PRESENT: All the Justices

MILLER & RHOADS BUILDING, L.L.C.
                                                               OPINION BY
v. Record No. 151701                                     JUSTICE CLEO E. POWELL
                                                             September 15, 2016
CITY OF RICHMOND


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Melvin R. Hughes, Jr., Judge

        Miller & Rhoads Building, L.L.C. (“MRB”) appeals the decision of the trial court ruling

that the City of Richmond’s (the “City”) Tax Abatement for Rehabilitated Real Estate Program

(the “Partial Exemption”), Richmond City Code §§ 98-149 to -159, 1 does not apply to special

district taxes.

                                       I. BACKGROUND

        On March 17, 2006, MRB acquired the vacant Miller & Rhoads Building (the

“building”). The building is located in a special service and assessment district of the City.

Thus, in addition to being subject to the city-wide real estate tax, see Richmond City Code § 98-

121, the building is also subject to an annual special district tax, see Richmond City Code § 98-




        1
          During the time periods relevant to the present case, the Partial Exemption was codified
at Richmond City Code §§ 98-132 and -135. However, prior to the trial court’s issuance of its
letter opinion, the City repealed these and related sections and amended and recodified the
relevant sections as Richmond City Code §§ 98-149, -152, and -155. See Richmond City
Ordinance 2014-117-90 (May 27, 2014). Immediately prior to the issuance of the trial court’s
letter opinion, the City again recodified its ordinances. See Richmond City Ordinance 2015-224-
218 (May 27, 2015). Throughout this appeal, the parties have consistently referred to the
ordinance section numbers as amended and recodified by Richmond City Ordinance 2014-117-
90 (May 27, 2014). As neither party has indicated any textual substantive differences to the
relevant section between these recodifications, the Court will reference the sections as amended
and recodified by Richmond City Ordinance 2014-117-90 (May 27, 2014) to remain consistent
with the parties’ arguments.
842. Both taxes are calculated as a percentage of the property’s “assessed evaluation.”

Richmond City Code §§ 98-121, -842.

          MRB planned to rehabilitate the building and develop the property to include a hotel,

residential condominiums, retail space and parking. MRB sought to recoup some of the costs of

rehabilitation by seeking a partial exemption from real estate taxes for the property under the

Partial Exemption. Although the City determined that MRB’s planned rehabilitation of the

building satisfied the basic requirements to qualify for the Partial Exemption, it only applied the

Partial Exemption to the base real estate tax; the City refused to apply the partial exemption to

the special district tax.

          MRB paid the special district taxes under protest and brought an action to correct what it

claimed were erroneous assessments. According to MRB, the City failed to properly calculate

and apply the Partial Exemption. In its prayer for relief, MRB sought a refund of “any amounts

of real property tax erroneously charged and paid that are attributable to the erroneous final

value.”

          Prior to trial, the parties stipulated that “[t]he only issue in disagreement is whether the

[Partial Exemption] set forth in [Richmond] City Code §§ 98-149, 98-152 and 98-155 also

applies to the City’s computation of the special district tax as set forth in [Richmond] City Code

§§ 98-816 and 98-842.” After hearing argument on the matter, the trial court determined that the

Partial Exemption did not apply to the special district tax. In a letter decision dated June 12,

2015, the trial court explained that, “according to the statutory origin for the imposition of the

Special District Tax, its beginning method of calculation and its purposes, and use, [the Special

District T]ax is not a real estate tax within the meaning and for the use of the [Partial




                                                     2
Exemption].” On August 12, 2015, the trial court issued a final order that incorporated its letter

opinion.

        MRB appeals.

                                            II. ANALYSIS

        On appeal, MRB argues that the trial court erred in ruling that the special district tax “is

not a real estate tax within the meaning and for the use of” the Partial Exemption. In response,

the City concedes that the special district tax is, in fact, a real estate tax, but claims that the

special district tax is a different type of real estate tax that is not subject to the Partial Exemption.

We agree with the City.

