[Posted January 12, 2007] There are hundreds of state courtrooms across the Commonwealth, and all of them are closed for Lee-Jackson Day. All, that is, except the highest court in the state. The Supreme Court is open for business, and today is opinion day.

The court hands down 23 published opinions today, and tort cases are the overwhelming theme of the docket. One of those, Ford Motor Co. v. Benitez, signals a significant change in the way defensive pleadings must be crafted, and will be of interest to trial lawyers in all disciplines. Given the number of opinions announced today, I will post commentary in stages throughout the day.

Civil procedure

Among today’s rulings, Ford Motor Company v. Benitez is the case that will send the biggest shock wave through the civil bar. It’s perhaps ironic that neither Ford nor Ms. Benitez were actually parties to this appeal; the real party was the attorney representing Ford.

Benitez sued Ford, alleging that she was injured in a collision, not because of the impact, but because the air bag in her car deployed improperly. She was a passenger in the front seat of a Ford vehicle. The parties conducted extensive discovery before Benitez nonsuited the case. She timely refiled.

At that point, Ford’s lawyer did what defense lawyers – and not just in the personal injury context – have been doing for generations: He pleaded just about every affirmative defense he could think of, including contrib, assumption of the risk, the statute of limitations, and others.

Benitez propounded discovery in the new suit, designed to elicit the factual basis of the defenses. On their face, some of them might seem a bit of a stretch (Contrib? By a passenger?), but the attorney fell back on the time-tested line that he was pleading these defenses in order to avoid waiving them. Benitez then moved the court to strike the defenses.

At this point, I should interject a couple of notes that may not be apparent from the opinion handed down today. The course of this litigation was apparently quite contentious, and the trial judge had evidently seen the lawyers more often than what you’d consider normal in even protracted civil litigation. And the lawyer who had signed the defensive pleading didn’t attend the hearing on Benitez’s motion; he sent an unfortunate associate to handle the matter for him.

The hearing must have been one to behold. When the court pressed the involuntary advocate for the factual basis of the defenses, she repeated the line I have set forth above. She also pointed out that discovery was not yet complete, and the parties had not yet identified their experts. She argued that discovery might reveal a valid factual predicate for some or all of the defenses. The judge wasn’t having any of that. He observed that the parties had already conducted discovery, so the defendant knew what the underlying facts of the case were. He also ruled that the time for measuring the reasonableness of a lawyer’s factual inquiry is at the time he signs the pleading, not months later, after discovery is completed. He struck several of the defenses, although he permitted Ford to retain the right to add more defenses later, if the facts should so warrant.

Believe it or not, we still haven’t reached the point of the litigation that inspired this appeal. Citing Code §8.01-271.1, the state law counterpart to federal Rule 11, the judge sanctioned Ford’s attorney (the one who signed the pleading, not the one who appeared at the hearing) for filing a pleading that was not well grounded in fact. The sanctioned attorney appealed, and got a writ.

In today’s opinion, the court confronts head-on the question of whether this approach to defensive pleading is permissible, and finds that it is not. In a ruling that will give many defense lawyers fits, the court finds that the statute applies to situations such as these, and pleading defenses with no factual basis, on the hope that a factual basis might develop later, is sanctionable. The opinion points to the provisions of Rule 1:8 (“Leave to amend [pleadings] shall be liberally granted in furtherance of the ends of justice”) as the ultimate source of relief for defenses that are discovered after the initial pleading is filed.

This ruling shouldn’t come as a shock to those who read the sanctions statute literally, with no historical context. It will probably be a major shock to those who (like me) have been pleading in exactly this fashion for years. (My friend and cyber-colleague Steve Minor, over at SW Virginia Law Blog, refers to the decision as “Outrage of the Day.”) It requires an immediate reassessment of your existing pleadings, and an immediate change in the way you craft your pleadings from here on. It also applies to offensive pleadings; plaintiff’s lawyers will have to be careful of throwing every conceivable cause of action into a suit, hoping that a factual basis will appear later.

One last note: Remember that the state sanctions statute, unlike its federal counterpart, does not contain a “safe harbor” provision. In federal court, a pleader has 21 days to withdraw an offending pleading, and if she does so, no sanctions can be imposed. The state provision mandates (and I chose that word carefully) sanctions as soon as an attorney files a pleading that violates the rule.

The court addresses a phantom statutory error in Parker v. Warren, a personal injury action in which the defendant died while the suit was ongoing. The plaintiff moved to substitute the decedent’s personal representative, which motion was granted. But the court then sustained the personal rep’s limitations plea, in an unusual approach to statutory construction. For this one, you might want to get out your copy of §8.01-229(B), so you can follow along.

Subsection (2) of that statute deals with situations in which a defendant dies before suit is filed. Before 1991, it provided only that suit could be filed against either the estate or the personal rep, and provided a time period (within the original limitations period, or within one year after the rep qualifies) for doing so. But that left several plaintiffs in the cold; suppose the defendant died and the plaintiff didn’t know it? In that case, a suit filed against the now-deceased defendant is a legal nullity (compare Hughes v. Doe, also decided today and discussed below), and the plaintiff might have unknowingly allowed the statute to lapse.

So the General Assembly created a second subpart to that statute, calling the old provision (2)(a) and the new one (2)(b). Part (2)(b) states that if a suit was brought against a deceased defendant, that suit could be amended to add the personal rep. That way, the statute addresses the problem noted above, by saving such suits.

Trouble arose, however, when the defendant, Warren, misread the two provisions, and asserted that they addressed the exact same circumstances. He argued to the trial court that what the General Assembly had really intended was to create two different provisions, covering what happens if (a) the defendant dies before suit is filed, and (b) the defendant dies after suit is filed. He persuaded the trial judge that the use of the word before in subpart (b) was actually a scrivener’s error, and what the legislature had meant was after. Under this interpretation, the amendment to name the personal rep came too late (more than two years after suit was filed), and the statute of limitations barred the suit. The court accordingly dismissed the plaintiff’s claim.

The Supreme Court corrects this misapprehension of the statute, ruling that there was no scrivener’s error. It points to the purpose of the legislation, and decides that there was, indeed, a circumstance that it covers directly, as written. As such, the trial court was wrong to apply this statute to bar the plaintiff’s claim. The case is thus remanded, and presumably the plaintiff will now get her trial against the personal rep.


The court addresses one judgment in which the trial court had barred a civil suit due to the Workers’ Compensation Act. The opinion is Crocker v. Riverside Brick & Supply Company.

Crocker is a truck driver who worked for a shipping company. The shipper was retained to deliver stone, loaded on pallets, to Riverside, which sold masonry and related products to the public. Normally, Crocker’s job in such deliveries is to back the truck up to a loading dock and then step back while the recipient’s employees offload the merchandise.

