BOREAS SCRAMBLES APPELLATE COURTS

 

(Posted January 17, 2018) Two weeks ago, we here in Tidewater got clobbered by a paralyzing winter storm. Today it’s Richmond’s turn. The folks at The Weather Channel are calling this Winter Storm Inga, and it’s already disrupting life in the capital city. The Fourth Circuit initially notified the public (at 5:36 a.m. today) that it would be opening late, but two hours later, a second announcement stated that the court would be closed all day.

In state court, it isn’t quite that grim – at least for now. That handy-dandy messaging service that I told you about yesterday has notified its subscribers that the Supreme Court and Court of Appeals will be opening at 10:00 a.m.

Here’s how these closings affect you: If you have a filing that’s due today in any of the three appellate courts, you get a temporary reprieve. You can file tomorrow, assuming the courts open then. If you have a filing that’s due tomorrow or thereafter, this “snow day” won’t affect your deadline; the extension only applies to closings that occur on your deadline day.

One last key point: While most appellate filings go to the appellate clerk, not all of them do. Some filings – principally the notice of appeal, transcripts, and appeal bonds – must be filed with the trial court clerk. If you have a deadline of today to file one of those and your local clerk’s office is open, the closing in Richmond doesn’t affect your deadline. Thus, around here, at least some of the local courts in Tidewater are open, so if you have to file a notice of appeal today, get in your car NOW and drive it over there.

If you don’t know who Boreas is, here.

 


 

UPDATE ON RECENT APPELLATE DEVELOPMENTS

 

(Posted January 16, 2018) It’s time to take a look around the appellate landscape. There are plenty of things to report.

 

Solicitor General turnover

It was just four months ago that Virginia’s Solicitor General, Stuart Raphael, left the public sector to return to work at Hunton & Williams in Washington. His deputy, Trevor Cox, took over as Acting Solicitor General, though in my mind the adjective is superfluous; I regard Trevor as the current SG.

But not for long. He, too, has stated his intention to return to private practice. Attorney General Mark Herring has announced that U.Va. Law professor Toby Heytens will become the next Solicitor in late February. The delay is to permit Toby to argue a case currently calendared in the Supreme Court of the United States. I also understand that the current Assistant SG, Matt McGuire, will be promoted to Deputy.

The next Solicitor is well qualified for the job. Toby is a veteran of that other Office of the Solicitor General – the one in Washington – and I can tell you that there are no schnooks in that office. Toby is also – like his two predecessors – a very pleasant and engaging person in addition to being a fine lawyer. The Commonwealth will be well served.

Why the exodus? Each person has his or her own reasons for changing jobs, but the prime suspect, in my opinion, is the salary. The Solicitor’s boss, the AG, makes about $150,000 a year, and the Solicitor is probably a few thousand below that. If you go back a few years, that may have been a competitive salary range for a high-level lawyer, but it isn’t anymore. I’m glad that someone as qualified as Toby has agreed to step in, but I wonder how long he’ll stay. The private sector will eventually come a-callin’ for him.

 

… and in the Staff Attorney’s Office

The Staff Attorney for the Court of Appeals of Virginia, John Tucker, is stepping aside at the end of this month after a successful run of several years. To succeed him, the court has tapped Senior Assistant AG Alice Armstrong; she’ll step into the job February 1. Alice is the current chair of the Virginia Bar Association’s Appellate Practice Section, and is also both a terrific lawyer and a delightful person.

 

Date set for Virginia Appellate Summit

Roughly every three years, Virginia’s appellate bar and benches descend on Richmond for a day of CLE and camaraderie. This is one of those years; the summit will convene September 20, 2018 in Richmond. I’ll post more details when I get them, but if you have (or hope to cultivate) an appellate law practice in the Old Dominion, you need to set that date aside right now.

 

New messaging service

The Supreme Court of Virginia has established a digital subscription so you can be notified of developments from opinions to rule changes to argument dockets. The service is free. Here’s a link to the announcement, and here’s a link to the court system’s home page, where you can sign up in a dialogue box on the right side of the page.

This move is obviously and fiendishly calculated to devalue the utility of this website in your eyes, offering a free direct service to give you news that you’d probably otherwise read about here. It won’t work, despite the best efforts of those scoundrels at Ninth and Franklin. You see, the court’s writeups of its decisions don’t include practical advice, analysis of how the new decision fits into the existing body of caselaw, or – most important – appellate jokes. The court is notoriously humorless when discussing its own work product, for reasons you’ll appreciate.

