(Posted November 3, 2006)

The Supreme Court of Virginia hands down 24 published opinions today. Eleven of those are criminal appeals; this is a very high percentage in comparison with the court’s past opinion days.


The court today reconsiders and reaffirms its prior rulings that “a mother can recover, as an element of her own cause of action, damages for her mental suffering resulting from the birth of an impaired child.” Today’s ruling is Castle v. Lester, a medical malpractice case brought against an obstetrician. Lester gave birth to a severely impaired son, and sued Dr. Castle in her own right and as next friend for her son.

The parties settled the claim of the son, and the doctor admitted liability therein. The subsequent trial of the mother’s claim was held solely on the issue of damages. The overarching issue in this case is the doctor’s request that the court reconsider its earlier finding, in Bulala v. Boyd, 239 Va. 218 (1990), that a mother has a personal claim when she gives birth under these circumstances.

The court specifically affirms the trial court’s decision to permit testimony about the degree of daily care the child will need over his sharply limited life expectancy, despite the doctor’s contention that this would permit the mother a double recovery. It notes that the mother’s claim arises from her giving birth to an impaired child, and it finds that the proximate effects – here, including depression – on her are compensable. The court declines to apply a bright-line cutoff of such damages (the doctor objected to testimony about damages that occurred after the moment of birth) in favor of a traditional view of causation.

Plaintiffs’ attorneys do not enjoy a sterling reputation among insurance adjusters. No news there. But expressing statements in this regard just got a bit riskier, as a result of the court’s reversal of the judgment in Tronfeld v. Nationwide Mutual. Tronfeld is an attorney who represents personal injury plaintiffs. When one injured person met privately with a Nationwide adjuster to discuss settlement of a claim, the topic turned to the claimant’s possible retention of an attorney. He mentioned that he was thinking of hiring Tronfeld.

In response to this, the adjuster metaphorically turned up his nose, telling the claimant that Tronfeld “just takes people’s money,” and that claimants would get more for their claims if they dealt directly with the adjuster. (Each plaintiff’s personal injury lawyer reading the preceding sentence is now rolling his eyes.) Tronfeld found out about the statement, and sued for defamation.

The trial court sustained a demurrer filed by Nationwide and the adjuster, concluding that the statements were expressions of opinion. Today, the Supreme Court reverses, determining that both of these statements are capable of being proved false. Unquestionably, the statements prejudice Tronfeld in his practice, so the opinion angle is the only place the defendants could hang their collective hat. But noting that whether a statement is opinion or fact is one of law, the court determines de novo that these expressions were statements of fact. The case is thus reinstated and remanded, where Tronfeld will get his day in court against the company.

Repairmen and building materials manufacturers get a favorable ruling today in Baker v. Poolservice Co., a wrongful death case involving the drowning of a seven-year-old child in a jacuzzi. The child became entrapped by suction from the spa’s drain.

The estate sued two defendants – the manufacturer of the drain cover, and a pool repair company that had performed some maintenance on the spa shortly before the tragedy. The repair company demurred, noting that it had done exactly what it had been hired to do, and admittedly did so without negligence. The manufacturer filed a plea in bar, citing the statute of repose (Code §8.01-250), since the cover was installed more than five years before the child’s entrapment. The trial court sustained both of these defensive pleadings, and dismissed the case.

Today, the Supreme Court affirms. With regard to the repair company, the court declines to find a duty to warn of a potentially dangerous condition that the defendant did not produce. “Returning [a product] to its normal, working condition is not a basis of liability for a repairman absent a specific undertaking to do otherwise . . ..” The plaintiff had asked the court to impose such a duty where the repairman should have noticed a dangerous condition, but the court refuses to do so.

As for the manufacturer, the court applies the “ordinary building materials” doctrine to rule that the statute of repose bars the claim. Citing three unanimous cases decided over the past twenty years, the court declines to reverse its prior holdings. (In this case, as in Castle v. Lester, above, the court takes pains to explain the reason why it regards the doctrine of stare decisis as so vital. It is emphatically possible to persuade this court to change its mind – see last year’s ruling in Oraee v. Breeding for a notable example – but one should not go into the courthouse expecting it to happen.)

There are lots of evidentiary and procedural goodies in Riverside Hospital v. Johnson, a case involving a slip and fall by a patient at a Newport News Hospital. After a jury verdict for the patient’s estate, the hospital got a writ to challenge several evidentiary rulings and one issue involving jury instructions. Here are the highlights, stated as lessons for practitioners:

A party objects to his opponent’s reference to a document in opening statement; the court overrules the objection. A witness later testifies about the document during the trial, but no objection is made then. Any objection to the admissibility of the document is waived. That’s because, as has been noted often, openings aren’t evidence. (Here, the appellant needed to address the problem in opening, by requesting a cautionary instruction or a mistrial.)

Plaintiff offers statistical evidence relating to other falls at the hospital. The hospital objects, citing Supreme Court precedent that such evidence is generally not admissible. Plaintiff responds that the evidence will relate to its punitive damage claim, showing that the hospital was on notice of the likelihood of injuries from falls. The trial judge lets it in. Midway through the trial, plaintiff nonsuits the punitives claim; the hospital makes several motions at that time, but does not ask the court to rule again on the statistical evidence. On appeal, the hospital argues that the evidence should have been excluded once the punitives claim went away. This argument, too, is barred by Rule 5:25. (Justices Agee and Keenan dissent on this point.)

Incident reports of patient injuries due to falls are not automatically privileged, despite the language of Code §8.01-581.17. That section protects certain quality control data from disclosure (for the same reason there is a subsequent remedial measures rule; to encourage correction of the problem). The lesson here is that a hospital can’t exempt a document from disclosure simply by calling it a quality control report. The court here notes that an expansive interpretation of this protection would enable hospitals to protect almost everything from disclosure.

The general rule is that where a jury gets two instructions on a given topic, one of which is correct and the other of which is incorrect, the court will presume that the incorrect instruction affected the jury, and will usually reverse for a new trial. But that doctrine doesn’t apply where “it is clear that the jury was not misled.” Here, the jury found a nurse liable; another instruction imposed respondeat superior liability on the hospital if the nurse was liable. Under these circumstances, any claimed error in a separate instruction, covering the hospital alone, was irrelevant.

This case will not make the New York Times bestseller list; few nonlawyers will have the patience to wade through all this procedural and evidentiary discussion. But for trial and appellate practitioners, this is absolutely essential reading.

Real property

Does a general warranty deed create liability even for title defects that are open and obvious upon a view of the premises conveyed? The Supreme Court answers this question in the negative in Johnson v. DeBusk Farm, a prescriptive easement case arising in Washington County.

Johnson bought a tract from a couple named Willis. Before she closed, she toured the property and noticed a lane running across it, serving as access to a neighboring farm. The lane included a ford across a river, and a cutaway bank on one side, to permit vehicular access. When she later tried to shut down the use of the lane by the adjoining farm, the farm filed a declaratory judgment suit to declare the existence of a prescriptive easement. Johnson filed a third party claim against the Willises, contending that they breached the general warranty of title in the deed.

