December 15, 2016
IN RE: REBECCA VAUTER, DIRECTOR, CENTRAL STATE HOSPITAL
PETITION FOR A WRIT OF PROHIBITION
BERNARD GOODWYN, JUSTICE
this original jurisdiction case, we consider whether a writ
of prohibition lies to prevent a circuit court from hearing a
habeas corpus petition challenging a pre-trial detention
order entered by a different circuit court pursuant to Code
October 4, 2000, a grand jury for the City of Alexandria
indicted Gregory Devon Murphy (Murphy) for capital murder of
a child, in violation of Code § 18.2-31(12), and two
counts of malicious wounding, in violation of Code §
18.2-51. On October 19, 2000, Murphy assaulted his attorney
in open court, prompting the Circuit Court of the City of
Alexandria (Alexandria Court) to order a competency
evaluation under the then-current version of Code §
19.2-169.1. In a report delivered on
October 31, the examining psychologist opined that Murphy was
not competent to stand trial, but that "[i]t is possible
that appropriate mental health treatment, including the
administration of antipsychotic medications, may eventually
restore Mr. Murphy's capacities in these regards."
The court ordered Murphy's competency to be restored.
has received treatment continuing to the present. The
Alexandria Court has conducted periodic reviews pursuant to
Code § 19.2-169.3(F), each time finding Murphy
incompetent to stand trial. Murphy receives treatment in Central State
Hospital in Dinwiddie County.
2007, Murphy moved the Alexandria Court to dismiss the
capital murder indictment on the ground that Code §
19.2-169.3(F) is unconstitutional. On September 26, 2007, the
court found the statute constitutional and denied the motion.
It explained that while
the statute probably could have been a little more clear . .
. . Clearly the goal here was a procedure whereby the charges
are not to be dismissed, so long as the other provisions of
the statute are being complied with, and that is that there
be periodic hearings; that there be evidence that the
defendant remains incompetent; that there be evidence that
the treatment is medically appropriate; and that there be
evidence that the defendant is dangerous, all of which we
have in this case.
continued that the evidence is "uncontroverted that Mr.
Murphy remains incompetent, that the medical treatment is
appropriate, and there's evidence that he continues to be
a threat to others."
court also found that the periodic reviews satisfy
Murphy's due process rights. Additionally, the court
found that there was no equal protection violation because
the legislature was entitled to distinguish between
defendants charged with capital and non-capital offenses.
Finally, the court found that the statute did not violate the
prohibition of ex post facto laws because, although
Code § 19.2-169.3 changed during Murphy's detention,
it was a procedural change that did not infringe on any of
Murphy's vested rights.
30, 2014, Murphy again moved to dismiss the capital murder
indictment and for an order directing the Commonwealth to
pursue civil commitment on the ground that his current
detention was unconstitutional. He argued that because he was
"unrestorably incompetent, " restoration treatment
was no longer medically appropriate to justify his continued
detention under Code § 19.2-169.3(F)(iii).
argued that Code § 19.2-169.3(F) violates the
constitutional protections established by Jackson v.
Indiana, 406 U.S. 715, 738 (1972), "that 'the
State must either institute the customary civil commitment
proceedings that would be required to commit indefinitely any
other citizen [not charged with a crime] or release the
defendant.'" He claimed that Code §
19.2-169.3(F) impermissibly permits the "indefinite
detention of unrestorably incompetent defendants charged with
capital murder without prospect of release in the community,
" which "amounts to punishment without adjudication
September 5, 2014, the Commonwealth and Murphy stipulated
that Murphy is "unrestorably incompetent to assist
counsel and to have a rational understanding of the
proceedings, " and on September 8, the Alexandria Court
issued a "Continuance Order and Finding of
Unrestorabilty" regarding Murphy's motion to
dismiss. After a hearing on the record, the court issued a
letter opinion on November 6, 2014, affirming the
constitutionality of the statute, and finding that Murphy
remained a danger to himself and others, and that "the
treatment [he] is receiving is medically appropriate."
