ANALYSIS OF MAY 5, 2009 CAV OPINIONS

 

[Posted May 5, 2009]  The Court of Appeals of Virginia hands down three published opinions today.

 

Domestic relations

We’ve seen Robinson v. Robinson before.  It’s a spousal support case, in which the trial court ordered the husband (a physician) to pay to wife $5,000 a month in support after a 38-year marriage.  Husband got an earlier award reversed because, while the original order noted that the court had considered the various factors required under Code §20-107.1(E), there was no discussion of those factors.  The case was remanded for the trial court to reconsider.

 

Upon remand, the court invited the parties to submit proposed findings of fact and conclusions of law, but it didn’t convene another hearing.  Wife gave the judge her proposed findings and conclusions, but somehow husband neglected to do so.  Out popped a new order, fully rules-compliant, awarding wife the familiar sum of $5,000 per month.  Husband appealed again, and the first thing out of his mouth (well, in his brief, anyway) was a complaint that the trial court hadn’t obeyed the CAV’s previous mandate.

 

Ah, but it did, the appellate court rules today.  We never said anyone had to convene a new hearing.  The final order specifically states that the judge reconsidered everything, and the appellate court sees no reason to disbelieve him.  And the fact that the court awarded the same amount after reconsideration doesn’t indicate that anything’s amiss; that has happened in the past, to appellate approbation.

 

Husband makes three specific challenges to the award, but the Court of Appeals turns each of them aside.  One intriguing one is the husband’s contention that wife would have realized an 8% rate of return on her money; the trial court only used a figure of 4%.  Ah, but the trial court’s figure represented a real rate of return (gross return minus expected rate of inflation), which, speaking as an economist (or at least a college Economics major, which isn’t quite the same thing), seems correct to me.

 

One last point – both sides asked for an award of appellate attorney’s fees, and since the wife wins today, the CAV directs the trial court to award such fees to her.

 

Criminal law

I’ll admit that, at first glance, there was something about Owens v. Commonwealth that looked incongruous to me.  But upon reading today’s opinion, it all makes sense now.  The prosecution was for possessing burglary tools.

 

While riding in a car around my home town of Virginia Beach in the wee hours of a June morning a couple of years ago, Owens helpfully informed the other two occupants of the car that he knew where there was some money in an unoccupied house.  Honorable folks would merely shrug at this information, but to these three, the news seemed like an opportunity.  The car soon arrived at the target home, and Owens stayed inside while the other two went in to pull off the heist.

 

Now, there’s normally nothing funny about crime, and there’s certainly nothing cute about a home invasion.  But the antics of bumbling crooks will never cease to amuse me.  These two crooks went up to a sliding glass door, and tried to pry it open with a screwdriver.  Instead of popping open, it shattered into a gazillion pieces, probably scaring the bejeebies out of the would-be felons.  Instead of striding into the home to gather the anticipated loot, they turned tail and ran, no doubt picking glass shards out of their hair the whole time.  The primary perpetrator had the presence of mind to toss the screwdriver as he bolted.

 

The house, it turns out, wasn’t unoccupied after all.  The owners called the police, who quickly rounded up Larry and Moe, eventually finding Curly – that would be Owens – courageously curled up in the floorboard of the car, trying to evade detection.  When they pulled him out, he lied about his identity.

 

It didn’t work; it never does.  Properly identified, Owens was convicted after a jury trial of attempted burglary, conspiracy to commit burglary, and possession of burglary tools.  The CAV gave him a writ to review only the last of these convictions.

 

The real issue on this case is whether Owens can be convicted of possessing the screwdriver (which was the only tool involved) when according to all of the evidence it was one of the other Bad Guys who possessed it.  The question in this appeal is whether a criminal defendant can, in essence, constructively possess such a tool when one of his co-perps was in actual possession.  The answer, it turns out, is yes.  When engaged in a joint criminal enterprise, all accomplices are responsible for what the others do – a perhaps harsh but just application of vicarious liability.  Owens is this liable as a principal in the second degree, so his prison stay will include a term for the tool.

 

The incongruous-seeming part of this case for me was the issue of whether a screwdriver is a burglary tool.  I mean, I can understand if someone is carrying around a lock pick or something similar to that; but a screwdriver is just a plain old tool.  Does that mean that carpenters are felons whenever they strap on their tool belts?

 

Well, no.  The statute proscribes possessing “any tools, implements or outfit, with intent to commit burglary, robbery, or larceny . . ..”  That means that while the screwdriver is unquestionably a tool (any 10th grade Shop student could tell you that), the nation’s carpenters are safe as long as they don’t get any felonious ideas.

