ANALYSIS OF DECEMBER 8, 2009 CAV OPINIONS[Posted December 8, 2009] The Court of Appeals, ever in the holiday spirit of giving, gives us four published opinions today
The court finds today that a circuit court cut things off a bit too abruptly in Clark v. VMRC. Clark and 22 others appealed a VMRC determination to issue a stormwater drainage permit to the City of Virginia Beach. The trial court agreed with the VMRC and the City that the appellants had not asserted that they had standing to appeal, so it dismissed the case, refusing to permit the appellants to amend. Refusing a timely first request to amend, as we have discussed before, is generally a sure-fire means of attracting appellate scrutiny, and that’s what happens here.
The trial court went astray, the court finds today, by inferring a requirement for a specific assertion of standing. The Administrative Process Act doesn’t contain one, and the Court of Appeals rules that courts aren’t free to amend the rules by adding language where it doesn’t already exist. In addition, the court improperly rejected the appellants’ request for an evidentiary hearing, once the issue of standing was raised. True, the appellants had the burden of showing that they were, indeed, entitled to sue; but the trial court was not empowered to cut them off from even attempting to prove such standing.
The appellants also challenged the trial court’s refusal to grant them summary judgment based on an extended delay by the VMRC in filing the record of the proceedings. The relevant rule requires the administrative agency to “prepare and certify the record as soon as possible after the notice of appeal and transcript or statement of testimony [are] filed” and to transmit that record to the trial court clerk as soon as it is thus certified. In this instance, the VMRC delayed by three months. That sure sounds like a long time, but the court rules today that it doesn’t violate any mandatory deadlines, so the appellants weren’t entitled to summary judgment. In any event, the record arrived four months before the hearing, so the appellants weren’t prejudiced.
The next appeal is Commonwealth v. Needham, an employee grievance from within the state prison system. Needham was terminated based on a finding of two violations of policy in dealing with an unruly inmate while employed at the Wallens Ridge State Prison in Big Stone Gap. He appealed to a circuit court, which reversed the termination, finding that Needham acted in self-defense.
Today, the CAV reverses and reinstates the termination, finding that the circuit court impermissibly revisited the hearing officer’s factual findings. Employee grievances are a peculiar form of admin-law appeal, in that the circuit court can only review the underlying ruling for conformity with law; not to determine, for example, if substantial evidence supports it, or to look for arbitrariness. Here, the trial court unquestionably considered competing stories about the event, and decided that Needham’s version was more believable. This circuit courts may not do, the Court of Appeals notes.
There’s one particularly interesting aspect of this appeal. An appellant in the circuit court must specify which law the appealed ruling contradicts. Needham specified, “the law of self-defense.” That isn’t good enough, the court rules today, because that aspect of the encounter wasn’t “within the scope of judicial review permitted by the State Grievance Procedure.”
Appellate lawyers will be interested to note that the court finds two venerable appellate provisions to be inapplicable to this kind of appeal. The employee unsuccessfully urged that the appeal should be dismissed because the appellant (that would be the Commonwealth) failed to comply with Rule 5A:8, and that it should alternatively be affirmed based on Code §8.01-680. The court finds that neither of these provisions applies to this kind of appeal.
The court takes up a self-incrimination issue in a welfare-fraud appeal in Rivera-Padilla v. Commonwealth. The appellant received Medicaid benefits from DSS for a couple of years, but eventually DSS began to suspect that she was working under an assumed name and not reporting the income. She was asked to come in to answer questions, and she did so. During the course of that interview, she admitted her creative employment arrangement, and that got her indicted.
Her attorney moved to suppress her statements in the fraud prosecution. The motion wasn’t based on the concept of a custodial interrogation, but on the contention that DSS had threatened to cut off her benefits if she didn’t answer the questions. A solid line of caselaw holds that the government can’t “compel” incriminating statements by punishing a person for exercising her Fifth-Amendment rights.
The CAV doesn’t bite on this one. It holds today that this isn’t a situation in which the appellant was threatened with punishment – or even the denial of benefits – in the event she clammed up. That’s because, as the court notes today, “DSS neither conditioned [appellant’s] eligibility to obtain benefits on a waiver of her Fifth Amendment rights nor threatened to disqualify her from seeking benefits if she did not rely on the privilege.” Accordingly, this was a truly-volunteered statement, and the trial court properly rejected the motion to quash.
The court makes several rulings on various issues in Duva v. Duva, but I suspect that the one that got this one published is equitable distribution. The parties were married for a bit over ten years before the wife filed for divorce. The husband had bought a house in Rhode Island five months before the marriage. After the wedding, the mortgage payments on that property were paid by marital funds. Since husband couldn’t recall how much equity (if any) he amassed before the wedding, the trial court treated the property as marital.
The CAV reverses this ruling today, and directs the trial court to evaluate it as hybrid property. In doing so, it disregards a holding in a 1999 case (Moran v. Moran) that had suggested that the acquisition of a parcel was a process, not a single event. The court classifies that statement as dicta, holding today that the acquisition of property is fixed by the date on which title is acquired. And since property acquires its status (as marital or separate – hybrid status can only come later) on the date of acquisition, that makes the Rhode Island house separate, at least initially.
On remand, the wife will have to trace marital funds to equity in the property in order to retain a claim that the house is at least partially marital. This ruling may, I suspect, eventually become a serious complication of the source-of-funds rule that’s so familiar to domestic practitioners across the Commonwealth. The rule still has its purpose – as “a vehicle to determine whether property has been transmuted into hybrid property” – but the concept of a delayed acquisition date appears to be history now.