(Posted April 12, 2018) April 12 is simply teeming with historical significance. Today is the anniversary of the opening shot of the Civil War, fired by a Virginian named Edmund Ruffin of Charles City County. In 1945, President Roosevelt died, just weeks short of victory in the European Theater in World War II. Yuri Gagarin became the first man in outer space on this date in 1961; twenty years to the day later, the United States launched the first space shuttle, Columbia. On a less favorable note, it’s the 24th anniversary of the first commercial spam – the e-mail type; not the processed-meat variety. It’s also the anniversary of the birth of a baseball player who’s the answer to a great trivia question: Who’s the only player-member of the Hall of Fame who did not complete the required ten years of play? (Hint: His initials are Addie Joss, and by one important metric, he’s the greatest pitcher of all time.)

We’ll have to await history’s verdict on whether the justices’ release of Feeney v. Feeney today will enter the annals of history, or become just another footnote. It’s a nine-page unanimous opinion that construes a provision in a will.

The testator expressly left to his widow all tangible personal property. The residuary clause gave everything to the widow, too, but it contained some restrictive language:

It is my intention that she use the assets of my estate to provide for her health and support, and to continue providing for the health, support and education of my son SEAN while he is a minor, and in matters past the age of eighteen (18) at her discretion; and that upon her death any remaining assets of this estate pass to him, IN TRUST, per stirpes.

Sean is one of the testator’s two sons from a previous marriage. After the widow probated the will, litigation ensued to construe the residuary clause: Did it give the widow fee-simple title to the residuary property, or just a life estate?

Acting on cross motions for summary judgment in which the parties agreed that the language was unambiguous, the trial court ruled in favor of the widow. There’s a presumption that a grant conveys as much of an estate as is possible, absent a clear expression of a limiting intent. The will didn’t say that the widow got only a life estate, to the court found that she possessed unlimited rights over the residuary property.

The justices today disagree, and reverse. Justice Mims’ opinion for the court notes that the testator specifically expected that his son would reap the benefit of the property upon the widow’s death. He also employed the term use when describing the widow’s rights to the property before her death. While this might seem counterintuitive to a layman, in legal terms that’s actually a restriction upon a person’s ability to do whatever he or she wishes with the property.

The sons – both of whom were appellants here – also asked the trial court for an award of attorney’s fees, based on the doctrine of judicial instructions. If you’ve never heard of that before, join the club; neither had I before seeing today’s opinion. That’s because the Supreme Court of Virginia has never yet embraced it. This doctrine holds that “[i]f judicial instructions are needed to interpret an ambiguous will or trust, all expenses of that litigation, including attorney’s fees, are to be paid by the estate.”

As it turns out, the sons’ argument falls victim to a single adjective. This doctrine only applies where a term is ambiguous, and everyone agreed below (and in the Supreme Court) that the will was unambiguous. The court accordingly declines to decide whether to recognize the judicial-instructions doctrine until a more suitable appeal comes along.





(Posted April 5, 2018) The Supreme Court today hands down three published opinions, including one of the last two remaining from appeals argued in 2017.


Criminal law

The Commonwealth is on the anterior side of the “v.” in Commonwealth v. Gregg, an appeal implicating the Double Jeopardy Clause. A jury convicted Gregg of common law involuntary manslaughter and statutory manslaughter in connection with a shooting during the repossession of a car.

The sole issue here is purely legal: Can you be convicted of both of those crimes for the same conduct, involving the same victim? The Court of Appeals held that you cannot. The prosecution got a writ, but today the justices unanimously affirm. The court notes that in some statutes, the legislature expresses an intention that “cumulative convictions” are permissible for the same conduct. In other statutes, the statute expresses the opposite directive.

Here, the statute proscribing involuntary manslaughter doesn’t express either preference. Evaluating the statute in light of the common-law crime, the court concludes:

A conviction under Code § 18.2-154, the legislature has determined, is “involuntary manslaughter,” and common law involuntary manslaughter also is “involuntary manslaughter.” Involuntary manslaughter under Code § 18.2-154 is the “same offence” as common law involuntary manslaughter. We therefore conclude that Gregg was twice convicted and sentenced in the same trial of the same offense …

The court remands the case to the trial court, where the prosecution may elect which conviction it prefers for sentencing; the other will be vacated.