But Riverside didn’t have a loading dock. Accordingly, Riverside undertook to unload the stone with a forklift. A Riverside employee asked Crocker to help with the operation; she agreed, and hooked a strap to one pallet, then started to move away to await the unloading. Unfortunately, the Riverside employee with whom she was working didn’t wait; he started pulling with the forklift. A piece of the pallet broke off and injured Crocker.

The trial court applied the Workers’ Comp bar to dismiss Crocker’s suit against Riverside, holding that she was a statutory employee of the company. In a short (8-page) opinion, the Supreme Court reverses, holding that Crocker was not a statutory employee of the recipient of her shipment. The court cites two previous cases on the statutory employee doctrine, and concludes that “Crocker was not Riverside’s employee because, even though she endeavored to assist in unloading the pallets of stone, the unloading of the freight was the sole responsibility of Riverside.” Crocker was in the shipping business, not the masonry business, and her agreement to help in this way didn’t change that.

The court takes up the issue of the degree of circumstantial proof necessary to establish proximate causation in McGuire v. Hodges, a wrongful death case involving the drowning death of a two-year-old boy. The child died when he was able to get into a pool area in the back yard of a home the boy’s family was visiting.

At trial, the evidence was uncontested that the pool’s fence gate did not meet state or county building codes; the trial judge ruled as a matter of law that the homeowner was negligent per se. It remained for the plaintiff to prove that the negligence was a proximate cause of the death. No one saw the boy enter the pool, so the proof of that factor was left to circumstantial evidence.

The gate was not locked, but it was held closed by the owner’s wrapping a chain around the fence and gate posts. The boy was seen shortly before the accident, pulling on the chain in an attempt to get to the pool; he was quickly called away. But he was left unsupervised some time later, and managed to get in.

The trial court allowed the matter to proceed to verdict, which came back in favor of the boy’s mother, who was his personal representative. But the judge granted a motion to set the verdict aside, ruling that the plaintiff had not proven how the child had entered the pool area.

Today, the Supreme Court reverses and reinstates the verdict. It reaffirms prior caselaw that holds that, in order to get to a jury, a plaintiff must show that his theory is “a probability rather than a mere possibility.” The crucial factor in this analysis is the fact that the boy was seen pulling on the chain, thus entitling the jury to infer that he used this means to access the pool area.

Today’s opinion is very useful for its collection of cases on several issues related to proximate causation. It also rejects the defendant’s argument that the obligation to prove “how the event occurred” requires the plaintiff to disprove other possible theories of access. (Here, the plaintiff did not offer affirmative testimony that the child could not have climbed the fence, thus making the gate defect irrelevant. That contention sounds more like the standard, familiar to criminal practitioners, that the Commonwealth must disprove “al reasonable hypotheses of innocence.” In this civil context, that burden of proof does not apply.)

The issues are very different in another decision involving a juvenile, Afzall v. Commonwealth. This case implicates the Commonwealth’s ability to claim a lien against a personal injury recovery for Medicaid benefits paid for the care of the child.

After a nine-year-old boy sustained severe injuries, his parents sued a tortfeasor, and obtained a significant sum in a settlement. Medicaid benefits covered $419,000 of the boy’s medical care; the Commonwealth requested reimbursement for that amount, in full. Citing a statute that makes the Medicaid lien superior to all liens except those of the claimant’s attorney for fees and costs, the boy’s attorney calculated a pro rata share of those costs, and sent the state a net check of some $277,000. The state sent it back, saying it wanted the whole amount. The parents then filed a declaratory judgment petition, seeking a judicial determination of whether the Commonwealth was, in essence, entitled to free legal services for the recovery of its claim.

The trial court sided with the Commonwealth and ruled that the Medicaid lien must be paid in full from the proceeds. On appeal, the Commonwealth did something that appellate litigants aren’t supposed to do – it raised an argument that it concededly did not raise below. It argued for the first time that it was immune from this suit.

In the first of several very important rulings in this brief opinion, the Supreme Court agrees that the Commonwealth can raise this argument at a very late date. (Indeed, the Commonwealth did not even make this argument at the petition stage. The first suggestion of immunity came at the merits stage, which by appellate standards is pretty darned late.) The court reasons that if sovereign immunity applies, then the trial court lacks subject matter jurisdiction even to consider the claim. This makes the sovereign immunity defense different from most other immunity defenses (such as charitable immunity), since those defenses are personal and can be waived if not timely raised.

The court also notes that immunity protects the sovereign even from declaratory judgments, like this one. That result seems self-evident in this context, where the result of the declaration is to allocate money. But this ruling will have implications in other contexts, and is worth noting by practitioners who litigate against the government.

The “ultimate question,” in the court’s view, is whether the statute (8.01-66.9) evinces an intention to waive sovereign immunity toward declaratory judgment actions. The court finds that it does not, and dismisses the appeal, since the trial court didn’t have jurisdiction over the case.

It is easy to misconstrue the ultimate ruling in this case, and I will confess that I did so the first time I read it. I mistakenly thought that this ruling applied to any proceeding to force the Commonwealth to bear part of the costs of the underlying litigation. But such a proceeding can still be brought; it merely has to be the petition mentioned in 8.01-66.9. Today’s ruling holds that you can’t use the alternate means of a DJ action to get the same relief.

So what’s the difference? In a statutory petition, the court will view the equities of the situation, not merely apply a mathematical reduction, as might be sought in a DJ action. The purpose of the statute is to permit a plaintiff who has, through the efforts of her lawyer, collected certain monies for the Commonwealth, to require the government to bear a fair share of the costs of recovering the funds. In order to achieve that, the plaintiff must prove more than that she got the money; she must show that the equities of the case call for such a reduction.

In the next case we’ll consider, the court is confronted with a timeless question – What do you do when you realize you’ve made a mistake? Do you correct the error, or embalm it?

Harmon v. Sadjadi
is a medical malpractice case that implicates the seemingly straightforward, but actually quite vexing, question of what it means to qualify as a personal representative. The rub here is that the plaintiff qualified as her decedent’s personal representative in West Virginia. She filed suit in Virginia, without qualifying here; she later nonsuited that case, qualified in Virginia, and refiled. So far, so good, right?

The problem is that she filed suit the second time, more than one year after she qualified in West Virginia. The statute of limitations, Code §8.01-229(B)(1), requires that a PR file suit within one year after she qualifies. The first suit, everyone agrees, was a legal nullity, because it was filed by a party without standing to bring it. So the question here is, Does a qualification in another state suffice to trigger the commencement of the one-year statute?

