[Posted November 1, 2012] I’ve always thought that October is the best month of the year. The weather starts to turn cooler after a blistering summer; the trees turn from green to a bright, vivid palette of colors; they play the World Series; in most years, they drop the puck on the NHL season (you don’t want to hear me grumble about the current lockout); and to top it all off, we get my favorite festive holiday, Halloween, when I get to make kids happy by giving out candy.

But today is November 1, which means that we all have to figure out how to get rid of a bunch of leftover candy corn (I imagine you’re sick of it by now). And the Supreme Court concludes a shortened session week (just 14 cases argued this time around) by handing down opinions from cases argued in the September session. Let’s dig in and see which litigants got the great candy and which ones got, like poor Charlie Brown, a rock.

Appellate procedure
In combing quickly through today’s batch of opinions, Conley v. Commonwealth immediately caught my eye. Conley had been convicted as a three-time loser for DUI offenses, and sentenced to two year of active jail time. His direct appeals failed, but he later filed a habeas petition in which he asserted that his lawyer had failed to note an appeal of one of his earlier convictions.

That habeas conviction bore fruit, and the second of his convictions was placed back on the docket. It languished for years before someone fell awake and placed it on a docket. By that time, Conley’s right to a speedy trial mandated dismissal.

Okay, now we have an obvious problem with his conviction of the third-offense DUI. That is now, in effect, a second-offense conviction masquerading as a third (with the attendant higher penalties). Conley filed a petition for a writ of actual innocence in the Court of Appeals, asking the court to direct the trial court to find him guilty of the lesser offense of second-offense DUI. A divided CAV panel granted the petition, but the Commonwealth got en banc review. At that stage, an unfortunate thing happened: There were ten judges sitting, and they split, 5-5. In normal situations, that results in an affirmance of the judgment appealed from, without an opinion of the court.

But this proceeding invoked the CAV’s original jurisdiction; there was nothing “appealed” from a lower court. What to do? The en banc court determined to vacate the panel decision and dismiss the petition. The justices took the case in order to decide what happens to a panel decision when the en banc CAV later splits evenly.

This situation isn’t likely to occur very often, because most en banc sittings include all eleven judges; I infer that Judge McCullough sat this one out because of his stretch in the Attorney General’s Office while the case was in the pipeline. Today, the Supreme Court rules that an equal en banc division serves to reinstate the panel decision. The court thus reverses the Court of Appeals’ ruling that the petition would be dismissed.

Insurance law
When a plaintiff sues a defendant and serves her own insurer, as a provider of underinsured motorist coverage, the Code gives the insurer the right to defend in its own name or in the name of the defendant. What happens if the trial court enters summary judgment against the named defendant? Can the insurer continue to defend, or is it bound by that summary-judgment finding? We learn the answer today in Transportation Ins. Co. v. Womack.

The UIM carrier filed what I suspect is a fairly stock answer to the suit, asserting various defenses and calling upon the defendant’s liability carrier to carry them through in the litigation. The plaintiff’s insurer then sat back, as UIM carriers often do, and let the primary insurer handle virtually all aspects of the litigation.

But during the pendency of the suit, the individual defendant filed a bankruptcy petition, listing the liability from the tort suit as uncontested. The bankruptcy court granted a discharge, and the plaintiff in the tort suit moved for relief from the stay, so she could pursue the available insurance coverage. The bankruptcy court permitted that relief, so long as the plaintiff didn’t pursue the debtor personally.

Back in state court, the plaintiff moved for summary judgment. She pointed out that the defendant/debtor had effectively admitted liability in bankruptcy court, and argued that the debtor should not be permitted to approbate in federal court and then reprobate in state court. The trial court agreed and found the defendant liable. That ruling quickly woke the UIM carrier up; it argued that it wasn’t bound by the finding of default, and could still litigate the case fully in its own name, as the statutes provide.

The trial judge didn’t bite; it ruled that the insurer was on the hook for liability. Today, the Supreme Court reverses, citing a line of caselaw that allows a UIM carrier to proceed in its own right. Given that line of holdings, this conclusion isn’t a big surprise, but today’s opinion does contain one ruling that might surprise you: In reversing summary judgment for the insurer, the court also reverses the summary-judgment order against the individual defendant, who wasn’t even a party to this appeal. The court acknowledges that this situation creates a problem for the trial court, in that the defendant has been held to have admitted liability, and did not appeal that ruling. But the justices leave that problem to “the ingenuity of the trial courts” instead of mandating how the court should proceed.

The next insurance case, TravCo Insurance v. Ward, addresses homeowners’ insurance claims over defective Chinese drywall. Many homeowners have sustained major losses due to the use of drywall, manufactured in China, that deteriorates and emits noxious gases, rendering the homes uninhabitable. That’s led to significant litigation, especially here in Tidewater.

