The Supreme Court announced twenty published opinions today, covering a variety of topics. The court hands down four opinions in criminal cases, two attorney disciplinary decisions, and a host of civil adjudications, including the resolution of three appeals involving the Mattaponi Tribe and the State Water Control Board.

Administrative appeals

In perhaps the most significant case of the day, the Supreme Court resolves a number of disputes involving the State Water Control Board, the Mattaponi Indian Tribe, and several Peninsula localities, all arising from the proposed King William Reservoir. Three separate appeals are consolidated into today’s opinion, in Alliance to Save the Mattaponi v. State Water Control Board.

These appeals involve, among other things, assertions by the tribe that the proposed reservoir would violate the tribe’s rights, specifically those arising under the 1677 Treaty at Middle Plantation. Those rights include, among other things, a prohibition of intrusion by any English settlers within three miles of any “Indian Town.” The proposed reservoir would flood certain lands within this buffer area; the tribe also argued that the construction of the reservoir would adversely affect other rights afforded to it by the treaty, including the tribe’s fishing rights.

The Water Control Board, after public hearings and consideration of a variety of scientific studies, issued the permit in 1997. Having been through the appellate system once before, the case now presents itself for resolution of a number of issues surrounding the propriety of the permit under the Commonwealth’s Water Control Law, as well as the tribe’s treaty challenges. The opinion first concludes that the appellants’ challenges under the Administrative Process Act are not well founded. The appellants had the formidable burden of showing either a legal error or the disregard of evidence so strong that reasonable persons would necessarily come to the opposite conclusion. In this regard, the standard of judicial review proved dispositive, as it does in so many appeals. The court finds today that the Board conducted its deliberative process within the limits of its discretion, and adequately considered the available evidence before reaching a conclusion that the permit should be issued. That left the tribe with its treaty-based assertions.

Analyzing these issues separately, the court first concludes that the treaty must be evaluated under Virginia, not federal, law. The treaty was concluded more than a century before there was a United States (measured from the adoption of the Constitution in 1789), and was not subsumed by the Supremacy Clause. While that clause contains a provision that “Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land,” the court holds that the only treaties thus covered were those made under the Articles of Confederation. That leaves the treaty to be interpreted under Virginia law.

Given this finding, the court turns to the Commonwealth’s immunity claim; as the SWCB is an arm of the Commonwealth, it should enjoy the Commonwealth’s immunity from suits in Virginia courts. The Supreme Court today rules that the Board, and other state government defendants, are indeed immune, as the General Assembly has not specifically abrogated that immunity.

The one remaining issue in the case provides the only victory for the tribe and its allies; the court holds that the City of Newport News, which was the principal applicant for the permit, may properly be sued in circuit court to enforce the treaty. The trial court had agreed with the City’s assertion that the plain language of the treaty required application to the Governor, not to the courts. In this instance, the Supreme Court looks behind the plain language of the treaty (it does, indeed, specify that any “aggrieved Indians do in the first place repair and Address themselves to the Governour”) to find that the reference to the governor should be interpreted in these modern times to permit redress in the courts. The opinion notes that in the 17th Century, there was no judicial branch of government; the Colonial Governor exercised legislative, executive, and judicial powers. Since the function (redress of grievances) involved is now handled in the courts, that is the proper place for the tribe to challenge the City. The case is remanded to the trial court for adjudication of the tribe’s claims against the permittees, though not the Water Control Board.

It will be tempting for those who read today’s unanimous opinion to read into it some bias against the tribe, or a pro-development stance within the court. This would be a mistake engendered by a shallow reading of the opinion, or perhaps a reading of the ruling only. While the decision does leave the tribe without the ability to enforce the treaty against the Commonwealth, a ruling that would seem facially unfair, today’s decision is founded on well-established legal precedent in each regard. A contrary ruling would have required reversal of one precedent or another on a point of law that would have had a ripple effect elsewhere. As well, the tribe can still bring its claims against the admittedly non-immune City, as well as the other applicants, and should get a final judicial determination on the merits of its rights.

Medical malpractice

In the most stunning development of the day, the court explicitly reverses a ruling it handed down just five months ago. In Oraee v. Breeding, the court reconsiders its ruling in June 2005 in the case of Auer v. Miller. In both cases, the dispositive issue is the application of the immunity provisions of Code §8.01-581.18(B).

