[Posted June 6, 2013] As long-time readers of this site know well, I love history, and I’m always happy to note an important date. In my humble view, today is the 69th anniversary of the most important day of the Twentieth Century, and arguably of modern times. The Supreme Court of Virginia notes the occasion by wrapping up its 2012-13 term, handing down eight published opinions.

If that number seems small to you, that’s because it is. One inevitable byproduct of the court’s shrinking docket (discussed in my May 31, 2013 essay on appellate statistics) is that there will be fewer published decisions. Not that I’m complaining; opinion days are the six busiest days of the year here at VANA, and fewer opinions means less time needed to analyze them.

In case you think I’m exaggerating about the decline, here’s a timeline for each session, going back to the beginning of last year, showing the number of opinions handed down in each session:

Jan. ‘12 – 20
Mar. ’12 – 20
Apr. ’12 – 15
Jun. ’12 – 20
Sep. ’12 – 16
Nov. ’12 – 15
Jan. ’13 – 12
Feb. ’13 – 12
Apr. ’13 – 9
Jun. ’13 – 8

One last historical note before we sift through today’s opinions: I had the good fortune to be in court to argue an appeal on Tuesday, June 4, which is the anniversary of an under appreciated feat by a great Virginian. At about 4:30 a.m. on June 4, 1781, Jack Jouett, having traveled 40 miles in one night, rode up to a certain mountaintop residence just outside Charlottesville to warn Governor Jefferson that Lt. Col. Tarleton and his whitecoats were coming. (The British infantry wore red coats; Tarleton’s cavalry wore white.)

Considering the circumstances, this was a much more remarkable feat of riding for a patriotic cause than was the more celebrated one that started in Boston in April 1775. But Paul Revere had a better publicist than Jack did, so we Virginians are probably the only ones who remember him properly.

By the way, the temptation was nearly overwhelming to say something during my argument on Tuesday to commemorate Jouett’s ride; but somehow I kept my comments confined to the realm of eminent-domain law. If I could have figured out a way to do it, I would have.

Habeas corpus
Abortive plea negotiations form the backdrop for Laster v. Russell. Laster was accused of animate object sexual penetration. He had told his lawyer that he wouldn’t accept a plea agreement to any felony charge (which the primary offense emphatically is) or to anything with active jail time, because he’d lose his job.

The prosecutor offered to Laster’s lawyer a plea agreement that would reduce the charge to aggravated sexual battery – still a felony – with a three-year sentence and four months of active jail time. The defense lawyer told the prosecutor that that deal wouldn’t work, so the case went to trial. It ended badly for Laster.

Before sentencing, Laster got a new lawyer, who found out about the plea offer. Insisting that Laster would have accepted that deal if it had been presented to him, this lawyer moved for relief that isn’t specified in today’s opinion; the trial judge, out of an abundance of caution, declared a mistrial and recused himself.

But that action didn’t reinstate the plea offer. Instead, Laster got a new judge, a new trial, and a new conviction. In fairness, I’ll point out that the conviction came on a no-contest plea. Still, the new judge hit him with 30 years, with 20 suspended.

That brought on a habeas petition, in which Laster challenged his first attorney’s failure to advise him of the plea offer. The trial court dismissed it, finding that it didn’t have jurisdiction. That’s because Laster was challenging only his first trial, but he was being held in custody pursuant to his second trial. Laster never argued that there was anything wrong with the first proceeding. The judge also held that Laster hadn’t proved the prejudice prong of the Strickland analysis, since he failed to show that the first judge would have accepted the plea agreement if it had been presented to him.

Today, the Supreme Court affirms the dismissal of the petition. The court doesn’t accept the jurisdictional holding (based on two 2012 rulings from SCOTUS on this very issue), but it agrees that Laster didn’t establish prejudice. The court points to colloquy in the habeas proceeding in which the sentencing judge notes his familiarity with the first judge, and expressed great doubt that he would have accepted that deal.

