PRESENT: All the Justices

JEFFREY S. SMALL, AS CLERK OF
 THE CIRCUIT COURT OF THE CITY
 OF FREDERICKSBURG, VIRGINIA,
 INDIVIDUALLY AND ON BEHALF OF
 ALL OTHERS SIMILARLY SITUATED
                                            OPINION BY
v. Record No. 130317             CHIEF JUSTICE CYNTHIA D. KINSER
                                        SEPTEMBER 12, 2013
FEDERAL NATIONAL MORTGAGE
 ASSOCIATION,
 A/K/A FANNIE MAE, ET AL.

             UPON A QUESTION OF LAW CERTIFIED BY THE
                   UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF VIRGINIA

     The United States District Court for the Eastern District

of Virginia entered an order of certification requesting that

this Court exercise jurisdiction pursuant to Article VI, Section

1 of the Constitution of Virginia and Rule 5:40, and answer the

following questions of law:

          1.) Under Virginia law, does a clerk of
              court possess statutory standing to
              initiate a lawsuit, in his official
              capacity, to enforce the real estate
              transfer tax on the recording of
              instruments?

          2.) If a clerk of court does possess
              authority to bring suit in his official
              capacity as described in Certified
              Question No. 1, does Virginia law
              authorize him to do so as a class
              representative on behalf of all clerks
              of court throughout the Commonwealth?

Because the ministerial duties of a clerk of court do not extend

to enforcing the state taxes at issue, we answer the first
certified question in the negative and accordingly do not

address the second certified question.

              RELEVANT FACTS AND PRIOR PROCEEDINGS 1

     Jeffrey S. Small, in his official capacity as clerk of the

Circuit Court of the City of Fredericksburg, filed a putative

class action in the United States District Court for the Eastern

District of Virginia (the federal district court) against the

Federal National Mortgage Association (Fannie Mae), and the

Federal Home Loan Mortgage Corporation (Freddie Mac). 2

Purporting to represent the class of all clerks of court in the

Commonwealth, Small alleged that Fannie Mae and Freddie Mac had

failed to pay the taxes imposed by Code §§ 58.1-801 and -802.

     Code § 58.1-801 levies "[o]n every deed admitted to record,

except a deed exempt from taxation by law . . . a state

recordation tax."   Code § 58.1-802(A) imposes an additional tax,

to be paid by the grantor, "on each deed, instrument, or writing

by which lands, tenements or other realty sold is granted,

assigned, transferred, or otherwise conveyed to, or vested in




     1
      The pertinent facts are taken from the certification order
in Small v. Federal National Mortgage Ass'n, No. 3:12CV487-HEH
(E.D. Va. Feb. 20, 2013).
     2
       The term "clerk of court" as used in the certified
questions and in this opinion refers to the position created by
Article VII, Section 4 of the Constitution of Virginia.


                                 2
the purchaser, or any other person, by such purchaser's

direction." 3

     Small further alleged that Fannie Mae and Freddie Mac had

improperly claimed exemption from paying the taxes as

governmental entities.   Small requested that the federal

district court certify the class action and prayed for, among

other things, a declaratory judgment holding that the defendants

are not exempt governmental entities and are therefore required

to pay the real estate transfer taxes when recording

instruments.

     Among other defenses, Fannie Mae and Freddie Mac asserted

that Small lacked the authority as clerk of court to bring an

enforcement action under Code §§ 58.1-800, et seq.    The federal

district court ordered the parties to brief the issue and, after

reviewing the parties' arguments, determined that no controlling

authority on the question exists.    The court stated:

              Clearly, a clerk of court is vested with the
           ministerial duty to assess and collect Virginia's
           recordation tax whenever he records a deed. But,
           he is not explicitly authorized to initiate an
           enforcement action under Virginia law. . . . This
           Court has found no controlling authority
           interpreting the applicable statutes, one way or
           the other.

     Pursuant to Rule 5:40(a), a certified question must be

"determinative in any proceeding pending before the certifying

     3
       In this opinion, we will refer to both taxes collectively
as the "real estate transfer taxes."


                                 3
court."   The certified questions in this case are determinative

because if Small does not have standing to bring the action

against the defendants to enforce collection of the real estate

transfer taxes, the case will be dismissed.    Accordingly, we

accepted the certified questions of law by order entered

February 28, 2013.