The trial testimony was predictably divergent. The owners of the farm testified unequivocally that they had used the lane for a great many years, and asserted that the farm would be essentially landlocked without it. They testified that the use was open and obvious to anyone nearby. Ms. Johnson, in contrast, testified, evidently reluctantly, that she “saw a place on the south side of the river where people had passed or trucks or something.”

The trial judge decided on his own initiative that he needed to view the property. He did so, then came back to the courtroom and ruled in favor of the farm. He also found that the openness of the use justified a ruling in favor of the Willises on the third party claim, since Johnson must have known about it after touring the property. Johnson appealed.

Today, the Supreme Court affirms, reviewing the steps necessary for the creation of an easement by prescription. In a short (just over seven pages) opinion, the court sets forth those conditions and finds that the farm satisfied them. It also affirms the finding in favor of the Willises, on the rationale of the trial court. But for my readers, I want to mention a few other points that I believe played a role in the decisions, in the trial court and on appeal.

First, while the opinion doesn’t emphasize this, I think that both courts kept in mind that the farm would be landlocked if not for this lane. That isn’t by any means a dispositive consideration, but no jurist wants to rule in such a way that she creates a landlocked parcel, thereby depriving the owner of virtually all beneficial uses of the property unless he can pay his neighbor’s price, set at the neighbor’s whim.

Second, Johnson’s lukewarm testimony, on an issue that she should readily have acknowledged, must have played some part in the trial court’s finding. When I conduct training for oral argument by appellate lawyers, I always encourage them to concede the points that reason dictates they must admit; doing so avoids the loss of priceless credibility. Johnson fell victim, in my opinion, to her desire not to give away a point that might have hurt her at trial; she might have done better if she had come right out and said that she saw what looked like a well-worn track. I am admittedly reading between the lines here, but I’ll be very much surprised if this very thought didn’t cross the trial court’s mind.

Finally, the standard of review plays a major role in today’s decision, as with so many appeals. The Supreme Court reviews the trial judge’s findings under a very deferential standard. While the opinion does not specifically say so, I believe that the court’s decision to conduct a view of the premises enhanced the Supreme Court’s deference to his ruling. It’s hard to second-guess someone who has walked the property and viewed it with his own eyes.


When a spouse dies, the survivor has a right to claim an elective share in the decedent’s estate. The Code sets out certain requirements for the claiming of such a share; the claim must be made in writing, signed and acknowledged by the claimant, and filed in the Clerk’s Office of the Circuit Court, all within six months after the personal representative qualifies.

One such claimant is now ruing a decision to cut a few corners in this process. In Haley v. Haley, a widow’s claim was signed by her attorney, not by the claimant; the signature was not notarized. Her stepson, who would otherwise take the benefit of the estate, objected, in a demurrer to the widow’s petition for contribution. The trial court sustained the demurrer, but gave the widow leave to amend.

She did, after filing a properly signed and notarized claim. The stepson again demurred, this time noting that the new claim was filed over a year after the widow qualified. The trial court again sustained the demurrer, this time entering final judgment in favor of the stepson. The widow obtained a writ.

On appeal, she contended that the stepson had actual notice of her claim, despite the technical infirmity; she also argued that the attorney’s signature on the first claim “substantially met” the Code’s requirements. After all, attorneys sign things like pleadings on behalf of their clients all the time, right?

Well, attorneys may do this all the time, but they can’t do so in this context, the court rules today. The court rules in the narrowest possible fashion, ruling that the failure to acknowledge the first claim is fatal; it specifically declines to decide whether an attorney can file such a claim on behalf of her client. The court also affirms the ruling that the corrected claim was filed too late (13 months after qualification). Thus, the first claim was timely, but improper in form; the second one was proper in form, but untimely.

Civil procedure

Harrell v. Harrell
is a domestic relations case, but the lessons here apply to literally every type of civil case in which a plaintiff’s lawyer sits down to craft a request for relief. This case is a civil procedure fan’s dream. (Yes, there are civil procedure fans; and no, we don’t need life advice from the rest of you.)

Mrs. Harrell, apparently deciding that her term of wedded bliss was at an end, filed for a no-fault divorce 11½ months after separating from her husband. For non-domestic relations lawyers, that’s a no-no; you have to wait a year before filing, or the court can’t grant you any relief. In the bill of complaint, she asked for temporary and permanent spousal support; she also asked in a companion motion for a temporary award of such support.

Evidently realizing her mistake, she filed an amended bill two weeks later, one year and two days after the date of separation, again seeking the same relief. That’s the end of that problem, right? Well, no. Rule 1:8 provides that amendments to pleadings can only be made with leave of court (see Mechtensimer v. Wilson, 246 Va. 121, for a horror story on this rule), and Mrs. Harrell neglected to get such leave. In fairness to her, she may have been thinking of the federal pleading rule, Fed.R.Civ.P. 15(a), which allows one amendment as a matter of right any time before the defendant answers. But that doesn’t help in state court.

Mr. Harrell then answered, and sought reciprocal relief in a cross-bill. Mrs. Harrell inexplicably never answered this pleading, but given her other procedural missteps, it should probably come as no surprise.

Four months later, the trial court issued a letter opinion, in which it dismissed the wife’s bill, since the year had not passed before it was filed. It also correctly ruled that the amended pleading was of no effect. It also granted the husband a divorce on his uncontested cross-bill, but stated that it would reserve the issue of spousal support for the wife. It is this last ruling that forms the heart of today’s decision.

Mrs. Harrell filed something she termed an omnibus motion for relief. She asked the court to retroactively and creatively construe her amended pleading, and that the court regard her previous filings as having placed her spousal support request before the court. The trial court did not specifically grant or deny this, but entered a final divorce decree in accordance with its opinion letter.

The husband got a writ (note that; the husband appealed, not the wife) to review the trial court’s reservation of spousal support, and today, on that limited issue, the Supreme Court reverses. The court sticks with its long-held view that any relief to be granted must be specifically set out in the pleadings; you can’t get what you don’t request. It then meticulously walks through each of Mrs. Harrell’s pleadings and finds that none of them properly state a claim for spousal support:

The original bill fails because it was filed too soon. This filing gave the trial court subject matter jurisdiction, but failed to state a claim for which relief could be granted. (Note well that there is a difference between these two factors.)

The temporary support motion, filed along with the original bill, does not make a valid request for permanent support; those provisions arise in separate Code sections and are analyzed differently.

The amended bill was a legal nullity, since it was filed without leave of court.

The omnibus motion might have sufficed, but the rub here is that the trial court never specifically ruled on it, and Mrs. Harrell did not assign error to the court’s failure to rule. This is probably the closest that Mrs. Harrell got to having some place to hang her hat, but she omitted this one key element from her assignments of error.

The procedural lessons here are so thick, you can get lost without leaving a trail of breadcrumbs. Most of them are fairly familiar, but the last one bears keeping in mind as appellate lawyers formulate their assignments. If a trial court simply ignores one of your motions or objections – and this has been known to happen, on more than an occasional basis – you can and often should assign error to that failure to rule. Otherwise, you will find the Supreme Court’s courtroom doors shut when you come knocking.