Given the Supreme Court’s caselaw, specifically a 1956 decision in a very similar case, you might conclude that the answer to that question is yes. The trial court thought so, and sustained the defendants’ plea.

Remarkably, on appeal, the Supreme Court specifically holds that its earlier ruling was “a flagrant error.” It therefore reverses, thereby turning a 50-year-old legal doctrine on its head. The new rule, effective immediately, is that the one-year period mentioned in the referenced statute of limitations is triggered only by a qualification here in Virginia. The courts will disregard foreign qualifications in applying the statute.

For those of you wondering why the court would make such a bold and seemingly self-deprecating statement, here’s the Reader’s Digest version of the legal analysis. The court notes that its previous opinions have held that a foreign administrator who has not qualified here is not authorized to act. That’s the reason why Harmon nonsuited her first action. But if the administrator can’t bring a suit as a result of a foreign qualification, why should she suffer a “disability” (in the form of the creation of a statute of limitations defense) by her act of qualifying elsewhere? The court today finds those two positions to be fundamentally at odds, and irreconcilable. It thus takes the step of saying that the 1956 ruling was just flat wrong. Even those who don’t read appellate opinions for a living will recognize that something like that doesn’t come down every day.

Trial lawyers have long known that there can be more than one proximate cause of an injury. Most jury instructions on causation require that the plaintiff show that the defendant’s negligence was “a proximate cause” of the claimed damage. But need a court go further, and affirmatively advise the jury that “There may be more than one proximate cause of an event”?

Yes it does, the court answers today, in Holmes v. Levine, a medical malpractice case founded upon a failure to diagnose bladder cancer. At trial, the question of whether the patient’s death was due to the cancer, or the failure to diagnose, was hotly contested. The plaintiff and the defendant offered nearly identical causation instructions, with only one difference: The plaintiff’s included the sentence quoted above. The trial court gave the leaner version tendered by the defendant. The Supreme Court finds this to be error, particularly in a case like this where that issue was at the heart of the controversy.

I watched the oral argument on this case in November, and came away thinking that this was among the most likely reversals for that session (at least among the cases I knew something about). The defendant’s attorney conceded that the plaintiff’s extra sentence was a correct statement of the law, and admitted that if the plaintiff’s version had been granted, that would not have been reversible error.

This brings to mind one unusual aspect of appellate review that is worth repeating here. Normally, the appellee gets the facts viewed in a light most favorable to him. There are some exceptions, such as where a trial judge has set aside a jury verdict (as in McGuire v. Hodges, above). When a party offers a jury instruction that is rejected, the appellate court views the facts in a light most favorable to the party offering the instruction, and that’’ what the court does here.

The ruling also includes a couple of evidentiary holdings that will be of particular interest to med mal practitioners; these matters are adjudicated on appeal because the case is remanded for retrial. It finds that certain testimony relating to the presence of blood in the patient’s urine reflects the doctor’s “impressions and conclusions reached during . . . treatment” of the patient, and are thus admissible under the doctrine announced by the court in Pettus v. Gottfried, 269 Va. 69 (2005).

The court also announces an important refinement of the rule relating to what information an expert must disclose on cross-examination. Here, the administrator of the estate sought to introduce a statement in the death certificate about the cause of death. The trial court originally admitted the statement, but later told the jury to disregard it. On appeal, the administrator argued that the expert had consulted the certificate, and it thus fell within the exception for matters relied upon by the expert in formulating his opinion. The Supreme Court finds this argument unpersuasive, noting the difference between a document the expert has consulted and one he has “relied upon” in reaching his ultimate conclusion. Merely reading the document isn’t enough to make it admissible on cross; it genuinely has to form a part of the basis for the expert opinions discussed on direct.

Most lawyers know about the doctrine of contribution among joint tortfeasors, but most have never had to litigate it. The doctrine provides the backdrop for today’s ruling in Sullivan v. Robertson Drug Co., which is the aftermath of a tort suit filed by a patient against his doctor. The patient had sued the doctor for negligently prescribing certain prescriptions, including steroids. The doctor admitted negligence, and settled with the patient for $735,000. The doctor then sued the patient’s pharmacist, claiming that the pharmacist was jointly liable for the patient’s damages.

The jury was asked to apportion the damages among the two litigants. After deliberating, they awarded the doctor 10% of the settlement amount ($73,500), and the trial court entered judgment accordingly. The doctor sought and obtained a writ.

Today, the Supreme Court reverses on two grounds. The first, and more fundamental, implicates the nature of contribution. The court holds that contribution among tortfeasors is almost always on a 50-50 basis, and is not subject to apportionment in any other fashion except in very limited circumstances. Thus, a defendant who causes only, say, 10% of a plaintiff’s injuries ion conjunction with another defendant will generally be liable for half the damages.

The second issue is more of proof than of substantive law. The pharmacy contended that the amount of the settlement was unreasonable, given the plaintiff’s actual damages, and that it should not be responsible for a full proportionate share just because the doctor made a desperate and bad deal. Ordinarily, the pharmacy is free to pursue a claim like that, but here, it offered no evidence in support of its contention. In that circumstance, it isn’t entitled to an instruction on the reasonableness of the settlement. (The court does note that the settlement is presumed to be reasonable until proven otherwise. Today’s holding is that, as a matter of law, the pharmacy didn’t prove otherwise.)

In the next tort case, the court refuses an invitation to recognize a new tort, that of common law conspiracy to inflict emotional distress. The case is Almy v. Grisham, and involves a claim that several persons, including two handwriting examiners, intentionally inflicted emotional distress on the plaintiff.

The intentional infliction tort is strongly disfavored in Virginia, and imposes a heightened pleading standard upon plaintiffs. The tort requires proof of four elements, and today the court finds that the plaintiff’s allegations fell short of the required standard with regard to the handwriting experts; the court unanimously rules in favor of them. But the other defendants fare less well; a majority of the court rules that the plaintiff’s allegations suffice to get her past the demurrer stage, at which this case has been decided in the trial court.

The court declines, as noted above, to approve the plaintiff’s second cause of action, finding that inherent problems would overwhelm a claim of conspiracy to commit the underlying tort. Besides, the court notes, the several tortfeasors can be sued together anyway, so there is no need for the courts to entertain a separate conspiracy tort. (This last justification strikes me as troublesome, as it could be applied to many other conspiracy claims for other torts. But the court is unanimous on this point.)

Justice Kinser dissents, arguing that the pleadings do not meet the requirement that the plaintiff’s emotional distress was severe. She points to the similar claim in Harris v. Kreutzer, 271 Va. 188 (2006), in which case the court found the allegations insufficient to state a claim. The majority addresses this objection in relatively brief fashion (pages 14-15 of the slip opinion), noting that this plaintiff asserted at least one more element (albeit a big one) of emotional trauma.

