The Supreme Court hands down seventeen published opinions today, in a wide variety of case areas.

Criminal law

In contrast to the remarkable day enjoyed by criminal appellants in the April session (four out of five cases resulting in reversals), today’s appellants found more moderate success, obtaining reversals in two of the four cases decided this morning.

Daryl Renard Atkins returns to the high court for his fourth trip in seven years. Atkins is the man whose conviction was addressed by the Supreme Court of the United States in a celebrated case in 2002, deciding that states could not execute mentally retarded persons. In that case, the US Supreme Court cited a growing consensus among the states prohibiting such executions.

For the purposes of today’s discussion, I’ll jump right to the rulings. In Atkins v. Commonwealth, the Supreme Court of Virginia today reverses Atkins’s latest death sentence, citing two errors. First, it rules that the trial court erroneously admitted evidence from the Commonwealth’s clinical psychologist, who testified about Atkins’s mental capacity. Today the court takes the strong step of finding an abuse of the trial court’s discretion in admitting the testimony, since the psychologist’s testimony did not comport with the emergency legislation passed by the General Assembly in reaction to the US Supreme Court decision.

The second key ruling is that the trial court erroneously informed the sentencing jury that Atkins had already been sentenced to death by another jury. This factor is held to have prejudiced his right to a fair sentencing hearing, since the jury would know that another such body had already reached a given conclusion on the same issue. The case is remanded for a new proceeding to determine whether Atkins is, in fact, mentally retarded.

The court takes up the issue of adoptive admissions in Lynch v. Commonwealth, a murder conviction involving two appellate issues. First, the court finds that the burden on the Commonwealth to justify the admission of evidence under an exception to the hearsay rule is a preponderance standard, not clear and convincing, as Lynch had argued. In doing so, he had relied upon language in a previous Virginia case, requiring that the proponent of hearsay testimony “must clearly show” that an exception to the rule applies. The court finds that the inclusion of the word clearly in this earlier ruling did not change the burden of proof on this foundational evidentiary issue. Lynch contended that such an interpretation would have rendered superfluous the word clearly in the previous holding, but the court is not persuaded.

On the merits of the appeal, the court finds that Lynch’s statement, “Why you telling them what we just done?” to the perpetrator of a crime, made in the presence of a witness, was sufficient to establish his knowledge of the contents of the statement. This ruling rejects Lynch’s contention that according to the Commonwealth’s evidence, he was elsewhere, out of earshot, when the inculpatory portion of the statement was made. The court thus finds that the trial court correctly admitted the evidence of the perpetrator’s entire statement, and affirms the conviction.

Martin v. Commonwealth turns upon the requirement of force to establish sexual abuse. Martin was, at the time of the offense, fourteen years old. He displayed his penis to an eight-year-old boy and asked the boy to masturbate him; the boy complied. Martin was subsequently convicted of aggravated sexual battery.

On appeal, he contended that the evidence did not show one required element of the crime. Aggravated sexual battery requires proof of sexual abuse, combined with one other aggravating factor (here, the age of the victim). And sexual abuse requires that the defendant “force the complaining witness” to touch the perpetrator’s intimate parts. Martin argued that there was no proof that he forced the boy to do anything.

The court disagrees and affirms the conviction, finding that force can be either actual or constructive. And where, as here, an act is done without the victim’s consent (there is virtually no way Martin could prove the boy’s capacity to consent) and against his will (this may have been a closer call in the trial court), caselaw establishes that it is done with force. That is enough, the court rules today, to establish that component of sexual abuse.

The opinion also rejects Martin’s argument that it is “incongruous” for a single factor – here, the victim’s age – to satisfy two separate components of the Commonwealth’s case. The court finds nothing incongruous about it at all.

Readers will find in Wilson v. Commonwealth the most unusual criminal ruling of the day, involving a trial judge’s refusal to recuse himself from a drug case. Lawyers who practice criminal defense in Norfolk have come to dread appearances before Judge Charles Griffith, a former prosecutor who is famously tough in criminal cases. When Wilson found himself assigned to Judge Griffith’s court, his lawyer, Allen Zaleski, strongly suggested a jury demand on the spot. Wilson demanded one, and in questioning by the court, the judge learned the reason for the request (Wilson was apparently very candid in explaining his reasons). The judge reacted by trying to have Zaleski removed from the case.

If Zaleski had been court appointed, he might have been able to do that. But Zaleski had been privately retained, so that option was out. Instead, he directed that Zaleski’s name be removed from the court-appointed list, saying he was “not going to have a court-appointed lawyer who practices that way in this court building.” He also referred to Zaleski’s actions as “shenanigans.” Nevertheless, the case was set for a jury trial on another date.

In this instance, “another date” would also entail “another judge,” as Norfolk does not assign judges to cases absent particular circumstances. The next time the case came up, it was assigned to Judge Everett Martin; Wilson accordingly dropped his demand for a jury, was arraigned by Judge Martin, and consented to a trial the following week.

When Judge Griffith learned this, he went to the chief judge and asked that the case be assigned to him, so Wilson could not get away with judge-shopping. The chief agreed, and Wilson was back in the lion’s den.

