ANALYSIS OF JANUARY 10, 2014 SUPREME COURT OPINIONS
[Posted January 10, 2014] In the first opinion day of 2014, the Supreme Court hands down 14 published opinions, primarily in cases argued in October.
Criminal law and procedure
Back in 2011, the Supreme Court generated immense controversy across Ninth Street when it handed down Hernandez v. Commonwealth, the ruling that permits a trial court to defer a finding of guilt at the conclusion of the evidence and before a formal adjudication of guilt. Hernandez didn’t answer all questions related to deferred findings; for example, it expressly left open the question “whether the judge may decline to render judgment and continue the case with or without terms akin to probation status with the promise from the court of a particular disposition at a later date.”
Today, the other shoe drops. In Starrs v. Commonwealth, the court tackles another avenue by which admittedly guilty defendants may seek succor from trial judges.
Starrs was indicted for drug distribution, and from what I can tell, they got ‘im. He entered into a plea agreement that called for an Alford plea, which he duly entered after the required colloquy. But he asked the judge to defer adjudicating him guilty and sentencing him, to give him a chance to prove himself. He even knew which case to cite: “I reserve the right to seek a disposition based upon the . . . decision in Hernandez . . .” He told the judge that his “entire purpose” was “in the hope that [the trial court] would ultimately dismiss the charges.”
The judge seemed sympathetic, but he felt constrained to go ahead and sentence Starrs based on the guilty plea, so he entered a judgment of conviction and sentenced Starrs to a suspended prison term. His honor set the table for an appeal, though:
I want to be absolutely clear that I am not exercising my discretion here; I find I do not have discretion. I have discretion to continue this; I can absolutely continue this for two years.
But at the end of two years, my only option would be to sentence [Starrs] on the charges in which he entered pleas of guilty. And, as [Starrs] has confirmed, the whole purpose in seeking the deferral is ultimately to obtain a dismissal.
The court ultimately reasoned that “if dismissal is not an option, there’s no bona fide reason to defer disposition.”
The Court of Appeals rejected Starrs’s appeal, but today, the justices grant him new life – or at least a chance to avoid a record of conviction. By a 5-2 vote, the court rules that a judge has the inherent judicial power to consider whether to convict the defendant, and if so, of what offense, until the moment it enters an order of conviction. Since a guilty plea isn’t the same thing as an order of conviction, this judge did indeed have the discretion to defer the disposition. That means that Starrs may eventually be convicted of the original charge; he might be convicted of a lesser offense; but he also has at least a chance of an acquittal, despite having pleaded guilty.
You read that correctly. The court rules today that a defendant who pleads guilty still retains the right to ask the judge to dismiss the charges. Granted, this usually takes a fair amount of proving oneself, through things like community service and an unbroken string of very good behavior. But that avenue remains open in criminal courtrooms; the court today reverses the conviction and remands the case through the CAV all the way to the trial court so it can exercise the discretion that it thought it didn’t have.
I mentioned a dissent. Justice McClanahan writes it, and she brings Justice Mims along for the ride. She would find that the process of the court’s receiving and entering a guilty plea is dispositively different from a trial after a not-guilty plea, where the judge decides to take the matter under advisement after hearing all of the evidence. The dissenting justices believe that when the court exercises the discretion to accept the guilty plea, that’s enough of an adjudicative act to trigger the court’s obligation to find the defendant guilty and sentence him in accordance with the statutes.
If you want to be sensationalistic about this, you could call it a turf war between the legislative and judicial branches of government, with the executive probably cheering on the legislature from the front row. I’m not sure if this will devolve into that. In 2011, the legislature was all set to fill two Supreme Court vacancies and a host of lower-court benches just a few weeks after Hernandez came down, and interviews of potential jurists in the Courts of Justice Committees keyed on the reaction to that case. This time, there are no openings at Ninth and Franklin, but if the legislature takes the same dim view of Starrs as it did with Hernandez, then potential appointees in the next few weeks had better be familiar with this decision, and prepared to answer queries about it.
In a related appeal, the court illustrates the risk involved in a deferred finding. The defendant in Maldonado-Mejia v. Commonwealth persuaded a judge to defer a finding on a charge of felony child abuse and neglect. The plea agreement expressly provided for a deferred finding, pending her completion of certain programs and undergoing supervised probation. It concluded with, “I understand that successful completion of the program will result in the dismissal of the charges enumerated in this document.”