In Auer, the court had held that a physician who is charged with negligence in failing to review, or take action upon, a medical report that that doctor did not request or authorize, is immune from liability. The court, applying what it deemed the plain meaning of the subsection, held that the doctor was, indeed, immune, since a different doctor had ordered the test at issue. In this case, the doctor similarly was charged with a failure to act based upon the result of a test ordered by a different doctor.

Today’s ruling takes into account the entire code section; subsection (A) deals with tests ordered by a person who is not a physician. In construing these provisions together, consistent with well-established principles of statutory construction, the court finds that the immunity in subsection (B) only applies where the test was ordered by a non-physician. In so ruling, the court affirms the trial court’s denial of immunity (the trial court’s ruling was almost certainly made before Auer was handed down), and explicitly declares the earlier ruling to be “a mistake.”

Justice Kinser authors the majority opinion; Justice Agee, joined by Justices Keenan and Koontz, file a lengthy dissent in which, as you can imagine, the importance of stare decisis gets a great deal of attention. In case you’re wondering, the answer is no; I have never before seen an appellate court’s reversal of itself this quickly, before the ink on the previous decision was dry.


In addition to the medical malpractice case noted above, the court hands down six opinions in tort cases today. In Ola v. YMCA, the court affirms a ruling that extended charitable immunity to the YMCA in a claim brought by the victim of a sexual assault in a restroom. The victim was a YMCA member who had been swimming in the pool; when she went into the restroom, a nonmember who had gained access to the club assaulted her.

The trial court found the predicates for charitable immunity in the case: The YMCA was organized for charitable purposes and actually operated as a charitable organization; and the plaintiff was a “beneficiary” of the charitable efforts. The Supreme Court today approves each of these findings, specifically holding that the fact that the victim paid a membership fee to the organization did not eliminate the protection afforded by the immunity. Nor did the fact that the YMCA operated in the black for several years affect the decision, since such entities are permitted to make a “profit” as long as excess funds are used for its charitable purposes. Since the plaintiff was swimming at a pool that was made possible by the club’s charitable efforts, she was a beneficiary and thus unable to overcome the immunity.

The court takes the relatively rare (though by no means unprecedented) step of reversing a jury’s verdict, approved by the trial court, based on insufficiency of the evidence, in Norfolk Southern v. Rogers. The court first finds that certain expert testimony offered by plaintiff, a longtime railroad employee who developed silicosis, was not well grounded in fact; the expert necessarily relied upon conjecture as to the factual underpinnings for his opinions. The expert testified on causation, opining that the employee’s exposure to silica dust caused his disease. He readily acknowledged, however, that in order to link the disease to the exposure, it would be necessary to know the volume of the dust to which the employee was exposed, and to conduct open-air tests to measure levels of silica against safety standards for exposure. Since he did not know these things, the court today finds that his testimony had an insufficient factual foundation and should not have been admitted.

This ruling proved to be fatal to the plaintiff’s claim; shorn of the support of this expert testimony, the plaintiff’s case did not establish causation by a preponderance of evidence, even under the more lenient pleading and proof standards used in FELA cases. The jury was left to speculate on the level of silica exposure, since there was no proof of that level. The judgment in favor of the plaintiff is reversed, and final judgment is entered in favor of the railroad.

The court decides one case today, Doe v. Zwelling, involving the Heart Balm statute, §8.01-220. That statute abrogates causes of action for alienation of affection, and was relied upon by a trial court to sustain a demurrer against a professional malpractice claim.

The professional in this case was a licensed clinical social worker, who counseled a wife having marital problems. The counselor suggested to the patient that the therapy would be more effective if the patient’s husband would also agree to be treated, albeit separately. The husband agreed, and came in for counseling with the same therapist. During these sessions, he told the therapist intimate details, of which he forbade disclosure to his wife.

According to the pleadings, the counselor breached applicable professional standards of care by, among other things, disclosing those details to the wife and entering into an extraprofessional relationship with her. The counselor also allegedly maligned the husband to the wife in private sessions with her. The husband cut off his visits, and the wife told him she was ending the marriage. A very predictable period of depression a mental anguish followed, for which the counselor got sued.

