*1 warrant, actions fall of the search as the officer’s execution the affidavit was sufficient good exception under the faith and received from the reliability to establish the information erred in denying informant. find that the trial court We dismiss, as appellant’s motion to consolidate or appellant’s more oxycodone support was not sufficient to possession than one count of with the intent to distribute. We possession affirm conviction for with the intent to appellant’s possession hydrocodone appellant’s distribute and one of convictions for the intent re- possession oxycodone. with to distribute We judgment verse the of the trial court and remand this case to trial the three court with instructions consolidate indict- possession ments into one indictment for with the intent to and to oxycodone, appellant accordingly. distribute sentence reversed in and remanded. part, part, Affirmed
v. MEDICAL FACILITIES OF AMERICA LIV LIMITED Partner
ship, Center, Maple Beaufont Healthcare Leaf of Hanover d/b/a County Care, Inc., Center, Health Hanover Healthcare d/b/a Virginia Department of health.
Record No. 1085-07-2. Appeals Virginia, Court of
Richmond. April *4 (Martin Benjamin Donlan, Jr.; W. Pace A. Samuel T. Towell; Mullen, briefs), appellants. Williams *5 (H. Kneedler; Lacy,
D. Patrick Jr. Lane Kevin R. McNally; LLP, brief), Reed appellees Smith on for Medical Facilities of Partnership America LIV Limited Leaf of Maple Hanover Care, County Health Inc. Cobb, (Robert Attorney
Matthew M. Assistant F. General McDonnell, General; Johnson, Attorney David E. Deputy General; Attorney Hickey, Jane D. Senior Attorney Assistant General, brief), appellee Virginia Department for of Health. KELSEY, JJ., COLEMAN,
Present: FRANK and S.J. KELSEY, Judge. case, homes,
The in appellants this five claim the Virginia Department of Health not granted should have request by competitor to relocate hospital beds from one of its facilities to two others pursuant to 2005 Va. Acts ch. 99 (House 2316), § Bill predecessor uncodified of Code 32.1- appellants 102.3:5.1 The argue Department unlawfully refused recognize “good to their cause” standing participate to in the process. administrative The Department denied that (which request ground on the that 2005 ch. Va. Acts we will Act”) refer simply to as the “2005 Relocation exempted quali- relocation fying requests plenary from the administrative pro- and, so, cess doing precluded nonparties from obtaining standing more participate Act’s abbreviated and simplified process.
The filed appellants petitions appeal to the circuit court pursuant (VAPA), Virginia Administrative Process Act seq. et § 2.2-4000 agreed The circuit court with the Department’s interpretation of the 2005 Relocation Act and dismissed the VAPA appeal appellants because had no standing pursue it. too find this reasoning persuasive We and, thus, affirm the circuit court’s dismissal order. Assembly In the General reenacted 2005 Va. Acts ch. 99 (A)(3). (2007 without subsection See Code 32.1-102.3:5 Va. Acts ch. 398). Act this of the appellants argue interpretation it into an unconstitutional law violation of “special” converts IV, 14-15, §§ Virginia Though we Article Constitution. question whether the have this case to Act, challenge constitutionality of the 2005 Relocation we *6 arguendo they assume do and nonetheless find the Act cannot be judicially special vacated as an unconstitutional law.
I. affiliates, America, various Through Medical Facilities of (MFA) home, Inc. operates nursing the Warsaw Healthcare Warsaw, Center, in Virginia. located MFA also two operates homes, Center, other in nursing Hanover Healthcare located Center, County, Hanover and in Beaufont Healthcare located the City Regulated by Virginia of Richmond. the Department Health, MFA obtained certificates of need public operate to these throughout homes and others the Common- wealth in various districts planning Depart- maintained the ment. In MFA permission from the sought Department (located to relocate beds from Warsaw Healthcare Center district) planning one to Hanover Healthcare and Center (both Beaufont Healthcare Center planning located another district).
Two the appellant nursing homes wrote letters to the Department requesting fact-finding an informal conference pursuant Department 32.1-102.6. The refused conference, conduct asserting that Act Relocation exempts request the relocation from normal process gov- erning certificates of All public appellants need. of the re- sponded by filing petitions “good with the Department seeking cause” The participate hearings. administrative Department rejected petitions again explained and request the 2005 Relocation Act removed MFA’s relocation from the hearing process. normal approved issued Department request later MFA’s (COPNs) of public authorizing
certificates need the bed trans- Claiming “aggrieved agency fers. to be from an parties” appeal for decision,” petitions filed VAPA appellants “case City County and of Chesterfield in the Circuit Courts as- appellants petitions appeal, In their for Richmond. the 2005 erroneously interpreted Department that the serted claimed, construed, the appellants Properly Act. Relocation request from MFA’s relocation exempt the Act did not not, whether it did or process. And normal administrative request added, approve decision to Department’s they aside judicially should be set hearing them a granting without capricious. arbitrary as also appeal,
In for petitions their VAPA prohibition Act violated the the 2005 Relocation alleged that IV, in Article law” found or local against “special, private, appel- of the 14-15, Constitution. None Virginia §§ however, declaratory judgment lants, any non-VAPA filed requesting either any separate counts or asserted claims Each of the jurisdiction. general court to exercise its circuit jurisdictional their their claims and appeal limited petitions *7 and the review of VAPA judicial provisions to the allegations regulation law the administrative underlying governing basic homes. in the Chesterfield were consolidated appeals Both VAPA moved to dismiss The County appellees Circuit Court. Relocation that the 2005 grounds, including various appeals on in parties as obtaining standing from Act deprived status precluded thus their proceeding and the administrative judicial review of VAPA’s parties purposes aggrieved as and dismissed agreed The circuit court procedures. us, claiming the circuit appellants appeal The VAPA case. not appeals their VAPA dismissing erred in court claims. the merits of their addressing
II. Principles Standing VAPA, A. Law & The Basic VAPA, agency’s reviews the circuit court Under court’s role appellate to an “equivalent in manner action 707, Carter, 24 Va.App. v. a trial court.” J.P. from appeal 591 721, (1997) 162, 485 S.E.2d 169 (quoting Sch. Nicely, Bd. v. 12 1051, 1061-62, (1991)) (internal Va.App. 545, 408 S.E.2d 551 omitted). quotation sense, marks “In this the General Assem bly provided has that a circuit court acts as an appellate Allen, tribunal.” 272, 277, Gordon v. 24 Va.App. 482 S.E.2d 66, (citation omitted); 68 Pence Holdings, Inc. v. Auto Ctr., Inc., 703, Va.App. 708, 732, (1995). 454 S.E.2d 734-35
VAPA, however, “does not vest circuit courts with appellate over authority agency all decisions.” v. Giannoukos Med., Va. 694, 699, Bd. 44 Va.App. 607 S.E.2d (2005). “Only those within the definition of a ‘case decision’ fall within the scope of the judicial VAPA’s provisions.” review 2.2-4026). Id. (citing § Code A “case decision” results from an agency proceeding involving a party.” § “named Code 2.2- 4001. A “named party” who loses an agency case decision ordinarily judicial can seek review under VAPA. A party who “named,” is not but a party nonetheless, can appeal to circuit if court he is genuinely “aggrieved” by decision, the case see 2.2-4026, or qualifies as a “necessary party” essential to the resolution of appeal, Browning-Ferris Ind. v. Involved, Residents Va. 492 S.E.2d (1997), or is otherwise party deemed a under Rule 2A:1.