Not a bad deal; there’s definitely a light at the end of the tunnel here. But fate, in the form of a dumb decision, intervened: About six weeks after the court accepted this agreement and put her on probation, the defendant applied went out to buy a gun. In doing so, she filled out an ATF form with the following question, among others: Are you under indictment for a felony?
I’ll give you two guesses what she answered.
Well, in her defense, she conceivably could have felt that having entered into a plea agreement, she was no longer under indictment, given her probable in-depth knowledge of United States v. Hill, 210 F.3d 881, 883-84 (8th Cir. 2000) (quoting State v. Higdon, 774 S.W.2d 498, 500 (Mo. Ct. 1989)) and United States v. Hartsfield, 387 F.Supp. 16, 17 (M.D. Fla. 1975). You know those cases, right? The ones that hold that the purpose of an indictment is to notify the defendant what he’s being charged with. Once you’ve entered a plea, there’s no purpose for the indictment anymore.
Okay, so maybe Maldonado-Mejia had never heard of these jurisprudential pronouncements, and maybe she just didn’t think. Whatever the reason, this application produced a sudden and horrible downward spiral for her. She was indicted for making a false statement on the ATF form, and was convicted on that charge. And since she was convicted of a felony during her probationary period, she was brought back to court on the original child-neglect charge, and convicted of that, too. A total of nine months of free room and board, with the compliments of the Department of Corrections, awaited her.
Today, the Supreme Court affirms the convictions. It finds that since she had not been convicted or acquitted, under Virginia law she remained under indictment. Thus the statement on the ATF form was indeed false. And since she was properly convicted for that, her subsequent conviction and sentence on the neglect charge was proper, too.
Note that sometimes when you get what you ask for, there are unintended consequences.
Criminal-law practitioners and procedure geeks alike will be drawn to Allen v. Commonwealth, which tackles the arcane but vital question of how much corroboration is required to support a conviction that’s principally based on the defendant’s confession. Today’s opinion contains the added benefit of a history lesson on the origin of the corroboration requirement.
I won’t spoil Justice Millette’s excellent report of that history lesson – go to page 5 of today’s slip opinion and see for yourself – but I’ll mention that it brought to mind Walter Van Tilburg Clark’s novel, The Ox-Bow Incident. At this point in our jurisprudence, no matter how detailed and convincing a defendant’s confession may be, the prosecution can’t get a conviction without adducing other evidence that at least slightly corroborates the statement.
In this case, the defendant confessed to engaging in inappropriate sexual conduct with his four-year-old grandson. In order to corroborate it, the Commonwealth presented testimony from the boy’s mother, who stated that the boy occasionally slept in the same bed as his grandfather and grandmother (sometimes with the grandfather alone), and the grandfather and the boy frequently played together, including wrestling with each other. That was good enough for the trial court, which sent the case to a jury; the jury sent it back with a conviction.
Today’s ruling divides the justices, 5-2; the majority holds that the corroborating evidence isn’t enough to support the conviction. Although the corroboration need only be slight, it still has to establish the occurrence of a crime, and this evidence didn’t do that; the testimony was just as consistent with innocent intra-family play as it was with a crime. In that sense, the evidence didn’t establish the corpus delicti – the fact that a crime had taken place. All it corroborated was the opportunity to commit a crime. The court’s prior caselaw indicates that it isn’t enough to, say, place the defendant in the vicinity where a crime was committed; it must show, at least slightly, that that defendant perpetrated the crime.
Justices McClanahan and Mims dissent; they distinguish the two primary decisions upon which the majority bases its rulings, and would hold that this additional testimony met the “slight” threshold. They point to a ruling in which the court held that corroborating evidence need not support “all the contents of the confession, or even of all the elements of the crime.” The dissent feels that it’s enough that this evidence established physical contact between the grandfather and the boy.
We get our only 4-3 ruling of the day in Linnon v. Commonwealth, which addresses a key preservation issue in addition to the contours of the “custodial or supervisory relationship” doctrine. Linnon is a teacher at a vocational school. He and his wife engaged in consensual sexual relations with two students at Linnon’s home during an inter-semester break. One of the students was a 16-year-old girl.
The primary issue in this appeal is whether Linnon had a supervisory relationship as to the girl. She wasn’t in his class, but he occasionally saw her outside his classroom between classes, as he was assigned (evidently in common with many other teachers) to supervise students on the sidewalk outside his classroom. He also supervised students in a cafeteria at lunch one day a week.