On the morning set for trial, when the matter was called, Zaleski announced to the court that a plea agreement was imminent; he asked for a few moments to confirm the terms with Wilson. No dice, replied the judge; “We’re ready to start the trial.” The Commonwealth then told Judge Griffith in chambers that it made the plea offer based on recently acquired exculpatory evidence. That didn’t matter either, the judge countered; “I’m not going to interrupt this trial and submit a plea agreement . . . We are ready to start the trial.” And trial is what Wilson got, submitting his case to Judge Griffith, and getting sixty years, with thirty suspended, in return.

On appeal, the principal issue is whether Judge Griffith should have recused himself. Despite his pronouncement on the record that he was “as capable as anyone of giving [Wilson] a fair trial,” the Supreme Court finds that the judge abused his discretion by declining to step aside. It notes that it is not only the judge’s actual ability to be impartial (a matter upon which the appellate court affords the trial judge great deference) that matters; it is also the public perception of fairness that should be considered and preserved. In consideration of the events and colloquies described above, the court rules today that Judge Griffith showed personal bias against Zaleski, and should have declined to hear the case instead of actively seeking it out. All of this “gives rise to a reasonable question concerning his impartiality and the public’s perception of his fairness.”

Ironically, the court finds that the evidence was sufficient to convict Wilson on one of the counts; it nevertheless remands for a new trial “before a different judge.” In case it isn’t apparent, this is a highly unusual decision for the simple reason that the Supreme Court doesn’t second-guess a trial judge’s decision not to recuse himself every session. In fact, although I have not researched this point, I have never heard of a previous case in which a conviction is overturned because of an erroneous failure to recuse.

There is one final criminal case decided today, another procedural anomaly handled by unpublished order. In Commonwealth v. South, the court denies two of the Commonwealth’s assignments of error, but summarily reverses on the third, and simultaneously grants the petition and reverses the ruling below. In this case, South conceded that the third assignment was meritorious, so the court simply grants the writ and the relief requested in the same document. The case is remanded to the trial court for resentencing only (the Court of Appeals had remanded for a new trial) on a lesser-included misdemeanor.

Medical malpractice

A bounty of three medical malpractice rulings arrive today, starting with Alcoy v. Valley Nursing Homes, involving a claim that a helpless nursing home patient was raped in her room at the facility. The plaintiff (the patient subsequently died; suit was filed by her personal representative) claimed that the nursing home failed to protect her from assault, and alleged several safety violations ranging from inadequate security to improper background checks in hiring practices.

On the eve of trial, the nursing home persuaded the judge to apply the provisions of the Medical Malpractice Act to the plaintiff’s claims, since they were based on an “act . . .performed . . . or which should have been performed . . . by any health care provider for, to, or on behalf of a patient during the patient’s . . . confinement.” The home argued that all of the plaintiff’s claims fell within this broad rubric; the trial court agreed. That led to immediate summary judgment, since the plaintiff’s liability expert was a forensic criminologist. Under the Medical Malpractice Act, testimony on the standard of care must come from someone with an active clinical practice in the defendant’s field, so that expert didn’t fit the bill.

On appeal, the Supreme Court finds this interpretation of the act too expansive. It rules that following this course leads to anomalous results, involving actions that have nothing to do with the delivery of health care services – such as, in this case, building security. This court also notes that things such as hiring practices and building security are for the protection of the inhabitants of the home as a whole, not for the benefit of a specific patient. The facts alleged in the suit “address conduct unrelated to any health care or professional service that [the nursing home] should have rendered to [the patient] individually.” The case is thus reversed and remanded for trial.

Bitar v. Rahman addresses one tactic of what may be termed trial by ambush. This case sprung out of a tummy tuck gone bad; the patient developed significant post-surgical complications. At trial, the patient’s expert testified to a number of things, including the standard of care and the means by which the surgeon breached it. But he didn’t use the magic words that are so familiar to attorneys practicing in this field: “. . . to a reasonable degree of medical probability.”

If you practice in the field of medical malpractice law, you know that the plaintiff is in trouble. But today, she wins because the defense lawyer decided to lie in wait and spring the trap when it was too late for the patient’s lawyer to do anything about it. He moved to strike the plaintiff’s evidence after she had rested, citing the failure of the evidence adduced to meet the quoted standard. The Supreme Court rules that the proper time to make such an objection is at the time the testimony is offered, not in a motion to strike that comes later in the proceedings. (By the time the lawyer made the motion, the plaintiff’s expert was back in New York.)

The reason for this is that objections on this basis, as well as objections to medical foundation and unconsidered variables, address admissibility of evidence rather than the sufficiency of the evidence. This is the key holding of this case, and the principal reason why it will be cited in future litigation.

Now, then; about that ambush part. Footnote 9 offers irresistible insight into the thinking of the doctor’s trial lawyer. The court notes that the doctor complains that if he had raised the objection while the plaintiff’s expert was on the witness stand, he would have faced an “untenable dilemma with ethical implications.” That dilemma is nothing more than the realization that if he had pointed out the omission while the doctor was still on the stand, the plaintiff’s lawyer would have been alerted to his omission and would have corrected it on the spot. This, in my humble view, is not an ethical dilemma; it’s a display of chutzpah on appeal. What the defense is forced to forgo is the ability to raise a time-honored “gotcha” defense. The reason for the contemporaneous objection rule is to permit errors to be addressed when they arise; the doctor here wanted the opportunity to spring a trap when it was too late for the omission to be addressed.