Nonparties, however, appeal cannot a case decision to the circuit court under They however, VAPA. can appeal, agency’s decision to exclude them from participating administrative process—which, context, in this involves question whether the agency properly refused to recognize the appellants’ “standing” to intervene and thereby acquire party Inst., status. See Tidewater Psychiatric Inc. v. Buttery, 380, 383-84, Va.App. (1989); see also Chippenham Peterson, & Johnston-Willis v. 36 Va.App. *8 1, (2001). 474 133, n. 553 S.E.2d 136 1n.
Whether an agency correctly refused to recognize of a standing putative intervenor depends on the criteria for standing, if any, adopted by the underlying administrative statute, the “basic law” § as Code 2.2-4001 it. calls The basic may see, law provide broader standing, e.g., Harrison v. Ocean
592 Pier, 568, LLC, 556, 421, Va.App. 651 S.E.2d Fishing
View (2007), EDF standing, or v. State Water Control narrower (1991), Bd., than Va.App. 404 S.E.2d by standard VAPA. adopted default standing any the basic law refuses to for recognize When nonparties seeking participate pro- the administrative cess, respects that refusal. VAPA seeks to VAPA While action, agency court it does so “save as “standardize review” provide.” may expressly laws hereafter enacted otherwise added); Health Sys. § 2.2-4000 see also (emphasis Code Stroube, v. Agency Va.App. “governs appeals (recognizing pro- that the VAPA decisions, agency’s for basic law
cess administrative unless otherwise”). provides Standing
B. The Act & “Good Relocation Cause” case, In this the circuit court reasoned that the 2005 exempted request Act so the relocation completely Relocation no process “good from the normal administrative cause” The court standing nonparties recognized. could be also basis, law statutory no other either in the basic found VAPA, judicial to seek re granting reason, For view the relocation this court approval. with must be appeal agree held VAPA dismissed. We reasoning court’s and conclusion. facilities, including law medical care governing
The basic homes, “person any that no shall commence nursing states obtaining a certificate” issued without first project 32.1-102.3(A) § Department’s Commissioner Health. Code added). under The definition of Code (emphasis “project” § “increase in the total number of 32.1-102.1 includes care like a “existing facility” beds” medical Department public cannot issue a certificate home. public has that a need “unless the determined Commissioner 32.1- project need for has been demonstrated.” 102.3(A). *9 provides § for procedures obtaining
Code 32.1-102.6 certifi- for A public projects. cates need Subsection “To provides: obtain a for project, applicant certificate a shall file a completed application a Department for certificate with the and the health B appropriate planning agency.” Subsection reviews, public describes various a including near hearing “project” where the has been D proposed. Subsection re- quires Department timely to make a determination on “project” whether the satisfies the public-need criteria. Sub- determination, D section makes this with some minor excep- tions, subject provisions to “the of the Administrative Process Act” and permits individuals to “good seek cause” to intervene in the proceeding and request informal fact- finding conference § under See VAPA. 32.1- 1022.6(D). Act, however, 2005 Relocation adds structural proviso
qualifying the broad reach the basic law. The Act provides in part: (i)
A. Notwithstanding the provisions 32.1-102.3 and of§§ (ii) 32.1-102.3:2, any regulations of the Board of Health establishing standards for the approval issuance of (iii) for Requests Applications, or provisions of any current Requests for Applications issued the Com- pursuant 32.1-102.3:2, § missioner of Health Commissioner of Health accept shall applications and may issue certificates of public need for nursing home beds when such beds are facility a relocation from one to another facility or facilities under common ownership control, or regardless of they whether are the same district, if, planning year as of December preceding year in which proposed, relocation is following criteria are met....
B. A relocation nursing home beds under the circum-
stances described herein shall not a “project” constitute as entity 32.1-102.1. An may not relocate defined more than two-thirds of the total number of for beds facility which the was prior licensed relocation pursuant Any to this section. that apply restrictions remain at the time of the relocation shall certificate following effect relocation. added). 99 (emphasis 2005 Va. Acts ch. Act to correctly court read the 2005 Relocation
The circuit provide process approving and abbreviated simplified requests for bed relocations from one disapproving *10 or ownership to another under common control. Sub- home B not qualifying makes clear that a relocation “shall section §in ‘project’ (Emphasis constitute a as defined 32.1-102.1.” added.) provides § of 32.1-102.1 opening The sentence Code definitions, definition of statutory including “pro- its the that (entitled 1.1 ject,” throughout Article “Medical Care apply Need”) of Public unless context dictates Facilities Certificates from qualifying relocations the defi- By exempting otherwise. B Act of of the 2005 Relocation “project,” nition subsection procedures govern- Article 1.1’s inapplicable renders elaborate public projects— of certificates of need ing approval for holding public § including procedures Code 32.1-102.6’s to nonparties. hearings granting good-cause A of the Act reinforces Subsection 2005 Relocation clear shall point by making equally Department § request “[notwithstanding” Code 32.1-102.3. process the showing supported by to be requires “projects” That statute the multitude of considerations of need and details public short, In governing agency’s exercise of discretion. qualifying relocation only exempts 2005 Relocation Act not “projects,” to procedures applicable Article 1.1’s requests from 32.1-102.3) (Code § negates very Act also statute upon challenge agency’s putative objectors rely would so, In public doing the ultimate of need.2 discretion on issue any “judicially manageable 2005 Relocation Act eschews provisions, that certain enforcement like contend (E), 32.1-102.4(C)(2) inapplicable might if § likewise be rendered literally. The excision of the 2005 Relocation Act is read subsection B definition, however, requests "project” certain from the relocation Department’s any impact enforcement may may or not have on the litigable controversy in question which powers. That must await directly play. is issue 595 Pierce, review,” Jr., standard of 3 Richard J. Administrative 17.8, (4th ed.2002), § Law Treatise at which the courts employ could to test the legitimacy appellants’ challenge the agency’s exercise of discretion.3 identical,”
In “virtually this VAPA is Bd. respect, State Health v. Godfrey, Va. n. (1982) (citation omitted), n. 6 to the Federal Administrative § judicial Procedure Act.Code 2.2-4000’s standardization review “save as laws hereafter may enacted otherwise ex provide” 701(a), pressly parallels which provides U.S.C. for judicial review of agency federal action to the “except (1) review; extent that preclude judicial statutes agency action is committed to agency by (Emphasis discretion law.” added.) Agency action is committed agency discretion law where a is statute “drawn in such broad terms that in a given case there is no law to apply.” Hosp. Inova Alexandria Shalala, (4th Cir.2001) (citation omitted). v. 244 F.3d is law if apply “There no statute ‘the is drawn so that a court would have no meaningful against standard which to ” *11 judge agency’s of exercise discretion.’ Id. (quoting Heck ler v. Chaney, 1649, 470 U.S. 105 S.Ct. 84 (1985)). 714 L.Ed.2d case,
In this the 2005 Relocation Act authorizes Depart- ment’s exercise of discretion by providing that the Commis- “may” sioner issue a certificate to a qualifying relocation request. Act, however, See 2005 Va. Acts 99. The ch. also provides that this of exercise discretion wholly would remain by any unfettered consideration “public various need” § factors Code By subject 32.1-102.3. that framing way, the 2005 Relocation Act includes no meaningful by standard Appellants argue they necessary par also that should be considered They necessary ties. We find no merit in this assertion. cannot be See, parties Ind., being parties. Browning-Ferris e.g., without first 254 282-83, (holding permittee, Va. at 492 party S.E.2d at 434 the named decision, necessary an appeal administrative case is to the VAPA permit). appellants standing Because the lacked to intervene in the process, fortiori, they necessary administrative cannot be to the judicial process appeal.
