[Posted February 29, 2008] The Supreme Court today rules that the General Assembly’s delegation last year of taxing power to regional transportation authorities is unconstitutional. Today’s opinion deals directly with the Northern Virginia authority, but should apply with equal force to the one in Tidewater.

In another case of note, the court rules that physicians at the University of Virginia’s hospital are not immune from medical malpractice liability. The latter ruling resolves conflicting rulings from two judges in Charlottesville, who split on the issue.


“Accordingly, we hold that the provisions of Chapter 896 permitting NVTA to impose the regional taxes and fees are invalid because they violate the Constitution.” This sentence is the crescendo of today’s ruling in Marshall v. Northern Virginia Transportation Authority, and the death knell for one of the centerpieces of the General Assembly’s 2007 transportation package.

Last year, in an effort to raise badly needed funds in a political climate that evidently did not permit a general tax increase, the legislature passed several provisions to provide alternative streams of revenue. One of those, the stiff fees imposed on Virginia drivers who commit serious vehicular offenses, is reportedly facing repeal in this year’s session. But another one falls today; the legislation had given to regional transportation authorities the right to impose and collect taxes and fees for use in badly needed transportation projects. Northern Virginia and Tidewater authorities received just such a grant of authority, and last year, the Northern Virginia authority imposed the taxes after conducting public hearings.

In this litigation, the County of Loudoun and several affected citizens challenged the taxes and fees as unconstitutional. A judge in Arlington sided with the authority (which by then had been joined by several statewide dignitaries, including the Governor and the Speaker of the House). Today, on appeal, the Supreme Court rejects one of the challenges, but agrees with the other and strikes down this portion of the law.

In the first challenge, the law’s opponents contended that the bill violated a seldom-cited constitutional provision that requires that bills must not be multifarious, and that the purpose be fairly discernable from the title. The court finds that while some of the provisions in the bill were somewhat tenuously related to transportation issues in Northern Virginia, there was enough of a nexus that the bill did not violate Article IV, section 12.

The second challenge, though, proves fatal. In a meticulous line of reasoning, the court notes that only the General Assembly has the power to impose taxes; that that power can be delegated only to certain elected bodies (for example, a city); and that the authority is not one of those bodies. While most of the members of the Northern Virginia authority are, in fact elected officials (for example, the mayors of all affected cities, and the chairmen of the counties’ boards of supervisors), the board as a whole isn’t elected. And the plain effect of the statutory framework divests the legislature of the right to decide whether the taxes will be imposed or not; it clearly left that decision wholly up to the authority. The delegation is thus declared to be unconstitutional, and void.

A couple of other points. First, if you’re wondering whether a declaration like this is rare, the answer is yes. Because of the separation of powers doctrine, the courts afford a great deal of deference to the legislature in terms of the constitutionality of laws. Today’s opinion recites the background of that deference in detail, and includes an acknowledgement that the wisdom of a particular enactment is a matter left exclusively to the General Assembly. The legislature decides what should be done; the court decides only whether that may be done. Second, in case you’re wondering which unfortunate member of the court gets to deliver this unwelcome news across Ninth Street to the General Assembly, it’s the court’s newest member, Justice Goodwyn. While I seriously doubt that there will be any repercussions moving in the other direction, a part of me wonders whether, by virtue of his “juniority,” he was chosen to be the bearer of these tidings. (No, not really; the assignment of opinion writing among the justices is done at random. And in any event, the decision is unanimous.)

Finally, I’ll add that I watched the oral argument in this case in January, and came away from that discussion with the clear impression that the constitutionality of the provision would be a major problem for the authority and the Commonwealth. I didn’t have an oportunity to see the briefs, so I didn’t bet my mortgage on the outcome, but given what I saw last month, I would have been very surprised if this case had come out differently today. And if I could see it coming, then the Governor and the General Assembly also probably caught wind early of what was likely to come down today. This ruling will send the authority hurrying back to Richmond to find another funding source for the badly-needed transportation projects, and may necessitate a special session of the legislature, since the 2008 session is about to draw to a close. I don’t know whether there is a viable alternative to a tax increase this time, but I’m sure the legislators will hunt for one.

I predict that this will be the major news story of the day in tomorrow’s newspapers across the state.

The court resolves an intra-circuit dispute today in U.Va. Health Services Foundation v. Morris, involving three medical malpractice lawsuits filed against doctors who staff the university hospital in Charlottesville. At stake here is the doctrine of charitable immunity, recently brought back into focus in Ola v. YMCA of South Hampton Roads, 270 Va. 550 (2005). In Ola, the court held that the Y was immune from tort liability because it was a charity. The doctors who comprise the foundation looked at that decision and reasoned that they, too, should be immune, because the group was organized specifically with a charitable purpose, as stated in its articles of incorporation.

In separate med mal suits, two judges in the Charlottesville Circuit Court split on the issue. One ruled that the foundation was a charity, and therefore immune; the other denied immunity. Since the same entity couldn’t simultaneously be a charity and not a charity, the Supreme Court needed to resolve the difference.

Today, the court rules that while the foundation’s articles do state a charitable purpose, “it is clear that the manner in which HSF conducts its affairs is not in accord with the charitable purpose stated” in those articles. The court points to four factors (all found in the Ola decision) that compel this result.

First, the foundation admittedly was created in order to address a billing problem, not to advance a charity. So stated the group’s founding CEO in testimony in one of the cases, who said that the goal was “getting the billing and collection straight; running it more like a business.” And the foundation does, indeed, act like a business in its collection, routinely suing nonpaying patients until and unless they can demonstrate penury.

Second, the ratio of the foundation’s revenue to the cost of its charitable work was grossly imbalanced. The cost of charity work, measured as a portion of the overall revenue, was 0.66%, revealing that charity was not the fundamental emphasis of the organization.