This case arrives by way of a certified question of law from the Fourth Circuit. Here’s the issue, as the Fourth posited it:

For purposes of interpreting an “all risk” homeowners insurance policy, is any damage resulting from this drywall unambiguously excluded from coverage under the policy because it is loss caused by:

(a) “mechanical breakdown, latent defect, inherent

vice, or any quality in property that causes it to damage itself”;

(b) “faulty, inadequate, or defective materials”;

(c) “rust or other corrosion”; or

(d) “pollutants,” where pollutant is defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste?[”]

In today’s response, the Supreme Court analyzes each of these exclusions and rules that each applies to the homeowner’s claims. This ruling portends the end of at least the insurance portion of the litigation, for this and many other homeowners. The court’s analysis of each of the factors is largely an exercise in grammatical construction, and I won’t retrace each step of the way; the ultimate conclusion is that each exclusion unambiguously forecloses coverage.

There is one interesting tidbit, buried in a footnote on page 17 of the slip opinion. The insurer argued that several of the homeowner’s arguments were waived pursuant to Rule 5:25, the contemporaneous-objection rule. The court rejects this waiver argument in the following terms: “This Court has never applied the rule in a certified question case, however, and we decline to do so now.” I would think that the court would similarly refuse to find an appellate waiver in a case involving the court’s original jurisdiction, although it notably did so in a judicial-discipline case a couple of years back.

Judicial discipline
Might as well stick with this topic – the court decides one case involving charges of misconduct against a sitting judge. In JIRC v. Waymack, the commission asserted that a JDR judge twice violated the Canons of Judicial Conduct. In one instance, she sent a text message to an employee of the GDC clerk, asking for contact information for the employee’s mother. The judge’s nephew was seeking a nomination for a seat in the legislature, and the judge was trying to ascertain if the mother needed a ride to the political party’s meeting.

The employee texted back that her mother was on vacation, and the judge responded, “Well guess she won’t be at the meeting then . . . Ok. Thanks!” The record didn’t indicate that the employee felt this to be a political message. The Supreme Court accordingly finds that this contact was fairly innocuous, and doesn’t violate the Canons.

In the other charge, the commission established (and the judge did not dispute) that she appeared in a case in JDR court as a member of the public. All of the judges in the court had recused themselves from a given domestic case, because this judge had a personal relationship with one of the parties. The Supreme Court appointed a judge designate form another jurisdiction to hear the matter; when that judge convened the hearing, Judge Waymack was already in the courtroom, to offer emotional support for her friend.

The other litigant’s attorney pointed out the judge’s presence in the room. The presiding judge, who did not recognize Judge Waymack, suggested (rather gently, as I see it) that she should leave the room. Judge Waymack agreed to do so, at which point the hearing began.

The commission charged that this conduct was improper because it could be seen as lending the authority of the judge’s office to influence the proceedings. In analyzing this issue, the court considers cases from other jurisdictions in which recused judges had attended judicial proceedings, and were disciplined for that. But the court finds today that in each of those cases, the censured judge’s conduct was far more egregious than what Judge Waymack did here. The ultimate ruling is not exactly a ringing endorsement of the judge’s decision to attend the hearing (“Although Judge Waymack’s decision to attend this hearing did not ‘exemplify the level of professionalism that judges in this Commonwealth should exhibit,’ we cannot say that Judge Waymack’s actions and conduct violated the Canons, . . .”), but the court rules that her conduct does not warrant disciplinary action.

There are a few procedural issues that don’t get resolved in this opinion. First, the commission had considered previous disciplinary charges against the judge, even though those charges did not result in discipline. The judge objected to this use, but the Supreme Court rules that it need not address this issue in light of its other findings. (I happen to agree that that’s the correct approach; although it would be nice to have some guidance on that issue, such a ruling would have been a purely advisory opinion.)

Second, in response to the complaint (which was filed in the Supreme Court under its original jurisdiction), the judge filed a demurrer and motion to dismiss. The commission responded that demurrers weren’t permitted in judicial-discipline proceedings; the Supreme Court is required by law to conduct an in-court hearing whenever JIRC files a complaint. Some time ago, the justices issued an order denying the demurrer and the motion. That would seem to indicate that the court regards demurrers as improper procedural devices, and reading between the lines of today’s opinion (“The filing of a formal complaint by the Commission triggered this Court’s duty to conduct a hearing in open court . . .”), one would probably find that the justices have so decided. But that holding is in an unpublished order, not in today’s opinion.

Property rights
Next week, citizens of the Commonwealth will vote on a proposed constitutional amendment that would refine the law of eminent domain in Virginia. Against that backdrop, the Supreme Court decides today two related cases involving properties along the Chesapeake Bay in Virginia Beach. The two decisions are 3232 Page Avenue Unit Owners Ass’n v. City of Virginia Beach and Lynnhaven Dunes Condo Ass’n v. City of Virginia Beach. These cases present our first dissents of the day (but only if you line them up the way I did this morning).