Criminal practitioners are familiar with an Alford plea, in which a defendant does not plead guilty, but admits that the evidence against him, if believed, would be sufficient to convict him. This plea, based on the US Supreme Court’s decision in North Carolina v. Alford, 400 US 25, rests on the foundation that a defendant may waive trial without actually admitting his guilt.

Today the Supreme Court of Virginia considers the civil effect of an Alford plea, in Parson v. Carroll. There, a minor charged a 50-year-old man with making inappropriate sexual advances. The Commonwealth prosecuted the adult, who entered an Alford plea. He was sentenced to six years confinement, with the entire sentence suspended.

The adult then took the unusual step of suing the minor for defamation, claiming that the allegations were untrue. The minor admitted making the statements, but pleaded justification (essentially, the truth of the statements). The trial court then entered summary judgment in favor of the minor, citing the doctrine of judicial estoppel (which generally prohibits the taking of inconsistent factual positions in related litigation). The trial court reasoned that the Alford plea was, in effect, a factual admission that the adult could not later repudiate by claiming that he had done nothing wrong.

Most people reading this far into the case will sympathize with the trial court’s ruling, no doubt out of distaste for the offenses of which the adult was convicted. It will come as a significant surprise to those people that the Supreme Court reverses the decision and remands the case for further proceedings. The court reasons that an Alford plea is a legal assertion (specifically, that the evidence, if believed, would be sufficient to support a conviction), not factual. Accordingly, the bar of that doctrine does not apply. And since summary judgment is a very harsh remedy, the court finds it appropriate to return the case for further development. This, in my view, is the only permissible ruling under the legal rules that govern such cases. To those who would complain about a civil suit by a convicted felon, challenging one of the witnesses against him, the answer must lie in the legislature, not in the courts, given how the courts must conduct their proceedings.

The next civil procedure issue arises in an inverse condemnation case, Bethel Investment v. City of Hampton. The City owned a large tract that it wanted to develop in the 1990’s. The site had wetlands problems, and in order to develop it, the City had to mitigate by creating new wetlands on another parcel.

That other parcel bordered lands owned by Bethel. After the City converted the uplands parcel from 1998 to 2001, a predictable thing happened: The water table rose on Bethel’s land. As a result, a substantial part of Bethel’s land became unusable as wetlands itself.

Bethel filed suit, asserting several theories of recovery, including negligence, nuisance, inverse condemnation, and trespass. The City raised the bar of the statute of limitations in response.

There are in fact three different limitations periods here. The shortest is the municipal litigator’s best friend, §8.01-222, requiring written notice of a negligence claim within six months after the date of the injury. The inverse con claim has a three-year limitation, and claims arising out of damage to property have a five-year limitation. The City argued that the cause of action arose in 1999 at the latest, so the suit (which was filed in 2004) was untimely as to all claims.

And then Bethel made things interesting: It demanded a jury trial on the factual issue of when, exactly, the claim arose. Bethel claimed that it arose no earlier than 2004, but its demand for a jury on this issue is, to say the least, intriguing (for us civil procedure fans).

In the words of today’s opinion, “The trial court heard argument on these questions, heard some evidence, and took the case under advisement.” It ruled the next day, finding as a matter of fact that the claims arose long before and were all barred. The court entered judgment in favor of the City. Bethel sought and received a writ.

Today the Supreme Court makes two intriguing findings. The first is that Bethel is, indeed, entitled to a jury trial on the underlying factual issue of when the statute began to run. Citing familiar language to any students of the law, the court reaffirms Virginia’s commitment to trial by jury. It finds the trial court’s refusal to empanel a jury for this question to be reversible error.

It can’t get any better than this for Bethel, right? Wrong. Christmas arrives in early November, as the Supreme Court, having found that a jury hearing is required, nevertheless does not remand for such a hearing. That’s because it gives Bethel an outright victory on the underlying fact issue. The court finds that the City, having adduced its evidence on the accrual issue, utterly failed to present evidence that would ever be satisfactory to support a ruling in its favor. The court thus grants the appellate equivalent of judgment as a matter of law in favor of Bethel on the limitations issue, upon which the City had, but failed to meet, the burden of proof.

The court remands the case “for trial upon all the issues raised by the motion for judgment.” The ruling requiring a jury trial on limitations issues will be the lasting monument of this case, but don’t tell that to Bethel, which wins a major victory it may not even have seen coming.

The final civil procedure case of the day is 1924 Leonard Road LLC v. Van Roekel, a suit involving partition of realty, quieting title, spousal infidelity, business records, death, and other scandalous events that take place over no fewer than ten presidential administrations. This ruling is the “Peyton Place” of today’s docket. The factual posture is a bit complex, but trust me; it’s worth reading through this; there are some extremely valuable basic evidentiary rulings in this opinion. I’ll promise to keep the story interesting.

Back during the Eisenhower Administration, Herman Van Roekel was looking for a place to live. Herman’s boss, a real state broker named Malcolm, found a house that was looking for a buyer, and figured it would be perfect for Herman. He negotiated with the owner to sell it, and offered to lend his (Malcolm’s) name to the deed, since the mortgage was being assumed and Herman’s credit was, shall we say, impaired. The owner agreed, and title was conveyed to Herman and Malcolm, as tenants in common.

Herman was married to Dorothy Van Roekel, but they were living apart at the time. After Herman told his estranged wife that he had bought a house, she and their children moved in with him. From that point on, Dorothy made all of the mortgage and tax payments. Five years later, during the Kennedy Administration, Herman had had enough of life on Peyton Pla-, I mean, Leonard Road. He went to Mexico for Christmas and never came back. Dorothy and the kids stayed, and she continued to make the payments; Malcolm never contributed a dime.

Many years later (we’re up to the Nixon Administration now), Herman spoke with Dorothy, telling her that he had a new wife. “Fine,” Dorothy replied, “Send me divorce papers.” He promised to do so, but failed to follow up on that. He did, however, send her a deed, signed by Herman and one Billie Sue Van Roekel, ostensibly husband and wife, conveying to Dorothy a one-half undivided interest in the home in which Dorothy lived. Dorothy recorded this. Four years later, during the Ford Adminstration, she made the final payment on the mortgage.

Herman lasted until the Reagan Administration before dying, leaving behind not one but two widows; the record is silent as to whether either or both were broken-hearted. His death certificate listed his marital status as “divorced.”

Let’s check in on Malcolm now. He suffered a stroke during the Carter Administration, and his daughter served as his attorney in fact. She executed a quitclaim deed during the Clinton Administration, conveying Malcolm’s one-half interest in the property to Malcolm’s heirs. Malcolm died shortly thereafter.

Fast-forward to the current Bush Administration. Malcolm’s heirs sold their interest in the property to an LLC, and that entity filed a partition suit, essentially asking the court to kick the widow and orphans out of the house so the LLC could reap its fair share of the value. Dorothy filed a cross-bill in which she asked the court to impose a resulting trust, carrying out what she contended was the original intention of Malcolm and Herman, both by then of blessed memory, that Malcolm was only on the title as an accommodation to the original seller.