Third, the pay structure of the group rewarded doctors who brought in the biggest fees, not those who performed the most charitable work. The top surgeons, for example (including plastic surgeons) got annual bonuses that were well into six figures, while those practicing in fields that were more likely to involve a greater proportion of indigent patients (such as pediatrics) got $10-15,000 a year. The court concludes that this system “is functionally a profit-based bonus system.”

Finally, the court notes that, unlike most charities, the foundation is prohibited by its articles from accepting gifts. One of the principal underpinnings for the charitable immunity doctrine is that if a charity were not immune, then donors might be dissuaded by fears that their contributions would just go to pay tort judgments. As the court notes, “no philanthropic-minded intentions will be nullified” by a ruling that the foundation is not immune from ordinary medical malpractice liability.

The court’s ultimate conclusion is that the foundation isn’t operating in a manner that is consistent with its articles, in that it isn’t functioning as a charity. That means that the plaintiffs get to go forward with their tort claims, and the doctors will have to defend them on the merits.

I believe that this case would have had enormous implications for medical malpractice liability if the court had ruled the other way. If doctors had been able to avoid liability for medical negligence by the simple expedient of forming or joining a foundation, it is readily foreseeable to me that more such foundations would have sprouted up across the Commonwealth, with doctors getting in line to join and thereby stop paying malpractice insurance premiums forever. The fringe benefit, of never having to take the time to go to court, would have been an irresistible added bonus.

In Brown v. Hoffman, the court addresses a medical malpractice case involving renal surgery gone horribly wrong. The patient required surgical removal of his left kidney, but in performing the operation, the doctor inadvertently clamped the artery that led to the right kidney as well. When the error was discovered late in the procedure, the doctor unclamped the right artery, but by then significant damage had been done, eventually leading to the patient’s death despite intervention by a vascular surgeon.

The principal dispute at trial was whether this patient’s anatomy was different from normal. In you and me, our renal arteries are separated by a considerable space, so mistaking one for the other would constitute medical negligence. But the defense presented testimony that this patient’s anatomy was different, in that his two arteries were close to one another. Under that circumstance, even the plaintiff’s expert agreed that mistaking one artery for the other did not violate the standard of care.

The trial court allowed all of the evidence (plaintiff’s and defendant’s) to be presented before striking the plaintiff’s evidence and entering judgment in favor of the doctor. The trial court evidently felt that the balance of evidence decidedly tilted in favor of an abnormal anatomical arrangement, so there was nothing left for the jury to do.

But the Supreme Court rules today that that wasn’t his call to make. It reverses, noting that at least two witnesses (including the vascular surgeon who was hurriedly called in to operate) had testified that there was nothing abnormal about the location of this patient’s arteries. The jury could have accepted that evidence, and based a plaintiff’s verdict upon it. The judgment is therefore reversed, and the parties get to go through the whole trial again (except that this time, they’ll get all the way to a jury).

One lesson here is that a trial court ruling that strikes a party’s evidence will always earn special appellate attention. The Supreme Court is a big defender of the right of juries to resolve factual issues, and it will look carefully at any decision taking such an issue away from the jury.

Get your dictionary out; Hampton Roads Seventh-Day Adventist Church v. Stevens depends on the definition of the word subscribe. The church was named in a will that left a whopping part of the testatrix’s estate to it. The residual beneficiaries, the testatrix’s family, challenged the will because, they claimed, the witnesses to the will did not “subscribe” it in the manner provided by law. If the will failed, then the family members would keep the estate for themselves.

The problem is this: Right below the testatrix’s signature on page 3 of the five-page will, there are spaces for the witnesses to sign. But instead of their doing that, the notary who supervised the execution (there wasn’t a lawyer within earshot, or he assuredly would have hollered, “Stop!”) simply printed their names in the spaces reserved for their signatures. That’s a problem, because witnesses have to “subscribe” the will, and that implies that they, not the notary, must write their names in those spaces.

To this point, the case for the church is looking grim. But let’s turn the page, and take a look at page 4; there’s the self-proving affidavit, and there, at last, the witnesses have signed their names, just as they were supposed to. The question in this appeal (and I infer that it’s a significant multiple of a $64,000 question) is whether signing the affidavit on page 4 satisfies the subscription requirement.

The Supreme Court decides today that it does. The family had argued that the affidavit is a separate document from the will, which was itself only three pages long. The court points out that the testator herself signed her name on page 3 right below a line that described the will as “consisting of five pages,” so you’ll understand that this point is beyond dispute; in the testatrix’s mind, the affidavit was part of the will, and that ends the inquiry. The court then turns to that dictionary (well, actually to its previous holdings) and notes that the definition of subscribe is “to write underneath.” The signatures on page 4 were both part of the will (see the above paragraph) and “underneath” the testator’s signature on page 3. That means the church gets the property.

The court’s conclusion finds support in the trial testimony of two of the three “subscribing” witnesses, each of whom testified unequivocally that he or she signed intending to witness the will, and the testatrix intended them to witness it, too. Here, the court is giving effect to the clear intent of the testatrix, something it always tries to do. The court cites the complete absence of any evidence of fraud in making this ruling.

Civil procedure
We get yet another lesson in the difference between void judgments and voidable ones in Hicks v. Mellis, a medical malpractice case that arose in Richmond. This one involves the discontinuance statute, nonsuits, and the jurisdiction of the court to reinstate discontinued cases.

The procedural posture of this case is admittedly complex, so I’ll try to give you the Reader’s Digest version. Hicks was born in 1989 at MCV Hospital. In late 1990, Dr. Mellis treated him. A bit over two years later, in 1993, the boy’s mother filed a medical malpractice action. She nonsuited the case in 1995.

