Present: Carrico, C.J., Compton,1 Lacy, Hassell, Keenan, Koontz, 

and Kinser, JJ. 

JAMES S. GILMORE, III, 

GOVERNOR OF THE COMMONWEALTH 

OF VIRGINIA, ET AL. 

v. Record No. 990779 

MICHELE P. FINN 

 OPINION BY 

JUSTICE LAWRENCE L. KOONTZ, JR. 

 March 3, 2000 

MICHELE P. FINN 

v. Record No. 990796 

JAMES S. GILMORE, III, ET AL. 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Frank A. Hoss, Judge 

 In these appeals, we consider whether the trial court erred 

in awarding sanctions pursuant to Code § 8.01-271.1, limited to 

the actual attorney’s fees and costs incurred by the opposing 

party, against the Governor and the Commonwealth (hereafter 

collectively, the Governor) for filing a lawsuit that allegedly 

was neither “well grounded in fact [nor] warranted by existing 

law or a good faith argument for the extension, modification, or 

reversal of existing law.” 

 1

Justice Compton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

February 2, 2000. 
BACKGROUND 

 On March 9, 1995, Hugh Finn was injured in an automobile 

accident. As a result of the accident, he suffered severe brain 

damage and required continuous nursing home care, including 

artificially administered hydration and nutrition through 

feeding tubes. At all times relevant to these appeals, Hugh 

Finn was a resident of Annaburg Manor Nursing Home in the City 

of Manassas. 

 In June 1998, Michele P. Finn, Hugh Finn’s wife and legal 

guardian, determined that it would not have been her husband’s 

wish that he be kept alive by artificial means, including the 

administration of hydration and nutrition, if there were no 

reasonable possibility of his recovering from a persistent 

vegetative state. Michele Finn then informed Hugh Finn’s 

immediate family of her decision that pursuant to the provisions 

of the Virginia Health Care Decisions Act (the Act), Code 

§ 54.1-2981 et seq., she intended to direct the medical staff at 

Annaburg Manor Nursing Home to withdraw this life-prolonging 

procedure from her husband. A series of legal actions between 

the various members of Hugh Finn’s family followed. These legal 

actions were emotionally difficult for the family, ultimately 

became the subject of public debate and, indeed, led to the 

involvement of the Governor of Virginia. 

2
A. The John Finn Lawsuit

 Several members of Hugh Finn’s immediate family disagreed 

with Michele Finn’s decision. John Finn, Hugh Finn’s brother, 

filed a chancery suit in the Circuit Court of Prince William 

County (the trial court) seeking a permanent injunction to 

prohibit the withdrawal of hydration and nutrition from Hugh 

Finn and to remove Michele Finn as Hugh Finn’s guardian (the 

John Finn lawsuit). On July 17, 1998, the trial court granted a 

temporary restraining order prohibiting Michele Finn from taking 

action to withdraw the life-prolonging procedure being 

administered to Hugh Finn. 

 On July 29, 1998, the trial court held a hearing to 

consider John Finn’s request for a permanent injunction and to 

remove Michele Finn as guardian. The trial court received 

testimony from Hugh Finn’s neurologist, his physiatrist and Dr. 

Robin B. Merlino, his attending physician. The trial court 

found that the unanimous diagnosis of these three physicians 

provided “clear and convincing evidence that Hugh Finn has been 

and remains in a persistent vegetative state as defined in Va. 

Code § 54.1-2982, that can be characterized as a permanent 

vegetative state, meaning that, to a reasonable degree of 

medical probability, it is irreversible.” The trial court 

further found that there was credible testimony from Michele 

Finn and in the de bene esse deposition of Kenneth L. Sales, 

3
Hugh Finn’s attorney, that Hugh Finn had on “multiple occasions 

before his tragic accident” expressed that “he would not wish to 

have his life artificially prolonged with artificial life 

sustaining medical treatment, and that he would specifically 

wish to have [artificially administered] nutrition and hydration 

withdrawn if he were in a persistent or permanent vegetative 

state.”2

 Addressing the provisions of the Act found in Code § 54.1-

2986, the trial court found that Michele Finn had satisfied the 

requirement that she make “a good faith effort to ascertain the 

risks and benefits of and alternatives to the treatment and the 

religious beliefs and basic values of . . . the patient 

receiving treatment.” The trial court further found that it was 

“impossible to communicate with Hugh Finn as a result of the 

permanent vegetative state” and, thus, it was appropriate for 

Michele Finn to “base[] her decision on [her husband’s] 

 2

Although not referenced in the trial court’s order, the 

record reflects that the testimony of Hugh Finn’s sister, Karen 

Finn, corroborated Michele Finn’s and Sales’ testimony. The 

evidence further showed that Sales had been asked by Hugh Finn 

to draft a Medical Directive, or “Living Will,” expressing his 

desires a short time prior to his accident. 

