot delegate its legislative power accompanied only by such a broad statement of general policy. . . . [D]elegations of authority are adequately limited [only] where the terms or phrases employed have a well understood meaning and prescribe sufficient standards to guide the administrator." Id. at 381-82, 448 S.E.2d at 624 (citations omitted).” Avalon Assisted Living Facilities, Inc. v. Zager, 39 Va. App. 484, 574 S.E.2d 298 (2002).

7) "We consistently have held that when the primary purpose of an enactment is to raise revenue, the enactment will be considered a tax, regardless of the name attached to the act. See Tidewater Ass’n of Homebuilders, Inc. v. City of Virginia Beach, 241 Va. 114, 120-21, 400 S.E.2d 523, 527 (1991); County of Loudoun v. Parker, 205 Va. 357, 360-61, 136 S.E.2d 805, 808 (1964); Board of Supervisors v. American Trailer Co., 193 Va. 72, 76, 68 S.E.2d 115, 118-19 (1951)...The General Assembly has delegated its authority when it enacts a law authorizing another entity to determine whether the law will be imposed. See Chapel v. Commonwealth, 197 Va. 406, 413-14, 89 S.E.2d 337, 342 (1955); Mumpower v. Housing Auth. of Bristol, 176 Va. 426, 454-55, 11 S.E.2d 732, 743 (1940)... The General Assembly is directly prohibited from enacting “any local, special, or private law . . . [f]or the assessment and collection of taxes.” Va. Const. art. IV, § 14(5). There is, however, an exception to this specific prohibition. The General Assembly may by special act delegate the power of taxation to any county, city, town, or regional government. See Va. Const. art. VII, § 2. NVTA is not a county, city, town, or regional government, and thus it is not a political subdivision to which the General Assembly may constitutionally delegate its legislative taxing authority pursuant to Article VII, Section 2.3...The General Assembly also may not accomplish through Chapter 896, indirectly, that which it is not empowered to do directly..." Marshall et al. v. NVTA , 275 Va. 419, 657 S.E.2d. 71 (2008).



Inconsistent Regulations/Laws

1) "As a preliminary matter, we agree with Manassas' statements that regulations of state agencies such as the Motor Vehicle Board have the force of law, Sargent Electric Co. v. Woodall, 228 Va. 419, 424, 323 S.E.2d 102, 105 (1984), and that an agency's interpretation of its governing statutes, as reflected in its regulations, is entitled to great weight. Commonwealth v. American Radiator & Standard Sanitary, 202 Va. 13, 19, 116 S.E.2d 44, 48 (1960). Regulations, however, may not conflict with the authorizing statute. Judicial Inquiry & Review Comm'n v. Elliott, 272 Va. 97, 115, 630 S.E.2d 485, 494 (2006). Whether a regulation is inconsistent with its enabling legislation is properly a subject of judicial review. See, e.g., General Motors Corp. v. Dep't of Taxation, 268 Va. 289, 292-95, 602 S.E.2d 123, 125-26 (2004)...Manassas argues that Code § 46.2-1581(12)(a) specifically allows the use of stock numbers in advertising new vehicles "as long as the advertisement clearly and conspicuously discloses that the stock number used in the ad relates to only one vehicle." The regulation, according to Manassas, is consistent with the statute because the regulation states that, if a separate stock number is used for each car in the advertisement, the stock number satisfactorily discloses limitation of availability. Manassas' interpretation ignores the prohibition in Code § 46.2-1581(12)(a) against using a stock number in the advertisement of new cars to indicate limited availability "unless the advertisement clearly and conspicuously discloses that it relates to only one vehicle." The plain meaning of this section is that, for new car advertisements, the stock number alone is insufficient to show limited availability and that something in the advertisement, in addition to the stock number, must clearly and conspicuously indicate that only one vehicle is available. The regulation, however, specifically allows the use of the stock number alone in an advertisement for a new car to serve as an indication of limited availability. Therefore, the regulation and the statute are in conflict and the trial court correctly concluded that the statute prevailed. See General Motors, 268 Va. at 293, 602 S.E.2d at 125 ("It is equally well established, however, that if the language of a statute is clear and unambiguous, a regulatory interpretation . . . that is in conflict with the plain language of the statute cannot be sustained."). Manassas Autocars, Inc. v. Couch, 274 Va. 82 , 645 S.E.2d 443 (2007).

