ANALYSIS OF JUNE 20, 2024 SUPREME COURT OPINIONS

(Posted June 20, 2024) It’s opinion day in our fair Commonwealth. The Supreme Court of Virginia hands down two published opinions this morning.

Land use

I found several interesting tidbits in Fairfax County v. Leach-Lewis, a zoning-enforcement case. Justice Steve McCullough’s opinion for a unanimous court provides an interesting analysis of what I see as an incongruous ordinance provision. He also reaches out to us word nerds with the court’s latest explanation of two rules of construction. Let’s dive in.

Leach-Lewis is the president of a church up in Fairfax, and the trustee of a trust that owns several homes nearby. Several church members live in the homes and perform work there for the church’s benefit, such as “to handle correspondence, prepare spiritual teachings, and store files and boxes.” They receive money for that work.

Today’s opinion adds that “A significant portion of one of the Houses is configured for office space, with desks, computers, and telephones. Signs had been installed in this home that are consistent with office use, including one sign that is posted above a room that is labeled ‘office.’” What’s wrong with that, you ask? The homes were all in a zoning district that forbade office uses.

Despite the zoning issue, the church members evidently didn’t try to keep this under wraps. Local police reported to county zoning officials that it looked like office activity was going on at the homes. A zoning investigator arrived at one of the homes at just the time that police were there to execute a search warrant for what today’s opinion describes as “an unrelated matter.” This, of course, was no coincidence; it must have been coordinated.

The investigator saw plenty to indicate that the property was indeed being used for office purposes, so he issued a violation notice. The president took that notice to the local board of zoning appeals. There, she argued that the restriction on office uses in residential zoning areas didn’t apply to church work. She also challenged the search of the home, citing a Fairfax ordinance that “[n]othing in this Ordinance may be construed to authorize an unconstitutional inspection or search. All searches or inspections authorized by this Ordinance require a warrant, court order, consent, or another exception to the warrant requirement.” Asserting that the warrantless search was impermissible, she asked the board to exclude any evidence from it as fruit of the poisonous tree.

The BZA shrugged off her argument on the merits without addressing the no-warrant issue. In certiorari proceedings in circuit court, the president renewed her previous contentions. That court agreed that the church property couldn’t operate an office in a residential district, adding that the BZA wasn’t required to adjudicate the constitutional claim.

I’ll admit that this holding grabbed my attention. Whaddaya mean they’re not required to decide it? It looks like a valid challenge based on a clear ordinance.

That’s how the Court of Appeals saw it: A panel of that court reversed in an unpub and sent the case back to circuit with directions to remand it to the BZA to hear and decide the challenge. The appellate court deferred a ruling on the merits of the case.

Today the Supreme Court reverses. In a ruling that I found jolting, the justices hold that that ordinance language, which clearly doesn’t authorize a warrantless search, is toothless. Here’s the analysis-conclusion-holding, all wrapped into one sentence: “The text of [the ordinance] does not provide that a zoning case cannot proceed if evidence is unconstitutionally seized, and it does not contain a rule calling for exclusion of evidence.”

Fine; but doesn’t the Fourth Amendment – the origin of the modern exclusionary rule – bar the use of illegally obtained evidence? Yes, it does … but only in criminal cases. There’s no constitutional exclusionary rule in civil litigation, and that’s what this case is. If you suffer an illegal search that results in evidence for a civil case, your remedy may lie in tort law or under §1983, but a tribunal can receive it in evidence.

This, in turn, means that the BZA didn’t have to decide the constitutional challenge, because even a finding of an illegal seizure wouldn’t have tossed the evidence.

The justices then go on to address the merits of the case. They agree with the circuit court that this was unquestionably office use in a residential zone, and they hold that there’s no exclusion for religious uses. It’s here that the opinion addresses two canons of construction – ejusdem generis and noscitur a sociis before holding that neither applies to the wording of this ordinance. That passage, on p. 9 of the slip opinion, makes for interesting reading for those of you who litigate cases where statutory construction is a factor.

I noted one other interesting point in today’s opinion. In a footnote – where the goblins usually hang out – the court addresses the absence of an exclusionary rule in the ordinance, a topic that I mentioned four or five paragraphs above. The note reads in its entirety, “We express no opinion concerning whether, under Dillon’s Rule, a locality could fashion an exclusionary rule governing searches and seizures in the zoning context.” In another context, I might infer that the court is giving localities a subtle warning against trying to insert such a rule. Here, though, I suspect that the Supreme Court is trying to prevent litigants from arguing that the court has implicitly approved such a provision. My sense is that the justices genuinely aren’t ready to decide a question like that. This issue will await another day and another appeal.

Criminal law

Today’s opinion in Bland-Henderson v. Commonwealth is about a criminal defendant’s hope of inspiring jury nullification. It’s a prosecution for possession of a firearm by a violent felon.

Seventeen days before trial, the defendant filed the statutorily required demand to be sentenced by a jury. By doing so, he faced two problems: The deadline to file such a demand is 30 days, not 17; and the only possible sentence for this offense is five years in prison (by statute, that’s the minimum and the maximum).

The circuit court ruled that his demand came too late, and the court would accordingly handle the (relatively simple) act of sentencing in the event of a conviction. The defendant then asked for the right to tell the venire panel during voir dire what the sentencing range would be. Because of the previous ruling, the judge held that that would be irrelevant, and accordingly barred any mention of the applicable sentence.

At trial, the jury got ‘im, of course, and the court affixed the mandatory sentence to the final order. The Court of Appeals affirmed, noting that the sentencing-demand statute says that the defendant “shall” file the demand 30 days before trial, and this defendant missed that date. It created a new doctrine that the word shall can be mandatory or directory – that is, it can mean “must” or “may” – when it commands actions by government officials, but it’s strictly mandatory when applied to private litigants like our defendant here. That means that this defendant missed a mandatory deadline and thus waived the right.

On the second issue, the CAV cited a statute providing that veniremen may be informed of the sentencing range “to ascertain if the person or juror can sit impartially in the sentencing phase of the case.” Because the jury wouldn’t be handling sentencing here, that issue was, as the circuit court found, irrelevant.

Today the Supreme Court unanimously affirms the conviction and sentence. While it agrees with the holding that shall was mandatory in this case, the justices reject the new dichotomy between public officials and private litigants. The court holds that whether the word is mandatory or directory depends on the context of the statute, not on the character of the actor. But the court agrees that this defendant lost his right to jury sentencing by missing this plainly mandatory deadline.

The justices also affirm the exclusion of the sentencing range from the voir dire process. The court sees this as an effort by the defendant to convince the jury to find him not guilty merely because the sentence would be arguably draconian. Courts certainly may head off litigants’ efforts to thwart the decision-making process in this way.

The chief justice pens the opinion for a unanimous court. I note that just two weeks ago, I reported that he hadn’t written an opinion of the court since October 2022, an observation that’s immediately overtaken by today’s events.