                             ANALYSIS

     The first certified question asks whether Small has

"statutory standing."   Under federal law, the concept of

statutory standing "applies only to legislatively-created causes

of action and concerns whether a statute creating a private

right of action authorizes a particular plaintiff to avail

herself of that right of action."    CGM, LLC v. Bellsouth

Telecomm., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (internal

quotation marks omitted).   "[T]he statutory standing inquiry"

addresses "whether the plaintiff 'is a member of the class given

authority by a statute to bring suit.'"     Id. (quoting In re

Mutual Funds Inv. Litig., 529 F.3d 207, 216 (4th Cir. 2008)).

The inquiry at the heart of statutory standing is whether the

legislature "has accorded this injured plaintiff the right to

sue the defendant to redress his injury."     Graden v. Conexant

Sys. Inc., 496 F.3d 291, 295 (3rd Cir. 2007); see Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, 97 n.2 (1998)

(statutory standing deals with "whether this plaintiff has a


                                 4
cause of action under the statute").   Determining whether a

plaintiff has statutory standing is therefore "simply statutory

interpretation."   Graden, 496 F.3d at 295; see also Washington-

Dulles Transp., Ltd. v. Metropolitan Washington Airports Auth.,

263 F.3d 371, 377 (4th Cir. 2001) ("[W]hether [the legislature]

intended to confer standing on a litigant . . . to bring an

action under [the statute at issue] is essentially one of

statutory construction.").

     Although the term "statutory standing" does not appear in

this Court's jurisprudence, the concept does.   "The purpose of

requiring standing is to make certain that a party who asserts a

particular position has the legal right to do so and that his

rights will be affected by the disposition of the case."

Goldman v. Landsidle, 262 Va. 364, 371, 552 S.E.2d 67, 71

(2001); see also Livingston v. Virginia Dep't of Trans., 284 Va.

140, 154, 726 S.E.2d 264, 272 (2012) (same).    When a plaintiff

files an action under a particular statute, as Small has done

here, the standing inquiry does not turn simply on whether the

plaintiff has "a personal stake in the outcome of the

controversy," Goldman, 262 Va. at 371, 552 S.E.2d at 71, or

whether the plaintiff's "rights will be affected by the

disposition of the case."    Livingston, 284 Va. at 154, 726

S.E.2d at 272 (quoting Westlake Props. v. Westlake Point Prop.

Owners Ass'n, 273 Va. 107, 120, 639 S.E.2d 257, 265 (2007)).


                                  5
Rather, the plaintiff must possess the "legal right" to bring

the action, which depends on the provisions of the relevant

statute.

        The Court's analysis in Concerned Taxpayers v. County of

Brunswick, 249 Va. 320, 455 S.E.2d 712 (1995), is illustrative.

There, the plaintiffs brought a suit to enforce provisions of

the Virginia Public Procurement Act, Code §§ 11-35 to -80 (the

Procurement Act).         Id. at 330, 455 S.E.2d at 718.   Because the

Procurement Act "provide[d] remedies for individuals or entities

who have been denied rights conferred by the [Procurement] Act,"

the Court examined those statutes to determine whether the

plaintiffs had standing.         Id.   The Court concluded that the

plaintiffs were "not among those afforded remedies" under the

Procurement Act and thus lacked standing to assert violations of

it. 4       Id.

        Small asserts statutory standing in his capacity as clerk

of court.         The position of clerk of court, among others, is

created by Article VII, Section 4 of the Constitution of

Virginia.         Section 4 states that the "duties and compensation of

        4
       For examples of other statutes that confer "a legal right"
on a particular plaintiff to institute an action, see Code §§
8.01-50(C) (allowing personal representative of a deceased
person to bring an action for wrongful death); 15.2-2314
(conferring standing on certain aggrieved persons to appeal a
decision of a board of zoning appeals); 55-79.80(B) (permitting
condominium unit owners' association to litigate any actions
related to common elements); 59.1-204(A) (defining who may bring
a private action under Virginia Consumer Protection Act).


                                       6
such officers," including clerks, "shall be prescribed by

general law or special act."    Va. Const. art. VII, § 4.   As is

true with other constitutional officers established by Article

VII, Section 4, the "duties of a clerk are prescribed by

statute." 5   First Virginia Bank-Colonial v. Baker, 225 Va. 72,

80, 301 S.E.2d 8, 12 (1983).