Today’s majority rules that this is enough to establish the existence of a supervisory relationship. The next legal issue is whether he maintained that relationship between semesters, and at his home instead of at school. The court finds that it did; this conclusion is supported by the fact that Linnon approached the girl on the sidewalk back at school and asked her to return to his home on another occasion.
On this point, the dissent (Justice Powell, writing for Justices Lemons and Millette) thinks the trial court strayed from the true legal path in one of its instructions to the jury. Specifically, the court instructed the jury that the law “does not require proof of a direct nexus of any type between the custodial or supervisory relationship and the defendant’s wrongful conduct.” Linnon had offered a competing instruction: “Only those persons who maintain a custodial relationship with their victim can be convicted of Indecent Liberties.”
The dissent describes the instruction as given as “a patently incorrect statement of the law.” That’s because, the dissent feels, “the Commonwealth was required to demonstrate a nexus between any relationship with A.G. at school and the proscribed acts.
How does the majority respond to this criticism? In one of the most time-honored ways possible: By ruling that the issue is harmless error. Here’s the key preservation issue that I mentioned above. Linnon was tried jointly with his wife, though they had separate counsel. The wife objected to the first three of four contested instructions; Linnon objected to a fourth (the one quoted above). The court today rules that Linnon can’t claim the benefit of his wife’s objections to the first three, because he didn’t expressly join in those. This results in a holding of first impression: “We . . . hold that one party may not rely on the objection of another party to preserve an argument for appeal without expressly joining in the objection.”
On the vital fourth instruction, where Linnon expressly objected, the majority rules that he “vigorously contested [the] question” in arguing his motion to strike, and that was enough to apprise the trial court of his legal position, thus satisfying the contemporaneous-objection rule. But as I mentioned above, the majority finds this error to be harmless because, it rules, his argument on appeal is different from what he urged in the trial court.
It is on this issue that the court engages is a considerable degree of hair-splitting. The dissent thinks that the competing instruction offered by Linnon was enough to put the issue to the trial court. The majority thinks that the oral argument below was limited to distinguishing an appellate ruling in another case, and didn’t reach the direct issue here.
I can’t answer the ultimate question of whether a direct nexus is required, but I will wade in on one aspect of this decision: I wish the dissent’s broader view of preservation had prevailed. Procedural defaults are the bane of the appellate system, and where there’s a close call as to whether an issue was preserved sufficiently or not, I believe that appellate courts should lean toward the side of allowing the argument to proceed instead of finding a waiver.
In prosecutions where the defendant’s competence to stand trial is in issue, Virginia law provides for a competency examination. In Dang v. Commonwealth, the justices take up a contention that the defendant’s mental state deteriorated between the date of the exam and the date of trial.
This is a prosecution for, among other things, murder. The defendant was evaluated early in the proceedings, and in January 2011 a psychologist found him competent to stand trial. As the trial date approached eleven months later, the defense lawyer learned some information about his client’s early childhood, and observed what he perceived as changes in mental condition, that led him to ask the trial court to order a second evaluation. The court refused to do that; the case resulted in convictions on both counts.
I’ve opined on several occasions that the standard of appellate review is outcome-determinative in 80-85% of all appeals, and you could make a plausible argument for 100%. But even at the lower figures, this case is one of them. Because the standard here is abuse of discretion, the justices (by a 6-1 vote, with Justice Mims dissenting) affirm the trial court’s determination that a follow-up evaluation was unnecessary. Trial judges are in a much better position than are appellate jurists to make judgment calls like this, and as with things like credibility of witnesses and courtroom operation, the justices take a largely hands-off approach.
This case is destined, by its unusual fact pattern, to be cited infrequently; in my view, it breaks little new precedential ground.
The shortest opinion of the day (always among my favorites) is Robertson v. Western Virginia Water Authority, which answers the question whether operation of a sanitary sewer system is a governmental or proprietary function of a municipal corporation. That matters because such corporations are immune from tort liability in the performance of governmental functions, but they can be liable, just like other property owners, for negligence in the performance of proprietary functions.
The facts are straightforward; a sewer line burst and caused a 10’ retaining wall to collapse, causing damage to Robertson’s property. He sued the authority, which operated the sewer system. The trial court granted summary judgment to the authority on the issue of immunity, holding that the operation of a sewer system is a governmental function.
