PRESENT:    All the Justices

CHARLES DANIELS,
D/B/A THE POKER PALACE
                                                OPINION BY
v.   Record No. 121242                  JUSTICE S. BERNARD GOODWYN
                                             February 28, 2013
EARLE C. MOBLEY, IN HIS
OFFICIAL CAPACITY AS
COMMONWEALTH’S ATTORNEY
FOR THE CITY OF PORTSMOUTH


           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                       Thomas S. Shadrick, Judge

      Charles P. Daniels, doing business as the Poker Palace,

appeals from a judgment entered by the Circuit Court of the

City of Portsmouth in a declaratory judgment action.    The

circuit court ruled that Daniels failed to establish that Texas

Hold ’Em poker is not illegal gambling under Code § 18.2-325

and that Code § 18.2-328 is unconstitutionally vague.    We

conclude that the request for declaratory judgment concerning

the legality of Texas Hold ’Em poker under Code § 18.2-325

failed to present a justiciable controversy over which the

circuit court could exercise jurisdiction and that the circuit

court did not err in determining Code § 18.2-328 to be

constitutionally valid.

                         Facts and Background

      Charles Daniels operated Boulevard Bingo, a charitable

bingo hall in the City of Portsmouth for twenty-two years.     In

2006, Daniels began hosting games of Texas Hold ’Em poker at
the hall for the Virginia Fraternal Order of Police.   These

games were popular, and in 2010 Daniels leased and renovated

the space adjacent to the bingo hall and named it the Poker

Palace.    Daniels hosted Texas Hold ’Em games and tournaments,

primarily for charity, in the Poker Palace.

     On July 26, 2010, Earle C. Mobley, the Commonwealth’s

Attorney for the City of Portsmouth, sent Daniels a letter

stating:

          After careful consideration, I have come to the
     conclusion that any and all poker games, or other
     forms of gambling not sanctioned by the Commonwealth
     of Virginia will be viewed by my office as illegal
     under Section 18.2-325 of the Code of Virginia, 1950
     as amended.

          I have notified the Portsmouth Police Department
     of my decision to prosecute any illegal gambling.
     Effective immediately, any violations of the statute
     will be subject to investigation and/or prosecuted.
     To avoid prosecution you must cease and desist any
     and all forms of illegal gambling, forthwith.

Daniels thereafter met with Mobley and decided to close the

Poker Palace to avoid prosecution.

     Daniels filed a declaratory judgment action in the Circuit

Court of the City of Portsmouth to determine whether the game

of Texas Hold ’Em constitutes illegal gambling under Code

§ 18.2-325 and whether Code § 18.2-328 is facially

unconstitutional and should be found void for vagueness.

     The case proceeded to a one-day bench trial in which

Daniels presented the testimony of (1) an expert in casino


                                 2
math, Robert Hannum, (2) a math Ph.D., James Klinedinst, and

(3) a world champion poker player, Gregory Raymer.      At the

conclusion of Daniels’ case, Mobley made a motion to strike,

which the circuit court took under advisement.    Mobley declined

to put on evidence and renewed his motion to strike.     After a

recess, the circuit court granted the motion to strike on the

basis that “a game of Texas Hold ’Em for [a] single player can

last 24 hours or it could last for one hand, and all the

evidence indicates that the outcome of any one hand is

uncertain; and so it is clear to me that this violates the

statute as written; and, therefore, I will grant the motion to

strike in regard to the claim that it is not illegal gambling

under the statute [Code § 18.2-325].” 1

     Thereafter the circuit court heard argument on whether

Code § 18.2-328 2 is unconstitutionally vague because of the


     1
         Code § 18.2-325(1) states, in relevant part:

     “Illegal gambling” means the making, placing or
     receipt of any bet or wager in the Commonwealth of
     money or other thing of value, made in exchange for a
     chance to win a prize, stake or other consideration or
     thing of value, dependent upon the result of any game,
     contest or any other event the outcome of which is
     uncertain or a matter of chance, whether such game,
     contest or event occurs or is to occur inside or
     outside the limits of the Commonwealth.
            2
            Code § 18.2-328 states, in pertinent part, “The
operator of an illegal gambling enterprise, activity or
                                                  1
operation shall be guilty of a Class 6 felony.”     Although the
majority states "to the extent that Daniels had requested a

                                 3
definition of “illegal gambling” stated in Code § 18.2-325(1).