The other criminal-law decision also tangentially involves the involuntary-manslaughter statute. In Bryant v. Commonwealth, the court addresses whether the prosecution must prove intent in a charge of unlawfully discharging a firearm within an occupied dwelling.

Justice Russell’s factual recitation is heartbreaking. Bryant became despondent after her mother died suddenly; it didn’t help that she also lost her job around the same time she lost her mother. She decided to end her life, and drove from her Maryland home to Harrisonburg with a gun, resolving to die by her own hand after seeing the mountains one last time.

Maryland law-enforcement authorities learned of the situation and managed to track her through her cell phone to a motel in Rockingham County. They contacted the Rockingham Sheriff, who sent deputies to the motel to try to prevent a needless death.

The deputies learned Bryant’s room number and went there to try to speak with her. They knocked on the door and called the room phone, but got no answer until Bryant, hearing activity outside “called out that they should not come in, that she had a gun and if they came in she would shoot herself. Her voice sounded ‘angry’ and ‘upset.’”

One of the deputies started conversing with Bryant, hoping to calm her. She replied that she was despondent and wanted the deputies to shoot her. Instead, the conversation continued and Bryant became calmer; the deputies may have begun to suspect that they were getting through to her.

The sharp report of a gunshot that followed must have demoralized them. After a moment, a deputy called out, “Are you okay?” Bryant’s voice replied that she was. The deputy persuaded her to put the gun on the bed, and then walk over to the window where they could see that she was unarmed. When she did so, they entered the room and found a bullet hole in the carpet. Bryant was essentially unharmed. The deputies transported her, not to jail, but to a hospital.

The local prosecutor sought and obtained an indictment for unlawful shooting in an occupied dwelling. Bryant’s defense was that she had decided not to harm herself, and the gun discharged accidentally when she tried to put it down. At trial, Bryant offered a jury instruction that required the prosecution to prove that she intended to discharge the weapon; that accidental discharge was not criminal. The trial court refused that instruction.

A jury considered the case based on a model jury instruction that contained no intent requirement. After deliberating, it returned a verdict of guilty, but tellingly imposed a fine of zero dollars, with no incarceration.

The Court of Appeals affirmed the conviction, and today the Supreme Court does the same. The justices find that nothing in the statute requires any specific intent. It provides two different punishments; one for malicious acts (that’s a Class 4 felony) and the other for unlawful acts (Class 6). Conviction for an unlawful act requires proof of mere criminal negligence; not the intent to fire a weapon. The justices therefore affirm the conviction, ruling that the trial court correctly refused Bryant’s proposed instruction.

In reading this opinion, I found myself feeling profound sympathy for Bryant, and relief for her in that she didn’t carry out her intentions. I sincerely admired and respected the deputies who put themselves in harm’s way to try to help another human being. I acknowledge that the justices made the right call on the law here, declining to read into the statute a requirement that the General Assembly didn’t place there.

But I was flatly astonished at the Rockingham Commonwealth’s Attorney for seeking an indictment here. This was a case that cried out for the exercise of prosecutorial discretion; there was no good reason to prosecute a despondent person who overcame a dreadful resolution to end her life, and harmed no one in the process. I don’t know the prosecutor’s situation, and indeed I don’t even know his or her name. Perhaps that person was facing reelection and wanted to establish a tough-on-crime reputation to impress the voters.

This was the wrong case in which to do it. And the jury saw that, too: instead of nullifying the statute with an acquittal, they imposed no consequences upon a technically guilty defendant. (I am aware that Bryant now has the civil disabilities of a convicted felon, but the jury had no control over that.) This woman needed to receive health care; not to feel the weight of the criminal-justice system. The jury knew what was right better than the politician did here.