Actually, it isn’t. Caselaw indicates that while the design and construction of such a system is governmental, its normal operation is proprietary. The justices thus remand the case for a trial on the merits.
In CNX Gas Company v. Rasnake, the court undertakes the interpretation of a 95-year-old deed conveying real property. We actually begin earlier, in 1887, when a landowner conveyed by deed all the coal in a 400+ acre tract in Russell County. Thirty years later, the successor to the fee-simple owner conveyed 75 acres of the tract to a purchaser.
Because the coal had been previously conveyed, the grantor in the 1918 deed was careful to exclude it from the conveyance, no doubt to avoid the problems that could be generated by a general-warranty deed:
This sale is not ment [sic] to convey any coals or minerals. The same being sold and deeded to other parties heretofore.
These short lines form the genesis of today’s appeal, involving remote successors in title to the parties to the 1918 deed. The question is whether the 1918 grantor excluded from the conveyance the coal and minerals, or just the coal.
In evaluating this question, the court first notes that this language is indeed ambiguous, as it’s susceptible of multiple possible interpretations:
The language suggests at least three possibilities: (1) that the grantors mistakenly believed that all mineral rights, including coal, had previously been conveyed to others and wished to make clear that they were being excluded from the 1918 conveyance to avoid future liability under their general warranty; (2) that the grantors knew that coal alone had been previously conveyed and wished to reserve all other mineral rights to themselves, and (3) that the grantors intended to convey to the grantee only those mineral rights that had not been previously conveyed to others.
To resolve this appeal, the Supreme Court employs the usual rules of interpretation and construction: the language of deeds is construed most strongly against the grantor, because he can select his own language; the deed should be interpreted in such a way as to give effect to all portions, instead of holding one or more clauses to be surplusage.
Under that analysis, the court holds that the ambiguous language should be interpreted to effect a conveyance of all mineral rights except coal. Otherwise, the second sentence (actually a sentence fragment) would be surplusage.
The Medical Malpractice Act applies where (1) a health care provider, as defined in the act, (2) provides health care, also defined, (3) to a patient, also defined. In Simpson v. Roberts, the court addresses a contention that the victim of medical negligence was not, at the time of provision of the health care, a patient.
How can that be? It’s because the victim was in utero at the time of the injury, and we all know that in Virginia, fetuses aren’t persons. A doctor performed a prenatal test known as an amniocentesis, and in the process severely injured the fetus. The child was later delivered by another doctor by caesarian section, and sustained profound injuries.
A jury awarded the child $7 million in damages. The trial court reduced the verdict to the med-mal cap, but the child got a writ to determine whether the act applies to this claim. Today, the justices affirm the reduction. They cite the purpose of the act, as set out in the preamble, and note that if the child were to prevail, physicians who treat pregnant women might be subject to unlimited liability, which is the opposite of what the act was designed to achieve.
In reaching this conclusion, the court finds that despite the definition section, the fetus did in fact become the patient of the first doctor, principally because the test “was performed, at least in part, for [the child’s] benefit . . .” That means that when the doctor performed the test, he was providing health care to both mother and child, even though the child had not been born yet. Applying previous holdings, the court finds that the child became the first doctor’s patient as soon as she was born, even though he didn’t provide any care at or after her birth.
Justice McClanahan files a concurring opinion. She would hold that the fetus became the doctor’s patient immediately, without any relation-back as of the moment of birth. Her opinion notes that a related holding in a 1990 case should be clarified.
We interrupt this analysis for an editorial comment: There’s too damn much sanctions litigation nowadays. Sanctions motions have exploded in the past few years, and this emphatically is a bad thing. Lawyers have sought to weaponize Code §8.01-271.1, and they’re far too quick on the trigger. Sanctions jurisprudence has approached out-of-control status in the last few years; we’ve seen judges essentially use it as a fee-shifting statute in derogation of the American rule. In many instances, the sanctions motion dwarfs the underlying litigation, taking on a life of its own.
Today’s decision in Shebelskie v. Brown illustrates that on occasion, judges go overboard in applying sanctions sua sponte, too. The appeal arises from a partition suit by a now-divorced couple, involving the sale of some property in Richmond. After “extensive litigation,” the circuit court decreed the sale of the property to a third party. The purchaser then intervened in the case and sought court approval to assign its rights to Wife (so effectively she would be buying out Husband’s share).