The City decided to condemn easements across privately owned beaches in order to facilitate a beach nourishment project, and for public recreational purposes. It acquired most of the land it needed by purchase, but a few landowners refused to sell, including these two. The City then condemned the easements it wanted. The petition also contended that it already owned what it was condemning; it sought to use the condemnation suit to confirm its claim of a preexisting right to use the beach.

The trial court agreed with the City and ruled that the public had acquired a right to use the beach due to decades of public use. It relied upon testimony of long-extended use by sunbathers, plus evidence of consistent police patrols, trash pickup, and so forth. The court ruled that this amounted to an implied dedication by the landowners of at least an easement over the beach. In 3232 Page, the trial court even ordered the City to pay the jury’s condemnation award of $152,000 unto itself. (There’s no word in the opinion as to whether the City actually cut that check.)

The Supreme Court awarded appeals to both landowners to review whether the City could condemn what it contended it already owned, and to decide whether an implied dedication had been proved. In addition, it agreed to consider the Lynnhaven owner’s assertion that the creation of a wider beach, using spoils for a dredging project, deprived the owner of its riparian rights to beach frontage.

The majority opinion in both cases is written by Justice Powell, and in both, she’s joined by Justices Lemons, Goodwyn, and McClanahan. The majority rules in favor of the City, holding that nothing in the eminent-domain statutes forbids a trial court from entertaining the question of title in a condemnation proceeding. It also concludes that the City proved an implied dedication, so it legitimately possessed the easement rights at issue in the litigation. Finally, in Lynnhaven, it rules that the landowner was indeed entitled to compensation for the loss of riparian rights, since the placement of sand on the beach was an artificial act that severed the owners’ ownership rights down to the waterline.

On the first issue, the majority points to statutes that govern claims to be made against the proceeds of a condemnation award. The landowners argued that those proceedings are undertaken after just compensation is determined, and involve only the property owners; once the condemnor pays the award into court, its role is ended. But the majority points out that the statute specifies that the subsequent proceedings are conducted among the parties, and that doesn’t specifically exclude the condemnor. At least one other condemnation statute describes claims by “a party whose property or interest therein is to be taken or damaged,” so the majority concludes that the legislature intended that condemnors can participate in the distribution of money that they have paid into the court.

There are two dissenting opinions in each case; one written by the chief justice and another written by Justice Mims. The chief justice (joined by Justice Millette) would rule that the trial court had no authority to entertain what was essentially a suit to quiet title under the guise of a condemnation action. She disagrees that the General Assembly intended that condemnors could use eminent-domain proceedings to confirm preexisting property rights. Justice Mims agrees with this finding, and would go on to hold that the City had not proved an implied dedication of the easement rights.

Workers’ Compensation
The court decides an important issue (one that I think is likely to recur) relating to the Comp bar in Gibbs v. Newport News Shipbuilding. It started out as an asbestos-exposure case brought by a former Navy seaman who had been exposed to asbestos back in the 1960s while preparing a new submarine for commissioning. His condition progressed to mesothelioma decades later, and he filed a personal-injury action against the shipyard. During the pendency of the case, he died and his widow was substituted as plaintiff, now bringing a wrongful-death claim.

The shipyard raised the Comp bar as a defense to the action, arguing that the seaman’s sole remedy was a Comp claim. The trial court agreed and dismissed the action. Today, a majority of the justices vote to reverse and send the case back for trial.

The ultimate issue in the case is whether the Navy was the shipyard’s statutory employer. The majority holds that it was not, “[b]ecause the Navy would not in any circumstances have been liable to pay compensation under the Act . . .” The Virginia Comp Act doesn’t bind the federal government, pursuant to the Supremacy Clause (legal authority, like water, doesn’t flow uphill), so under no circumstances, the majority finds, would the Navy be liable to the shipyard’s employees. Hence it’s not a statutory employer. The majority concludes that there’s a difference between a potential Comp claim that would be subject to a defense (in which even the bar would apply) and a claim that the Act simply doesn’t cover (no bar), and classifies this claim in the latter group.

Senior Justice Russell’s majority opinion occupies just over seven pages. Justice McClanahan, joined by Justice Mims, files a significantly longer dissent. Her analysis begins with the premise that the majority is focusing on the wrong issue, addressing whether the Navy could ever be liable instead of whether the injury arose out of and in the course of the employment. As I read the dissent, I felt that this was an issue in which reasonable minds could differ, and that today’s 5-2 ruling would simply fill in a gap in Virginia’s body of Comp law.

And then I read the following, which brought my reading to a sudden halt:

The majority’s sweeping contention that the Act has no application to the federal government, and the Navy in particular, is inconsistent with the position taken by the federal government, including the Navy, in prior cases in which it has sought protection under the Virginia Act’s exclusivity provision.