By order on November 17, 2014, the court found that
"Murphy remains incompetent to stand trial, that
continued treatment is medically appropriate, and that the
defendant presents a danger to himself and others, " and
ordered continued treatment under Code §
April 22, 2015, Murphy filed a petition for a writ of habeas
corpus in the Circuit Court of Dinwiddie County (Dinwiddie
Court), arguing that the Director was detaining him without
lawful authority (Dinwiddie Petition). He argued that the
Alexandria Court wrongfully found that continued treatment
was medically appropriate under Code § 19.2-169.3(F).
Specifically, he claimed that he does not meet criterion
(iii) of that section, which is that "continued
treatment" be "medically necessary, " because
it is undisputed that he is unrestorably incompetent, and the
word "treatment" is "plainly construed as
'treatment to restore medical competency.'" He
argued that his continued detention violated both the Due
Process and Equal Protection Clauses of the Constitution of
the United States. He asked the Dinwiddie Court to order the
Alexandria Court to dismiss the capital murder indictment and
begin civil commitment proceedings.
Director moved to dismiss the Dinwiddie Petition, arguing
that the Dinwiddie Court lacked jurisdiction under Code
§ 8.01-654(B)(1). The Dinwiddie
Court rejected that argument, finding that Code §
8.01-654(B)(1) only applies when there is both criminal
process and a conviction, but when, like here, there is not a
conviction, Code § 8.0l-654(A)(1) permits the petition
to be filed in any circuit court.
Director moved for reconsideration. On September 23, 2015,
the Dinwiddie Court entered orders memorializing its rulings
denying the Director's motions to dismiss and to
Director filed a petition for a writ of prohibition in this
petition for a writ of prohibition, the Director seeks to
prevent the Dinwiddie Court from proceeding in Murphy's
habeas matter. She argues that the Dinwiddie Court lacks
territorial jurisdiction to hear Murphy's habeas corpus
petition because Code §§ 8.01-654(B)(1) and -657,
"when read together, evince a clear legislative intent
that habeas corpus challenges be heard where the record lies,
or in a court that has the authority to bring the record
before it" - the Alexandria Court - and that she has no
other adequate remedy. We disagree.
of "[p]rohibition is an extraordinary remedy issued by a
superior court to prevent an inferior court from exercising
jurisdiction over matters not within its cognizance where
damage or injustice is likely to follow from such
action." King v. Hening, 203 Va. 582, 585, 125
S.E.2d 827, 829 (1962); see generally Code
§§ 8.01-644 and -645. "It is a remedy provided
by the common law to redress the grievance growing out of an
encroachment of jurisdiction, " and issues
"properly out of a superior court to an inferior court,
commanding them to cease from the prosecution of a suit, upon
a suggestion that either the cause originally, or some
collateral matter arising therein, does not belong to that
jurisdiction, but to the cognizance of some other
court." James v. Stokes, 77 Va. 225, 229
does not lie to compel a change of venue or prevent the
circuit court from proceeding with the trial on the ground it
was not instituted in the proper forum." Tazewell
Cnty. Sch. Bd. v. Snead, 198 Va. 100, 107, 92 S.E.2d
497, 503 (1956). Additionally, "the writ is never
allowed to usurp the functions of a writ of error, and can
never be employed as a process for the correction of errors
of inferior tribunals." Supervisors of Bedford v.