The mother filed a second suit in late 1999, but never attempted to serve it on any of the defendants (including Dr. Mellis). Early in 2003, the circuit court entered an order discontinuing the case under the provisions of Code § 8.01-335(B), since nothing had happened in the case for more than three years. Less than a year later, exactly as it says in the Code, the mother sought an order reinstating the case. The court granted it, noting that none of the defendants had been served. The mother then immediately nonsuited again, and the same day, she filed a third suit.  Except the order reinstating the case wasn’t really entered “exactly as it says in the Code.” In order to reinstate a discontinued case, the plaintiff must give notice to “the parties in interest, if known.” The mother didn’t even try to give anyone notice (at least today’s opinion mentions no such effort), so that order of reinstatement didn’t comply with Virginia law.

Let’s return to the third suit. The mother served this one on Dr. Mellis exactly one year after she filed it (and we civil procedure geeks all know that that’s the last possible day to do that). By this point, the one-year-old boy that Dr. Mellis had treated is now applying for his learner’s permit, and the doctor wouldn’t recognize the kid if he walked up and offered him a Philly cheesesteak. The doctor filed a special plea of the statute of limitations. The trial court, finding that its order of reinstatement was “improvident,” sustained that plea and dismissed the third suit.

In that exhausting procedural posture, the Supreme Court takes up the case. It first addresses the question of whether the order of reinstatement was void or voidable. It clearly wasn’t correct, because it flies directly in the face of the statute (as the doctor no doubt pointed out forcefully to the trial judge). But the court finds that it’s merely voidable, and not subject to collateral attack in a separate case, which the third suit unquestionably was. That’s because the court had jurisdiction to enter the order. (If the court had no jurisdiction, then the order would be void.) In an interesting but legally unassailable turn of phrase, the court notes today that the trial court “has jurisdiction to err,” so the order improvidently granting the reinstatement became final 21 days after the second nonsuit.

As for the legal issues, that pretty much does it; as long as it’s too late to challenge the reinstatement order, then the third suit is timely filed. The court notes before closing that it recognizes that the doctor had not been served, and so thus had no meaningful opportunity to object to the “voidable” order within 21 days after its entry. It finds that this situation, while unfair, is beyond the court’s power to address. The opinion gently suggests that this (to me patently unfair) situation “may raise a question for the General Assembly’s consideration in future revisions to Code §8.01-335(B).” One may reliably expect some curative legislation in ten months’ time. In the meanwhile, this situation would be ameliorated somewhat today by the new requirement in Code § 8.01-380(B), requiring that a defendant be notified before a second nonsuit is taken, but that new law doesn’t affect this case.

Inverse condemnation
[Don’t touch that dial!! Just because you don’t handle inverse con cases, don’t skip this section, which contains one or two useful civil procedure lessons.]

The court’s latest pronouncement on pleading requirements arrives today in the form of Kitchen v. Newport News. Kitchen owns property that is adjacent to a couple of subdivisions in Newport News that the city unwisely allowed to be developed. Wisdom, he argued, would have prompted the city to recognize that the developments would overtax the drainage capacity of the area, resulting in periodic flooding of Kitchen’s property. He alleged that his property was damaged on several occasions going back to Hurricane Floyd in 1999, and recurring on unspecified dates thereafter.

The motion for judgment asserted three claims: A federal constitutional claim, based on the Fifth Amendment and 42 USC §1983; a state constitutional claim, based on Article I, section 11; and a declaratory judgment action for inverse condemnation. The trial court sustained the city’s demurrer to this pleading, ruling that, “as a matter of law, a single instance of temporary flooding fails to state a cause of action.” The court also ruled that the federal claims were unripe, since the right to use federal law only accrues once compensation under state law has been denied. It concluded that the state constitutional claim had been superseded by the DJ Act, which now provides the exclusive remedy for state inverse con claims. And it denied Kitchen’s request to amend his pleadings, finding that the case had been going on long enough for Kitchen to have amended before if he had really wanted to.

Many of these rulings, you will understand readily, are lightning rods for appellate scrutiny (denying a first request for leave to amend is particularly volatile), and today, lightning strikes; the Supreme Court reverses on all counts. Some appellate decisions turn on razor-thin issues or minute factual distinctions. This one, in contrast, is a legal bludgeoning. Here are the major rulings in today’s opinion:

Whether or not a single instance of temporary flooding really does support a cause of action doesn’t matter; Kitchen alleged multiple instances of flooding, so he survives the pleading requirement. This is an important reaffirmation of the general pleading requirements under Virginia law. The court holds that Kitchen was not required to set forth each date on which flooding occurred in his suit papers. He may or may not have to do that in discovery, and the ultimate proof will come at trial. But we’re talking about pleading here, and this allegation is clearly sufficient to apprise the city of the nature of the claim.

A federal claim can be brought simultaneously with a state law claim; there is no “exhaustion” requirement before one can pursue federal remedies. The court notes that it might be best to hold the federal claims in abeyance while the state claims are adjudicated (Kitchen had suggested this approach to the trial court), but one can include both claims in the same state court suit. Accordingly, the court rejects the city’s challenge to the ripeness of the federal claim.

The big issue for eminent domain practitioners lies in the court’s ruling on whether the declaratory judgment act provides the exclusive remedy for inverse con claims against governmental defendants. The court had previously held that DJ wasn’t the only route for claims against non-governmental entities (such as utilities possessing the power of eminent domain), but hinted that a different result might follow for governments. The city took advantage of that ambiguity by asserting that it was, effectively, immune from a direct action under the self-executing state constitutional provision, since the DJ remedy is the exclusive remedy against governmental defendants. Today the court squarely addresses the issue, and decides that DJ is merely an alternate route for an inverse condemnation plaintiff. That means that a plaintiff in Kitchen’s position can proceed directly under the constitution, indirectly under the DJ act, or both. (He assuredly can’t get redundant recoveries; but both claims will get him to trial.)

Land use
The court decides two land use cases today. One resolves the interesting question of whether one can nonsuit a circuit court’s certiorari review of a BZA decision. The answer, we learn in BZA v. Fairfax County, is no.