One long-held tenet of tort law, in the segment of vicarious liability, is the doctrine that a verdict that exonerates an employee necessarily exonerates his employer, where the employer is sued on a theory of respondeat superior. Put more simply, if the employee isn’t liable, then the boss isn’t liable, either. But the court considers a very interesting twist on this doctrine in Hughes v. Doe.

Hughes was allegedly injured by the negligence of a nurse, but he neglected to get the name of the nurse. He filed suit against Jane Doe, R.N., and the medical center where she worked.

A couple of years later, Hughes learned Jane’s real name, and asked the trial court to substitute her in. The trial court granted that motion, but then gave Hughes an unwelcome second course to the juridical meal – he dismissed the real nurse due to the running of the statute of limitations. Turning then to the medical center, the court then dismissed it, too, citing the principle outlined above.

Hughes got a writ, and today the Supreme Court reverses in a divided opinion. The majority holds that the bright line rule set forth above only applies where the dismissal of the employee is on the merits of the claim, such as by verdict. It does not apply where, as here, the dismissal of the employee is on a technical or procedural ground.

Justice Kinser again dissents, this time joined by Justice Agee. She contends that there is no basis in the court’s jurisprudence for distinguishing between a judgment on the merits and a procedural dismissal. If the employee is exonerated in any way, then the employer is out.

This debate contains the seed of an interesting further line of analysis that the dissent only hints at, and the majority mentions not at all. (I’m not adding this because I’m so smart; I saw the oral argument, and the issue outlined here formed a part of the exchange between the court and one of the appellate lawyers.) It is not required, of course, for the plaintiff to sue both employer and employee; she can sue only the employer if she wants. So what happens if she does just that, and the statute of limitations runs on any possible claim against the employee? There technically has been no ruling in favor of the employee, but everybody and his mother knows that he’s now off the hook, scot-free. That isn’t exactly the situation we have here, as the dissent points out, but if the court’s ruling is to be applied consistently, I think today’s majority rule is the one that lends itself most readily to the proper result.

Jane Doe’s slightly more famous husband, John, also gets his day in court today, in Doe v. Terry. Terry works for VDOT as a safety service patrolman; he’s one of those unfortunate individuals you occasionally see walking along the catwalk in the tunnels around Tidewater. In the wee hours of June 1, 2002, as he walked (facing traffic, just like you’re supposed to do) inside the Hampton Roads Bridge-Tunnel, someone in a passing car evidently threw a bottle at him, striking him in the forehead and knocking him into the eastbound travel lane, out cold.

Happily no vehicles struck the helpless victim; another patrolman came to his aid and found him unconscious, lying amid broken glass, with a golf-ball sized knot on his forehead. Terry had no recollection of who threw the bottle. All he knew is that first a car, and then a truck, and then another vehicle passed him, and he was struck at about the time the third vehicle passed. He did recall hearing voices – “whooping and catcalls” – in the tunnel, but could not pinpoint who was making the noises.

In case there were ever any doubt on the point, I am never going to trade jobs with these guys, whose job is to keep us safe while working in foul air and dealing with random attacks from morons armed with bottles.

Terry sued John Doe, presumably serving his own uninsured motorist carrier. Following a $100,000 judgment for Terry, Doe got a writ. On appeal, the court addresses only one question -–whether Terry proved that Doe was “negligent.” (I use quotation marks to point out that whoever threw the bottle was not merely negligent, he was undoubtedly criminally motivated. But that’s the language of the opinion.)

This case makes an interesting contrast with McGuire v. Hodges, also decided today, and discussed above. Here, a bare majority of the court finds that Terry failed to establish that the bottle came from the driver of a passing car. The unmentioned UM policy no doubt covered the negligent acts of drivers of vehicles, but not that of passengers; in any event, the court finds that Terry failed to establish the negligence of a particular person.

Justice Kinser dissents yet again, proving herself among the court’s more prolific writers (she authors three majority opinions in other cases, in addition to these dissents), this time joined by two colleagues – Justices Lacy and Lemons. They contend, in language reminiscent of McGuire, that the plaintiff need only show that a given cause of his injury is probable, and argue that the jury had plenty to work with here. My own sense is that Terry is undone by his own testimony, in which he candidly admitted that he didn’t know whether the bottle was thrown from the driver’s or passenger’s side of the third car. Given that admission, it’s hard to maintain that the jury could have decided, without speculation, that a driver threw the bottle.

VDOT also plays a prominent role in the final tort case in this essay, an interlocutory appeal in Commonwealth v. Burns. There, VDOT a crew working in Campbell county dug a trench, two inches deep and three feet wide, along one of the travel lanes of US 460. The crew then knocked off for the night, but did not place barricades to block the trench off from traffic or warn the travelling public; nor did they illuminate the area.

Dennis Burns rode his motorcycle into this nightmare of a scene half an hour before midnight one April night in 2003. He didn’t see the trench until it was too late to avoid. He drove into it, and was thrown from the bike and killed. His personal representative filed suit against VDOT and several VDOT employees for wrongful death.

The trial court speedily dismissed VDOT from the suit, but denied the employees’ demurrer, in which they cited the public duty doctrine. Given the nature of the issues presented in the demurrer, the Supreme Court granted a rare interlocutory appeal to consider the employees’ argument that the public duty doctrine shielded them from liability.

The Supreme Court affirms the denial of the demurrer, holding that the doctrine simply does not extend as far as the employees thought it should. The employees had cited two cases in support of the doctrine, but the court notes that both of those cases deal with a public duty to prevent criminal assaults by third persons, in special relationship environments. This is no such case, the court notes. It then (perhaps ominously) goes on to note that existing public employee immunity law is sufficient to protect the employees from inappropriate liability.

A quick additional note on that last comment by the court: Public employees are generally protected from liability under the cases of James v. Jane, 221 Va. 43 (1980) and Messina v. Burden, 228 Va. 301 (1984). The means that if the employee is performing a discretionary function (one where the use of judgment is necessary), the employee is generally immune from negligence liability, while he can be liable for negligence in the performance of ministerial functions (where no judgment is necessary; you just follow a formula). When the trial date comes, the personal rep will thus have to show that the work crews exercised some judgment in deciding what precautionary measures to use before heading home for the evening.


Look, I know you hate real estate tax cases, unless you’re a government attorney. They are positively awash with multiple appraisal methods and presumptions of validity and arcane calculations. But today, the court decides one that, in comparison with many, is quite readable. The fact that it’s a golf course, and that several gazillion dollars are at stake, just sweetens the deal a bit.