The circuit court held that the statute is not

unconstitutionally vague because it provides fair notice and an

individual of ordinary intelligence can discern its meaning.

Daniels appeals.

     We granted an appeal on the following assignments of

error:

          1. The trial court erroneously held that
     Virginia’s gambling statute, Va. Code § 18.2-325, can
     be violated whenever the outcome of a game is to any
     degree uncertain, as opposed to when chance
     predominates over skill in determining the outcome.

          2. The trial court erroneously held that the
     Texas Hold ’Em Poker games hosted at the Poker Palace
     qualify as gambling under Section 18.2-325 because
     the outcome of those games is uncertain. In making
     this error, the court misinterpreted both the term
     “uncertain,” as noted in the first assignment of
     error, as well as the word “outcome.”

          3. The trial court erroneously held that its
     broad reading of the gambling statute did not render
     the statute unconstitutionally vague.

     Mobley presents the following assignments of cross-error:

          1. The circuit court erred by not granting the
     special plea and dismissing the action on the grounds
     that Mobley, a Constitutional officer, was immune


declaration of his rights, such declaration would be barred by
sovereign immunity," the majority does not expressly hold that
Daniels' claim regarding the legality of Texas Hold 'Em poker
is barred by sovereign immunity. As explained below, the
doctrine of sovereign immunity, when applicable, bars legal and
equitable claims against the Commonwealth. Its application is
not dependent on the character of the judgment but the nature
of the claims asserted, such that the sovereign's immunity
deprives the circuit court of subject matter jurisdiction.

                               4
     from declaratory actions under the doctrine of
     sovereign immunity.

          2. The circuit court erred by not granting the
     demurrer on the grounds that Daniels lacked standing
     to challenge a criminal statute under which he had
     not been charged.


                            Analysis

     The declaratory judgment statute, Code § 8.01-184,

provides:

     In cases of actual controversy, circuit courts within
     the scope of their respective jurisdictions shall
     have power to make binding adjudications of right,
     whether or not consequential relief is, or at the
     time could be, claimed and no action or proceeding
     shall be open to objection on the ground that a
     judgment order or decree merely declaratory of right
     is prayed for. Controversies involving the
     interpretation of deeds, wills, and other instruments
     of writing, statutes, municipal ordinances and other
     governmental regulations, may be so determined, and
     this enumeration does not exclude other instances of
     actual antagonistic assertion and denial of right.

     Therefore, a circuit court cannot acquire jurisdiction

over a declaratory judgment action unless the proceeding

involves an actual adjudication of rights.   Charlottesville

Area Fitness Club Operators Ass’n v. Albemarle Cnty. Bd. of

Supervisors (“Charlottesville Fitness”), 285 Va. 87, 98, 737

S.E.2d 1, ___ (2013) (“The prerequisites for jurisdiction . . .

may be collectively referred to as the requirement of a

‘justiciable controversy.’ ”).   A justiciable controversy, for

purposes of declaratory judgment, must involve “specific



                                 5
adverse claims, based upon present rather than future or

speculative facts.”   City of Fairfax v. Shanklin, 205 Va. 227,

229, 135 S.E.2d 773, 775 (1964).

     For a justiciable controversy to exist, it must be

possible for the circuit court to render a decree yielding

specific relief, such that the plaintiff’s rights will be

thereby affected.   Charlottesville Fitness, 285 Va. at 98, 737

S.E.2d at ___ (citing W. S. Carnes, Inc. v. Board of

Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299 (1996) and

Erie Ins. Group v. Hughes, 240 Va. 165, 170, 393 S.E.2d 210,

212 (1990)).   “Thus, when the ‘actual objective in the

declaratory judgment proceeding [i]s a determination of [a]

disputed issue rather than an adjudication of the parties’

rights,’ the case is not one for declaratory judgment.”     Id. at

99, 737 S.E.2d at ___ (quoting Green v. Goodman-Gable-Gould

Co., 268 Va. 102, 108, 597 S.E.2d 77, 81 (2004)); see, e.g.,

Board of Supervisors v. Town of Purcellville, 276 Va. 419, 435-

36, 666 S.E.2d 512, 520 (2008) (allowing judgment for

declaration of rights under written agreements to guide the

parties in their future interactions).