Fairfax didn’t like the BZA’s decision to reverse a ruling by the zoning administrator, so it filed a petition for certiorari. Those petitions have to be filed within 30 days after the date of the BZA’s decision. The BZA announced its decision orally on January 20, 2004, but didn’t get around to issuing a letter ruling until February 11. Dutifully, on March 12, the 30th day after that letter – February 2004 was a Leap Year, just like 2008 – the county filed its petition in circuit court.

Alas; during the pendency of the case, the Supreme Court issued an opinion in a different case, holding that the 30 days starts to run on the day of the oral decision, not the date of the letter. Uh-oh. Anything for some time and breathing space; Fairfax decided to nonsuit the case. The BZA objected, saying that this was an appeal, not a trial, so you can’t nonsuit. The bemused trial judge considered that and allowed the nonsuit; since the certiorari statute permits the taking of additional evidence by the trial court in BZA appeals, he reasoned, this is actually more like a trial.

Except that the pesky statute, § 15.2-2314, repeatedly calls it an appeal. The Supreme Court notes as much, and finds that the trial court’s incidental ability to accept additional evidence doesn’t change that. It concludes that one cannot nonsuit a BZA appeal, and reverses, thus returning the case to the trial court for what we all know is coming now.

I have to admit, the concept of nonsuiting an appeal in, say, the Supreme Court never occurred to me. Coming as it does after the case has been submitted to the court for decision, it would look hopelessly out of place. I can imagine the looks on the justices’ faces if I were to say, as oral argument deteriorated into the abyss, “You know; I think I’ll pull the plug on this whole thing. I’d like to nonsuit now; we’ll file a new complaint and go back and try ‘er again!”

The other land use case of the day might inspire a bit of sympathy for Harry and Mrs. Homeowner, but in the end, they lose their battle with City Hall. The case is Goyonaga v. BZA, and this City Hall is in Falls Church.

The homeowners lived in a house that sat on a lot that had been platted in 1928, waaaaay before the current Falls Church zoning ordinance. They were accordingly grandfathered as a legal nonconforming structure, since their house didn’t meet the current ordinance’s requirements for lot size and side yard setbacks. That doesn’t become a problem until you want to expand something; at that point, you have to comply with the current ordinance, or else get a variance. When they decided to renovate, they approached City Hall with plans to do that, and an application for a variance.

The BZA looked at their plight and agreed to give them the variance. That helped them as long as they didn’t demolish more than 75% of the original house. (That’s a local code requirement, not something the BZA just made up.) The homeowners got the variance and started work. But a visit from a building inspector during construction gave them ominous news – upon inspection, he concluded that a load-bearing wall, which the homeowners planned to reinforce, actually needed to be rebuilt completely. That work was necessary because they were adding a second floor, and the original wall wasn’t strong enough. Fair enough, the homeowners replied; we’ll tear that wall down, too, and rebuild it stronger.

They tore that wall down, and then tragedy arrived for them, in the form of the zoning inspector. He saw that they had now torn down way more than 75% of the original structure. He whipped out his trusty stop-work-order book and handed the homeowners a fresh one, since they had exceeded the scope of the variance.

Well, what’s a homeowner to do? Told by one city official to tear a wall down, and by another that tearing it down was a breach of the conditions of the variance, they appealed to the BZA for succor. They got none; the BZA refused their request for relief. So did the circuit court. And today, the Supreme Court blanks them as well, finding that even if they really had experienced the City Hall whipsaw (which was, in consideration of all of the extensive facts, almost certainly not the case), they could not get a vested right to build simply by relying upon the instructions of the building inspector.

I used to work in municipal government, so I’m used to seeing citizens complain that City Hall isn’t treating them fairly. One case in particular always galls those who rely on the word of a government agent, and that one comes back to haunt the homeowners in this case – it’s Segaloff v. Newport News, 209 Va. 259 (1968), which holds that a city official cant bind the government to accept an illegal act, since governments aren’t bound by the doctrine of waiver. That rule is harsh, but a necessary offshoot of the precept (originally conceived by John Adams) that we are “a nation of laws, not men.” If every low-ranking inspector could change city policy by making promises, then the city council would have delegated its right to legislate. And if you know anything about municipal law, you know that that ain’t gonna happen.

The result here is that the homeowners are stuck with a shell of a building. They can probably still build a smaller structure that meets the zoning ordinance, but they’ll have to do some redesigning here.

There is one genuinely troubling aspect of today’s ruling that warrants mention. The opinion routinely and consistently blurs the line between a nonconforming use and a nonconforming structure. Thus, the court often cites the fact that the house was “a nonconforming use” when in fact it was never that; the use is residential, and the zoning was residential, so the use is conforming. The structure was nonconforming. This distinction is often a source of confusion for judges and lawyers alike, and the wording of today’s opinion, which will perpetuate that confusion, is unfortunate.

Criminal law
In turning to the criminal cases, we leave behind the world of harmony, and enter the arena of juridical clash. Of the eight criminal opinions handed down today, only three are unanimous (as all of the civil cases had been); the other five produce more or less sharp dissents.

One of the big news items of today in this field is a case that wasn’t decided – the court passes until April the case of Porter v. Commonwealth, a capital murder appeal arising in Norfolk. The court also passes (this one for the second time) on deciding Moreau v. Fuller, testing whether a trial judge can take a finding under advisement in a criminal case, and the specific question of whether that court can be compelled by mandamus to rule. Expect rulings on those cases on the next opinion day, April 18.

Of the eight cases decided today, the major news story is the affirmance of the conviction of a very successful purveyor of spam (the electronic kind; not the Monty Python kind) in Jaynes v. Commonwealth.

I once read a joke advertisement that read, “There are 500 million people in India. I can show you how to get each one of them to give you a dollar.” This approach is not all that dissimilar to Jaynes’s idea of making money by sending out spam commercial solicitations by the very cheap means of e-mail. First, he got a stolen list of over 100 million AOL e-addresses. (I didn’t know AOL had that many subscribers. But some of them may have been multiple addresses for the same person.) He then created a complex network of falsified IP addresses, and started cranking out sales pitches through those, for three relatively innocuous products. (Jaynes was apparently not one of those spammers who are eager to help you enlarge parts of your body that you didn’t know needed enhancing.)