        Whether the special district tax is subject to the partial exemption is a question of

statutory interpretation, which this court reviews de novo. CVAS 2, LLC v. City of

Fredericksburg, 289 Va. 100, 108, 766 S.E.2d 912, 914 (2015); see also Renkey v. County Bd. of

Arlington, 272 Va. 369, 373, 634 S.E.2d 352, 355 (2006) (holding that municipal ordinances are

interpreted in the same manner as statutes). “In interpreting [a] statute, ‘courts apply the plain

meaning . . . unless the terms are ambiguous or applying the plain language would lead to an

absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642, 644 (2012)

(quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)).

        This Court has repeatedly admonished that, where, as here, a statute is clear and

unambiguous, “[t]he question . . . is not what the legislature intended to enact, but what is the

meaning of that which it did enact. We must determine the legislative intent by what the statute

says and not by what we think it should have said.” Carter v. Nelms, 204 Va. 338, 346, 131

S.E.2d 401, 406-07 (1963). Thus, the paramount principle of statutory interpretation is “to




                                                    3
interpret the statute as written.” City of Lynchburg v. Suttenfield, 177 Va. 212, 221, 13 S.E.2d

323, 326 (1941).

        In the present case, however, the trial court based its decision, not on the plain language

of the Richmond City Code, but instead on “the statutory origin,” the “beginning method of

calculation,” the “purposes” and the use of the special district tax. While consideration of these

factors may be necessary in certain circumstances, such as when a literal reading of the statute

would lead to absurd results, see Tvardek v. Powhatan Vill. Homeowners Ass’n, 291 Va. 269,

285-86, 784 S.E.2d 280, 285-86 (2016), it has no place in the present case. Accordingly, the trial

court erred in its analysis.

        However, “[a]ppellate courts do ‘not review lower courts’ opinions, but their

judgments.’” Evans v. Commonwealth, 290 Va. 277, 288 n.12, 776 S.E.2d 760, 766 n. 12 (2015)

(quoting Jennings v. Stephens, 574 U.S. ___, 135 S. Ct. 793, 799 (2015)). “In instances where a

trial court's decision is correct, but its reasoning is incorrect, and the record supports the correct

reason, we uphold the judgment pursuant to the right result for the wrong reason doctrine.”

Haynes v. Haggerty, 291 Va. 301, 305, 784 S.E.2d 293, 294 (2016).

                Under the right result for the wrong reason doctrine, “it is the
                settled rule that how[ever] erroneous . . . may be the reasons of the
                court for its judgment upon the face of the judgment itself, if the
                judgment be right, it will not be disturbed on account of the
                reasons.”

Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435 (2010) (quoting Schultz v.

Schultz, 51 Va. (10 Gratt.) 358, 384 (1853)).

        “This Court may uphold a judgment even when the correct reasoning is not mentioned by

a party in trial argument or by the trial court in its decision, as long as the record contains

sufficient information to support the proper reason.” Haynes, 291 Va. at 305, 784 S.E.2d at 294.

Moreover, the right for the wrong reason doctrine is especially applicable where, as here, the


                                                   4
question is one of pure statutory interpretation and the parties were on notice that the statutes or

statutory scheme was at issue. See Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250

(2012) (applying the right result for the wrong reason doctrine to a case where the only issue was

one of pure statutory interpretation).

         In the present case, both parties and the trial court focused primarily on the Partial

Exemption and the special district tax, without giving proper consideration to the overarching

statutory scheme. This Court has long recognized that “statutes are not to be considered as

isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system,

or a single and complete statutory arrangement.” Prillaman v. Commonwealth, 199 Va. 401,

405, 100 S.E.2d 4, 7 (1957). Thus, in addition to those sections of the Richmond City Code that

expressly enact the special district taxes and the Partial Exemption, it is also necessary to

consider those sections that provide the overall framework for the levy and collection of special

district taxes. In the present case, that framework is provided by Richmond City Code § 98-

816. 2

         Richmond City Code § 98-816 states:

                All assessments levied under [Article XIV] shall be added to the
                general real estate levy for the property and shall be subject to the
                following sections of [Chapter 98] governing the levy and