     It is beyond question that this Court may consider, sua

sponte, whether a requisite justiciable controversy exists

under the declaratory judgment statute, as the declaratory

judgment statute was not intended to vest the courts with


                                6
authority to render advisory opinions.     See Martin v. Ziherl,

269 Va. 35, 40, 607 S.E.2d 367, 369 (2005); Shanklin, 205 Va.

at 229-30, 135 S.E.2d at 775-76.      In his complaint, Daniels

requested that the circuit court declare “that Texas Hold ’Em

is not ‘illegal gambling’ under Code § 18.2-325.”      The instant

case presents a scenario in which the declaratory judgment

petitioner seeks a declaration that a generalized activity does

not violate a particular statute.     We conclude that such

request concerns a determination of a disputed issue rather

than a request for an adjudication of rights, and thus does not

present a justiciable controversy.

     The case of Williams v. Southern Bank of Norfolk, 203 Va.

657, 125 S.E.2d 803 (1962), is instructive to our

determination.   The bank financed Williams’ car dealership and

took liens on the vehicles; when Williams sold a car, he was to

pay off the lien.     Id. at 660, 125 S.E.2d at 805.   Williams

sold eight vehicles without promptly paying off the liens, and

the bank informed its attorney, who in turn reported this

information, with the bank’s consent, to the Commonwealth’s

attorney.   Id. at 660-61, 125 S.E.2d at 806.     Williams was

charged with eleven counts of larceny, of which all but two

were nolle prossed.    Id. at 661, 125 S.E.2d at 806.    Williams

was found not guilty of those counts and threatened to bring

actions for malicious prosecution against the bank.      Id. at


                                  7
660, 125 S.E.2d at 805.   The bank filed a declaratory judgment

action, seeking to prevent Williams from bringing his actions

at law, and the circuit court ruled in its favor.      Id. at 658-

59, 125 S.E.2d at 804-05.

     This Court reversed, holding:

          The petition of [the] Bank does not ask for the
     construction of definite rights expressed in written
     instruments or statutes. It alleges no controversy
     between the parties as to the right of [the] Bank to
     make a defense at law, based on the facts stated
     therein, to the threatened tort actions. The answer
     of appellant challenges the verity of the allegations
     of fact. The only controversy is, therefore, one of
     disputed fact, that is, whether [the] Bank made a
     full, correct and honest disclosure of all the
     material facts within its knowledge to its counsel
     and the Commonwealth’s Attorney. The determination
     of that issue rather than an adjudication of the
     rights of the parties was the real object of the
     proceeding, as shown by the allegations of the
     petition, the prayer thereof, and the conclusion
     reached by the chancellor.

Id. at 663, 125 S.E.2d at 807.

     In his complaint, Daniels states that “Code § 18.2-325

defines as ‘illegal gambling’ only those games in which the

outcome is a matter of chance.    Texas Hold ’Em does not fall

within this definition because skill, rather than chance, is

the primary determinate of success.”      The stated controversy

is, therefore, whether Texas Hold ’Em falls within the

definition of illegal gambling.       This is posed as a factual

inquiry.




                                  8
     As the matter was posed to the circuit court, whether the

game of Texas Hold ’Em is illegal gambling pursuant to Code

§ 18.2-325 depends upon the manner in which it is played at the

Poker Palace.   The declaratory judgment action, concerning the

legality of Texas Hold ’Em poker under Code § 18.2-325,

requested the circuit court to make an adjudication of facts;

it does not request an adjudication of Daniels’ rights.    The

requested declaration cannot be obtained in the context of a

declaratory judgment action.   See id.; see also Schwartz v.

O'Connell, 124 N.Y.S.2d 397, 399 (N.Y. Sup. Ct. 1953).

     Additionally, the request concerning a declaration that

Texas Hold ’Em poker was not illegal gambling concerned the

interpretation of a criminal statute.   The traditional

perspective is that declaratory relief is inappropriate to

restrain the sovereign in criminal matters.   Kahaikupuna v.

State, 124 P.3d 975, 980 (Haw. 2005); State ex rel. Edmisten v.

Tucker, 323 S.E.2d 294, 309 (N.C. 1984) (“It is widely held

that a declaratory judgment is not available to restrain

enforcement of a criminal prosecution.”).   Declaratory judgment

actions are not ordinarily available to collaterally impede

threatened criminal prosecutions.   See, e.g., Reed v.

