ANALYSIS OF AUGUST 15, 2024 SUPREME COURT ORDER
(Posted August 15, 2024) Last week the Supreme Court of Virginia achieved the rare state of 100% clearance on all of its argued appeals. Normally, you’d think that that would be the end of the court’s published opinions and orders until a few weeks after the next batch of arguments on the September session docket.
Despite that, we have a published decision today. Johnson v. Wise County Circuit Court Clerk is a mandamus petition filed by an inmate against the clerks of two trial courts. At issue here is the clerks’ separate refusals to file civil actions submitted by the inmate.
The first part of this case involves two suits submitted to the Clerk of the Wise County Circuit Court. The inmate mailed the pleadings along with money orders for the filing fees. The Clerk refused to file them because the money orders weren’t for enough money to cover the fees in full. In the mandamus petition, the inmate asked the Supreme Court to compel the Clerk to file the lawsuits.
Today the court refuses to issue the writ. You can get a mandamus writ only where the respondent has a ministerial duty to perform the action that you’re seeking. The justices rule that a clerk must file tendered pleadings only when they’re accompanied by the full fee, citing a statute (fees “shall be collected upon the filing of papers for the commencement of civil actions”).
The rules nerds and procedure geeks among you might note an anomaly here: The Rules of Court seem to provide otherwise. Rule 3:2 says that “A civil action is commenced by filing a complaint in the clerk’s office,” and Rule 3:3’s equally unambiguous language commands that “The clerk must receive and file all pleadings when tendered, without order of the court.” This language creates what looks awfully like a clerk’s ministerial duty to receive pleadings without passing on their sufficiency.
Almost ten years ago, the Supreme Court considered a comparable situation in Landini v. Bil-Jax, Inc. There, a lawyer overnighted a complaint, along with the filing fee, to a somewhat distant circuit court. Unknown to the lawyer, the filing fee in that jurisdiction was $2 higher than the fee in the lawyer’s “home court.” The forum court clerk received the package but didn’t take any action on it for several days before calling the lawyer on the last day of the statute of limitations to mention the $2 deficit. The clerk didn’t mention that the pleading was still unfiled.
Unaware of her danger, the lawyer mailed a $2 check to the clerk. Upon receiving that, the clerk filed the lawsuit four days after the statute had run out. A circuit court ruled that the suit was accordingly untimely.
On appeal, the Supreme Court affirmed in an unpublished order. It held that the “fees shall be collected upon filing” language in the statute made full payment of fees a prerequisite to filing. At the time, I felt that that holding suffered from several analytical defects that the order simply didn’t address.
In all the time since that unpub, the Supreme Court has never cited it, beyond a single short we-need-not-address-this-issue mention in a footnote. Today the court openly cites Landini for this very premise, thus elevating the holding from an unpublished ruling, one with zero precedential value, to The Law of Virginia.
My previous view of the Landini decision remains unchanged; I believe it was a particularly unwise holding that, as I reported back then, left lawyers on both sides of the litigation aisle aghast. I believed, and still believe, that their shock was well-founded. (I also believed that what the clerk did, quietly setting a trap for the lawyer, was appalling; but that’s another rant.)
Let’s return to today’s Johnson decision. The inmate’s second request was for a mandamus writ directed to the GDC Clerk in Sussex County. He had mailed to that clerk a motion for judgment along with an in forma pauperis affidavit, certifying that he had $0 in assets. He attached to the affidavit the prison’s inmate trust-account statement for the prior month, confirming his asset balance.
The GDC clerk refused to file the suit, citing a statute that allows IFP filings if the prisoner has had no deposits in his inmate accounts for six months. (The statute actually requires the inmate to provide certified copies of his last twelve months’ trust-account statements.) She wrote to the inmate, demanding the 12 months of statements. The inmate then sought mandamus relief.
If you’re expecting a similar outcome to the Wise County portion of this case, surprise! The justices rule that the GDC clerk had no authority to evaluate the sufficiency of the affidavit, so they direct her to receive and file the lawsuit. As for the 12-month requirement, the court today holds that the Virginia Prisoner Litigation Reform Act doesn’t mandate that those copies accompany the initial filing, and doesn’t bar the filing in their absence; the inmate can submit those later. The Supreme Court thus sends the case back down, directing the clerk to file the action.
If you find these two holdings incongruous, join the club. The court mentions in a footnote the difference in statutes for the filing of civil suits and, for example, habeas petitions. For the latter, the statute makes filing a proper IFP affidavit a condition precedent to filing the petition.
But both of these claims arose from garden-variety suits for money damages; neither was a habeas petition. How were the Wise and Sussex situations different? As I see it, the best explanation is that it’s obvious when a filing-fee check is insufficient, but deciding whether an affidavit is sufficient requires a kind of adjudication. That, in turn, makes it a discretionary matter, and not one that the clerk is allowed to rule upon. In my mind, that’s still an unclear distinction, but that’s all we get out of the court today.
As with most mandamus petitions, the justices didn’t receive oral argument in this case; they decided it on the pleadings and attachments.
