ANALYSIS OF JANUARY 13, 2012 SUPREME COURT OPINIONS

[Posted January 13, 2012] The Supreme Court hands down twenty published opinions today, making Friday the 13th an unlucky day for exactly half of the litigants. The most significant news item of the day is the court’s affirmance of two death sentences imposed upon Alfredo Prieto after remand for a new penalty-phase proceeding.

Many of today’s rulings are long, and a surprising number contain dissents (and there are quite a few concurrences, too). This court has been known for its near-unanimity in the past, but the addition of the court’s two newest justices has made things quite interesting for courtwatchers. Given the length of these opinions, I expect my job to go a bit slower than normal this time around; I ask that you please bear with me as I sort through the opinions today and through the weekend.

My friend and fellow appellate lawyer Jeff Summers has already posted analysis of two cases that are right up his alley: Campbell County v. Royal and Jean Moreau & Associates v. Health Center Commission both involve county-liabilty questions, and Jeff is a former county attorney. (I used to work in a city attorney’s office, but cities and counties are still different in Virginia.) Rather than duplicate his analysis, I’ll just give you a link to his website and invite you to check out what he has to say.

Workers’ Compensation
Employers covered by the Workers’ Comp Act are required to carry insurance, and the law imposes significant penalties upon those employers who don’t carry it. But do those consequences include the potential for double liability for the same injury? We find out today in Redifer v. Chester.

Chester is one of those rare creatures, a lawyer and a sheep farmer. No, really, he is; he operates two companies aside from his law practice to own a sheep farm and to operate it. He carries Comp insurance for his law practice, but didn’t insure the sheep side of his business empire. One of his farm employees sustained an injury on the job, and filed a claim for Comp benefits.

But the employee also filed a civil suit against the company, alleging negligence that proximately caused the injury. While the Comp bar would normally prohibit a tort recovery, the employee isn’t forbidden to take this dual approach; he can pursue both remedies at once if he wants, to see how he does.

In a couple of past cases from the 1970s, both cited in today’s opinion, the Supreme Court had addressed similar issues. In one, the court ruled that the unsuccessful pursuit of a tort action does not bar a later Comp claim. In the other, an employee was permitted to sue in tort where he had actually obtained a Comp award, but the award remained unsatisfied.

Today’s case presents a different scenario, because the employee wanted to pursue his tort claim after he had been paid for the Comp award. This is too much for the justices to stomach; the court holds that while an injured employee may pursue alternate remedies, simultaneously or in sequence, he’s entitled to only one recovery. The court thus affirms the trial court’s dismissal of the civil suit.

In the other Workers’ Comp decision released today, Moore v. Virginia Int’l Terminals, the justices take up the question of statutory employment. Moore was an employee of a stevedoring company that operated at VIT’s terminal in Tidewater. He was killed in an on-the-job accident, and his personal representative sued VIT and the other employee involved in the accident. The trial court sustained a plea in bar based on the Comp Act’s exclusivity provisions, finding that VIT was the statutory employer of the decedent’s company.

The Supreme Court reverses today, noting that there are two necessary components of statutory employment. First, the work undertaken by the employee must be within the defendant’s trade, business, or occupation; and second, there must be a contract between the defendant and another entity to perform that work. The trial court found both of these tests to have been met. It ruled that stevedoring operations were within VIT’s “trade” (there’s a nuance here because VIT is a corporation created by a public entity, the Virginia Port Authority), and that by agreeing to work within VIT’s established schedule of rates, Moore’s employer had an implicit contract with VIT.

Alas for VIT; the Supreme Court has already decided this issue, holding that a schedule of rates “is not a contract to perform the actual loading and unloading of any particular vessel. The decedent’s employer had a contract with the owner of a ship, but merely abiding but VIT’s rate schedule didn’t constitute a contract, so the requirements for establish VIT’s status as Moore’s statutory employer fall short.

Justice Powell authors the majority opinion, while Justice McClanahan files a concurrence, finding it unnecessary to go the precise route selected by the majority. But either path sends the case back to the trial court for a trial on the merits.

Habeas corpus
Okay, somebody’s going to say this about Lahey v. Johnson, so I might as well be the one: This decision is what happens when you’re a day late and a dollar short.

Lahey is in prison for attempted murder, and is serving a lengthy sentence. He submitted a habeas-corpus petition, and it was on time – received in the clerk’s office on the precise due date. He even included a check for the $32 filing fee, instead of filing an in-forma-pauperis motion.

This all seems perfectly normal, except that the filing fee is $37, not $32. He’s five bucks short. The local clerk e-mailed Lahey’s lawyer to let him know about the problem; the lawyer dropped another check, this one for $5, in the mail the very next day. Because this was around the end of the year and near a weekend, the supplementary check arrived about a week after the original due date. The clerk thereupon marked the petition as filed on the later date.

But the later date was beyond the statute of limitations allowed for habeas petitions, so the Director of the Department of Corrections (he’s the Johnson after the v) moved the trial court to dismiss the petition as untimely. The trial court agreed and dismissed the case.

On appeal, the inmate argues that the court shouldn’t have regarded the petition as untimely, because it was received on time. Only the check was late, but that’s just an administrative detail. (I’m paraphrasing here just a tad, but that’s the gist of assignment 1.) He also contended that the trial court erroneously regarded the tendering of the full filing fee in advance to be jurisdictional, arguing that the court should instead have applied equitable tolling or substantial compliance.

On its face, there is a certain equitable appeal to these arguments. Unfortunately, when equitable considerations duke it out with unambiguous statutes, the statutes almost always win; that’s not a fair fight. Here, Lahey is undone by two such legislative acts: The drop-dead date for filing, and another statute that provides that a habeas petition “will not be filed without payment of court costs” or an IFP petition. Since the petition has to be filed within two years, and it can’t be filed without the full fee, this petition is technically seven days late and five dollars short, and the inmate loses.