Littleton, 9 N.E.2d 814, 815-16 (N.Y. 1937) (equity will not

ordinarily intervene to enjoin a criminal prosecution, unless:

(1) the prosecution threatens irreparable injury; (2) the sole


                                9
question is one of law; and (3) the declaratory petitioner has

a clear legal right to relief);        Sun Oil Co. v. Director of

Div. on Necessaries of Life, 163 N.E.2d 276, 279 (Mass. 1960)

(approving use of declaratory judgment because petitioner was

not simply seeking to avoid prosecution:       the controversy

affected its relationship to retail dealers and involved a

matter of overarching business policy); Liberty Mut. Ins. Co.

v. Jones, 130 S.W.2d 945, 953 (Mo. 1939) (permitting

declaratory judgment proceeding to the extent of non-injunctive

relief where criminal aspects of action seeking declaration

that insurance adjusters were not practicing law were

unimportant as compared to the general impact of the matter).

     Declaratory relief with respect to criminal matters has

been allowed in a number of jurisdictions, but only under

limited exceptions.   Kahaikupuna, 124 P.3d at 980-81

(declaratory relief possible, where, for instance, “ ‘the

statute is malum prohibitum, it affects a continuing course of

business, and a method of testing the statute was not in fact

available . . . because the predecessors of the defendant

refused to bring criminal proceedings’ ” (quoting Pacific Meat

Co. v. Otagaki, 394 P.2d 618, 620 (Haw. 1964))); see also Zemel

v. Rusk, 381 U.S. 1, 19 (1965) (“There are circumstances under

which courts properly make exceptions to the general rule that

equity will not interfere with the criminal process, by


                                  10
entertaining actions for injunction or declaratory relief in

advance of criminal prosecution.”).   The exceptions to the bar

on declaratory judgment actions for the construction of

criminal statutes are limited, rare and inapplicable regarding

the requested determination of whether Texas Hold ’Em poker is

illegal gambling as defined by Code § 18.2-325.   See Reed, 9

N.E.2d at 815-16.

     Daniels alleges Mobley threatened him with prosecution if

the Poker Palace did not cease hosting Texas Hold ’Em games.

Mobley is the Commonwealth’s Attorney and is responsible for

prosecuting crimes in the City of Portsmouth.    The criminal

aspects of Daniels’ declaratory judgment action are dominating,

and the unstated right Daniels seemingly wants to vindicate

relates to criminal prosecution, rendering declaratory judgment

inappropriate.   See Jones, 130 S.W.2d at 953.

     The futility of resorting to [e]quity to determine
     whether certain or uncertain facts constitute crime is
     apparent when we consider the different measure of
     proof in criminal and civil cases. Should equity
     declare on disputed testimony or conflicting
     inferences by a fair preponderance of the evidence
     that a penal violation was proved, what would be the
     effect? None. It would not and could not be binding
     as res adjudicata or even as stare decisis in a
     subsequent prosecution where guilt must be established
     beyond a reasonable doubt. Should equity hold that no
     offense had been committed it would not be binding
     were the subsequent proof varied.

Reed, 9 N.E.2d at 817.   Given the overwhelming criminal

elements of the underlying dispute, resolution of the


                                11
declaratory judgment action would not impact any subsequent

criminal proceeding.   Granting the requested declaration

concerning the legality of Texas Hold ’Em poker would be merely

an advisory opinion.

     Additionally, to the extent that Daniels had requested a

declaration of his rights, such declaration would be barred by

sovereign immunity.    A resolution of the declaratory judgment

action in a manner which adjudicated Daniels’ rights would

enjoin the Commonwealth from acting, in violation of the

prohibition articulated in Azfall v. Commonwealth, 273 Va. 226,

231, 639 S.E.2d 279, 282 (2007) (“ ‘As a general rule, the

Commonwealth is immune both from actions at law for damages and

from suits in equity to restrain governmental action or to

compel such action.’ ” (quoting Alliance to Save the Mattaponi

v. Commonwealth, 270 Va. 423, 455, 621 S.E.2d 78, 96 (2005))).