The trial court found that while the action was ostensibly for professional malpractice, it was in reality a claim for alienation of the wife’s affections; it therefore sustained the demurrer and dismissed the case in its entirety. Today, the Supreme Court concurs that the Heart Balm statute governs the case and bars much of the relief requested by the husband. But it notes that some of the relief requested is not barred; “the plaintiff has alleged facts constituting breaches of defendant’s professional standard of care that would be compensable in damages even if the plaintiff were unmarried.” As such, the case is reversed and remanded for further proceedings on those claims (e.g., disclosure of the confidential information; maligning him to a third person) alone.

My sense is that this case is more about pleading standards and the evaluation of demurrers than it is about the Heart Balm statute. Where a case states claims, some of which are barred, it is clearly inappropriate to dismiss the entire case; the proper thing to do is to hold the plaintiff at trial to only those claims that are properly pleaded. On remand, the trial court may require the husband to plead separate counts, or it may make rulings in limine to prohibit testimony about items of damage that are covered by the statute.

The court refines its previous holdings in the area of the Workers’ Compensation bar as applied to intentional torts in Butler v. Southern States. Butler was subjected to unwelcome sexual advances, and arguably an attempted sexual assault, by a coworker employed by Southern States as a truck driver. She had managed to avoid her coworker, who was a convicted rapist, for the first month of his employment, but one August day in 2003, circumstances unavoidably threw them together in making a delivery. During that run, he made sexual overtures toward her, caressed her hair, and tried forcibly to kiss her. She managed to evade him, and eventually reported the event to police. The coworker was convicted of assault and battery.

Butler then sued the coworker and Southern States. Her claim against her employer included, importantly, a theory of respondeat superior. The trial court found that the case was within the exclusivity provisions of the Workers’ Comp Act, since the assault clearly arose out of and in the course of her employment.

The Supreme Court disagrees today. In the opinion, it notes that while the injury unquestionably arose “in the course of” her employment, in that it happened while she was on the job, it did not arise “out of” her employment. The assault was in no sense done in furtherance of the employer’s business; it was a private matter undertaken by the coworker without any sanction or knowledge of the employer. The court also notes that the respondeat superior allegation in Butler’s pleading does not bring her within the Comp bar. Alleging this theory is tantamount to asserting that the injury arose “in the course of” the employment of the coworker, but this does not satisfy the “out of” element of the statutes. The case is remanded for further proceedings, presumably including trial.

The court addresses whether maritime law applies to the admittedly onshore work of repairing a submarine in Garlock Sealing Technologies v. Little. Little was employed as a machine installation worker at Newport News Shipbuilding, where among other things he installed and repaired valves, flanges, and gaskets on ships. In doing that, he came into repeated contact with asbestos. Years later, he developed mesothelioma. He brought suit against 14 manufacturers of materials he had used, each of which contained asbestos. By the time of trial, all but Garlock had been settled, dismissed, or nonsuited.

The Supreme Court finds, as did the trial court, that maritime law applies to the case, meaning that ordinary concepts of proximate causation governed pleading and proof requirements. (This substantially aided plaintiff’s case, as alluded to below.) The dispositive factor on this issue is “whether an activity has a significant relationship to a traditional maritime activity,” and ship repairing unquestionably meets that definition.

The court rejects Garlock’s assertion that the development of the disease was remote in time; under maritime law, such a lack of proximity is irrelevant. The most interesting procedural aspect of this case, however, is in apportionment of damages.

As noted above, 13 original defendants had been dismissed before trial, leaving only Garlock to face the jury. Some of the others had settled with Little’s estate (the employee died before trial); others had gone into bankruptcy. The jury was permitted, at Garlock’s request and over plaintiff’s objection, to apportion damages among all 14, even those who were not before the court. But the jury had a surprise for Garlock; in fixing damages at over $460,000, it apportioned 30% to Garlock and another 29% to bankrupt entities. The trial court entered an order requiring Garlock to pay not only its 30%, but also the portion allocated to the bankrupt companies, for a total judgment of $276,000. This imposed a form of joint and several liability that Garlock had not counted on.

On appeal of this issue, Garlock argued that it was improper to apportion damages in this way. The court refuses even to consider this argument, calling it at best invited error. By asking the court to apportion damages, Garlock had taken a position at trial that was inconsistent with its position on appeal. The judgment in favor of the estate is thus affirmed.