596 agen- any judge court the reasonableness which could by would otherwise have cy’s action when attacked those who § under 32.1-102.6.4 “good cause” Code Adjudicate C. The Circuit Court’s Refusal To The Constitutional Claim appellants concluded the lacked VAPA stand Having to adjudicate the circuit refused ing pursue appeal, court their appellants’ claims—including the merits of the assertion prohibition against 2005 that the Relocation Act violated IV, 14-15, §§ or law” found in Article “special, private, local the court’s reluc Virginia Constitution. We understand allegation The in their VAPA appellants tance. made solely on the circuit court’s petitions appeal predicated jurisdiction. sepa The did not file appellate VAPA declaratory injunctive predi complaints seeking rate relief jurisdiction. general cated on the circuit court’s non-VAPA See, Bd., Policy St. Luke v. Health S.W.2d 1 e.g., Hosp. 913 declaratory (entertaining judgment a claim for (Ky.App.1996) law statutory exception general that a to the COPN was jurisdiction special legislation). The limited unconstitutional ‘subject by to any authorized VAPA “does not extend matter Mattaponi by law to a trial de novo in court.’” The Commonwealth, Tribe v. Va.App. Indian 2.2-4025(A)), § (quoting aff'd, S.E.2d (2005).5 423, 621 Va. S.E.2d it, B, preclude appellants argue we 4. that subsection as read would ‘'[njotwithstand application of Code 32.1-102.3 even without conclude, ing” interpretation, they proviso A. should of subsection Our against treating statutory interpretation some rejected be the rule of acknowledge point, statutory language superfluous. but as We dispositive Virginia "do resort to treat it as because courts not cannot where, here, language statutory interpretation as contained the rules of Commonwealth, Mouberry ambiguity.” in a is free from v. statute *12 576, 2, 567, (2003) (quoting 2 Wilder Va.App. n. S.E.2d 570 n. 582 575 124, 398, Gen., 119, (1994)). Attorney 247 Va. S.E.2d 401 v. 439 seeking freestanding, filed non-VAPA claims If the had 5. juris- general declaratory diction, injunctive within circuit court’s relief authority preclude segmented appellate us from our would Tribe, Va.App. Mattaponi 43 at 709- hearing the See Indian case. The 597 Appellants argue appeal to us the circular seemingly they standing challenge allegedly thesis that have VAPA deprivation They unconstitutional standing. point VAPA out, however, position the antithesis of their is circu- equally lar—that a court cannot allegedly VAPA enforce an unconsti- statutory tutional deprivation standing ground of VAPA on the that the deprived litigant standing. has no We see no need in exclusive, this case to mutually choose between these two but anfractuous, VAPA equally Assuming theories of standing. arguendo the appellants have in this VAPA appeal to challenge constitutionality the law eliminates their standing in first place, we find no merit in their constitu- tional challenge.
The prohibitions against “special, private, or local IV, 14-15, §§ law” found in Article Virginia Constitution track the minimum rationality requirements employed longstanding process equal protection due doctrines. Vir ginia courts “apply so-called ‘rational basis’ test” when testing constitutionality of legislation process, “under due v. equal protection, and special legislation provisions.” Willis Mullett, 653, 659, 705, (2002). 263 561 Va. S.E.2d special prohibitions laws recognize necessity “the for and the reasonableness of classification are primarily questions for the legislature. If conceived, state of facts be reasonably can it, that would sustain that state of facts at the time the law Green Unit Own was enacted must be assumed.” Jefferson Gwinn, ers Ass’n v. 449, 459, 339, 262 Va. 551 S.E.2d (2001) (citation omitted).
Litigants challenging
illegitimate
statute as an
burden,”
law
Holly Hill Farm Corp.
special
“heavy
shoulder a
Rowe,
v.
425, 432,
(1991),
241 Va.
404 S.E.2d
one
safeguard
calculated to
“legislative
the maxim that all
acts are
Henrico,
Boyd
‘presumed
constitutional,’”
County
v.
be
(en
banc)
Va.App.
676-77,
aff'd,
The 2005 Relocation Act of that has been criti- process transfers from an administrative expensive. generally some as inefficient and' See by cized Studying Special Joint Subcommittee Report Certifi- of Need, (noting Doc. at cate Public Sen. No. need “strong public process that the certificate of feeling reduced”). and bed streamlining could be For transfers needs conditions, the Act meeting the 2005 Relocation applicable streamlined, non-litigious process a to seek adminis- provides approval. trative argue if Act has this stream- appellants truly effect, example it should be struck down as
lining “corporations it applies only favoritism because economic and, result, a “only large, homes” as owning multiple nursing from the abbre- influential stand to benefit” Act’s corporations Br. make Appellants’ See at To procedures. viated contend, worse, Assembly General matters only Appel- Act to benefit MFA. See specifically intended the reasoning underlying Br. at with the disagree lants’ 34. We both assertions. with, begin applies only companies it is true the Act
To
A company
two
controlling
nursing
or
at least
homes.
owning
transfer
another
owning
nursing
one
home cannot
beds
This
company.
other
operated
home owned and
some
however,
distinction,
“purely
be characterized as
cannot
classification,
Com
Martin’s Ex’rs v.
arbitrary” legislative
(1920),
monwealth,
603, 612, 102
devoid of
126 Va.
S.E.
homes
reach to
Limiting
rational
Act’s
basis.
discourages
or
creation
ownership
common
control
under
disparate
de
market
in bed relocations between
facto
effort under
corporate
places
entities
entire relocation
settling
plan.
effect
a unified business
commonly
Whether
the Act to
limiting
owned
operated nursing
public policy,
homes
sound
we
represents
competent
are not
to say.