You don’t have to be much of a cynic to reach one other conclusion: Laster’s late-expressed willingness to accept the deal, coming after his conviction on the merits, looks a tad doubtful. He had told his first lawyer, apparently in no uncertain terms, that he would reject any deal that looked like this one. Once he was convicted, a person in his position might well look to any plea deal in a storm. Even inmates get the benefit of hindsight.

Civil procedure
We get an important update on affirmative defenses today in New Dimensions, Inc. v. Tarquini, a suit under the federal Equal Pay Act. A home-building company hired an employee to work on commission as a design and sales consultant. Her commission percentage was slightly lower than other similar employees (of both sexes). Two years later, the company fired her without paying her for projects on which she had worked, and that were nearing completion.

The employee sued, claiming that her pay disparity was because of her sex. The company denied that allegation, but didn’t assert any of the four affirmative defenses set out in the federal statute. Discovery led to disclosure of the company’s pay structure, which (it contended) was gender-neutral.

Two days before trial, the employee moved the court in limine to exclude any evidence of the company’s policy, because it hadn’t pleaded that as an affirmative defense. The court agreed and excluded the evidence; the trial resulted in about $48K in compensatory damages and $125K in attorney’s fees and costs. The company got a writ.

This case, observant readers will note, involves the opposite situation of an Erie diversity action in federal court. Here, a federal claim is being tried in state court. That calls for application of what Justice Goodwyn, writing for a unanimous court, describes as “reverse-Erie doctrine.” That is, the court applies federal substantive law and state procedural law (so long as the state law doesn’t impinge upon the federal rights to be protected).

Whether something is an affirmative defense or not is substantive, and the court finds that under federal law, the four exceptions in the statute are indeed affirmative defenses. That means, under Virginia law, they generally have to be pleaded, or they’re waived.

But that’s the general rule. More specifically, here are exceptions to the rule: “(1) where the issue addressed by the affirmative defense was not disclosed in the plaintiff’s pleading; (2) where the affirmative defense is not an absolute bar to recovery; and (3) where the affirmative defense is ‘addressed by statute.’”

Did you catch that last part? Where the statute governing the action specifies available defenses, the defendant need not plead them in order to avoid waiver. In this case, the company put the affirmative defenses into play merely by denying, in its answer, that the pay differential was gender-based.

The court accordingly rules that the motion in limine should have been overruled. There’s only one remedy for that error: The case is remanded for a new trial.

Real property and land use
My reading of today’s twin opinions in Martin v. Garner and Martin v. City of Alexandria convinces me once again that things are simply different up in the State ofNorthern Virginia. These appeals deal with the Garners’ desire to build a house in OldTown, on a lot that’s 36 feet wide and 44 feet deep. Only in Alexandria could a city staffer describe this property, presumably with a straight face, as being “a large buildable lot.”

Say what? I definitely don’t live in a mansion down here in Tidewater; it’s a simple brick ranch. But the footprint of my house is significantly bigger than this whole lot. Here in Virginia Beach, that would be regarded as a mostly useless spur of land. In OldTown, however, it’s valuable enough for property owners to spend a whole lot of money on lawyers.

The first appeal deals with the ownership of an 8’ alley dividing the Garners’ building site (now vacant) and the Martins’ home. The Garners win this round, as the justices affirm a trial-court ruling that says that each neighbor owns to the center of the alley. That’s based on the language of deeds in the families’ respective chains of title.

The second case is more intriguing. It involves a grant of a variance by the City to the Garners to facilitate their building a home on this postage stamp. The Martins, who had opposed the variance, appealed, and they win this round; the justices reverse and enter final judgment, effectively denying the variance request.

The BZA had approved the variance on four grounds, and the Supreme Court disagrees with each of those. Three of the four are fairly straightforward. First, the BZA had held that the Garners’ parcel was different because it was vacant; the ordinance, according to the BZA, applied to existing buildings, not to new construction. Alas, the ordinance itself is not thus restricted: “All buildings and structures erected hereafter . . . shall be subject to all regulations of this ordinance.”