         2
         Although neither party specifically raised an argument relying on Richmond City Code
§ 98-816, both parties were fully aware that the overall statutory scheme for levying and
collecting special district taxes was at issue in the present case. Indeed, MRB specifically cites
to Richmond City Code § 98-816 in support of its argument.
        Furthermore, to limit our interpretation of the overall statutory scheme to only those
interpretations presented by the parties could have the effect of binding this Court on a question
of the law. Just as we are not bound by the parties’ concession of law, see Wright v.
Commonwealth, 278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009), or the parties’ agreement
on an issue of law, see Richmond v. Volk, 291 Va. 60, 65, 781 S.E.2d 191, 193 (2016), we are not
bound by the parties’ interpretations of a statute.



                                                   5
                 collection of real estate taxes and the penalties applicable thereto:
                 sections 98-123, 98-124, 98-127 and 98-129.

       It is of particular note that, in establishing the framework for levying and collecting

special district taxes, the Richmond City Council cites only four specific sections of Article III of

the Richmond City Code to which the special district taxes under Article XIV are “subject to.”

“In interpreting statutory language, we have consistently applied the time-honored principle

expressio unius est exclusio alterius,” because this maxim “recognizes the competence of the

legislature to choose its words with care.” Virginia Department of Health v. NRV Real Estate,

LLC, 278 Va. 181, 187-88, 677 S.E.2d 276, 279 (2009). Under this maxim, “[w]hen a legislative

enactment limits the manner in which something may be done, the enactment also evinces the

intent that it shall not be done another way.” Grigg v. Commonwealth, 224 Va. 356, 364, 297

S.E.2d 799, 803 (1982). Stated another way, “the mention of specific items in a statute implies

that all items omitted were not intended to be included.” NRV Real Estate, 278 Va. at 188, 677

S.E.2d at 279.

       While this maxim is not applicable in every situation, this Court has recognized that

“‘[n]o maxim of the law is of more general or uniform application, and it is never more

applicable than in the construction and interpretation of statutes.’” Whitehead v. Cape Henry

Syndicate, 105 Va. 463, 471, 54 S.E. 306, 308 (1906) (quoting Broom's Legal Maxims, pp. 663,

607). See also Tate v. Ogg, 170 Va. 95, 103, 195 S.E. 496, 499 (1938) (recognizing that this

maxim “is especially applicable in the construction and interpretation of statutes.”).

Accordingly, this Court has regularly relied on the maxim when interpreting statutes that include

enumerated provisions. See Fisher v. Tails, Inc., 289 Va. 69, 75, 767 S.E.2d 710, 714 (2015);

NRV Real Estate, 278 Va. at 187-88, 677 S.E.2d at 279; Couplin v. Payne, 270 Va. 129, 136, 613

S.E.2d 592, 595 (2005); Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901,



                                                   6
906 (2005); Blake Constr. Co. v. Upper Occoquan Sewage Auth., 266 Va. 564, 577, 587 S.E.2d

711, 718 (2003); Smith Mountain Lake Yacht Club v. Ramaker, 261 Va. 240, 246, 542 S.E.2d

392, 395 (2001); Government Emples. Ins. Co. v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617

(2000); Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000); Board of

Supervisors v. Wilson, 250 Va. 482, 485, 463 S.E.2d 650, 652 (1995); Turner v. Wexler, 244 Va.

124, 127, 418 S.E.2d 886, 887 (1992); Christiansburg v. Montgomery Cnty., 216 Va. 654, 658,

222 S.E.2d 513, 516 (1976). Indeed, the Court’s dependable application of this maxim promotes

consistency and avoids the possibility of an arbitrary standard of interpretation.