I understood that no one could bring the federal government within the protection of the Virginia Act against its will; no problem there. But here, Justice McClanahan cites five separate cases (including one from the Fourth and three from the Rocket Docket) in which the feds have affirmatively pleaded that they’re entitled to the benefits of the Virginia Comp bar. This is a completely different issue; maybe the Navy can be a statutory employer after all.

This cite sent me scurrying back to the majority opinion, in which Justice Russell addresses those cases in a footnote (often a bad sign). The footnote says that these cases are inapposite because the claims were brought under the Federal Tort Claims Act. That act gives Congress’s consent that the federal government can be sued just as though it were a private individual, so those claimants had a statutory right to sue, unlike the widow here. The majority points out that the Feres doctrine bars a direct suit against the government, although it still allows a suit against a private party.

Okay; I’m still a little shaken by Justice McClanahan’s startling revelation, and the majority has hardly convinced me, but at least I know now where they’re coming from on this key issue. Back to the dissent: This case ultimately comes down to the question of whether the federal government could successfully defend a suit, or whether such a suit would be barred in the first place. That issue gets resolved today in favor of the claimant, but keep in mind that Comp bar decisions always cut both ways. In some circumstances, such as here, an employee wants to avoid the provisions of the Act, because he has a deep-pocket defendant upon whom he hopes to pin liability. In other instances, the employee might well strive to bring himself within the Act’s coverage, because there’s no solvent tortfeasor and Comp benefits are the only thing standing between him and no recovery at all.

Today’s ruling in VanBuren v. Grubb resolves an issue of first impression in Virginia law: Can someone other than an employer be liable for the tort of wrongful discharge of an employee?

In Virginia, wrongful-discharge liability is hard to come by. The general rule here, of course, is that all employment is presumptively at-will, and that the employer and employee stand on equal footing – the employee can walk at any time, without notice, and the employer can kick the employee to the curb with a similar lack of ceremony. The Bowman doctrine provides a narrow exception to the at-will rule, in that an employer can’t discharge an employee in a way that violates public policy. (Other wrongful forms of termination might well arise from discharges based on, say, race or gender, but that’s not the issue here.)

The employee here was subjected to unwelcome sexual advances by her boss, a doctor who was the owner of a medical practice. He had formed an LLC to run the practice, and that LLC was technically the employer. The employee rejected his advances for some time, until the doctor called her into his office and confronted her about it. When she still resisted, her fired her on the spot.

The court has little difficulty concluding that this factual scenario (taken entirely from the employee’s complaint, since this suit was dismissed on motion without a trial) states a wrongful-discharge claim for which relief can be granted against the LLC. The issue for today is whether the same can be said for the doctor, who owned the company and directly supervised the employee.

Resolving this issue, a bare majority of the court (Justice Millette writes for Justices Lemons, Mims, and Powell) rules in favor of the employee, holding that a fellow employee who’s in the position of a supervisor or manager can be liable for wrongful discharge, in addition to the actual employer. That matters in this instance because in response to the suit, the doctor abandoned his LLC and joined another healthcare provider, presumably leaving only an empty shell of a company to resist the lawsuit.

One key to the majority’s conclusion is stated as follows: “In a wrongful discharge case, the tortious act is not the discharge itself; rather, the discharge becomes tortious by virtue of the wrongful reasons behind it.” Today’s dissent (the chief justice, joined by Justices Goodwyn and McClanahan) latches onto that premise in reaching a different conclusion. The dissent holds that a wrongful-discharge claim is different from other torts, because only the actual employer has a duty toward the employee; co-workers and even owners don’t have a duty because only an employer can discharge an employee. The dissent carefully analyzes the difference between a contract claim and a tort, and finds that that duty isn’t spread out among several potential defendants.

I’ll add a couple of additional notes that occurred to me in reading these opinions. First, both sides seem to agree that the public policy of Virginia might well be better served by holding defendants like the doctor liable for their acts. The majority points to the doctor’s subsequent departure form the LLC and notes that a different result would give an easy roadmap to future tortfeasors on how to avoid liability. The dissent responds that such deterrence “is a laudable goal but cannot change the fact that an individual employee is incapable of committing the tort of wrongful discharge. Moreover, such policy determinations are for the General Assembly, not this Court.”

Second, as a minor aside, I observed that in stating her Bowman claim, this employee asserted that the doctor was asking her to perform a criminal act. What was the crime? She cited two: adultery and lewd and lascivious cohabitation. I have great doubts about the latter, given the court’s previous rulings that sharply constrain prosecutions for such conduct.

As for adultery, this case brought to mind one of the first appellate decisions that I analyzed when I launched this website back in 2005: Martin v. Ziherl. In that appeal, the justices applied the relatively new holding in Lawrence v. Texas (2003) to hold that Virginia’s prohibition against fornication was unconstitutional. Government, those cases held, has no place in the bedrooms of consenting adults. I seriously doubt that the parties briefed or argued this issue, but this opinion may indicate that the holding in Martin v. Ziherl does not extend to adultery cases.

