ANALYSIS OF APRIL 29, 2008 CAV OPINIONS (AND MORE)

[Posted April 29, 2008] The Court of Appeals gives us two published opinions today, one of which was a major news item among the Tidewater bar last year. You’ll know why when you read today’s first entry.

Criminal law
With the renewed interest in legal proceedings against members of the bar (mostly sanctions, but also contempt), today’s decision in Scialdone v. Commonwealth is sure to attract attention on several fronts. It’s a contempt finding against two attorneys and an unfortunate law student who assisted them one summer. The facts are for too complex to recite fully here (they occupy 15 pages of 10-point type in today’s slip opinion), but the three were summarily convicted of contempt in conjunction with the offering into evidence of an evidently altered document in a criminal trial.

The trial judge found all three to be in contempt after none of them acknowledged sole responsibility for the document. Her ruling came after she instantly summoned the secretary for one of the lawyers to come to court to see what had happened. When the secretary was unable to account for an anomaly in the document, the judge sent her back to the office to try to re-create it. Ominously, the court directed a deputy sheriff to go along with her. Eventually, no satisfactory explanation was forthcoming, so all three men got slapped with $250 fines and ten days to serve. (One of the lawyers, who wasn’t even at the trial, got a deferred reporting date so he could get married and go on his honeymoon as previously scheduled. You can imagine the pall that must have cast over the trip.)

Today, a majority of the three-judge panel of the Court of Appeals reverses and remands for further proceedings, finding that the trial court improperly employed summary contempt procedures in the case. Summary procedures are available for direct contempt, which is contempt that occurs in the direct presence and vision of the court. In those cases, no trial to prove the facts is necessary, because the judge has just seen them. But if any aspect of the contemptuous circumstances occurs outside the judge’s presence and perception, then it’s indirect contempt, and you can’t use summary procedures; in those cases, the defendants have to be afforded full due process rights. Admittedly, the three defendants didn’t get certain due process rights, so once the court finds that this wasn’t direct contempt, the party’s over. The court remands for a retrial if the Commonwealth be so advised.

Now, then. It takes the majority 41 pages of small print, much of which is single-spaced quotations, to reach that conclusion. It takes Judge Kelsey, who dissents, just 2 ½ pages to rip that conclusion to shreds. And in my humble editorial view, he’s right; I cannot see this decision standing up to en banc review. Judge Kelsey notes that the defendants, who were all legal professionals (or nearly so, in the case of the law student), never asked the trial court to reverse the finding of contempt. At one point, they came close, mentioning the lack of due process afforded them and evidently presaging the majority’s ruling on the merits. But that passage came only in their motion to stay their jail sentence so they could appeal.

Last year, in Nusbaum v. Berlin, the Supreme Court held that a comparable argument was waived when a lawyer stated just this kind of due process challenge while assuring the trial court, “I’m not asking you at this time to change your ruling . . .” The Supreme Court held that, while the objection was stated with specificity, it was done only for appearance’s sake, in order to preserve the record for appeal, without actually asking the judge to find the defendant not guilty. A fair chunk of today’s opinion centers on the majority’s effort to distinguish that case from this one. And in my mind, the majority’s rationale isn’t persuasive; the trial judge in Nusbaum had just as much of an opportunity to consider the defendant’s arguments as this trial court had to consider these arguments.

Domestic relations
The lessons in Anonymous B v. Anonymous C relate as much to civil procedure as they do to child protection. Those lessons can be summarized fairly neatly:

• Where an initial administrative determination of child abuse is subsequently reversed within the administrative agency before the circuit court can adjudicate the case, that doesn’t deprive the court of the jurisdiction to decide the matter. The local DSS had made an early finding that a child’s father had abused her, but an internal review of that finding decided that it was impossible to determine whether the father really was committing abuse, or the mother was manipulating the child. A lower court had decided that the child was indeed abused, but it was impossible to say which parent was the wrongdoer. Since the statutes give the court the authority to determine what’s in the best interest of the child, the court doesn’t have to have DSS’s active participation in order to enable it to decide the case.
• When the fact of the DSS’s change of position is in evidence, it’s unnecessary to introduce a copy of the report by which that agency reported its change of heart. The court rules today that this evidence would have been cumulative, since everyone acknowledged what the agency had done.
• On a de novo hearing, the court can still take evidence despite the parties’ stipulation as to the facts. This was necessitated by the JDR court’s finding that it was impossible to know who the Bad Guy was; taking evidence was the only way the circuit court could have made a ruling. Implicit in this holding is the fact that the parties can’t deprive the court of the right to make its own determination of the facts.