The court points out that there is one technical-compliance provision in the habeas statutes, and the inmate tries to grab at that thin reed. But today’s opinion notes that that provision only applies to minor defects in the contents of the petition, not to the mandatory tendering of the filing fee.

Criminal law
The longest opinion of the day, on a day when several came in at more than 30 pages, is the appeal and death-sentence review Prieto v. Commonwealth, which returns to the court for a second screening. The justices affirmed the convictions back in 2009, but remanded the case for a new sentencing proceeding. A second jury recommended two death sentences, and the trial judge imposed them.

Today’s opinion, as noted above, is for two purposes: Prieto’s appeal of the proceedings, and the statutorily mandated review of the death sentences. (The Supreme Court must review all sentences of death, even if the defendant chooses not to appeal.) The overwhelming majority of the 195 assignments of error (no, that’s not a typo) are found to be defaulted, largely because they weren’t argued in Prieto’s brief. Many others fall victim to Rule 5:25. The court analyzes nine separate assignments in detail today, and affirms on each of them. Those include allegations that the trial judge should have recused himself for bias; that the court allowed impermissible victim-impact testimony relating to the future dangerousness component; and that requiring Prieto to answer questions from a government psychiatric expert violated his Fifth Amendment rights.

I’ll comment on a couple of specific rulings that caught my eye. First, there’s a plausible-seeming contention relating to this statement from the prosecutor in closing argument: “We have waited in vain to hear an ounce of remorse leak out anywhere, but there was none.” As criminal-law practitioners know well, when a defendant exercises his right not to testify, the prosecution can’t comment on that, as if to imply to the jury, “If he really had an excuse, he would have gotten up here and told you so.” But in context, this argument fails, because several witnesses had been asked whether Prieto had expressed any remorse, and each of them said, “No.” In this light, the argument isn’t necessarily a comment about Prieto’s failure to take the stand; it’s a summary of what he has told others.

Next, the court takes up Prieto’s suggestion of bias in the county’s pool of potential veniremen. The court rules that he’s waived the most important aspect of this challenge, and then turns to Prieto’s suggestion that he had good cause to excuse the waiver. Appellate lawyers will immediately recognize the importance of this issue; good-cause exceptions are very, very rare, and any guidance we can get is always welcome. Here’s the relevant part of the discussion from today’s opinion:

[Prieto] does not say, however, what that good cause was; rather, he submits that he should have been excused from the waiver because “death is different.” While we acknowledge that death is the ultimate punishment, that is not itself reason enough to grant him relief from the waiver, for we have routinely found waiver in capital cases.

That tells appellants that in making a good-cause claim, there has to be some sort of good reason, and “But I’ll die otherwise” isn’t a good reason. The court has previously ruled that way on numerous occasions.

The court also conducts the mandatory review of the death sentences, but it finds nothing wrong with the jury’s decision; nor does the court find that the decisions were excessive or disproportionate. The death sentences are therefore affirmed.

Here’s a question for law students taking Miranda 101. Once a suspect, in a custodial interrogation, says, “That’s what I want, a lawyer, man,” may police officers continue to interrogate him? The answer, which comes in Stevens v. Commonwealth, might surprise even seasoned criminal-law practitioners.

Stevens was arrested on suspicion of two murders and several related charges. He was Mirandized and spoke with police for two hours without requesting a lawyer, but he didn’t make any incriminating statements, so that didn’t hurt him. The next day, he was brought to the courthouse for an initial appearance, which would include appointment of counsel if he wanted one. But because of a paperwork mixup, he was sent to the wrong court (JDR instead of GDC), so plans were made to send him back to jail until the right court was in session.

While in a holding cell, Stevens let it be known that he wanted to talk with the officers again. He was brought to an office, and in a recorded conversation, he acknowledged that he still understood his Miranda rights. That’s when the following exchange took place, between Stevens and two officers named Chaney and Nicholson:

Chaney: You can have a lawyer present if you want one.

Stevens: I want, that’s what I need. I want to know what’s, you know what I’m saying.

Chaney: You can stop answering at any time.

Stevens: That’s what I want, a lawyer, man.

Chaney: You do want a lawyer.

Stevens: I mean, that’s what I thought they brought me up here for today.

Nicholson: Well they gonna appoint you a lawyer. I mean you gonna get a lawyer.

Chaney: The question is do you want a lawyer before you talk to us again or are you willing to talk to us?

Stevens: I mean I’ll listen to ya but you already said if I could stop if I wanted.

Chaney: Stop answering at any time you want to.

See the problem? Viewed out of context, the statement, “That’s what I want, a lawyer, man,” looks awfully like an unambiguous request for counsel. Stevens argued that, pursuant to well-established caselaw, “all questioning must cease” as soon as he intones those magic words. But the context supplies a different possible meaning for the statement: Stevens wanted a lawyer to represent him in court, and thought that was why he had been brought over from the jail, but was still willing to engage in uncounseled conversation with the police officers.

During the ensuing conversation, Stevens predictably made inculpatory statements that helped to convict him; he was sent to prison for a term well in excess of anyone’s anticipated life expectancy. On appeal, the issue is whether the police had the right to ask clarifying questions to determine whether Stevens was invoking his Miranda right to confer with counsel before continuing the interview, or was merely reciting his understanding of why he was in the building in the first place, and indicating that he would ask the court to appoint counsel to represent him at trial.

The Supreme Court unanimously rules today that the officers were entitled to ask clarifying questions to ascertain Stevens’s meaning, so the convictions are affirmed. Acknowledging that a suspect’s “postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself,” the court finds nothing wrong with referring to pre-request responses to indicate an ambiguity that would call for clarifying questions. Here, the preexisting context of the conversation could have given a reasonable officer pause to wonder what, precisely, was being requested, so the officers acted appropriately in asking for that clarification.