     This Court has consistently characterized the duties of a

clerk of court as "ministerial" in nature.    Town of Falls Church

v. Myers, 187 Va. 110, 119, 46 S.E.2d 31, 36 (1948); Harvey v.

Chesapeake & Potomac Tel. Co., 198 Va. 213, 218, 93 S.E.2d 309,

313 (1956); see also Patrick v. Commonwealth, 115 Va. 933, 935-

38, 78 S.E. 628, 629-30 (1913) (holding clerk of court acted

outside scope of express statutory authority by drawing and

placing more names on a venire facias than permitted by the

applicable statute); Page v. Taylor, 16 Va. (2 Munf.) 492, 498-

99 (1811) (holding clerk not liable for non-execution of a bond

because his duties did not extend to taking the bond, a judicial

act to be done in open court).    By definition, ministerial acts

are non-discretionary.    See Black's Law Dictionary 28 (9th ed.

2009); Moreau v. Fuller, 276 Va. 127, 135, 661 S.E.2d 841, 845-

46 (2008) ("A ministerial act is one which a person performs in

a given state of facts and prescribed manner in obedience to the

     5
      See Hilton v. Amburgey, 198 Va. 727, 729, 96 S.E.2d 151,
152 (1957) (sheriffs); McGinnis v. Nelson County, 146 Va. 170,
172, 135 S.E. 696, 697 (1926) (commissioners of revenue).


                                  7
mandate of legal authority without regard to, or the exercise

of, his own judgment upon the propriety of the act being done.")

(internal quotation marks omitted).

     According to Small, his authority to bring an action to

enforce the collection of unpaid real estate transfer taxes

derives from Code §§ 58.1-801 and -802 and other statutes

addressing those taxes.   Whether those provisions impose a

ministerial duty to bring such an action, i.e., whether Small

has statutory standing, is thus a question of statutory

interpretation.

     As with all issues of statutory interpretation, we are

bound by the plain language of the statutes at issue.     Jenkins

v. Mehra, 281 Va. 37, 47, 704 S.E.2d 577, 583 (2011).     "[W]e

examine a statute in its entirety, rather than by isolating

particular words or phrases."     Cummings v. Fulghum, 261 Va. 73,

77, 540 S.E.2d 494, 496 (2001).    "It is a cardinal rule of

construction that statutes dealing with a specific subject must

be construed together in order to arrive at the object sought to

be accomplished."   Alston v. Commonwealth, 274 Va. 759, 769, 652

S.E.2d 456, 462 (2007) (internal quotation marks omitted).     In

addition, "[o]ne of the basic principles of statutory

construction is that where a statute creates a right and

provides a remedy for the vindication of that right, then that

remedy is exclusive unless the statute says otherwise."     School


                                  8
Bd. of the City of Norfolk v. Giannoutsos, 238 Va. 144, 147, 380

S.E.2d 647, 649 (1989); see First Am. Title Ins. Co. v. Western

Sur. Co., 283 Va. 389, 397, 722 S.E.2d 637, 640 (2012) (holding

that the Virginia Consumer Real Estate Protection Act's express

remedies for violations of the statute did not include a private

cause of action against a surety and the surety bond).

     Certain principles govern our review of the tax statutes at

issue here.   "Taxes can only be assessed, levied and collected

in the manner prescribed by express statutory authority."     City

of Richmond v. SunTrust Bank, 283 Va. 439, 442, 722 S.E.2d 268,

270 (2012) (internal quotation marks omitted).   "'[A]n executive

officer who seeks to enforce a tax must always be able to put

his finger upon the statute which confers such authority.'"     Id.

(quoting Commonwealth v. P. Lorillard Co., 129 Va. 74, 82, 105

S.E. 683, 685 (1921)).   The General Assembly alone "determin[es]

what machinery shall be exercised in carrying out the provisions

of a law authorizing the imposition of taxes."   P. Lorillard

Co., 129 Va. at 81, 105 S.E. at 685.   Taxing statutes are

"construed most strongly against the government and are not to

be extended beyond the clear import of the language used."     City

of Lynchburg v. English Constr. Co., 277 Va. 574, 583, 675

S.E.2d 197, 201 (2009) (internal quotation marks omitted).