        Applying this maxim to the present case demonstrates that, by enacting Richmond City

Code § 98-816, the Richmond City Council intended for the special district taxes levied under

Article XIV to only be “subject to” four specifically mentioned sections under Article III,

Chapter 98 of the Richmond City Code. Similarly, by omitting the remaining sections of Article

III, Chapter 98 of the Richmond City Code, the Richmond City Council has clearly indicated that

it did not intend for special district taxes levied under Article XIV to be “subject to” those

omitted sections. 3 Conspicuously, the sections providing for the Partial Exemption are included

in the omitted sections. 4



        3
          It is possible that the Richmond City Council may not have realized the effect such an
omission would have on the remaining sections of Chapter 98 of the Richmond City Code.
However, we cannot base our decision on such speculation. Indeed, such an approach would
require this Court to overlook a bedrock principle of statutory construction: “Where the
legislature has used words of a plain and definite import the courts cannot put upon them a
construction which amounts to holding the legislature did not mean what it has actually
expressed.” Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934).
        4
           It is of no consequence that neither Richmond City Code § 98-816 nor the four
enumerated sections specifically address the applicability of the Partial Exemption to special
district taxes. To include such a requirement would effectively defeat the rationale of the
expressio unius maxim. Notably, Richmond City Code § 98-816 and the enumerated sections
also do not specifically address the applicability of any other sections of Chapter 98. If we were


                                                  7
        Accordingly, because the special district tax is not subject to the Partial Exemption, the

trial court was correct, albeit for the wrong reason, in ruling that the special district tax “is not a

real estate tax within the meaning and for the use of the [Partial Exemption.]”

                                         III. CONCLUSION

        For the foregoing reasons, we affirm the decision of the trial court.

                                                                                              Affirmed.


JUSTICE KELSEY, with whom CHIEF JUSTICE LEMONS and JUSTICE McCLANAHAN
join, dissenting.

        The City of Richmond encourages rehabilitation of historic properties through the use of

a “partial exemption” from “taxation of real estate.” Richmond City Code § 98-149 (2004). See

generally id. §§ 98-148 to -159. In a different section of the Richmond City Code, the City

imposes a “special district tax” on certain properties in designated districts to fund services and

projects benefitting the properties in those districts. See id. §§ 98-841 to -843.

        The City persuaded the trial court that a special district tax on real estate is not a real

estate tax for purposes of the partial-exemption statute. The majority does not directly address

this issue. Instead, persuaded by an argument raised entirely on its own, the majority concludes

the trial court was right for the wrong reason. I respectfully suggest the trial court and the

majority have both reached the wrong result for independently wrong reasons.

                                                   I.

        In 2006, Miller & Rhoads Building, L.L.C. (“MRB”) purchased a vacant building known

as the Miller & Rhoads Building in downtown Richmond. The property was subject to the city-

to include such a requirement, then there would be no reason to enumerate any sections, because,
absent a specific reference to their applicability, all of the unenumerated sections would still
apply. Thus, including such a requirement would result in Richmond City Code § 98-816
serving no purpose other than to indicate that the special district taxes are to be “added to the
general real estate levy for the property.”


                                                   8
wide base real estate tax, see Richmond City Code § 98-121, as well as a special district tax, see

id. § 98-842 (imposing “special assessments” on “all real estate subject to real estate taxation

located within the boundary described in 98-841” as the “Downtown General Special Service

and Assessment District”).

        Both taxes are calculated as a percentage of the property’s “assessed evaluation.” Id.

§§ 98-121, -842. Both taxes, when unpaid, become liens on the property. See id. §§ 98-127(d)

(classifying unpaid base real estate taxes as “delinquent”), -142 (allowing for judicial sale

following nonpayment of delinquent taxes), -816 (incorporating levy and collection provisions

applicable to the base real estate tax to special district taxes).

        MRB invested millions of dollars rehabilitating and developing the vacant building into a

hotel, retail space, parking facility, and residential condominiums. MRB then applied for the

“partial exemption” from real estate taxes set forth in Richmond City Code §§ 98-148 to -159, a

tax-exemption scheme designed to encourage the revitalization of old and sometimes dilapidated

properties within the City. The City refused to apply the partial exemption to the special district

tax, claiming that it was not a real estate tax within the meaning of Richmond City Code §§ 98-

148 to -159. The trial court agreed with the City and held that the special district tax was not a

“real estate tax” for purposes of the partial exemption. J.A. at 129.

                                                   II.