Judicial review does not evaluate
wisdom,
“propriety,
necessity
expediency”
of legisla
Commonwealth,
tion. Mouberry v.
576, 585-86,
*14
39 Va.App.
(citations
omitted).
567,
575 S.E.2d
only
We ask
statutory
irrational,
the
whether
classification erects an
arbi
trary distinction—one that no
of
conceivable state
facts could
Ass’n,
Green Unit Owners
reasonably sustain.
Jefferson
459,
Va. at
For similar we accept allega- cannot the appellants’ tion the Assembly that General facially enacted a neutral statute with the sub silentio intent it that to the “inure benefit Appellants’ MFA alone.” argument Br. at 34. The rests that, assumption 2005, the factual operated in MFA the only nursing in home business the Commonwealth that could have rejects met criteria of the Act. MFA this assumption, that arguing legislative Act, history of including floor statements of the patron, demonstrates that at five least or six nursing homes might have met the criteria in 2005.
We think this factual point. debate misses the The question is not the size of in statutory class Act The is not a one-time piece legislation only nursing to applicable homes operating during year of its enactment. Act The perpetuity applies and fully shuts the class door only when repealed. Even if the 2005 statutory class size a benefited few, favored the question is whether it would forever do so. We can legislation strike down as an unconstitutional special law when only “the class provisions established its is at once arbitrary duplication so narrow and so that of its content is to chance, be ranked as an a unexpected freak turn of the wheel of fortune defying probabilities.” v. Va. Peery Bd. of Embalmers, Funeral Dirs. & 94, 203 Va. (1961) (citation omitted). hardly be cannot be made here. It would Such an assertion a an of chance” or “turn of the wheel “unexpected freak 167, 123 defying Peery, 203 Va. at probabilities,” fortune (citation omitted), for the Relocation Act to S.E.2d at 98 industry, nursing future The home nursing benefit homes. markets, Corporate like economic is far from static. most reorganizations asset can be acquisitions hypothesized of the that create conditions consistent with criteria could sure, Assembly Act. have intend- may To be the General even encourage just ed the Act to that. that, future, may
It well be at least the foreseeable relatively Act will to a small apply only 2005 Relocation may made to portion industry. home “Laws be however, may a class “and that class be apply only,” one, be point provided of fact small classification itself one, law and the be made arbitrary reasonable not without apply persons belonging to all of the class 718-19, Settle, Ex 114 Va. 77 S.E. parte distinction.” (1913). of the Act insures facially neutral criteria arguably while limited to a small process, its streamlined *15 industry, by any may sector of the home be accessed criteria. applicant meeting statutory the the our col- Finally, suggestion we decline respectfully in case the for it to league agency dissent to remand this to evidentiary constitutionality an on the hearing conduct adminis- 2005 Relocation Act. in VAPA authorizes an Nothing into consti- agency evidentiary hearings to conduct trative which, make tutionality legislation findings and to factual 2.2-4027, judicial entitled to deference under Code would be generis court.6 Vested with sui circuit appeal decision, agency as to appeal of 'the sole determination "On agency is evidence exists in the factual issues whether substantial may agency's reviewing court support decision. The record to if, only considering as a reject agency’s findings of the record fact whole, necessarily to a different conclu- mind would come a reasonable " Johnston-Willis, Va.App. S.E.2d Chippenham at & sion.' (citation omitted); Mattaponi v. Alliance Save the at see also Commonwealth, (2005). S.E.2d 270 Va. review, power judicial alone judiciary perform must whatever is factfinding necessary to fulfill this task. It cannot be in or in delegated, part, whole to the executive branch of government.
III. Because 2005 Relocation Act precludes appellants from acquiring judicial standing agency’s to seek review of the case, actions in this the circuit court properly dismissed this VAPA appeal. Assuming arguendo nonetheless have challenge Act, the constitutionality of the we find no merit their challenge.
Affirmed.
FRANK, J., dissenting. Because the majority opinion assumes the constitutionality (HB 2316) of House Bill 2816 and then interprets HB 2316 to preclude judicial review under the Virginia Administrative (VAPA), Process Act I I respectfully dissent. would reverse the order of the trial court dismissing appellants’ claims for lack of standing, remand to the trial court with instruc- tions to remand this case to the Commissioner to determine HB whether 2316 is unconstitutional special legislation.
BACKGROUND (MFA) Medical America, Facilities of Inc. Virginia is a corporation that has an ownership interest manages and/or at least 30 nursing homes in Virginia. plays MFA some role in the ownership operation of the three nursing homes at (Warsaw issue in appeal: this Warsaw Healthcare Center HCC), located Planning District Hanover Healthcare *16 (Hanover HCC), Center in Planning located District and (Beaufont Beaufont HCC), Healthcare Center located in Plan- ning District 15.
Warsaw HCC has housed 180 nursing licensed home beds in Warsaw, Virginia, since 1985. Citing the weak financial per- 60 of the HCC,7 MFA to transfer sought
formance of Warsaw and 60 of the beds to Hanover HCC beds at Warsaw HCC HCC, district. planning a different Beaufont both requirements detail the §§ 32.1-102.1 to 32.1-102.13 Code care facili- for medical obtaining for COPN procedures and provides, part: § 32.1-102.3 ties. Code without first any project8 shall commence person No No by the Commissioner. a certificate issued obtaining has issued unless the Commissioner may certificate be been project for the has public that a need determined approve to issue or Any decision demonstrated.... the most consistent with of a certificate shall be issuance Facilities of the State Medical applicable provisions recent Plan.... added).