In that vein, I’ll share a story that I treasure. Perhaps eight or ten years ago, I encountered one of the then-current justices at a reception in a convention. He mentioned to me that he really enjoyed reading my commentary. I thanked him for the compliment, of course, but the devil within me could not be constrained, and I added with a smile, “I bet I sometimes write what you’d like to write.” The only replies I got to this were a barely perceptible smile and a barely perceptible nod before he turned discreetly away.

It’s true, of course; when I’m reporting on a stupid-criminal story in an appeal, I can write something like, “And you’ll never guess what the rocket scientist did next.” The justices can’t do that. That’s why you still need to keep this site bookmarked. Hmph!

One other thing: The system may generate a few false-positive hits, at least in the short run. I subscribed last week when I heard about the service. Today I got a notice that the appeals-granted page has been updated. I’m always interested to see what’s behind new writs, so I followed the link and found … nothing. The latest writs were dated December 26. I believe this is a minor glitch that the court’s IT people will straighten out. The feature is still worth subscribing to, unless you’re only into this stuff for the appellate jokes.

 

A newsworthy day

I was in the Supreme Court last Wednesday, January 10, for an oral argument. That day, the court set aside several minutes at the beginning of the docket to recognize court employees who have achieved length-of-service milestones. Two of the honorees were friends of mine: Executive Secretary Karl Hade and State Law Librarian Gail Warren, both of who have completed 35 years with the court. Karl keeps the entire system running, and Gail is a priceless treasure for lawyers who need help finding that special cite.

During the ceremony, the chief justice mentioned a couple of eyebrow-raising statistics that may interest you. One is the number of employees of the Supreme Court: over 3,000. For those of you who’ve come to think of the court as seven Robes, plus a few dozen staffers, that number is dizzying. The chief also noted that the court processes roughly $750 million in financial transactions in a year.

 

Not the usual course of progression

Over the years, we’ve seen numerous trial judges move up to an appellate bench, but it seldom works the other way around. We may see such a rare event soon, as the president has nominated CAV Judge Rossie Alston to fill a vacancy in the Rocket Docket in Alexandria.

I mentioned above that there are usually several reasons why someone might change jobs, and for Judge Alston, a desire to return to the trial courtroom might play a part. But here, finances are an overwhelming consideration. A federal trial judge makes something on the order of $35-40K more per year than a CAV judge does. And who needs a 401k when you get paid for life?

 

 


 

SOME THOUGHTS ON THE CLOSE OF AN APPELLATE YEAR

 

(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.

 


 

ANALYSIS OF DECEMBER 28, 2017 SUPREME COURT OPINIONS

(Posted December 28, 2017) The Supreme Court of Virginia closes the books on 2017 by issuing four published opinions and one published order today.

 

Criminal law

We’ll start with an appeal that isn’t technically criminal: Shin v. Commonwealth is an appeal of an unreasonable refusal conviction. When Shin was stopped on suspicion of DUI, an officer asked him for a blood or breath sample. He refused, so the officer read him the implied-consent statute. No change. Charged with DUI-2nd and refusal, Shin was convicted in GDC and appealed to circuit.

In the circuit court, Shin did a surprising thing: He demanded a jury. Long ago, I prosecuted DUI cases, and in my experience, defense lawyers religiously avoided juries, fearing lengthy jail sentences that a judge wouldn’t suspend.

Surprise! The jury shook him loose on the DUI charge, but the judge convicted him of refusal. (The parties stipulated that Shin’s defense to the refusal charge presented no factual issues; only legal questions.) That sidelined Shin for a year – no driving. He decided to appeal, and the justices took the case.

Today, the court affirms, turning aside three legal challenges. The court finds that on this record, the Commonwealth didn’t impose an unconstitutional condition on the exercise of a privilege. This is, as far as I can see, the first SCV opinion to apply Birchfield v. North Dakota, last year’s SCOTUS decision requiring a warrant for a blood test (though not for a breath test). Shin focused on the wording of the Rule 5:11(e) written statement, which recites that the officer “demanded a blood and breath test.”

But the record also shows that the officer read Shin the implied-consent declaration, which says that a driver will submit to a breath test, and only to a blood test if no breath test is available. Given the ruling in Birchfield, that demand for a breath test doesn’t offend the constitution.