     Title 58.1 of the Code governs taxation in the

Commonwealth.   Within that title, the General Assembly


                                 9
separately addressed three types of taxes, each in its own

subtitle: "Taxes Administered by the Department of Taxation,"

(Subtitle I); "Taxes Administered by Other Agencies," (Subtitle

II); and "Local Taxes," (Subtitle III). 6     The real estate taxes

at issue in this case are found in Chapter 8 of Subtitle I,

titled "State Recordation Tax," Code §§ 58.1-800, et seq., and

are administered by the Department of Taxation (the Department).

As stated previously, Code § 58.1-801(A) levies a tax "[o]n

every deed admitted to record, except a deed exempt from

taxation by law," and Code § 58.1-802(A) imposes an additional

tax on each deed or other instrument by which realty is

conveyed.

     Pursuant to Code § 58.1-812(A), "no deed, deed of trust,

contract or other instrument shall be admitted to record without

the payment of the tax imposed thereon by law" except as

otherwise provided in Chapter 8.       The tax imposed under Code §

58.1-802(B) "shall be collected as provided in § 58.1-812 and

the clerk shall return taxes collected hereunder one-half into

the state treasury and one-half into the treasury of the

locality."     With regard to the assessment and collection of the

real estate transfer taxes, Code § 58.1-812(B) states:

                The tax on every deed, deed of trust,
             contract or other instrument shall be

     6
      Title 58.1 also includes a fourth subtitle addressing the
State Lottery Tax.


                                  10
           determined and collected by the clerk in
           whose office the instrument is first offered
           for recordation. The clerk may ascertain the
           consideration of the deed or of the
           instrument, the actual value of the property
           conveyed, and the qualification of the deed
           or instrument for any exemption claimed by
           inquiry, affidavit, declaration or other
           extrinsic evidence acceptable to the clerk.

Clerks of court collecting taxes imposed under Code § 58.1-802

are "entitled to compensation for such service at five percent

of the amount so collected and paid."   Code § 58.1-802(B); see

also Code § 58.1-3176.

     Small contends his authority to file the enforcement action

arises from his affirmative duty, as clerk of court, to collect

the real estate transfer taxes.    See Code §§ 58.1-802(B) and

-812(B).   Small notes that clerks of court are compensated

according to the amount of real estate transfer taxes collected

and thus have "a personal stake" in their proper collection.

Because clerks of court cannot force the Department to bring

enforcement actions, Small argues, they cannot protect their

interests without the ability to file enforcement actions.

Finally, Small maintains that there is nothing inconsistent with

allowing both clerks of court and the Department to enforce

these tax statutes because, according to Small, the General

Assembly created a "multi-track system of tax collection."    We

disagree with Small.




                                  11
     The General Assembly granted exclusive authority to the

Department to collect the real estate transfer taxes if they

remain unpaid for thirty days.

             The Department may assess and collect any
          tax imposed by this chapter[, i.e., Chapter
          8,] which has remained uncollected for
          thirty days. The Department, prior to
          collecting such tax, shall give notice to
          the clerk of court in whose office the tax
          was to be collected. The Department may then
          proceed to assess and collect the unpaid tax
          in the same manner and by the same methods
          used for the collection of any state tax
          administered by the Department.

             Any local tax collected hereunder in
          conjunction with the collection of a state
          tax by the Department shall be deposited
          into the state treasury. The Comptroller
          shall, by warrant drawn on the Treasurer of
          Virginia, remit to the proper city or county
          any amounts due to such city or county.

Code § 58.1-813.   Thus, after notifying the clerk "in whose

office the tax was to be collected," the Department takes over

the collection of any unpaid taxes.    Code § 58.1-813.

     Moreover, the Department may assess and collect the unpaid

taxes "in the same manner and by the same methods used for the

collection of any state tax." Code § 58.1-813.    The real estate

transfer taxes are state taxes.    See Code §§ 58.1-800, et seq. 7

Chapter 18 of Subtitle I addresses the "Enforcement, Collection,

     7
      The General Assembly has authorized the governing body of
any city or county to impose "a city or county recordation tax
in an amount equal to one-third of the amount of state
recordation tax." Code § 58.1-814. This case does not involve
such a local recordation tax.