(Footnote that “the Commission- twenty then lists factors The statute need public “whether a determining consider” when er shall 32.1-102.3(B). § demonstrated.” Code for a has been project include the recommendation relevant Those factors served population “need that the agency, health planning “the project,” has for project or to be served existing system health care project relationship efficiency and “the proposed,” in which the is project the area and facili- existing the use of services appropriateness § 32.1- proposed.” to those ties in the area similar 102.3(B). survey "poor performance weak financial attributed the MFA shortages, investigation,” Department staff and a of Justice results facility area. MFA nursing in the Warsaw of a new home the addition rely outside led them to of these factors noted that the combination facility nursing positions in the agencies and resulted to staff their operating at a loss. as, things, among "project” "[a]n other defines
8. Code 32.1-102.1 existing operating rooms in an number of beds or increase in the total categorizes as a facility.” home medical care This statute Thus, facility.” applications for the COPNs involved "medical care purposes "project” normally the definition of here would fall under of this statute. *17 For applications for a COPN to increase the number of district, home nursing § beds a planning Code 32.1-102.3:2 requires the Commissioner to “approve, authorize or accept” only applications those that “are filed in response Requests to (RFAs).” Applications for
Further, § Code 32.1-102.6 sets out administrative proce- govern dures that filing and review of application for a COPN. Those administrative procedures require regional health planning agency to review each application for a COPN and to hold a public hearing application each for a COPN. Both regional health planning agency and the Department of Health’s (DCOPN) Division of Certificate of Public Need review the applications and provide recommendations to the addition, Commissioner. In § Code 32.1-102.6 provides a process for a person to seek and “good obtain cause stand- ing” party and, as a to the case after status, obtaining such request an (IFFC) informal fact-finding conference to be convened. This IFFC allows all of parties involved to provide additional information for the Commissioner to consid- er when determining whether approve the application for a COPN. The regional health planning agency or can DCOPN also request an IFFC.
In the legislative session, Virginia legislature passed HB provides: which (i)
A. Notwithstanding provisions §§ 32.1-102.3 (ii) 32.1-102.3:2, any regulations of the Board of Health establishing standards for the approval and issuance of (iii) Requests Applications, or provisions of any current Requests for Applications issued by the Commis- sioner § of Health pursuant 32.1-102.3:2, the Commis- 32.1-102.6(G) "good defines cause” as: (i) significant there is previously presented relevant information not (ii) at and not public hearing, available at the time of the there have significant been changes relating in factors or circumstances to the application subsequent (iii) public hearing, to the or there is a substantial material Department mistake of fact or law in the staff’s report application on the report or in the submitted the health planning agency. may issue accept applications
sioner of Health shall when such need for home beds public certificates facility one to another or facility beds are a relocation from control, ownership regardless under common facilities if, district, are in the as of they planning whether same year preceding year 31 of the which December criteria are met: proposed, following relocation is to relocate occupancy facility seeking 1. The rate of the *18 beds, for which the upon based the total number beds licensed, percent; was less than 67 facility is facility 2. than 25 of the residents of the percent Greater relocated, are to to immediately prior from which beds be in facility, planning resided outside the district moving located; facility which the is of the percent nursing
3. More than 10 hours facility performed from which beds are to be relocated were temporary agency staffing; and are to be relocated has Any facility to which beds ex- average occupancy an rate that meets or experienced percent. ceeds 90 A home under the circum- nursing
B. relocation of beds a as “project” stances described herein shall not constitute may § in 32.1-102.1. An not relocate more entity defined beds for which the than two-thirds of the total number of to this facility any pursuant was licensed to relocation prior that to the certificate at the Any apply section. restrictions following in effect time of the relocation shall remain relocation. 8, 2005, response legislation, to this DCOPN August
On frames “for special procedures process- and time promulgated under the relocation of home beds ing request a for HB 2316 to interpreted HB 2316.” DCOPN provisions of handling for process abbreviated “simplified and require Further, that HB 2316 “di- DCOPN noted requests.” such notwith- to “take certain actions rects” the Commissioner and determining need” statutory criteria for apply procedures the administrative “notwithstanding original). projects.” (Emphasis review Essentially, special procedures that the provided Com- HB application pursuant missioner would review an 2816 to (1) determine whether it only met the classification criteria set out in that “it legislation, likely and is not to result significant harm to affected nursing home residents or to other procedures citizens of the Commonwealth.” The then set forth an time frame for reviewing applica- abbreviated tions, specified only that an would occur if it “is IFFC required as a result of the recommendation of the Department of Health staff.” The only regional plan- role for health was an HB ning agency opportunity “to review an Commissioner,” request provide its comments to the but procedures did not for a provide public hearing or for the regional Further, planning agency health request IFFC. the procedures did not for provide person other to apply good for cause or to standing, request an IFFC. COPN,
On September MFA applied pursuant to HB to transfer 60 nursing home beds from Warsaw (the HCC to Beaufont HCC Beaufont application). On Octo- COPN, ber MFA applied for a to HB pursuant *19 nursing transfer 60 home beds from Warsaw HCC to (the Hanover HCC Hanover If application). approved, War- saw HCC would be left with nursing no home beds.10 25, 2005,
On October Virginia the Central Health Planning (CVHPA) Agency held public hearing, contrary to the procedures by outlined DCOPN.11 MFA contended that the statute did not for a provide public hearing, or for a recom- Although operate nursing 10. Warsaw HCC had a COPN to home beds, beginning September began reducing in MFA the number occupied goal reaching of beds at Warsaw HCC with the of occupied by beds December 2004. they disagreed 11. CVHPA noted that with the exclusion of MFA’s COPNs, applications process remarking from the normal review for prior legislation passed by legislature only had removed the process required procedures. RFA from the COPN Further CVHPA that, Agreement believed under Depart- their Memorandum of with the Health, they ment of were mandated to conduct the same review of all CVHPA, hearing in the as a participated mendation from but letters of courtesy agency. to the CVHPA received seven beds, family three from mem- to the transfers of opposition HCC, from the administrator bers of residents at Warsaw one HCC, from of the located near Warsaw and three hospital in District nursing Planning home facilities located 15. on and consumer “significant provider opposi- Based this tion,” twenty under the application and their review of 32.1-102.3(B), recommended the factors CVHPA by MFA. deny applications Commissioner both submitted of into Specifically, CVHPA noted that the transfer these beds District 15 violated of the State Medical Planning provisions Plan, unnecessary surplus and harmful creating Facilities deficiency District 15 and a nursing Planning of home beds 17. The Planning surplus home beds District negatively occupancy would rates and the finan- impact beds homes, deficiency cial while the viability existing nursing negative impact viability beds would have “a on the economic Additionally, of area CVHPA to alterna- hospitals.” pointed tives to the that would diminish the negative transfer of beds service area and Plan- consequences for both Warsaw HCC’s ning District 18, 2005, that the Com- requested