Wingfield, 68 Va. (27 Gratt.) 329, 334 (1876). Finally,
"before it can be granted, it must appear that the party
aggrieved has no remedy in the inferior tribunals. . . . and
it is always a sufficient reason for withholding the writ,
that the party aggrieved has another and complete remedy at
law." Id. at 333-34.
decision to award such a writ "is one of sound judicial
discretion, to be [made] according to the circumstances of
each particular case. And being a prerogative writ, it is to
be used . . . with great caution and forbearance, for the
furtherance of justice." Id. at 333. However,
"[t]he power of this court to award writs of prohibition
. . . will always be exercised . . . when the proper case is
made by the pleadings and evidence." Id.
we must determine whether the Dinwiddie Court would act in
excess of its jurisdiction by hearing Murphy's habeas
petition, and whether the Director has other remedies.
is the power to adjudicate a case upon the merits and dispose
of it as justice may require. In order for a court to have
the power to adjudicate a particular case upon the merits,
i.e., to have active jurisdiction, several elements
are needed." Board of Supervisors v. Board of Zoning
Appeals, 271 Va. 336, 343, 626 S.E.2d 374, 378-79 (2006)
(internal alterations, quotation marks and citations
omitted). As is relevant here, "[t]hose elements are
subject matter jurisdiction, which is the authority granted
through constitution or statute to adjudicate a class of
cases or controversies [and] territorial jurisdiction, that
is authority over persons, things, or occurrences located in
a defined geographic area." Id. at 343-44, 626
S.E.2d at 379 (internal quotation marks omitted). In the
context of habeas corpus proceedings, the concept of
"territorial jurisdiction . . . means venue."
Snead, 198 Va. at 106-07, 92 S.E.2d at 502-03.
3 of Chapter 25 of Title 8.01 of the Code of Virginia
establishes circuit courts' subject matter jurisdiction
for writs of habeas corpus. When construing statutes,
the constant endeavor of the courts is to ascertain and give
effect to the intention of the legislature, [and] that
intention must be gathered from the words used, unless a
literal construction would involve a manifest absurdity.
Where the legislature has used words of a plain and definite
import the courts cannot put upon them a construction which
amounts to holding the legislature did not mean what it has
Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447
(1934). "We must also assume that the legislature chose,
with care, the words it used when it enacted the relevant
statute, and we are bound by those words as we interpret the
statute." Barr v. Town & Country Props.,
Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).
Generally, any circuit court has subject matter jurisdiction
to hear a petition for a writ of habeas corpus: "The
writ of habeas corpus ad subjiciendum shall be granted
forthwith by the Supreme Court or any circuit court,
to any person who shall apply for the same by petition,
showing by affidavits or other evidence probable cause to
believe that he is detained without lawful authority."
Code § 8.01-654(A)(1) (emphasis added).
there are two limits upon such jurisdiction. First, Code
§ 8.01-654(B)(1) provides that when a petitioner
complains of a conviction order, only the court that entered
that particular order has jurisdiction to issue a writ:
With respect to any such petition filed by a petitioner held
under criminal process, and subject to the provisions of
subsection C of this section and of § 17.1-310 [which
pertain to petitioners held under the sentence of death],
only the circuit court which entered the original
judgment order of conviction or convictions complained of in
the petition shall have authority to issue writs of habeas
Code § 8.01-657 provides that generally, a writ is
returnable "before the court ordering the same, or
any other of such courts, " but "in the
event the allegations of illegality of the petitioner's
detention present a case for the determination of unrecorded
matters of fact relating to any previous judicial proceeding,
such writ shall be made returnable before the court
in which such judicial proceeding occurred."
Murphy's petition complains of detention under the
Alexandria Court's finding as to Code §
19.2-169.3(F), not a detention pursuant to a conviction order
entered by it, therefore subsection (B)(1) does not apply to
create sole jurisdiction in the Alexandria Court.
Additionally, the parties agree that there is no need for
"determination of unrecorded matters related to any
previous judicial proceeding, " and thus Code §
8.01-657 does not apply to limit jurisdiction to the
Alexandria Court in which the commitment reviews have been
held. Thus, the statutory scheme governing habeas corpus
jurisdiction does not prohibit the Dinwiddie Court from
hearing Murphy's petition.
a "refusal to award a writ of prohibition does not
deprive the litigants of a trial of the controversy on its
merits." Snead, 198 Va. at 107, 92 S.E.2d at
503. The Director will have the opportunity to challenge any
remedy awarded by the Dinwiddie Court on appeal to this
because the Dinwiddie Court has jurisdiction over the subject
matter of the controversy and the Director has alternative
remedies, we refuse her request for a writ of prohibition.
of prohibition denied.