The thing about sending out millions of such requests is that you only need a “hit” rate of, say, 1% in order to make a lot of money. I’ll do the math for you: If you send out 20 million offers for a $20 product, and only 1% of your addressees buys, then you just made $4 million with virtually zero advertising expense. Jaynes, as a footnote points out, did quite well; his net worth was $24 million. You can see that a fine isn’t going to put a dent in Jaynes’s lifestyle; only a prison term will do that. The Commonwealth accordingly set out to prosecute him for a felony.

One can only speculate as to how many such messages Jaynes sent out in all. But in order to establish the felony, the prosecutor only had to show at least 10,000 in a given day. That, I infer, was child’s play for the police’s forensic cyber-jocks; they cleanly came up with three individual days in which they could show that Jaynes was at least that busy.

There was one important complication at the outset – Jaynes lives in North Carolina, and sent out his millions of commercial messages from his home in Raleigh. How does that make this a Virginia crime? Easy; all of the messages were sent to AOL subscribers, so they went through AOL’s servers here in the Old Dominion. Jaynes, the multimillionaire, now had to hire what I presume was a set of very expensive lawyers.

The short version of the story is that he was convicted and sentenced to a total of nine years in prison (three years on each charge, consecutive). The Court of Appeals affirmed, and today, a sharply divided court affirms. The majority rejects his four challenges to the validity of the law (this was emphatically not a sufficiency-of-the-evidence appeal, as there’s no doubt the police got the right guy). The dissent agrees with three of those four rulings, so all seven justices agree that (1) the Virginia courts have jurisdiction, (2) the statute is not unconstitutionally vague, and (3) the statute doesn’t violate the dormant Commerce Clause. The fireworks arise in the fourth issue, which is whether the statute is unconstitutionally overbroad.

The majority, authored by Justice Agee (joined by the chief justice, Justice Kinser, and Senior Justice Russell) finds that Jaynes doesn’t have standing to raise First Amendment or Due Process overbreadth challenges, largely because he’s engaging in commercial speech. The analysis on this point is more detailed than I can meaningfully recount here, but a key component is that he can’t challenge the breadth of the statute on behalf of hypothetical strangers, since it clearly applies to his own conduct. The dissent (Senior Justice Lacy, Joined by Justices Koontz and Lemons) disagrees, and finds not only that he can raise such a challenge, but that that challenge should bear fruit.

First Amendment scholars across the Commonwealth are licking their chops right now, as this opinion points out a sharp divide in the justices’ constitutional thinking. But I sense that this won’t be the last word on the case; since Jaynes raises significant issues based on the federal Constitution (and especially since today’s 4-3 vote illustrates how close a call this is), there is an excellent chance that a few robed folks in Washington will study this case later this year.

The court decides today a very important constitutional procedural issue in three cases, consolidated for the purposes of the opinion, that address the Confrontation Clause in the context of certificates of drug analysis. The opinion will be known by the name of the lead case, Magruder v. Commonwealth; the companion appellants are named Cypress and Briscoe. In order to discuss the decision, I’ll start by setting up the statutory and common law tableau.

In 2004, the US Supreme Court decided Crawford v. Washington, 541 US 36, in which it held that the Constitution requires that a defendant be confronted at trial with live witnesses. If the evidence is testimonial in nature, the prosecution can’t use a substitute for that right (such as prior recorded testimony), unless the witness is unavailable and the defendant has had a previous opportunity to cross-examine her.

Virginia statutory law has long provided that a certificate of drug analysis, while technically hearsay, may be introduced into evidence if certain conditions are met. And since the 1970’s, a companion statute has given the defendant the right to have the analyst summoned to testify at trial, at the government’s expense. The defendant gets to call the analyst as an adverse witness in his case in chief.

The question in Magruder is whether this procedure complies with the confrontation requirements defined in Crawford. Each of the three appellants argued that the admission of an analysis certificate against him violated his right to be confronted by the actual witness, instead of a piece of paper. This question produces some of the most complicated legal analysis of the day, and yet another 4-3 division among the justices.

Justice Kinser writes the majority opinion; she’s joined by Justices Lemons and Agee and Senior Justice Stephenson. The majority holds as follows:

1. It’s unnecessary to decide whether these certificates are testimonial or not, since the objection has effectively been waived. None of the appellants used the procedure to require the analyst to come to trial, so they don’t get to complain now that they were denied the right to confront.

2. In response to the appellants’ argument that the statutory procedure impermissibly required a defendant to produce evidence (prior caselaw makes it clear that a criminal defendant has no such burden), the court finds that that issue isn’t before it, since none of the appellants had actually used it at trial. In any event, this argument isn’t cognizable under the Sixth Amendment; it presents a Due Process challenge.

3. As for Due Process, waiver of a constitutional right by a failure to raise it timely can be effective – in fact, it happens all the time. For example, Virginia law requires the defendant to give advance notice of his intention to rely on an alibi defense. If he misses that deadline, then he can’ offer that defense. Similarly, a defense lawyer may agree (for tactical reasons) to stipulate to the admissibility of certain evidence, thereby waiving a constitutional objection to its admission.

That brings us to the dissent, authored by Justice Keenan, and joined by the chief justice and Justice Koontz. The dissent’s take on things is as follows:

1. The certificate is unquestionably testimonial hearsay. It was made after the fact of the events, and was designed to establish an element of the offense at a criminal trial.

2. The admission of the certificates violates the Confrontation Clause. The grammar geek in me delights in the fact that the dissent recognizes that the Confrontation Clause is phrased in the passive voice (“. . . to be confronted with the witnesses against him”) instead of creating a right “to confront” those witnesses. It therefore reasons that confrontation must be an element of the prosecution’s case, and is not satisfied by a rule that enables the defendant to call the witness in his own case in chief.

