JURISDICTION – MEANING AND RESULT OF NO SUBJECT MATTER JURISDICTION – STANDING TO RAISE SUCH ISSUES. In a remarkable opinion on the subject of lack of subject matter jurisdiction a divided Supreme Court clarified that that particular issue, making a ruling that is void ab initio an absolute nullity, can be raised any time by any person, anywhere, and in any way, and every court in which its invalidity is raised can declare it void. Virginian-Pilot Media Companies LLC v. Dow Jones & Co., ___ Va. ___, ___ S.E.2d ___, 25 VLW 442 (9/16/10). This would indeed be a far-reaching result, as the dissenters claimed, if it had not been established before. What happened is that a circuit judge rendered an ex parte order under §8.01-324(A) that a certain newspaper did not meet the requirements of that subsection and another publishing corporation did. A newspaper feeling itself aggrieved appealed, and the Supreme Court reversed the judgment and vacated the order. The dissenters went straight to a subject dear to the hearts of all appellate judges and a matter of great and serious concern to them: standing. The dissenters dealt with every one of the cases the majority cited for the basic proposition that they quoted from Barnes v. American Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925), that such void judgments can be challenged “by all persons, anywhere, at any time … .” The dissenters said that in each one of those cases the suing party had standing, or standing was not challenged, and they argued that the right to attack void judgments is restricted to persons who have the standing required to intervene. To them the mere fact of a judgment being void ab initio is no excuse to let some mere interloper attack it. They called the broad language of Barnes dicta.
Dow Jones had filed its petition for authority to publish legal notices entirely ex parte, giving no notice to any persons who might have an interest in the matter, such as the Virginian Pilot, a local Norfolk newspaper. Dow Jones said it met all the statutory criteria, and in fact attached as exhibits to its petition copies of other ex parte orders like this from six other Virginia circuits. The local paper filed a motion to intervene and set aside the ex parte order, but the trial court ruled that it had subject matter jurisdiction, and that the Virginian Pilot lacked standing “because it could not show that it had any right germane to the proceeding or that it would suffer a cognizable legal injury … .” So the New Yorkers argued that because no authority to hold such hearings and issue such orders is granted anywhere in the authorizing statute, §8.01-324(A), it should be construed to confer this inherent and implied authority “by necessary implication.” That of course is exactly the kind of argument that does not get very far most of the time in the Virginia Supreme Court, which was thus invited to quote all the frequently-quoted case law that courts have no business adding language to that of a statute, expressio unius, and if the legislature had wanted to say it would have done so, etc. It certainly did not agree that subsection (A) of the statute would be rendered meaningless or superfluous by construing it to lack any grant of subject matter jurisdiction to circuit courts to make these orders. The majority found it unnecessary to even discuss standing since it is plain that court orders issued without subject matter jurisdiction are void, and it would be absurd to let them stand and be enforced, simply because no one with standing (and the funds to bring a lawsuit) had shown up (which would, after all, convert most void judgments into merely voidable ones). Dissenting, Justices Lemons and Kinser protested emphatically that the appellant had no standing, and that the standing question which the majority said it was not ruling on was necessarily decided and decided wrongly, so that the claim of this newspaper should not have been heard no matter how void the order below was.
These protests were answered by the Court’s newest member, Justice Mims, joined by Senior Justice Carrico. In their concurrence, Justice Mims, recognizing the valid points raised by both sides, said:
“This case presents a procedural Gordian knot: the appellant has no standing, the appellee has no standing, the circuit court had no authority, and its order is void. In my view, the facts and prior proceedings compel the result reached by the majority opinion, in which I concur. *** The dissenting opinion would leave this glaring error by the circuit court uncorrected because the Pilot has no standing to challenge it, either in this Court or below … .Dow sought to proceed ex parte, therefore there was no adversary to contest its factual allegations or legal arguments, and, dispositively, the action Dow brought had no lawful foundation. *** We did not reach out and pluck this case from thin air. The error was made known to us through a petition for appeal. Whether or not this petitioner was the proper one to assign the error, we cannot look the other way once it is manifest. In a case such as this, where no party had a right to proceed, no court had authority to act, and no valid order could be entered, our inaction would make this Court accomplice to a lower court’s exercise of jurisdiction contrary to the constraints constitutionally placed on the judicial branch by the legislative … .”