On November CVHPA applications. MFA’s regarding missioner convene an IFFC that, because under responded applications The Commissioner admin- “projects” purposes HB 2316 are not COPN required.” istrative “no IFFC is process, released its review and recommendations No- DCOPN 14, 2005, and on regarding application, vember the Hanover For regarding application. November the Beaufont CVHPA, deter- of the same reasons cited DCOPN many deal of overall great that neither had “a application mined and that DCOPN would not merit” when considered alone Moreover, applica- when both normally approval. recommend *20 such, proceeded they applications. CVHPA as would with COPN As by notwithstanding special procedures issued any application, other DCOPN. tions were considered together, DCOPN determined that ap- proval applications very likely of both “would cause serious and harm to the long-lasting capability home services [Planning [Planning 17 and 18 District] Districts] combined, undue, likely though and would cause probably relatively modest harm to some or perhaps many nursing However, home providers 15.” [Planning DCOPN District] approval recommended of the applications solely because the applications met the criteria set out in HB and because DCOPN believed that the HB design permit 2316 did not consideration of the merit of the applications other criteria.12
Appellants separate petitions good filed cause with the Commissioner the consideration of applica- MFA’s COPNs, tions for each requesting party status the case. Appellants also asked the Commissioner to convene an IFFC to consider the lawfulness of the applications under HB even if DCOPN approval recommended of the applications, HB argued that 2316 constituted unconstitutional special In legislation. response, that, the Commissioner stated “[in- asmuch HB expressly as any proposed removes reloca- tion pursuant submitted to it from the category of those things that are projects, your attempt petition good show cause in relation to proposed relocation cannot be accepted.” 15, 2005,
On December approved Commissioner Hanover application for a COPN to transfer 60 beds from HCC, Warsaw stating, “I have approval concluded that request warranted, is based on the following finding: The application meets each of the criteria for its acceptance and possible approval that are set forth HB 2316 of the 2005 Assembly.” 19, 2005, General On December the Commission- er approved the Beaufont application for a COPN to transfer 60 beds from Warsaw HCC on identical grounds. Indeed, in an internal memorandum to the Commissioner dated they December approval DCOPN stated that recommended applications "only language because the of HB 2316 seems to leave approval "clearly public us no choice” and that was harmful to the program interest that the COPN is intended to serve.” *21 court,13 for in the trial
Appellants petitions appeal filed in failing that: the Commissioner erred to hold hear- arguing in ings applications, denying on the the Commissioner erred good petitions, cause the Commissioner erred appellants’ where DCOPN and CVHPA found approving applications that the were without merit and were harmful to applications interest, public by giving and the Commissioner erred effect to special legislation. unconstitutional Virginia Department
MFA and Health filed motions that, as appellants’ petitions, arguing appellants dismiss parties proceedings were not named to the before the Com- VAPA, and were not under the “parties aggrieved” missioner appellants standing bring appeals. lacked court, hearing argument, granted The trial after oral appellants’ petitions appeal. motions to dismiss for The trial that, court determined based on of HB “the reading its procedural seq. apply.” mandates of et. do not 32.1-102, reasoned, only avenue for the trial court Appellants’ appeal, The trial court ruled that through appellants was VAPA. VAPA, standing appeal correspon- lacked under the as “the ” and, dence of the Commissioner are not ‘case decisions’ further, to the appellants “necessary parties were neither “ ” ‘aggrieved parties’ nor to the ‘case decision.’ proceeding” HB constitutionality The trial court did not address the
ANALYSIS in dismissing contend that the trial court erred Appellants for for lack of under the VAPA. petitions appeal their petitions appeal appellants their for in the Circuit 13. Three of the filed remaining County, two filed Court for Chesterfield while City petitions appeal the Circuit Court for the of Richmond. their for filings physical locations of each These were based on the different first, County petitions were filed appellant. As the in Chesterfield arising City of Richmond to was transferred in the cases in the venue County separate petitions into and the were consolidated Chesterfield one case. that, HB 2316 is unconstitutional Appellants argue because legislation, entirely it cannot to remove special operate normal administrative process applications review COPN §§ embodied Code 32.1-102.1 to 32.1-102.13.14 law, On of an determination on issues of appeal agency’s applied appeal depends standard of review to be on the “ ‘If the agency. nature of the issue before the issue falls generally agency, outside the area entrusted to the and is one i.e., in which the have a the com special competence, courts *22 ” law,’ mon law or not to constitutional the court need defer Johnston-Willis, agency’s interpretation. Kenley, the Ltd. v. (1988) 231, 243-44, 1, 6 369 8 Hi- Va.App. (quoting S.E.2d NLRB, (3d 910, Co. v. 660 F.2d 914-15 Cir. Clothing Craft 1981)). However, an question interpretation where involves which is within the specialized competence agency agency and the has been entrusted with wide discretion Assembly, agency’s General decision is entitled to courts[, ... special weight “judicial interference and] permissible only is for relief or against arbitrary capri- cious action that constitutes a clear of the delegated abuse discretion.” 244, at
Id.
“ particular a person right ‘[W]hether has contest law, administrative action is largely question dependent factors, on a number of variable the nature and including interest, extent of his the character of the administrative act ” Lukhard, 5 and the terms of the statute.’ D'Alessio v. Va.App. (quoting 717 73A § C.J.S. Public Administrative Bodies and Procedure However, Appellants arguments appeal. raise various other on analysis requires of these issues a determination as to whether HB 2316 special legislation. is unconstitutional Because I would remand this constitutionality case for a determination as to the of HB I would arguments appeal. not address of these on (1983)). Thus, appellate an court should review the trial court’s decision that lacked under the appeal. VAPA de novo on
The
“to
purpose
supplement present
stated
of the VAPA is
conferring authority
agencies
and future basic laws
either
make
or
cases as well
regulations
decide
as
standardize court review thereof save as laws hereafter
§
may
expressly provide.”
enacted
otherwise
Code
[2.2—
supersede
The VAPA “does not
additional
repeal
4000].
Also,
procedural requirements
such basic laws.” Id.
expressly exempts
agencies
agency
VAPA
certain
ac-
Thus,
provisions.
tions from its
[2.2-4002].
is intended to
a default or catch-all source of
VAPA
be
administrative due
whenever the basic
process, applicable
process.
law fails to
See State Bd.
Health v.
provide
Ass’n,
(1985).
Virginia
Va.App.
School Bd. York v. (1991). S.E.2d defines “basic as VAPA laws” *23 “provisions of the Constitution and statutes of the Common- Virginia authorizing wealth of an to make agency regulations containing procedural requirements or decide cases or there- § for.” Code 2.2-4001.
