ANALYSIS OF DECEMBER 13, 2018 SUPREME COURT OPINIONS

(Posted December 13, 2018) The Supreme Court continues to clear its collective desk apace, releasing five published opinions this morning.

Name changes

The court returns to recently plowed turf in Leonard v. Commonwealth, a petition filed by a transgender federal prisoner seeking a name change to reflect a preferred gender.

The trial court reviewed the petition and forwarded it to the local Commonwealth’s Attorney, as provided by statute. That official filed an opposition, citing two key factors: (1) The inmate had been convicted of sex offenses and would have to register as a sex offender; and (2) the inmate’s only nexus with Virginia was temporary residence to serve part of a criminal sentence. The inmate was scheduled to be returned to Missouri in three more years, so (the Commonwealth asserted) that state has a greater stake in the name-change petition than does Virginia.

The judge reviewed the response and issued an order four days later, without convening a hearing. The order denied the petition in a form order, ruling that “good cause does not exist for consideration of the petition.” A panel of justices agreed to take a look.

The Supreme Court today unanimously reverses and sends the case back for reconsideration. The statutory framework provides for an initial review for legal sufficiency, which the court today analogizes to a demurrer. If the petition is in good form and sets forth a claim for which a name change can be granted, the next step is to send the petition to the local prosecutor, who may reply, after which the court must conduct an evidentiary hearing.

The trial court skipped that last step. It issued a summary ruling without “receiving and considering evidence,” and the justices rule that a court can’t adopt that procedure. On remand, the trial court will still have the discretion to grant or deny the petition after considering all of the facts; but it can’t short-circuit the litigation in this way.

Land use

Dirt lawyers, rejoice; we have another decision on nonconforming uses. The justices today take up Fairfax County v. Cohn, involving the use of two accessory structures as additional residential units.

The subject property is a home in McLean. The property includes a main residential building, a detached garage, and something called a Garden House – evidently a conservatory or greenhouse. The property owner built the house in 1962, the garage the next year, and the Garden House in 1972.

When the county granted building permits for the two accessory structures, it expressly provided that “there are no kitchens or bathrooms approved” for each structure. That didn’t stop the owner, who went ahead and installed electric wiring, plumbing, septic tanks, and kitchens, turning each facility into a separate dwelling unit. The owner rented out all three structures to different tenants.

The tenant of the main house bought the entire property in 1998. For a generation, the county did nothing to challenge the use of the property. Even after a neighborhood survey in 2008 revealed this use, the county did nothing.

That ended in August 2016, when the Zoning Administrator notified the owner of a violation, directing the removal of the electrical and plumbing facilities and the kitchens. The ZA wanted to trim the number of dwellings back to one, to comply with the zoning ordinance.

The owner sought relief from the BZA, but got nowhere. A trip to circuit court was more fruitful; the court ruled that since the owner had been paying taxes on the structures for more than 15 years, so by statute, the continued use was nonconforming but legal.

The justices today reverse and enter final judgment for the county. They note that this isn’t a matter of a lawful nonconforming use; that’s what happens when a lawful use becomes nonconforming due to a subsequent change in zoning. This use was never legal, and the passage of time can’t change that.

As for that 15-year tax statute, Justice Goodwyn points out for a unanimous court that that protects structures, not uses. The buildings can stay, but they can’t be used as residential units anymore.

Criminal law

There are three victims in Smith v. Commonwealth, involving a conviction of voluntary manslaughter. One is the homicide victim. The other two are his two young daughters. They’re victims not only because they lost their father, but because their mother is now behind bars for his slaying.

There’s no doubt that Smith shot and killed her husband. She fired a single bullet at him from a few feet away, and he died at the scene. The real issue in this case is where in the spectrum that runs from first-degree murder down to involuntary manslaughter her conduct fell.

The couple were moving furniture out of an upstairs bedroom in their Spotsylvania County home, so they could replace the flooring. One item in that room was a gun safe. During this process, the victim invited his wife to go and get her “pea-shooter,” a small handgun, so it they could place it in the safe. He instructed her, “Don’t forget to un-cock it.”

According to Smith, she went downstairs, removed the gun’s magazine, and ejected a bullet from the gun’s chamber. She then returned upstairs, where her husband asked if she had done as he instructed. She replied, “See, it’s empty,” pointed the gun toward him, and pulled the trigger, presumably to show him that she knew how to ensure that a handgun is unloaded. You know what happened next.

The Commonwealth adduced evidence that the couple had been arguing before Smith went downstairs. (Adding to this overall tragedy, some of this evidence came from the young girls.) That and some inconsistencies in Smith’s story led the prosecutor to seek a conviction for first-degree murder. The parties agreed to what today’s opinion calls a “waterfall” instruction, one that outlines the elements of first- and second-degree murder, plus voluntary and involuntary manslaughter. The jury returned a verdict of guilty on the voluntary-manslaughter charge.

Smith filed a post-trial motion, asking the court to set the verdict aside because the evidence didn’t support the charge. The court noted that Smith had agreed to the jury instruction. Smith replied that she found no fault with the instruction; just the quantum of evidence to support the verdict. The court denied the motion and sent Smith to prison.

The Court of Appeals affirmed the conviction, finding that the evidence would actually have been sufficient to support the higher charge of second-degree murder. The Supreme Court affirms today, though on different grounds.