Two other grounds for the variance related to the overlay of a historic preservation ordinance on the property. The justices find, quite correctly, that this condition isn’t unique to this property; a whole host of other properties fall within that area.

It’s when I get to the only remaining ground that I find myself stopping short of full agreement with the justices. The BZA had held that the configuration of the lot, combined with the side-and-rear setback lines, left an insufficient building area. The side lines are no big deal, because this lot is wider than that for typical row houses (I assume 25’). But the rear line is indeed a hardship, at least in my view. The standard lot is 100’ deep, and there’s a 16’ rear setback. That still leaves plenty of room for ordinary lots; but this one is only 44.33 feet deep. The opinion notes that most of the other homes in this area don’t have back yards at all, because of the shallowness of the lots.

I’m going to assume that these lots were platted long before there was a zoning ordinance. That means that the imposition of these zoning restrictions has created a special hardship upon these short lots. This is the kind of thing that variances are for.

Back in 2004, the court handed down Cochran v. BZA, in which it noted that variances should rarely be granted, because the statute authorizing them called for them only where there was “a clearly demonstrable hardship approaching confiscation.” To deal with the harshness of that ruling, the legislature in 2009 removed the words approaching confiscation from the statute, presumably thereby making it easier for localities to grant variances to prevent “clearly demonstrable hardship.”

Today’s opinion notes that statutory change, but it observes that the city charter still requires that “the strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of property,” before a variance can be granted. In my thinking, an effective prohibition or unreasonable restriction amounts to pretty much the same thing as “approaching confiscation.” I don’t get a vote, but on this one, I might have been a little more receptive to this factor.

In the end, the Garners get confirmation of title to their 4’ side of the alley, but they lose – permanently – their ability to build the house they want. The second opinion notes that there may be of-right designs, so fortunately the land isn’t useless.

Sex-offender registration
Smith v. Commonwealth contains a very interesting legal issue. After plea negotiations, Smith pleaded guilty in 1999 to carnal knowledge of a minor (the original charge was statutory rape). The trial judge “reluctantly accepted the plea agreement,” giving Smith a ten-year suspended prison sentence.

At that time, state law classified carnal knowledge of a minor as a non-violent sex offense. For that kind of offense, Smith would be required to register once a year for ten years, after which he could seek an expungement.

But in 2006, the United States decided to toughen its sex-offender laws. It required the states, as a condition of receiving federal money, to “implement comprehensive sex offender registration standards,” including the classification of Smith’s crime as a violent offense. That change (which the Commonwealth did implement) would produce a profound effect upon Smith’s post-conviction terms. He still didn’t have to go to prison, but he’d have to register quarterly, not annually. And he’d have to do that for the rest of his life, with no hope of expungement.

Can they do that? Smith felt he’d been the victim of an ex post facto change in the law. He contended in court that he had a contractual right to the terms of law that were in effect at the time he pleaded guilty. After all, if the law in 1999 had required permanent quarterly registration and a permanent record, he might not have pleaded guilty.

This case turns on whether Smith had a contractual right or not. The statutes in existence at the time were, the court rules today, indeed incorporated by reference into his plea agreement. But that’s still not enough to establish a property right. Justice Mims, writing for the unanimous court, notes that all contract rights are subject to the state’s police power to protect its citizens. The federal-funds incentive notwithstanding, Virginia did have a law-enforcement-related reason to pass these changes, and Smith didn’t have a right to freeze the law at that place in time. As Justice Mims puts it:

the plea agreement contained an implied condition that Smith would remain subject to the state’s future exercise of its police power. That power included the inherent authority to pass non-punitive legislation regulating convicted sex offenders.