In resolving party standing appeal whether a has to an court, agency’s action to the trial the trial court deter- must standing mine whether the basic law contains a re- specific quirement, or whether the default of the standing requirement applies. VAPA Envtl. Fund v. Va. State Water Control Def. (1991). Bd., 12 Va.App. Neces- sarily, controls; the trial court must decide what basic law case, this the trial court had to decide whether HB 2316 supplanted §§ the basic laws contained in 32.1-102.1 to However, 32.1-102.13. such a determination requires first the trial court HB evaluate whether 2316 is constitutional. Indeed, the and every by by decision made Commissioner premised assumption the trial court this case was on the Appellants challenged, that HB 2316 was constitutional. be- court, fore the both the Commissioner and the trial constitu- HB it tionality alleging special legislation; that was yet, both the and the trial court refused to Commissioner arguments by appellants consider constitutional advanced on the that HB removed their to grounds opportunity any part proceedings applications contest on MFA’s COPNs. incorrect;
Such is one cannot reasoning clearly be divested to standing challenge constitutionality legislation by very Further, to legislation argued be unconstitutional.15 standing challenge constitutionality and of a lawfulness regulation statute or is wholly separate from challenge merits a decision. For example, VAPA distinction, makes a in terms of standing appeal, between one challenging regulation lawfulness of a and one chal- lenging the lawfulness of a case pro- decision. VAPA vides, in pertinent part, that “any person by and affected claiming unlawfulness of regulation, party ag- grieved by and claiming unlawfulness of a case decision ... right shall have a to direct review appropriate thereof timely court action against agency.” Code 2.2-4026 added). (emphasis only While the VAPA addresses the law- of a regulation fulness and not the lawfulness of legislation, my analysis. the distinction does not alter turn, analysis majority opinion presupposes In in the the consti- tutionality determining of HB 2316 without first whether the statute is majority remedy constitutional. The contends that have no VAPA, separate declaratory under and must instead file a action for judgment injunctive Appellants or seek relief. raised the constitutional- Commissioner, court, ity of HB 2316 before the before the trial throughout appeal. By concluding before this Court their that HB *24 VAPA, precludes any majority 2316 action under the deems statute engaging constitutional without in a review the of statute’s constitution- court, ality. reasoning, prevents It is this also exhibited the trial that joining majority's analysis. me from in the 612
Thus, the trial
that
did not
appellants
court’s decision
have
the merits of the Commissioner’s actions
standing
challenge
no bearing
appellants
standing
has
on whether
had
to chal-
Indeed,
of HB
lenge
constitutionality
constitutional
is defined as “whether the
to invoke
parties seeking
jurisdiction
have
‘alleged
personal
court’s
such
stake
the outcome of the
as to assure that
controversy
concrete
adverseness
sharpens
presentation
upon
which
of issues
which the court so
for illumination of
largely depends
difficult
”
v. Bd.
Cupp
Supervisors,
questions.’
constitutional
227
Va.
of
(1984)
580, 589,
Duke Power Co.
407, 411
(quoting
318 S.E.2d
v.
Study Group,
Carolina Envtl.
59, 72,
2620,
438
98
U.S.
S.Ct.
(1978)).
2630,
While the is a of law legislation question de novo normally that this Court on appeal, reviews whether legislation special consideration of is unconstitutional legislation requires findings factual that were not made be- low.16 that, majority opinion
16. maintains in order to resolve the constitu- 2316, tionality of HB had to seek either a declarative judgment injunctive separately relief trial court from their administrative action under the VAPA. disagree. Appellants complete I are entitled to receive relief adminis- claims, tratively; they required parse pursuing are not out their some administratively simultaneously their claims others in the trial appeal agency court. Our standard of review on from ac- decisions knowledges agencies constitutionality. do in fact decide issues of generally agency, "If the issue falls outside the area entrusted to the i.e., special competence, and is one in which the courts have law," common law or constitutional the court need not defer to the agency’s interpretation. Peterson, 469, Chippenham Hosps., Va.App. & Johnston-Willis Inc. v. 36 133, 243-44, (2001) (quoting Kenley, Va.App. 553 S.E.2d at 8) added). (emphasis 369 S.E.2d at involve, Hence, appeal where the issues to be reviewed on statute, example, constitutionality ... "less deference is required reviewing judicial not courts should abdicate their merely rubber-stamp agency function and determination." Am., Quillian, Volkswagen Va.App. Inc. v. 7-8) (quoting Kenley, Va.App. at 369 S.E.2d at added), (emphasis part grounds, rev’d in on other 266 Va. Thus, (2003). agencies properly S.E.2d 526 it is clear that can consider challenges constitutionality to the of statutes. I see no reason that
613
Assembly
presumed
All statutes enacted
the General
are
Servs.,
Emergency
to be constitutional. Pulliam v. Coastal
(1999).
Inc.,
1, 9,
307,
A
who
litigant
257 Va.
509 S.E.2d
311
a statute
challenges
validity
the constitutional
has
legislation
burden of
that the
is unconstitu-
proving
challenged
tional,
doubt as to the statute’s constitu-
any
and
reasonable
Id.
tionality
validity.
must be resolved
favor of its
IV,
14(18),
§
Article
of the
Constitution
Virginia
provides
local,
that
Assembly
any
special,
“the General
shall not enact
or
law ...
private
[granting
any private corporation,
association, or individual any special
right, privi-
or exclusive
IV,
15,
lege,
immunity.”
by mandating
Article
continues
laws____No
that
Assembly
“the General
shall enact general
association,
private corporation,
or individual
be specially
shall
exempted
law,
from the
operation
any general
nor shall a
general
law’s operation
suspended
be
for the benefit of
association,
private corporation,
or individual.”
These provisions,
adopted
part
first
as
of the Constitution of
1902, were devised to
perception
“correct the
that the General
Assembly,
in the
century,
nineteenth
devoted an excessive
amount of its time to the furtherance of
interests and
private
to counter the ‘sway
moneyed
interests were seen to hold
”
over state legislatures at the turn of the century.’ Benderson
Sciortino,
Dev.
Co. v.
136, 147,
751,
236
756
Va.
372 S.E.2d
(1988)
Commentaries on the
Howard,
1 A.E. Dick
(quoting
“
(1974)).
Constitution
Virginia
543
together,
‘Taken
IV,
pervading philosophy of Article
sections
and 15 reflects
favoritism, discrimination,
an effort to avoid
inequalities
and
”
Id. at
147,
application
laws.’
the Commissioner could not have considered such a in the Am., Smit, 444, 449, Volkswagen instant case. See Inc. v. 266 Va. 454, 526, 529, that, (noting 587 S.E.2d while the Court on the declined to rule constitutional issues because it decided the case merits, Department on the the Commissioner of the of Motor Vehicles challenges constitutionality had considered to the of a statute when the agency may case was before the and that "the constitutional issues arise Commissioner). again” on remand to the provisions “The constitutional prohibiting special legislation proscribe do not classifications.” Own Green Unit Jefferson Gwinn, ers Ass’n v. 262 Va.
(2001). “However,
pass
scrutiny,
constitutional
a classifica
reasonable,
tion ‘must be natural and
to the
appropriate
”
Commonwealth,
occasion.’