Criminal law
Mandatory minimum sentences get the once-over in Brown v. Commonwealth. Brown was a teenager who was convicted of three counts of robbery and three companion firearms charges. The firearms charges call for mandatory minimums of three years for the first offense and five years for the subsequent offenses. But when he was considering the sentence to be imposed, the trial judge clearly felt uncomfortable with that much jail time for a kid who appeared to be the low man on a two-man totem pole. (His older co-perpetrator got a relatively light sentence.) Brown asked the judge to run the firearms sentences concurrently with each other.

But the trial judge felt constrained by a 2006 opinion from the Court of Appeals, holding that mandatory-minimum sentences must be run consecutively. He reluctantly imposed the sentences consecutively with each other, “because I feel like I have to do that.”

Indeed he did – until today. After the CAV refused a writ, Brown go the justices attention, and today he gets a reversal. The justices note that mandatory-minimum firearms sentences must be run consecutively with the substantive offenses (here, for robbery), but that statute says nothing about running them concurrently with each other. Since the statute doesn’t forbid it, the trial judge was wrong in constraining his own discretion; the case is remanded for resentencing. That remand will predictably get the young offender out of prison eight years sooner than he would have otherwise.

This ruling isn’t unanimous; Justices McClanahan and Mims reason that the obligation of a defendant to serve “the entire term of confinement” hasn’t been met when one mandatory-minimum sentence is melded into another, as happens here. While I hesitate to predict any legislative action, it is eminently foreseeable to me that someone at Ninth and Main is right now preparing a proposed bill for submission in the 2013 General Assembly session, to mandate that all minimum sentences must be run consecutively, and served fully.

The number three also figures prominently in Baker v. Commonwealth. Baker was a convicted felon who invited himself into an acquaintance’s home (entering through a window) and managed somehow to acquire the homeowner’s firearm during his surreptitious visit. A few minutes later, his chauffeur (that would be the get-away driver) saw him proudly display his new acquisition as he entered the vehicle.

Since this is a prosecution for possession of a firearm by a convicted felon, we can agree that that display is offense #1. Weeks later, Baker showed the gun to a prospective purchaser and asked if he’d like to buy it. We’ll call that offense #2. The prospect expressed interest and said, “I’ll get back to you.” Instead, he got back to the police, who set up a controlled purchase of the gun for the next day. Baker duly showed up for the transaction, produced the gun, and was arrested. That’s offense #3.

Or was it? The issue in this appeal is whether continuous possession of a given firearm by a felon is a series of crimes, or one continuing crime. This is what criminal-law jocks call a unit-of-possession crime; where continuous possession is somehow divided into discrete segments. The trial court convicted Baker of all three offenses, and the Court of Appeals affirmed.

Today, six out of seven justices agree and affirm, holding that the statute is ambiguous as to what a unit of possession is, but concluding after studying “the gravamen of the offense” to determine what the legislature wanted to proscribe that this really was three offenses. The majority holds that “each separate incident of possession of a firearm by a convicted felon proven by the Commonwealth establishes a new offense because each incident is sufficient to create a new danger to members of the community exposed to the armed felon.” Since Baker possessed the gun on three demonstrable occasions, he’s guilty times three.

Now, hold on just a moment, Justice Powell interjects. What about the rule of lenity? Criminal statutes that are deemed to be ambiguous are supposed to be construed against the prosecution and in favor of the defendant; in other words, they’re narrowly construed when evaluating what they cover. The majority comes right out and says that the statute is ambiguous, but instead of applying the rule of lenity, which governs criminal cases, they dive into the laws relating to, say, contract interpretation. She also notes the criminal-law principle that “possession is a continuing offense,” and argues that even under the majority’s reasoning, this doctrine mandates reversal. There was never a showing that Baker lost control or possession of the gun at any time between his illicit acquisition and the sham sale, so that entire stretch, under the law, is a single possession.

A pro se appellant did something in Dorr v. Clarke that many experienced lawyers find difficult: He got a writ. Dorr found himself in hot water in two jurisdictions – Virginia and West Virginia – and was sentenced in West Virginia first. The judge over there indicated in his sentencing order that Dorr’s sentence would run “current with and sentence imposed in the Commonwealth of Virginia after February 26, 2009.”

In August 2009, Dorr was shipped over to Virginia to answer several criminal charges. He was found guilty and sentenced for his Virginia sins. He spent a bit over eight months in a Frederick County jail while the court was having its way with him.

Upon his return to West Virginia, he got credit against his WV sentences for the time he was in lockup here in the Old Dominion. When he finished his time there, he was sent back to Virginia to start his Virginia sentence. But at this point, an idea occurred to him, and he asked the Department of Corrections to give him credit for the same eight months, pursuant to a Virginia statute that gives credit against prison time while you’re in jail awaiting trial and sentencing.