The court next rejects the contention that the implied-consent statute is void for vagueness. While Shin raises a facial challenge to the statute, the justices first determine that he has to clear the as-applied hurdle, or he doesn’t have standing to make the facial challenge. Shin’s only reason for refusing the breath test was because “he did not believe he was intoxicated” at the time. That’s no excuse; the SCV has previously swatted aside a driver’s subjective belief as a reason for refusing. The whole point of the test is to remove any doubt.

Finally, the justices reject Shin’s claim that the statute violates Virginia’s constitutional ban on self-incrimination. Shin argued that Virginia’s protection is broader than its federal counterpart in the fifth Amendment; but prior caselaw from SCOTUS renders that a dead end.

Next we’ll take up Pijor v. Commonwealth, which raises an intriguing legal issue. After a defendant has been acquitted of a crime, can he then be charged with lying in order to secure the acquittal?

Pijor was originally charged with stealing his ex-girlfriend’s dog, Ben. At trial, he insisted that he hadn’t taken the dog. But his lawyer asked the proverbial one question too many: “Have you seen the dog since September the 6th?” Pijor answered in the negative. The jury acquitted him.

But Pijor appears to be one of those people who just can’t let go. Five days after the acquittal, a guy looking very much like Pijor, walking a dog looking very much like Ben, walked by the ex’s house. The dog carried a Frisbee. Three weeks later, the same thing happened again. A bit later that day, the Frisbee struck the ex’s front door.

One week later, the ex and her then-current beau encountered the man and the dog, and confronted them. The ex called Ben’s name, and he appeared to recognize her. The man ran away, evidently dragging the dog with him. Several weeks later, a detective tracked Pijor down and arrested him. I’m happy to add that today’s opinion contains the welcome phrase that the arrest took place “with Ben in his car.”

Pijor responded to the ensuing perjury indictment by claiming that the Commonwealth could not now prosecute him because a jury had acquitted him of an essential element of the perjury charge. The judge didn’t bite on this approach, and neither did the Court of Appeals. Today the Supreme Court makes it unanimous.

Collateral estoppel in this context only applies when the jury necessarily resolved a particular factual issue in the defendant’s favor. But the larceny-trial jury returned a general verdict of acquittal. And in truth, Pijor wasn’t indicted for seeing the dog after the date of Ben’s disappearance; he was indicted for stealing Ben.

Thus the defense lawyer’s one-question-too-many tactic backfires. We don’t know whether Pijor was originally tried for grand or petty larceny; that depends on whether Ben’s value exceeded $200. But perjury is undoubtedly a felony. (Update 5:00 p.m.: A pal has pointed me to a statute that makes it a felony to steal a dog, regardless of the dog’s value. So while Pijor might have pleaded down to a misdemeanor, the original charge likely would have been a felony.)

 

Torts

You’ll find a wealth of goodies in Emerald Point, LLC v. Hawkins, involving claims of carbon monoxide poisoning brought by four tenants against their landlord. The tenants claimed that the furnace in their apartment unit was defective, causing the poisoning. After a trial, three of the tenants received awards of $200,000 each, while the fourth, more severely injured, got $3.5 million. The landlord got a writ, and today the justices reverse and remand the case for a new trial. In doing so, the Supreme Court makes these discrete rulings:

The trial court abused its discretion in allowing a plaintiff’s expert to stray from his designated opinions on two occasions. The witness was a doctor who testified about the tenants’ injuries, but added projections based on recent medical literature.

For this ruling, the justices draw on the John Crane v. Jones decision of several years ago. One notable difference is that the trial court in John Crane had rejected the undisclosed evidence, and the Supreme Court had found that to be within the judge’s discretion. Here, the trial court admitted the evidence, and the Supreme Court took the noticeably different step of finding that that decision was an abuse of discretion.

The effect of this ruling is a reversal for a retrial on all issues. But the justices go ahead and rule on other assignments, to resolve disputes that may arise again in that retrial.

The Supreme Court reverses a spoliation instruction that permitted, but did not require, the jury to draw an adverse inference from the landlord’s decision to discard the furnace a year after the injuries. The trial judge had found no sinister intent by the landlord – indeed, no suit was pending when the landlord threw the unit away. The question is whether a litigant has to show intentional loss or destruction of evidence, designed to hinder one’s adversary, in order to permit that instruction.