At the ensuing trial, the court made several rulings that are the primary legal interest for those who have stayed with me thus far. Two of those rulings are reversed, so the case will be retried. Here is a summary of the Supreme Court’s findings today:

The LLC contended that Dorothy would have to have corroboration of her suggestion that Herman and Malcolm agreed that Malcolm would not really have an ownership interest as long as Herman paid the bills. It relied on the Dead Man’s Statute, §8.01-397, which says that if one party to an agreement can’t testify about it because of death or disability, then the other party can’t get judgment without corroboration. The court rules today that while that Code provision is all well and good, it doesn’t apply here, because by its terms it only applies “in an action by or against” a dead guy. Here, while Malcolm was unmistakably dead, he wasn’t the real party in interest, and neither was his estate. The lesson is that the Dead Man’s Statute’s protection goes away when the estate conveys the property to a third party purchaser. In this sense, the grantee does not fully step into the shoes of its grantor.

Next, the court finds that the business records exemption applies even if the records are (metaphorically) kept in a shoebox. The LLC had offered documents kept by Malcolm’s daughter in the management of his affairs after his stroke. The trial court held that those weren’t the kind of “verified regular entries of a business” that are covered by the rule. The Supreme Court finds otherwise. The documents will be admissible as long as they have “a direct or circumstantial guarantee of trustworthiness.” Here, the court provides some valuable guidance to practitioners. It holds that a series of back-and-forth correspondence (here, between Malcolm and his bank) can demonstrate the requisite trustworthiness. This evidentiary ruling alone makes this case well worth reading by every trial lawyer in Virginia.

The court declines to apply the doctrine of estoppel by deed, as the LLC had requested. It contended that by recording the deed from Herman and Billie Sue, Dorothy was estopped from claiming that her real interest was actually more than one-half. The court finds that estoppel by deed can be used against a grantor, but not against a grantee. As far as I know, this ruling is one of first impression in Virginia.

The court next rejects the LLC’s argument that Herman’s second marriage was presumed to be valid. To do that, the court finds, there would have to be credible evidence that Herman did, in fact, marry Billie Sue. But all the LLC had to go on was (1) the recitations in the deed to Dorothy, and (2) the death certificate, listing the late Herman as being divorced. That evidence simply isn’t enough to prove that Herman actually divorced Dorothy.

My sense here is that this ruling, while technically a victory for the LLC (since it obtained reversal of a judgment for Dorothy), will probably ultimately result in vindication for Dorothy. The real winners, though, will be the lawyers who take the time to study the many and varied evidentiary rulings throughout this interesting opinion.

Criminal law

As noted above, today’s opinion list is uncharacteristically heavy on criminal cases. The court generally hands down something on the order of three or four criminal cases per session. Eleven is a remarkable number, at least in my experience. You should know that the number of criminal cases handled by the court is down significantly since the creation of the Court of Appeals in 1985. From that point forward, criminal appeals have been “filtered” through the CAV, which has weeded out a number of meritorious appeals that would previously have come directly to the Supreme Court.

The first three cases below followed the same path – a conviction at trial, followed by reversal by a panel of the Court of Appeals; then reinstatement of the conviction by the en banc CAV, and ultimately reversal by the Supreme Court. That’s a lot of appellate history, concentrated in just three cases.

One night in February 2003, the Portsmouth Police received a report that someone was driving on a suspended license. They stopped David Lee Moore, and found that he did, indeed, have a suspended license; that’s a Class 1 misdemeanor. But instead of issuing a summons, as would usually be done, they took him into custody. After Miranda warnings, they took him back to his hotel room and got his consent to search it. Before they did that, they remembered that they had not yet searched Moore’s person; when they did that, they found cocaine. Moore cheerfully admitted that the cocaine was his.

His lawyer was brighter than that; he moved to suppress the evidence, arguing that Moore should not have been arrested for a mere misdemeanor, and that the subsequent discovery of the cocaine should be kept out of evidence. The trial court rejected this argument and convicted Moore. As noted above, Moore first won, then lost, in the Court of Appeals. Today, in Moore v. Commonwealth, he gets a “Get Out of Prison, Free” card from the Supreme Court.

The court rules, consistent with US Supreme Court precedent, that there is no such thing as a “search incident to a lawful summons,” as there is with an arrest. Virginia law specifically provides that a person cited for a misdemeanor must be released from custody if he signs a summons and promises to appear in court. The police officers evidently thought that they had a “prerogative” to choose whether to arrest Moore or release him on a summons. The court finds that an exception to the statute’s mandates (empowering the police to make an arrest if the accused “shall fail or refuse to discontinue the unlawful act”) does not apply, given the absence of any evidence that Moore planned to drive away form the scene of his traffic stop.

The issues are a bit more complex in Morris v. Commonwealth, involving the conviction of a mother on felony child neglect charges. The procedural posture is exactly the same, but this case draws a divided response from the Supreme Court.

A school family support worker noticed that Morris’s son was absent from kindergarten one day in September 2003. He decided to check in on the boy. Phone calls were unavailing, so he went to the trailer court where the boy lived. Several knocks at the door, during two different trips that morning, produced no response. The worker saw two young children playing in the neighborhood; one of those was about the right age; the other one was about two years old, and was naked. He approached the children, and was initially unable to get them to tell him where they lived. He did have to take them away from what he regarded as an unsafe play area (an abandoned car with an exposed engine block).

Eventually, the children led the worker (and a couple of police officers who had arrived at the worker’s request) back to Morris’s trailer. At first she did not come outside; when she eventually did, she claimed to be the children’s aunt. This alibi didn’t last long when the two-year-old kept referring to her as “Mommy.”

Morris then explained that she and her children (along with a man who remains unidentified in the opinion) had gone to sleep hours before. She claimed to have chained the door shut, and did not know the children were gone until she heard knocks on the door accompanied by cries of “County Police.”

As indicated above, Morris, like Moore, was convicted, and her conviction was upheld by the full Court of Appeals. Today, a bare majority of the Supreme Court reverses the conviction, finding that the evidence, even in a light most favorable to the Commonwealth, is insufficient to establish her guilt beyond a reasonable doubt. The court cites the strong showing that’s required to support such a finding – a “willful act or omission in the care of a child” that is “so gross, wanton, or culpable as to show a reckless disregard for human life.”

The majority regards that the evidence proved little beyond the fact that Morris is a sound sleeper who didn’t notice that her children had circumvented her locking the door. While she admitted having a substance abuse problem, there was no evidence at trial that she was under the influence of any drugs or alcohol at the time. It notes that the two police officers, which have presumably been trained to recognize signs of intoxication, mentioned nothing, when they testified, about any such suspicion.

The dissent, authored by Justice Kinser and joined by Justices Keenan and Lemons, thinks otherwise. It chides the majority for abandoning a view of the evidence that is truly in a light most favorable to the Commonwealth, notably Morris’s denial that she was under the influence. It observes that the trial court could have considered Morris’s “coma-like sleep” as indicating drug or alcohol use, and reminds us that Morris lied about her identity when originally confronted. The latter position also draws a citation to a familiar principle in criminal law: When the factfinder disbelieves the defendant’s testimony, it may infer that she is lying to conceal her guilt.