     Because the declaratory judgment action claim asserted by

Daniels concerning the legality of Texas Hold ’Em poker does

not present a justiciable controversy, the circuit court did

not have authority to exercise jurisdiction concerning such

claim.   Therefore, we will vacate the judgment concerning that

claim and dismiss the claim.

     The complaint in this case also asserted that “[section]

18.2-328 of the Code of Virginia is constitutionally void for

vagueness.”   This is a challenge to the constitutionality of a


                                 12
statute based upon United States law or self-executing

provisions of the Virginia Constitution; such a request for

declaratory judgment presents a justiciable controversy.    See

DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va.

127, 137, 704 S.E.2d 365, 371 (2011).   Thus, the circuit court

had jurisdiction to consider Daniels’ facial challenge to the

constitutionality of Code § 18.2-328.

     The circuit court ruled that Code § 18.2-328 was not

unconstitutionally vague because it gives fair notice and an

individual of ordinary intelligence can discern its meaning.

Daniels asserts the circuit court “erroneously held that its

broad reading of the gambling statute did not render the

statute unconstitutionally vague.”   Daniels argues that the

circuit court interpreted Code § 18.2-325 so as to render the

definition of illegal gambling in that statute

unconstitutionally vague.   Daniels argues that application of a

test of whether skill predominates over chance must be applied

to the Code § 18.2-325 definition of what constitutes illegal

gambling in order to preserve the statute’s constitutionality.

     In his complaint, Daniels claimed that Code § 18.2-328 was

void for vagueness.   He did not claim that Code § 18.2-325 was

void for vagueness.   He now concedes that Code § 18.2-328 would

not be void for vagueness if skill is considered in determining

whether one could be punished under that Code provision.


                                13
     Code § 18.2-333 provides that

     Nothing in this article shall be construed to prevent
     any contest of speed or skill between men . . . where
     participants may receive prizes or different
     percentages of a purse, stake or premium dependent
     upon whether they win or lose or dependent upon their
     position or score at the end of such contest.

Therefore, even if the definition of illegal gambling in Code

§ 18.2-325 is “read” as not having an exception for games of

skill, Code § 18.2-333 provides that skill be considered in

determining whether Code § 18.2-328 has been violated.    The

ruling of the circuit court concerning Code § 18.2-325 could

not have rendered an otherwise valid Code § 18.2-328 void for

vagueness.   Therefore, Daniels has demonstrated no error, and

the circuit court’s ruling regarding the constitutionality of

Code § 18.2-328 is affirmed.

                            Conclusion

     The declaratory judgment claim asserted by Daniels

concerning whether Texas Hold ’Em poker is illegal gambling, as

defined in Code § 18.2-325, does not present a justiciable

controversy, and the circuit court did not have authority under

the declaratory judgment statute to exercise jurisdiction

concerning such claim.   The circuit court had the authority to

rule upon the facial challenge to the constitutionality of Code

§ 18.2-328, and it did not err in doing so.




                                14
     Accordingly, for the reasons stated, we vacate the

judgment in part and affirm the judgment in part.

                                               Vacated in part and
                                                 affirmed in part.



JUSTICE McCLANAHAN, concurring in part and dissenting in part.

     Although I concur in the Court's decision vacating the

circuit court's judgment as to Daniels' claim seeking a

declaration that Texas Hold 'Em poker is not illegal gambling

under Code § 18.2-325, I would hold that this claim is barred

by the doctrine of sovereign immunity. 1   Furthermore, because I

believe Daniels lacks standing to challenge Code § 18.2-328 as

unconstitutionally vague, I would reverse the circuit court's

judgment that Code § 18.2-328 is constitutionally valid.

Therefore, I dissent from the Court's decision upholding the

circuit court's judgment on the constitutional claim.

     Mobley filed a special plea in the circuit court asserting

that Daniels' action against him is barred by sovereign


     1
       Although the majority states "to the extent that Daniels
had requested a declaration of his rights, such declaration
would be barred by sovereign immunity," the majority does not
expressly hold that Daniels' claim regarding the legality of
Texas Hold 'Em poker is barred by sovereign immunity. As
explained below, the doctrine of sovereign immunity, when
applicable, bars legal and equitable claims against the
Commonwealth. Its application is not dependent on the
character of the judgment but the nature of the claims
asserted, such that the sovereign's immunity deprives the
circuit court of subject matter jurisdiction.