Keswick Club, in Albemarle County, has operated at a loss for years. I have never teed it up there, so I don’t know why it’s in the red; perhaps it’s deferred maintenance, or it’s in a remote part of the county. But despite the gloomy financials, the owners of the club got a whopping tax bill saying that the property was valued at over $12 million. Exercising a time-honored statutory right, the club petitioned the circuit court to correct the assessments.

At trial, there was, shall we say, a noticeable difference of opinion between the parties’ appraisers. The county’s appraiser (called to testify in addition to the county real estate assessor) viewed the property as being worth about $12 million. The club’s appraiser contended that the correct figure should be $2.9 million. Now, I don’t know what the Albemarle County real estate tax rate is, but you can quickly see that there’s a whole lot of money at stake here.

The county assessor defended his figure by reference to only one of the three widely accepted methods of appraising property – the cost method. He made a conscious decision not to use the other two (the income approach and the comparable sales method), for reasons that rapidly became clear. He didn’t use the sales method because of a perceived paucity of comparable sales in the county; he declined to look at sales of golf courses in nearby counties. And he flatly refused to consider the income approach, basing that on a blanket decision not to use it for these types of properties. He also said that he had never received any information on the club’s finances. When asked if he had ever asked for that information, so that he could at least think about using that approach, he said, in essence, “Gee, no, I haven’t.”

The trial court, applying the high degree of deference normally afforded municipal tax assessments, ruled in favor of the county. But the Supreme Court, in Keswick Club v. Albemarle County, reverses, chiefly due to the curt approach used by the assessor. Here’s why:

As noted above, county assessments generally enjoy a strong presumption of correctness. The trial court made its decision using that deferential standard. But when a county knowingly disregards one or more of the three approaches, and can’t adequately explain away the refusal, it loses that precious, and often case-dispositive, presumption.

That’s exactly what happens here. The Supreme Court remands the case for the trial court to consider the matter anew, under the “less stringent standard of review” where the taxpayer simply has to prove that the county’s figure is wrong. Note that this means that this case is far from over; it’s still quite possible that the judge will accept the county’s figure. But I can attest to the power of that presumption; I handled several such tax challenges when I worked in the Virginia Beach City Attorney’s Office in the 1990’s, and I am confident that I won many close calls simply because I had that presumption in my back pocket.

Criminal law

The long and tortuous journey of Robinson v. Commonwealth finally reaches its conclusion today – at least as far as Virginia’s courts are concerned — in a ruling implicating Fourth Amendment issues of the reasonableness of a search at a private residence.

George and Elisa Robinson decided that their son’s birthday was worth a major bash. They planned a party for Junior and all his pals, and spent a thousand dollars on party supplies. Fully one-third of that sum was spent on alcohol.

The trouble was, this was Junior’s 16th birthday. The opinion doesn’t recite the ages of all of the guests, but the clear inference is that they were less than five years Junior’s senior. That, as law enforcement officers would say, constitutes a problem.

Actually, it might not have been a criminal problem of this degree if the affair had been sedate, not to mention indoors. But the Robinsons staged this affair in their back yard. That meant the neighbors could see, and three of those called the police to report underage drinking. A uniformed officer arrived at the scene, noticed lots of cars, and radioed for help. He then started walking toward the house, at which point he saw a lad of tender years holding a beer bottle. The suspect saw the officer; his eyes widened, and he did the natural thing. He shouted, “Cops!” and headed for the hills as fast as he could.

When the officer got to the back yard, he saw . . . well, you can easily imagine what he saw. There were beer bottles, full, empty, and midway, strewn all over the yard. There were teenagers, lots of them, fleeing for all they were worth. He then went up to a sliding glass door, through which he saw George and Elisa, sitting placidly. Before long, they both had the right to remain silent, on multiple counts of contributing to the delinquency of minors.

As advertised, this decision is about the Fourth Amendment, so we’ll get right to the issue: George and Elisa each claimed that the police had no right to enter the curtilage of their home without a warrant. They asked the trial court to exclude all evidence of what the police saw (and confiscated). The trial court wasn’t having any of that; he allowed the evidence in, and the unhappy couple became convicts.

They appealed, and the Court of Appeals (first by panel, and then en banc) affirmed. They appealed separately to the Supreme Court, which granted their petitions and consolidated the cases. Today, the Supreme Court affirms.

Today’s ruling focuses on an issue that technically is one of first impression, though there are plenty of rulings on related or closely analogous issue. The primary holdings are:

A police officer’s subjective intent in entering premises is irrelevant. Instead, a reviewing court focuses on an objective standard – what a reasonable law enforcement officer could have concluded from the facts and circumstances as they then existed.

The original officer had probable cause to enter the back yard (and to find all the prosecutorial goodies) because he saw a crime in progress while he was still in the front yard.

This situation presented a host of exigent circumstances, which (in conjunction with the probable cause) justified the officer’s entry without a warrant. You’ll be interested to note that one of the exigent circumstances was the safety of the juveniles, who when we last saw them were scrambling as fast as they could to get away from these community caretakers. In deciding this issue, the court rejects the Robinsons’ claim that the officer essentially manufactured the exigency by his presence. They argued unsuccessfully that the officer entered the back yard for the express purpose of inspiring the kids to scatter.

It is far too tempting for an unrepentant punster like me to attach the subheading, “Are you trying to intoxicate me, Mrs. Robinson?” to this case. (If you have not seen Dustin Hoffman and Anne Bancroft in The Graduate, you need to remedy this cultural deficit immediately.)

In the past, the Court of Appeals has struggled with the question of what, exactly is a “weapon of like kind” as described in concealed weapon statutes. Some opinions from that court have held that the intent of the possessor (specifically, to use the object as a weapon) is relevant; other opinions have held that only the characteristics of the object itself matter. Today, in Farrakhan v. Commonwealth, the Supreme Court provides some useful guidance.

Farrakhan was a felon who went into a women’s furnishings store, selected a couple of boxes of boots, and headed for the exit. The store manager confronted him at the door, and asked him to put the boxes down; Farrakhan responded by pulling a kitchen knife out of his pocket and threatening the manager, who wisely backed off and allowed the robber to escape. But Farrakhan’s liberty was short-lived; police officers (who were better armed than he was) caught him within a few minutes.

The Commonwealth charged him with robbery and possession of a concealed weapon by a convicted felon; the latter offense is a Class 6 felony. He was convicted without complication on the robbery charge, and was no doubt given an extended period of free room and board with the compliments of the Attorney General. But the weapons charge proved more problematic.