It will be difficult for most readers to view this case dispassionately, especially after a fuller review of the facts than I have given here (my report is truncated somewhat, due to space limitations), given the age and vulnerability of the young victims. The two children were unquestionably neglected; the real issue is whether the mother’s conduct reached the level required for a conviction.

There is one aspect of the case, specifically cited by the dissent, that is troubling to me. It is not a new doctrine; it’s the inference-of-lying rule. I know that a judge or jury can infer that a defendant can be lying to conceal her guilt. The troubling aspect of this doctrine, though, is the concept, evidently espoused by the dissent, that such an inference can be used to supply affirmative proof of an element of the case. I believe that it’s one thing to find that a defendant’s testimony should not be believed. It is another matter entirely to view such a finding, unsupported by other positive evidence, to establish a fact at issue in the case. But for this argument, I have to say that my sympathies lie with the dissent here; I believe that, given the deferential view due to the trial court’s factual findings, this conviction probably should stand. But as I’ve noted before, I have neither a robe nor a vote in this one.

Let’s go back to Arrests 101 for a moment. Suppose a police officer, investigating a DUI charge, goes to a hospital where the suspect is being treated for injuries sustained in a crash. The officer tells the suspect that he’s under arrest, presumably Mirandizes him, and then reads the implied consent statute to him. The suspect indicates that he understands, and signs a form consenting to the withdrawal of a blood sample for forensic analysis. The officer stays with the suspect as he’s transferred to another room, and stays with him while the blood sample is drawn. Has the suspect been arrested?

This might surprise you, but the answer is no, according to today’s ruling in Bristol v. Commonwealth, implicating the admissibility of a blood alcohol certificate generated in exactly those circumstances. The key to this finding, according to the majority opinion, authored by Justice Keenan, is that the officer did not restrain the suspect, and the suspect did not submit to the officer’s control.

Regardless of your level of experience in DUI cases, you’ll find this part intriguing: The officer (unbelievably) did not take the suspect to the police station after the completion of medical treatment. (This matters because the blood alcohol certificate is only admissible if the accused has been arrested within three hours after the time of the offense.) No one tried to book the suspect; he just went home once the doctors were finished with him. He voluntarily came to the police station two days later, gave a statement, and left a free man. He even called the police a month later to check on the status of a person injured in the crash; no one mentioned at that time any interest in prosecuting him. Only after the certificate came in (at .11%) did the Commonwealth indict him.

Remember the elements of “arrest” noted above – either restraint by the officer, or the suspect’s submitting to the officer’s control. Based on this definition, the court specifically finds that this suspect was never validly under arrest. It rules that nothing in the record indicates any restraint of the suspect by the officer. And signing the consent form does not constitute “submitting to the officer’s control,” since the implied consent statute is only triggered after an arrest has been made.

Justice Lemons, joined by Justice Kinser, dissents. He pointedly asks, “what more was the officer expected to do with a seriously injured person whom the officer has informed is under arrest? Was the officer to handcuff [the suspect] or restrain him in some other manner and risk interference with his medical care?” That, in my view, is a splendid question, to which I don’t perceive that the majority has a satisfactory answer. Unquestionably the officer could have handcuffed the suspect, calculating the entire time how much he enjoyed defending himself against unreasonable force claims brought under the Fourteenth Amendment and 42 USC §1983. That he elected to allow treatment to continue unfettered is not something for which he should be criticized.

The majority’s view, in my opinion, rests to at least some degree upon the subsequent default of the police in not taking the suspect to a magistrate as soon as he was released from the hospital. That circumstance is reasonably likely to create a perception in most reasonable minds that, the officer’s statement notwithstanding, one is free to leave. The dissent answers that the police’s subsequent conduct is irrelevant to the question of whether, as of the moment the suspect consented to the blood test, he had been placed under arrest. That, too, is an excellent point that goes unaddressed by the majority.

This fact pattern is, in my view as a former DUI prosecutor, sufficiently unusual that today’s ruling is not likely to wreak a wide-ranging change in DUI jurisprudence, or in the way most police officers handle hospital cases.

Workman v. Commonwealth 
presents the unusual spectacle of a criminal prosecution of a law enforcement officer for a shooting death. This one didn’t occur while the officer was on duty, and the fact that both he and the decedent were intoxicated at the time probably contributed more than a little.

The defendant is a DEA agent who, well, . . . there’s no good way to put this – picked up a girl in a bar. The two went out to her car and got inside. While they were in the car, two other men, evidently disgruntled suitors, pulled up and an argument ensued over why she was in the car with the defendant. The agent then made the mistake of opening the door and getting out. This, you will readily appreciate, is inevitably going to escalate the conflict. One of the other men – “the dead one,” to borrow a line from the movie Silverado – rushed at the agent and started grappling.

The agent then perceived that the other assailant was coming toward him with a gun. He then grabbed his own gun and pulled the trigger four times, striking the decedent thrice. The other assailant did the honorable thing: He got into his car and fled. The girl, unfortunately for the agent, did the same thing, leaving the agent, the dead guy, and a few onlookers standing in the parking lot.

The Commonwealth indicted the agent for first degree murder (a charge that is at first blush implausible, given the apparent lack of premeditation) and a companion firearm charge. The agent’s lawyer requested exculpatory evidence and a bill of particulars; he waived the latter request when the prosecutor opened his file to inspection by his opponent.

As this is solely a discovery issue, I’ll give you the Reader’s Digest version of the trial: The defendant was found guilty of manslaughter. Before sentencing, he learned about a statement made by a witness that might prove exculpatory, but that had not been given to him by the Commonwealth. He followed that lead, and eventually discovered potential evidence that could be used for impeachment or for positive proof. The evidence related to the key question, hotly disputed at trial, whether the two assailants were armed during the encounter.

The agent moved for a new trial, but the trial judge denied his request, finding the undisclosed statement to be inadmissible hearsay. The court noted that it should have been disclosed to the defense, but rejected the argument that a new trial should ensue.

Today, the Supreme Court reverses, finding that the failure to produce the evidence created a “reasonable probability” of a different outcome at trial. Note that the defendant, in order to prevail on such a request, need not prove that he wold have been acquitted; all he has to do is demonstrate that reasonable probability. It is true, the court notes, that the statement itself was hearsay. But if the agent’s investigator had been able to follow the string of leads that the hearsay generated, it would have given him “a powerful tool” at trial.

The court’s reasoning goes well beyond that sentence, but once I saw that, I recognized that a reversal was inevitable. Two additional details are worth mentioning. The first is that the prosecutor was apparently wholly unaware of the hearsay statement; this was an inadvertent failure to disclose. But intention isn’t an element of this analysis, for reasons you can understand. Second, since the agent’s conviction of manslaughter is an implicit acquittal of the murder charge, he can only be retried for the lesser offense. To hold otherwise would violate the Constitution’s prohibition of double jeopardy.