The last opinion of the day is a highly complex real-property contract case, RECP IV WG Land Investors LLC v. Capital One Bank. It involves a dispute over density rights under the Fairfax County Comprehensive Plan. As you can imagine, when land becomes as valuable as it is in Fairfax, density is a valuable commodity.

RECP IV and Capital One are successor entities to those who contracted for the sale of 29 acres in an office park in Tysons Corner. The contract allocated a certain number of units called FAR (the formal name is floor area ratio) to the buyer, Capital One’s predecessor. The parties also set out their respective rights in the event the county allowed greater density n the future: Capital One would get the first 200,000 square feet, and the parties would divide anything over that.

Then the county did a remarkable thing, in conjunction with the opening of new Metro stations in Tysons: It lifted the cap on FAR for all properties within 1,600 feet of the stations. That radius included both Capital One’s property and that retained by RECP IV and its affiliates.

Capital One speedily took advantage of the new rule, applying for and receiving approval for another 3.8 million square feet of FAR. (The building is Capital One’s headquarters.) At that point RECP IV sued, seeking declaratory relief, an injunction, and damages.

I’m going to cut to the chase here, since the facts are much more complex than the skeletal outline I’ve given you, and the rulings depend heavily on those facts. I’ll mention instead the eventual ruling and a couple of key points of wider application:

  • The trial court ruled in favor of Capital One, finding that it was impossible to allocate excess FARs on a formula, because the numerator of the division is now infinity.
  • The Supreme Court affirms unanimously, largely on the same ground. The court holds that this is not a case for declaratory relief, since any claims that RECP IV owned had matured by the time it filed suit. It agrees that the county’s action in granting unlimited density to all affected properties renders performance of the future allocation impossible. (In essence: Both parties now have unlimited rights! What’s not to celebrate?)
  • Finally, the court affirms an award of $1.9 million in attorney’s fees, since Capital One prevailed on all three counts of the complaint, and now wins again on appeal. That ruling, in turn, will likely trigger an eventual fight over appellate attorney’s fees.





(Posted March 29, 2018) Today is one of the high holy days on the Emmert calendar. This afternoon and evening, all across America, we’ll hear one of the two sweetest two-word phrases in all of sports: “Play ball!” (The other is “Game Seven.”)

In case anyone has forgotten, the reigning National League champions play their home games in a place called Chavez Ravine. Here’s hoping that we’ll see late-October baseball there again this year.

Let’s dive into today’s sole opinion from the justices, VEPCO v. SCC. It explores the interplay between two fairly obscure subsections in a statute governing electricity purchases. In the end, this opinion is about a familiar subject: how to interpret a statute.

About ten years ago, the General Assembly passed the Virginia Electric Utility Regulation Act. The act included provisions for the purchase of electricity from companies other than the 800-pound energy gorilla in Virginia, VEPCO. As you can imagine, it is very, very expensive to start a power company, so we have something just short of a monopolistic framework within VEPCO’s service area. Unlike lemonade stands, there are very few companies that possess the wherewithal to jump into this market. But it’s not zero.

Two parallel provisions of the act, both in Code §56-577, are at the heart of this appeal. Subsection A(3) allows large customers – those who use five megawatts a year – to buy from competing electricity providers instead of from VEPCO. There’s a key limitation: if you move over to that competitor and decide that you’re unhappy, you have to give five years’ notice before switching back. This was likely designed to prevent bargain shopping on an annual basis, something that can play havoc with VEPCO’s planning.

The second subsection, A(5), allows anyone – not just the huge customers – to buy electricity from competing companies that generate all of their power from renewable sources. This is an unambiguous effort to stimulate growth in renewable energy. There is no five-year-notice provision when you want to switch back to VEPCO after test-driving one of these companies.

This appeal is about the intersection of these two subsections: What happens when a mega-consumer wants to buy from a green-energy company? Does that switch trigger the five-years-notice requirement, or not?

The litigation started with a declaratory-judgment petition, filed in the SCC by a green-energy company, Direct Energy Services. It sought a declaration that Direct Energy could sell electricity to customers of any size without the notification problem. VEPCO responded that the mega-customer provision was narrower, so it controlled over the broader conflicting language of subsection A(5). An advocacy group named Appalachian Voices chimed in on the side of Direct Energy.