                                15
immunity since he is immune from suits for declaratory relief.

On appeal, Mobley assigns cross-error to the circuit court's

denial of his special plea.    If Mobley is entitled to immunity

as to either of the claims against him, the circuit court is

deprived of subject matter jurisdiction over such claims.

Seabolt v. County of Albemarle, 283 Va. 717, 719, 724 S.E.2d

715, 716 (2012); Doud v. Commonwealth, 282 Va. 317, 321, 717

S.E.2d 124, 126 (2011); Afzall v. Commonwealth, 273 Va. 226,

230, 639 S.E.2d 279, 281 (2007).      "This is so because only the

legislature acting in its policy-making capacity can abrogate

the Commonwealth's sovereign immunity" and "vest the circuit

court with jurisdiction."     Commonwealth v. Luzik, 259 Va. 198,

206, 524 S.E.2d 871, 876-77 (2000).     For this reason, Mobley's

claim of sovereign immunity should be resolved by us at the

outset.   Seabolt, 283 Va. at 719, 724 S.E.2d at 716 ("We will

first consider the county's claim of sovereign immunity because

it is jurisdictional."). 2

     "It is an established principle of sovereignty, in all

civilized nations, that a sovereign State cannot be sued in its

     2
       In my view, the absence of a justiciable controversy
would also deprive the circuit court of subject matter
jurisdiction. However, in Charlottesville Area Fitness Club
Operators Ass'n v. Albemarle Cnty. Bd. of Supervisors, 285 Va.
87, 113 n.1, ___ S.E.2d ___, ___ n.1 (2013) (McClanahan, J.,
concurring), the Court "decline[d] to classify the nature of
the jurisdictional defect" when the claims asserted in a
declaratory judgment action did not present a justiciable
controversy.

                                 16
own courts . . . without its consent and permission."     Board of

Public Works v. Gannt, 76 Va. 455, 461 (1882).   Therefore,

" 'the Commonwealth is immune both from actions at law for

damages and from suits in equity to restrain governmental

action or to compel such action . . . . Sovereign immunity may

also bar a declaratory judgment proceeding against the

Commonwealth,' and does so for merely statutory claims."

DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va.

127, 137, 704 S.E.2d 365, 370-71 (2011) (citation omitted).

"Only the General Assembly can determine as a matter of policy

whether the Commonwealth's sovereign immunity should be

abrogated with regard to a particular type of legal action."

Ligon v. County of Goochland, 279 Va. 312, 316, 689 S.E.2d 666,

668-69 (2010).

     "[B]ecause the Commonwealth can act only through

individuals, the doctrine applies not only to the state, but

also to certain government officials."   Gray v. Virginia Sec'y

of Transp., 276 Va. 93, 102, 662 S.E.2d 66, 70-71 (2008).

These officials include "those who operate at the highest

levels of the three branches of government" such as

"[g]overnors, judges, members of state and local legislative

bodies, and other high level governmental officials," as well

as "other governmental officials of [a] lesser rank."     Messina

v. Burden, 228 Va. 301, 309, 321 S.E.2d 657, 661 (1984).


                               17
       Mobley has been sued in his official capacity as

Commonwealth's Attorney for the City of Portsmouth.     As an

attorney for the Commonwealth, Mobley is a constitutional

officer whose duties are prescribed by law.     Va. Const. art.

VII, § 4; Doud, 282 Va. at 321, 717 S.E.2d at 126.      He is

primarily charged with enforcing criminal laws within his

jurisdiction.     Code §§ 15.2-528, 15.2-1626, 15.2-1627.

Therefore, the immunity of the Commonwealth extends to Mobley.

       Although Daniels posits that sovereign immunity does not

bar actions seeking merely declaratory relief, his position

mischaracterizes the nature of the doctrine and disregards

essential justifications underlying our adherence to the

doctrine. 3    Protection of the public purse is certainly "[o]ne

of the most often repeated explanations for the rule of state

immunity from suits in tort," but it is only "one of several

purposes for the rule."     Messina, 228 Va. at 307, 321 S.E.2d at

660.