Picture, if you will, those who engage in dangerous occupations. Firefighters come to mind. The same thing goes for members of the bomb squad, Navy SEALs, anybody who works on the flight deck of an aircraft carrier, and bodyguards for hip-hop artists. Do you have a good mental picture of a tough guy?

Repo men. Those would ordinarily seem to fit in. But Robert Park Merrell evidently decided that preconceived notions about size shouldn’t hamper him in his choice of a career. Thus the 5’5″, 120-pound physical specimen earned his living carting away unpaid automotive merchandise. One day in April 2003, he went to the home of Stephen Craig Walker in Virginia Beach, where he spied his quarry, a Chevy Suburban. He latched on to the vehicle, put his tow truck in gear, and drove out the driveway . . .

. . . where he encountered a very large (6’5″, 240) and very angry Walker, who drove up in another vehicle. Walker parked in the tow truck’s path, and got out to confront Merrell. Merrell got out a cell phone and started to call the police. At that point, he noticed that Walker was also very armed. Walker came up to the driver’s side of the tow truck, pointed the gun at Merrell, and said, “Put it down.” (At this point, Merrell added, “I knew he was not talking about the phone.”)

Merrell, too, had a gun, as I imagine most sensible repo men do. He tried to grab it, but Walker wrenched it away, now pointing his own gun directly at Merrell’s chest and ordering him to drop the Suburban. He grabbed the smaller man, carried him a few feet back to the tow truck, and stuffed him inside. Merrell’s sense of self-preservation took over at this point; he released the Suburban, and Walker then let him go.

Today’s opinion, Walker v. Commonwealth, cuts immediately to subsequent police interviews where Walker, the same day, acknowledged to police that he “messed up” in his dealings with Merrell. He recounted that he had had another vehicle repossessed previously, and did not want to repeat that ordeal. Unimpressed with his repentance, authorities charged him with robbery, abduction, and two related firearms charges.

At a bench trial, the judge acquitted Walker of robbery (and that firearms charge), but convicted him of abduction. On appeal, the Supreme Court affirms, ruling that the evidence satisfied the statutory prerequisites for abduction. That charge formerly required asportation (taking the victim away somewhere), and while a statutory change has done away with that requirement, the court finds that simply hauling Merrell a few feet and stuffing him bodily inside his truck is enough for that purpose.

The principal ruling of this case is that Walker’s acquittal on the robbery charge does not exonerate him of the abduction charge. The key issue is whether the incidental detention doctrine discussed in Brown v. Commonwealth, 230 Va. 310, suffices to require the dismissal of the abduction charge on double jeopardy grounds. The court rules that it does not, so Walker’s conviction sticks.

This case stands as a testament to one aspect of the effectiveness of Virginia’s statute criminalizing the use of firearms in criminal offenses. The trial court, evidently recognizing that Walker suffered a momentary lapse of judgment, sentenced him to five years on the abduction conviction, but suspended the entire sentence. The mandatory term on the weapons charge, however, cannot be suspended, so he gets three years of free room and board to practice anger management techniques.

The court today trims the list of admissible evidence that a court may consider in the sentencing phase of non-capital felony trials, in Gillispie v. Commonwealth. This decision will work a relatively small, but very important, change in the trial of those cases, and criminal law practitioners need to be aware of it immediately.

Gillispie was convicted of statutory burglary in a bifurcated trial. The Commonwealth moved to introduce evidence related to his prior convictions. Gillispie’s lawyer noted that the proffered document made impermissible reference to a previous robbery charge, of which he had been acquitted. By agreement, that reference was redacted. But the lawyer had no luck when he asked the trial judge to order the similar redaction of sentencing information on a larceny charge of which Gillispie had, in fact, been convicted. The sentencing information included, among other things, the fact that Gillispie was required to undergo drug treatment. The attorney feared that the jury might be harsher on his client if it suspected him of having a drug history.

The unredacted sentencing information thus went to the jury, which recommended a sentence of five years in prison. Gillispie got a writ from the Supreme Court (after an unavailing tour of the facilities at the Court of Appeals) to review only the issue of redaction of the sentencing information.

In a 5-2 decision, the Supreme Court today reverses. The majority opinion, authored by Senior Justice Russell, notes that the language employed by the General Assembly in 1994 in creating bifurcated trials in non-capital felony cases differed from similar language in capital cases. That distinction makes a difference to the outcome, the majority notes, since the legislature must have known about the court’s 1981 decision in Bassett v. Commonwealth, in which it construed the meaning of the phrase, past criminal record of convictions of the defendant. Since the new statute, governing non-capital cases, uses different language (authorizing only “the defendant’s prior criminal convictions”), those two phrases presumptively mean something different. And the court so holds, ruling today that the only things the Commonwealth can offer at sentencing are the name of the crime, the date of conviction, and the court where the conviction occurred. In case this needs to be emphasized, this requirement takes effect immediately, for all trials from now on.

As intimated above, this ruling is not without intra-judicial controversy. Justice Kinser, joined by Justice Agee, dissents, raising at least one intriguing argument for which the majority offers no riposte. She notes that the General Assembly could not very well have been aware of the court’s construction of the capital statute in the 1981 case, because the court did not, in fact, engage in any such statutory construction then. She contends that the Bassett ruling rested upon a balancing of prejudice against probative value, not upon the meaning of the language of the statute. But she doesn’t have enough company for this view to prevail.

The court reviews the proof required to support convictions of rape and forcible sodomy in Molina v. Commonwealth. The overarching issue in this case is the victim’s mental capacity to understand “the nature or consequences of the sexual act involved.” The victim here was substantially intoxicated and had cocaine in her system. She took lithium for a bipolar disorder, and occasionally had blackouts and seizures. She had no memory of the events beyond having kissed the defendant, but insisted that she did not consent to any sexual acts.

The defendant testified that he had consensual sex with the victim. Given the relative paucity of evidence from her, that might have been sufficient to beat the charge, but for the provision in Virginia’s rape law that criminalizes even ostensibly consensual sex that is accomplished “through the use of the complaining witness’s mental incapacity . . .”

The defendant contended that the “mental incapacity” described in the statute relates to permanent conditions; otherwise, it could be read to criminalize sex where the victim is subject only to a temporary condition, such as voluntary intoxication. This is a fine line to walk; if every sexual act that occurs after voluntary intoxication is criminal, then there will be a great many more prosecutions — so the defendant’s argument ran.

Affirming the conviction, the court notes that the statute does not limit itself to permanent incapacity. It then defines the boundaries of the offense to include “a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand ‘the nature or consequences of the sexual act.’ ” This is very important language that bears careful study, not to mention posting in college dormitories across the Commonwealth. To my knowledge, this is an issue of first impression, and will help to define whether an act is criminal in a great many circumstances. Of course, this will not produce a bright-line test that will be recognizable in bars and darkened hotel rooms; prosecutions that rely on this provision will inevitably turn on the case-by-case circumstances.