Farrakhan argued that, irrespective of his intended use of it, a kitchen knife is not a weapon “of like kind” to the ones listed in the concealed weapons statutes. Those list things like a “dirk, bowie knife, switchblade knife, ballistic knife, machete, razor,” and others. (For simplicity’s sake, I have listed only the bladed weapons; this was not a slingshot case, although that’s one of the weapons listed.) The trial court disagreed, as did the Court of Appeals in an unpublished 2005 opinion. The Supreme Court decided to take the case.

In analyzing this case, the court finds the question of whether a kitchen knife is “of like kind” to those in the statute, is secondary. The primary question, and the one that resolves this appeal, is whether it’s a weapon in the first place. In a ruling that might surprise more than one prosecutor, the court says that it is not.

It’s abundantly clear, of course, that any sort of bladed implement can be used as a weapon; the court acknowledges as much in today’s ruling. But the court finds that this offense is complete upon concealment, not when the perpetrator pulls it out and threatens someone with it. That means that the later use of the object is irrelevant to the question (there’s the resolution of that conflict among the CAV opinions).

I will admit to having wondered from time to time about this provision of the law. I often carry a utility tool that I lovingly call my “Swiss Lawyer Knife”; in fact, it’s in my pocket as I type these words. (The Capitol Police can relax; I leave it behind when I come to court.) I have mused over whether my carrying this knife, which I would not dream of using as a weapon, in my pocket might be construed as carrying a concealed weapon. Today’s ruling means that I’m safe from prosecution; the court lists other improbable examples that might ensue with a contrary ruling, such as a chef’s being convicted for innocuously bringing a knife to work in the folds of his apron.

As noted above, Farrakhan still has a considerable amount of time in custody to rethink the wisdom of robbing a store of a couple of pairs of women’s boots. But the weapons conviction is reversed.

Can the police get a search warrant where they know contraband is not located in a given place, but believe it will be located there in the future? The court takes up this question of anticipatory search warrants – sort of – in Ward v. Commonwealth, involving convictions on drug charges.

The package didn’t look right to Postal Inspector Evelyn Cross. We don’t know from today’s opinion just what it was about the box that piqued her interest; we simply know that she got a search warrant to look inside, and thereby hit the jackpot: Two pounds of marijuana and a couple of ounces of cocaine. The package had been sent from an address in Texas to a woman named Anna Wilson at 129 Church Street in Petersburg.

Instead of (or possibly in addition to) alerting the Texas authorities, they dug further, here in the Commonwealth. They found no record of a Ms. Wilson at that address, but they did determine from talking to a mail carrier that he had delivered similar packages to a similar address, 129 South Old Church Street. He told postal inspectors that a man named Ward had accepted those packages.

Now, here’s an opportunity if there ever was one. Officers resealed the package, and got a search warrant to look at the South Old Church Street address for drug, paraphernalia, and money. The officers conditioned the warrant in such a way that they would only search the premises if the package was accepted for delivery. A magistrate went along, and issued the anticipatory warrant. At that point, the trap was set and baited.

The postal inspector, posing as a plain vanilla mail carrier, went to the South Old Church Street address and found Ward outside. She handed him the package and asked if Anna Wilson lived there. Ward, who evidently does not have a degree in rocket science from MIT, looked it over and said the package was his.

The trap now sprung, officers returned a few minutes later and executed the warrant. They found the package on a table, still unopened, but also located 62 small plastic bags “of the type used to package marijuana in $10 to $20 amounts,” plus $250 in cash, both stored in the safest of locations – under Ward’s mattress. Confronted with this, Ward told the officers that the package wasn’t his after all; he must have been mistaken before.

At the inevitable motion to suppress, Ward asked the court to find that the use of this anticipatory warrant was improper because, among other things, there was no nexus between the address on the package (on Church Street) and the premises to be searched (on South Old Church Street). The trial court didn’t bite; Ward got convicted. The Court of Appeals affirmed, and Ward appealed onward to the Supreme Court.

Much of today’s opinion is a discussion of what is, in the end, an issue that doesn’t bear on the ultimate conclusion. I’ll cut right to the bottom line here: The court affirms the conviction, but on a different ground than had the CAV, which had approved the use of the anticipatory warrant. The Supreme Court discusses this doctrine, and throws in some very interesting language about the inherent potential for abuse by law enforcement officers. But the court affirms today based on the alternate approach of the good faith exception to the exclusionary rule, as outlined in US v. Leon, 468 US 897 (1984). It finds that the officers relied in good faith upon the issuance of the warrant, and did not lie in order to get it. Thus, while the court assumes without deciding that the warrant was defective, Ward gets no relief.

Criminal attorneys will nevertheless be able to use the dicta from today’s opinion in evaluating the propriety of future anticipatory search warrants.

The court also hands down one habeas corpus ruling today, in West v. Director, DOC. West had been convicted of aggravated involuntary manslaughter and of involuntary manslaughter after killing another person in a vehicular collision while West was intoxicated. He got concurrent five-year sentences for the two felonies, and appealed back in 2004. The Court of Appeals and the Supreme Court both ruled that West did not properly preserve in the trial court the objection he made on appeal, that the two convictions constituted double jeopardy.

Criminal practitioners recognize that a ruling like that is basically an invitation for the prisoner to file a habeas petition, asserting ineffective assistance of counsel, and that’s what happened here. Filing the petition in the first instance in the Supreme Court (did you know you can do that, instead of starting out in the trial court?), he contended that but for the mistake of his trial lawyer in not making a double jeopardy argument, he would not have been convicted of the lesser of the two charges.

(Now, in fairness to the trial lawyer, you should know that he came awfully close to making the DJ argument, asserting that the Commonwealth was required to elect between the two charges. But the courts didn’t find that to be specific enough.)

Ineffective assistance petitions like this are measured by the standards set forth in Strickland v. Washington, 466 US 668 (1984). There’s a two-part test. First, the courts decide whether the attorney’s advocacy fell below an objective standard of reasonableness. If so, the court then inquires whether the result probably would have been different. (I’m paraphrasing slightly here for simplicity; practitioners should go and read the caselaw for the specific wording.) The court finds today that West meets both of these criteria for relief.

But there are two additional hurdles here. The Commonwealth asked the court to refuse relief based on something called the concurrent sentencing doctrine. That doctrine, based on judicial economy, allows a court to decline to afford relief on one conviction where the defendant was concurrently sentenced on another charge that is not challenged on appeal. The court flatly rejects this request, noting that the doctrine, as applied in other courts, “assigns a higher priority to concerns of judicial efficiency than to relief entitled a petitioner under our federal constitution.” When you read language like this, you have a pretty good idea how this will come out. In my opinion, future governmental appellees in Virginia need not waste the paper and ink to seek succor from this doctrine.