If this seems wrong to you, I encourage you to reconsider, and to read the entire line of questioning (which I’ve truncated somewhat; a longer version of the exchange is contained in the opinion, at pages 3-4), keeping in mind that a request for counsel under Miranda must be unambiguous. Despite my initial unease with this concept, I now fully agree that this is the right ruling, on this record. Here, the police officers could reasonably have been unsure what Stevens was saying, and in these circumstances, it’s okay to find out before you close the questioning.

Miranda v. Arizona plays a significant role in another appeal decided today: Commonwealth v. Quarles implicates the “subtle compulsion” phenomenon addressed by the US Supreme Court in Rhode Island v. Innis (1980). In Innis, the defendant incriminated himself while riding in a police car. He was a suspect in a shooting where the weapon had not been located, and one officer, speaking to another, mused, “It sure would be a shame if a little girl were to find that gun . . .” Perhaps shamed by the possibility that a child might be injured or killed, Innis led police to the missing weapon.

In Quarles, the defendant and a juvenile decided to “rob a white lady” in the Fan area of Richmond. When they saw one, they attacked her and took her cell phone. She pursued the pair for a time, and then called police. The officers located the child, then age 11, and he provided a full confession, including Quarles’s identity. Quarles was quickly arrested and brought to a police station.

Having been Mirandized, Quarles invoked his right to speak with an attorney. He then saw a detective walk out of a door, where the detective had been interviewing the juvenile for about an hour. Told by an officer that Quarles wanted an attorney, the detective responded to the officer, “[T]hat’s fine if he doesn’t want to talk to me. I wasn’t the person that robbed a white lady and hit her in the head with a brick.”

Uh-oh, thought Quarles, realizing that the kid had implicated him. He hastened to ask to speak with the detective, perhaps to try to talk his way out of the situation, or maybe just to minimize the damage. Surprisingly, the detective declined, feeling that his case was already made with the evidence he had: “No, that’s fine, you don’t have to talk to me. I’m good.”

Did you notice the “subtlety” of this approach? The detective did the opposite of questioning a suspect after a Miranda warning; he said he didn’t want to talk to the guy in the handcuffs. But Quarles insisted on having his say, and the detective accommodated him just long enough for Quarles to convict himself with incriminating statements.

The primary issue in this appeal is whether this conversation amounts to a police-initiated interrogation, or if Quarles is really the one who insisted that the dialogue continue. The trial court overruled a motion to suppress the statements, and a panel of the Court of Appeals agreed. But the CAV granted en-banc review, and reversed, holding that the detective engaged in impermissible interrogation of a suspect who had unambiguously asked for a consultation with a lawyer.

Today, the Supreme Court unanimously reverses, and reinstates the convictions of robbery and conspiracy. It finds the Innis holding to be controlling, and analyzes whether the detective “should have known that his statement was ‘reasonably likely to elicit an incriminating response’ from Quarles.” But by disavowing any interest in talking to his prime suspect, the detective did not reinitiate the conversation; that decision, unwise as it proved to be, was Quarles’s.

By the way, in a better-brains contest between your average detective and your average robbery suspect, my money’s on the detective.

I covered Collins v. Commonwealth back in December 2010, when the Court of Appeals affirmed the conviction of a North Carolina bounty hunter who apprehended the wrong man while here in Virginia. The CAV affirmed his abduction and firearm convictions, and today the Supreme Court unanimously agrees. The court holds (as did the CAV) that while the common law may once have afforded out-of-state bounty hunters the right to make arrests across state lines, this arrangement has been abrogated by statute. Here’s a bon mot from Senior Justice Carrico, who writes today’s opinion:

It is inconceivable that the General Assembly intended to impose such strict requirements upon in-state bail bondsmen and bounty hunters as those enacted as a result of the Crime Commission report, yet intended to leave out-of-staters with the unfettered right to enter Virginia and apprehend fugitive bailees without being subject to regulation.

Given that language, there should be no doubt in anyone’s mind how this one comes out.

A petition for a writ of actual innocence is technically a civil proceeding, but I’ll group Haas v. Commonwealth here with the criminal cases because of the obvious criminal-law underpinnings. Haas was convicted in 1994 for repeated sexual assaults on his minor sons, and was sentenced to two life terms. He unsuccessfully pursued direct appeal and state and federal habeas relief, without success. Almost two years ago, 16 years after the conviction and almost 18 years after the crimes, he filed a petition on the Court of Appeals, asserting that he was actually innocent.

The primary basis for the petition was the testimony, by affidavit, of the sons, now grown, recanting their trial testimony. He also produced an affidavit from his daughter, also recanting what she said at trial, and now stating that the boys’ mother had coached them to lie about their father.

The CAV considered the petition and dismissed it without remanding to a circuit court for an evidentiary hearing. Haas appealed to the Supreme Court, contending that the CAV abused its discretion by not ordering the evidentiary hearing.

The justices affirm today, noting that the decision of whether to send the case down for a hearing is within the Court of Appeals’ discretion. By statute, the intermediate appellate court “may order the circuit court” to conduct a hearing, and that decision is reviewed for abuse of the CAV’s “broad” discretion. The court finds no abuse of discretion, considering the state of the evidence. It notes that recantations are commonplace in child-sexual-abuse cases, particularly years after the original trial; those recantations are received with “great suspicion.” Today’s opinion also cites significant evidence from the trial (along with some present-day affidavits offered by the Commonwealth) that furnish plenty of reason to believe that Haas did indeed commit the crimes.

The standard of review decides far more appeals than most non-appellate lawyers will ever realize, and this is one of those. The court finds that the Court of Appeals, even without an evidentiary hearing, could easily have found that Haas failed to carry the significant burden imposed upon those who seek relief under this statute.

