[Posted December 15, 2009] The Court of Appeals of Virginia just keeps cranking out the published opinions. We get four more today, making 18 in just the last five weeks. One of today’s is an always-valuable en banc ruling.

Appellate jurisdiction
There’s a narrow but important distinction in Dep’t of Corrections v. Estep, relating to the question of which appellate court gets an appeal from a circuit court’s judgment implementing a hearing officer’s ruling in an administrative-law matter. Ordinarily admin-law appeals go to the CAV, and that’s no doubt what the Attorney General thought when he appealed this circuit court order implementing a hearing officer’s decision in an employee-grievance case.

But here’s the subtle distinction: The CAV gets appellate jurisdiction to review “a grievance hearing decision.” Well, you ask, isn’t that what we have here? No; what we have here is a circuit court’s order implementing a hearing officer’s decision. That, the court notes today, is akin to a proceeding to domesticate a foreign judgment. The court accordingly transfers the case to the Supreme Court under Code §8.01-677.1, because it doesn’t have appellate jurisdiction over this kind of order.

So what happens now? Unlike in the Court of Appeals, there is no appeal of right in the Supreme Court in this type of case, so the Department will have to petition the justices to take the case. The Supreme Court can refuse the petition, thus effectively ending the case in the employee’s favor; or it can grant a writ and decide the case on the merits; or (frustratingly for the litigants) it could reverse the determination that the CAV doesn’t have jurisdiction. In that event, the result would be a remand with the directive to the CAV to go ahead and decide the appeal. I get the impression that no one is rooting for that outcome.

Domestic relations
From time to time I’ll encounter a domestic relations case that makes me want to pick up the phone, call my wife, and reassure her of how very much I love her. Today’s decision in Sims v. Sims is one of those. The parties married in 1968, when the wife was 16 years old; she had a third-grade education. As she aged, she developed a number of debilitating health conditions. Eventually, in 2006, the spouses separated. Husband got a lawyer, but wife couldn’t afford one; she told husband she wanted half of everything. “Everything,” in this case, included husband’s pension and profit-sharing accounts.

Later, she apparently changed her mind, and told various folks (including husband’s lawyer) that all she wanted was a divorce. The lawyer was only too happy to comply with her wishes; he prepared a separation agreement that gave the marital residence (worth about $300K) to husband, with his assuming the $100K mortgage. Each party got a car, and wife got to keep what today’s opinion describes only as “ ‘yard sale’ personal property in her possession.” The agreement mentioned nothing about the pension or profit-sharing accounts. The semi-literate invalid wife duly came in and signed.

Doesn’t it always happen this way? A couple of weeks after she signed away whatever rights she had, she hired a lawyer, who must have been aghast when he read the agreement (especially the part at the end, containing wife’s signature). The lawyer moved the trial court to determine that the agreement was unconscionable.

At first, the trial court agreed, finding that there was enough of a gross disparity of the division of the marital assets. The court later reversed that decision on rehearing, noting that, as lopsided as this agreement was, wife still got something meaningful out of it, namely, indemnification from the mortgage.

On appeal, the CAV considers the question of unconscionability against the backdrop of caselaw interpreting that term. In order to establish unconscionability, the party with the burden of proof must show (1) the aforementioned gross disparity, and (2) “overreaching or oppressive influences.” This second prong, in turn, can be proved by oppressive behavior on the part of one spouse, or by weakness of mind or pecuniary necessities on the part of the other.

Today, the court rules that proof of gross disparity (and yes, we have a gross disparity here – husband got just about everything) plus pecuniary necessity (wife would probably have to start sleeping in her car) is enough to establish unconscionability. The court leaves for another day the question of the point at which disparity alone is sufficient to meet the burden. The court remands the case with a finding that the agreement is unconscionable, so wife will likely get a share of the retirement and profit-sharing assets, and maybe avoid a quick trip to the poorhouse.

If there’s a lesson here for practitioners, it’s one of compassion for your adversaries. No doubt the husband’s lawyer was very pleased to tell his client that wife had decided to throw in the towel and claim nothing at all except freedom from the marriage. But that doesn’t make it right, the CAV finds today. Lawyers preparing these agreements are smart enough to know not to put together an obviously-lopsided agreement like this, because no matter how earnestly the “oppressed” spouse is willing to waive, an agreement like that is just too easy a target for a late-hired attorney.

Perhaps there’s a related lesson here, in professionalism. Note that it’s not ethics; I don’t think that what the lawyer did was unethical. But a more professional approach, in which the lawyer built in something for the wife to avoid sending her straight into abject poverty, would have better served everyone involved, including the public. We as lawyers can earn the public’s respect better if we are seen as doing the right thing instead of just getting our clients the biggest unopposed victory we can manage.

Workers’ compensation
The full court decides Gordon v. Ford Motor Co. today. The issue is a fairly narrow one: Whether the tolling provision in Code §65.2-708(C) protects an employee who was given light-duty employment, on a sporadic basis, from the running of the statute of limitations.

The court decides today that it does, and the vote isn’t close; Judge McClanahan writes for eight other judges, while only Judge Haley dissents. (Judge Kelsey didn’t participate in the case.) The majority rules that the plain language of the tolling provision provides that payments for light-duty work are treated as compensation “for a period not exceeding twenty-four consecutive months.” The employee’s request for an award based on a change in condition thus survives, since it was filed within two years of the second anniversary of the employee’s last return to light-duty work.

Judge Haley would rule that the clock doesn’t restart every time the employer brings the employee back to duty; he perceives that the statute only gives the employee one tolling “gift,” and subsequent periods of work don’t renew the process.

Criminal law
Those who enjoy Blockburger analyses (for Double-Jeopardy claims) will want to check out Armstead v. Commonwealth, a conviction for shooting at an occupied vehicle. Armstead had already been convicted of assault for the same event, and he argued that that conviction barred his later prosecution on the vehicular-shooting charge.

The key to this analysis, as always, is whether either offense is a lesser-included offense of the other one. That depends, in turn, on whether each crime contains at least one element that the other does not. Here, the question is whether an offense of shooting at an occupied vehicle necessarily includes an intention to do bodily harm, or an intention to place the victim in fear of that harm (which are alternative elements of assault). The court finds today that it does not:

We find nothing to support the proposition that, in a prosecution for unlawful shooting at an occupied vehicle under Code § 18.2-154, the Commonwealth must prove that a defendant intended to inflict bodily harm or place the victim in fear or apprehension of bodily harm. This “intent requirement” is an essential element required to prove assault. Accordingly, assault is not a lesser-included offense in unlawful shooting at an occupied vehicle, for assault requires proof of a fact that unlawful shooting does not. Thus, appellant’s conviction for unlawful shooting was not barred by double jeopardy.