The final tort ruling of the day is Bussey v. E.S.C Restaurants, which involves issues of proximate causation and expert and lay testimony to establish it. Bussey became ill after eating some bad beef at a Golden Corral restaurant; she was eventually hospitalized for four days. She brought suit against the restaurant under theories of negligence and breach of a warranty of wholesomeness. A jury returned a verdict of over $111,000, but the trial court set it aside and entered judgment for the restaurant, ruling that Bussey had failed to prove a causal connection between the food and her illness.

I have preached often enough on the importance of the standard of review, and I will not belabor it here. Let it suffice to say that Bussey occupied on appeal an envious position among appellants. Most appellants have to fight an uphill battle against the record; as the losing party, the facts and inferences therefrom are construed most strongly against them. But where, as here, a jury has found in favor of one party, and the trial court has set that aside, it is the appellant who is in the driver’s seat on the facts. Since the jury had found in favor of her, Bussey got the benefit of the facts, and this proved decisive on appeal.

The Supreme Court reverses today, reinstating the jury’s verdict and directing the entry of final judgment in favor of Bussey. It holds that the testimony of her physician was probative on the cause of the illness, despite the fact that he did not see her for four days after the exposure. (She had, it must be pointed out, been to the emergency room in the interim, and her doctor had access to all of those records.) It also holds that lay evidence, in the form of testimony from Bussey’s family and friends as to her physical condition, was a sufficient basis, in conjunction with the doctor’s evidence, to permit the jury to find that the Golden Corral meal was in fact the cause of the illness. The court also notes that food poisoning cases “present unique circumstances because the primary source of evidence is usually consumed and transmuted in the ordinary course of its use.” On the assumption that my readers won’t want to dwell on what “transmuted” implies in this context, I will simply mention that circumstantial evidence is usually all that’s available for the jury to consider.

Land use

The Lamar Company, one of Virginia’s largest outdoor advertising companies, wanted to take down two of its billboards and move them approximately ten yards away. The Lynchburg Zoning Administrator objected, finding that the company was impermissibly “relocating” the boards. The advertiser responded that it was merely “replacing” the boards, which was permissible under the city’s zoning laws. The difference between these two similar words landed the parties in the Commonwealth’s highest court, in Lamar Company v. BZA.

Lamar appealed the Administrator’s ruling, but the BZA upheld the official’s interpretation after considering evidence and the arguments of both sides to the dispute. It found the interpretation of “replace” relied upon by the Administrator to be correct, and that interpretation, based on Webster’s Dictionary, called for “replacement” in the exact same location. Undeterred, Lamar appealed again, this time to the circuit court.

In the court hearing, no evidence was presented; Lamar specifically advised the court that there were no disputed facts, and the only issue was the definition of replace. The trial court, in a letter opinion, found that Lamar had not shown that the BZA had “applied erroneous principles of law or was plainly wrong and in violation of the purposes and intent of the zoning ordinance.”

The trouble with this language, which was incorporated into the final order, is that it reflects superseded law. The statute providing for judicial review of BZA rulings was amended in 2003. Now it provides that the presumed correctness of a BZA decision can be rebutted “by proving by a preponderance of the evidence . . . that the [BZA] erred in its decision.” Now, that’s a much more lenient standard; Lamar seized on it in the Supreme Court and argued that the trial court erroneously applied the old standard.

Lamar wins a Pyrrhic victory today when the Supreme Court agrees about the statutory change in the standard of review. Unfortunately, the court finds today, in a matter of first impression, that this language can logically only apply to disputed factual findings, not to pure questions of law. And since Lamar had specifically told the trial court that there were no factual disputes, that left only the legal question of the meaning of replace. The Administrator’s interpretation of the word is afforded due deference by the court, citing the Rule of Practical Construction, and the decision is thus affirmed.

While this case involves the relocation of a billboard and a specific city’s zoning ordinance, the rule of law established today applies to each and every court challenge to a BZA ruling throughout Virginia. If you want to get such a ruling reversed, you may get the benefit of a favorable factual standard (at least in comparison with the old standard), but legal issues are still reviewed by the courts de novo.

Real property

For the third time in 2005, the court takes up a question involving an alleged scrivener’s error. Today’s ruling is Westgate at Williamsburg Condominium v. Philip Richardson Co. [which I’ll call PRC].