Senior Justice Russell’s always-clear pen gives us Branham v. Commonwealth, which involves a suppression motion and a chain-of-custody question. This case began in the wee hours of a July night in 2009, when three law-enforcement officers drove to a rural location in Amherst County to serve warrants for drug offenses on a suspect named Ford. The suspect’s driveway was a quarter-mile long, and when the officers, in two cars, got there, they found another car parked at the mouth of the driveway. The only occupant of that car was our story’s hero, Branham.

The officers pulled up behind Branham’s car, but not in such a way that would block him from driving off if he chose to do so. No emergency equipment (light or siren) was activated. One of the officers walked over to Branham and asked for a license; Branham, visibly nervous, handed it over without incident. While he ran the license to ensure that Branham was clean, the officer asked what was going on. With an imprecision that that officer found somewhat suspicious, Branham explained that he was “out looking for somebody up there [but] couldn’t find the residence.” Branham’s license indicated that he lived just a few miles away.

Okay; let’s take a moment to add this up. So far, the encounter has been consensual – and the court so holds today – but in order to go further, the officer probably needs an articulable suspicion for a Terry-style investigation. Let’s see what he’s got: At about a quarter to one in the morning, a nervous person just happens to be waiting in a driveway of a home belonging to a person for whom felony warrants have been issued. He offers an explanation that is, if not transparent, at least translucent. Is that an articulable suspicion?

One slight detour here – the officer asks Branham if he can pat him down for weapons. No problem, Branham agrees, safe in the knowledge that he doesn’t have a weapon. Then the officer asks if he can search Branham instead of just patting him down, and for some reason that eventually had Branham’s lawyer muttering to himself, Branham said okay . . . at which point the officer discovered the plastic baggie containing the white, powdery substance.

Now you see why it matters that the officer had an articulable suspicion at the point I identified earlier. The court today rules that “as the chain of events unfolded, [the officer] developed a reasonable, articulable suspicion that criminal activity was afoot.” The discussion concludes, “From these circumstances, Begley could reasonably suspect that Branham had not parked in Ford’s driveway at nearly one o’clock in the morning because he was lost.”

As criminal-law practitioners know well, these determinations are intensely fact-driven, and it’s unlikely that this precise situation will recur. But this case helps to explain the Supreme Court’s tolerance for the insight of trained, experienced law-enforcement officers who have to make snap decisions on the street.

The court also turns aside a chain-of-custody challenge in what I regard as a predictable manner. Branham argued that he didn’t get to confront all of his accusers, because, for example, the prosecution didn’t produce the mailman who delivered the certified-mail package, containing the seized baggie and its contents, from Amherst to the regional Forensic Science lab in Roanoke. The court relies on caselaw holding that public officials are presumed to have performed their assigned duties in a regular manner. The court similarly rejects a challenge based on the fact that the prosecution didn’t call another Amherst officer who had access to the evidence locker. In the absence of some indication that that officer had any contact with the evidence, he was not a “link in the chain” of custody.

Administrative law
I’ll warn you right now, you’re either going to love Eberhart v. Fairfax County Employees’ Retirement System, or it’s going to bore you right into a coma. Happily, I fall in the former group. I think you’ve gotta love any opinion that doles out this little bit of trivia, which we get courtesy of Justice Mims: “[W]hile the Code of Virginia is often regarded as the complete statutory law of the Commonwealth, that is not the case.”

He’s right, of course; in my former life as a municipal attorney, I occasionally cited the Acts of Assembly – sort of the unprocessed Code – in court, much to the chagrin of my unsuspecting adversaries. That, as Justice Mims points out, is the final word on exactly what the legislature has enacted. Sometimes there’s a mistake in printing the Code, and in those events, what’s in the Acts controls.

Here’s why this matters: Eberhart is a Fairfax teacher, and she sustained what the parties here stipulated was an injury at work. Fairfax teachers are entitled to greater disability-retirement benefits if their injuries occurred at work; they evidently get more limited benefits if the injuries are not work-related. She applied for the greater benefits, but the system’s board of trustees denied it. That seems odd, given the stipulation; she asked for rehearing, as provided by ordinance, but the board wouldn’t budge.

Eberhart figured that her next step was an appeal to circuit court. There’s a statute that says so: “An appeal of right from the action of the retirement board of any county having an urban county executive form of government on any matter in which the board has discretionary power shall lie to the circuit court of the county which has jurisdiction of the board.” Fairfax has that kind of government, so her path to the courthouse looks open.

But the trial court granted a motion to dismiss the appeal, finding that, despite this clear language in the statute, it had no jurisdiction to entertain the appeal. What in the name of Confusianus Maximus (the Roman god of statutory construction) is goin’ on here?

The county’s attorneys were smart enough to head for the Acts of Assembly, and there they found that the acts creating this supposed power of review only applied to police retirement systems; they had no application to schools or teachers. The trial court thus found that the right of review for a teacher’s determination didn’t exist, and today, the Supreme Court agrees. Eberhart had complained that the trial court impermissibly went to legislative history to interpret an unambiguous statute, something that courts generally agree is improper. But as today’s opinion points out, the Acts of Assembly aren’t legislative history; they’re legislation itself, and courts can always turn to that.

The shortest published opinion of the day is Blue Ridge Environmental Defense League v. State Water Control Board. It’s a per curiam opinion, barely more than a page long, that affirms the judgment for the reasons specified in the Court of Appeals’ published opinion. This result will gratify Judge Humphreys, who wrote the CAV’s opinion for a unanimous panel a year and a half ago.

Sanctions
Northern Virginia Real Estate v. Martins made major headlines in legal circles a year and a half ago, when a Fairfax judge imposed sanctions upon unsuccessful plaintiffs and their attorneys in the undeniably newsworthy amount of $272,000. Today, the Supreme Court takes up the matter in a 43-page opinion that will provide a comprehensive, useful guide for litigants involved in sanctions litigation.

