ANALYSIS OF DECEMBER 15, 2016 SUPREME COURT OPINIONS
(Posted December 15, 2016) In order to avoid the Christmas rush, the Supreme Court disposes of six cases today by published opinion, and three more by order. That’s quite a bounty for one day; let’s dig in.
There’s a short opinion today in McGrath v. Dockendorf, an action for recovery of an engagement ring after the planned union fell through. If you have even a passing familiarity with this website, you know that I always summarize the most relevant facts before exploring the issues and the holdings. But I find that I cannot improve on the concise, elegant summary penned by Justice McCullough:
On August 25, 2012, Ethan L. Dockendorf proposed to Julia V. McGrath. She accepted. He offered her a two-carat engagement ring worth approximately $26,000. In September 2013, after the relationship deteriorated, he broke off the engagement. The parties never married. Love yielded to litigation, and Dockendorf filed an action in detinue seeking, among other things, the return of the ring. In response, McGrath demurred to Dockendorf’s complaint, arguing that it was barred by Code § 8.01-220. Following a hearing, the trial court agreed with Dockendorf. The court found that the ring was a conditional gift. It also held that Code §8.01-220 did not bar the action in detinue for recovery of the ring. The court ordered McGrath to either return the ring within 30 days or it would enter judgment in the amount of $26,000 for Dockendorf. This appeal followed.
Of course, it’s unsurprising that Justice McCullough would write so well; after all, he’s a former appellate lawyer. Everyone knows that appellate lawyers make the best writers.
Having now alienated the other six justices, I’ll turn now to the court’s analysis. The court affirms today, noting that while actions for breach of promise to marry are no more, this is a different kind of proceeding. The former actions for breach allowed a variety of damage claims, and encouraged sensational (and perhaps sordid) evidence. The legislature acted in 1968 to bar those proceedings. But detinue seeks recovery of a specific chattel, and this one is based not on a breach of promise, but on the failure of a condition after a conditional gift.
That’s a separate type of action, previously recognized by the courts, and not expressly abrogated in that 1968 statute. That means the would-be husband can indeed sue.
There’s one interesting unresolved aspect of this dispute. The old conditional-gift jurisprudence involved situations where a fiancée received a ring and then broke off the engagement. In this situation, the fiancé gave her the ring, and then he broke it off. Isn’t that different? Maybe it is, but because that issue wasn’t the subject of an assignment of error, the court can’t reach it today. It will fall to another broken-hearted suitor to test that boundary.
Here’s an interesting puzzle: If a person is held pending criminal proceedings in one circuit, can a judge of a different circuit take up a habeas corpus challenge to the detention? We get the answer today in In re Vauter, which began in Alexandria and then abruptly jumped to Dinwiddie County.
The appeal centers on a capital-murder defendant named Murphy. During pretrial proceedings in Alexandria Circuit Court, Murphy assaulted his lawyer in open court. That led to a competency evaluation, and those tests showed that Murphy was not competent to stand trial. But the doctor who examined him found his condition to be treatable, so he was held in custody in a secure hospital in Dinwiddie County and given appropriate medical help.
As required by statute — see this link, and scroll down to subsection F — a judge conducted semiannual hearings to ascertain whether he was still incompetent. The statute describes four factors: hearings every six months, continued incompetency, medically appropriate treatment, and whether the inmate presents a danger to himself or others.
After seven years of this, Murphy’s lawyers moved the Alexandria Circuit Court to dismiss the indictment, claiming that the statute providing for essentially unlimited detention for treatment before prosecution was unconstitutional. That got him nowhere, as the trial court and the state and federal supreme courts refused relief.
After seven more years – fourteen years after the original indictment – Murphy again moved to dismiss. This time, the Commonwealth stipulated that he was “unrestorably incompetent” – that sounds pretty final to me – but the court still refused to release him, instead ordering continued treatment.
Murphy had had enough of Alexandria justice; he went instead to the Dinwiddie Circuit Court and filed a habeas petition. The respondent, the director of the hospital, filed a petition for a writ of prohibition, seeking to bar the Dinwiddie court from taking up a challenge to what the Alexandria judge was doing.