        MRB argues on appeal that the trial court erred as a matter of law in not applying the

partial-exemption ordinance to the special district real estate tax. I agree.

                                                   A.

        Code § 58.1-3221(A) authorizes local governments to “provide for the partial exemption

from taxation of real estate on which any structure or other improvement . . . has undergone




                                                    9
substantial rehabilitation, renovation, or replacement.” Acting on this grant of power, the City

enacted Division 2.1 of the Richmond City Code, titled “Partial Exemption of Rehabilitated

Structures from Real Estate Taxation.” Section 98-149 states that a “partial exemption is hereby

provided from taxation of real estate” on qualifying property. Section 98-152 explains how, to

the extent pertinent here, the exemption works: A taxpayer qualifying for “partial exemption of

real estate taxes . . . shall receive a credit in the amount of the difference in taxes computed upon

the base value and the initial rehabilitated assessed value of the property.”

       The operative phrases in the Richmond City Code include “Real Estate Taxation” in the

title of Division 2.1, “taxation of real estate” in section 98-149, and “real estate taxes” in sections

98-152 and -155. The question in this case is rather simple: Is a special district tax on real estate

under section 98-842 a tax on real estate under sections 98-149, -152, and -155? It is difficult to

see how the answer could be anything other than “yes.” The City, however, advances several

reasons why we should doubt this answer. I find none persuasive.

                                                  1.

       The City contends that the “purpose” of the special district tax “would be frustrated” if

the partial exemption were applied to it. See Appellee’s Br. at 4, 7-11. The “purpose” of the

partial exemption would also be defeated, the City adds, if it were applied to the special district

tax. Id. at 11-12. The City insists that the partial exemption “was never intended” to apply to the

special district tax. Id. at 12. That is important, the City urges, because “[t]he purpose for which

a statute is enacted is of primary importance in its interpretation or construction.” Norfolk S. Ry.

v. Lassiter, 193 Va. 360, 364, 68 S.E.2d 641, 643 (1952).

       I agree that purpose and intent are crucial guides to any legitimate model of judicial

interpretation. The fault line in this debate, however, is the method by which judges discover




                                                  10
them. The Virginia tradition has always been to ask “not what the legislature intended to enact,

but what is the meaning of that which it did enact. We must determine the legislative intent by

what the statute says and not by what we think it should have said.” Carter v. Nelms, 204 Va.

338, 346, 131 S.E.2d 401, 406-07 (1963). 1 I thus would not inquire as to “what the legislature

meant; we ask only what the statute means.” Tvardek v. Powhatan Vill. Homeowners Ass’n, 291

Va. 269, 277 n.7, 784 S.E.2d 280, 284 n.7 (2016) (quoting Oliver Wendell Holmes, The Theory

of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899)). 2

       Following this tradition, “[i]t is our duty to interpret the statute as written and when this

is done our responsibility ceases.” City of Lynchburg v. Suttenfield, 177 Va. 212, 221, 13 S.E.2d

323, 326 (1941); see also Continental Baking Co. v. City of Charlottesville, 202 Va. 798, 805,

120 S.E.2d 476, 480 (1961). Because we “can only administer the law as it is written,” Coalter

v. Bargamin, 99 Va. 65, 71, 37 S.E. 779, 781 (1901), the interpretative principle that precedes all

others is that “courts must presume that a legislature says in a statute what it means and means in

a statute what it says there,” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,

296 (2006) (citation omitted).

       Applying these principles to our interpretation of the Richmond City Code, I would use

its plain meaning as the winnowing fork separating the exegetical intent (the meaning revealed


       1
          See also Fairbanks, Morse & Co. v. Town of Cape Charles, 144 Va. 56, 63, 131 S.E.
437, 439 (1926) (“The object of interpretation of statutes is to ascertain the meaning of the
legislature. Primarily this is to be obtained from the language used.”).
       2
           I acknowledge that textualism has its limits. While undisturbed by the mere banter of
policy debates, a literal reading of a statute should not be adopted when it “would result in a
manifest absurdity.” Butler v. Fairfax Cty. Sch. Bd., 291 Va. 32, 37, 780 S.E.2d 277, 280 (2015).
That said, “the anti-absurdity principle — understood in its legal sense — serves only as an
interpretative brake on irrational literalism. This fail-safe applies in situations in which a purely
literal reading forces the statutory text into an ‘internally inconsistent’ conflict or renders the
statute ‘otherwise incapable of operation.’” Tvardek, 291 Va. at 280, 784 S.E.2d at 285-86
(quoting Butler, 291 Va. at 37, 780 S.E.2d at 280).