Nice try, the Director answered, but no dice. He contended that Dorr’s eight-month credit applied to his West Virginia sentence, and indeed, the folks over there had honored that credit. Dorr responded by applying for a writ of mandamus to direct the Director to recalculate his sentence.

The local judge, after hearing from the VDOC, recharacterized the pleading as a habeas-corpus petition. He then denied it, for reasons that you’ll understand. Today, the Supreme Court agrees that Dorr can only get the credit once – technically, Dorr was still a West Virginia prisoner during the eight months – but it rules that a trial judge can’t recharacterize a prisoner’s petition like that, without warning him that it’s about to do so and giving him a chance to amend or withdraw it. That matters because by statute, a prisoner can’t file repeated habeas petitions. There’s no similar limitation on mandamus.

In the end, the court determines that the trial court’s error is harmless, so it affirms the ruling. As for Dorr, he’s out now anyway; his Virginia sentence expired while this appeal was pending. Perhaps his ill luck with the law of the Virginias will inspire him to explore other parts of the nation now.

In a one-page per curiam opinion, the justices today affirm a February 2012 ruling of the Court of Appeals in Dunham v. Commonwealth, a case involving revocation of a suspended sentence. The Supreme Court adopts the rationale of the CAV in its short affirmance. Here’s a link to my coverage of this opinion back in February.

Land use
Today’s opinion in Fein v. Payandeh contains two lessons – one for dirt lawyers and one for those fashioning pleadings in just about all types of litigation. Our tale begins in 1997, when a restrictive covenant was recorded affecting a large subdivision in Fauquier County, between Warrenton and Front Royal. The subdivision evidently comprised 100+ acre farms, and the covenant prohibited subdividing those farms into smaller parcels. (No farmettes allowed in this part of the county.)

But four enumerated lots were culled out from that covenant, and the owners of those parcels were expressly permitted to divide them into smaller ones, provided they complied with the County Subdivision Ordinance that was in effect in 1997. The owner of those four parcels filed such an application in 2006, seeking permission to create eight smaller lots out of the original four. The County Planning Commission recommended disapproval, but the owner persuaded the Board of Supervisors to make a slight amendment in the County Zoning Ordinance, after which the proposal was approved.

Because I love you, my dear readers, I’ll point out something in the foregoing recitation that the dirt lawyers will have recognized, but that might have skimmed right over the heads of everyone else. It’s important to our story. The covenant required compliance with the 1997 Subdivision Ordinance. The owner got his project approved by securing an amendment to the Zoning Ordinance.

A neighbor didn’t like the idea of all that increased density in the neighborhood, so it filed suit challenging the owner’s plans, contending that those plans violated the covenant. After an amendment to the complaint, the parties stipulated to the relevant facts and filed reciprocal motions for summary judgment.

The trial court rejected the neighbor’s contention that the 1997 version of the Subdivision Ordinance incorporated the 1997 Zoning Ordinance by reference. The neighbor had based this contention on a SubOrd provision that required compliance with “this Ordinance and other County Ordinances.” The court also refused to consider an alternate argument advanced by the neighbor, finding that while the issue was fully briefed in its motion for summary judgment, the arguments thus raised had not been framed within the amended complaint. Basically, the court was saying that you can’t get relief based on arguments that you haven’t pleaded.

The Supreme Court today unanimously affirms the trial court on the first ruling, agreeing that the sentence fragment I quoted above isn’t sufficient to drag the whole Zoning Ordinance into the Subdivision Ordinance. But a divided court reverses on the secondary issue, holding that the amended complaint contained just enough allegations to put the landowner on notice of the issues that were being raised. The court sends the case back for the trial judge to evaluate those contentions on their merits. Note that that isn’t a complete victory for the neighbor; but at least his case is still alive.

Two justices dissent from this latter ruling. Justice McClanahan, joined by Justice Powell, thinks that the issues raised in the summary-judgment motion are “fundamentally different from” the issues framed in the amended complaint. She notes long-standing precedent that pleadings “are as essential as proof,” and if the neighbor didn’t plead a given issue, he can’t supply that by filing a MSJ.

But there’s more: The dissent also contends that the issue raised on appeal is different from the one presented at the summary-judgment stage. In the trial court, the neighbor had argued that the county subdivision agent didn’t have the authority to approve the owner’s request; in the Supreme Court, the argument was just that the subdivision violated the Subdivision Ordinance. That gets us back to the formidable goblin of Rule 5:25.

In my view, that’s a very fine line to draw, but I understand the dissent’s point. If you’re going to object to a trial court’s ruling, you have to be precise in identifying what that ruling is. It looks to me as though the trial court decided the issue of lawful authority, as the neighbor had advanced the argument. The issue of whether the subdivision violated the ordinance is plausibly distinct from that argument.