                                  12
Refund, Remedies and Review of State Taxes."     Code §§ 58.1-1800,

et seq.     Under this Chapter, the General Assembly granted to the

Department and the Tax Commissioner numerous enforcement

mechanisms.    Code § 58.1-1803 permits the Department to appoint

a collector in any jurisdiction to collect delinquent state

taxes that were "assessed at least 90 days" previously.     The Tax

Commissioner is authorized to collect "by levy, by a proceeding

in court, or by any other means available . . . under the laws

of the Commonwealth" any tax imposed by Subtitle I.    Code §

58.1-1802.1.    Code § 58.1-1806 provides that

             [t]he payment of any state taxes . . . may
             . . . be enforced by action at law, suit in
             equity or by attachment in the same manner,
             to the same extent and with the same rights
             of appeal as now exist or may hereafter be
             provided by law for the enforcement of
             demands between individuals. . . . Such
             proceedings shall be instituted and
             conducted in the name of the Commonwealth.

No provision in these or any other statutes expressly authorize

clerks of court to utilize such enforcement mechanisms to

collect unpaid real estate transfer taxes.    See City of

Richmond, 283 Va. at 442, 722 S.E.2d at 270 ("Taxes can only be

assessed, levied, and collected in the manner prescribed by

express statutory authority.") (internal quotation marks

omitted).

     Nevertheless, Small contends that the taxes at issue here

have a local character because the locality receives one-half of


                                  13
the amount collected under Code § 58.1-802(A).    See Code § 58.1-

802(B).   Even so, the General Assembly specifically designated

the real estate transfer taxes as state taxes to be enforced by

the Department.    Moreover, clerks of court are not authorized to

enforce local taxes either.   Just as Chapter 18 of Subtitle I of

Title 58.1 addresses the enforcement of state taxes, Chapter 39

of Subtitle III provides for the enforcement and collection of

local taxes.   Code §§ 58.1-3900, et seq.   Mirroring Code § 58.1-

1806, Code § 58.1-3953 permits the use of "action[s] at law" to

enforce the payment of local taxes, and such proceedings "shall

be instituted . . . in the name of the county, city, or town in

which such taxes are assessed."    Code § 58.1-3954.   These

provisions bolster what is already apparent: the General

Assembly authorized the Department to enforce state taxes, and

localities to enforce local taxes.     And in neither case is the

clerk of court authorized to collect unpaid real estate transfer

taxes by filing an enforcement action.

     The statutory enforcement mechanisms for state and local

taxes also undercut Small's reliance on the word "collect[]" in

Code § 58.1-812.   According to Small, Code § 58.1-812's command

that clerks of court "shall . . . collect[]" the real estate

transfer taxes is mandatory and encompasses the filing of an

enforcement action.   Indeed, Small is compelled to construe Code

§ 58.1-812 in this manner in light of our holdings that the


                                  14
duties of clerks of court are purely ministerial.    See Harvey,

198 Va. at 218, 93 S.E.2d at 313.    But, as the statutes for

collecting and enforcing state taxes make clear, filing an

enforcement action is necessarily discretionary.    State

officials charged with enforcing the state taxes are given a

range of options for collecting unpaid taxes, including filing

enforcement proceedings.   See Code §§ 58.1-1803 ("may appoint a

collector") (emphasis added); -1802.1 ("may be collected by

levy") (emphasis added); -1806 ("may . . . be enforced by action

at law . . . or by attachment") (emphasis added); see also

Harper v. Virginia Dep't of Taxation, 250 Va. 184, 194, 462

S.E.2d 892, 898 (1995) ("[T]he word 'may' is prima facie

permissive, importing discretion.") (internal quotation marks

omitted).   Small asserts, therefore, that a clerk of court is

compelled to file an enforcement action for unpaid real estate

transfer taxes, while the Department has the discretion to do

so.   This position is untenable as a matter of both statutory

interpretation and practicality.

      Reading the statutory concept of "collect" in its entire

context, see Cummings, 261 Va. at 77, 540 S.E.2d at 496, we

conclude that to "collect" the real estate transfer taxes is a

purely ministerial act, as the federal district court noted.

When an instrument is offered for recordation, the clerk of

court "ascertain[s] the consideration of the deed or of the


                                15
instrument, the actual value of the property conveyed," and the

applicability of any exemption claimed.   Code § 58.1-812(B).

The clerk of court then "determine[s] and collect[s]" the taxes.

Id.   Under the statute, the clerk of court is prohibited from

recording the deed or instrument until the taxes have been paid

and no other action is authorized in the absence of payment.