                                                 11
by the words themselves) from its eisegetical intent (the meaning interpolated into the text by the

interpreter). Here, the controlling text is unambiguous: The partial exemption applies to “Real

Estate Taxation,” Richmond City Code ch. 98, art. XIV, div. 2.1; “taxation of real estate,” id.

§ 98-149; and “real estate taxes,” id. §§ 98-152, -155. The City Attorney concedes, correctly so,

that the special district tax is a “tax on real estate.” Oral Argument Audio at 24:00 to 24:13; see

also id. at 16:50 to 16:55; 23:34 to 23:50; Appellee’s Br. at 1, 7. 3 From this, the conclusion is as

simple as it is clear: The partial exemption applies to real estate taxes, and thus, it applies to the

special district tax on real estate. Whatever unexpressed purpose might lurk beneath the text of

the ordinance, it has no effect on the meaning evident from the text itself.

                                                  2.

       The City also points out that the special district tax on real estate is very different from

the city-wide base real estate tax. While both involve a tax rate calculated as a percentage of the

property’s assessed value, the taxes serve different interests in the public financing of a

municipality. No doubt this is true. The general real estate tax raises general revenue that can be

spent on any legitimate governmental purpose. See Code §§ 58.1-3200 et seq. The special

district tax on real estate raises revenue that is placed in segregated accounts for specific services

and projects within designated areas of the City. See Code § 15.2-2403(6); Richmond City Code

§ 98-843. The issue before us, however, is not whether a general real estate tax is different from




       3
         Whether a levy or assessment constitutes a tax “must be determined from the natural
and legal effect of the language used in imposing the charge, [as well as] the language and
provisions of any constitutional or statutory provisions involved.” City of Richmond v.
Richmond-Petersburg Turnpike Auth., 204 Va. 596, 598, 132 S.E.2d 733, 735 (1963). I agree
with the parties in this case that the special district tax is generally a tax and, given its “natural
and legal effect,” is specifically a tax on real estate. Id.; accord City of Richmond v. Eubank, 179
Va. 70, 77, 18 S.E.2d 397, 400-01 (1942) (holding that a sewer tax, which burdened real estate
and was made a lien when unpaid, constituted a real estate tax).


                                                  12
a special real estate tax, but whether both are real estate taxes as a matter of law. Because they

are, any differences between them are immaterial.

                                                  3.

       The City’s final effort to dissuade us from applying the plain meaning of the partial-

exemption ordinance is to argue that the partial exemption, if applicable, would “prevent” the

City from exercising its right to calculate the special district tax on the “full assessed value of

MRB’s property.” Appellee’s Br. at 6. True enough. But that is exactly what tax exemptions,

credits, abatements, and any number of other such tax-reducing measures are meant to do. I

recognize that the City has the statutory authority to “base the tax on the full assessed value,”

Code § 15.2-2403(6), when no exemption is applicable. But that truism does nothing to address

whether the partial exemption is applicable.

       The City enacted the partial exemption “to encourage the redevelopment of property.”

Appellee’s Br. at 1. Nothing in the enabling statutes required the City to enact the partial

exemption ordinance. As MRB points out, the City could have excluded the special district tax

on real estate from the partial exemption ordinance. 4 For whatever reason, the City chose not to

do so. The partial exemption does not conflict with the special district tax on real estate any

more than it conflicts with the city-wide base real estate tax. Both taxes, when applicable,

merely serve as the default rules for real estate taxation. The partial exemption merely does what

its plain text confirms it is intended to do: partially exempt a portion of the assessed values from




       4
           On brief, MRB states that it “has never claimed that the City cannot exclude the special
district tax from the abatement program, or suggested that the City is required under Virginia
Code § 15.2-2403(6) to apply the abatement to the special district tax.” Reply Br. at 2. “The
issue is not what the City might have done and what it lawfully can do. Rather, the issue is what
the City in fact did.” Id. (emphases in original).