One other point about this case: The ruling discussed in the previous paragraph dovetails well with the ruling last session in Kondaurov v. Kerdasha, where the court addressed the proper time to raise an objection to certain evidence to support a claim of emotional trauma. Where evidence is admissible to prove one element of the claim, objection need not be made at that time to its use on another, improper element. (In Kondaurov, the evidence related to what happened to a dog during an automobile collision. The evidence was admissible to show the force of the collision, but inadmissible to support plaintiff’s emotional damage claim. The defense thus appropriately waited to the motion to strike stage before challenging the evidence on this issue.)

The final med mal case is Shutler v. Augusta Health Care, and relates more to civil procedure than to medical malpractice. Shutler sued a doctor and his employer for the doctor’s medical negligence. The claims against the employer were entirely derivative of those against the doctor, based wholly on vicarious liability.

The day before trial, Shutler filed a motion to dismiss the doctor with prejudice, reserving her right to proceed to trial against Augusta Health. The court entered an order to that effect the next day.

Here is a good spot for a slight digression. At this point in the recitation of facts at the beginning of the opinion is a seemingly innocuous statement: “Counsel for the defendants endorsed the order without objection.” A footnote here points out that the same lawyers represented both the doctor and Augusta Health. Those of us who read appellate opinions for a living are not necessarily smarter than trial lawyers (although we are better looking). We do know, however, that when a statement like this creeps into an opinion, it usually is of decisive importance. That was true in today’s opinion; this endorsement turns out to be the dispositive fact in this appeal.

As soon as the order dismissing the doctor was entered, Augusta Health moved for summary judgment, citing the rule that a judgment in favor of an employee discharges the employer as a matter of law when the employer’s liability is solely vicarious. You know what? They’re right. A final judgment on the merits in favor of an employee in these circumstances really does release the employer from vicarious liability, and under other circumstances, the employer would walk.

But back to that endorsement: The order dismissing the doctor recited that the matter “will proceed forward against the co-defendant [Augusta Health], who is vicariously liable for any negligence of” the doctor. That’s a pretty clear statement that the parties intended, when they endorsed the order, to have a trial involving the remaining defendant. (Remember, all this is taking place on the morning set for trial.) What the employer was asking, the court finds today, was for the court to ignore that part of the agreed order that called for the case to go forward against it, in favor of the common law rule. The Supreme Court won’t bite for that today, and reverses the trial court’s grant of summary judgment; the case is remanded for trial against Augusta Health.

Well, most of the court didn’t bite. This is one of only two split decisions handed down today (JIRC v. Elliott is the other). Justice Kinser, joined by Justice Agee, dissents, arguing that there’s no getting around this common law doctrine limiting vicarious liability. She contends that the underlying case did, in fact, “proceed forward” against Augusta Health after entry of the agreed order – however briefly (just long enough for the trial judge to enter summary judgment).

Civil procedure

In addition to the Shutler case discussed above, three appeals principally involving civil procedure issues are decided today. The first is Bland v. Virginia State University, a Freedom of Information case that presents a remarkable series of events at the trial court level. Bland, a former member of the VSU faculty, filed a FOIA request, asking for certain reports related to the business school’s accreditation. The university responded by sending redacted copies of the requested information; there is a question whether the school properly invoked a statutory exemption (relating to personnel records) in doing so.

Bland filed suit under FOIA, seeking the unredacted documents, plus civil penalties for a violation of the Act. At the ore tenus hearing on the merits, the university produced the original documents for an in camera inspection by the trial court. But (and this is the real issue here) the original records were not made a part of the record (they should have been placed in the record under seal). Ordinarily, that would be fatal to the appeal; the Supreme Court would have to see the unredacted records to determine whether the exemption applied or not. And as has been stated with troubling regularity in many Supreme Court rulings, it is the responsibility of the appellant to ensure that the record contains sufficient information to enable the appellate court to decide the case.

Despite this, Bland wins today, sort of. He does so because he had moved the trial judge to make the original documents a part of the record of the case, and the trial court said no. Essentially, it sustained the university’s objection and rejected Bland’s request to include what he knew the appellate court would need.

I was in the courtroom when this appeal was argued, and I recall well the astonishment on the faces of some of the justices when the university’s counsel conceded this fact. At one point, Justice Lemons mused aloud that he had never heard of a situation in which a trial court had refused a legitimate, timely request by a party that relevant materials be included in the record on appeal. He asked the university’s counsel if he knew of any precedent for a trial court’s doing that; I remember thinking to myself, I sure don’t.