In 1997, PRC owned two contiguous parcels of land, one nearly 11 acres and the other almost one acre. It entered into a contract with a developer to sell the land for development into residential condominium units. To save time, the parties agreed that both parcels would be conveyed at once, although the seller would ultimately retain the one-acre parcel for eventual development into a hotel. They accordingly built into the contract documents an option for PRC to repurchase the acre.

Trouble started when the parties submitted the contract documents to their engineers, to have a legal description and a survey drawn up in preparation for the declaration of condominium. No one, it seems, told the engineer that the acre was not supposed to be included in the land for which a condominium would be declared. The engineer submitted draft documents to the parties for review, and no one caught the fact that both parcels were included within the area to be covered by the declaration. They did suggest a few minor changes, but nothing having to do with the land description. The declaration was accordingly executed and recorded. In an ominous development, 11 days later, the first unit was sold.

A year and a half later, PRC notified the developer that it was ready to exercise its option to repurchase the acre. That’s when someone noticed that that acre was already part of the condominium. The developer, who was the declarant, exercised its right pursuant to the condominium statutes to record a corrective document, since it regarded the inclusion of the acre within the declaration as a scrivener’s error. That correction was recorded in March 2001. On May 1, 2002, the declarant delivered a deed for the acre to PRC, and later that day turned over control of the condo association to the unit owners.

The opinion does not state whether the declarant tried to conceal its eleventh-hour conveyance from the unit owners. Nevertheless, one of those owners figured out what had happened, and suit was filed six months later. The owners, now in control of the association, asked the court to quiet their title to the acre, and to set aside the conveyance. The trial judge wasn’t impressed; he agreed with the declarant that the inclusion of the acre was a scrivener’s error. He accordingly entered judgment for the declarant and PRC. Pouring salt in the wound, he awarded the successful defendants over $50,000 in attorney’s fees.

The Supreme Court doesn’t see things quite the same way. Today, the court reverses, finding that this was no scrivener’s error. Indeed, the inclusion of the acre was no “error” on the part of the engineer (who played the part of the scrivener in this drama); he was given no instruction to exclude the acre, and the declarant reviewed his draft and found nothing wrong with it. The court notes that the trial judge specifically found, as a matter of fact, that “the error was not in the creation of the plat by the surveyor, . . . The error was in making the [Declaration] contrary to the intent of [the declarant].” In this way, the court’s ruling today adheres to the principles expressed recently (June 2005) by the court in Morgan v. Russrand Triangle Associates, which opinion is cited in today’s ruling. In both cases, the court finds that where a party specifically intends to do a certain thing, he cannot later insist that a document that carries out that intention is a scrivener’s error.

More bad news for the declarant and PRC: Since they lose today, they are no longer prevailing parties, and they lose their $50,000 attorney’s fee award. Indeed, assuming these documents are written the way I suspect they are, it is now the declarant who may be facing the prospect of having to pay the association’s now-prodigious legal fees. But that’s now a question for the trial court on remand.

The case also includes a useful discussion of the standard of review for claims of scrivener’s errors. It holds that the underlying facts are to be reviewed with the customary deference afforded to facts determined at the trial court level, but the determination of whether such facts rise to the level of a scrivener’s error is one of pure law. As such, it is reviewed de novo.


The court clarifies the law relating to escrow agreements in Davis v. Holsten, a suit involving a vendor and purchasers of a home in Fairfax County. The home was clad with EIFS, the troubled artificial stucco siding that has engendered significant litigation in Virginia and elsewhere. Davis sold his home to Mr. and Mrs. Holsten; the contract provided that he would replace the damaged EIFS, and any damaged wood, before closing. He didn’t perform the repairs by that date, so the parties entered into an escrow agreement; Davis deposited $50,000 with an escrow agent, and undertook to contract for the repairs right away. If the work was performed within 13 mints, he could get the money from the agent; otherwise, the Holstens would get it.

If the repairs had gone smoothly, we would never have met these folks, and we wouldn’t be having this cyber-conversation; at the end of the term, the Holstens complained that the work was not fully done, while Davis insisted that he had reached substantial completion. When the escrow agent refused to turn over the funds, Davis sued.