Code §§ 58.1-802, -812(A).   In contrast, Code § 58.1-813 directs

the Department to collect unpaid taxes, and expressly authorizes

the "manner and . . . methods" of enforcement outlined in

Chapter 18 of Title 58.1.    See Newberry Station Homeowners Ass'n

v. Board of Supervisors, 285 Va. 604, 616, 740 S.E.2d 548, 554

(2013) ("[W]hen the General Assembly has used specific language

in one instance, but omits that language or uses different

language when addressing a similar subject elsewhere in the

Code, we must presume that the difference in the choice of

language was intentional.") (internal quotation marks omitted).

      In sum, Small fails to "put his finger upon the statute"

which authorizes him to enforce the real estate transfer taxes.

See City of Richmond, 283 Va. at 442, 722 S.E.2d at 270

(internal quotation marks omitted).   To imply from the word

"collect" the authority to file an enforcement proceeding would

"extend[] [Code § 58.1-812] by implication beyond the clear

import of the statutory language."    Shelor Motor Co. v. Miller,

261 Va. 473, 478, 544 S.E.2d 345, 348 (2001).   The General


                                 16
Assembly "determin[ed] what machinery shall be exercised in

carrying out the provisions" of Code §§ 58.1-800, et seq.     See

P. Lorillard Co., 129 Va. at 81, 105 S.E. at 685.    That machine

is the Department.   The Department's remedies for enforcing the

real estate transfer taxes are exclusive, and we will not imply

a power the General Assembly has not seen fit to grant.      See

Giannoutsos, 238 Va. at 147, 380 S.E.2d at 649.

     The first certified question asks whether "a clerk of court

possess[es] statutory standing to initiate a lawsuit, in his

official capacity, to enforce the real estate transfer tax on

the recording of instruments."   For the reasons stated, we

answer that question in the negative.   Because the second

certified question is premised on the first question being

answered affirmatively, we need not address the second certified

question.

                                         Certified question one
                                         answered in the negative.


JUSTICE McCLANAHAN, concurring in part and dissenting in part.


     I agree with the majority's reasoning and conclusion with

respect to a clerk of court's statutory authority to sue to

collect alleged unpaid real estate transfer taxes.   I disagree,

however, with the majority deciding that a clerk also does not

have statutory authority to file a declaratory judgment action




                                 17
regarding a party's qualification for exemption from transfer

taxes, because that issue has not been put before the Court.
1

     As the Court's opinion notes, "Small requested . . . among

other things, a declaratory judgment holding that the defendants

are not exempt governmental entities and are therefore required

to pay the real estate transfer taxes when recording

instruments."   Indeed, Small's complaint contained three counts:

the first for defendants' alleged violations of Virginia's

statute imposing the real estate transfer taxes, the second for

unjust enrichment on the same basis, and the third for a

declaratory judgment "that the Defendants are not exempt from

payment of transfer taxes under state and/or federal law."   In

the prayer for relief, Small separately requested "[t]hat the

Court enter judgment awarding the Plaintiff and the class

damages equal to the transfer taxes not paid" and a "judgment

declaring that the practice complained of herein is in violation

of law and that Defendants are subject to payment of the

transfer taxes and are not governmental entities or

     1
       Because the Court's holding with respect to a clerk's
standing to collect alleged unpaid transfer taxes is entirely
dispositive of that issue, the Court has the power under Rule
5:40(a) to answer the certified question. See Wyatt v.
McDermott, 283 Va. 685, 691, 691 n.1, 725 S.E.2d 555, 557-58,
557 n.1 (2012) (finding Rule 5:40(a) satisfied because the
certified question was "determinative" of plaintiff's one
tortious interference with parental rights claim among
plaintiff's "numerous" other pending claims, which included
conspiracy, fraud, and constructive fraud).


                                18
instrumentalities exempt therefrom or otherwise exempt therefrom

under law."

         In its discussion framing the certified question to this

Court, 2 the federal district court focused on the collection of

taxes.   Likewise, neither party argued to this Court whether a

clerk is or is not statutorily authorized to sue for a

declaratory judgment regarding a party's qualification for

exemption from the transfer taxes.

     The majority's position is that its opinion decides this

unargued issue, because it believes that Small's declaratory

judgment count seeks a ruling that the defendants were not

exempt at the time the relevant deeds were recorded and that

therefore the declaratory judgment count is a part of, not a

separate claim from, Small's claims to collect the alleged

unpaid taxes.   Thus, the majority's analysis subsumes and

decides the issue of whether Small has statutory standing to

pursue declaratory relief.