For the same reason, the court also rejects Smith’s takings claim based on the Virginia Constitution. And since a hearing on this wouldn’t have changed any operative facts, he doesn’t state a claim for deprivation of procedural due process, either.

Attorney discipline
State Bar disciplinary cases in the Supreme Court are, thankfully, rare, but Livingston v. VSB is even rarer – the respondent is an assistant Commonwealth’s Attorney who’s charged with misconduct in the course of a criminal prosecution.

Our story starts with a guy who wanted to buy Oxycodone and had the misfortune to arrange for a purchase from an undercover cop. His misfortune was compounded when the site for the purchase was within 1,000 feet of a school. And even then, he didn’t get the real deal; the officer delivered the requested number of tabs of an imitation for the drug, “made especially for undercover drug operations.”

Our hero got indicted possession with intent to distribute Oxycodone, and for the same offense within 1,000 feet of a school (they’re separate offenses). After the prosecution rested, the defense moved to strike the first count because the defendant never actually possessed Oxycodone, and he was never charged with possession of an imitation controlled substance. The defense also moved to strike the second count because there was no evidence that the defendant intended to distribute the substance within 1,000 feet of a school.

The prosecutor conceded that the first charge should be struck, but asked for leave to amend. Instead, he got leave to reindict for the correct offense. The judge dismissed both indictments. The prosecutor went back to the office and directed his staff to prepare a new indictment. But that one had a flaw, too: instead of charging the defendant with possession, it alleged that he “did manufacture, sell, give, or distribute an imitation controlled substance which imitates a schedule I or II controlled substance.”

The prosecutor admittedly didn’t review this new indictment carefully before he went to the grand jury. At the ensuing trial, the court dismissed the indictment. The prosecutor decided to appeal that ruling to the CAV, but he didn’t file a petition for appeal in time; instead, he apparently filed a “brief” (today’s opinion employs the quotation marks) in which he blithely referred to the third indictment as charging possession with intent to distribute.

The Bar charged the prosecutor with violating rules relating to competent representation, assertion of frivolous claims or contentions, and the additional responsibilities of a prosecutor. A district committee and the disciplinary board, in turn, each imposed a public reprimand with terms.

Today, the Supreme Court affirms the competence finding, but reverses the other two, remanding the case for recalculation of an appropriate sanction. The court finds that the prosecutor failed to provide competent representation to his client (the Commonwealth) when he misread the law in a couple of respects in the first trial and brought an indictment on the wrong charge in the second phase. The justices are more forgiving on the other counts, finding that they aren’t supported by clear and convincing evidence.

Declaratory judgments
The court takes the easy way to resolve a potentially thorny legal issue in Friends of the Rappahannock v. Caroline County. At issue is a permit granted by the county to two companies to conduct sand and gravel mining on the banks of the Rappahannock River. That kind of mining is a permitted use in the zoning classification, subject to issuance of a permit.

Several individuals and a public-advocacy group filed a declaratory-judgment action that challenged the issuance of the permit. The aforementioned thorny issue arose almost immediately, when the permittees and the county argued that the petitioners didn’t have standing. They claimed that the petitioners weren’t aggrieved by the issuance of the permits, and their injury, if any, was in common with the members of the public as a whole.

The petitioners responded that under the DJ Act, they didn’t have to be aggrieved; they merely had to have a justiciable interest. Some Supreme Court opinions use the former term, and some use the latter. Which is correct?

Justice Millette, writing for the full court, cuts this Gordian knot by holding that in this context, the two terms mean the same thing; he calls the wording “a distinction without a difference.” Accordingly, since the petitioners don’t own the property for which the permit was issued, they have to show two things in order to have standing. First, they have to establish physical proximity; second, they have to show particularized harm different from that suffered by the public.