The trial court also reviewed the de bene esse deposition 

of John Collins Harvey, M.D., Ph.D., a Catholic physician 

theologian and expert on the subject of Catholic doctrines 

regarding euthanasia and related issues. Hugh Finn was a 

practicing Catholic prior to his incapacitation. Dr. Harvey 

expressed the opinion that Hugh Finn’s wishes were not 

inconsistent with the doctrines of the Catholic faith. 

4
religious beliefs and basic values and [his] preferences 

previously expressed . . . regarding such treatment.” 

 Based upon these findings, the trial court determined that 

“the termination of [Hugh Finn’s] medical treatment . . . 

including the withdrawal of [artificially administered] 

nutrition and hydration, is a medically appropriate, ethical 

treatment decision that is not inconsistent with Hugh Finn’s 

personal wishes or his personal religious beliefs.” 

Accordingly, the trial court concluded that John Finn had not 

satisfied his burden of demonstrating the likelihood of 

ultimately prevailing on the merits of a challenge to either the 

appropriateness of Michele Finn’s decision or to her suitability 

as Hugh Finn’s guardian. 

 In an order dated August 31, 1998, the trial court denied 

John Finn’s request for a permanent injunction, dissolved the 

temporary injunction issued in the July 17, 1998 order, and 

dismissed John Finn’s petition to remove Michele Finn as Hugh 

Finn’s guardian. Although granting Michele Finn authority to 

proceed with her decision to direct the withdrawal of Hugh 

Finn’s artificially administered hydration and nutrition, the 

trial court stayed that authority for 21 days.3 The trial court 

 3

The trial court subsequently amended the period of the stay 

to 30 days, that is, until September 30, 1998, to permit an 

appeal to this Court. 

5
further required John Finn to pay one-half of the fees for the 

guardian ad litem appointed for Hugh Finn, one-half of the fees 

for the expert witnesses, and one-half of the attorney’s fees 

and costs incurred by Michele Finn in defending the suit. 

 During the period of the stay imposed on Michele Finn by 

the trial court, John Finn filed a motion for reconsideration. 

In that motion, he asserted that new evidence had been acquired 

to show that his brother was not in a persistent vegetative 

state. 

 On September 21, 1998, the trial court held a hearing on 

that motion and reviewed the affidavit of Marie F. Saul, R.N., a 

utilization review nurse employed by the Commonwealth’s 

Department of Medical Assistance Services. In that affidavit, 

Saul stated that while reviewing Hugh Finn’s medical records, 

she attempted to communicate with him. After repeatedly saying 

“Hi” to him, Saul believed she heard him respond in a similar 

fashion. Saul further stated that she then persisted in 

attempting to communicate with Hugh Finn for over an hour, but 

received no further response, although she observed Hugh Finn 

“[s]moothing” his hair. Saul also testified at the hearing, 

essentially reiterating the statements in her affidavit. 

 By proffer, the trial court received evidence from Michele 

Finn that the Commonwealth’s Department of Health and Human 

Resources had conducted its own investigation of Hugh Finn’s 

6
condition and that the Department’s report concurred in the 

diagnosis of his treating physicians that Hugh Finn was in a 

persistent vegetative state. Michele Finn further proffered 

evidence that it was beyond the usual responsibility or training 

of a utilization review nurse, such as Saul, to make clinical 

observations or to report on the physical or medical condition 

of a patient. The evidence further showed that there had been 

no change in Hugh Finn’s condition or in the diagnosis of that 

condition by his treating physicians since the entry of the 

August 31, 1998 order. 

 The trial court found that Saul’s affidavit and testimony 

did not constitute new evidence and, moreover, “did not 

contradict a finding that [Hugh Finn] is [] in a persistent 

vegetative state” as previously determined by that court. 

Accordingly, the trial court denied the motion for 

reconsideration. John Finn was ordered to pay the additional 

fees and costs arising from the hearing on his motion. 

B. Michele Finn’s Motion to Prohibit Intervention by the 

Commonwealth

 At various times following the July 29, 1998 hearing and 

continuing after the trial court’s denial of John Finn’s motion 

for reconsideration, agencies of the Commonwealth, apparently 

responding to requests from a relative of Hugh Finn and a member 

of the General Assembly of Virginia, made a series of 

7
investigative visits to Annaburg Manor Nursing Home to examine 

Hugh Finn. These visits were conducted without the knowledge of 

Michele Finn and contrary to her express instructions that 

access to her husband be limited to family members and medical 

staff. On September 20, 1998, twenty members of the General 

Assembly released an informal declaration “In the Matter of Hugh 

Finn” in which they asserted that “the provision of comfort care 

as well as food and water should not be denied patients where 

such removal will be the underlying cause of death.” 