I’m going to intentionally omit most of the factual basis for the underlying litigation, precisely because of its great complexity. Indeed, Justice Lemons, who writes today’s unanimous decision, states that he’s setting forth a detailed procedural history precisely to illustrate just how complicated things got. The Readers Digest version is that this was litigation brought by a real-estate brokerage and agent over a listing.

The plaintiffs claimed that another agent and company had conspired to cause the owner of the property to break the listing agreement and allow the defendant company to sell the property. The suit alleged conspiracy, interference with contract and contract expectancy, and defamation, and sought well over a million dollars in damages. The initial commission, if the property had sold, would have been about $37,000, although it would possibly have been less than half of that.

The trial court twice sustained demurrers, allowing the plaintiffs to replead each time. The defendants employed the lethal provisions of Rule 3:11, which allows a defendant to plead a new matter and request a reply; if the plaintiff doesn’t respond in 21 days, the new matter is taken as admitted, just as if a defendant had failed to respond to an allegation in a complaint. The plaintiffs, unfortunately, missed that deadline, and never replied at all; as a result the trial court entered an order shortly before trial that virtually emasculated their case. Nevertheless, the matter went to a three-day jury trial.

When the plaintiffs rested, the defendants moved to strike. Before the judge ruled, the plaintiffs took a nonsuit. The defendants asked the court to suspend the nonsuit order to permit them to move for sanctions; the court did this, and over two years later, awarded the noteworthy sum as sanctions against the plaintiffs and their counsel, jointly and severally. The justices granted a writ.

This is one of several lengthy opinions today, but the length isn’t compounded by a concurrence or dissent; this is 43 pages that are all about sanctions, and every word is the opinion of the full court. I’ll cheat just a bit by going to the bottom line: The court affirms the award, and every component ruling behind it. The justices find that the record amply supported the trial court when it found that the suit was based on wild speculation and little or no factual basis. Reading between the lines just a bit, if this had been about the basic $37,000 commission, we almost certainly wouldn’t be here; but the plaintiffs and their lawyer insisted on turning this into a million-dollar circus.

There are a couple of fine points that caught my eye as I read through the opinion, and I’ll mention those here. First, the court takes the plaintiffs to task for having repleaded, in their amended and second-amended complaints, causes of action that had been dismissed with prejudice. In this regard, I think the justices are being much too hard on the plaintiffs and their counsel. Code §8.01-273, the demurrer statute, allows a plaintiff to replead after a demurrer has been sustained, without prejudicing his right to stand on the original pleading on appeal. This would seem to indicate that you don’t have to replead struck causes of action like this.

But the Supreme Court has repeatedly (and as recently as Dodge v. Randolph Macon Woman’s College, just a couple of years ago) held that unless you reassert the struck claims, they are waived for purposes of appeal. There’s a massive preservation trap here, since you can look right at the staute, read its unambiguous language, and never realize that you must do something other than simply object in order to keep your original pleading alive for appellate review.

While I hesitate to approve of what the plaintiffs did here, given the patent abuses that the court found, this re-allegation actually seems to me to be a piece of solid lawyering – at least as far as waiver is concerned – and I don’t think the lawyer should have been admonished for doing exactly what the justices have instructed us must be done. Still, this is a drop in the bucket, and almost certainly wouldn’t affect the overall result.

Next, the court addresses a conundrum that inevitably arises when sanctions are sought against a lawyer and her client: Don’t they become adversaries at that point? The answer is yes, at least if one or the other seeks to apportion the sanctions, instead of having them apply jointly and severally. The plaintiffs contended that the trial court should have found the lawyer solely responsible for at least a chunk of the award. While both the trial court and the Supreme Court find ample ground for liability against both, the question remains, How does a trial court know who should bear which share of the total load? Wouldn’t the relevant evidence be covered by the attorney-client privilege?

Yes, it would, at least in this context. The justices note that once a trial court decides to award sanctions and someone wants them apportioned instead of being handed out jointly and severally, that party has the burden of adducing evidence to establish the proper proportions. In this instance, the client has a clear advantage over the lawyer; the privilege belongs to the client, and he can waive it to try to force his lawyer to bear most of the cost. The lawyer, of course, cannot take that action first in order to force his client to bear most of the responsibility.

But the justices turn to other states to address this matter: “where sanctions have been imposed, and the attorney and client disagree about who is at fault and wish to assign blame to the other, the attorney should withdraw as client’s attorney and both should obtain their own counsel.” This still produces sticky problems related to the privilege for prior communications, but at least the lawyer isn’t in court asking the judge to hammer the client he still represents; that’s an intolerable situation.

Finally, there’s one tantalizing, pregnant question that never comes to term. The lawyer (but not the clients!) claims that, among other things, the trial court erred by not considering the sanctioned parties’ ability to pay. This is a major factor in awarding punitive damages, of course; but I’m not aware of any Virginia decision that determines whether ability to pay is a material factor for the court to consider in deciding what sanction is “appropriate.”

Alas; the court limits its discussion here to an analysis of whether the amount of fees awarded was reasonable, and doesn’t touch the issue of ability to pay. Interestingly, the analysis is virtually the same as that for garden-variety attorney’s-fee litigation, including consideration of hourly rates, number of hours worked, complexity of the matter, and so forth. The court is clearly endorsing the legal-fees-reasonably-incurred method of calculating an appropriate sanction.

One last point, for those of you interested in finality issues (and I trust that’s a majority of the readers of this website): The appellants challenged the trial court’s order that (1) granted their requested nonsuit, but (2) suspended itself pending further order. That was done at the defendants’ request, to enable them to file, litigate, and get a ruling on the sanctions motion. That ultimate ruling, as noted above, didn’t come for more than two years after the plaintiffs’ lawyer uttered the N-word (that would be nonsuit) in open court. The justices approve of how the trial court handled this, specifically pointing to the word suspended in Rule 1:1, and holding that this order kept the case open for purposes of the sanctions motion.