The first hint of trouble for Davis came at trial, when he attempted to have his expert testify to the opinion that the work was substantially completed. The expert evidently felt that the Holstens’ remaining complaints were very minor, and should not hold up final payment. The trial judge sustained the Holstens’ objection to this testimony, since the escrow agreement required completion, not substantial completion. The two terms emphatically have different meanings, and the trial court felt that evidence relating to substantial completion was irrelevant.

This ruling led inexorably to a judgment in favor of the Holstens. On appeal, Davis challenged the trial court’s ruling, arguing that well-established Supreme Court caselaw provides that substantial completion is an implicit term in every construction contract. The Supreme Court disposes of this objection in elegant fashion, pointing out that this isn’t a construction contract; it’s an escrow agreement. Escrow agreements, the court notes, require strict compliance, citing authorities from across the nation. And since the evidence — even some of Davis’ evidence — established that a part of the required repairs were not done (or not done properly), the trial court’s ruling is affirmed.

This ruling is important in at least two respects. First, as noted above, the court’s statement on the strict interpretation of escrow agreements can probably be regarded as one of first impression in Virginia. Second, the court’s distinction between construction contracts and escrow agreements is arguably case-specific, since this agreement specifically called for Davis to hire a contractor to do the work, not to perform it himself. Nevertheless, in my experience, this type of escrow agreement is fairly common in residential real estate transactions. Closing attorneys should therefore be careful in spelling out the parties’ respective rights and obligations in drafting these agreements. Far too often, the need for an escrow agreement does not arise until some dispute erupts at closing, and the closing attorney is called upon to draft something to memorialize an otherwise informal agreement in order to prevent bloodshed between the parties. This case points to the need for a more careful drafting process, dealing with things such as who is to perform the work, and whether strict or substantial performance will be required. If you’re handling closings and using a preprinted form escrow agreement that is provided by a real estate agent, you should rethink your reliance on such a form.

Attorney discipline

Two opinions today address issues related to disciplinary proceedings against lawyers. One is decided on procedural grounds; in Brown v. Virginia State Bar, the court remands for a hearing before a three-judge panel, reversing a one-year suspension by the State Bar’ Disciplinary Board.

When a Bar subcommittee serves on an attorney a certification that it has found misconduct, the lawyer may choose either of two forums for determination f the complaint. He may opt to have the matter heard by the Disciplinary Board or by a three-judge panel. In either case, he must make this election within 21 days. When Brown received his certification, he filed a demand for a three-judge panel. The Bar objected, stating that the demand had not been filed timely. When the parties were directed to brief this jurisdictional issue, the Bar withdrew its objection, conceding that the demand had been timely. However, the Board found that the Bar could not waive a jurisdictional defect; it kept the case and eventually imposed a one-year suspension on Brown.

Today, the Supreme Court reverses, remanding the case for a hearing before a three-judge panel. It explains that while the time limit is indeed jurisdictional, it only relates to personal jurisdiction, not subject matter jurisdiction. Personal jurisdiction is a personal defense and may be waived by, for example, a general appearance. (This is why objections to service of process in civil cases must be made by special appearance.) When the Bar withdrew its objection to the demand, it thereby made a general appearance, and that conferred jurisdiction on the three-judge panel. Since the Board was thereby deprived of jurisdiction, the suspension is vacated.

The other discipline case was decided on the merits. In Anthony v. Virginia State Bar, a three-judge panel imposed a public reprimand with terms, relating to public statements made by Anthony regarding a number of state and federal judges.

In the 1990’s, Anthony represented certain parties who were involved in a case that reached the Supreme Court of Virginia (Anthony was not involved in the appeal, but represented the parties in other matters). He learned from an anonymous phone caller that someone had sent an ex parte letter to one or more justices while the case was pending; he therefore wrote to the Clerk and asked for a copy. He never got one, despite this and several follow-up requests; the justices who received them had thrown them away, consistent with their practice when receiving unsolicited letters of this sort.

Normally, that would be the end of it, but this wasn’t a normal set of circumstances. Anthony filed suit in federal court, alleging that his clients’ opponents had conspired with the justices of the Supreme Court. In considering the defendants’ motion to dismiss, the federal judge assigned to the case wrote, in memorable language, “[t]he action is based on an alleged anonymous tip and has all the grace and charm of a drive-by shooting.” The complaint was dismissed, and the court sanctioned Anthony, his clients, and his co-counsel pursuant to Rule 11.