Voluntary intoxication (the drug-induced kind) also plays a role in White v. Commonwealth, a murder case in which White raised an insanity defense. The Commonwealth asked the trial judge to rule in limine that White’s evidence of insanity did not make out a prima facie defense. After considering White’s expert and lay evidence on this point, the court sustained that motion and barred the insanity defense.

But insanity was the only defense White had; he accordingly entered a conditional guilty plea, in which he preserved his right to appeal the court’s evidentiary ruling.

White found the same initial, but fleeting, success enjoyed by some of the other defendants whose appeals are decided today; a panel of the Court of Appeals ruled in his favor, reversing his conviction and remanding for a new trial. But once again, the full CAV stepped in and overturned the panel’s ruling, thereby affirming the conviction. White got a writ from the Supreme Court.

The main issue in this case is a matter, not so much of criminal law, as of criminal procedure. The court does give a solid exposition of the insanity defense in Virginia, and evaluates the trial court’s ruling against that backdrop. But the real wrestling match in this case is the question of who should decide whether the defendant had made out a suitable insanity defense. Remember, the defense was adjudged insufficient by the trial court on a motion in limine, not by a jury.

In a 6-1 ruling, the court affirms the trial judge’s holding, finding that White’s evidence did not make out a prima facie case of insanity. His psychologist submitted a fairly lukewarm report on this issue, concluding that while White “seems to meet the threshold criteria for an insanity defense,” the defense did not appear “viable” to the doctor because White’s psychosis was caused by voluntary intoxication. Noting that one seeking to overcome the presumption of sanity must do so by “satisfactory evidence,” the Supreme Court rules that the trial court correctly struc the defense.

All, that is, but one justice. Justice Koontz dissents, on grounds that cynics will find ironic. He observes that the trial court has taken away an issue that is normally well within the province of the jury to find, or not to find, depending on the evidence. In his view, the trial court decided the insanity defense as a matter of law instead of allowing the jury to make its factual determination in the ordinary course of the trial.

The cynic’s sense of irony, by the way, arises in the fact that on the very day in which the court decides that civil litigants have a right to a jury trial on a statute of limitations defense (Bethel Investment v. City of Hampton, discussed above in the civil procedure section), it also rules that a criminal defendant has no right to a jury trial on an insanity defense — at least on these facts.

In the category of “What on Earth was she thinking?” is the next criminal case, Gunn v. Commonwealth. Gunn did not fit the profile of the typical felony defendant. She is the cheerleading coach of a Southside Virginia high school. Her grievous sin, for which she was convicted of a Class 4 felony, was cashing a $30 check that should have gone to the school.

How is $30 a felony, you ask? Because of her position as a public employee. The Code provides a harsh sanction for any public official or employee who receives public funds and misappropriates them, regardless of the amount. If Gunn had worked for, say, a plumbing company instead, she would have faced petit larceny charges and a probable slap on the wrist, at most. A felony conviction, though, is another matter entirely, and certainly one worth appealing to the Supreme Court if possible.

As part of her duties, Gunn sold advertising in the school’s football program. She sold one such ad to the local community college, for $30. She told the college’s rep not to pay immediately; she’d forward a bill. But before she could do that, the college sent a check, payable to the school, care of Gunn. The check was delivered to her at her school.

Inexplicably (to me, at least), Gunn endorsed the check and deposited it in her credit union account, mentioning nothing about it to the school. The cat escaped the bag when someone started sending out reminder letters to advertisers. When the college got one, it responded that it had already paid the bill. It was happy to produce a copy of the cancelled check, front and back. At that point, Gunn had some ‘splainin’ to do.

Her ‘splanation was that it was all a mistake; she had thought this was a refund of a tuition overpayment from the college, where she herself took classes. She offered to repay it, but it was too late for such measures; she soon found herself indicted.

At trial, Gunn repeated her theory of mistake, and offered evidence of numerous expenses she had paid out of her own pocket in the past, all in support of the cheerleading squad. The trial court ruled that evidence inadmissible, despite Gunn’s suggestion that these expenditures tended to prove that she would never do something like “steal $30 from the school system.” It is entirely possible that the court saw this evidence in another, less charitable light — as a tacit contention that her previous expenditures should be offset against the $30 — but today’s opinion is silent on this point.

After her conviction and two-year sentence, all of which was suspended, Gunn tried unsuccessfully to get the Court of Appeals to take her case. She had slightly more luck in the Supreme Court, getting a writ, but today she loses her appeal. The court methodically walks the reader through the statute and the evidence toward the inescapable conclusion that Gunn’s conduct meets the statutory definition of this crime. The court refuses to read into the statute a requirement for fraudulent or criminal intent, noting that the law essentially criminalizes any knowing misappropriation of public funds by a public official or employee.

Almost anyone reading this opinion will find the felony sanction to be quite draconian in this context, but that’s not a matter the Supreme Court can consider. Gunn, who was probably hurt by some damaging admissions from the witness stand, will live out her days as a convicted felon, with all the social stigma and legal impairments that that entails.

Few readers are likely to similarly sympathize with the defendant in Jones v. Commonwealth, our second felony child neglect case of the day. Jones was a heroin dealer who admittedly made twenty sales a day from her apartment in Norfolk. Police got a warrant for an “immediate entry” search (in contrast with a “knock and announce” entry) into the apartment, after learning that two lookouts were posted, night and day, in the hallway. The officers came to the premises in body armor and “ballistic helmets” (the opinion does not define that term, but I infer it means bulletproof), and entered quickly, weapons drawn, with a great deal of commotion.

Passing one doorway in the apartment, the officers saw something that seems out of place — a young boy, lying calmly on his bed, doing his homework. There were seven other children in the next room, all unattended.

The court’s description of the scene is worth quoting here, if only for its stark contrast. The first sentence could describe a happy atmosphere of Nineteenth Century domestic contentment, until the harsh reality of the Twenty-first Century comes down like a hammer in the second:

“The child in the first bedroom was Jones’ eight-year-old son, Donya Deshawn Jones, who was working on his schoolwork while lounging on the bed with his feet by a nightstand at the head of the bed. On the nightstand within arm’s reach of the young boy, [police] found a medicine bottle containing fourteen capsules of heroin. . . . Under the mattress below the child’s head, [police] found a dinner plate dusted with cocaine residue and drug packaging materials.

“When asked [at trial] why she left her son alone in the bedroom with capsules of heroin within his reach, Jones replied, ‘I watch at least ten kids, and I can’t keep track of everything.’ ”

Experienced trial lawyers will recognize that, at this point, the proceedings are over; there is nothing Jones could say, in light of all this information, to avoid a conviction on pretty much any charge that could stick. Appellate lawyers will note that this unquestionably gave the trial court an ample factual record on which to affirm, if the legal prerequisites of the statute are met.

The court rules today that Jones is, indeed, guilty of felony neglect. The specific ruling of the case is that this combination of factors (readily available supplies of dangerous, potentially lethal, substances; plus the dangers inherent in the drug trade) establishes a reckless disregard for the boy’s life and safety. The court rejects Jones’ contention that the Commonwealth sought a per se rule (any drugs in the house automatically equals felony neglect), noting that the trial court specifially pointed to all of the circumstances in reaching its finding.