Sanctions litigation has, in my opinion, exploded in recent years; that’s not necessarily a good thing. I believe that sanctions motions are used much too hastily by lawyers who hope to intimidate their adversaries by threatening personal liability for filing close-call pleadings. But this case is at the other end of the factual spectrum; when (as is inevitable) this case is cited by a trial-court litigant as support for a request to sanction the Bad Guys, the easiest response may well be, “Your honor, the facts of NVRE were vastly more egregious than what we have here.” And from what I see, in most instances the lawyer responding in that way will probably be right.

Contracts
I’ve always loved maps. When I was growing up, instead of posters of sports stars, I had large maps of the world and of the United States on my wall. In college, I put up street maps of Paris, to accompany my reading of Les Miserables, and London, to help me to follow the wanderings of Sherlock Holmes. The Boss sometimes, with a wry smile, tells people that I sleep with an atlas under my pillow, but that’s utterly false; it’s on the floor, beside my night table. In this light, I was particularly interested in the subject matter of Collelo v. Geographic Services. Geographic is a company that performs government contracts in the field of geonaming. That’s a fancy word for making sure that everything on a given map is properly identified.

Collelo worked for Geographic, and from what I can tell, he was pretty good at what he did. He learned the company’s system for quality assurance of its work, and that set of protocols was very profitable for the company. One day, he announced that he was leaving Geographic to accept a job with Boeing, a corporation with which Geographic occasionally contracted.

As you might expect with high-tech stuff like this, Collelo had signed a non-disclosure agreement when he came to work for Geographic. That forbade the employee from disclosing the company’s confidential information, and included a one-year non-compete provision. That didn’t appear to be a problem, because Boeing hired Collelo “to work in a non-geonames capacity.”

I can’t be certain of the timing, but that arrangement must have lasted something like a good, solid hour and a half once Collelo showed up at Boeing. Within a few months, Boeing sent a delegation to Geographic to work on a joint project, and You’ll-Never-Guess-Who was on the Boeing team. Geographic pointed out the terms of the agreement to Boeing, but the latter company metaphorically shrugged. That led inexorably to the courthouse steps.

Geographic sued on several theories, including a violation of the Trade Secrets Act, breach of contract, and tortious interference with contract. When Geographic rested, the defendants moved to strike, and the trial court granted that motion, finding that the plaintiff’s evidence did not establish that Boeing ever competed with Geographic.

Today’s opinion runs to 45 pages (ten of which comprise Justice McClanahan’s dissent), but I got a clear signal how this one would come out when I read this on page 12:

Additionally, we have stated that,

[g]ranting a motion to strike at the end of plaintiff’s case, if done erroneously, can lead to a substantial waste of judicial resources – a consequence to be avoided.

I’m flattered that my audience at this website includes a number of trial-court judges, and I’m confident that every single one of them recognizes what that citation portends: This case is going back for retrial.

And so it is; the court today reverses the trial court’s dismissal of the Trade Secrets claim, concluding that the trial court employed the wrong legal standard in sustaining the defendants’ motion. The statute sets forth the specific elements of a claim under the Act, and viewed in a light most favorable to the plaintiff, the majority finds that a reasonable jury could have determined that (1) a trade secret existed, and (2) the defendants misappropriated it. There is no requirement in there for the defendants to set up a competing business. The court affirms the dismissal of the other claims, since no evidence was adduced to prove the quantum of the plaintiff’s damages on those claims.

Justice McClanahan’s dissent agrees with the dismissal of the contract and tortious-interference counts; she would also affirm the dismissal of the Trade Secrets claim, finding the evidence to be insufficient there, too.

For non-Trade Secrets litigation, the primary lesson of this decision is one that’s familiar to trial judges: When you take a case away from a jury, you’re basically asking for appellate scrutiny. That doesn’t always result in a reversal (Exhibits A and B to this thesis are the contract and tortious-interference claims), but it means that your decision will get significant attention in the Supreme Court.

From time to time, our prejudices overtake us, however temporarily. In that vein, when I read the first paragraph of Maretta v. Hillman, I stifled a metaphoric yawn. This appeal, the opening paragraph tells me, is about whether a particular Virginia life-insurance statute is preempted by federal law. Go find a big crowd somewhere and try to round up half a dozen people who’ll care about a question like that, and get back to me.

Ah, but then I read the second paragraph, and was enlightened and intrigued. You probably will be, too; read on and see.

The Virginia statute is in Title 20, dealing with domestic relations. There are two relevant subsections. Part A says that where a life-insurance contract lists a spouse as a beneficiary and the spouses then divorce, the beneficiary designation is revoked. That provision covers the forgetful policyholder, who bought insurance and named Wife #1 as beneficiary, but forgot to change the designation when he divorced and married Wife #2. In that instance, Wife #2 gets the death-benefit check.

Let’s take a side step and review the relevant federal legislation before we examine the other Virginia subsection. This appeal deals with the Federal Employees’ Group Life Insurance Act, and that act specifically provides that policy benefits shall be paid to (1) the person listed as beneficiary, or (2) if there’s no designated beneficiary, then to the decedent’s widow or widower. That means that Wife #1 gets the check, even though she’s actually Ex-Wife.

Now we have a conflict; state law says that the act of divorce cancels the designation, but federal law says you have to honor the listing of the named beneficiary. The federal act goes on, however, to specifically “supersede and preempt any law of any State . . . to the extent that” the state law is inconsistent with the federal provisions. And you already know about the Supremacy Clause.

That answers that, right? Well, a few years ago, Virginia’s legislators, determined to carry out their intention, amended the domestic-relations statute by adding Subsection D. That provision states that if Subsection A is preempted by federal legislation (such as the one described above), then the benefits can be paid to the named beneficiary, but the beneficiary is personally liable to the widow or widower for the full amount of the benefit. That is, the Virginia statute includes a private right of action, sounding in state domestic-relations law, to effectively override the federal legislation.