 Under the aegis of the prior action filed by John Finn, 

Michele Finn filed a motion seeking an order to enjoin the 

Commonwealth from making further intrusions into her husband’s 

privacy. The trial court conducted a hearing on Michele Finn’s 

motion on September 25, 1998. At that hearing, the evidence 

showed that three physicians employed by the Commonwealth’s 

Department of Health and Human Resources had examined Hugh Finn 

and determined that he was in a persistent vegetative state. 

The physicians had further stated in an interview with David 

Tucker, Administrator of Annaburg Manor Nursing Home, that 

removal of Hugh Finn’s feeding tubes would have been warranted 

as much as a year and a half prior to the date of their 

examination. Additional evidence showed that the Commonwealth’s 

physicians discounted Saul’s report that Hugh Finn had actually 

responded to her efforts to communicate with him. The trial 

8
court sustained the Commonwealth’s demurrer to Michele Finn’s 

motion on the ground that the Commonwealth was not a party to 

the John Finn lawsuit. 

 On September 28, 1998, Hugh Finn’s family members who had 

opposed Michele Finn’s decision to withdraw the life-prolonging 

procedure being administered to Hugh Finn agreed not to pursue 

further legal action. Accordingly, no appeal was taken from the 

judgment rendered in the John Finn lawsuit. 

C. The Governor’s Lawsuit

 On September 30, 1998, James S. Gilmore, III, “acting in 

his official capacity [as Governor of the Commonwealth of 

Virginia] and in the name of the Commonwealth,” filed a bill of 

complaint against Annaburg Manor Nursing Home, Dr. Merlino, and 

Michele Finn seeking a temporary restraining order and a 

permanent injunction to prohibit the respondents from 

withdrawing the administration of hydration and nutrition from 

Hugh Finn (the Governor’s lawsuit). The Governor asserted in 

the bill of complaint that the suit was brought pursuant to Code 

§ 2.1-49, which provides, in pertinent part, that “pursuant to 

his duty to protect or preserve the general welfare of the 

citizens of the Commonwealth, the Governor may institute any 

action, suit, motion or other proceeding on behalf of its 

citizens, in the name of the Commonwealth acting in its capacity 

as parens patriae, where he shall determine that existing legal 

9
procedures fail to adequately protect existing legal rights and 

interests of such citizens.” 

 In addition, it was asserted that the suit was brought 

pursuant to Code § 54.1-2986(E), which provides that: “On 

petition of any person to the circuit court of the county or 

city in which any patient resides or is located for whom 

treatment will be or is currently being provided, withheld or 

withdrawn pertinent to this article, the court may enjoin such 

action upon finding by a preponderance of the evidence that the 

action is not lawfully authorized by this article or by other 

state or federal law.” (Emphasis added.) 

 The Governor, as pertinent to the present appeal, contended 

that Hugh Finn is “dependent upon the artificial administration 

of nutrition and hydration in order to survive” and that the 

withdrawal of this procedure “will initiate a process of dying 

which will cause Hugh Finn to die from starvation and/or 

dehydration.” Accordingly, the Governor further contended that 

“the Virginia Health Care Decisions Act . . . does not authorize 

the withholding of nutrition and hydration from Hugh Finn” 

because Code § 54.1-2990 expressly provides that “nothing in 

[the Act] shall be construed to condone, authorize or approve 

mercy killing or euthanasia, or to permit any affirmative or 

deliberate act or omission to end life other than to permit the 

natural process of dying.” The Governor further contended that 

10
“[u]pon information and belief, Hugh Finn is not in a persistent 

vegetative state as defined under Code § 54.1-2982; however, 

even if Hugh Finn were in a persistent vegetative state, the 

Respondents would not be authorized under the Act . . . to 

withhold or withdraw the administration of nutrition and/or 

hydration” from Hugh Finn. 

 On October 1, 1998, the trial court held a hearing on the 

Governor’s request for a temporary restraining order. At that 

hearing, the Governor, represented by the Office of the Attorney 

General, conceded that there was no new evidence to present in 

support of the contention that Hugh Finn was not in a persistent 

vegetative state and relied solely on Saul’s affidavit. The 

Governor contended, however, that Hugh Finn’s medical condition 

was not dispositive inasmuch as the principal contention of the 

bill of complaint was that the withdrawal of hydration and 

nutrition under the circumstances of the case was prohibited by 

Code § 54.1-2990. 

 Hugh Finn’s guardian ad litem advised the trial court that 

there was new evidence in the form of a medical report prepared 

for the Department of Medical Assistance Services by Dr. Naurang 

S. Gill, which the guardian ad litem had obtained from the 

Office of the Attorney General. Dr. Gill’s report confirmed the 

previous diagnoses of Hugh Finn’s personal physicians and the 

physicians employed by the Department of Health and Human 

11
Resources that Hugh Finn “had been and remained in a persistent 

vegetative state.” Dr. Gill further opined “that [Hugh Finn’s] 

chances of any meaningful recovery . . . are practically zero.” 