This is what appellate lawyers refer to as an OJ proceeding, invoking the Supreme Court’s original jurisdiction. This isn’t an appeal at all; the Supreme Court takes up the case in the first instance, and today it denies the requested writ. It finds that a statutory prohibition of consideration by a different court after conviction doesn’t apply here, because Murphy hasn’t been convicted of anything.
The effect of this is that the case goes back to Dinwiddie for adjudication on the merits. That doesn’t mean that Murphy will be released. It means that the Dinwiddie judge may agree or disagree with the Alexandria judge, in which case the aggrieved party can appeal on the merits, and this case will see the inside of the Supreme Court Building yet again.
Today is not a good day for criminal defendants in Virginia’s highest court. The court decides three criminal appeals, and the defendant loses every time. (You could plausibly contend that in the habeas case discussed above, Murphy got an interim win.)
The first one we’ll take up is Commonwealth v. Lambert, a conviction of a schoolteacher for simple assault of a student with Down’s Syndrome. Lambert was on bus duty one day when the student got off the bus, handed her book bag and coat to a teaching assistant, and bounded happily into the building. Lambert saw this, figured it was inappropriate (the teaching assistant felt otherwise, finding it perfectly normal), and went after the child. She confronted the student inside and told her to go back out and get her things. The student refused, so Lambert grabbed her by the arm and dragged her outside, despite the student’s crying and screaming in resistance.
Several months earlier, the teacher had received a disciplinary letter from the school board, instructing her to “please use your teaching assistants in the room when disciplining a child. You should not put your hands on a student unless it is for instruction or for the safety of a child.” At the ensuing assault bench trial, the court admitted this letter into evidence over Lambert’s objection.
This letter was crucial to the trial, because teachers are generally given a special exemption from assault-and-battery liability:
“Simple assault” or “assault and battery” shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control.
After hearing testimony from several other witnesses to the event, the trial judge convicted Lambert, finding that she wasn’t acting in the scope of her official capacity. That is, the school board had defined and constrained her duties by removing from her discretion the right to put her hands on a student.
The judge didn’t stop there. He independently ruled that, even without the limitations in the letter, he found Lambert’s actions to be an unreasonable response to the situation, and hence beyond the statutory exemption.
Lambert appealed and got a rare win in the Court of Appeals, one of only a handful of criminal reversals in that court in 2015. But the case wasn’t over; the Commonwealth appealed and the Supreme Court agreed to look into the matter.
Today the justices unanimously reverse the Court of Appeals and reinstate the conviction. Most of the parties’ appellate efforts were no doubt spent on what had been the CAV’s rationale: “In effect, [the trial court] substituted the School Board’s and Scott County’s standards of conduct for that specified by the General Assembly in the criminal statute to determine that appellant could not have been acting within her ‘official capacity.’”
But the justices take a different path. They focus instead on the trial court’s alternative holding, that even with the statutory exemption, this conduct still exceeded the bounds described in the statute. The CAV hadn’t addressed that, but the Supreme Court finds it dispositive.
In case you’re wondering, Lambert isn’t going to jail; the trial court sentenced her to 30 days but suspended all of that. I suspect that the real impetus for this appeal is the effect of a conviction upon her ability to continue to work as a teacher. On that issue, I can’t offer an informed opinion, but my suspicion is that she may have to find a new career now.
Next in line – at least, the way I’ve lined them up – is Johnson v. Commonwealth, which implicates the evolving legal issue of life sentences imposed on juvenile offenders. Johnson was convicted of first-degree murder arising out of a shooting death, and the circumstances of the crime aren’t relevant to the appeal. He was two weeks shy of 18 years old when he committed the crime. Before sentencing, he asked the judge to appoint a neuropsychologist to assist in his defense, explaining that such an expert could offer testimony relating to the effect of Johnson’s youth on his actions and hence his culpability.
The trial judge wouldn’t bite, noting that Johnson hadn’t demonstrated a particularized need for the help. This was more akin to a fishing expedition, where Johnson hoped the expert might come up with something helpful. The court proceeded to impose a life sentence for the murder charge, plus another 42 years for seven related felonies.