Now I’m sorry that my prejudice ever caused me to doubt how interesting this issue could be. This is a genu-wine turf war between Congress and the General Assembly over who gets to decide where the money goes.

Several courts in other jurisdictions have already wrestled with this issue, and most of them have come down on the side of the states. They hold that while Congress can indeed insist that the insurance check be made to the named beneficiary, the states can decide who gets the proceeds after that. They reason, among other things, that the field of domestic relations is exclusively reserved to the states – there’s no federal body of divorce law – so states ought to be free to make provisions like this.

Today, five members of the court, led by the chief justice, break with that majority of other courts, and rule that the federal act does preempt Subsection D. Justice McClanahan, joined by Justice Millette, dissents, holding to the reasoning of the courts that favor the states’ right to allocate these benefits. Since this appeal implicates a federal question, and since there is quite obviously disagreement among the states as to how to interpret it, the answer to your question is yes; it is indeed possible, and even foreseeable, that the losing litigant today may seek certiorari in Washington.

Real property
In November, I watched the oral argument in Dykes v. Friends of the CCC Road, an appeal involving a winding road in the mountains of Highland County (one of the most beautiful places in our Commonwealth). The issue here is whether this trail, which runs across private property, has become public despite the absence of a dedication and acceptance.

As the name implies, the road was built in the 1930s by the Civilian Conservation Corps. It connects two public roads (US 220 and Bratton McGuffin Trail, in the far south of the county) by skirting ridges between the Jackson River Valley and Back Creek Valley. Decades ago, and with the blessing of the county, the owners of the road put up pole gates at the ends of the road, handing out keys to property owners along the way, as well as to the Sheriff, among limited others. Everyone else can only gaze at the road from the public rights-of-way.

Three years ago, an association calling itself Friends of the CCC Road sued in circuit court, seeking an injunction for the removal of the gates. The association “purport[ed] to represent the general public,” a phrase in today’s opinion that caused my eyebrows to rise on the question of standing; but no more mention is made of this issue, so perhaps the parties agreed not to fuss about it.

The real issues in this case are whether the road has become public by prescription or by long recognition as such. The trial court ruled in favor of the Friends, and against the landowners, based on the latter premise. The court declined to find prescription, but it ruled that “long and continuous use by the public” meant that the road should be open to everyone.

The justices reverse this ruling today and enter final judgment in favor of the landowners. Reviewing a judgment that’s based on stipulated facts, the Supreme Court is free to engage in de novo review of the trial court’s legal conclusions. The court agrees that there was no dedication and acceptance of the road by the county; the county has never claimed the road, and does not maintain it. It also agrees that “there cannot be a prescriptive easement in favor of the general public to use a private road,” since by definition such use cannot include the required element of exclusivity.

The court then turns to the trial court’s basis for ordering injunctive relief. It rules today that long-continued use of a private road can mature into a prescriptive taking only “if there is an affirmative act by competent authority of acceptance of the dedication the use implies.” Since that element was missing from the stipulated facts, the court returns ownership of the road to the landowners.

Wills
Alas; your humble scribe is not a trusts-and-estates lawyer. I accordingly found myself scratching my head on more than one occasion while reading Weedon v. Weedon, a will-contest appeal that generates two separate dissents.

The testator in this case was a strong-willed woman that we’ll call Mom. She had three sons and two daughters, and in 2003, she made a will that contained at least some provision for each of them. One of the daughters, Mary Ann, spent a great deal of time with Mom, caring for her as Mom’s health deteriorated. She held Mom’s power of attorney, and helped to manage her daily affairs. A subsequent will in 2007 cut out one of Mom’s sons because of a family disagreement.

In 2008, Mom entered the hospital for “an unplanned orthopedic surgery.” During this time, her doctors learned that she would need additional surgery (presumably vascular) to regulate her blood pressure. Mom replied that she wanted to talk with her lawyer immediately.

Mary Ann called the lawyer’s office and spoke with a legal assistant who recalled Mom as a past client. The assistant got instructions from her boss to speak with Mom on the phone to find out what she wanted. She also interpreted this directive to mean that she should figure out whether Mom was capable of making a new will.

The assistant spoke at length on the phone with Mom, going over the changes that Mom wanted to make, and taking notes on the changes. She reported at trial that Mom’s voice seemed “very fine”; “exactly the same” during this conversation as it had the previous year. She passed that information on to her boss, who thereupon prepared the new will based on his assistant’s notes. Mom signed the will before two witnesses and a notary. Mom died a few days later from complications of surgery.

Obviously, this litigation is about whether the 2008 will is or is not valid. The new will left virtually everything to Mary Ann. In the ensuing litigation, the other siblings alleged that Mom lacked testamentary capacity when she executed the will, and also claimed that Mary Ann had exercised undue influence to get Mom to change the will in her favor. They adduced expert testimony from a medical examiner who stated that, based on a review of the medical records, Mom would have been “in a chemical fog” at the time. They also testified that Mary Ann tried to prevent them from seeing their hospitalized mother or talking to her doctors.

Mary Ann, in turn, called the witnesses to the will. Neither recalled much in the way of detail, but both testified that they would not have agreed to witness the will if it were apparent that Mom wasn’t competent. The notary, unhelpfully, didn’t recall serving in that capacity for this document.

There are many more details in the slip opinion, but instead of lengthening this analysis with all of those, I’ll get to the rulings (and you can click on the hyperlink above to read the entire opinion right now if you want). The trial court ruled in favor of the siblings, finding both that Mom lacked testamentary capacity and that Mary Ann had exerted undue influence upon her. Mary Ann got a writ, and today, a majority of the justices vote to reverse, ordering that the 2008 will be probated.