The Commonwealth’s second, and last, resort is to argue that habeas relief is only available where the result will be to obtain the release of the prisoner. It thus contends that the court has no jurisdiction to award the requested writ. This one is a much closer call than the concurrent sentencing doctrine; no matter what the court decides today, West will still have a Department of Corrections mailing address for five years. But the court brushes aside this objection as well, noting that West will at least be released from confinement for the lesser manslaughter charge. That’s good enough as a legal prerequisite for habeas relief.

Real property

After reading the fact pattern of Cline v. Berg, I’m planning to go from door to door in my neighborhood, thanking each neighbor in turn.

Berg and the Clines are neighbors in Augusta County, but the relationship was anything but pleasant. After evidently having had enough of Berg, the Clines moved out of their house next door, and built a new one on a hilltop, still adjacent to his property, but 1/3 of a mile away. That should have been the end of it, but if it were, we wouldn’t have the topic of today’s sermon.

Shortly after they moved, the Clines discovered that Berg had constructed a large tripod, on which he had mounted flood lights and sensors. The lights were pointed directly at their new home, and came on whenever they turned their own lights on. One witness likened the lights to someone’s shining a car’s high beams at the house.

But there’s more; Berg also installed surveillance camera on his property, pointed . . . well, you know. As a result, whenever the Clines went outside, the lights came on and the beams tracked them wherever they went. They eventually got their lawyer to write a cease-and-desist letter to Berg, in response to which he decreased the wattage of the bulbs a bit, but otherwise continued undeterred.

So after one more letter did nothing, the Clines took action: They built one of the ugliest walls imaginable, 32 feet high and 200 feet long, on their property adjacent to Berg’s land. The monstrosity was constructed of utility poles, from which plastic sheeting was stretched. Ugly or not, it blocked off Berg’s previous view. Berg then did the All-American thing – he sued the Clines, claiming that the fence was a nuisance.

Today’s opinion notes that the trial judge believed that Berg was lying about the whole matter, specifically his claims of an innocent reason for putting up the lights and cameras. He also believed that Berg came into a court of equity with unclean hands, which ordinarily would bar equitable relief. But the court’s distaste for the fence was even stronger than its distaste for Berg and his antics; it granted Berg’s request for an injunction to remove the fence, which it termed “an ugly scar on a beautiful area.” The Clines got a writ.

I’m not sure if your rooting interests in this case are the same as mine, but in the hope that we’re on the same page, here is today’s result: Fortunately, the Supreme Court reverses. The specific holding is that the trial court abused its discretion in awarding injunctive relief to a litigant who came into the courtroom with such profoundly unclean hands. Ordinarily, matters such as whether to grant equitable relief are left to “the sound discretion of the chancellor,” but here, the equities were perfectly plain.

This opinion will be useful to those who seek discretionary relief in equity cases, and to those wondering how their own neighbors stack up against others’.

While Berg and the Clines evidently live out in the country, where there’s lots of breathing room, the parties in Kuznicki v. Mason were in far more cramped quarters; they live in a condominium, with the Kuznickis living directly above the Masons. The real dispute here, however, isn’t about the units, but about the Kuznickis’ back yard.

When your back yard is only 100 square feet, any encroachment into it is likely to be magnified. The Kuznickis’ back yard, under the condo documents, was their limited common element; that is, a part of the condominium’s common elements that they have the exclusive right to use and enjoy. There is one small easement within that area, though: The air conditioners for both families’ units are located in the Kuznickis’ yard.

This isn’t a major issue; the units are only 20 by 29 inches. But when the Masons’ climate control system went on the fritz in 2004, they bought a new heat pump, and they got a good one, measuring 42 by 30 inches. That’s not a huge difference, but as you can imagine, it’s starting to crowd the small yard. Workmen installed the unit without getting the Kuznickis’ consent. The Kuznickis, predictably, complained, eventually resulting in a suit seeking removal of the heat pump and monetary damages.

The trial court declined to award relief, evidently finding the encroachment to be minimal. It declined to rule on the Masons’ assertion that the Kuznickis lacked standing to bring the suit. This issue is the principal topic of discussion in today’s opinion.

If you’ve ever lived in a condominium, you know that there are a lot of rules. You also know that you surrender to the association many of the rights you would otherwise enjoy, if you lived, say, next door to Mr. Berg in the previous case. One of those rights, the Kuznickis learn today to their disappointment, is the right to sue over a violation of your right to enjoy your limited common elements.

This might seem counterintuitive, but no one ever said condominium law was intuitive. Despite the fact that the postage-stamp back yard was designated as the Kuznickis’ limited common element, and the fact that they have the sole right to use it, to the exclusion of everyone else, they don’t have the right to sue to enforce that right. By state law, Code §55-79.80(B), that right has been irrevocably assigned to the association, so the Kuznickis don’t have the power to sue to protect the boundaries of their own back yard.

Still want to plunk down some money for that nice waterfront condo? Hmmm??

The court discusses some related principles in Westlake Properties v. Westlake Pointe Property Owners Ass’n, a case arising out of a townhouse development adjacent to Smith Mountain Lake. The developer installed a septic tank system that failed after a heavy rain caused significant soil erosion (just three months after it turned control of the property over to the homeowners’ association).

The principal issues at trial, and on appeal, did not center on whether the developer was negligent, or whether the fix was costly. The first was conceded, and the second was quite evident. This case presents yet another question of who the proper party is in association litigation, and once again, the answer to the question is that the association is the proper party in interest.

Since I’ve gone ahead and spilled the beans on the ruling, I’ll just summarize the court’s holdings here:

Where the association owns the septic system, and has the responsibility to maintain it, then the association is the real party in interest in a claim that it was negligently installed, despite the fact that the system is located on individual owners’ lands.

An association filing such proceedings is suing to vindicate its own interests, not that of the unit owners. (This ruling was necessitated by the developer’s contention that the association couldn’t sue in a representative capacity.)

You can’t call an adverse party to testify, merely for the purpose of impeaching him with a prior felony conviction. This, considering the very strong language used by the court, is a major no-no. However, in the context of this case, the trial court’s decision to grant a cautionary instruction instead of a mistrial is not an abuse of discretion. That’s because liability was quite clear from the evidence, and the damages awarded by the jury were rationally related to the evidence on that point.

The trial court’s approach to damages is affirmed. The court had admitted evidence of the cost to scrap the existing system and start over, instead of requiring proof of the cost to repair the old system. Since the cost of starting over was in fact less than trying to jerry-rig the old one, it’s proper to assess damages in terms of the cost of the new system.