 On the day the hearing was held, the trial court denied the 

Governor’s request for a temporary restraining order. In that 

order, the trial court reviewed the prior proceedings and its 

factual findings in the John Finn lawsuit and then reiterated 

its prior determination that Michele Finn had “full authority 

under the Act, to withhold and withdraw life-prolonging medical 

procedures,” including the artificial administration of 

hydration and nutrition. Addressing the argument that Code 

§ 54.1-2990 prohibited the withdrawal of hydration and 

nutrition, the trial court concluded that “a person in a 

persistent vegetative state is, as a matter of law, in the 

natural process of dying within the meaning of [Code § 54.1-

2990] and . . . the withholding and/or withdrawal of artificial 

nutrition or hydration from a person in a persistent vegetative 

state merely permits the natural process of dying and is not 

mercy killing or euthanasia with[in] the meaning of [Code 

§ 54.1-2990].” 

 Pursuant to Code § 8.01-626, the Governor filed an 

emergency petition in this Court for review of the trial court’s 

order. The Governor’s sole assignment of error asserted that 

the denial of the motion for a temporary restraining order “was 

12
error, and was based on an erroneous interpretation of Va. Code 

§ 54.1-2990.” Without conceding that Hugh Finn was in a 

persistent vegetative state, the Governor argued for reversal of 

the trial court’s order on the ground that a person in a 

persistent vegetative state is not in the “natural process of 

dying,” but rather that the withdrawal of hydration and 

nutrition would “initiate a dying process not previously 

present.” Thus, the Governor contended, as he had in the trial 

court, that a plain reading of Code § 54.1-2990 would prohibit 

the withdrawal of hydration and nutrition from a person not 

otherwise in the process of dying from some other disease or 

condition. The Governor further contended that even if this 

Court were unwilling to construe the statute in this manner, the 

failure to issue the temporary restraining order deprived the 

parties of the opportunity “to make [a] more deliberate 

investigation” of Hugh Finn’s condition, “whatever that 

condition may be.” 

 By order entered October 2, 1998, we denied the Governor’s 

emergency petition for review. In that order, we held that the 

“withholding and/or withdrawal of artificial nutrition and 

hydration from . . . a person in a persistent vegetative state[] 

merely permits the natural process of dying and is not mercy 

killing or euthanasia within the meaning of Code § 54.1-2990.” 

Gilmore, et al. v. Annaburg Manor Nursing Home, et al., Order 

13
Denying Emergency Petition for Review (October 2, 1998). Hugh 

Finn subsequently died following the withdrawal of the lifeprolonging procedure in question. 

D. Michele Finn’s Motion for Fees and Sanctions 

 On November 5, 1998, pursuant to Code § 8.01-271.1, Michele 

Finn filed in the trial court a motion seeking an award of fees 

and sanctions against the Governor, the Attorney General, and 

the attorneys in the Attorney General’s office who had endorsed 

the pleadings in the Governor’s lawsuit. Michele Finn contended 

that the Governor’s lawsuit was supported by “no law, nor facts, 

on which to base [the] claim for injunctive relief, and no 

standing to justify the Governor’s intervention . . . when [the 

Governor and his counsel] brought this ill-advised, improvident 

and spurious lawsuit.” 

 In a memorandum in opposition to this motion, the Governor 

responded to Michele Finn’s motion contending that his lawsuit 

was filed in good faith and based upon a reasonable belief in 

the merits of both the factual assertion that Hugh Finn was not 

in a persistent vegetative state and the legal assertion that 

the Act did not permit the withdrawal of artificially 

administered hydration and nutrition from any person not 

otherwise in the natural process of dying. In support of his 

assertion that the factual issue of Hugh Finn’s medical 

condition was controverted and, thus, raised in good faith, the 

14
Governor referenced Saul’s affidavit. In addition, for the 

first time the Governor cited medical studies on misdiagnosis of 

patients thought to be in a persistent vegetative state, an 

alleged failure to correct a problem with a drainage shunt 

intended to relieve pressure on Hugh Finn’s brain, and reports 

from Annaburg Manor Nursing Home that Hugh Finn had demonstrated 

improvement in manual dexterity and verbal responsiveness to 

questions. The Governor also supplied an affidavit of a lay 

Catholic minister who related that “tears came to Mr. Finn’s 

eyes” when the minister told him he could not receive the 

physical Eucharist due to medical reasons and that Hugh Finn 

once “reached up and took [the minister’s] hand” during prayer. 