2) "It is, of course, fundamental that local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes. McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 23.07, p. 392 ff; 37 Am. Jur., Municipal Corporations, § 165, p. 787 ff. Indeed, that principle is embodied in our statutes which require that local ordinances must "not be inconsistent with" the state law. Code, §§ 1-13(17), as amended by Acts 1950, ch. 18, p. 22, 1952 Cum. Supp., § 1-13.17; 15-8(5); Allen v. City of Norfolk, 195 Va. 844, 80 S. E. (2d) 605.

But, "The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail." 37 Am. Jur., Municipal Corporations, § 165, p. 790. See also, McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 23..07, p. 392 ff.

If both the statute and the ordinance can stand together and be given effect, it is the duty of the courts to harmonize them and not nullify the ordinance. McQuillin on Municipal Corporations, 3d Ed., Vol. 6, § 21.35, p. 249 ff.”

King v. County of Arlington, 195 Va. 1084, 1085. (1954).

3) " County and municipal ordinances must be consistent  with the laws of the Commonwealth. Blanton v. Amelia  County, 261 Va. 55, 63, 540 S.E.2d 869, 873-74 (2001); Klingbeil Mgmt. Group Co. v. Vito, 233 Va. 445, 449, 357  S.E.2d 200, 202 (1987); King v. County of Arlington, 195  Va. 1084, 1090, 81 S.E.2d 587, 591 (1954); see Code 1-13.17. Such ordinances are inconsistent with state law  when they cannot coexist with a statute. Blanton, 261 Va.  at 64, 540 S.E.2d at 874; King, 195 Va. at 1091, 81 S.E.2d  at 591. The fact that a county or municipal ordinance enlarges  on a statute's provisions does not create a conflict with  the statute unless the statute limits the requirements for  all cases to its own terms. Blanton, 261 Va. at 64, 540  S.E.2d at 874; Allen v. City of Norfolk, 196 Va. 177, 181,  83 S.E.2d 397, 400 (1954); King, 195 Va. at 1090, 81 S.E.2d  at 591. Thus, if a statute and a local ordinance both can  be given effect, courts must harmonize them and apply them  together. Blanton, 261 Va. at 64, 540 S.E.2d at 874;  Klingbeil, 233 Va. at 449, 357 S.E.2d at 202; King, 195 Va.  at 1091, 81 S.E. at 591." West Lewinsville Heights Citizens Association et. al v. Board of Supervisors of Fairfax County, 270 Va. 259, 618 S.E.2d. 311 (2005).

 

4) " We stated the standard for evaluating whether an agency erred in declining to follow its internal precedent in Courtesy Motors, Inc. v. Ford Motor Co., 9 Va. App. 102, 384 S.E.2d 118 (1989). We held: At the outset, we note that in its ordinarily accepted meaning, the doctrine of stare decisis is inapplicable when applied to the decisions of an administrative agency. "An agency may refuse to follow its own precedent, but it must not act arbitrarily in doing so." C. Koch, Administrative Law & Practice § 6.57 (1985). Thus, the issue before us is not whether this case is or is not consistent with prior decisions of the commission or strictly speaking, distinguishable from earlier cases, but whether it is a departure and indistinguishable from decisions of the commission, and, if so, whether the commission acted arbitrarily in disregarding the precedent. Id. at 106, 384 S.E.2d at 120-21." NRV v. Virginia Dept. of Heath, 51 Va. App., 514, 659 S.E.2d 527 (2008).