Neither can the court; today, it reverses and remands for further proceedings. While this reinstates Bland’s case, there are two lessons for practitioners here. The first is the court’s admonition that the failure to include original documents, under seal if necessary, is “a problem seemingly endemic to FOIA cases.” The lesson here is to include the original documents (or, if they are voluminous, at least a representative sample of them) in the record before heading to Richmond. The second lesson is that the trial court can’t prevent appellate review by simply refusing to include proffered documents. If you offer an exhibit or other evidence (in any kind of case; not just FOIA), the trial judge may exclude it from evidence, but she can’t exclude it from the record of the case. If you have a judge who tries to do that, you have some ammunition in the form of this opinion.

Eads v. Clark involves the procedure of intervention by a non-party in existing litigation. Eads is an attorney who was counsel of record in a case involving the sale of realty belonging to an incompetent. He was later appointed a special commissioner (along with the incompetent’s guardian ad litem) to sell the property. When he objected to a proposed intra-family sale of the property for (allegedly) insufficient consideration, the incompetent’s nephew, who was his uncle’s personal guardian, fired Eads.

Before he was relieved, Eads took the step of filing a notice of lien for his fees and costs. After he was replaced, he filed a motion to intervene under Rule 2:15 (now Rule 3:14) in the suit on his own behalf, both in order to protect the interest of the incompetent and to protect his own lien claim.

As the court notes today, the former interest was, at that point, no longer any of Eads’s business; once he was relieved as counsel, he no longer had any standing to raise any objection on behalf of his former client. That left his fee claim. The court rules today that this claim is not germane to the rights involved in the underlying suit, which is to determine whether a given sale should be approved or not. Since intervention can only be predicated on the assertion of “some right involved in the suit,” Eads did not have the right to intervene.

Today’s decision does not break significant new ground, in my view, except to note that an attorney’s fee claim in this context is not germane to the merits of the underlying suit. The rule remains that strangers cannot intervene in a case unless they have a real interest in the matters being adjudicated.

Kone v. Wilson is a medical malpractice case that implicates the right of a nonlawyer to file an action. Kone is the administrator of the estate of a patient who died after brain surgery. He originally filed three wrongful death actions based on these events, in the original suits, he was represented by counsel. All three cases were eventually nonsuited. Within the time permitted by law, Kone himself, without the assistance of counsel, filed a single wrongful death action.

The defendants moved to strike the suit because Kone was not an attorney and his filing of the pleading constituted the unauthorized practice of law. The trial court determined that Kone did, in fact, need a lawyer, but decided that a dismissal was too harsh a sanction; it required Kone to hire an attorney. Kone complied.

But that didn’t keep the defendants from filing another case-dispositive motion, arguing that the original filing by Kone was a legal nullity, and the appearance of counsel thereafter came too late under the statute of limitations. This time, the trial court agreed, and dismissed the case with prejudice. The Supreme Court agreed to hear the case.

On appeal, the issue is whether a personal representative can file an action prose, since any person can represent himself in court. He contended that he is the person empowered by law to file this suit (Code §8.01-50(B) specifically gives the administrator the right of action), so he is not engaging in the unauthorized practice of law by doing so. Today, the court disagrees and affirms the dismissal of the suit. While it is true that the right of action belongs to the administrator, the cause of action belongs to the statutory beneficiaries. That means that, under the doctrine of Nerri v. Adu-Gyamfi, decided last year, the pleading is a nullity and the statute bars the action.

This case will undoubtedly invite comparisons with Nerri. In that case, an attorney whose license had been suspended filed a pleading to beat the statute of limitations. When the suspension was discovered, the defendant moved to strike the pleading; the Supreme Court ruled that the pleading was a nullity. Justice Koontz dissented, noting that although the attorney was the “villain” of the case, the hammer was falling on the innocent clients, who did nothing wrong but would suffer the consequences. Today, no one dissents. That may be because the administrator made a conscious decision to file suit himself, thereby taking the risk that his conduct would be problematic.


A plaintiff who was injured in part because she was blinded by the sun, arguably for an extended period of time, while driving gets the benefit of today’s ruling in Burroughs v. Keffer. Burroughs was injured when she ran into the back of a truck that was stopped in a travel lane of US 460 so the driver, Keffer, could assist another trucker. Keffer was standing behind his truck, warning other drivers to move to another lane; Burroughs did not see him and plowed into the back of Keffer’s truck. She sued and got a jury verdict for $125,000.

On Burroughs’s motion, the trial court took the verdict away. Relying on maps and photos introduced by Keffer, it found that, at the posted sped limit, Burroughs’s line of sight would have given her 18 seconds to see and react to the situation in her travel lane. The court reasoned that either she failed to see what ordinary lookout would have disclosed, or that she was blinded for the full 18 seconds, and failed to take reasonable steps in response to such a prolonged period of blindness.

You have to admit, 18 seconds is a lonnnnnnnnnng time to be driving blind. The trial judge found Burroughs contributorily negligent as a matter of law, and entered judgment for Keffer. On appeal, Burroughs gets the customary gift afforded parties who have had a jury verdict taken away, as the evidence is viewed in the light most favorable to her. The court observes that if there is any basis in the evidence to support her verdict, then they must reinstate it.