Before a hearing could be held to fix the amount of sanctions, Anthony fired again, this time filing a pleading that accused the federal judge of being hostile toward him and “unprofessionally” attacking him. That led the district judge to recuse himself; another federal judge was brought in from North Carolina to adjudicate the matter. (My readers who practice in federal court will discern from this development that the case was brought in the Western District. If Anthony had tried this in the Eastern District, the judicial response would likely have been, shall we say, less restrained.) At that hearing, Anthony explained that the sole support for his many allegations were the anonymous phone calls and a copy of the ex parte letter (which had fortuitously made its way into Anthony’s hands). Based on this record, and in consideration of the fact that this was not Anthony’s first experience with making accusations against judges, the North Carolina judge imposed sanctions of $14,000.

You know what’s coming next. Anthony filed a motion to supplement the record, in which he leveled new accusations against the North Carolina judge. If you see a pattern here, you’re right; whenever a judge ruled against Anthony, he simply added that jurist’s name to the queue. In the subsequent appeal to the Fourth Circuit, Anthony realleged his accusations against both federal judges and the Supreme Court justices. When the Fourth denied the appeal, Anthony wrote to Chief Judge Wilkins, in which he again made accusations of misconduct against the federal judges. For good measure, he accused the judges of the Fourth of “corruptly” entering orders.

As you know, there is one more appellate step left, and Anthony took it, petitioning the Supreme Court of the United States for certiorari. That petition contained now-familiar assertions of judicial misconduct at various levels. That petition was predictably denied, but Anthony had one more volley left; he filed a petition for rehearing, in which he spelled out the alleged misconduct in detail. This, too, was unavailing, and Anthony was out of appeals.

He was not, however, out of trouble. This disciplinary proceeding ensued, in which Anthony responded to charges that he violated Rule 8.2 by making statements about the judges that he knew to be false, or with reckless disregard for their truth or falsity. The Bar, as noted above, imposed a public reprimand with terms; today the Supreme Court affirms that holding. The court addresses only two of Anthony’s contentions, first finding that the burden on the Bar is not, as Anthony alleged, to prove the actual falsity of the statements; it merely had to show that he made them with reckless disregard for their truth or falsity. Given his admission in federal court that his only support was anonymous phone calls and an equally anonymous letter, the court easily rejects this argument.

Second, the court holds that Anthony is not, as he claims, protected by the First Amendment. Previous appellate rulings have established that the First Amendment rights of lawyers are circumscribed, more so than for nonlawyers, since attorneys have an obligation to the system of justice to avoid prejudicial publicity. This applies within the context of a given case, but it also applies, the court rules today, to statements made to impair public confidence in the judicial system in general. An attorney who makes allegations of judicial corruption will foreseeably erode the public’s impression of the integrity of judges, who after all cannot fight back. In this context, the court finds the imposition of discipline to be warranted.

Where does this case go from here? Well, since he raised a First Amendment argument, Anthony has at least a passable excuse for appealing to the Supreme Court of the United States, and no doubt he will do so. Nevertheless, in my view, this attorney has irretrievably damaged his effectiveness in every court in the Commonwealth. Making a public accusation of judicial corruption is something that, for obvious reasons, should only be done where one has compelling proof, and even then it should be seriously rethought. Instead of exercising this restraint, Anthony found himself in some very hot water because he went into this fight without any real ammunition.

Trusts and estates

The Supreme Court decides two cases today that involve claims against estates. In Crawford v. Haddock, a decedent, who had been married three times, made multiple promises to various family members (some in a court-approved separation agreement) to make them beneficiaries of life insurance policies insuring his life. After he died, his third wife, who was the sole named beneficiary in the policy, claimed the entire proceeds. The other family members opposed that request and sought imposition of a constructive trust on the proceeds.

The trial court declined to impose such a trust. The policy was a group plan offered by the Virginia Retirement System to public employees. The statutes creating that program include a provision that assets in the plan are exempt from “levy, garnishment, and other legal process.” This protects an employee’s retirement fund from attachment by creditors, but in this case, the trial court found that it also protects the assets from claims by other family members.