The court convened a two-day hearing, at the end of which it agreed to the assignment. The court ordered Wife to pay Husband’s attorneys’ fees in an unspecified amount, plus another $12,500. The lawyers later discussed whether to offset these moneys against funds owed by Husband to Wife in the entirely separate divorce case; but Husband’s attorney insisted upon performance of this directive separately. Those talks stalled, and Wife closed on the purchase.
Husband then sought to enforce Wife’s financial obligations by a show-cause proceeding. Wife filed a brief in opposition to the show-cause order, in which he outlined her reasons for not paying the money immediately. She pointed out that contempt wouldn’t lie for an obligation like this, because the court’s prior, interlocutory order hadn’t identified a sum certain and didn’t contain a due date for the payment.
Before the hearing on the show-cause order, Wife went ahead and paid the moneys due to Husband. But the hearing proceeded anyway, and in it, one of Wife’s lawyers (Shebelskie) argued orally in response to Husband’s argument. A different lawyer (Wright) had signed Wife’s brief. Shebelskie noted among other things that the underlying order was interlocutory, not final, so Wife’s obligation had not been firmly fixed.
In addressing the case at the conclusion of the arguments, the trial judge suggested that Wife’s lawyers may have committed sanctionable conduct by filing the brief and arguing the case. She took the matter under advisement. Eventually, she entered an order dismissing the show-cause against Wife, but sanctioned her lawyers because they had argued that Wife “did not have to comply with the April 2011 [o]rder because it did not state payment had to be in cash, did not set a date or deadline for payment, and was an interlocutory order.”
I will confess that at this point in reading today’s opinion, I was doing a slow burn. What these lawyers did amounted to ordinary, and indeed proper, advocacy. As it turns out, they were quite correct. But the trial court, in apparent haste to vindicate its previous order, swept aside the merits of the matter and punished the lawyers for doing their job.
Please note that I’m not condemning all impositions of sanctions. Some of them are richly deserved; the sanctioned parties have bought and paid for them by egregious conduct. But in this instance, a judge decided to punish lawyers because they dared to advance a reasoned objection to her decree.
Today – thank goodness – the Supreme Court reverses the sanctions against both lawyers and dismisses the rule against them. The court first agrees with Shebelskie that he had neither signed a pleading nor made an oral motion; all he had done was argue in response to Husband’s motion. If the legislature had intended to make all arguments potentially sanctionable, it could have used language to that effect.
Turning to the sanction against Wright, the justices find that his pleading was objectively reasonable. An order to perform something can only be enforced by contempt where the obligation is clear and definite. The underlying order was neither; as Wright correctly observed, it didn’t require payment of a sum certain and it contained no deadline for compliance. Since a lawyer in this situation “’after reasonable inquiry, could have formed a reasonable belief’ that the arguments set forth in the Show Cause Response Brief were ‘warranted by existing law’ governing contempt,” the sanction order is reversed.
I’ve railed above against the overuse of sanctions and I won’t repeat that here. I’ll add that ultimately it’s up to us, as lawyers, to exercise judgment and discretion in making such motions, reserving them for the truly egregious situation instead of launching at the first hint that they might deliver some tactical advantage in litigation. Of course, that wouldn’t have stopped this ill-advised sanction, which was imposed sua sponte by a judge. But the bar should make an effort to curb the disastrous rise of sanctions as a weapon. As members of a self-regulated industry, we can achieve as much or more by just acting as professionals, without resorting to this tactic.
I noted last year a remarkable development in Webb v. Virginian-Pilot Media Companies. The justices granted Webb a writ but refused the newspaper’s assignments of cross-error. After entertaining oral argument in September, the court reconsidered its refusal, granted the paper’s cross-error, and entertained yet another argument in the October session. I’ve never seen that before, and I don’t expect to see it again for a good, long time.
The case stems form a story in the Tidewater newspaper about a dispute between some students at Great Bridge High School in Chesapeake including a high-school-politics angle. In the interest of full disclosure, I’ll mention that this aspect of the story was particularly saddening for me, since I’m a Great Bridge alumnus. I would have preferred that all this had happened to our old rivals at Western Branch. But I just report on these things; I don’t make the news.
The story noted that two students at dear alma mater had a difference of opinion over something. One of the students (Patrick) got some pals together and dropped in on the other student’s (Kevin) home one evening. The homeowner, Kevin’s father, sent the posse away.
