HAZEL F. PALMER v. ATLANTIC COAST PIPELINE, LLC
Record No. 160630
Supreme Court of Virginia
July 13,
OPINION BY JUSTICE WILLIAM C. MIMS
PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J. FROM THE CIRCUIT COURT OF AUGUSTA COUNTY, Charles L. Ricketts, III, Judge
In this appeal, we consider whether a foreign corporation may exercise the entry-for-survey privilege given to natural gas companies by
I. Background and Procedural History
The Atlantic Coast Pipeline, LLC (“ACP“) is a public service company organized under the laws of the State of Delaware. It is primarily “engaged in the underground storage and transportation of natural gas in interstate commerce.” As such, it is a “natural gas company” as defined by
Hazel Palmer owns real property in the Commonwealth along a proposed route. On March 6, 2015, ACP sent Palmer a letter seeking permission to enter her property to
Palmer continued to deny ACP access to her property, and ACP filed a petition for a declaratory judgment in the circuit court requesting a declaration of its rights under
The circuit court overruled Palmer‘s plea in bar and demurrer. Regarding the plea in bar, it found that the applicability of
II. Analysis
A. Applicability of Code § 56-49.01 to Foreign Corporations
Palmer contends that ACP cannot exercise the entry-for-survey power of
1. Unambiguous Language of Code § 56-49.01
In analyzing a statute, the Court‘s primary objective is “to ascertain and give effect to legislative intent.” Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)). “That intention is initially found in the words of the statute itself, and if those words are clear and unambiguous, we do not rely on rules of statutory construction.” Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997).
A. Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in
15 U.S.C. § 717a , as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, . . . [and] may enter upon any property without the written permission of its owner . . . .
On appeal, Palmer argues that
This argument is not persuasive.
Next,
2. Article IX, Section 5 of the Constitution of Virginia
Palmer next argues that we must deny the entry-for-survey privilege to foreign corporations to avoid conflicting with
Rule 5:25 states that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.” This rule “exists to protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals and mistrials.” Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)).
Palmer admitted at oral argument that she failed to present her Article IX, § 5 argument to the circuit court. As a result, there is no ruling on the issue, and we will not accept Palmer‘s invitation to reverse the circuit court‘s opinion based on this undisclosed ground. McDonald v. Commonwealth, 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007) (refusing to consider a facial invalidity challenge to
Palmer also failed to raise the argument in her opening brief on appeal. Rule 5:27 states that “[t]he opening brief of the appellant . . . must contain . . . [t]he standard of review, the argument, and the authorities relating to each assignment of error.” Rule 5:27(d). The failure to comply with this rule “results in waiver of the arguments the party failed to make.” John Crane, Inc. v. Hardick, 283 Va. 358, 376, 722 S.E.2d 610, 620 (2012).
Regarding her first assignment of error, Palmer‘s opening brief argues, as discussed above, that the location of
At oral argument, Palmer‘s counsel admitted that he “didn‘t present [the argument in the opening brief] because [he] thought it
Rule 5:27 requires an argument, and merely referencing a provision is not an argument. Accordingly, the argument is waived. John Crane, 283 Va. at 376, 722 S.E.2d at 620; see also Whitley v. Commonwealth, 223 Va. 66, 79 n.2, 286 S.E.2d 162, 170 n.2 (1982) (“[W]e will not notice a non-jurisdictional question raised for the first time in a reply brief filed in this Court.“).
B. Article I, § 11 of the Constitution of Virginia
In her second assignment of error, Palmer contends that the trial court erred by overruling her demurrer because
Palmer generally maintains that
1. Right to Exclude
In 2012,
The common law privilege to enter private property for limited purposes is outlined in the American Law Institute‘s first Restatement of Torts, published in 1934. Restatement of Torts §§ 191-211 (1934). Comment c of § 211 explains that this privilege applies “where an employee of a public utility is . . . authorized to enter upon privately owned land for the purpose of making surveys preliminary to instituting a proceeding for taking by eminent domain.” Id. at § 211 cmt. c.
Today, every state has codified the common law privilege of a body exercising eminent domain authority to enter private property to conduct preliminary surveys without trespass liability.2 Virginia statutory law has
seem fit to any officer or agent authorized by it, provided no injury be done to the owner or possessor of land.” Va. Code tit. 17, ch. 56, § 4 (1860).
Most relevant to the present case, the Code of 1904 granted entry-for-survey authority to “[a]ny company” vested with eminent domain authority. Code § 1105f(3) (1904) (authorizing any company with power to condemn lands to “enter upon any lands . . . for the purpose of examining the same, and surveying“). Today, the Code contains three such statutes:
In sum, Palmer‘s right to exclude others is not absolute. The common law has long recognized the privilege of an entity exercising eminent domain power to enter private property to conduct surveys. This same privilege has a well-established historical pedigree in our statutory law. Accordingly, Palmer‘s right to exclude others from her property does not extend to ACP in the present case.