And reinstate they do, finding that the question of whether Burroughs really had 18 seconds’ view of Keffer’s truck was a disputed issue, decided by the jury in Burroughs’s favor. In doing so, the court compares last year’s ruling in Jenkins v. Pyles, where a driver was injured by striking an oncoming corn planter because of a large truck in Jenkins’s field of view. Today’s opinion underscores that the duty of lookout “is not a duty to see; rather, it is a duty to look with reasonable care and to heed what a reasonable lookout would have revealed.”

In most cases, looking with reasonable care and seeing what’s there are the same thing; in some instances, like this one, the court reasons, they’re different. The “blinded by the sun” explanation finds a favorable reception today, and Burroughs gets her $125,000.

The other tort case decided today actually has its roots in contract; it’s a trade conspiracy/covenant not to compete claim. James, Ltd. is “a high-end men’s clothing retailer” with stores in northern Virginia. It employs many salespersons of exceptional ability, both in salesmanship and in the ability to cultivate good customer bases. And (if the evidence at trial is to be believed) the best of them all was Douglas Thompson.

Thompson started with James in 1986, and sold nearly a million dollars’ worth of clothing per year in his last three years there, ending in 2003. His tenure ended when he was sweet-talked away by clothing giant Saks Fifth Avenue, which had a store in the Tysons Galleria mall, the same location as Thompson’s home store with James. James had signed a covenant not to compete that prevented his working for a competitor within one mile of any James location (the Tysons Galleria is big, but it’s not that big), although making it clear that he was an at-will employee. But Saks made Thompson an offer he couldn’t refuse, which included defending him from any lawsuits that might arise if he left.

He left, and boy, did a lawsuit ensue. James sued Saks and Thompson for as many causes of action as its lawyers could think up, specifically including a breach of fiduciary duty and a trade conspiracy under Code §18.2-500.

While many recent covenant not to compete cases have focused on the enforceability of the covenant, this case is about damages. James’s damage evidence came from a CPA who testified as a forensic accounting expert. He calculated James’s damages according to a formula that estimated how much James would have received in profits if Thompson had stayed employed there; the calculus went through the year 2015, and was reduced to a present value of just under $1.5 million. That’s a lot of $125 ties. In reaching this conclusion, the CPA didn’t consider whether Thompson’s former customers actually went with him to Saks, although they apparently had the ability to track things like that. He simply figured Thompson’s previous sales level, applied James’s usual profit margin (43.63%, in case you’re wondering what the markup is on high-end suits), made some adjustments for incidental costs and cost savings, and then projected the results forward in time.

The trial judge heard this evidence without a jury and decided to award James its lost profits, but only for the first three years. That’s still almost $550,000, and then, based on the conspiracy code section, he trebled it to $1.65 million.

Today, in Saks Fifth Avenue, Inc. v. James, Ltd., the Supreme Court makes that whopping sum vanish in an instant. It does so because the CPA’s approach did not address whether the projected losses were proximately caused by any wrongful conduct on the part of Thompson or Saks. Specifically, the fact that Thompson was an at-will employee meant that he could quit or retire at any time, for no reason. If he had done either of those things, then James theoretically would have been out that same level of profits, unrelated to any wrongful conduct at all. That means that the losses proved by James were not the proximate result of Saks’s hiring of Thompson; they were the result of Thompson’s leaving James.

This decision leaves unaddressed how damages should be calculated in a case like this. This is a classic lost-volume claim, and such claims are customarily governed in the commercial context by the Uniform Commercial Code. This, however, is in the nature of a personal services contract, and as you can tell, the calculation is far more complex. The court recognizes that very complexity, citing at the bottom of page 15 of the slip opinion the compelling argument on that point advanced by James. But today’s ruling offers no easy solution to this problem; I know of no way for a plaintiff employer to establish damages, with reasonable certainty, in a case such as this, where the employee is at-will. Employers cherish that status because it gives the employer freedom from most wrongful termination suits; here, despite an admittedly meritorious case on liability, it hamstrings the employer’s ability to establish any quantum of damages at all.

Eminent domain and real property

What happens when a public authority acquires land for future use in a road project, but winds up not using it? After a certain period of time, the original owner has the right to demand reconveyance of the property for the original acquisition price, without interest. That provision provides the backdrop for the case of CTC v. Windsor Industries.

Windsor is the successor in interest to a company that sold a parcel in ChesterfieldCounty to the Commonwealth Transportation Commissioner in 1973 for $21,000. The land was designated as an “advanced acquisition” for use in connection with the anticipated construction of State Route 288, that massive roadway that loops around Richmond to the southwest. As it turns out, the final construction plans for the road called for a different location, so the land was never incorporated into the roadbed; it was instead used as a construction office for that project and the nearby work on Route 711 (Robious Road).

But eventually that project ended, too, and the subject parcel became surplus. At that point, VDOT decided to offer the property for sale to the public, at its current market value. Wait a minute, claimed Windsor’s president; I have a right to buy it back, at 1973 prices. As you can imagine, the value of the property has risen, ever so slightly, since then. And that, as so often happens, led to litigation.