 

The final decision of the day is a real whopper – Ghameshlouy v. Commonwealth involves a relatively benign city ordinance (failing to identify one’s self to law enforcement), but it produces an enormous dispute over appellate jurisdiction.  As I type this late on Tuesday afternoon, I am not yet finished reading Judge Haley’s blistering 30-page dissent.  I accordingly beg your leave to finish this essay tomorrow, after I finish reading the dissent (and rereading Judge McClanahan’s 7 1/2-page majority opinion).  The issue is a familiar one; like last month’s uncomfortable ruling in Roberson v. Commonwealth, the appellant here identified the Commonwealth instead of the city as the appellee.  (The confusion is understandable when you consider that in Virginia Beach, the Commonwealth’s Attorney prosecutes offenses under the City Code.)  The majority rules that the appeal must be dismissed because the appellant hasn’t joined a necessary party (the City); Judge Haley thinks that ruling is somewhere between hogwash and a cop-out.  We get a detailed discussion of what, exactly, constitutes subject-matter jurisdiction, and for some of us procedure geeks, that promises to be a fun read.  I’ll read it so you won’t have to, but based on what I’m seeing thus far, I do not recommend that you skip it.

 

*   *   *

 

Here are some further thoughts on Ghameshlouy v. Commonwealth.

 

1.  If you are at all interested in appellate jurisdiction (and I recognize that you have to be a special kind of appellate geek to fit that description), then you absolutely must read this opinion.  It explores a couple of areas of that jurisdiction that I had never considered in depth before, and will educate you on this topic in a manner you can’t find elsewhere.

 

2.  As I mentioned above, the real fireworks are in Judge Haley’s long dissent.  The majority takes a simple view of jurisdiction – if the appellant doesn’t list the right appellee, then the appellate court is without jurisdiction and the appeal goes away.  Judge Haley points out that the ostensibly correct appellee in this case, the City of Virginia Beach, has actively participated in the appellate process, even joining in briefs on the merits.  He contends that this action has waived any objection the City might have as to whether it’s in the case.

 

2(A).  One fascinating side issue here is the question of whether a well-known rule of waiver translates from the trial-court context into the appellate world.  Most trial lawyers know that if a defendant enters a general appearance in the trial court, he waives objections relating to process and subjects himself to the jurisdiction of the court, even if he’s never been served.  So why doesn’t that rule apply in appellate courts?  Judge Haley poses this excellent question, and the majority deflects it rather than address it head-on (in my opinion).

 

3.  The appellant was convicted in the trial court of a couple of state-law felonies and one city misdemeanor.  One crucial question here is whether the notice of appeal was sufficient to identify the misdemeanor as part of the appeal.  I haven’t seen the notice, of course, so I can’t give you a conclusive view (and I might not be able to do that even if I were holding a copy of the notice right now).  The majority describes the notice as listing the case numbers of all three charges (including the misdemeanor), but identifying “only the Commonwealth of Virginia as the prosecuting authority” and as the appellee.  Judge Haley responds that it was perfectly obvious that all three charges were being appealed, and the notice specifically includes a description of the misdemeanor charge.  (This statement is hard to reconcile with the majority’s assertion, in a footnote, that “there was no appeal of appellant’s misdemeanor conviction . . ..”)

 

4.  It appears to me that Judge Haley’s discussion of the merits of the appeal (after he concludes that the court should consider those instead of dismissing the whole thing) was originally going to be the court’s opinion in the case.  I infer that the other two judges on the panel (Judges McClanahan and Petty) decided, at some point after Judge Haley prepared this merits discussion, that the appeal should be dismissed.  That converted Judge Haley’s primary opinion into a dissent, and necessitated the long treatise on appellate jurisdiction.

 

5.  This area of appellate law cries out for further explication, in my humble view.  Judge Haley raises some vital points, and it’s hard for me to be satisfied with the majority’s all-too-brief refutation of his arguments.  Can a party waive an objection to personal jurisdiction in an appellate court?  (I think the answer should be yes, since that isn’t a component of subject matter jurisdiction, the only non-waivable issue I know about.)  Should form control over substance when the actual prosecuting entity knows fully well about the appeal and all parties (including the proper appellee) have participated fully in the appellate court?  (I pray that in the enlightened Twenty-First Century, the answer to this question will be no, so the courts can decide cases on the merits instead of on things like syntax errors.)  In a sense, I’m glad that this dispute arose, since it has given me valuable insight into an area of appellate law that I previously took for granted.  So, how about en banc review, or a writ from the Supreme Court?