One of Smith’s primary arguments here is that words alone “are not enough for heat of passion,” the key demarcation between murder and voluntary manslaughter. The justices decline to address this because, while the doctrine is well-established in Virginia law, Smith never sought an instruction to so inform the jury. It proceeds instead to a thoroughly unsurprising review for sufficiency, and equally unsurprisingly concludes that a reasonable jury could have credited the evidence of heat of passion.

The chief justice writes today’s opinion for the court. Justice Kelsey writes separately, not to dissent – he joins the majority opinion fully – but to underscore a point made by his former colleague in the Court of Appeals, Judge Humphreys. He notes that this case doesn’t provide a vehicle to consider whether “‘heat of passion upon reasonable provocation’ has evolved into the only currently legally recognized factor in the Commonwealth that negates malice,” but the next case might give the court that chance. The fact that he’s writing this at all telegraphs his skepticism of that view. The fact that Justices McClanahan and McCullough join him gives that issue added importance.

What’s next for Smith? Given the Supreme Court’s recognition today of the words-alone doctrine, my best guess is a habeas petition under Strickland, asserting that her trial lawyer should have offered this instruction. That might get her a new trial.

Staying in the criminal-law arena, we’ll take the long step down from homicide to bad-check larceny. That leads us to McGinnis v. Commonwealth. From the procedure-geek’s standpoint, this is the opinion of the day, as it (1) discusses at length an important, unresolved preservation/pleading issue, and (2) answers a first-impression question about a 1978 amendment to the bad-check law.

McGinnis operated what I take to be a booking agency that dealt with hotels on behalf of groups attending events. His company’s deal with a certain hotel in Lynchburg called for his company to collect money from his customers and then pay the hotel. In 2015, he sent to the hotel three company checks as payment for events; each of those checks came back unpaid for insufficient funds.

The hotel wrote to McGinnis, asking about payment of the amount due, roughly $4,500. But by then, McGinnis had folded the company. Since that made civil collection impractical, the hotel went to the police. McGinnis soon thereafter found himself on the business end of an indictment charging three felony counts of larceny by worthless check.

After a bench trial, the circuit court convicted McGinnis and sentenced him to nine years in prison, with 6½ years suspended. (Side note: I don’t know who the judge was, but I infer that he got up on the wrong side of the bed on the trial date. Nine years in prison for a $4,500 debt? I know that most of it was suspended, but unless McGinnis had frequent-flier miles in criminal court, that sticks out in my mind as an unusually harsh sentence – and I say that as a former local prosecutor. End of digression.) On the twentieth day after the sentencing order, when jurisdictional control over the case is slipping out of the circuit court’s hands, McGinnis filed a motion to reconsider, invoking the 1978 amendment to the bad-check statute, providing: “Any person … delivering any such check … in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein.” The motion pointed out that the checks were drawn for payment of an antecedent debt, so he couldn’t be guilty.

My tongue-in-cheek criticism of the trial court above must give way to what happened next: The court summarily entered an order denying the motion. Appellate lawyers know well that the judge didn’t have to do that. He could have ignored it, knowing that an unresolved post-judgment motion effectively vanishes from the appellate radar after 21 days. I commend his honor for going the extra mile to enable McGinnis to present this issue on appeal.

Almost. There’s one fly in McGinnis’s ointment: He himself signed and filed the motion; his trial counsel didn’t. The rules allow a lawyer in the case or an unrepresented party to appear as counsel of record. They say nothing about pro se filings by someone who isn’t actually pro se.

This produces some fascinating but ultimately disappointing analysis of what happens when a represented party bypasses his own lawyer. It’s disappointing not because of how the justices resolve it, but because they don’t. Today, the court notes that the statute governing signing of pleadings doesn’t address this situation, and the court doesn’t feel at liberty to fill in the gap. In a footnote, the court today expressly invited the General Assembly to do that, noting that “the circumstances of this case are likely to recur in the future ….”

So how does the court resolve the case? It assumes without deciding that the “quasi-pro-se” filing is legit, and addresses the merits. Doing that produces an affirmance, as the court rules that the added language adds to, rather than constrains, the coverage of the statute.

Before 1978, the statute criminalized delivering a bad check “with intent to defraud.” A 1977 Supreme Court decision had held that one could not be convicted for delivering a bad check for services, because one cold not under the common law steal services. (You can’t take them and carry them away.) The first-impression ruling of today’s opinion is that the statute, passed in response to that decision, added greater breadth to the statute, rather than limiting its previous reach to present consideration.

The final case of the day is a petition for a writ of actual innocence, styled In re Phillips. In 1991, Phillips was convicted of particularly egregious felonies in connection with the forcible rape and sodomy of a ten-year-old girl. I found the process of reading the facts to be painful, as I’m the father of a daughter who happily never had her innocence stolen in this way.

Phillips filed an actual-innocence petition in 2005, but the Supreme Court dismissed it. He tried again in this case, asserting that DNA evidence tested by a private laboratory was inconsistent with his guilt.

While the case was pending, the justices handed down an opinion in another such case, ruling that the court cannot grant these petitions based on analysis by private labs; only testing by the Virginia Department of Forensic Sciences. Perhaps swallowing hard at the impending doom of his petition, Phillips moved to nonsuit it, presumably to afford him an opportunity to send the private results to DFS for confirmation.

The justices today first rule that an actual-innocence petition is criminal in nature, so the petitioner can’t nonsuit it. It’s in Title 19.2, which governs criminal procedure, and it employs a burden of proof used in criminal, not civil, cases. On the merits, the court predictably applies its relatively new ruling to dismiss this petition, since Phillips doesn’t have the right lab evidence.