 In support of his contention that his legal challenge 

concerning the construction of Code § 54.1-2990 was made in good 

faith, the Governor noted that this statute had not been 

authoritatively construed by the courts and contended that the 

statute was susceptible to two interpretations. The 

interpretation advocated by the Governor was that the 

artificially administered hydration and nutrition merely 

compensated for Hugh Finn’s inability to chew and swallow and 

could have sustained his life indefinitely. Thus, he was not in 

the natural process of dying and the withdrawal of this lifeprolonging procedure would have the effect of initiating a dying 

process in violation of the statute. The second interpretation, 

15
acknowledged by the Governor, was that because Hugh Finn was in 

a persistent vegetative state, he was already in the process of 

dying as a matter of law and, thus, the withdrawal of the lifeprolonging procedure merely permitted that process to continue. 

Although conceding that the latter interpretation was ultimately 

adopted by the trial court and upheld by this Court, the 

Governor contended that at the time he filed suit his 

interpretation was “warranted by existing law or good faith 

argument for the extension, modification, or reversal of 

existing law such that the imposition of sanctions under Code 

§ 8.01-271.1 would not be warranted.” In addition, the Governor 

further contended that the imposition of sanctions would 

impermissibly invade executive decision-making and violate the 

separation of powers doctrine. 

 In a reply memorandum, Michele Finn contended that the 

Governor’s basis for supporting his challenge to Hugh Finn’s 

medically diagnosed condition was “unworthy of belief and 

ignores the prior findings of [the trial court], as well as the 

very results [of] the Governor’s own investigation.” She 

further contended that Code § 54.1-2990, when read in the 

context of the other definitions and provisions of the Act, was 

not reasonably subject to the interpretation advanced by the 

Governor and that in any case the issues of mercy killing and 

euthanasia had been litigated in the John Finn lawsuit. 

16
 On November 25, 1998, the trial court heard argument from 

the parties in support of their positions. In summarizing its 

findings and conclusions, the trial court stated, “[T]he real 

issue in this case is whether or not the [Governor’s] pleadings 

were well grounded in fact and warranted by existing law.” With 

respect to the Governor’s argument that he had a good faith 

belief that the diagnosis of Hugh Finn’s medical condition was 

controverted, the trial court found that the evidence cited by 

the Governor was too far removed in time to contradict the 

evidence that had been developed during the John Finn lawsuit. 

The trial court further found that the Governor had “simply 

glossed over” Dr. Gill’s report that Hugh Finn was in a 

persistent vegetative state with almost no hope of improvement, 

which the trial court found “compelling on the issue of whether 

the Commonwealth, the Attorney General, or the Governor could, 

in good faith, argue otherwise.” 

 The trial court further stated that “[t]here is precious 

little construction that needs to be made” when Code § 54.1-2990 

is read in the context of the other definitions and provisions 

of the Act. The trial court found that the Governor’s assertion 

that this statute was subject to two constructions was not 

warranted by existing law and stated that this finding “is 

supported by the unprecedented manner in which this case was 

decided by a unanimous Supreme Court of Virginia within just a 

17
few days of the signing of [the trial] Court’s order.” In 

addition, with regard to the Governor’s legal assertions 

concerning the Act, the trial court further stated that “[i]t 

seems clear to [this court] from all that [this court has] 

observed in this case since it gained such public prominence is 

that there are legislators, and apparently the Governor too, 

that do not favor this law. This is certainly their 

prerogative. But the challenge that should be mounted . . . is 

one to be made in the political arena and not in the court, and 

certainly not in the manner that it was done in this case.” 

 The trial court further rejected the Governor’s contention 

that any imposition of sanctions against him would impermissibly 

invade his executive decision-making prerogative and would 

violate the separation of powers doctrine. The trial court 

assumed that Code § 2.1-49 provided the Governor with standing 

to bring the lawsuit in the name of the Commonwealth, but 

further reasoned that having thus submitted himself to the 

authority of the courts, the Governor could not claim executive 

privilege to avoid the consequences of that authority being 

exercised. 

 Accordingly, the trial court imposed on the Governor and 

the Commonwealth, jointly and severally, a compensatory sanction 

in the form of an award of attorney’s fees and costs to Michele 

18
Finn in the amount of $13,124.20.4 The trial court declined a 

request by Michele Finn that it assess a punitive sanction 

against the Governor, the Commonwealth, the Attorney General, 

and the attorneys in the Attorney General’s office who had 

signed the pleadings, finding that a punitive sanction was not 

appropriate under the facts of this case. 

 The Governor and the Commonwealth filed a petition for writ 

of error in this Court asserting that the trial court had erred 

in rejecting the separation of powers doctrine argument, in 

considering evidence outside the record, in determining that the 

Governor’s lawsuit was not well grounded in fact, and in ruling 

that the Governor’s legal argument was sanctionable. Michele 

Finn also filed a petition for writ of error asserting that the 

trial court erred in failing to assess a punitive sanction and 

in failing to assess liability for the compensatory sanction 

against the Attorney General and the individual attorneys who 

signed the pleadings. We awarded appeals to both the Governor 

and Michele Finn. 