           [T]he doctrine of sovereign immunity serves a
           multitude of purposes including but not limited
           to protecting the public purse, providing for
           smooth operation of government, eliminating
           public inconvenience and danger that might spring
           from officials being fearful to act, assuring
           that citizens will be willing to take public
           jobs, and preventing citizens from improperly

       3
       On brief, Daniels contends that "[s]overeign immunity
does not bar a declaratory judgment action that does not compel
the government to act, restrain the government from acting, or
affect the public purse."

                                   18
       influencing the conduct of governmental affairs
       through the threat or use of vexatious
       litigation.

Id. at 308, 321 S.E.2d at 660.   Thus, "while maintenance of

public funds is important, another equally important purpose of

the rule is the orderly administration of government."    Id.

Furthermore, the doctrine is not limited to suits in tort

seeking money damages but extends to declaratory judgment

actions seeking relief that "would have the effect of

interfering with governmental functions."   Afzall, 273 Va. at

233, 639 S.E.2d at 283.

     The primary objective of Daniels' action is to prevent

enforcement of the illegal gambling statutes against him.    As

Daniels states in his amended complaint, he brought his action

against Mobley as a result of Mobley's "threat" of "prosecuting

[Daniels] if he resumes poker games" at the Poker Palace.

Daniels claims that since he does not seek an injunction to

enjoin Mobley's prosecution of him but merely seeks "clarity

regarding his rights," a ruling in his favor "would not

encroach upon [Mobley's] lawful authority." While Daniels does

not seek injunctive relief against Mobley, a ruling in his

favor would have the same effect since Mobley would be

precluded from prosecuting Daniels for violation of the illegal




                                 19
gambling statutes in connection with Daniels' operation of

Texas Hold 'Em poker games. 4

     In sum, preserving "the orderly administration of

government" and "preventing citizens from improperly

influencing the conduct of governmental affairs through the

threat or use of vexatious litigation" compels application of

sovereign immunity to Daniels' claim against Mobley.    Messina,

228 Va. at 308, 321 S.E.2d at 660.    Furthermore, it is clear

the relief Daniels seeks "would have the effect of interfering

with governmental functions."    Afzall, 273 Va. at 233, 639

S.E.2d at 283.    Therefore, I would conclude that Daniels' claim

against Mobley seeking a declaration that Texas Hold 'Em poker

is not illegal gambling is barred by the doctrine of sovereign

immunity. 5   For this reason, I would hold the circuit court did




     4
       Commonwealth's Attorneys are empowered to prosecute
felonies and certain misdemeanors, not activities deemed legal.
See Code § 15.2-1627.
     5
       Because I would hold that sovereign immunity applies to
this claim, I would not address the issue of whether Daniels'
claim presents a justiciable controversy. Furthermore, one of
the majority's primary reasons for its ruling that Daniels'
claim does not present a justiciable controversy is that other
jurisdictions have recognized that "declaratory relief is
inappropriate to restrain the sovereign in criminal matters"
and "impede criminal prosecution." In my view, it is
unnecessary to import from other jurisdictions a new
prerequisite for establishing a justiciable controversy in
Virginia when Virginia's doctrine of sovereign immunity already
protects the sovereign from suits to restrain the
administration and enforcement of its criminal laws.

                                 20
not have subject matter jurisdiction to adjudicate this claim.

Id. at 234, 639 S.E.2d at 284.

     Although sovereign immunity precludes Daniels' claim

regarding the legality of Texas Hold 'Em, we have recognized

that the doctrine will not deprive the court of subject matter

jurisdiction over a declaratory judgment action where the claim

is "based on self-executing provisions of the Constitution of

Virginia or claims based on federal law."    DiGiacinto, 281 Va.

at 137, 704 S.E.2d at 371. 6   Daniels asserts that Code § 18.2-

328 is unconstitutionally vague under the Due Process Clause of

the Fourteenth Amendment to the United States Constitution.

Since the substantive rights conferred by the Fourteenth

Amendment are "self-executing," City of Boerne v. Flores, 521

U.S. 507, 524 (1997), sovereign immunity does not preclude

Daniels' constitutional challenge of Code § 18.2-328.