2. 2012 Amendment to Article I, § 11 of the Constitution of Virginia
Palmer does not rebut any of the above authorities. Rather, she argues that the 2012 amendment to
The 2012 amendment to
The 2012 amendment to
While the amendment also explicitly states that the right to “private property” is “fundamental,” nowhere does the amended language purport to modify existing property rights. It certainly does not abrogate the extensive common law privileges catalogued by the Restatement and recognized in Virginia statutory law. In other words, the amendment did not add any sticks to Palmer‘s bundle of property rights that did not already exist. It primarily, in response to Kelo, limited the parameters within which eminent domain may be exercised to affect these rights and expanded the compensation to be paid.
III. Conclusion
The unambiguous language of
Affirmed.
JUSTICE McCULLOUGH, concurring.
I concur in the majority opinion. I write separately, however, to address a premise that underpins the appellant‘s argument, which is that the Due Process Clause of
First, as a textual matter, our Due Process Clause provides no hint that it contains a substantive component. The Due Process Clause has been part of our Bill of Rights since 1902, and it states in relevant part “[t]hat no person shall be deprived of his life, liberty, or property without due process of law.”
Second, nothing in the extensive constitutional debates that resulted in the adoption of the Constitution of Virginia of 1902 suggests that its framers intended to include a substantive component to this clause. One would expect to find a vigorous debate on the point, had the drafters of this provision intended such a radical and counter-textual reading of the Due Process Clause. That debate is nowhere to be found. More recently, in 1969, the Report of the Commission on Constitutional Revision recommended the addition of the words “life” and “liberty” to the protections for which due process should extend. There is no mention of “substantive” due process. The Constitution of Virginia, Report of the Commission on Constitutional Revision 95-96 (1969). It is therefore unlikely that the voting public had any inkling that it was adopting a substantive component to due process when it ratified those drafts of the Constitution.
Third, whatever interpretation the United States Supreme Court has adopted for the Due Process Clauses of the Fifth and Fourteenth Amendments of the Constitution of the United States does not bind us in determining the meaning of the Due Process Clause of the Constitution of Virginia. Just as it remains the duty of the United States Supreme Court to interpret the text of the Constitution of the United States, our duty as the highest court in Virginia is to reach our own conclusion with respect to the meaning of Virginia‘s foundational charter of government.
Of course, we would be wise to consult persuasive precedent from other courts, including the United States Supreme Court, when those courts have construed textually similar or identical clauses. Substantive due process made its debut in the jurisprudence of the United States Supreme Court, infamously enough, in the Dred Scott case. Although it did not receive pride of place, it was offered as a rationale for the court‘s conclusion. See Dred Scott v. Sandford, 60 U.S. 393, 450 (1857). Following that decision, the concept of substantive due process lay dormant for a time, only to be revived during the Lochner1 era as a device to strike down, albeit unevenly, reforms aimed at ameliorating what were often dismal working conditions (as well as, it must be conceded, special interest legislation designed to squelch competition). The Court ultimately disavowed this line of jurisprudence, see, e.g., United States v. Carolene Products Co., 304 U.S. 144, 152 (1938), but not the idea of substantive due process. Having made its peace with economic legislation, shape-shifting substantive due process has now found new form as a device to invalidate a different kind of disfavored legislation, usually by slender majorities.
See Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015).
The United States Supreme Court has struggled to develop a rationale that would justify relying on substantive due process to strike down laws enacted by the people‘s elected representatives. In Washington v. Glucksberg, 521 U.S. 702, 703 (1997), the Court attempted such a justification, holding that substantive due process protects fundamental rights “which are, objectively, deeply rooted in this Nation‘s history and tradition.” In short order, however, the Court proceeded to side-step this limiting principle. See, e.g., Lawrence, 539 U.S. 558; Obergefell, 576 U.S. ___, 135 S. Ct. 2584.
To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive
As Virginia‘s Supreme Court, we must uphold the Constitution of Virginia and the individual rights it protects. If, upon a careful inquiry, some of the clauses of our Declaration of Rights are found to offer more protection than the protections found in the Constitution of the United States, including the religious liberty and economic liberty rights devalued in modern federal jurisprudence,2 we should do our duty and honor the original public meaning of those provisions. Our exercise of the awesome but limited power of judicial review, however, should be undertaken without saddling the Constitution of Virginia with “substantive” due process.