This decision reaffirms the court’s commitment to the premise of notice pleading. The five-member majority doesn’t insist upon fine technical detail in evaluating the amended complaint; it holds that the amended complaint was enough to put the owner on notice of the “true nature” of the neighbor’s claim. This footnote illustrates the court’s view of how narrowly it expects pleadings to be drawn:

The amended complaint specifically described one basis for Fein’s claim – that the subdivision did not comply with the zoning ordinance in effect in 1997. This specificity, however, did not preclude Fein from asserting other bases for Fein’s separate claim in Paragraph 11 that the subdivision did not comply with the subdivision ordinance in effect in 1997. Payandeh was certainly entitled to file discovery or a motion for a bill of particulars pursuant to Rule 3:7 for an order requiring Fein to “amplify” the grounds asserted in Paragraph 11 of the amended complaint.

Keep that in mind when you’re crafting your next pleading, in any context. The court is telling defendants that if they need more detail, that’s what discovery and motions for bills of particulars are for.

Sexually violent predators
The SVP statutes require periodic (annual) reviews to determine whether a person still requires secure inpatient treatment. One provision of the act specifies that “whenever practicable,” a court conducting the annual review should use a secure two-way audio-video system, rather than bringing the patient to the courthouse. In Shellman v. Commonwealth, the justices today evaluate whether a setup like that is consistent with the patient’s constitutional and statutory rights.

SVP proceedings aren’t criminal in nature, but they’re close, so many of the procedural safeguards that apply to criminal cases govern SVP hearings, too. Those include the right to due process and the right to the assistance of counsel at “all significant stages” of the proceedings. The court acknowledges in today’s opinion that the annual review is one of those significant stages, setting the table for today’s analysis.

Let’s stop for a moment and consider the practicalities of representing a client when you’re in the courtroom and your client is back in a secure treatment facility. Normally, when a lawyer and his client want to confer, they adopt the time-honored method of leaning over and whispering to one another. You can’t readily do that over an audio feed, although evidently there are provisions that can be made for confidential consultations over a wire. (I’m not sure how such a system works, but today’s opinion recites that it’s possible, so I won’t quibble.) Nevertheless, the patient argues today that long-distance lawyering violates his right to counsel.

The justices first determine that this is a challenge to the court’s procedure, and doesn’t assert a structural error in the proceedings. That matters, a lot, because structural-error analysis implicates the basic fairness of the proceeding, and the appellant doesn’t have to show actual prejudice. The justices conclude that this isn’t an assertion of structural error. The only support the opinion offers for this conclusion is the fact that videoconferencing is provided for in the statutes.

I haven’t done any research into what constitutes structural error, and I’m certainly no expert in this field, but given that this is the crucial issue in this case, I would have expected something beyond this: “Based on the record in this case, [emphasis added] we hold that Shellman’s not being physically present at the hearing did not constitute a structural error in the proceedings.” By beginning that sentence the way the court does, today’s opinion seems to indicate that whether a given issue constitutes structural error is a fact-based determination.

From there, the rest of today’s opinion is almost a foregone conclusion. The patient and his lawyer didn’t assert any actual inability to consult with one another; there were minor glitches in the electronics on occasion, but whenever that happened, the judge stopped the proceedings until they were fixed. That means that there was no actual prejudice to support a plain-vanilla challenge to the setup. The Supreme Court thus affirms the use of videoconferencing facilities in the conduct of these annual evaluations.

A quick note about what this case does not stand for: The statute allowing “e-participation” applies to the annual reviews; not to the original determination of whether a given prisoner is a sexually violent predator. And if a prosecutor asks to conduct a criminal trial with the defendant in lockup, and cites this case, he’s likely to get a cold reception, thanks to something that isn’t in play in this appeal: the Confrontation Clause.

Don’t touch that dial! Just because you don’t handle probate cases doesn’t mean that you should skip Kiddell v. Labowitz, since it offers guidance on how the Supreme Court views the application of rebuttable presumptions. This decision will have application in many other fields of law, in any case where a rebuttable presumption arises. (For my readers who are too young to remember when radios and television sets had dials instead of remote-control wands, just bear with me, okay?)

This is the court’s second opinion this year on testamentary capacity. The legal backdrop is that when a proponent produces a will that’s regular on its face, the testator is presumed to have had capacity to execute it. That presumption is rebuttable; an opponent can adduce evidence sufficient to overcome the presumption, at which point the burden shifts to the proponent to establish such capacity by a preponderance of the evidence.

Rule 7.08 of the Official Baseball Rules states, “Any runner is out when— . . . (e) He or the next base is tagged before he touches the next base, after he has been forced to advance by reason of the batter becoming a runner.” This rule was probably crafted by a lawyer, because it’s far more complicated than it needs to be. Generations of baseball players, starting at about the age of five, have memorized and applied a better, more understandable formulation of this rule: “A tie goes to the runner.”

