Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 25. Extraordinary Writs
6/22/2021

Article 2. Mandamus and Prohibition.

§ 8.01-644. Application for mandamus or prohibition.

Except as provided in § 2.2-3713, application for a writ of mandamus or a writ of prohibition shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the intended application a reasonable time before such application is made.

Code 1950, § 8-704; 1977, c. 617; 2009, c. 634.

§ 8.01-644.1. Limitations of actions for petition for mandamus.

A petition for extraordinary writ of mandamus, filed by or on behalf of a person confined in a state correctional facility, shall be brought within one year after the cause of action accrues.

1998, c. 596.

§ 8.01-645. What petition to state; where presented.

The petition shall state plainly and concisely the grounds of the application, concluding with a prayer for the writ, and shall be presented to the court having jurisdiction, unless the application is to the Court of Appeals or the Supreme Court.

Code 1950, § 8-705; 1977, c. 617; 1984, c. 703.

§ 8.01-646. When writ awarded if no defense made.

When the application is made, on proof of notice and service of the copy of the petition as aforesaid, if the defendant fails to appear, or appearing fails to make defense, and the petition states a proper case for the writ, a peremptory writ shall be awarded with costs.

Code 1950, § 8-706; 1977, c. 617.

§ 8.01-647. Defense; how made.

The defendant may file a demurrer or answer on oath to the petition, or both. The court may permit amendments of the pleadings as in other cases.

Code 1950, § 8-707; 1977, c. 617.

§ 8.01-648. What judgment to be rendered.

The court shall award or deny the writ according to the law and facts of the case, with or without costs.

Code 1950, § 8-709; 1977, c. 617.

§ 8.01-649. Proceedings when application is to Supreme Court or Court of Appeals.

If the application is to the Court of Appeals or the Supreme Court, the procedure shall be in accordance with the provisions of Rules of Court.

Code 1950, § 8-710; 1977, c. 617; 1984, c. 703.

§ 8.01-650. Suspension of proceedings, where prohibition applied for.

On petition for a writ of prohibition, the court may, at any time before or after the application for the writ is made, make an order, a copy of which shall be served on the defendant, suspending the proceedings sought to be prohibited until the final decision of the cause.

Code 1950, § 8-711; 1977, c. 617.

§ 8.01-651. Suspension of proceedings by justice of Supreme Court or judge of Court of Appeals.

Whenever a court having jurisdiction refuses to suspend proceedings as provided in § 8.01-650 of this chapter, a copy of the proceedings in court, with any orders entered in the proceedings, may be presented to a judge of the Court of Appeals, if an application for a writ of prohibition is pending in that court, or to a justice of the Supreme Court if the application for a writ is pending there. Such judge or justice may thereupon award a suspension of the proceedings sought to be prohibited until the final decision of the cause.

Code 1950, § 8-711.1; 1972, c. 673; 1977, c. 617; 1984, c. 703.

§ 8.01-652. Service of writ; how obedience enforced.

Service of a copy of the order awarding the writ shall be equivalent to service of the writ, and obedience to the writ or order may be enforced by process of contempt.

Code 1950, § 8-713; 1977, c. 617.

§ 8.01-653. Mandamus to secure construction of act directing payment out of treasury of the Commonwealth.

Whenever the Comptroller or the Treasurer of the Commonwealth shall notify the Attorney General, in writing, that they, or either of them, entertain such doubt respecting the proper construction or interpretation of any act of the General Assembly which appropriates or directs the payment of money out of the treasury of the Commonwealth, or respecting the constitutionality of any such act, that they, or either of them, do not feel that it would be proper or safe to pay such money until there has been a final adjudication by the Supreme Court determining any and all such questions, and that, for such reason, they will not make payments pursuant to such act until such adjudication has been made, the Attorney General may file in such court a petition for a writ of mandamus directing or requiring the Comptroller or Treasurer of the Commonwealth, or both, to pay such money as provided by any such act at such time in the future as may be proper. In order to avoid delays in payments after the time for making them has arrived, any such petition may be filed at any time after the passage of any such act although the time for making such payments has not arrived and no demand for such payments has been made. In any such proceeding the court shall consider and determine all questions raised by the Attorney General's petition pertaining to the constitutionality or interpretation of any such act, even though some of such questions may not be necessary to the decision of the question of the duty of such Comptroller and Treasurer of the Commonwealth to make payment of the moneys appropriated or directed to be paid.

The Comptroller and the Treasurer of the Commonwealth, or either of them, as the case may be, shall be made a party or parties defendant to any such petition and the court may, in its discretion, cause such other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any such attorney shall be fixed by such court and upon its order paid out of the appropriation to the office or department of any such public officer represented by any such attorney in such proceeding.

Code 1950, § 8-714; 1977, c. 617.

§ 8.01-653.1. Mandamus to secure construction of act granting power to incur certain obligations for transportation needs.

Whenever the Comptroller notifies the Attorney General in writing that he entertains doubt respecting the constitutionality of any act of the General Assembly granting an agency of the Commonwealth or other governmental board or entity of the Commonwealth general powers to incur obligations for transportation needs where such obligations are subject to authorization by the General Assembly, the Attorney General shall file in the Supreme Court a petition for a writ of mandamus directing or requiring the Comptroller to pay the money as provided by any such act at such time in the future as may be proper. In order to expedite long-term planning by such an agency of the Commonwealth or other governmental board or entity of the Commonwealth and expedite its advice to the Governor and the General Assembly on possible alternative means of financing Virginia's transportation needs, the petition may be filed after the enactment date of any such act, although (i) the General Assembly may not have enacted legislation specifically authorizing such an agency of the Commonwealth or other governmental board or entity of the Commonwealth to enter into specific obligations under its general authority or (ii) if such specific obligations have been authorized, the time for making payments has not arrived and no demand for payment has been made. The court shall consider and determine all questions raised by the Attorney General's petition pertaining to the constitutionality or interpretation of any such act, even though some of the questions may not be necessary to the decision regarding the duty of the Comptroller to make payment of the moneys appropriated or directed to be paid.

The Comptroller shall be made a party defendant to the petition. The court may, in its discretion, cause other officers or persons to be made parties defendant as it may deem proper, and may make such order respecting the employment of an attorney or attorneys for any officer of the Commonwealth who is a party defendant as may be appropriate. The compensation of any attorney so employed shall be fixed by the court and upon its order paid out of the appropriation to the office or department of the public officer represented by the attorney in the proceeding.

1986, Sp. Sess., cc. 14, 16.