A Single Body of Law

1) "When attempting to define terms in one part of the Code, courts should read a statute with "a view toward harmonizing it with other statutes. Because the Code of Virginia is one body of law, other Code sections using the same phraseology may be consulted in determining the meaning of a statute." "Ordinarily, when a particular  word in a statute is not defined therein, a court must give it  its ordinary meaning. Marsh v. Commonwealth, 32 Va. App. 669, 677, 530 S.E.2d 425, 430 (2000) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 425 (1992)). Goble v. Commonwealth, 57 Va. App. 137, 698 S.E.2d 931 (2010).: See also: "In interpreting a statute, the Code of Virginia constitutes a single body of law, and other sections can be looked to where the same phraseology is employed." Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc) (citations omitted). Preston v. Commonwealth, Va. App. (2001 Unpublished)

2) "When asked to interpret various code sections, this Court  often examines other related statutes that contain similar or  contrasting language to help determine legislative intent.  See  Pannell v. Commonwealth, 34 Va. App. 287, 294, 540 S.E.2d 527,   531, aff'd en banc, 35 Va. App. 643, 547 S.E.2d 529 (2001);  Barnes, 33 Va. App. at 628, 535 S.E.2d at 710-11; Rasmussen v.  Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401, 403 (1999). Johnson v. Commonwealth, 37 Va. App. 634, 561 S.E.2d 1 (2002).
 


The Exclusion Rule

Expressio unius est exclusio alterius

1) " It is also a maxim of statutory construction that the expression of one thing in a statute means the exclusion of others.5 A statute specifying the method by which something shall be done evinces a legislative intent that it not be done otherwise.6" Blue Cross v. Commonwealth, 211 Va. 180, 194, 176 S.E.2d 439, 448 (1970) (Cochran, J., concurring); 73 Am. Jur. 2d Statutes § 129 (2001); Grigg v. Commonwealth, 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982) Op. Va. Att'y Gen. No. 02-081, Aug (2002).


2) "Finally, and of overriding importance, we follow the rule in Virginia that "when the General Assembly includes specific  language in one section of a statute, but omits that language from another section of the statute, we must presume that the  exclusion of the language was intentional."  Halifax I, 262  Va. at 100, 546 S.E.2d at 702." - Halifax corp. v. Wachovia bank, 268 Va. 641, 604 S.E.2d 403 (2004)


Ambiguity

1) "Language is ambiguous when it may be understood in more than one way, or simultaneously refers to two or more things.' "  Supinger v. Stakes, 255 Va. 198, 205, 495 S.E.2d 813, 817 (1998) (quoting Lee-Warren v. School Bd. of  Cumberland County, 241 Va. 442, 445, 403 S.E.2d 691, 692 (1991))."- Halifax corp. v. Wachovia bank, 268 Va. 641, 604 S.E.2d 403 (2004) .

2) "When the language of a statute is ambiguous, it must be interpreted in a manner that will give effect to the intent of the General Assembly." Op. Va. Att’y Gen. No. 00-005, March (2000).Citing Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
 

3) "The primary goal of statutory construction is to discern and give effect to legislative intent, with the reading of a statute as a whole influencing the proper construction of ambiguous individual provisions." Op. Va. Att’y Gen. No. 99-110, Jan (2000).
 

4) Doctrine of Contra proferentem: "Used in the connection with the construction of written documents to the effect that an ambiguous provision is construed most strongly against the person who selected the language." Black's Law Dictionary, 5th Ed.

5) "Instead, we find the restrictive covenant, in particular the phrase "residential purposes," to be ambiguous in several respects....Indeed, even the circuit court's interpretation that the term " '[r]esidence' means more than mere physical presence and less than domicile" is ambiguous. It can be argued that a nightly or weekly rental is more than mere physical presence. Moreover, if the phrase "residential purposes" carries with it a "duration of use" component, it is ambiguous as to when a rental of the property moves from short-term to long-term. Under our case law, a restrictive covenant of "substantial doubt or ambiguity" must be interpreted "in favor of the free use of property and against restrictions." Schwarzschild, 186 Va. at 1058, 45 S.E.2d at 155."  Scott v. Walker, 274, Va. 209, 645 S.E.2d 278 (2007). See Also: Nextel Wip Lease v. Saunders 276, Va. 509, 666 S.E.2d 317 (2008).