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The Court of Appeals handed down four published opinions last week, on April 22, which I have not yet discussed because if my own briefing schedule. (Your humble scribe does have paying customers to take care of.) Here’s a brief summary of last week’s rulings:

Criminal law
Virginia law permits the prosecution to seek a nolle prosequi during the course of a case. But the Virginia statute makes it clear that this right is not, as some lawyers may think, the equivalent of a civil plaintiff’s right to a nonsuit: “Nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.” The key difference is that “good cause therefor” part, which emphasizes that there has to be a reason behind a request for a nolle prosequi (in contrast, a civil plaintiff has an absolute right to one nonsuit, and he doesn’t have to give a reason). That distinction plays a decisive role in Wright v. Commonwealth, in which the trial court had granted a nolle prosequi without any reason at all being given by the prosecutor.

The Commonwealth must articulate at least some reason for the request, the Court of Appeals rules, or else a nolle prosequi is impermissible. Here, the court invalidates Wright’s subsequent conviction. There is a procedural anomaly here because the Commonwealth reindicted her directly after the initial charge was withdrawn. That action runs afoul of a separate statute that requires a preliminary hearing if a defendant is arrested before being indicted. That is, if the Commonwealth secures an indictment and then arrests the defendant, then no preliminary hearing is required. But if the arrest comes first, then the defendant has the right to have a preliminary hearing (which can be waived) before being indicted. That didn’t happen here, so the conviction gets vacated. On remand, the Commonwealth may proceed again (the indictment is dismissed without prejudice), so it may eventually be an empty victory for Wright. But where there’s life, there’s hope, and Wright just got her presumption of innocence back.

The court also reverses a conviction in Tsai v. Commonwealth, albeit on far different grounds. A juvenile court had ordered Tsai to have no contact with her husband; in fact, she wasn’t allowed within a quarter mile of him. The record leaves us to speculate as to what kind of behavior led to such a drastic measure. But then, we can make an educated guess, as a year after the order was issued, she went straight to her husband’s house and started banging on the door, peristing for 15 minutes. Instead of answering it, the husband called the police. When the gendarmes arrived, they found her sitting in a car in his driveway, which was presumably less than ¼ mile long.

In the ensuing trial on charges of disobeying the order, the issue was whether Tsai had knowledge of the terms of the order. As a threshold matter, I’ll mention that Tsai has a substantial mountain to climb; the case was tried to a jury, which had been instructed to determine whether she had knowledge of the terms of the order. The jury answered that query in the affirmative, and every appellate lawyer knows how very hard it is to can-opener a factual finding in a jury verdict. But since I’ve ruined the suspense by already telling you how it comes out, I’ll go ahead and tell you how she wins.

The court rules that the Commonwealth “failed to prove notice of any kind.” While Tsai was unquestionably present in court on the day the no-contact order was litigated, there was no transcript of the hearing. That’s not exactly unusual for JDR court proceedings. But the record is silent on what, exactly, the juvenile judge said while she was present. According to the CAV’s opinion, the circuit court entered an order four months later, containing the ¼ mile language. A lawyer (who may or may not have been representing Tsai) endorsed the order, but Tsai didn’t. No one, apparently, served a copy of the order on Tsai.

Normally, notice to counsel of record is notice to the party represented, but not in this instance; existing caselaw provides that such an order must have been personally served on the defendant, or he must have had actual notice. Notice to one’s attorney alone is at best constructive notice, and that won’t suffice for a criminal conviction.

[Memo to self (and to my loyal readers): When in doubt, always get the parties, in addition to their counsel, to endorse the order, particularly if there is a future obligation to act. It’ll make enforcement proceedings so much easier.]

Domestic relations
There’s a simple lesson in Marvin v. Marvin, which centers on a child custody dispute. Upon their divorce, mother received legal and physical custody of her child; father got visitation rights. When father began to abuse those rights, mother sought a finding of contempt. After hearing the evidence, the trial court was happy to oblige her; the court issued a show cause order that required him to pay her legal fees. He didn’t pay, so the court set a second hearing for further gentle persuasive techniques, possibly involving the employment of an orange jumpsuit. But the day before that hearing, father filed a bankruptcy petition, listing mother as his creditor for the amount of the attorney’s fees. Father eventually got a discharge from the bankruptcy court. The purpose of this appeal was to determine whether the attorney’s fee award was, indeed, discharged.

(Occasional bankruptcy practitioners may wonder what a state court is doing making rulings on dischargeability. Isn’t that the bankruptcy court’s job? Well, not necessarily; it turns out that the two courts have concurrent jurisdiction to determine exceptions to discharge in cases like this. That means that the CAV has just as much say in whether husband can get away with this one.)

Under bankruptcy law, “domestic support obligations” are exempted from discharge. If this had been child support, then going to bankruptcy court would get husband exactly nowhere. But this was an award of attorney’s fees, not a plain-vanilla support order. The question for this appeal is whether such an award is “in the nature of support.” The court decides that it is, citing a number of decisions from other jurisdictions (mostly bankruptcy courts from across the country). Accordingly, all that effort by husband may have staved off his other creditors, but wife still gets her attorney’s fees.