Johnson moved the court to reconsider, asserting that he shouldn’t receive a life sentence because of SCOTUS jurisprudence relating to juvenile offenders. Noting Virginia’s geriatric-release statute, he argued that he still didn’t have a meaningful opportunity for release after rehabilitation, as those SCOTUS cases mandate. The judge still said no, so Johnson was off to the Court of Appeals.
Which promptly said no, too. That court refused to even consider the neuropsych issue, but it granted a writ on the geriatric-release assignment. Affirming, it ruled that Johnson had not, in fact, received a life sentence without parole, so the SCOTUS decisions were immaterial.
This must have come as something of a dismaying surprise to Johnson, who held in his hand a sentencing order that said “Life in prison,” dated well after the time when Virginia abolished parole. He pressed on to the Supreme Court.
An effectively unanimous court affirms today. Justice Powell writes for the court, ruling that the trial judge’s analysis of the neuropsych issue was correct. In this context, I sense that a contrary holding would have entitled every juvenile defendant to that kind of expert – a significant change in established practice.
Justice Powell then turns to the life-without-parole issue, which is the heart of today’s ruling. In 2012, the US Supreme Court decided Miller v. Alabama, which held that (1) mandatory life sentences without the possibility of parole for juvenile offenders were unconstitutional, and (2) life-without-parole sentences, when not mandatory, could only be imposed if the court considered the “offender’s youth and attendant characteristics.”
The previous year, the SCV decided Angel v. Commonwealth, which had held that the availability of Virginia’s geriatric-release program meant that no life sentence was truly without parole. The next time the Virginia court considered this issue, earlier this year in Vasquez v. Commonwealth, the court reaffirmed its belief that Miller simply doesn’t apply here because of the statute. Justice Powell follows that holding here, concluding that because Miller is inapposite, it doesn’t help Johnson.
Senior Justice Millette files a concurring opinion. He summarily agrees on the neuropsych issue, but offers a nuanced view of the parole assignment. Justice Millette voted with the original majority in Angel, but he believes that the playing field is different now, in light of Miller and its very recent cousin, Montgomery v. Louisiana, decided earlier this year. Those cases, in his view, compel the court to revisit its stance in Angel and Vasquez.
The concurring opinion lays out the issue effectively, explaining how the mandatory considerations in SCOTUS jurisprudence are at odds with Virginia’s approach. Justice Millette emphasizes the holding that a state must afford a juvenile offender “some realistic opportunity to obtain release,” and Virginia’s rarely used geriatric release program may not be realistic. Justice Mims, who joins today’s majority, memorably warned of the same thing in his concurring opinion in Vasquez, noting that with only a 4% release rate, “it may become increasingly difficult to maintain that geriatric release as applied truly provides a ‘meaningful opportunity’ for release.” (See 291 Va. at 258 for the full passage.)
Justice Millette also points to SCOTUS’s admonition that while locking up some juveniles without parole is permissible, it should be applied only to “the rarest of children, those whose crimes reflect irreparable corruption.” Virginia’s geriatric-release program isn’t designed to take into consideration the factors that Miller and Montgomery mandate, so he feels it can’t validate modern life sentences. Here, it looks like we do things the other way around, where prisoners presumptively get no geriatric relief, and the rare case provides for release. That being said, Justice Powell correctly points out that we don’t have any data yet on geriatric release of juvenile offenders, since no juvenile sentenced after 1995 – the year when we abolished parole – has turned 60. That’ll start somewhere around 2038.
That being said, the concurrence notes that in this case, the trial court read and considered four articles submitted by the defense on “brain development and legal culpability.” That means that the judge did consider “youth and its attendant characteristics” in sentencing. That’s why this is a concurrence and not a dissent.