Apparently in retaliation, Kevin and his older brother Brian paid a nocturnal visit to Patrick’s home and got into an altercation with Patrick’s father. That resulted in felony charges that were eventually reduced to misdemeanors.
So far, this is looking like a slightly out-of-hand teenager’s dispute. But you need to know that the two brothers, Kevin and Brian, were star pole vaulters at Great Bridge (Brian had already graduated). Their father formerly coached pole vaulters there and was at the time assigned as an administrator at another local high school.
Here’s where the issue of politics comes in: School administrators allowed Kevin to remain at Great Bridge and to continue to compete on the track team, while Patrick was told that he needed to transfer to another high school. The implication, of course, is that Kevin got preferential treatment because he was a star athlete, while Patrick, the ordinary student, was to be shuttled off elsewhere.
The newspaper story reported this in the context of the father’s position as a school administrator, but a Great Bridge representative was quoted as saying that the athlete didn’t get preferential treatment because of who his father was. Despite this disclaimer, the father sued the newspaper, claiming that the story had clearly indicated that he improperly exerted some “pull” to get cushy treatment for his son. The trial court overruled a demurrer and submitted the case to a jury, which awarded the father $3 million. Alas; the judge set the verdict aside and entered judgment for the paper.
Today, the justices don’t even get to the father’s assignment of error; they affirm after unanimously finding that the trial court should have sustained the paper’s demurrer to the claim. The court specifically rules that the claims fails at the innuendo stage, since the story cannot be fairly read as a report that the father pulled strings to get his son a sweetheart disciplinary deal. Now, you know that the courts have to draw inferences in favor of the plaintiff in such cases, but the court notes that even by doing so, you don’t get to an indictment of the father. At worst, you get the possibility that Great Bridge officials may have acted “out of sympathy or regard for [the father],” but nothing in the story ever suggested that the father had intervened. Indeed, the story contained exactly the opposite report. Accordingly, the court affirms under a different analysis than the trial court’s decision.
There’s one interesting procedural angle here. Normally, when a trial court sustains a demurrer, the plaintiff is permitted to amend his pleading, unless such an amendment would be futile. In the past, when a trial court has overruled a demurrer and the Supreme Court has reversed that, the court has remanded in order to allow the plaintiff that same opportunity to replead. That is, a plaintiff doesn’t lose the right to amend merely because he succeeded in convincing the judge that he stated a valid claim.
Today, the Supreme Court rules that the judgment is affirmed because the demurrer should have been sustained. Wouldn’t that mean that they should have remanded, to allow the father to replead if he wanted to? Not necessarily; my well-worn (but never dusty) copy of Burks’ Pleading and Practice indicates that if the plaintiff has already amended his pleading, or if the appellate court can see that a good cause cannot be stated, then it can enter final judgment without providing for amendment. In this appeal, the plaintiff’s case derives wholly from a newspaper article, and the contents of that article aren’t going to change no matter how the father could have rephrased his pleadings.
One other important procedural note: Today’s opinion twice mentions a specific holding that practitioners should note well:
[T]he question of whether the article is reasonably capable of the defamatory meaning Phillip ascribes to it is a question of law, not fact. Resolving it is an essential threshold, gatekeeping function of the court before a case is submitted to the jury.
Normally, questions of causation are issues of fact for the jury. But this specific holding cements the court’s view that judges, not juries, must make the initial call on whether given language is at least potentially defamatory.
My fellow appellate practitioners, you need to fasten your seatbelts; it’s going to be a bumpy night. (Props to Margo Channing in All About Eve.) Findlay v. Commonwealth implicates a subject that’s at the very heart of our craft – preparing sufficient assignments of error.
This is a criminal appeal in which the only substantive issue on appeal is a suppression motion. Here’s the sole assignment of error, as stated in the petition for appeal in the Court of Appeals:
The Petitioner/Appellant assigns as error the trial court’s denial of his Motion to Suppress all of the seized videos that came from the defendant’s computer, and his computer hard drive, and all derivatives thereof.
In response to that petition, the Commonwealth filed a brief that addressed only the merits of the assignment. But the Court of Appeals had other ideas, ruling sua sponte that the assignment “fails to list any specific error in the rulings below. Instead, it is no more than a base assertion that the award is contrary to law, and Rule 5A:12(c)(1)(ii) makes clear that this is not sufficient to constitute a proper assignment of error.”
