ANALYSIS OF JULY 14, 2016 SUPREME COURT OPINIONS
[Posted July 14, 2016] Today the Supreme Court begins to hand down decisions from appeals argued in the June session. We’ll start with the last two cases argued that week, criminal appeals that turn on a common issue.
Virginia law permits a criminal defendant to withdraw a plea of guilty before sentencing, and in limited circumstances even afterward. But the statute that authorizes this practice doesn’t set out the standard for granting the relief. Today’s opinions in Edmonds v. Commonwealth and Small v. Commonwealth help fill in the analytical playing field.
Both are convictions for possession of a firearm by a convicted felon. After pleading guilty but before being sentenced, each indicated a desire to change to a not-guilty plea and take his chances at trial. Each man claimed that he possessed the weapon only because of a legitimate fear of imminent bodily harm, implicating the defenses of duress or necessity.
Criminal-law practitioners will recognize the significance of the court’s first holding: it approves and adopts the standard embraced by the Court of Appeals for duress defenses:
The Court of Appeals has held that in order to use the defense of duress or necessity, the offender must show
“(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.”
In both cases, the justices find that there was no imminent threat, so there would be no good-faith basis for the change of plea.
In the Small opinion, the justices also approve – as a matter of first impression – the trial court’s considering the likely prejudice to the Commonwealth in evaluating the motion. Because of Small’s cooperation with prosecutors against another criminal defendant, over two years elapsed between his plea and his motion to withdraw it. The justices find that the trial court acted within its discretion in finding that a delay that long could well prejudice the prosecution.
One last point: Both of today’s unanimous opinions were written by Justice Powell. I’ve described before how the court’s opinion-writing assignments are random, but I’ve expressed occasional skepticism – accompanied by a smile, of course – about whether things are truly random. For a recent example, I posited that there may have been some horse-trading to ensure that the chief justice got to write the opinion in Environment Specialist v. Wells Fargo back in February.
Now, the pure odds that Justice Powell just happened to draw these two cases – almost but not quite companion appeals – are 6-to-1 against. I’m not sayin’; I’m just sayin’.
Rights of action
I’m fairly sure that this is the first time I’ve discussed a decision using this heading. Strictly speaking, Cherrie v. Virginia Health Services is an admin-law matter, though it might fit under the tort umbrella, or perhaps discovery.
Virginia Health operates nursing homes, and is thus regulated by the Board of Health. The Board requires nursing homes to have written policies, and to make those policies available for review “to residents and their designated representatives.”
The personal representatives of two deceased former residents sought access to the nursing homes’ policies, presumably to help them to determine if they had med-mal claims based in part on violation of policies. The nursing homes refused, saying that only current residents, not former residents, could ask for the policies. The personal reps went to circuit court to enforce their right to see the documents.
The trial court agreed with the nursing homes, finding that former patients no longer had the right of access. On appeal, the justices decide not to resolve the direct dispute. Instead, the Supreme Court affirms based on a more fundamental consideration: standing.
The specific issue that drives today’s opinion is who has a right to enforce a violation of the Board of Health’s policies. Beyond question, the Board does; the Administrative Code allows the Board to impose sanctions, from civil penalties to license revocation, when a regulated entity blows off its obligations. But does the Admin Code create a private right of action?
No, it doesn’t, the justices rule today. Justice Kelsey writes for a unanimous court, and notes that where the General Assembly specifies a means of enforcement for a particular statutory requirement, the courts are not free to add to the list. A right of action – the right to enforce a cause of action – has to come from the Constitution, the statutes, or existing common law. There’s nothing in any of those three sources that authorizes individuals to file suit in situations like this.
This decision is a victory for the health-care industry and a loss for the plaintiff’s bar. The two sides have warred for some time over the question whether plaintiffs can get health-care providers’ policies and practices. These plaintiffs no doubt hoped to sidestep the usual legal issues surrounding traditional discovery requests, by resorting to this administrative regulation. The Supreme Court today closes that road.
Appellate veterans will recognize that the court today utilizes the revised right-for-the-wrong-reason doctrine that it crafted a few years ago. Once upon a time – and not so long ago – the Supreme Court refused to consider a challenge to standing if it was made for the first time on appeal. See, e.g., Martin v. Ziherl, 269 Va. 35, 39-40 (2005) (“We have repeatedly held that challenges to a litigant’s standing must be raised at the trial level, and the failure to do so precludes consideration of a litigant’s standing by this Court on appeal.”). The Banks/Perry duology in 2010 changed all that; now, the court will affirm for any reason that’s apparent in the record, regardless of whether the appellee raised it below.