                                                  13
real estate taxation. 5 This is not a situation in which two statutes irreconcilably conflict, with

neither capable of accommodating the existence of the other. 6

                                                  B.

       Our colleagues in the majority conclude that the “subject to the following” clause in

Richmond City Code § 98-816 implicitly forbids the partial exemption from applying to a special

district real estate tax. The City did not make this argument in the trial court, its petition for

appeal, its opening brief, its reply brief, or during oral argument.

       Underlying the majority’s view is the negative-implication canon, expressio unius est

exclusio alterius. When used contextually, it is a valuable tool of statutory construction. Its

applicability, however, “depends on the particular circumstances of context.” Reed Dickerson,

The Interpretation and Application of Statutes 234-35 (1975). 7 “Virtually all the authorities who

discuss the negative-implication canon emphasize that it must be applied with great caution,


       5
         The City also relies on the maxim that tax exemptions are to be narrowly construed. In
Virginia, however, that principle applies only when the text of the exemption is ambiguous.
Commonwealth v. Community Motor Bus Co., 214 Va. 155, 157, 198 S.E.2d 619, 620 (1973)
(“When statutes are ambiguous we resort to the rules of statutory construction for guidance in
determining legislative intent. Statutes granting tax exemptions are construed strictly against the
taxpayer. When a tax statute is susceptible of two constructions, one granting an exemption and
the other not granting it, courts adopt the construction which denies the exemption.” (citations
omitted)); see also Solite Corp. v. County of King George, 220 Va. 661, 662-63, 261 S.E.2d 535,
536 (1980); Commonwealth v. Manzer, 207 Va. 996, 1000, 154 S.E.2d 185, 189 (1967); Arcese
v. Commonwealth, 160 Va. 116, 124, 168 S.E. 465, 467 (1933). That is not the case here.
       6
          For similar reasons, I find no significance in the City’s observation that assessments
under the special district tax “shall be added to the general real estate levy for the property.”
Richmond City Code § 98-816. It does not follow, as the City contends, that the sequencing of
these taxes necessarily implies that the partial exemption would be applicable to the general, but
not the special, real estate tax. See Appellee’s Br. at 6 (noting that “[a]n Abatement is a
component of” the general real estate levy and that the partially exempted amount is “added on
top of th[e] total assessed value”). Because both are real estate taxes, the partial exemption
applies to both.
       7
         See generally Roland Burrows, Interpretation of Documents 67 (1943) (exhorting that
the negative-implication canon, particularly when applied to statutes, “must be treated with
caution,” given its capacity, when misused, to contort context).


                                                  14
since its application depends so much on context.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 107 (2012).

       Given the “great caution” needed for a careful application of the canon, Henry Black of

Black’s Law Dictionary warned against using it as “a Procrustean standard to which all statutory

language must be made to conform.” Henry Campbell Black, Handbook on the Construction and

Interpretation of the Laws § 72, at 219-20 (2d ed. 1911). The maxim is “useful only as a guide

in determining the probable intention of the legislature.” Id. Thus, “if it should be clearly

apparent . . . that the legislature did not in fact intend that its express mention of one thing should

operate as an exclusion of all others, then the maxim must give way.” Id. at 220.

       In this case, the negative-implication canon finds no support from the text or context of

section 98-816. That section provides in full: “All assessments levied under this article shall be

added to the general real estate levy for the property and shall be subject to the following

sections of this chapter governing the levy and collection of real estate taxes and the penalties

applicable thereto: sections 98-123, 98-124, 98-127 and 98-129.” 8 The majority contends that

the “subject to the following” clause in section 98-816 conspicuously leaves out any mention of

the provisions applying the “partial exemption” to “taxation of real estate.” Richmond City

Code § 98-149. See generally id. §§ 98-148 to -159. It is true that the clause does not mention

the partial-exemption provisions. But that is wholly understandable, rather than curiously

conspicuous, given that the enumerated sections all relate to the procedures governing the levy

and collection of taxes and the imposition of penalties for non-payment.