Uh-oh. After the inevitable dismissal, the appellant got a writ from the justices. Today a divided court sends the case back to the CAV with instructions to consider the petition on the merits.
For several years now, appellate lawyers have agonized over the proper way to frame assignments. That’s because the justices have agonized over the same question, and the answers that they’ve given haven’t always been consistent. My faithful readers will recall well the summer of 2008, when the Supreme Court suddenly started dunking appeals because the assignments weren’t specific enough. That crackdown, as I described it, lasted the better part of a year before the court eased up.
Much more recently, the court has on occasion gone the other way, ruling against some appellants because the assignments were too specific. I posted an essay in August 2012 to report on an unpub in which the court found that the appellant had constrained himself by a very exacting assignment, and the court therefore couldn’t reach the issue that he actually wanted to appeal.
Reasonable people can disagree on how much detail is optimal in assignments. Indeed, the justices themselves disagree, as evinced by today’s 5-2 ruling. Justice Mims writes for the majority, which holds that this assignment is more than a mere assertion that the judgment is contrary to the law and the evidence. It identifies a specific ruling by the trial court (on the suppression motion), thus enabling the appellee and the reviewing court to focus attention on just what’s being appealed. That’s good enough, the court rules today.
No dice, Justice Powell responds. The rules don’t require the appellant to identify the specific ruling that’s asserted to be erroneous; they require the appellant to pinpoint “the specific errors in the rulings below.” That is, you can’t just say that the suppression motion was incorrectly decided; you have to say why.
There’s some interesting back-and-forth on a few sub-issues. For one example, the majority points to the October 2013 decision in Amin v. Henrico County, in which the court had expressly ruled that a similarly non-detailed assignment was satisfactory, so as to give the CAV jurisdiction over an appeal. In response, the dissent notes that that language was dicta, not essential to the Amin ruling. (I tend to agree with the dissent that it was dicta, though this holding was important enough for me to point out expressly in my essay on the decision.) Similarly, the dissent holds that in other cases relied upon by the majority, the Commonwealth didn’t assert below that the assignment was deficient. It concludes that that was a waiver of the right to make the challenge, so the issue wasn’t actually before the justices in those cases. The majority counters that the court is required to examine these matters sua sponte if necessary, and has done so repeatedly. (On this one, I side with the majority.)
This is one of those appeals where I see the dissent’s point quite clearly. The presence of that nasty little preposition does seem to indicate that you can’t just name the ruling; you have to describe the that’s contained error in it. And yet I’m profoundly glad that this decision comes out the way it does. As an appellate practitioner, I like being able to identify the location of the error without having to craft a novella in the assignments section. If the dissenting view had prevailed today, the assignments section in our petitions for appeal would have to be mini-briefs, outlining the specific ruling complained of, probably the parties’ respective arguments on it, and maybe the legal doctrine underlying the appellant’s contention. It would also have to include a statement of exactly where the argument was preserved, of course.
In short, I believe that the assignment is a directional arrow, pointing to the exact location of the error. The argument section is where you flesh that out and identify what was wrong about the lower court’s ruling. Fortunately for those of us who genuinely try to craft concise briefs, that line of thinking won the day today.
Bates v. Commonwealth is a very sad tale that provides few groundbreaking legal rulings. Other than evaluating the sufficiency of the trial court’s findings, I saw only one holding that’s likely to have application to similar cases.
Bates evidently suffered from either depression or some other mental illness, and sadly, resolved to kill herself. A handgun in her possession didn’t function, so she set a fire in her apartment and sat down on the floor to await her end. But as the flames grew, she changed her mind; she ran from the apartment, warning other tenants to escape (and evidently they all did).
She was indicted for arson but was found not guilty by reason of insanity. That triggered a referral to the Mental Health Commissioner for evaluation. A psychiatrist recommended outpatient treatment, but a clinical psychologist found inpatient treatment necessary. The trial court thereupon reviewed the proposed treatment plans and decided to go with inpatient, in part because of the lack of workable outpatient options.
On appeal, the Supreme Court finds that the trial court addressed the four statutory factors before concluding that Bates needed inpatient treatment. In the only legal ruling that’s likely to be precedential, the justices reject an argument that the trial court was required to find a suitable conditional-release plan. The court rules that the statutes don’t place that duty on the trial court.