The SCC considered the parties’ arguments over the meaning of the statute and sided with Direct Energy. It ruled that the two subsections don’t conflict at all; they deal with different circumstances. And since subsection A(3) says that it’s “subject to” A(5), that means that the latter provision controls where the two intersect.

VEPCO appealed, and as with all SCC appeals, it didn’t have to make a pit stop at writ panels; all SCC appeals are of-right. Today the justices unanimously affirm, basically on the reasoning of the SCC. The Supreme Court agrees that the language of the statute isn’t ambiguous and the two subsections don’t conflict with each other. I don’t have any figures on how many green-energy providers are selling how much juice to how many customers in Virginia, or how much this will affect VEPCO’s bottom line; but this is clearly a win for those who seek greater competition in this field.





(Posted December 29, 2017) While we still might get some ninth-inning rulings today from the Fourth Circuit, for the most part the appellate year has drawn to a close. Here are a few notes on things that occur to me as I look into the rear-view mirror.


Business indicators

For those of us who make our livings in the Supreme Court of Virginia, it’s important to keep an eye on statistics that show how busy things are at Ninth and Franklin. I won’t have a full 2017 statistical report for two or three months, but I can see a few things just by looking at the court’s website.

For example, by my count the justices handed down 111 merits decisions this year, including 79 published opinions and orders and 32 unpubs. For comparison, in 2016 there were 125. That’s a decline of about 11%.

The ink isn’t quite dry on the number of incoming cases, but my best guess is that new filings will be down by almost 100 from last year’s figure of 1,827. The appellate business is not proving to be a growth industry.


The fate of the criminal appeal

A long time ago, in a galaxy far, far away, I took a bar-exam review course in which the criminal-law segment was taught by an enormously popular U.Va. law professor named Charlie Whitebread. Near the end of that segment, he gave us advice on what to do if, despite our best efforts and analysis, we just weren’t sure what the correct answer was. In that event, he advised, “Remember: This is Virginia. [Here he slowed down his delivery when pronouncing the name of the state, so it came out as four distinct syllables.] The defendant is guilty.”

Against that backdrop, we have this year’s criminal-law appellate jurisprudence. In published decisions, the Supreme Court ruled in favor of the defendant twice and in favor of the Commonwealth 16 times. The prosecution fared slightly worse in unpublished orders, winning seven appeals and losing five. Overall, then, the defendant won 23% of the time and the prosecution won 77%.

You may be interested in a comparison of those figures with the appellants’ success rate in the Court of Appeals, where all criminal appeals except those involving death sentences must first stop. At this point, I’ve only looked at the CAV’s published decisions, not the much larger body of unpubs. But among published opinions in 2017, the CAV ruled in favor of the prosecution 36 times and for the defendant 10 times, giving the prosecution a nearly identical success rate of 78%.

Keep in mind that this count, in addition to being only for published decisions, involves only appeals where the CAV has granted a writ. The overwhelming majority of criminal appeals die a quick death at the petition stage, so the prosecution’s real success rate is likely far over 90%. (The same dynamic is true in the Supreme Court, where all criminal appeals other than death-sentence reviews go through the petition stage.)


Was there an “opinion of the year”?

In 2016, this answer was easy: The 800-pound gorilla that year was clearly Howell v. McAuliffe, a politically charged mandamus petition where the principal combatants were the Speaker of the House and the Governor. It also involved what appeared to me to be a decision made well in advance; for reasons I outlined in my essay last year, I’m convinced that the justices considered the case, debated it, voted, and wrote their opinions long before the oral argument date.

This year … not so much. We had significant rulings, of course, but nothing of the magnitude of Howell. That being said, here are a few notable rulings in my view:

Mayr v. Osborn (Feb. 2) and Allison v. Brown (Jul. 27) convince me that in Virginia, the tort of “medical battery” (this is my shorthand for it) as a parallel claim to medical malpractice is either dead or in hospice. In the past, many patients had claimed battery instead of filing a med-mal suit because the cost of hiring a medical expert made the med-mal route uneconomical.