       8
          Section 98-123 governs the enforcement of liens, creating an expiration of an
uncollected lien at “20 or more years,” and section 98-124 specifies that such liens shall be
released and recorded as “barred and canceled.” Section 98-127 sets forth due dates for real
estate taxes, requirements for notices of payment, and interest permitted in the event of late
payments or nonpayment. Section 98-129 allows for prepayment and installment payments of
real estate taxes.


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        Section 98-816 merely specifies how special district real estate taxes are to be levied and

collected and, in the event of nonpayment, how taxpayers should be penalized — not whether the

special district tax on real estate is “real estate taxation” for purposes of the partial exemption

available under sections 98-149, -152, and -155. Because the latter topic is categorically

unrelated to the former, it “may never have struck the draftsman that it needed mention.”

Burrows, supra note 7, at 67. 9 This is a critical flaw in the majority’s reasoning because the

negative-implication canon “properly applies only when the unius (or technically, unum, the

thing specified) can reasonably be thought to be an expression of all that shares in the grant or

prohibition involved.” Scalia & Garner, supra, at 107. The canon does not apply to matters that

“go beyond the category to which the negative implication pertains.” Id. at 108.

        The majority views my reasoning as inconsistent with the maxim that courts cannot

interpret a statute to say that “the legislature did not mean what it has actually expressed.” Ante

at 7 n.3 (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). That criticism

misses the mark. The interpretative debate in this case is not over what the section 98-816

literally says, but what can be legitimately inferred from what it does not say.

        What section 98-816 “actually expressed,” id., is what it actually said: The special

district tax is “subject to” certain provisions governing levy and collection procedures. But what

it does not say is that the special district tax is only subject to these provisions and that no other

provision in the Richmond City Code applies to special district taxes. Moreover, nothing in

section 98-816 makes the counterintuitive statement that the special district tax on real estate

should not be considered “real estate taxation” for purposes of the partial exemption available

under sections 98-149, -152, and -155. That conclusion is inferred by the majority based solely

        9
         It also never struck the City Attorney that it needed to be mentioned. As noted earlier,
at no point in the trial court or on appeal has the City advanced this argument.


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on the negative-implication canon. It is this extra-literal meaning interpolated into the text by the

majority that I find unpersuasive.

       I similarly do not agree that my rejection of the negative-implication canon here means

that “there would be no reason to enumerate any sections, because, absent a specific reference to

their applicability, all of the unenumerated sections would still apply.” Ante at 7 n.4. By its very

nature, the negative-implication canon only excludes unmentioned provisions within the

contextual reach of the enumerating provision. Context, not abstracted logic, is the limiting

principle. The fact that the canon would not exclude an unrelated provision (that is, one outside

the enumerating provision’s contextual reach) does not mean that it would not exclude related

provisions within its reach.

       In short, the “subject to the following sections” clause in section 98-816 addresses how

special district real estate taxes are to be levied and collected and, in the event of nonpayment,

how taxpayers should be penalized. Section 98-816 does not address whether the special district

tax on real estate is “real estate taxation” for purposes of the partial exemption available under

sections 98-149, -152, and -155. Nothing in the text, syntax, or context of section 98-816 or any

of its incorporated-by-reference provisions says anything about the amount of the special district

tax added to the general levy or the applicability of the partial exemption to that amount. It is not

at all odd, therefore, that section 98-816 does not specifically incorporate by reference the partial

exemption available under sections 98-149, -152, and -155. To the contrary, it would have been

odd if it had done so.

                                                 III.

       By its plain terms, the partial exemption applies to real estate taxes. See Richmond City

Code §§ 98-149, -152, and -155. The special district tax imposed by section 98-842 is a real




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estate tax. The partial exemption thus applies to the special district tax.

       I respectfully dissent.




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