     Small's counts seeking to collect the alleged unpaid taxes

and Small's count for a declaratory judgment ask a court to

consider the defendants' qualification for exemption; but their

similarity ends there.   The issue in the collection counts is


     2
      The dispositive certified question asked: "Under Virginia
law, does a clerk of court possess statutory standing to
initiate a lawsuit, in his official capacity, to enforce the
real estate transfer tax on the recording of instruments?"


                                 19
whether the defendants were exempt at the time they offered

instruments for recordation in the past.   That determination, in

turn, would dictate whether the alleged unpaid taxes were

previously owed.    In contrast, Small's declaratory judgment

count is future-looking by seeking to resolve the controversy

over defendants' exemption status that has not yet fully matured

into real injury.   See Charlottesville Area Fitness Club

Operators Ass'n v. Albemarle Cnty., 285 Va. 87, 99, 737 S.E.2d

1, 7 (2013) (declaratory judgment proceeding is intended to

permit the declaration of rights before they mature).

     Since success on his collection counts requires Small to

obtain a judgment that the defendants were not exempt in the

past, the majority's position that Small's declaratory judgment

count seeks the very same ruling renders that claim superfluous. 3

To the contrary, given the forward-looking nature of Small's

declaratory judgment count, as well as the high frequency with

which these defendants record instruments, the declaratory

judgment count seeks a separate ruling regarding the defendants'

     3
       For example, in a suit seeking damages for breach of
contract, plaintiffs are neither required nor permitted to file
a separate claim for a declaratory judgment that the defendant
breached the terms of the contract. Instead, plaintiffs simply
prove the breach as part of the legal claim for damages, and the
existence of a normal contract remedy makes declaratory relief
unavailable. USAA Cas. Ins. Co. v. Randolph, 255 Va. 342, 346,
497 S.E.2d 744, 746 (1998); Liberty Mut. Ins. Co. v. Bishop, 211
Va. 414, 421, 177 S.E.2d 519, 524 (1970); American Nat. Bank,
etc., Co. v. Kushner, 162 Va. 378, 386, 174 S.E. 777, 780
(1934).


                                 20
exemption status going forward, so that the parties avoid the

almost certain disagreement that would spawn a new round of

litigation.

     Moreover, while I agree with the Court's reasoning with

respect to a clerk's authority to file a claim to collect

alleged unpaid transfer taxes, that reasoning hardly yields the

majority's conclusion that a clerk does not have statutory

standing to file a declaratory judgment action regarding a

party's exemption status.    The Court's opinion holds that a

clerk's statutory duty to "collect" transfer taxes under Code

§ 58.1-812(B) is ministerial and thus does not authorize the

discretionary act of suing to recover alleged unpaid taxes.      In

the next sentence of the same statute, however, the General

Assembly provided that "[t]he clerk may ascertain . . . the

qualification of the deed or instrument for any exemption."

Code § 58.1-812(B) (emphasis added).    As the Court's opinion

makes clear, where the General Assembly uses "may" it grants

discretionary authority.    Since a clerk's duty to decide

exemption from the transfer taxes is discretionary, by the

Court's own reasoning, this discretionary authority arguably

empowers a clerk with statutory standing to file a declaratory

judgment action to determine a party's exemption. 4


     4
       Again, because this question was not before the Court, I
express no view on it.


                                 21
     Certainly, if Small were authorized to proceed on his two

collection counts, then his declaratory judgment count would be

rendered moot, since the issue of the defendants' exemption

would necessarily be decided on the merits as part of the

collection action.   But because the Court today holds that Small

is without statutory standing to file such a collection action,

the issue of the defendants' qualification for exemption will

not be resolved in the course of those proceedings.

     Despite Small's inability to obtain a decision regarding

defendants' exemption status through proving that they were not

exempt in the past, he seeks resolution of this issue going

forward through his declaratory judgment count.   Of course, as a

clerk of court Small must have statutory standing to pursue this

form of action.   Yet, this issue was not put before the Court,

and the reasoning in the Court's opinion does not logically

explain the majority's conclusion that a clerk is without such

statutory authority.   Consequently, it remains an open question

whether a clerk is statutorily empowered to file a declaratory

judgment action regarding qualification for exemption and, in

turn, whether Small has statutory standing to litigate the

declaratory judgment count of his present federal action.




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