Jones v. Commonwealth (Feb. 2) is the latest salvo in the ongoing battle between the state and federal courts over life-without-parole sentences for juveniles. I don’t think that war is over yet; I believe that SCOTUS will eventually decide whether the inclusion of a geriatric-release program like Virginia’s means that no inmate is actually serving life without the possibility of parole.

The Funny Guy v. Lecego (Feb. 16) is just scary. Where a plaintiff settles pending litigation by accepting a promise (such as a note) from the defendant to pay something in the future, and the defendant doesn’t pay, the plaintiff now has to sue on the note AND on the original cause of action. If there’s something wrong with the note, and the plaintiff didn’t plead and prove his original claim as well, that becomes res judicata against him.

Hilton v. Commonwealth (Apr. 13) and yesterday’s Pijor v. Commonwealth are this year’s entries in the stupid-criminal sweepstakes.

Daily Press v. OES (Jun. 29) is the latest in a growing string of losses for open-government advocates. The justices ruled that a FOIA request sent to the Executive Secretary of the Supreme Court, seeking aggregated records of trial-court litigation, was misdirected. The requester must instead file a gazillion individual FOIA requests to local clerks for nonaggregated data.

JIRC v. Bumgardner (Jul. 20) and JIRC v. Pomrenke (Nov. 27) gave us the rarity of two judicial-discipline decisions in one calendar year.

City of Danville v. Garrett (Aug. 31) is the third appeal I’ve seen in the past two years in which the Supreme Court decided an appeal over which it demonstrably did not have jurisdiction. The court reversed all three.

Old Dominion Committee v. SCC (Sep. 14) is actually a fair nominee for the opinion of the year. Here, the justices rejected an argument that a widely publicized deal between the legislature and two electric utilities violated separation-of-powers principles.

Levick v. McDougall (Nov. 2) analyzes a contorted fact pattern in which a happy couple got married – or did they? – even though they forgot to get a license. The back-and-forth between the majority and dissenting opinions made for fascinating reading.


Two last thoughts about may and shall

Yesterday we explored the Sexually Violent Predator Act decision in Rickman v. Commonwealth. I’ve pondered that and have a couple of additional thoughts.

The court’s focus was upon the difference between a mandatory and a directory use of the word shall in statutes. As yesterday’s essay points out, the boundary is whether the statute specifies the consequence of a failure to do what one “shall.” If the consequence appears in the statute, then it’s mandatory; if not, then it’s directory and the courts fashion an appropriate remedy.

In that context, let’s look at Rule 5:5(a), dealing with filing deadlines in the Supreme Court. That rule states that the deadlines for filing certain appellate documents, such as a notice of appeal, are mandatory. Those rules wouldn’t qualify as mandatory requirements in their own right, since none of them specify the consequence of missing the deadline. (Rule 5:9 comes closest, stating that “No appeal shall be allowed” unless you file the notice within 30 days.) The effect of Rule 5:5 is, by clear implication, to fix dismissal as the penalty for missing the deadline. And indeed, that’s the way the justices have always treated those rules; they sometimes say that the appellate court doesn’t have jurisdiction if you miss one.

If you want an example from the rules of a clearly mandatory requirement, check Rule 5:17(c), which specifies what a petition for appeal “must contain.” One of those requirements is a section entitled, “Assignments of Error.” That section goes on to state that “If the petition for appeal does not contain assignments of error, the petition shall be dismissed.” That’s what we call an unambiguous consequence.

The other thought was actually suggested by The Boss, when I told her about Rickman: “Gee, how about the Ten Commandments? Are they directory, too?” Not bad, Boss; you’re thinking like a lawyer. Sure enough, with the possible exception of the Third Commandment, there are no consequences specified there, either. Happily, this is not a matter that will occupy the justices’ minds anytime soon.

Thou shalt enjoy a happy, healthy, and prosperous 2018, my dear readers.