This case contains several issues that relate to the process of conveying property subject to a possibility of reverter; the method for interpreting statutory changes over time; what happens to a company’s property rights when the corporate existence is terminated for failure to pay SCC annual fees; and the procedure for a landowner to demand reconveyance. Now, I am not going to launch into a full discussion of future interests – that topic slaughtered the psyches of enough of our colleagues during law school, and I have no desire to renew the carnage – so I will simply summarize the holdings here:

First, a possibility of reverter is not, in truth, a future interest. It is a present interest that awaits only the occurrence of a future event to flower into a right to demand conveyance. That means that it’s alienable, and Windsor possessed the right, as the successor to the original seller, to demand its resale.

Second, when the General Assembly conveys a right (here, the right of repurchase under Code §33.1-90), it has the right to modify the terms under which that right can be claimed from time to time, although it cannot retroactively extinguish the right.

Third, when a corporation’s existence is terminated due to failure to pay SCC fees, the company doesn’t wholly die; like a wraith, it lives on, capable of exercising its property rights. As here, the proper person to do that is the company’s trustee in dissolution.

Fourth, under the current version of §33.1-90, a landowner has 30 days after public notice of the CTC’s intention to sell the property, within which to assert his reverter rights. In this case, the president of Windsor complied with that time limit by filing a declaratory judgment petition in circuit court.

Having done the heavy lifting for those of you who do not routinely follow real property issues such as possibilities of reverter, I will humbly accept your thanks now.

The second case in these related fields relates to an ongoing dispute in Norfolk, where the owner of an auto salvage yard has fought the Norfolk Redevelopment and Housing Authority for some time now. The case has become a cause celebre in Tidewater, with the owners claiming to be David fighting off Goliath.

In this case, Goliath used the power of eminent domain to address blight. The subject parcel is adjacent to a local Coca-Cola bottling plant, and David – actually, the owner is C and C Real Estate, Inc. – asserted that the NRHA only wanted the property in order to benefit the Coke plant, which C and C asserted was a favored business to the City fathers.

In 1987, the City of Norfolk identified two junkyards – so the opinion describes them – as targets for blight remediation. The city council adopted a conservation plan that empowered the NRHA to address conditions within certain geographic boundaries, including both junkyards. For whatever reason, NRHA sent a notice to the other junkyard’s owners, demanding cleanup on pain of involuntary acquisition. No such notice was ever sent to C and C. Nor did NHRA take prompt steps to do anything about C and C’s yard; it waited ten years before submitting a bid to purchase the land for $400,000. That offer was ignored. Three years later, another offer arrived at C and C’s doorstep, this one for $560,000. David again declined Goliath’s munificence. At this point NHRA filed a condemnation petition, and the parties headed off to court.

After a hearing before a circuit court judge, the court found that the conservation plan was invalid, because it did not comport with the statute’s requirements for involuntary acquisitions. It also noted that C and C did not receive the required one-year cleanup notice, and took issue with the 15-year delay between adoption of the plan and the institution of eminent domain proceedings. The court also rejected C and C’s argument that NRHA cold not use the power of eminent domain to benefit another business (an argument famously shot down last year by the US Supreme Court in Kelo v. New London).

On appeal, in NRHA v. C and C Real Estate, the Supreme Court affirms today, although it reverses one of the circuit court’s findings. In addressing one principal issue in the case, the court decides a question of first impression, specifically, at what point blight is measured. The court holds today that the validity of a determination that a given property is blighted should be primarily measured at the time of that determination. That determination retains a “strong presumption of validity.” But the court notes that “the current status of the property must be considered when determining whether the original purpose of the acquisition remains viable.” In other words, once an authority makes a finding of blight, that’s presumed to be correct. But if there is a delay between the original finding and subsequent proceedings, the court has to consider whether the landowner has in the interim remedied the problem. That makes sense; otherwise, the landowner could in good faith clean up his property and still lose it, even though any real blight is long gone.

The court rejects the notion that a 15-year delay in the enforcement of this determination denies the owner due process rights. It observes that conservation projects are, by their very nature, long-term undertakings, and there is no limitation period in the statute.

The court also makes one significant pronouncement, underscoring previous holdings that the condemnor need not pay for the value of an ongoing business on property being acquired. The measure of just compensation is the fair market value of the land, with improvements; not the revenue stream of the business that occupies the land.

The circuit court is affirmed principally on the finding that the language of the plan does not match that of the statute. Specifically, the statute authorizes condemnation without the one-year notice if the property is “infeasible of rehabilitation . . . so as to inhibit or prevent accomplishment of the purpose” of the plan.” This plan contained similar, but not identical, language; it found that the properties “appear infeasible of rehabilitation or their land use is inconsistent with the purposes and objectives of the plan.” In other words, the statute requires that the property be incapable of rehabilitation, while this plan merely said that it appears to be incapable of rehabilitation. There is a difference, and that difference costs the NRHA today.

So what happens now? One option is that NRHA can go back to the drawing board. It can redraft the plan to match the statutory language; give C and C the one-year notice it should have received in the first place; or it can do what any other hopeful purchaser of property has always been able to do – it can offer enough cash to persuade C and C that the weather is nice this time of year in the West Indies. Given the acrimony this case has engendered to this point, it is, in my view, unlikely that NRHA will ever cough up that much money. But stranger things have happened.