There are storm clouds on the appellate horizon. Last year, a US District Judge in Norfolk issued a written opinion containing language that I regarded as shocking, concluding that there was “no possibility that fairminded jurists could disagree” that Angel violated “clearly established federal law.” LeBlanc v. Mathena, 2015 US Dist. LEXIS 86090 at *47 (E.D.Va. 2015). Last month, a divided panel of the Fourth Circuit affirmed that judgment. 2016 US App. LEXIS 20041 (4th Cir. 2016). I have little doubt that the Commonwealth will seek either en banc rehearing or cert, so LeBlanc is not yet over. But while Justice Millette’s concurrence cites the Fourth’s decision, the majority simply ignores it. In this legal context, I don’t know how you can do that.
I’ll add my sense of things: I’ve been skeptical of the court’s reliance on geriatric-release ever since the court announced it in Angel. Especially in light of the later SCOTUS decisions, I’ve felt that Angel and now Vasquez have one foot on reversal and the other foot on a banana peel. LeBlanc now portends that very reversal, and I doubt there will be five votes the other way at One First Street, even if President-Elect Trump gets a conservative replacement for Justice Scalia. Montgomery was a 6-3 decision, with the chief justice and Justice Kennedy voting with the four more liberal members of the court. You’d have to flip three votes to come up with a contrary ruling, and that’s not going to happen in the near future.
Today’s final criminal decision is Rich v. Commonwealth, a conviction for an offense commonly known as DUI-maiming. Rich was driving at 2:20 a.m. when she struck a victim who was crossing Virginia Beach Boulevard here in my hometown. The victim was in a motorized wheelchair that had no lights or reflectors; he was, as a witness testified, operating it erratically.
That’s probably because he had a BAC at the time of .22, which, based on my experience as a onetime DUI prosecutor, is thoroughly snockered. Nevertheless, he was crossing the Boulevard when Rich ran into him, causing him permanent injuries. Rich, too, had a positive BAC, though not as elevated as the victim’s: she was a .13.
Rich made some incriminating statements to the police officer who investigated. She admitted to drinking, stated that she had only slept for two hours the previous night, and at the time she struck the victim, she was bending down and to the right so he could light a cigarette for her. She claimed that she never saw the wheelchair.
At a subsequent trial, Rich was convicted of DUI, and she didn’t appeal that. On the more serious maiming charge – that’s a felony – the prosecution had to prove conduct that is “so gross, wanton and culpable as to show a reckless or indifferent disregard for the safety of others.” The trial judge set out his findings as follows:
The court believes her conduct was gross, wanton, and culpable such as to show a disregard for human life.
In addition to the alcohol, the other factors that contributed to that gross, wanton, and culpable finding were sleep deprivation, were the distracted [sic], and failure to maintain a proper lookout. In and of itself the act of asking for a cigarette to be lit was reckless while driving an automobile.
The defendant further failed to brake, and failure [sic] to keep a proper lookout, as I indicated, in that another driver in the same place more or less successfully avoided the victim in this case.
You’ll note that when viewed in isolation, some of those circumstances don’t independently constitute “reckless or indifferent regard.” For example, numerous cigarette smokers will choke on the finding that asking your passenger for a light while driving is recklessness “in and of itself.”
But we don’t view these in isolation; taken together, the circumstances were enough to persuade first the trial court, then the Court of Appeals, and today the Supreme Court, that this conduct met the requirements for the felony conviction. That’s especially true where the appellate court views the evidence in the light most favorable to the prosecution.
On appeal, Rich had contended that there was no proof beyond a reasonable doubt of just how the accident happened. The victim’s intoxication may well have played a role, she argued, and the Commonwealth adduced no direct evidence – just an accident reconstruction – of how this all took place.
Importing the causation analysis of another statute to resolve this issue of first impression, the justices rule that in order to exculpate Rich, the victim’s intoxication (and the erratic operation of the wheelchair) would have to amount to a superseding cause, entirely breaking the chain of causation that included Rich’s actions. Because a reasonable factfinder could infer from the totality of the evidence how the collision happened and find fault with Rich’s actions, the conviction is affirmed.
Consider the plight of the poor Commissioner of the Revenue when it comes to assessing machinery and tools for local taxation. She has to slap a value on each item used in manufacturing in her county, and she has to do it every year. She also has to be careful not to assess anything at more than its fair market value. She could do that, I suppose, by keeping a medium-sized battalion of appraisers on her staff.
