ANALYSIS OF NOVEMBER 30, 2023 SUPREME COURT OPINION
(Posted November 30, 2023) Today is the anniversary of the birth of my favorite author, Mark Twain. He had an unmatched (in my opinion, anyway) capacity for bringing just the right dollop of wit to everyday situations. His writings have kept me laughing for decades.
Perhaps because of him, I’ve tried to insert an appropriate amount of wit in these musings, in the hope that an enjoyable experience here will bring you back. Today, I find myself overmatched: There is no spice that can liven the bland stew of today’s decision from the Supreme Court of Virginia. The issue in Verizon Virginia LLC v. State Corporation Commission is whether the SCC has subject-matter jurisdiction to decide who must pay for the relocation of Verizon facilities within the VDOT right-of-way in the Capital Beltway.
Now, I readily acknowledge that donnybrooks over subject-matter jurisdiction can be entertaining. This instance is obviously of great interest to the parties, as I expect that a lot of zeroes are at stake. But the public may not notice; Verizon’s facilities are going to be moved, one way or the other. It’s just a matter of whether the utility or a public-private partnership will foot the bill. And today’s issue is even narrower than that: Which tribunal can decide the claim?
Verizon has a right to use VDOT’s rights of way, subject to the requirement that the Department can require the company to move things around without cost to VDOT when circumstances require. When VDOT sought to expand the Beltway, it decided to expand it inward, adding new lanes from the median so as not to require it to acquire expensive rights of way from adjacent landowners. This project is a public-private partnership, and the entity that’s handling the expansion is a private company, Capital Beltway Express.
Verizon, faced with significant relocation expenses, filed a DJ proceeding in the SCC, asking for a declaration that the private company has to absorb the costs. Acknowledging its agreement with VDOT, Verizon argued that the private company isn’t a party to that agreement, and it can’t latch onto VDOT’s rights.
The SCC ruled that it didn’t have subject-matter jurisdiction because this is a contract claim, not a statutory one. Verizon exercised its right to appeal directly to the Supreme Court – no writ process required – and today the justices unanimously affirm. The court finds that the origin of this claim is the contract, and claims like that go to circuit courts, not to the SCC. The justices also reject an argument that this claim falls within one of a very few exceptions to that division of labor.
As I see it, Verizon can still bring its claim in a circuit court, assuming there are no limitation-of-action issues. I don’t know enough about matters like this to offer an opinion on limitations, and I certainly don’t know enough about the ultimate merits of the claim.
Poor Justice Russell drew the short straw and had to write the opinion of the court. As readability goes, he does a fine job, considering the dry material that he had to work with. This case produces a lightning turnaround, as the parties argued the case to the court on November 1, just four weeks ago.