3. There’s a big difference between waiving a statutory right (to require the analyst to be subjected to examination in the defendant’s case) and waiving a constitutional right (to be confronted). The dissent points out that the way things work now, the right to confrontation has already been denied by the time the defense’s case calls its first witness, so it’s meaningless to maintain that he waives that right by failing to call the analyst in the manner the statute provides. In the words of Justice Keenan, “A defendant cannot waive a right that he has already been denied.”

Where does this leave us? Fundamentally, it produces a definitive ruling (and yes, 4-3 votes can be definitive) that the use of certificates of analysis in criminal prosecutions is constitutionally permissible in Virginia. As for the rationale behind the court’s ultimate conclusion, I have to admit that I’m torn. I sort of want the Commonwealth to win this one, because I recognize that the statute serves a salutary purpose. In almost every case, the analysis isn’t really in dispute, and there thus is no good reason to haul an analyst to the four corners of the Commonwealth in every drug trial, simply in order to establish a largely uncontested element of the prosecution’s case. I can certainly see the likelihood of abuse if there were no such provision, as a defendant might hope to win a technical acquittal if the analyst doesn’t show up for trial.

But what to do about Crawford? On this point, I think the dissent is right. If we’re going to lock someone up for a decade or so, that person should have the right to compliance by the prosecution with the Constitution – all of it. And denying a defendant a constitutional right, only to tell him that he can reclaim it in his case in chief, seems to me to run afoul of the provision that no defendant has the obligation to produce any evidence in his own defense. Constitutional rights aren’t things that you should have to work in order to claim. They are things that the government owes us. Yes, of course they can be waived; but I don’t think the government can presumptively waive them for you.

In light of today’s ruling, dozens of forensic scientists across the state are breathing sighs of relief that they don’t need to make extensive travel plans.

Contempt proceedings are a curious blend of the criminal and non-criminal. Technically speaking, they’re not criminal charges in the sense of, say, an indictment for larceny. That means that you don’t get the same Sixth Amendment protections in a summary contempt proceeding as you would in a garden-variety criminal prosecution. That difference is dispositive in Gilman v. Commonwealth, a contempt case that started in juvenile court.

A juvenile court judge ordered Gilman one day to undergo drug screening. Instead, she said she needed to go and get a drink. Given that leave, she got up and walked out of the courthouse. The judge found her in contempt, fined her $25, and sentenced her to ten days in jail.

As is required in such cases by statute, the judge then prepared a certificate explaining what had happened and what his disposition was. That document got sent to circuit court when Gilman appealed her conviction, and over her objection, based on Crawford v. Washington, 541 US 36 (2004), the circuit court judge used it against her in finding her guilty. He cut the jail time in half, to five days, but she was still convicted.

The question on appeal is whether this obviously hearsay document can be used against Gilman in light of the Crawford decision. That decision holds that the Sixth Amendment mandates confrontation, so the prosecution can’t offer testimonial hearsay in its place. This document, by the way, unquestionably was testimonial.

The Supreme Court finds that Gilman was not entitled to “confront” the juvenile court judge in circuit court, because (as the Big Supremes have held), contempt proceedings like this are “not ‘criminal prosecutions’ within the Sixth Amendment.” So much for that idea. As for her remaining contention, that she got a trial de novo, and thus was entitled to be tried free from hearsay, the court finds today that the statutes governing contempt appeals require the opposite conclusion.

Believe it or not, there really is a separate set of statutes that govern contempt appeals. The meaningful provision here is one that provides that the certificate prepared by the juvenile judge here (as required by that statute) is to be sent to the circuit court. The judge of the circuit court is then authorized to “hear the case upon the certificate and any legal testimony adduced.” In other words, the General Assembly created something of a de facto hearsay exception (evidence purists are probably howling in protest over my shorthand here, but it’s at least an effective means of conveying the result), an the circuit court properly considered the juvenile court judge’s recitation of what had gone on below.

Gilman’ final argument runs as follows: The general criminal appeals statutes specifically say that I get a trial de novo. But the Supreme Court turns to a familiar basis of resolving statutory conflicts – the specific controls over the general. And a set of statutes that provide the procedure for contempt appeals obviously is more specific than the general criminal appeal laws.

There’s one other feature of this case that’s worth mentioning. In the Court of Appeals, the original three-judge panel that considered the case affirmed Gilman’s conviction. But the full court took the case, and was unfortunately unable to resolve it, splitting 5-5. (The net effect of that is to affirm the ruling below, not to reimpose the three-judge panel’s decision.) But there’s no even split in the Supreme Court; today’s ruling is unanimous.

The latest in a series of near-proximity cases arrives today in Maxwell v. Commonwealth, involving possession of cocaine and marijuana. A Farmville police officer drove up to a shopping center where Maxwell was standing at 11:00 am one day, and asked to speak with him about a check. Maxwell had his hands down the front of his pants (not, the opinion assures us, in his pockets). The officer asked him to take his hands out (he was concerned that Maxwell might have a weapon), but Maxwell ignored that request. “Okay,” the officer told him, “in that case, we need to go to HQ to talk about that check, and of course I’ll need to pat you down now for a weapon.” At this suggestion, Maxwell started to back up, protesting that “I ain’t got nothing on me.” At that point, he engaged in a classic, All-American response to a tense situation – he turned and ran for the hills.

Well, not really the hills; what he ran for was the back of the shopping center, which bordered on a lumber yard. The police officer drove his cruiser around and, a few moments later, saw a cool, collected Maxwell strolling out from between a couple of piles of lumber (presumably whistling confidently; but that’s speculation on my part). Placed under arrest, he was found to possess $460, but no contraband.

The officer was undeterred; he called on the services of a drug-sniffing dog to tour the lumber yard. While that was going on, Maxwell was chatting pleasantly with another officer. But before long, the dog told the officers there, “Uh, hey, guys; I think there’s something funny in this stack of plywood.” (These police dogs are getting smarter every day.) At that, Maxwell clammed up. The officer pulled out a baggie containing crack cocaine.