 As in effect in October 2000, Code
§ 19.2-169.1 provided, in relevant part:
A. Raising competency issue; appointment of
evaluators. -- If . . . the court finds, upon hearing
evidence or representations of counsel for the defendant or
the attorney for the Commonwealth, that there is probable
cause to believe that the defendant lacks substantial
capacity to understand the proceedings against him or to
assist his attorney in his own defense, the court shall order
that a competency evaluation be performed by at least one
[qualified] psychiatrist, clinical psychologist or
master's level psychologist.
. . . .
D. The competency report. -- Upon completion of the
evaluation, the evaluators shall promptly submit a report in
writing to the court and the attorneys of record concerning
(i) the defendant's capacity to understand the
proceedings against him; (ii) his ability to assist his
attorney; and (iii) his need for treatment in the event he is
 Code 19.2-169.3(F) currently provides
In any case when an incompetent defendant is charged
with capital murder . . . the charge shall not be dismissed
and the court having jurisdiction over the capital murder
case may order that the defendant receive continued treatment
under subsection A of § 19.2-169.2 for additional
six-month periods without limitation, provided that (i) a
hearing pursuant to subsection E of § 19.2-169.1 is held
at the completion of each such period, (ii) the defendant
remains incompetent, (iii) the court finds continued
treatment to be medically appropriate, and (iv) the defendant
presents a danger to himself or others.
The statute has featured this language since 2003.
See 2003 Acts chs. 915 & 919 (enacting
subsection (D) of Code § 19.2-169.3); 2006 Acts chs. 863
& 914 (amending and reenacting Code § 19.2-169.3,
redesignating subsection (D) as subsection (E)); 2007 Acts
chs. 781 & 876 (amending and reenacting Code §
19.2-169.3); 2008 Acts chs. 406 & 796 (amending and
reenacting Code § 19.2-169.3, redesignating subsection
(E) as subsection (F)); 2009 Acts chs. 813 & 840
(amending and reenacting Code § 19.2-169.3); 2012 Acts
chs. 668 & 800 (amending and reenacting Code §
 In the interim, both this Court and
the United States Supreme Court denied Murphy's petitions
for writs of prohibition and habeas corpus challenging the
Alexandria Court's order that he be medicated. In re:
Murphy, Record No. 011057 (July 20, 2001); Murphy v.
Circuit Court, 534 U.S. 1094 (2002); Murphy v.
Reinhard, 539 U.S. 944 (2003).
 This Court denied Murphy's
subsequent petition for a writ of mandamus which asked us to
direct the Alexandria Court to dismiss his indictment. In
re: Murphy, Record No. 150457 (July 9, 2015).
 Code § 8.01-654 governs writs of
habeas corpus, and provides, in relevant part, that
(A)(1) The writ of habeas corpus ad subjiciendum shall
be granted forthwith by the Supreme Court or any circuit
court, to any person who shall apply for the same by
petition, showing by affidavits or other evidence probable
cause to believe that he is detained without lawful
. . . .
(B)(1) With respect to any such petition filed by a
petitioner held under criminal process, . . . only the
circuit court which entered the original judgment order of
conviction or convictions complained of in the petition shall
have authority to issue writs of habeas corpus.
 Code § 8.01-654(A)(2) reinforces
the distinction between petitions challenging "a
criminal conviction or sentence" and those challenging
other forms of detention by providing different statutes of
limitation for the two:
A petition for writ of habeas corpus ad subjiciendum,
other than a petition challenging a criminal conviction or
sentence, shall be brought within one year after the cause of
action accrues. A habeas corpus petition attacking a criminal
conviction or sentence . . . shall be filed within two years
from the date of final judgment in the trial court or within
one year from either final disposition of the direct appeal
in state court or the time for filing such appeal has
expired, whichever is later.