Here, the justices turn to federal law, specifically the standard for spoliation relief in Fed.R.Civ.P. 37(e)(2)(B). In a matter of first impression, the Supreme Court today adopts the reasoning of the commentary to that rule, and holds that in order to justify a spoliation instruction, “the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation.”

The court next agrees with the landlord that the trial court erroneously permitted collateral-issue evidence on liability, in the form of a City inspector who testified about the installation of a replacement furnace. The inspector had stated that the installation was improper because there was no work permit in place. (The City of Virginia Beach later issued the permit.) Because this didn’t relate to either causation of the tenants’ injuries or the amount of their damages, it bore no relation to the triable issues.

The tenants earn a victory in the next appellate issue. The justices defer to the trial court’s discretion in permitting a joint trial involving all four tenants. The landlord had argued that the fourth tenant’s severe injuries had unfairly tainted the trial, coloring the evidence in favor of the other three tenants.

There’s a caveat here, in the form of a footnote:

No issue has been raised in this action about the propriety of four personal injury plaintiffs joining as co-plaintiffs in a single lawsuit (as opposed to bringing four separate actions subject to consolidation in the discretion of the trial court). We therefore view the issue as to whether severance was required for three of the four claims that had otherwise been properly consolidated for hearing in a single action.

Accordingly, this is not carte blanche for a multi-plaintiff filing, since no one raised a fuss about the four suing together.

Finally, the justices reverse one other ruling below. The three less-injured tenants had each sued for $100,000 in compensatory damages and $350,000 in punitives. At the close of all the evidence, the trial court struck the punitive claims. The three tenants thereupon moved to increase their compensatory ad damnum to $450,000 each, and the trial court permitted that.

It is, in fact, permissible for a court to allow an amendment like this mid-trial; but not, the court rules today, after all the evidence is in. An amendment like this changes the playing field for the defendant, and he’s normally allowed a continuance to deal with it. That might allow him to generate some different evidence.

The justices accordingly reverse this ruling. But there’s an asterisk (at least a metaphorical one) appended to it. Because a reversal and remand means the parties start trial proceedings anew, the tenants are allowed to move now to amend their ad damnum upward, and presumably that motion would be granted. In the same vein, I foresee that they may amend the expert witness’s disclosure to facilitate the admission of the evidence described in the first issue above.

That means that on retrial, the tenants wouldn’t have the spoliation instruction and wouldn’t be allowed to call the City inspector, but otherwise they might get much of the same evidence in.

There’s a published order today, in Ahmed v. Commonwealth, a personal-injury claim filed by an inmate in a state prison. The inmate promptly followed internal grievance procedures, and upon exhausting those, filed a notice of claim within 12 months thereafter. He then filed suit, but the trial court sustained a plea of the statute of limitations. The Commonwealth convinced the judge that the special statute for these claims requires that the notice of claim be filed “within one year after such cause of action had accrued.”

The math works in the Commonwealth’s favor; the injury occurred on September 10, 2013, and he submitted the notice on September 22, 2014 – one year and 12 days later. Unfortunately, the Code works differently from the math. By statute, “an inmate must first exhaust administrative remedies” before filing suit, and the statute tolls the limitations period while the grievance process is underway. The justices accordingly send this case back to the trial court for further proceedings.

In addition to these published decisions, the justices also hand down an unpublished order in a medical-malpractice appeal, Chapple-Brooks v. Nguyen. The Supreme Court affirms a judgment for the defendant doctor. In doing so, it approves of the use of this model jury instruction, to which the patient had objected: “The fact that a doctor’s efforts on behalf of his patient were unsuccessful does not, by itself, establish negligence.” The justices reject the contentions that it constituted commentary on the evidence and that it was cumulative of other instructions. The court declines to consider the patient’s argument that the instruction incorrectly and incompletely states the law, because she had made no such objection at trial.

 

Sexually violent predators

Stop. Whoa. Do not skip forward to the next section simply because you don’t handle SVP litigation, because the opinion in Rickman v. Commonwealth contains a very interesting and important explanation of a vexing aspect of statutory interpretation. Besides, there is no next section; this is the last set of the day. You may as well stick around and learn.

Nonlawyers occasionally give us a hard time when they encounter judicial holdings to the effect, “in this situation, the use of shall actually means may …” Laymen understand readily the difference between a requirement and permission, and they find it odd that our decisions sometimes bend the meaning of ordinary words. This opinion will help you to understand the reason behind what looks like linguistic legerdemain.