(quoting
Id.
Martin’s Ex’rs v.
(1920)).
Va.
102 S.E.
test for
“[T]he
statutes
challenged under the
special-laws prohibitions
Virginia
Constitution
they
is that
must bear ‘a
reasonable
substan
tial
object
relation to the
sought
accomplished by
be
*26
” Sciortino,
legislation.’
147,
Martin’s Va. at S.E. at 80 Budd v. (quoting (1901)). Hancock, 133, 1023, 1024 66 A. N.J.L. 48 may apply “Laws be made to to a and that only, class class one, may point provided be fact small the classification one, itself a reasonable and not an and the law be arbitrary be apply persons belonging made to to all of the to the class
615 Settle, 718-19, parte without distinction.” Ex 715, 114 77 Va. (1913). 496, S.E. 497 “There must be some such difference in subjects the situation of the of the different classes as to reasonably justify variety some of rule in thereto.” respect Ex’rs, 612, 102 Martin’s 126 at Va. S.E. at 80.
“An general act is not when the class established its is at once so provisions arbitrary dupli- narrow and so cation of its content is to be ranked as an freak unexpected chance, a turn of the wheel of fortune defying probabili- ties.” Embalmers, v. Va. Bd.
Peery Funeral Dirs. & 161, 203 Va. 167, 123 (1961) In re Elm 94, Street in New S.E.2d (quoting York, 72, (1927)). 24, 246 N.Y. 158 N.E.
Thus,
order
determine the
HB
constitutionality of
2316, this Court would have to decide whether the classifica
tion is
arbitrary.
so,
reasonable and not
To do
the Court must
(1)
consider:
see
legislative history
Act,
purpose
Sciortino,
(2)
149,
757;
atVa.
372 S.E.2d at
whether the
classification in
the Act’s purpose, see Man
promotes
the Act
dell,
Hull,
525;
at
Quesinberry v.
Va.
S.E.2d at
(1932);
159 Va.
165 S.E.
the factual
determination of the inclusiveness or exclusiveness of the
*27
classification,
Quesinberry,
see
273,
at
Va.
S.E. at 383
Sciortino,
(considering
class);
number of counties in the
Va. at
These three factors are not but are relevant particular analysis. this may Each case warrant consideration of other factors depending particular on the facts of that case. conceived, “If state of can reasonably facts be that would it, that sustain state of facts at the time the law was enacted Ex’rs, must be assumed.” Martin’s 612-13, 126 Va. at S.E. at
There is evidence in the record regarding reasonable- however, 2316; in HB ness of the classification this evidence was not either the by evaluated Commissioner or trial court.
In HB arguing special legisla- that 2316 is unconstitutional tion, First, to several factors. in its appellants point report on noted that the applications, DCOPN transfer of planning home beds from one district to another is “exceeding- ly unusual” and that no similar had reviewed request by been Indeed, Department in at least seven years. correspon- Department dence between counsel for MFA and staff at the of Health mentioned the “truly unique applica- situation” that, tion in poses suggests drafting procedures pursuant to HB Department develop “unique of Health must a solution.” Counsel for MFA with consulted staff at the De- of Health in partment May regarding drafting HB procedures pursuant provided guidance these 2316 and to the what the Department interpreting legislature intend- ed in drafting legislation. Counsel for MFA remarked “partner” “intimately that his was involved in this legislation it was winding way through Assembly].” as its the [General MFA, in
Additionally, correspondence counsel for to the Health, Department of notes that “began Warsaw HCC reduc- ing starting Sep- number of residents Warsaw around occupancy tember of 04 order to achieve an of 120” December 2004. Counsel for MFA asserts that this is the date, reason that HB 2316 occupancy single uses rates on part December as classification criteria. CVHPA commented that
occupancy single day generally identify on a is not used to year unused rather overall for the is capacity, occupancy commonly average daily used in health since the planning any facility vary year census of can based throughout seasonality, staffing availability, management deci- upon sions, may not be related to may and other factors *28 need. public that, HB no contrary prior legislation
DCOPN noted “directed substantial applications COPN had ever regarding frames, time and content procedures, alterations the review law.” of a COPN review as set forth the basic COPN DCOPN stated that
it is that home in other quite unlikely any nursing Virginia, HCC, restrictive criteria very than Warsaw could meet the HB that nursing opened 2316. Other than a few homes homes, can identify only Virginia nursing DCOPN two in two or operated by multi-facility firms with locations districts, planning more which had 2004 less than occupancy It unlikely nursing 67%. seems that either of these two resident-origin requirement homes would meet both the in HB agency-staffing requirement set forth MFA, however, they only facility denies that are the meets the criteria set forth in HB 2316. There is little evidence point developed on this in the record.
The issue of whether HB special legislation 2316 was was Commissioner, before the but he did not rule on it. The only Commissioner found that the criteria in HB set forth met, 2316 had been and issued the COPNs on this basis. On court, appeal to the trial appellants again raised the constitu- HB tionality of but the trial court failed to rule on that Instead, issue. the trial court found that appellants had no challenge the issuance of the COPNs. Here, there disputes are factual between MFA that must be resolved before the test for special legisla- tion can applied. Appellants argue be that HB 2316 applies MFA, only to argues while MFA that the classification of HB 2316 is broad and potentially applies many different homes in Virginia.
Neither the Commissioner nor the trial court considered reasonable, HB purpose of whether the classification was or whether promotes classification the Act’s purpose. There was no factual determination of the inclusiveness or exclusiveness of the classification. No determination was *29 only
made as to whether Warsaw HCC was the member of the classification.
Thus, this HB Court cannot determine whether 2316 is special legislation. To do so would this to make require Court factual not made findings by by Commissioner or the trial Commonwealth, court. Edwards v. Va.App. that,
S.E.2d (holding where the trial court denied a request “using defendant’s an incorrect legal stan- making dard without predicate findings, factual one other, standard,” or the way required by the correct the only appellate remedy was to vacate the defendant’s convictions and “remand the case to the trial court -with instructions to matter”). a hearing conduct on the
CONCLUSION Appellants raised a constitutional HB challenge to 2316 as special that legislation should have been considered court, trial as the trial court’s under standing analysis VAPA applied only arguments reaching the merits of the Further, Commissioner’s decisions. the Commissioner’s deci- predicated sions were HB assumption 2316 was constitutional, though analysis no constitutional was conducted by the I indulge Commissioner. do not believe that we can assumptions such without first HB determining whether is I constitutional. would reverse the decision of the trial court to dismiss appellants’ petitions appeal, and remand this case to the trial court with instructions to remand this case to the hearing Commissioner conduct a to determine whether HB 2316 special is unconstitutional legislation. Therefore, I respectfully majority’s opinion. dissent from the