Judicial discipline

Perhaps the most intriguing (and certainly the most hotly contested) case of the day is a Judicial Inquiry and Review Commission complaint against a Portsmouth General District Court judge for alleged malfeasance in office. You should note that this is not an appeal at all; JIRC proceedings like this are matters of original jurisdiction in the Supreme Court.

In reporting on JIRC v. Elliott, the mainstream media will no doubt focus on the sensational aspect of this case, which is the nature of the charged misconduct. I won’t fuss with the inevitable conclusion that those charges are, indeed, sensational. The most important of them involves the judge’s systematic practice of lying to criminal defendants in order to get them to waive their constitutional rights. More on that later in this essay.

But this case is ultimately about statutory (and constitutional) construction and the limits of the authority granted to a commission like JIRC. In that sense, it will no doubt be cited by litigants in contexts far removed from judicial discipline.

The opinion contains a recitation of the facts underlying the charges, starting at the bottom of page 3 of the slip opinion and carrying over to page 4. JIRC concluded that seven charges “were well founded and of sufficient gravity to warrant the filing of a formal complaint” in the Supreme Court. The most damning of these is the revelation that Elliott routinely (according to testimony from courtroom staff, at least once daily) told criminal defendants in drug trials that the DEA had installed a “drug detection light” in his courtroom that enabled him to determine if the defendant had in fact used illegal drugs. He promised leniency to those who would own up to such use or take a drug test, and threatened strict punishment to those who refused or failed the test. Other problematic practices included the judge’s habit of reviewing defendants’ criminal records before making a finding of guilt, and his directive to the Commonwealth’s Attorney that prosecutors were, in essence, not welcome in his court in DUI cases. In the latter case, he informed the Commonwealth’s Attorney that if prosecutors did show up in those cases, the conviction rate would decline.

You don’t need me to tell you that this is a problem. JIRC obviously felt so, but instead of simply certifying the charges and proceeding in the Supreme Court, it invoked a rule allowing the commission to offer the judge certain terms upon which he could keep his robe; in this case, those involved (among other things) announcing his retirement, effective a few months thence, and being supervised in the interim. The judge accepted those terms. But JIRC later felt that he had not kept his end of the bargain. It considered the deal breached, and brought this proceeding on the original charges.

Today’s majority opinion is, for the most part, a rebuke of JIRC’s action in filing the charges despite the agreement. It ultimately rules that the deal is in place, and dismisses the complaint without prejudice. In doing so, it applies ordinary contract principles in a fairly noncontroversial manner. But there are still fireworks in this opinion; those come from the three-justice dissent.

As the dissent (Justice Keenan, Joined by Justice Lacy and the late Senior Justice Compton) observes, the Virginia Constitution authorizes JIRC to investigate charges against jurists, and if it finds the charges to be well founded, it “may file a formal complaint before the Supreme Court.” State Code provisions mirror this language. But JIRC has promulgated its own rules, and those rules give it another option not mentioned in either the Constitution or the Code:

“4. If the Commission finds the charges against the judge to be well-founded, the Commission may, with the consent of the judge, place the judge on a period of supervision under such terms as the Commission may determine. . . . ”

This is the “deal” that was offered to Judge Elliott in this matter, and the very deal the majority enforces in today’s opinion. But as the dissent notes, the Constitution and Code both state that if the charges are founded, the only recourse listed is to the high court. JIRC has no specific grant of authority for such an optional treatment.

Well, it does now; today’s split opinion specifically operates as the court’s sanction of this assertion of authority by the commission. Interestingly, JIRC “wins” this right by losing this appeal; if the court had found that no such authority had existed, this would have been a hearing on the merits of whether the judge should be censured or removed from office. And while the majority does not specifically rule on the merits (the dissent finds that he should be removed), it takes little insight at all to conclude that if this had been a full disciplinary hearing, the judge would be out of office today, probably by a unanimous vote.

Long-time readers of this site know that I generally stick to the holdings, along with some analysis of how those holdings will affect the practice of law. I don’t generally editorialize on opinions from this court or any other; there have been a very few exceptions. This is going to be another one.

In thinking about the technical aspects of this ruling, I recognize that it takes a conscious effort to keep my views of the ultimate merits from coloring my view of whether JIRC had this authority or not. On the ultimate merits (whether the judge should be censured or removed), this is not even a close call. For example, in addressing before the commission the issue of the “DEA light,” the judge initially insisted that he “didn’t see nothing wrong” with thus lying to these defendants. Later in the proceedings, he changed his view to this: “I knew it wasn’t right, but I didn’t think it was wrong wrong [sic].” (Presumably that expression was meant to distinguish it from “right wrong.”) I will confess that when I read this language from the dissenting opinion, I could not continue; I put the opinion down and mused in astonishment for several moments on what these two comments reflected on the person who is, for many citizens in Portsmouth, the embodiment of Virginia justice.

But the majority’s conclusion must find its support in principles of statutory construction, without consideration of the result that “should” entail; no end can justify unfair means in this context. Even stripped of any ultimate-issue influence, there are two reasons why the majority’s conclusion is troublesome.