One last note from the cynic’s corner: Jones, who risked her child’s life, is convicted of a Class 6 felony, punishable by imprisonment from one to five years, or a jail term not to exceed one year. The maximum fine is $2,500. Our previous felon, Gunn, who made off with thirty bucks, gets a class 4 conviction — two to ten years in prison, with a maximum fine of $100,000. It’s probably unfortunate that these two cases are handed down on the same day, so that they invite this comparison. But as noted above, there is nothing at all wrong with the courts’ treatment of these cases; once the evidence established the defendants’ guilt, it’s then a matter of applying the statutes — purely mathematics, mandated by the legislature.

The court affirms the conviction of a defendant for cyber-theft in DiMaio v. Commonwealth, a case I reported extensively here when the Court of Appeals handed down its ruling. As the analysis in this court is largely the same, I won’t repeat the discussion.

Workers’ compensation

The court hands down one Workers’ Compensation ruling today, involving subject matter jurisdiction over small companies. The case is Uninsured Employer’s Fund v. Gabriel, based on a claim by the estate of a businessman who was killed in the terrorist attacks of September 11, 2001. The issue is whether the man’s employer had at least three employees “regularly in service” in Virginia.

The employer was a small business consulting firm that was headquartered in Virginia. It had four employees, but only two of them were based in Virginia; the other two lived and worked in Massachusetts. The company generally conducted its business onsite, in the sense that it performed its work in its customers’ offices across the country.

The claimant argued that one of the Massachusetts employees should count as a Virginia employee, because he is an officer of the company. Citing a presumption that officers of a corporation undertake to render certain services for the company, thereby making them de facto employees where the corporation is located, the full Commission held that the company thus had the requisite minimum number of Virginia employees, and affirmed an award of benefits to the businessman’s estate. The Court of Appeals also affirmed, although it did not cite the presumption.

Today, the Supreme Court reverses, finding that no such presumption exists, and otherwise finding the evidence insuffient to establish a factual basis for subject matter jurisdiction. The court makes but one real ruling — that neither the Commission nor the courts have jurisdiction over the claim. (To those sticklers who might wonder how the court even has jurisdiction to decide that it has no jurisdiction, the opinion concludes with a citation to a case where the court held that it always has the power to decide this threshold issue.)


There is one attorney disciplne case today, Green v. Virginia State Bar, which deals with the right of an attorney to adduce mitigating evidence at a disciplinary hearing. Green has trod this path before, having obtained last year a reversal of a 60-day license suspension in this case. After remand, the Bar again imposed the same suspension. Today, Green gets yet another reversal and remand.

Green sought to introduce evidence from his staff to show the devastating effect the previously-announced discipline (you know, the one that the Supreme Court reversed last year) had on his practice. Evidently business fell off a cliff after word got out that he had been suspended; as you can imagine, subsequent news of a reversal of the initial suspension is not likely to eliminate the sting of the original news. (This is why newspapers’ corrections and retractions of their reporting errors are so often seen by the “victims” as insufficient to undo the damage that has been done.) The Bar ruled at the hearing that such evidence was inadmissible; today the Supreme Court reverses that ruling, and invites the Bar to try it one more time. It finds that the test for relevance here is the same as in any civil case: Whether the proffered evidence “tends to prove or disprove, or is pertinent to, matters in issue.” Mitigation evidence is specifically made relevant by the Rules of Court, so Green is allowed to adduce it.

There is one other intriguing issue that the court does not reach. The Bar “reconvened” the hearing after remand by a telephone conference call. Green objected to this arrangement, in a written motion and at the beginning of the hearing. He argued that he wanted to present live testimony from his staff, and to introduce and go over documentary evidence. The Bar answered that the Rules don’t require a live, in-person hearing. But just as (in reading today’s opinion) you start to think that the court is going to weigh in on this issue, an all-too-familiar goblin rears its head. Green, it seems, neglected to identify the proposed witnesses, or state where they were at the time of the hearing. He didn’t proffer their testimony, other than with a statement about the general subject matter. That means he didn’t sufficiently preserve the issue for appellate review, so the court upholds that portion of the Bar’s decision.

While the Bar might be getting tired of pursuing Mr. Green, and might decide just to let the matter drop, I must say that, reading between the lines, I strongly doubt it. The factual recitation hints that Green has frequent flyer miles with the Bar (citing his allegedly “extensive disciplinary record,” which is never a good thing), and based on today’s ruling, the court has told the Bar that it’s okay to conduct the whole thing by conference call. Will we see Green III in the next year or so? Probably. The rules for attorney discipline differ from those of other professions. Real estate brokers, dentists, and other professionals who receive discipline from their regulatory bodies must pursue administrative appeals before heading off to circuit court. Only attorneys have an automatic right to appeal directly to the Supreme Court (they don’t even have to petition for a writ; this is an immediate appeal of right). So if Green gets anything more than a private reprimand next time, he can get yet another day in court, simply for the asking.

Commercial law

The court resolves one commercial law appeal today, Collins v. First Union National Bank. The appellants are fifteen foreign nationals who got burned in a scheme perpetrated by a couple of high-rolling con artists. They sought to take advantage of a federal statute granting favorable immigration treatment for those persons who would invest half a million dollars in the US, and create some jobs thereby. Half a million bucks is a big chunk of change, so the two swindlers came up with a plan to enable foreigners to get in for a fraction of that.

They formed a seemingly legitimate company that made arrangements to “lend” the foreigners most of the money; the foreigners would plunk down $100-150K each, and the company would get a loan for the remainder, so the foreigners could show the feds a $500K depositary balance.

Do you see where this is going? Then good for you, because none of the unfortunate foreigners did. They trustingly paid over these small fortunes to the company; the company arranged for supplementary loans to bring up the balance; the company then hit the “print screen” key on their computer, to “prove” that the foreigners each had half a mil on account; and then the company vacuumed out the accounts, keeping all the money. Eventually, the whole thing went thermonuclear, and the two principals are now enjoying the long-term hospitality of the US Attorney General.

The foreigners, eager to recoup their aggregate $1.8M in losses, then looked around for a solvent defendant. Oh, look; there’s a bank!

They sued the depositary institution, arguing that First Union should have looked out for them, since they were, in effect, the bank’s customers. That turns out to be the decisive factual issue here, as the entire case turns on whether the foreigners were the customers or not.

The Supreme Court rules that they were not. None of the foreigners ever opened an account personally with the bank; the only authorized signatories to the accounts (unfortunately) were the con artists. The court thus finds that any protections afforded by the UCC, and any duties owed by the bank, did not flow to the foreigners.

But what about the third party beneficiary doctrine? Surely the appellants were the intended beneficiaries of the relationship between the bank and the Bad Guys. This approach doesn’t work, either, since there was no evidence that the bank had an interest other than to protect itself from involvement with criminal activity. And as for the Bad Guys, Senior Justice Russell, the author of today’s opinion, wryly notes that “conferring a benefit upon the investors was the farthest thing from their minds.”