ANALYSIS OF MAY 20, 2008 CAV OPINIONS

 

[Posted May 20, 2008]  In the last few months, the Court of Appeals has increased the pace of its published opinions.  In recent years, we have seen two or three a week on average, but today there are five, continuing a recent trend that has given us 28 published opinions in the past month and a half.

 

Administrative law

I recall watching as Hurricane Isabel roared through my neighborhood in 2003, like a freight train that took hours to pass by entirely.  We escaped the storm with little or no structural damage.  But another nearby structure, the Harrison Fishing Pier in the Ocean View section of Norfolk, didn’t fare so well; it was destroyed by the waves and storm surge.  The City of Norfolk hastened to encourage reconstruction and redevelopment in affected areas of that city, and one thing it did was approve the rebuilding of that pier.  The owner even planned to make the rebuilt pier more of an attraction, by constructing a deck atop the restaurant just short of midway on the pier; the city heartily approved.

 

The owner also had to obtain approval from the Virginia marine Resources Commission, since the pier juts out onto a public waterway.  He filed an application, which was granted, but he neglected to describe the new roof deck.  When he learned of the discrepancy, he asked the VMRC to grant him a retroactive permit.  The VMRC conducted a hearing at which the owner outlined his plan; two neighbors spoke in opposition.  After debating the matter, the commission voted unanimously to approve the permit, although they did fine the owner $10,000 for leaving the deck off the original application.

 

One of the neighbors sued in circuit court, asking the court to overturn the grant of the permit.  The trial court agreed with her that the permit should not have been issued; he accordingly vacated the permit, and awarded the neighbor over $9,000 in attorney’s fees.

 

Today, in Boone v. Harrison , the Court of Appeals evaluates the trial court’s three independent grounds for its ruling, and finds each of them wanting.  The court begins by noting “the limited nature of judicial review” in these cases.  Since this is an admin law matter, the appeal is conducted under the Administrative Process Act, which makes the circuit court essentially an appellate court, reviewing the VMRC’s decision.  Trial courts don’t get to make factual findings in APA appeals; they have to uphold the agency’s findings, unless “a reasonable mind would necessarily come to a different conclusion.”  The CAV also noted that the statutory framework entrusts a great deal of discretion in the VMRC to decide whether a given application should be granted.

 

Essentially, against that backdrop the whole house of cards comes apart.  The court notes today that the VMRC properly considered the neighbors’ complaints (the trial court had found that the agency had ignored them, but the record shows otherwise), and that the permit was consistent with the public duty doctrine.  (That doctrine provides that the Commonwealth holds public lands, including the subaqueous beds at issue here, in trust for the public, and the state must manage those lands with the public interest in mind.)  The court rules today that the statute “directs the VMRC – not the courts – to decide whether, in its expert discretion, granting the permit would be consistent with the public trust doctrine.”  The VMRC had decided that it would, and that decision, in light of the record, was not arbitrary or capricious.  Accordingly, the trial court’s ruling is reversed, and the permit is reinstated.  The unfortunate neighbor even loses her award of attorney’s fees, so this will be an extensive trip to the courts for her. 

 

There was one other matter argued by the neighbor, but the court finds it to be procedurally defaulted.  The trial court had held that the VMRC denied the neighbor due process by refusing to consider her exhibits at its hearing.  The trouble with this (at first blush plausible) theory is that the neighbor hadn’t raised a due process challenge in the trial court; this was something that the trial judge came up with on his own, and ruled sua sponte in his letter opinion.  Of course, the neighbor speedily adopted the argument once the case got to the Court of Appeals.  But today, the CAV rules that the issue wasn’t properly before the lower court, since the neighbor hadn’t pleaded it.  There is a hint that the court might have approved of her moving to amend her petition after the fact to include this challenge, but something tells me that that approach won’t pan out for future litigants in her position.

 

The principal lesson of this case is the court’s emphasis on the deference the courts should afford to administrative agencies’ determinations.  That’s true of factual findings, of course (since the agency is the factfinder, just as a jury is in a law case); but today’s opinion also gives a nod toward the agencies’ judgment on matters within its statutory discretion.  That doesn’t quite get to the level of accepting the agencies’ decisions on matters of pure law — that won’t happen any time soon — but those agencies do have plenty of leeway, as today’s decision confirms.

 

We see the other side of the deference coin in Shipper’s Choice of Virginia v. DMV , a case involving instruction at a school that trains commercial truck drivers.  Shipper’s Choice ran such a school, and a couple of DMV agents slipped into a room one day while one Bobby Garrison was teaching five students.  According to today’s opinion, he was doing a pretty good job, too; the agents were impressed.  But it turns out he wasn’t yet the holder of a commercial driver’s license.  Since state law requires all instructors to possess CDL’s, Shipper’s Choice now has a problem.

 

The DMV suspended the school’s license, and a trial court affirmed.  Today, a panel of the Court of Appeals reverses that and orders that the violation be dismissed.  The key is the statutory definition of instructor, which reads, “any person, whether acting for himself as operator of a driver training school or for such school for compensation, who teaches, conducts classes, gives demonstrations, or supervises persons learning to operate or drive a motor vehicle.”  (Emphasis supplied.)

So what’s the big deal?  Garrison was evidently just filling in; there was no testimony that he taught more than this one session of the class.  And importantly, he received no pay for teaching; he was employed as a mechanic, and didn’t get any extra pay for covering the class.  That means that he doesn’t meet the definition of instructor, so the school didn’t violate the rules.

 

A couple of key points about this case:  First, I doubt this will inspire lots of other schools to start using unlicensed instructors to teach their classes.  This appeared to the court to be very much a one-time-only event, and it helped that Garrison was such a good teacher.  Second, this ruling illustrated the principle noted above in the discussion of the fishing pier case, that courts will never defer to agencies’ interpretations of law.  That, at least, is one role the courts will never surrender to any agency.