DISCUSSION 

 Our consideration of the trial court’s imposition of 

sanctions under Code § 8.01-271.1 in this case necessarily 

 4

The Commonwealth was further directed “not as a sanction 

but pursuant to appropriate statutory authority” to pay the 

guardian ad litem’s fee of $2,731.00. This assessment of the 

guardian ad litem’s fee is not challenged in this appeal. 

19
begins with a review of the other pertinent statutes that were 

the focal point in the proceedings below. The Health Care 

Decisions Act, Code § 54.1-2981 et seq., as the name implies is 

a legislative response to and acknowledgement of the fact that a 

competent adult may decide not to undergo life-prolonging 

medical procedures in the event such person should have a 

terminal condition. The right to make that decision is 

specially acknowledged in Code § 54.1-2983. By its very nature, 

however, such a decision, while reasonable and perhaps even 

prudent in the abstract, in its application in a given case is 

of considerable concern and impact, not only to the terminally 

ill person, his family and physicians but, indeed, in a broad 

sense, to the welfare of all the citizens of this Commonwealth. 

This is so because society considers a human life to be unique 

and precious and, in the context of this Act, its termination is 

rightfully permitted only in “the natural process of dying.” 

 When so viewed, the Act provides for various procedures to 

be followed to ensure that the decision of a terminally ill 

person not to undergo life-prolonging procedures is communicated 

to his physician at the appropriate time. Under the best of 

circumstances, this is accomplished by an “advance directive” 

made by the person, and the Act provides in detail the 

requirements for such a medical directive. See Code §§ 54.1-

2983 and 54.1-2884. In the absence of an advance directive, 

20
Code § 54.1-2986 provides the conditions and requirements for 

permitting an attending physician, upon authorization of the 

guardian of the patient or other specified persons, to withhold 

or withdraw life-prolonging procedures. Michele Finn, in her 

capacity as legal guardian of Hugh Finn, invoked this statute 

when she made the decision to direct her husband’s physicians to 

withdraw the hydration and nutrition being artificially 

administered to him. 

 As we have previously noted, in addition to issues raised 

as to whether that decision was consistent with Hugh Finn’s 

religious beliefs and his previously expressed preferences for 

treatment, this decision was challenged by some of Hugh Finn’s 

family as not being consistent with the statutory definitions of 

a life-prolonging procedure in the specific context of Hugh 

Finn’s medical condition. Code § 54.1-2982 defines “Lifeprolonging procedure” as “any medical procedure, treatment or 

intervention which (i) utilizes mechanical or other artificial 

means to sustain, restore or supplant a spontaneous vital 

function, or is otherwise of such a nature as to afford a 

patient no reasonable expectation of recovery from a terminal 

condition and (ii) when applied to a patient in a terminal 

condition, would serve only to prolong the dying process. The 

term includes artificially administered hydration and 

nutrition.” (Emphasis added.) The statute defines “Terminal 

21
condition” as “a condition caused by injury, disease or illness 

from which, to a reasonable degree of medical probability a 

patient cannot recover and (i) the patient’s death is imminent 

or (ii) the patient is in a persistent vegetative state.” 

(Emphasis added.) The statute defines “Persistent vegetative 

state” as “a condition caused by injury, disease or illness in 

which a patient has suffered a loss of consciousness, with no 

behavioral evidence of self-awareness or awareness of 

surroundings in a learned manner, other than reflex activity of 

muscles and nerves for low level conditioned response, and from 

which, to a reasonable degree of medical probability, there can 

be no recovery.” 

 In the John Finn lawsuit, Michele Finn prevailed on the 

factual and legal contentions that Hugh Finn was in a persistent 

vegetative state and, therefore, as a matter of law was in a 

terminal condition, and that the artificial administration of 

hydration and nutrition was a life-prolonging procedure the 

statute permitted her to direct to be withdrawn because it would 

serve only to prolong the dying process of her husband. No 

appeal was taken in that case. However, Code § 54.1-2990 which, 

in pertinent part, provides that “[n]othing in this article 

shall be construed to condone, authorize or approve mercy 

killing or euthanasia, or to permit any affirmative or 

deliberate act or omission to end life other than to permit the 

22
natural process of dying” was neither asserted nor expressly 

considered in that suit. The Governor did not intervene in that 

suit and thus was not a party to it. Instead, the Governor 

filed a separate suit in which this provision of Code § 54.1-

2990 was the focal point of his contention that, notwithstanding 

the provisions of Code § 54.1-2982, this statute as applied to 

Hugh Finn’s circumstances required the conclusion that the 

withdrawal of the artificially administered hydration and 

nutrition was not permitted because that withdrawal would 

initiate a dying process because Hugh Finn was not otherwise in 

the process of dying. That contention was rejected by the trial 

court and by this Court on appeal. 