Criminal Versus Civil Intent of a Statute

"[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction." First, one must determine whether the legislature, in establishing the penalizing mechanism, indicates either expressly or impliedly a preference for one label or the other. Second, where the legislature has indicated an intention to establish a civil penalty, one must address "whether the statutory scheme was so punitive either in purpose or effect as to negate that intention." Op. Va. Att'y Gen. No. 03-89, Dec. (2003).
 


Supremacy Clause of the United States Constitution

1) "By virtue of the Supremacy Clause of the Constitution of the United States, federal law supersedes any conflicting state law. The preemption of state law by federal law may occur by express statutory language or other clear indication that Congress intended to legislate exclusively in the area. Even if Congress does not intend the enactment of a federal statutory scheme completely to preempt state law in the area, congressional enactments in the same field override state laws with which they conflict.

The Supreme Court of the United States has identified three ways in which preemption may occur: (1) Congress may adopt express language setting forth the existence and scope of preemption; (2) Congress may adopt a framework for regulation that "occupies the field" and leaves no room for states to adopt supplemental laws; and (3) when state law actually conflicts with federal law, typically when compliance with both laws is a "physical impossibility" or the state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Op. Va. Att y Gen. No. 03-122, Dec. (2003).

2)  "Settled legal principles provide that the United States Constitution, not a state court's erroneous interpretation of it, is controlling. See, e.g., Herrera v. Commonwealth, 24 Va. App. 490, 494, 483 S.E.2d 492, 494 (1997)(in context of determining whether to apply retroactively a new rule for the conduct of criminal prosecutions,adopting Blackstonian view that judges...find the law rather than make the law and that [j]udicial declaration of law is merely a statement of what the law has always been (quoting Cash v. Califano, 621 F.2d 626, 628 (4th Cir. 1980))). Kelson v. Commonwealth, 44 Va. App. 170, 604 S.E.2d 98 (2004).


Public Policy

1) "A court may not "second-guess the lawmakers on matters of economics, sociology and public policy. . . . Those  considerations belong exclusively in the legislative domain." Infants v. Virginia Hous. Dev. Auth., 221 Va. 659, 671, 272 S.E.2d 649, 656 (1980). Regardless of whether it "may or may not be better public policy" to interpret Code § 60.2-618 as either appellant or the Commission urges, "such judgments are not ours to make." Washington v. Commonwealth, 46 Va. App. 276, 283, 616 S.E.2d 774, 778 (2005) (en banc)." Hutter v. Virginia Employment Commission, 50 Va. App. 590, 652 S.E.2d 151 (2007).

2) "Judicial review does not evaluate the "propriety, wisdom, necessity and expediency" of legislation. Mouberry v. Commonwealth, 39 Va. App. 576, 585-86, 575 S.E.2d 567, 571 (2003) (citations omitted). We ask only whether the statutory classification erects an irrational, arbitrary distinction - one that no conceivable state of facts could reasonably sustain. Jefferson Green Unit Owners Ass'n, 262 Va. at 459, 551 S.E.2d at 345. " Laurels of Bon Air v. Medical Facilities , 51 Va. App. 583, 659 S.E.2d. 561 (2008).

 


Federal Statutory Construction of Lenity

"The rule of lenity must therefore apply: "[T]he Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess at what Congress intended." Ladner v. United States, 358 U.S. 169, 178 (1958)." Caron v. United States, U.S. (1998) See Also: United States v. Thompson Center Arms Co. 504 U.S. 505 (1992) I agree with the plurality that the application of the National Firearms Act (NFA) to Thompson/Center's pistol and conversion kit is sufficiently ambiguous to trigger the rule of lenity, leading to the conclusion that the kit is not covered." Justice Scalia.


Sovereign Immunity

"According to the Government, any right to recover paralegal fees under EAJA must be read narrowly in light of the statutory canon requiring strict construction of waivers of sovereign immunity. We disagree. The sovereign immunity canon is just that - a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U. S. 129, 137 (1991) (relying on the canon as "reinforce[ment]" for the independent "conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language")" Richlin Security Service v. Chertoff, 533 U.S. 571 (2008).



Statutory Interpretation: General Principles and Recent Trends - Federal Government

 


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