There are relatively few cases explaining the contours of the undue influence doctrine, but we get a new one today: Bailey v. Turnbow involves real property in Tidewater, and an elderly lady with no children but twelve nieces and nephews.

Annerbell Brewer lived with her husband in a house in Chesapeake. The couple acquired the property in a swap with one of their nephews, and resided there until Mr. Brewer died in 1989. The widow continued to live there until the late 90’s, when her health began to fail. She entrusted her financial matters to a niece, and eventually checked herself into a nursing home. After less than two months there, she had had enough; she called the nephew (the same one who had built the house) and asked him to pick her up and take her home. Two months after that, she joined her husband in the next world.

Over the last few months of her life, the widow had become close with the nephew and his family; after she left the nursing home, she spent most of her remaining time at the nephew’s home. During that final two months, she transferred the title to her car and her home, in such a way that the nephew would assume title to each upon her death. The nephew did as she asked, and had a deed prepared; the widow signed it, and the nephew recorded it. (The actual legal arrangement was a deed conveying title outright to the nephew, but reserving a life estate to the aunt.)

When the widow’s will was read, the set of nieces and nephews learned that she had left her entire estate to them, equally. They then learned about the deed to the house. The niece (Remember her? She’s the one who handled the aunt’s financial affairs) was named as executrix, and sued to rescind the deed, for the benefit of the other heirs.

The trial court applied a presumption, found in cases of undue influence, that whenever a confidential relationship applies and property is transferred like this, undue influence is presumed. This has the effect of shifting the burden of proof to the beneficiary, to show that no undue influence existed. The court held that the nephew did not rebut that presumption, so it cancelled the deed.

Not so fast; the Supreme Court reverses today, holding that the niece/executrix, not the nephew, was the only one who could possibly have had any undue influence. That’s because the basis of the confidential relationship must be financial counsel and control. And the nephew never did any of those things. Accordingly, the presumption never arose, and the trial court was wrong to apply it. On the evidence presented, there simply was no basis for finding any improper influence by the nephew, and certainly not by the demanding clear-and-convincing standard required in such cases. The nephew thus gets to keep the house.

Sexually Violent Predators

Most people figure that if a criminal defendant is acquitted of a charge, the allegations against him are dead, and can’t be used against him in any later proceedings. But think again – remember the O.J. Simpson wrongful death trial, in which the defendant had to face a civil suit over the deaths he had been tried for, and acquitted? You know how that came out . . .

The key there, a lower burden of proof in a civil case than in a criminal one, plays a prominent role in Ellison v. Commonwealth, where an inmate had to face allegations he had already once beaten. Ellison was sentenced in a rape case to 50 years in prison, but almost 43 of those were suspended. When his release date neared, he was identified for evaluation under the Sexually Violent Predator Act. Initial testing showed him to be a potential predator, so the circuit court convened a trial to determine whether he should be civilly committed after his prospective release date.

At trial, the Commonwealth offered evidence of a 1997 rape charge. In that case, a jury had acquitted Ellison, but the Commonwealth still wanted to use the victim’s testimony against him. Ellison objected, but the trial court admitted the evidence, and eventually ordered the civil commitment. Ellison appealed.

The Supreme Court analyzes two key issues here, those of collateral estoppel and double jeopardy. It rejects Ellison’s contentions in each instance. As for collateral estoppel, the court finds that the underlying factual issue, of whether Ellison in fact committed the 1997 rape, was not necessarily decided. That might give some of my readers pause, but the court reasons that the higher standard of proof in criminal cases (beyond a reasonable doubt) than in SVPA commitments (clear and convincing) might mean that the exact same evidence could lead to different results in the two distinct proceedings. Just as in the Simpson case, while a criminal jury might find reasonable doubt, a civil jury might well believe that the evidence clearly preponderated in favor of the plaintiff.

There is one interesting twist here, and that is Ellison’s argument that the parties to the proceeding are the same. (The Attorney General tries to slip this trap by arguing that the moving party in the criminal case was the Commonwealth, but the moving party in the SVPA proceeding is the Attorney General. This argument merits a speedy rejection from the court, and was destined to fail when you consider that the SVPA pleadings were drafted by the AG, and listed the Commonwealth as the moving party.) That won’t be the case in a follow-up wrongful death suit, such as the Simpson civil case. Still, the difference in the burdens of proof justifies the repeated use of the testimony.

As for double jeopardy, the court quickly dismisses Ellison’s contention by acknowledging that SVPA commitment is not punitive. Like other forms of involuntary civil commitment, such as for mental incapacity, these proceedings achieve the purposes of protection of the public and rehabilitation, and are not designed to punish the defendant. Double jeopardy prohibits two criminal sanctions for the same conduct, and as this proceeding isn’t criminal, the doctrine doesn’t apply.

Administrative law

The Department of Social Services regulates “child day centers,” but there are statutory exemptions for some programs to escape regulation and licensure. One of those exemptions is for programs that, by written policy, permit children “to enter and leave the premises without permission or supervision.”

Based on this exemption, the Department had declined to require licensure from four martial arts studios in the Richmond area, all of which had such a written policy in place. The studios have only two programs that would otherwise require licensure – an after school program, and a summer camp. But in 2004, the Department’s investigators observed something funny going on: Ironically, the studios were being good shepherds of their young charges, and were controlling entries and exits, in apparent contravention of the policy. These seemingly responsible acts landed the studios in regulatory hot water; the Department insisted that they get licenses as child day centers.

Now, nobody voluntarily exposes himself to the bureaucratic nightmare of governmental regulation if he can avoid it. The studios thought the best way to respond to the demand was to go to court; they filed separate declaratory judgment actions (later consolidated) asking the court to rule that they were not subject to licensure, or exempt.

At the trial, the court looked at the statute, and apparently decided that all a facility had to do in order to avoid regulation was to have a written policy; the separate question of whether the facility actually honored that policy was immaterial. He looked at the policy, decided that it clearly met the statute’s requirements, and entered judgment for the studios.

On appeal, the court first has to tackle the question of whether or not the trial court had in fact ruled on the second issue (whether these studios actually followed their written policies). Believe it or not, the parties actually differed on whether the trial court had even reached that issue. Utilizing the maxim that courts of record speak through their orders, the Supreme Court concludes that no such ruling was ever made, leaving unresolved for now the question of whether the studios followed their policies in fact, or not.

Given today’s ruling, in Commissioner v. Martial Arts World of Richmond, that question is a vital one; the court rules that merely having a policy like this, without regard to whether it is a phantom gesture, is not sufficient to meet the requirements for an exemption. The court finds that the statute mandates that such a come-and-go policy actually be in place, and that it be memorialized by a written statement. The case is thus remanded, for the trial court to rule on whether the studios’ actions match their policies.