Justice Powell writes for the five-justice majority. Starting with the testamentary-capacity assignment, she concludes that the trial court erroneously placed more weight on the testimony of the medical examiner, who did not observe Mom’s execution of the will, than it did on the actual witnesses to the signing. Mom would have been “confused with intervals of lucidity,” according to the doctor, but there’s nothing in that testimony to exclude the possibility that this will was executed during one of those lucid moments. The court also discounted the legal assistant’s testimony about Mom’s apparent mental state for the curious reason that she didn’t prepare the will; her boss did.

I’ll confess that this factor seemed to be a strange one for the trial court to include in its analysis, and I agree with the majority that the court shouldn’t have discounted this testimony for that reason. But instead of remanding the case to direct the trial court to reevaluate the evidence, the court goes ahead and finds that Mary Ann has rebutted the siblings’ evidence (which the court assumes without deciding, a familiar and useful short-cut approach in appellate courts) of incapacity. That decision is one of those previously mentioned surprises to me, again qualified by the fact that this is far from my normal playing field.

The majority then takes up the discrete question of undue influence. The trial court had held that the siblings met the threshold necessary to establish a presumption of such influence: an elderly testator; a will in favor of a person who stands in a confidential relationship; and a previously stated intention to make a different disposition. It had held that Mary Ann had not rebutted that presumption, and that the evidence convinced the court that Mary Ann had improperly influenced Mom to remake her will.

The Supreme Court notes that while this three-part test “gives rise to the presumption of undue influence,” the siblings must still prove that Mom’s free will was overridden. That is, the undue-influence presumption doesn’t get you all the way to the finish line if you want to get a will tossed; you have to prove more, and the court today finds that the siblings did not. The judgment is accordingly reversed.

But let’s turn to the dissenters, who have some interesting points to make. Justice Mims goes first (only because he has more seniority than the other dissenter), and while he agrees with the majority on testamentary capacity, he would affirm based on the finding of undue influence. He notes that the majority finds, as a matter of law, that Mary Ann’s evidence rebutted the presumption.

But the trial court’s decision on that issue depends on the weight to be given to the several witnesses in the case. Appellate courts can’t weigh evidence; they can only look at the cold transcript and record, while trial judges get to see the witnesses live and evaluate how credible they are. Justice Mims feels that the trial court, on this evidence, could have concluded that Mary Ann’s influence overbore Mom’s desires, and he cites specific examples of testimony that the court could have accepted on this point.

Next, Justice McClanahan writes, expressing her agreement with Justice Mims on undue influence, but opining that the trial court’s decision on testamentary capacity was not plainly wrong, and should have been affirmed. (Because of that, she thinks it would not be necessary to address undue influence.) She notes that what the majority is really saying on this issue is that the trial judge should have believed the witnesses to the signing instead of, say, the siblings’ expert witness. But again, appellate courts can’t tell trial judges who to believe and who to disbelieve.

Repeating my opening caveat – this ain’t my normal swimming pool – I find myself nodding in agreement with both dissenting opinions. It occurs to me that what the majority is doing, on both issues, is weighing the evidence and finding that that evidence preponderates in favor of Mary Ann, so she should win.

That flies in the face of everything we’ve learned about the separate roles of trial and appellate courts, in this or any other field of litigation. Who’s to say that the trial judge didn’t watch Mary Ann testify and notice a nervous tic whenever she faced a tough question? Why couldn’t the trial judge have discounted Mary Ann’s key witness, a woman who was admittedly a close personal friend of Mary Ann’s, because of the possibility of partiality? By holding that this evidence overcame the presumptions that everyone agrees arose, the majority appears to have reweighed the evidence, something I’m definitely not accustomed to seeing.

Sexually violent predators
There’s an interesting philosophical question imbedded in DeMille v. Commonwealth, relating to expert witnesses and the burden of proof in SVPA cases. I encourage you to stick around to the end of this discussion, and to think about that question.

At a bench trial on the merits, the trial court heard from several lay witnesses and three experts. In the latter group, the Commonwealth and DeMille each called a psychologist. Both doctors expressed the view that DeMille had a high risk for committing future sexual offenses. (The third expert expressed no opinion on the question.) So far, it’s looking bad for DeMille.

But when asked if that included sexually violent acts, one of the necessary elements in SVPA proceedings, both experts equivocated. The Commonwealth’s doctor put it this way: “In terms of sexually violent re-offense, that’s a very narrow definition and it’s beyond the scope of social science.” DeMille’s doctor agreed, “because the research does not allow us to make that distinction.”

I don’t know how that strikes you, but I’m starting to look beyond this case; if it really is impossible, given the state of behavioral science, for psychological experts to state that a given person is likely to commit sexually violent offenses (such as rape), as opposed to sexual offenses (such as indecent exposure, with no violence component), how is the Commonwealth ever going to secure SVPA commitment? After all, in order to be classified as a sexually violent predator, there has to be a finding – by clear and convincing evidence, no less – that the subject “is likely to engage in sexually violent acts.”

Rather than signal the effective end of SVPA proceedings, the justices today unanimously rule that trial courts, in making these determinations, aren’t bound by just what the experts say. Trial judges can consider the totality of the evidence, including the subject’s history, to make a finding.

That’s certainly consistent with prior caselaw in SVPA cases, and indeed elsewhere; factfinders in all sorts of litigation are free to disregard expert testimony and decide the case based on the rest of the evidence. (There are exceptions, such as the standard of care in medical malpractice cases; though expert testimony is mandated by statute in that instance.) But let’s consider the philosophical question I mentioned at the outset of this discussion.

Experts on both sides of this case have agreed that the current state of science isn’t such that we can predict future acts of sexual violence. Expert testimony is admissible to “assist the trier of fact to understand the evidence or to determine a fact in issue,” especially with things that are beyond normal understanding, where special expertise can assist in determining complex matters. Today’s opinion, however, necessarily implies that non-expert trial judges, considering the same information available to experts, can determine which persons are likely to commit future acts of sexual violence, even where the experts cannot. That is, the judges – and in jury trials, that means the juries, too – are able to know something that the experts agree is unknowable.