 It is then manifest that our consideration of whether 

sanctions were appropriately imposed upon the Governor in the 

present case is to be focused primarily upon the Governor’s 

lawsuit and not the John Finn lawsuit. Accordingly, we turn now 

to the statutes and legal principles that guide our further 

analysis. 

 Initially we note that to the extent that Michele Finn 

challenged the Governor’s “standing” to file suit in this case, 

that challenge is totally without merit. Code §§ 2.1-49 and 

54.1-2986(E) provide that standing. The question is whether the 

Governor pursued the lawsuit in a fashion that was not in 

violation of Code § 8.01-271.1. 

23
 Code § 8.01-271.1, in pertinent part, provides that: 

 The signature of an attorney or party constitutes 

a certificate by him that (i) he has read the 

pleading, motion, or other paper, (ii) to the best of 

his knowledge, information and belief, formed after 

reasonable inquiry, it is well grounded in fact and is 

warranted by existing law or a good faith argument for 

the extension, modification, or reversal of existing 

law, and (iii) it is not interposed for any improper 

purpose, such as to harass or to cause unnecessary 

delay or needless increase in the cost of litigation. 

* * * * 

 If a pleading, motion, or other paper is signed 

or made in violation of this rule, the court, upon 

motion or upon its own initiative, shall impose upon 

the person who signed the paper or made the motion, a 

represented party, or both, an appropriate sanction, 

which may include an order to pay to the other party 

or parties the amount of the reasonable expenses 

incurred because of the filing of the pleading, 

motion, or other paper or making of the motion, 

including a reasonable attorney’s fee. 

 We begin our consideration of the application of this 

statute to the present case with the proposition that the 

Governor is not above the law and, where appropriate, is fully 

subject to the imposition of sanctions under Code § 8.01-271.1. 

We also note that the Governor does not contend otherwise in 

this appeal. 

 We have previously identified some of the policy 

considerations in sanction cases. “The possibility of a 

sanction can protect litigants from the mental anguish and 

expense of frivolous assertions of unfounded factual and legal 

claims and against the assertions of valid claims for improper 

24
purposes. . . . Yet the threat of a sanction should not be used 

to stifle counsel in advancing novel legal theories or asserting 

a client’s rights in a doubtful case.” Oxenham v. Johnson, 241 

Va. 281, 286, 402 S.E.2d 1, 3 (1991). All of these policy 

considerations are facially implicated by the proceedings in 

this case. 

 “[W]e apply an abuse-of-discretion standard in reviewing a 

trial court’s award or denial of a sanction.” Id. at 287, 402 

S.E.2d at 4. In making that review, we apply an objective 

standard of reasonableness in order to determine whether a 

litigant and his attorney, after reasonable inquiry, could have 

formed a reasonable belief that the pleading was warranted by 

existing law or a good faith argument for the extension, 

modification, or reversal of existing law. Nedrich v. Jones, 

245 Va. 465, 471-72, 429 S.E.2d 201, 204 (1993). 

 There can be no real dispute that under an objective 

standard of reasonableness the Governor’s allegation in his bill 

of complaint that “Hugh Finn is not in a persistent vegetative 

state” was not well grounded in fact after a reasonable inquiry 

into the facts available to the Governor and his counsel when 

the Governor’s lawsuit was filed. However, this allegation 

appears in a single-count pleading, in conjunction with the 

legal assertion in the pleading that “even if Hugh Finn [is] in 

a persistent vegetative state, the Respondents would not be 

25
authorized under the Act . . . to withhold or withdraw the 

administration of nutrition and/or hydration.” While the 

factual and legal viability of separate claims are individually 

assessed for sanction purposes, see Nedrich, 245 Va. at 472-79, 

429 S.E.2d at 205-07, this factual allegation was not essential 

to the Governor’s unitary legal theory concerning the asserted 

construction of Code § 54.1-2990 upon which, if correct, he 

could obtain the relief sought in his bill of complaint. 

 Accordingly, for purposes of the imposition of sanctions 

under Code § 8.01-271.1, we must consider whether there was a 

reasonable and good faith basis for the legal assertions in the 

Governor’s pleading. That consideration, as we stated in 

Nedrich, does not require that we decide that the Governor’s 

pleading was actually warranted by existing law but, rather, 

whether the Governor could have formed a reasonable belief that 

his action was warranted by existing law or a good faith 

argument for the extension, modification, or reversal of 

existing law. In other words, “the wisdom of hindsight should 

be avoided” in applying the appropriate objectively reasonable 

standard of review. Tullidge v. Board of Supervisors, 239 Va. 

611, 614, 319 S.E. 2d 288, 290 (1990). 