First, the majority concludes that the authorizing language in the Constitution and the Code is permissive – if it finds the proof satisfactory, JIRC “may file a formal complaint before the Supreme Court.” That language, the majority reasons, does not exclude other appropriate methods of resolution of judicial complaints, so JIRC’s assertion of the right to this form of alternative dispute resolution isn’t forbidden. But this is the grant of authority, not a set of guidelines for the commission’s procedures. Bodies such as this have limited powers, and those powers have to be specified, either by the General Assembly in enabling legislation, or in the Constitution itself. The dissent might have turned to the legal maxim expressio unius est exclusio alterius (the mention of one thing implies the exclusion of all others) to further strengthen its opposition to this extension of JIRC’s authority.

Second, JIRC’s internal rules admittedly contain contradictory language. In addition to subsection 4, quoted above, they also provide:

“2. If the Commission finds the charges against the judge to be well founded and of sufficient gravity to constitute the basis for retirement, censure or removal, it shall file a complaint against the judge in the Supreme Court of Virginia.” (Emphasis supplied)

That is, subsection 2 says that if the charges are founded, JIRC shall file a formal complaint; subsection 4 says that if the charges are founded, JIRC may offer the judge a deal. There is only one way for the majority to resolve this conundrum, and that is to rule that shall in subsection 2 actually means may.

This is not the first time that a court has ruled that one word actually means something else. For example, in a 19th century case, the Supreme Court held that the word or should be read to mean and. Loyd v. Lynchburg N.B., 86 Va. 690, 694 (1890). Just this month, a federal court of appeals ruled that the word less, as used in a federal statute, actually means more. Miedema v. Maytag Corp. (11th Cir. June 5, 2006)(slip op. At 5-7). And on at least one other occasion, the Virginia court has made the very ruling reached here, finding that shall in a statute relating to jury trials actually means may. Meade v. Meade, 111 Va. 451, 453 (1910).

So if it’s been done before, why the fuss? Because whenever the court resorts to construction like this, it does some damage to the principles upon which the law is based, and upon which ordinary citizens plan their lives. I am not contending that any Virginians “plan their lives” on this provision in the JIRC rules; I doubt whether more than a few dozen Virginians even knew of this rule before today. But when a court permits itself the luxury of redefining words in this fashion, it undercuts the degree of confidence that people have in laws, contracts, regulations, and other expressions upon which we all rely.

Wills and probate

The court decides two probate cases today, one of which will have very limited application. That one is Huaman v. Aquino, involving the distinction between a specific bequest of personalty and a residuary clause. The personalty in question is a chose in action, specifically a personal injury claim by the testator before her death. The claim was settled for just under $1.8 million, but not before the testator died.

Under Virginia law, that claim would not survive the death of the testator; it would be converted into a wrongful death claim, belonging to the decedents’ heirs. But the injury claim was filed in, and subject to the law of, the District of Columbia, and that law permits the continuation of the original injury claim. Accordingly, as today’s opinion notes, the doctrine announced here will not affect Virginia’s “well-developed law pertaining to actions for personal injury and wrongful death.”

The decision, for those of you still hanging on here, is that a chose in action is, indeed, personalty, and can be bequeathed in a will. The tantalizing argument urged by one party, that this procedure “is tantamount to an ‘assignment’ of the personal injury action that violates Virginia law,” is found by the court to be procedurally defaulted under the Grim Reaper of appeals, Rule 5:25.

Grubb v. Grubb, also announced today, concerns the inherent danger that arises when one assumes a dual role as a person’s attorney in fact and a co-owner of certain bank accounts with one’s principal. In these circumstances, whenever the attorney in fact takes any step to convey the principal’s property to his own benefit, there is a presumption of fraud.

You can understand why the law would impose such a presumption; when Grandma gives her favorite nephew power of attorney, and then the nephew starts using the power to convey Grandma’s property into his own name, the rest of the heirs are going to start protesting. Without such a presumption, it might be hard for them to undo such a conveyance. The law as it stands requires the attorney in fact to prove, by clear and convincing evidence, that Grandma really intended for him to have Blackacre.

In Grubb, the trial court found that the attorney in fact had not met that burden with regard to several bank certificates and accounts; today the Supreme Court agrees and affirms the finding in favor of the other heirs. This is so despite the fact that the attorney in fact adduced at least some evidence that the accounts were co-owned before the principal signed the power of attorney. The court notes that this issue was disputed at trial, and concludes that the attorney in fact did not meet the clear-and-convincing standard.

In one ruling of general application, the court addresses a motion for costs under Rule 4:12(c), relating to the attorney in fact’s refusal to admit certain requests for admissions on matters that were eventually proved at trial. Many lawyers may believe that once a party proves a fact that the other side refused to admit under Rule 4:11, an award of costs is automatic. It isn’t; the sanction rule contains something of an escape clause, relieving a party of costs liability if he has a reasonable basis for making a denial. The court finds that the attorney in fact did in fact have such a reasonable basis, even though he eventually lost on that issue at trial, and approves the trial court’s decision declining to award such costs. Remember that this is a matter within the trial judge’s discretion, and that’s a hard standard to overcome on appeal.