The Commonwealth filed a civil-commitment petition against Rickman on August 28, 2015, shortly before he was due to be released after serving a lengthy prison term for sexually violent crimes. By statute, the circuit court was required to schedule – it plainly says “shall schedule” – a hearing on the petition within 90 days, or by November 26. Rickman’s lawyer and the assistant AG exchanged some e-mails to try to get a convenient date for everyone, including the Commonwealth’s expert. They eventually settled on January 8, 2016, 43 days after the end of the 90-day period.

In the e-mails, Rickman’s lawyer reserved the right to object to a hearing after the statutory period lapsed. She followed through on that, filing a motion to dismiss in early December. The court first granted the motion, but reconsidered and reinstated the case, ruling that the lawyer had effectively waived the argument by not raising the argument before the 90th day. The court then conducted the SVP hearing as scheduled and ordered the civil commitment.

In the Supreme Court, the case lands in the capable hands of Justice Kelsey, who begins his analysis with a section entitled, “The Mandatory-Directory Distinction.” With a mandatory requirement, shall really does mean shall; while in directory statutes, it gives the trial court discretion.

The basis of the distinction is whether the statute prescribes a remedy for violation of the requirement. For one easy example of a mandatory requirement, the Speedy Trial Act requires trial within a certain amount of time, and it states what happens if the time expires without a trial (or an agreed continuance or waiver by the defendant): The defendant is “forever discharged from prosecution for such offense.”

In contrast, directory statutes require a certain action, but don’t specify what must happen if someone blows it. In those instances, “where the consequences of not obeying [the requirement] in every particular are not prescribed, the courts must judicially determine them.”  You may be surprised to learn that under Virginia law, the use of shall “is generally construed as directory rather than mandatory.”

The result of this analysis is that the trial judge had the ability to fashion an appropriate remedy for not convening the hearing within 90 days. Rickman’s appeal presented only one surviving assignment of error: He asserted there that the only permissible remedy was dismissal of the SVP petition. To be sure, the trial court could have imposed that sanction, but its refusal to do so was not legal error. That means that the Supreme Court affirms, and Rickman’s civil commitment stands.

 


 

ANALYSIS OF DECEMBER 14, 2017 SUPREME COURT OPINIONS

 

(Posted December 14, 2017) The Supreme Court hands down four published opinions this morning, all in appeals argued in the November session.

 

Executions

The issue in Shifflett v. Latitude Properties, Inc. is whether a judgment creditor can seize his debtor’s income-tax refund to satisfy the judgment, where the debtor hasn’t filed a tax return yet.

The creditor here served writs of fieri facias on the debtor with a return date of January 6, 2016. The fifa sought the debtor’s 2015 state and federal tax refunds. The debtor replied that the refunds were, at that point, merely inchoate, since neither return had been filed. The trial court ruled in favor of the creditor.

The justices today reverse. The creditor based much of its argument on bankruptcy law, since the SCV has never decided this issue in the context of Virginia law. But Justice Powell, the author of today’s unanimous opinion, points out that bankruptcy law defines property of the estate expansively, while Virginia law defines property subject to levy narrowly. In this context, that means that while a debtor’s right to his refund is fixed for bankruptcy purposes on December 31 of the tax year, Virginia execution law still regards that refund as inchoate until the debtor files a tax return claiming it. And since Virginia law doesn’t permit execution on inchoate claims, there was nothing subject to the lien of the fifa.

 

Probate

There are a few narrowly defined ways under Virginia law to make, or to modify, a will. The justices take up a purported change to a formal will in Irving v. Divito.

I’ll warn you that when you start to read the opinion in this case, you may get a mistaken impression as to the issue. On page 1, Justice Mims tells us that the testator has made two inconsistent representations about whether a juvenile is or is not his natural son. One of those came in a property-settlement agreement during divorce proceedings; there, he stated that the child was not his.

But in his will, he listed the child as “My child born before the date of my Will.” That led me to expect a debate over whether a PSA is a document of equal dignity as a will.

Wrong, Steve; this appeal is about a handwritten codicil. The testator’s brother found a storage-unit key in the testator’s hotel room. In that unit, the brother found a briefcase containing the original will. The storage unit also contained a binder with various estate-planning documents. And here we have our legal controversy. On one of the dividers in that binder, the testator had written this:

11/17/03

I wish to remove Patrick named as my son entirely from this will – no benefits.