     Nevertheless, this does not end the inquiry into whether

the circuit court may exercise jurisdiction over Daniels' claim

because a party has no standing to make a facial attack upon a

     6
       While the majority concludes Daniels' claim regarding the
legality of Texas Hold 'Em poker does not present a justiciable
controversy, it is unclear why this same ruling does not also
apply to Daniels' claim that Code § 18.2-328 is
unconstitutionally vague. DiGiancinto, relied upon by the
majority, holds that "sovereign immunity does not preclude
declaratory and injunctive relief claims based on self-
executing provisions of the Constitution of Virginia or claims
based on federal law." DiGiancinto, 281 Va. at 137, 704 S.E.2d
at 371. This holding does not address whether Daniels' request
presents a justiciable controversy.

                                 21
penal statute when his claim of vagueness is based on due

process overbreadth. 7

       [F]or purposes of standing to make facial attacks,
       the Supreme Court makes a distinction between two
       separate concepts of overbreadth, viz., (a) due
       process overbreadth resulting from statutory
       language so vague that it could be selectively
       construed and enforced by police, prosecutors, and
       triers-of-fact to penalize persons not before the
       court, for conduct not before the court, without
       fair warning of the criminality of their conduct,
       and (b) First Amendment overbreadth resulting
       either from statutory language so vague it could
       "chill" the exercise of constitutionally protected
       speech or conduct, or from precise statutory
       language which expressly seeks to regulate
       protected speech . . . .

Stanley v. City of Norfolk, 218 Va. 504, 508, 237 S.E.2d 799,

801 (1977).      "[W]hen overbreadth impinges upon First Amendment

guarantees, a person accused under the statute has standing to

make a facial attack, even though his own speech or conduct was

not constitutionally protected."         Id. at 508, 237 S.E.2d at

802.       However, "when overbreadth has only due process

implications," a person accused under the statute only has

"standing to challenge the statute as applied to his own

conduct."       Id.

       Daniels' constitutional challenge is not based upon First

Amendment guarantees but due process overbreadth.

Specifically, Daniels claims that Code § 18.2-328 "provides no

       7
       Mobley also assigns cross-error to the circuit court's
denial of his demurrer on the grounds that Daniels lacked
standing to challenge Code § 18.2-328.

                                    22
standard to differentiate between innocent conduct and

prohibited conduct" thereby leaving to law enforcement

officers, prosecutors, and courts "the decision of what is

permitted and what is not."   He further contends that "[t]he

term 'illegal gambling' fails to provide both adequate notice

to ordinary people and minimal guidelines to govern law

enforcement."   According to Daniels, the statute is

unconstitutionally vague under the Due Process clause of the

Fourteenth Amendment because it encourages arbitrary and

discriminatory enforcement and fails to provide people of

ordinary intelligence fair notice of what the law prohibits.

Thus, because Daniels "seeks to make a facial challenge based

upon due process overbreadth," he "is without standing to make

such a challenge."   Stanley, 218 Va. at 509, 237 S.E.2d at 802. 8


     8
       Even if this Court treated Daniels' claim as an "as-
applied" challenge and judged it on that basis, see Motley v.
Virginia State Bar, 260 Va. 243, 247, 536 S.E.2d 97, 99 (2000),
Daniels would not have standing. A penal statute is not
applied until the challenging party has been convicted or cited
for violation of the statute. See Tanner v. City of Va. Beach,
277 Va. 432, 435–36, 674 S.E.2d 848, 850 (2009) (noise
ordinance held unconstitutionally vague after accused was
written multiple citations for violating the ordinance); Gray,
260 Va. at 681, 537 S.E.2d at 865 (deciding vague-as-applied
challenge to the Virginia statute prohibiting unregistered
possession of a firearm silencer on appeal from accused's
conviction under the statute); Woodfin v. Commonwealth, 236 Va.
89, 92, 372 S.E.2d 377, 379 (1988) (deciding a vague-as-applied
challenge to the Virginia capital murder statute on appeal from
accused’s conviction under the statute); cf. City of Chicago v.
Morales, 527 U.S. 41, 50 (1999) (deciding a vague-as-applied
challenge where defendants were convicted under the statute);

                                23
Accordingly, this claim does not present a justiciable

controversy over which the circuit court had "authority to

exercise jurisdiction."   Charlottesville Fitness, 285 Va. at

106, ___ S.E.2d at ___.

     For these reasons, I would vacate the circuit court's

judgment in its entirety and dismiss Daniels' action against

Mobley.




Kolender v. Lawson, 461 U.S. 352, 354 (1983) (same); Coates v.
City of Cincinnati, 402 U.S. 611, 612 (1971) (same).

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