Later that day, a lumber yard employee found two more bags; those turned out to contain crack and marijuana. The stacks of plywood, unfortunately for Maxwell, had only arrived at the yard at 8:30 that morning, just 2 ½ hours before this whole set of events. You can see that it’s starting to look bad for the defense.

But Maxwell had one advantage, and that was that no one had actually seen him in possession of the drugs at any time. Still, the prosecutor had boatloads of circumstantial evidence of guilt, so he plowed on. The jury considered all that evidence, and decided it was enough to convict.

On appeal, the question is whether this evidence really was enough to convict. A majority of the court, led by Senior Justice Carrico, finds that it was not. It concludes that there are perfectly plausible, innocent hypotheses for all of those admittedly suspicious circumstances. The dissent (Justice Lemons, joined by Justice Kinser) notes that the jury was entitled to consider all of the circumstantial evidence and determine whether those innocent explanations were at all plausible. But by a 5-2 vote, this conviction gets thrown out.

By the way, in case you think I’m so all-fired good at predicting what the court will do, I’ll tell you that when I got to the part of the majority opinion where the court revealed its decision, I was floored. I thought, up to that point, that the totality of these circumstances was plenty sufficient to enable the jury to draw the necessary inferences to find guilt. Even now, after reading the majority and dissenting opinions in full, I wonder how Maxwell managed to pull this one out; I still think that the dissent is right. But never underestimate the abilities of a good appellate lawyer; Maxwell’s quite obviously did an excellent job.

For the next case, let’s assume you’re a police officer. You’re conducting a pat-down search of a suspect, to determine whether he has any weapons. You know that the law provides that if the pat-down reveals contraband, not weapons, you’re allowed to seize that, since the pat-down search is an extension of the plain view doctrine. With me so far?

Okay; you pat down the suspect, and you can clearly feel a couple of capsules inside his pants pocket. How do you know what they are? Could they be pin pills, such a Tylenol? Multivitamin supplements? Maybe fish oil capsules, for that rare criminal suspect who’s concerned about his cholesterol? In all probability, you don’t know, so you don’t have a right to go into the pocket to find out what kind of capsules they are. Now, suppose that instead of two capsules, you feel about twenty of them. Aha; now we’re getting somewhere.

That’s where the police got in Cost v. Commonwealth, a case out of Portsmouth. When the officer approached Cost, sitting in the passenger seat of a parked car, Cost “reached across his body towards his left front pants pocket.” The officer asked what he was reaching for. Cost declined to answer. The officer told him to keep his hands away from the pocket, but Cost did it again. At that point, the officer told him to get out of the car. Cost complied without a fuss, and even told the officer that, while he couldn’t search Cost, he could pat him down. (A cynic might comment on what this reveals about the number of criminal-justice-system frequent flyer miles it takes to know a distinction like that off the top of your head; but no one calls me a cynic and gets away with it.)

When the officer did as he was invited, he felt the twenty capsules. Figuring that no one would carry twenty ordinary capsules in his pocket, no matter what his cholesterol level, the officer removed these from Cost’s pocket. Bingo; heroin.

At the inevitable motion to suppress, the officer testified that, based on his training and experience, honed by 50-60 drug arrests and specialized drug training, he just knew that these capsules weren’t legit. The trial court afforded a great deal of weight to the officer’s expertise, and denied the motion to suppress. Cost appealed. Today, the Supreme Court reverses the conviction and dismisses the indictment by the same 5-2 split as in the Maxwell case above; in fact, the same two justices (Lemons, joined by Kinser) dissent this time as well.

The majority notes that there was no way for anyone, no matter how well trained, to know what was in the capsules based only on feel. And without such knowledge, this is merely a matter of the officer’s hunch – an intelligent hunch, to be sure, but a hunch nevertheless. The officer knew it wasn’t a weapon, so that fear no longer justified further searching. At this point, the majority finds, the search had to stop.

The dissent argues that the majority fails to do what everyone acknowledges it must do – consider the totality of the circumstances. (Careful readers will note that the majority offered a comparable argument in Maxwell.) Those circumstances, including Cost’s “furtive” hand motions, justified the admittedly well-trained officer in concluding that those weren’t vitamins, particularly since few people, if anyone, carry lots of vitamins or pain pills around in a pocket. Noting that a motion to suppress isn’t bound by the “beyond a reasonable doubt” standard necessary to establish guilt, the dissent concludes that there was enough for this officer to keep searching, and to find what he did.

I haven’t handled criminal litigation in quite a long time, so I didn’t know, until reading it in today’s Daniels v. Commonwealth opinion, that a number of jurisdictions are now requiring specific cautionary instructions on eyewitness identifications, where that becomes an issue in the case. Daniels offered such an instruction in his prosecution for a string of robberies, burglaries, and abductions in Norfolk. Several of the witnesses had made tentative or even incorrect preliminary identifications of Daniels, but the several crimes bore unmistakable commonalities, and at least some of them pointed straight to Daniels.

The trial judge refused the instruction, noting that it was confusing in at least one respect, and that its subject matter was covered in other instructions, such as the common one on credibility of witnesses. On appeal, Daniels didn’t ask for a per se rule requiring such an instruction in all cases of disputed identity (such a requirement would almost certainly have to come from the legislature, not the courts). Instead, he argued that it was error to deny it in this instance.

But he never contended that the police had acted improperly in conducting the lineups; he never pointed to any particular aspect of his instruction that wasn’t covered in the others in the set given to his jury; and he never attempted to define the term that troubled the trial court. Since how to instruct the jury is left to the discretion of the trial judge, the Supreme Court today unsurprisingly finds that this wasn’t an abuse of discretion, and affirms.