DS

There’s no question that the original will was valid; the only issue in this appeal is whether the handwritten note was a valid codicil. A trial court decided that it was not. The justices agree today, affirming in large part because in contrast to his other probate documents, where he signed his full name, the testator here used only his initials. That fact indicated to the trial court that the testator had not manifestly intended those initials to constitute a signature to authenticate the writing, which is one of the requirements for a valid probate document.

The court finds other support for this conclusion. The testator had instructed his brother that a local law firm had his will, but mentioned nothing about the handwritten notes. Justice Mims also turns to rules of grammar to buttress this conclusion, noting that the handwritten note says only that the testator “wish[ed] to remove Patrick” as his heir; not that he was actually doing so. Another document in the binder instructed the testator to consult an attorney if he wanted to make any changes to his will.

All of this falls short of the clear-and-convincing evidence necessary to establish that the testator intended these notes as a codicil.

 

Contract/fraud claims

The justices again explore the boundary between claims sounding in fraud and those arising in contract. The appeal is MCR Federal, LLC v. JB&A, Inc.

Both of the named companies operated in the (broadly defined) defense industry. JB&A undertook to market itself to potential buyers. MCR sent the seller a letter of intent, which the seller accepted. That letter called for the parties to negotiate the specific terms of a contract for the buyer to acquire the seller. It also prohibited the seller from marketing itself to other potential buyers while the parties were thus engaged in this process.

The parties signed a formal contract on May 5, 2011, calling for a closing date of May 31. The terms included a $42 million cash payment and (as is now fairly common in corporate acquisitions) the potential for nearly $20 million in additional payments if the acquired business met certain earnings thresholds. The buyer also warranted that there were no adverse suits, investigations, or government actions against it. The agreement finally required the buyer to reaffirm those warranties at closing, in something commonly called a “bringdown certificate.”

The warranties were accurate on May 5, but the trial court found that by the 31st, they were no longer accurate. In the intervening weeks, the buyer was bidding on an unrelated government contract with the Air Force. The Air Force inadvertently sent to the buyer details of a competitor’s bid for the same contract, and several persons within the company saw it. That eventually led the USAF to launch an investigation, and eventually to suspend the buyer – three months after the May 31 closing date – from bidding for two periods of time totaling about a month.

The newly acquired business failed to meet the earnings thresholds, so the buyer didn’t pay any part of the $20 million. The seller sued, claiming that the “clean” bringdown certificate produced at closing was both fraud and a breach of contract. After a lengthy bench trial, the circuit court entered judgment, based on both the fraud claim and the contract claim, for the seller. The court awarded $12 million plus interest, and about $2 million in attorney’s fees.

Today the justices focus primarily on the fraud claim, which was the basis of the fee award. The court finds that the seller’s claim based on the bringdown certificate sounded in contract, not in tort. The buyer had no duty outside of the May 5 contract to furnish that certificate, which after all was a reaffirmation of warranties. Since there was no proper tort claim, the justices reverse the fee award.

This ruling illustrates the SCV’s longstanding refusal to tolerate the mixing of tort and contract claims. It has repeatedly held that lawyers too often want to “turn every breach of contract into a tort,” presumably because of the ability to obtain greater damage awards, including in some cases punitive damages. (There was no punitive award here.) This part of today’s opinion focuses on the source-of-duty rule, which holds that if the only basis for a duty is a contract, then you can’t sue in tort.

The buyer wins this battle, but loses the war. The justices go on to affirm the large award of damages, finding that the trial court had a satisfactory evidentiary basis to fix damages based on the buyer’s internal valuation of the “asset” it had acquired in the purchase.

Given the unique nature of the damages evidence in this case, I suspect that this ruling will be cited more for the financially smaller ruling on the source of duty instead of the larger breach-of-contract award.

 

Criminal law

The Supreme Court looks into the effect of a defective search warrant today in Commonwealth v. Campbell.

You never know what’s goin’ on in the woods. In August 2014, Amherst Sheriff’s deputies got word of an impending “meth cook,” a process for the manufacture of methamphetamine, at property belonging to Campbell. The word came from a paid informant, who told the deputies that he was present and that Campbell and two associates were going to start the process shortly.

An investigator sent some law-enforcement officials to the scene to monitor it discreetly while he went to get a search warrant from a magistrate. The magistrate was satisfied with the investigator’s description, and he issued the warrant. As required by statute, the magistrate faxed a copy of the warrant, as part of a four-page package, to the local clerk of court. But as often happens in facsimile transmissions, one of the pages didn’t go through. It was a fairly important page, too: the warrant itself, describing “the basis for probable cause” and outlining the reason why the officer felt the information was credible.