The individual owners all owned or leased property relatively nearby, and the court assumes that they meet the proximity requirement. But the court finds that they don’t state claims for particularized harms, so the trial court was correct to dismiss their requests for relief. Noting that the excavation was already a permitted use on the site, the court rules that there’s nothing about the permittees’ specific use that triggers standing for the petitioners. The county had attached a number of conditions to the permit, and the court finds that the petitioners have failed to demonstrate that those conditions would be insufficient to address any particularized concerns.

Involuntary commitments
We’ve come all the way to the last case of the day. You know what’s been missing thus far? Disagreement. Each of the seven cases discussed above has been unanimous. Until a very few years ago, seeing several unanimous opinions in a row was nothing unusual; but in recent years, a divided court has become almost the norm. Finally, in Paugh v. Henrico Area Mental Health & Developmental Services, we get a dissent today.

A little over a year ago, a magistrate issued a temporary detention order for Paugh after learning that he was suicidal. The informant also stated that he possessed firearms. The next day, a special justice involuntarily committed him. He appealed to circuit court, where according to the statutory setup, he was entitled to a trial de novo.

The trial court considered what the relevant date for its determination was. Should it be the date of the TDO? How about the date on which the special justice committed him? Alternatively, it could be the date on which the circuit court conducted its hearing. The court concluded that as a matter of “common sense,” his role in considering this appeal was to determine whether Paugh met the criteria for involuntary commitment on the date of the TDO. The judge ruled that the evidence clearly established that Paugh was a danger to himself on that date, so he ruled that the TDO was valid.

That brings us to our freshly divided Supreme Court. Justice Powell writes the majority opinion, holding that the trial court had used the wrong date for analysis. Since it’s a trial de novo, it doesn’t matter what happened below; the operative question is whether Paugh needed commitment right then. But that issue was pretty much settled, even before the parties got to circuit court; Paugh had been released from detention the day before he filed his appeal to circuit court. No one contended that, by the time the case got to circuit, he needed to be detained. The justices accordingly reverse the judgment and dismiss the petition for commitment.

There was an unexplained phenomenon in that last paragraph; you may have noticed it. If Paugh had been released, why have the appeal at all? Isn’t it moot as soon as he walks out the door? Not if there are collateral consequences of the issuance of the order. And in this case, there’s a big one: A person who has been involuntarily committed can’t possess firearms. The consequence of dismissing this case, rather than affirming, is that the formerly suicidal person will once again have access to his gun collection. (Justice McClanahan, writing in dissent, believes that “avoidance of this prohibition is apparently Paugh’s paramount objective in pursuing the instant action.” He’s already free; now he wants his firearms back.)

As Justice Mims points out in a concurrence, Paugh used the wrong Code provision to challenge the TDO. The one he used is for the benefit of those persons who are still detained; a different one applies to those who have been released and want to avoid the collateral consequences. But since the appellee never objected below to the procedure used, and didn’t assign cross-error, Justice Mims finds that process to be the law of this case, and he “reluctantly” concurs.

No dice, Justice McClanahan replies. She would affirm on the right-for-the-wrong-reason doctrine. She agrees that the relevant inquiry is as of the date of the circuit-court hearing, but she finds nothing in the review statutes that requires dismissal of the petition if the detainee is no longer in need of detention. In her view, the result of a successful challenge by the detainee is that he’s released from detention; if the detainee wants restoration of his right to carry firearms, he can use the correct statute to go to a GDC judge and ask for that restoration. The only thing for the judge to do, applying the statute that Paugh actually used, was to decide whether the original order of commitment was lawful. She thinks that the proper ruling there was one of mootness, since Paugh was already free.

In thinking over this procedural morass, if I had a vote I’d agree with Justice McClanahan. Since Paugh used the wrong statute, he should only get the remedy that that statute affords. It’s entirely possible that part of my leaning is because of the implication of giving a gun back to someone who’s all-too-recently been suicidal, without having a judge pass on whether that’s appropriate. But lest we get too involved in hot-button political debates over the Second Amendment, . . . well, I think it’s time to wrap up this analysis now.