 While, as we have stated, the Governor is not above the 

law, the Governor is also not merely “any person” as 

26
contemplated by Code § 54.1-1986(E) when sanctions under Code 

§ 8.01-271.1 are at issue. Code § 2.1-49(B) provides: 

 In accordance with subsection A and pursuant to 

his duty to protect and preserve the general welfare 

of the citizens of the Commonwealth, the Governor may 

institute any action, suit, motion or other proceeding 

on behalf of its citizens, in the name of the 

Commonwealth acting in its capacity as parens patriae, 

where he shall have determined that existing legal 

procedures fail to adequately protect existing legal 

rights and interests of such citizens. 

 This statute, for purposes of our present considerations, 

is more than a standing statute. It clearly acknowledges the 

Governor’s duty, rather than a mere right, to protect the 

general welfare of all citizens of the Commonwealth. The trial 

court gave little significance to the duty of the Governor under 

this statute in exercising its discretion to impose sanctions in 

this case. We are of the opinion, however, that the duty placed 

upon the Governor is a highly significant factor to be 

considered in this and any case in which the appropriateness of 

sanctions against a Governor is at issue. No other litigant has 

the duty “to protect and preserve the general welfare of the 

citizens of the Commonwealth,” including in this case the legal 

rights and interests of Hugh Finn. With regard to the 

imposition of sanctions, we do not suggest that the Governor’s 

action is clothed with a dispositive presumption of 

reasonableness or good faith. Rather, we are of the opinion 

that when, as here, the Governor asserts a legal contention in 

27
the context of fulfilling the duty to protect the welfare of one 

or all the citizens of this Commonwealth acting in the capacity 

as parens patriae, any doubts about the good faith of that 

action should be resolved in favor of the Governor’s contention. 

It is only when the Governor’s legal contention is totally 

without merit that his action is appropriately sanctioned. See, 

Tullidge, 239 Va. at 614, 391 S.E.2d at 290.5

 It is undisputed that at the time the Governor filed his 

lawsuit he was advancing a novel legal theory in the sense that 

there was no prior authoritative construction of the Act. That 

authoritative construction was obtained by the Governor’s 

lawsuit upon appeal to this Court. Accordingly, we are of the 

opinion that the trial court erred in giving any weight to the 

promptness with which we rejected the Governor’s legal 

assertions of the proper construction of the Act. That decision 

addressed the merits of the Governor’s legal argument and had 

nothing to do with whether it was objectively reasonable for the 

Governor to have made that argument. Moreover, the immediacy 

 5

In this regard, however, we do not agree with the 

Governor’s assertion that the doctrine of separation of powers 

is implicated in this case on the theory that an imposition of 

sanctions would have a “chilling effect” on the exercise of 

executive discretion provided by Code § 2.1-49(B). The logical 

extension of that contention would be the conclusion that the 

Governor’s actions are not always required to be taken in good 

faith, as are the actions of any other litigant. Accordingly, 

we reject this contention. 

28
with which that decision was rendered was mandated by the 

circumstances of the case. 

 Continuing, we are further of the opinion that the 

Governor’s legal assertion that Code § 54.1-2990 prohibited the 

withdrawal of artificially administered hydration and nutrition 

in this case because such withdrawal would initiate the dying 

process rather than merely to permit the natural process of 

dying, while ultimately incorrect, was nevertheless not totally 

without merit. It cannot be said that this interpretation had 

no reasonable possibility of being judicially adopted at the 

time this assertion was made in the trial court. Thus, it 

cannot be said that the Governor’s assertion that a conflict 

existed between the provisions of Code § 54.1-2990 and Code 

§ 54.1-2986 lacked any objectively reasonable basis, and the 

trial court erred in holding otherwise. See Nedrich and 

Tullidge, supra. 

 Finally, the record amply demonstrates that the Governor 

was not alone in advancing the contention that the withdrawal of 

artificially administered hydration and nutrition as the sole 

form of life-sustaining medical treatment was not permitted 

under the Act. A significant level of public debate concerning 

the issue preceded the Governor taking action to intervene in 

the matter. While Michele Finn asserts that the Governor’s suit 

was motivated solely by some unidentified political objective, 

29
the record does not support that assertion. Moreover, assuming 

that the impetus for the Governor’s suit may have been 

“politically” motivated to some degree, nonetheless after 

reasonable inquiry the Governor could have formed the reasonable 

belief that his suit was warranted by existing law or a good 

faith argument that his legal assertions might be adopted by the 

court. 

 Accordingly, we hold that, under the circumstances of this 

case, the trial court abused its discretion in imposing 

compensatory sanctions against the Governor and the Commonwealth 

under Code § 8.01-271.1.6

CONCLUSION 

 For these reasons, we will reverse the judgment of the 

trial court and enter final judgment in favor of the Governor 

and the Commonwealth. 

Record No. 990779 — Reversed and final judgment. 

 Record No. 990796 — Dismissed. 

 6

In light of this holding, the issues raised in Michelle 

Finn’s appeal are now moot, and that appeal will be dismissed. 

30