A generation ago, the US Supreme Court decided that there is a good-faith exception to the exclusionary rule. Police officers may well execute invalid search warrants, without knowing that there’s anything invalid about them. Usually, the invalidity is the result of a misstep by a magistrate or other judicial officer. Reasoning that the prosecution shouldn’t suffer because of a judicial mistake, the high court ruled that if a reasonable officer would not have know about the defect, then the exclusionary rule does not apply. US v. Leon, 468 US 897 (1984).

Today’s ruling in Adams v. Commonwealth analyzes this exception in the context of a murder investigation. A deputy sheriff came upon a corpse in the street of a Henry County trailer park; the victim had been shot to death. From interviewing witnesses, an investigator determined that Adams, a resident of the park, was a primary suspect. He went to a magistrate and swore out a criminal complaint, naming Adams as the assailant. The complaint described the shooting as having occurred on “Virginia Oaks Ct.” in that county, and gave Adams’s address as “101 Va. Oaks Ct., Ridgeway, Va. 24148.” Nineteen minutes later, the same investigator executed an affidavit for a search warrant, and handed it to the same magistrate. The affidavit stated that the victim had been shot on “Virginia Oaks Ct.” and that the victim had been in an argument with Adams at the time of the shooting. It then described the location to be searched in considerable detail, including the physical description and location of the trailer and what was to be sought (principally weapons and video recordings, since Adams’s trailer had an exterior video camera).

The magistrate accepted the affidavit and issued a search warrant for “101 Virginia Oaks, Ridgeway, Va. 24148.” An hour later, someone executed the warrant by going into Adams’ trailer; the searcher didn’t find a pistol, but he found plenty of related items (such as a holster and ammunition fitting the murder weapon, and a pistol cleaning kit). At this point, the investigators figure they’ve got Adams.

Upon reading all of that, unless you’re a criminal practitioner you may have missed the fact (as I did) that the affidavit for the search warrant was wholly defective. That’s because it never established a nexus between the crime (or Adams) and the place to be searched. Let’s face it; you can’t get a search warrant for somebody’s house just because he lives on a street where a crime has taken place. Taken in conjunction with the complaint, the two documents together did establish that nexus, but standing alone, the warrant doesn’t; the Commonwealth conceded as much in the trial court.

The trial judge eventually denied Adams’s motion to suppress, relying upon the good-faith exception. The court found that the officer who executed the search “acted reasonably in believing the warrant to be valid.” Today’s opinion, by a divided court, addresses this legal ruling.

The majority considers the “totality of the circumstances” in finding that the searching officer did, indeed, have a good-faith basis to believe that the warrant was lawful. The most important of the reasons for that is the fact that a judicial officer (magistrates, while not truly judges, are judicial officers) had issued it. And as the majority notes, an officer is not required to disbelieve the word of a judicial officer who tells him that it’s okay to perform the search. The officer can’t turn a blind eye to obvious defects, of course; but given what the officers knew here about the “totality” of the investigation, there was nothing quite so obviously amiss here. (It might well have been obvious to a criminal defense lawyer, but cops aren’t required to have the training of lawyers in order to meet the good-faith test.)

There is a dissent in the case, and it’s a familiar one – Justice Koontz writes for the chief justice and Justice Keenan. This is the same trio that dissented in the Magruder case, above. They conclude that one must confine one’s self to the four corners of the affidavit in determining whether it’s sufficient to establish the requisite probable cause for the search. And the dissent finds that document, standing alone, lacking.

The key point of the dissent is that there was no evidence that the magistrate considered the complaint as well as the affidavit in deciding to issue the search warrant. The prosecution never argued below that the complaint was part of that “totality of circumstances” that the majority relies upon. The majority had posited that common sense leads inexorably to the conclusion that the magistrate had the complaint as well as the affidavit in mind when he issued the warrant, because the one preceded the other in his hands by just nineteen minutes. But the dissent responds that the record itself shows what the trial court ruled upon, and it wasn’t any sort of argument like that. It notes that the first suggestion of a “combination of the documents” rationale came in the Court of Appeals, and was not presented or preserved at trial.

This last contention probably deserves some legal analysis that, candidly, I don’t have time to perform on opinion day, when I have plenty of demands on my time (16 separate ones today). The dissent essentially argues that the Commonwealth, as appellee, must have offered a given argument at trial in order to rely upon it to resist an appeal. There is a citation to a footnote in a 1988 case to that effect. But this argument seems to me inconsistent with the often-cited “right for the wrong reason” rule that permits appellees to offer theories that were not offered below, as additional and independent reasons to affirm. The contemporaneous objection rule (Rule 5:25) only serves to bar appellants (“Error will not be sustained to any ruling . . . unless the objection was stated” etc.). Without further research, I don’t know whether this doctrine is inapplicable to criminal cases, but it might prove an interesting inquiry.

I’ll mention one further point about this ruling. The majority notes on page 21 of the slip opinion that the prosecution “conceded that the affidavit . . . lacked a sufficient factual nexus between the items sought and the residence to be searched to establish probable cause.” It then makes the important analytical pronouncement, “Irrespective of whether that conclusion is correct, the circuit court’s legal conclusion to that effect is the law of this case.” The law of the case doctrine is a hammer that prohibits revisiting any legal issue that has been decided below and not appealed. I was, accordingly, very surprised to find the majority opinion doing just that, starting on the very next page: “Even if we restrict our analysis to the four corners of the search warrant affidavit as Adams urges us to do, we reach the same conclusion.” That is, on page 21, the court states that the trial court’s ruling cannot now be revisited; on page 22, it proceeds to weigh in on that very issue, effectively reversing the trial court. The only way to avoid this conclusion is to regard the discussion at pages 22-24 in terms of the dreaded phrase, “mere dicta.”

The lasting lesson of this case is that the good-faith doctrine is a powerful addition to the prosecution’s tool belt. Today’s ruling gives that rule an expansive interpretation, so future disputes at motions to suppress will take on a slightly different tint.