Meanwhile, back at the meth lab, officers continued to observe activities that matched well the steps in meth manufacture. The informant, having excused himself from the scene, called the investigator and asked urgently, “Where y’all at? They’re starting to make this thing, man.” The investigator arrived and executed the warrant, finding plenty of inculpatory evidence; at this point, Campbell acquired the right to remain silent.

But his lawyer noted the incomplete package in the clerk’s office. That lawyer moved to suppress, citing that same statute, which also governs defective warrants. It requires that the warrant be filed within seven days, but it allows a grace period of up to 30 days. Failing that, evidence seized is inadmissible.

The trial court denied the motion, finding that even if the warrant were invalid, the search was justified based on exigent circumstances. (Among other exigencies, the manufacture of meth can produce toxic gases and even explosions.) The court convicted Campbell and gave him plenty of free room and board.

But the Court of Appeals thought otherwise. A panel of that court unanimously found that the language of the warrant statute is mandatory, and “rendered the fruits of the search categorically inadmissible as a matter of state law.” The Commonwealth sought and obtained a writ from the justices.

Today the Supreme Court unanimously reverses and reinstates the conviction. The court assumes without deciding that the warrant was defective, but notes that the statute deals only with the treatment of search warrants. It doesn’t address warrantless searches. And analyzing these circumstances, the justices agree with the trial court that exigent circumstances fully justified this search, regardless of a warrant.

Justice McCullough writes today’s opinion. He notes that there was undoubtedly probable cause and that there was a serious risk of disposal of evidence or flight by the participants. He also observes that the officers faced a situation that was imminently risky to the participants. In this regard, he offers a nice turn of phrase in a footnote, dispensing with a defense objection:

We reject Campbell’s argument that those present had assumed the risk of death or serious injury, and that this assumption of the risk defeats exigent circumstances. The exigency arising from the need to protect human life extends to the guilty as well as the innocent.

I’ll mention one other point here: This is the fifth time in 2017 that the Supreme Court has reinstated a criminal conviction after a prior reversal in the Court of Appeals. I don’t have statistics on prior years, but that figure seems to me high enough to be noteworthy.

But let’s not stop there; in addition to today’s four published opinions, the justices decide two appeals by unpublished order. These, too, are from the November session.

The first, Collins v. Commonwealth, involves convictions of grand larceny and statutory burglary arising out of a break-in of a Portsmouth home. The thief took several items, including three flat-screen televisions. Those three items were discarded on the ground next to a street adjacent to the victim’s home. Investigators dusted the items and got two hits on Collins’s fingerprints – ne from his left index finger and one from his left middle finger.

A circuit court used those prints to convict Collins of the break-in, but the Supreme Court today reverses. Fingerprint evidence alone is seldom enough to establish guilt; it generally requires some corroboration, and it must negate every reasonable hypothesis of innocence. Here, because there was no corresponding thumb print on the opposite side of the television, the evidence couldn’t exclude the possibility that Collins had merely bent down to touch TV units that some other thief had taken and discarded (presumably because of their bulk). The Supreme Court accordingly reverses and dismisses the indictments.

Another criminal appellant has similar, though more limited, success today: In Cilwa v. Commonwealth, the Court of Appeals dismissed an appeal as moot shortly before oral argument. The appellant had been ordered to serve 90 days in jail on a probation violation, and when the CAV learned that she had served that term and had been released, it found it unnecessary to determine the legality of her incarceration. (Note that the rule is different with an initial conviction. You always have an interest in clearing your name of being convicted of a crime.)

After the CAV’s decision, SCOTUS decided Nelson v. Colorado in April 2017. Nelson held that states cannot keep money paid by criminal defendants for things like fines and costs if the conviction is later invalidated. Since Cilwa had paid almost $850, she has a right to that money back if her appeal is successful. The justices accordingly remand the case to the CAV for a decision on the merits of the appeal.

One interesting side note: Nelson was a 6-1 decision (not counting Justice Alito’s separate concurrence). Justice Thomas alone believed that even if a conviction is reversed, a state has the right to keep any money the defendant paid before getting his conviction vacated – even if he’s fully exonerated: “Colorado is therefore not required to provide any process at all for the return of that money.” You read that correctly.