This testamentary presumption is the law’s way of breaking ties when it comes to evidence about testamentary capacity. The general rule in American jurisprudence is that a party (usually referred to as the plaintiff or the prosecution) has a burden to demonstrate that it’s entitled to any relief that it claims. This particular presumption exists in recognition of the fact that in a will contest, the best evidence of the testator’s capacity has, by the time of trial, gone to the Elysian Fields, and is no longer available to demonstrate for the jury his ability to understand what’s going on.

This particular testator made two wills in rapid succession after she was diagnosed with a terminal illness. One, made in April 2010 from “an online template,” gave most of her estate to her cousin, plus the cousin’s husband and daughter. She also executed a power of attorney in favor of the cousin. A month later, the cousin contacted the executor, an attorney up in the State of Northern Virginia, and asked him t see if the testator would let him (the attorney) act under the power, instead of the cousin, because she wanted his guidance.

The attorney conveyed this seemingly selfless request to the testator, who reacted in an unusual way – she got angry and demanded to craft a new will. An estate lawyer was called in, and took down the new instructions: the cousin was to get the testator’s dog, plus some cash for its care, while everything else would go to three charities. The estate lawyer prepared the will, and he and one of his paralegals witnessed her execution of it on June 15. Three days later, the testator was gone.

This, of course, led to litigation over the probate of the June will. The plaintiffs (the cousin and her daughter) adduced medical evidence that on June 15, the testator wouldn’t have known what she was signing. An attending physician came right out and stated that the testator was “not competent” on that date, and a neurologist opined after reviewing medical records that she wouldn’t have understood what she had and who she wanted to give it to.

In response, the executor (the nominal defendant) called the estate lawyer who, along with his paralegal, testified that the testator was alert and oriented when she signed her new will. They assured the jury that if they had entertained any doubt about her capacity, they wouldn’t have gone through with the signing.

Tough call, right? Maybe this is a case for the tie-goes-to-the-runner rule. The trial judge denied each side’s duly presented motion to strike and submitted the case to the jury. The legal fireworks arose in the jury-instruction phase, when the plaintiffs objected to an instruction about the presumption. They contended that when the judge had denied the executor’s motion to strike, that was a ruling that the presumption had been overcome, so each party had a level playing field from that point on.

The judge responded that in denying the plaintiffs’ motion to strike, he only meant to say that the evidence was sufficient to present a jury issue on whether the testator had the required capacity. It would be up to the jury to decide whether the presumption had been overcome. After deliberating, the jury evidently felt that it hadn’t; the verdict came in for the executor.

This is today’s longest opus; Justice Powell’s majority opinion plus a dissent and a concurrence come in at an aggregate 41 pages. The two factions explain why they differ on whether adducing evidence to overcome the presumption makes the presumption vanish, or merely presents a jury issue. The majority today rules that the presumption doesn’t vanish, and it’s still available for the jury to consider; so the case was properly submitted to the jury on correct instructions.

Given The Supreme Court’s firm commitment to jury resolution of factual disputes, you might wonder, as I did before I read the dissent, what all the fuss was about. It’s two things, really. First, there’s a long-standing premise that a presumption cannot stand in the face of established fact. Presumptions, after all, are supposed to take the place of proof when something can’t be proved, so once evidence about the truth arises, the presumption becomes superfluous.

But for me, the real ah-ha moment in reading this set of opinions comes almost at the very end – on page 36, and at the end of a footnote, at that. Here’s how the chief justice (writing for Justices Lemons and Mims) puts what I see as the primary legal issue in this appeal:

The majority’s conclusion that the circuit court’s denial of [the executor’s] motion to strike “amounted only to a ruling that [the plaintiffs’] evidence could potentially rebut the presumption” begs the question whether a trial court or a jury decides if the opponent of a will has rebutted the presumption of testamentary capacity. In my view, a trial court makes that determination.

With my apologies to the chief and Justice Powell, when I got to this framing of the issue, I felt like the Guardian of the Emerald City Gate, when he said, “Well, bust my buttons! Why didn’t you say that in the first place? That’s a horse of a different color!” Well, maybe not the horse part; but at least now I see the real nut of the dispute: Who decides whether the presumption has been rebutted? The dissent thinks that that’s a legal issue, to be resolved by the judge, while the majority rules that this is a factual question, and therefore up to the jury.

The majority and Justice McClanahan’s concurrence both mention one procedural difficulty here: If a judge denies a motion to strike by ruling that the presumption has been overcome, isn’t that tantamount to partial summary judgment? But by statute, a court can only grant summary judgment after sustaining (not overruling) such a motion.

I recall well this year’s earlier testamentary-capacity decision – Weedon v. Weedon, back in January. In that case, the majority did something that stunned me, ruling that the trial court should have ruled that the will-proponents’ evidence was more persuasive than the opponents’. I continue to believe that Weedon was wrongly decided – judging credibility of witnesses isn’t in any appellate jurist’s job description – but this case presents a much different issue, one of pure law.