Or she could use a nice, easy rule of thumb, valuing everything at 25% of its purchase price, and figuring that not many people will complain about getting a 75% discount right off the bat. That’s the approach in Western Refining Yorktown v. York County, involving the local tax on a troubled refinery on the Peninsula. Today we find out if that’s kosher.
Western Refining operated a 658-acre site as a refinery and terminal starting in 2006, when it purchased the site. By then, the refinery was already 50 years old. It spent plenty of money – over $200 million – over the ensuing two years to upgrade the facility. And then 2008 hit.
You remember the recession, right? Businesses across the Commonwealth and across the nation suffered greatly as the economy suddenly contracted. Some regions, such as Northern Virginia and here in Tidewater, were insulated from the worst of the downturn, because those economies depend heavily upon static military and other government spending. (Our turn for pain came about three years later, when the budget sequester slashed military spending, sending the entire military industry into financial turmoil. But I digress.) The refining business was among the business sectors that struggled mightily starting in 2008.
Western Refining’s owners lost $60 million in a single year, starting in mid-2009. By September 2010, it was time to do something; the company decided to idle the refinery, lay off its employees, and wait for the market to rebound, it hoped by 2013.
Beginning in calendar 2012, the Commissioner granted Western Refining tax relief, acknowledging that the machinery and tools weren’t helping much. A statute exempts idle equipment from taxation, so this looks like a good fit. But that left a highly unprofitable 2010 year, and an idle 2011. The Commissioner wouldn’t budge on those years, insisting upon collecting seven figures’ worth of taxes for each year. Western Refining paid the taxes and sued to get them back.
Alas, that 2013 rebound never came. Western Refining faced a need for fast cash, so it sold the site for $180 million, well below its estimated full value. The purchaser eventually decided to sell off the refining equipment and devote the site to non-refining uses.
But Western Refining still had one asset: its legal claim for a tax refund. Alas, the trial judge saw it the Commissioner’s way, and affirmed the assessment. Today, a sharply divided Supreme Court affirms that holding.
Every tax appeal starts with a presumption of correctness. (But see below for another take on that.) It’s up to the taxpayer who files a challenge to establish in court that the Commissioner assessed property at more than its fair-market value. Four justices find that Western Refining didn’t do that, despite adducing testimony from an appraiser that the true value of the equipment was only about $164 million. The trial court found fault with that appraiser’s approach: appraising the entire site and then backing out all the non-machinery items (for example, the cost of land), with the resulting number reflecting the machinery’s value.
The majority today finds that skepticism healthy, analogizing it to “appraising an entire residential neighborhood and then deducting the value of all the other homes to arrive at a residual value for the one remaining home.” The court finds that first the Commissioner and then the trial court could have found that that method fell short of rebutting the Commissioner’s selected method.
Three justices dissent. Justice McClanahan writes for Justices Mims and Kelsey, and maintains that the original 25% method is pure speculation – an arbitrary figure plucked out of the air. If you don’t use a legitimate basis to make the assessment, you aren’t entitled to a presumption of correctness. The dissenters would remand the case for reevaluation, without any presumption of correctness.
There are other aspects to this decision – I’ve greatly truncated the discussion in a 31-page set of opinions – but one other minor point deserves mention in an appellate context. The chief justice files a very short concurring opinion, merely quoting two sentences from the majority and stopping there. (It’s the “you didn’t pass the threshold” finding.)
This is tantalizingly close to the “silent concurrence,” where a justice joins in the result but declines to commit himself to embrace a detailed rationale. A recent law-review article discusses this approach and calls it a legitimate means of “negative judicial agenda-setting,” a practice used far more in federal appellate courts than in the SCV. (If you want to check it out, see 17 J. Appellate Pract. & Proc. 141.) That might be a fair explanation for what happened here, especially given this opinion’s extraordinarily long incubation period: the parties argued the appeal back in the June session, and have waited over six months for today’s resolution.