On appeal, the disappointed claimants pointed to an exemption in the general provisions of Title 51.1 (dealing with pensions) that permit such assets to be reached for enforcement of a child or spousal support obligation. This exemption, the court notes today, means that “at first glance. It would appear that a constructive trust could be imposed on the life insurance proceeds” for these claims.

But you know how it goes when a declaration begins with “at first glance . . .” The court finds that this general provision is superseded by the specific language that relates to the VRS group life insurance. In the chapter dealing with that program, there is no reference to an exception for the enforcement of support obligations. Since specific language controls over general language, the court finds that the trial court correctly refused to impose the trust.

The court addresses a prenuptial agreement in the context of the subsequent death of one spouse, in Dowling v. Rowan. There, a couple executed an agreement before their marriage in which they listed certain properties and agreed that each would waive any rights to the other’s property in the event of the dissolution of the marriage or the death of one spouse. Upon the death of the wife, the husband made a claim for a statutory elective share of her augmented estate, which he claimed included certain valuable assets. The trial court disagreed, finding that the waiver in the agreement extended to those assets; it also denied the husband’s request for an award of attorney’s fees for bringing the elective share litigation.

On appeal, the Supreme Court affirms. It holds that the plain language of the agreement expresses a waiver of rights to specific property; the husband’s claim to receive his elective share, family allowance, and exempt property from those assets is therefore denied.

The wife had also, during the marriage, received an interest in realty located in Peru, as a result of intestate succession. This property was not listed in the agreement, but the Supreme Court agrees that it is nevertheless exempt from the claims of the husband, based on Code §64.1-16.1(B)(ii). That section excludes form the augmented estate property that is received by intestate succession, to the extent it is maintained as separate property. The husband urged the court to apply a literal meaning to maintained, insisting that the realty could only be so classified if the wife had gone to Peru and performed actual maintenance on the property. The court unsurprisingly declines this invitation, finding the husband’s suggestion “manifestly absurd.”

The husband also asked the court to consider two life insurance policies to be eligible for him to claim a share of the estate. The wife had transferred those policies, three years before her death, to an irrevocable trust. The court finds that, pursuant to statute, the husband could succeed in this claim only by establishing that the value of the policies on the date of transfer was more than $10,000. But in the trial court, the husband had figuratively shrugged when it came to establishing that value; he asked the court to recognize the face value (that is, the death benefit) as the value of the policies, despite the fact that the insured was still alive on the date of the transfer. The court rejects this view, finding it to be “self evident that the value of a term life insurance policy upon transfer before death . . . is not the full death benefit.” Since the husband did not meet this burden, the court affirms this aspect of the decision as well.

Finally, the court affirms the trial court’s refusal to award the husband legal fees for instituting the elective share litigation. It finds that in bringing this litigation, he was attempting to establish his own right to property, not trying to vindicate or secure property for the benefit of the estate. In this sense, “[t]he only issues that need[ed] settling are those created by” the husband.

Criminal law

The court refines the doctrine of probable cause for a seizure in Brown v. Commonwealth, which involved convictions of drug possession.

For a felon, Brown was found in a fairly innocuous position: He was sound asleep, in the passenger seat of a parked car in an alley. A police officer approached the car and four men, who had been standing nearby, quickly dispersed. Instead of pursuing them, the officer went up to the car, where he found the sleeping Brown. He saw in Brown’s hand a partially burned, hand-rolled cigarette.

This officer had served for 19 years on the force, and had seen “over 100 hand-rolled cigarettes each containing a controlled substance.” He formed the belief that this one, too, contained something illegal. He tapped on the window to wake Brown up. When Brown awoke, the officer took the cigarette and smelled it, saying he did not believe it to be marijuana because “it smelled like tobacco.” Nevertheless, he submitted the cigarette and a folded five-dollar bill (which had been in Brown’s pocket) for analysis. The items came up positive for traces of cocaine and heroin, respectively.

As you will readily understand, the focus in the trial court was on a motion to suppress the evidence due to a lack of probable cause. The trial court found that the totality of the circumstances, specifically including the officer’s belief based on his training and experience, were sufficient to establish probable cause. Brown was convicted and given a 20-year prison term, with 16 ½ suspended. The Court of Appeals affirmed. But today, Brown’s luck turns; the Supreme Court reverses, holding that the circumstances known to the officer did not amount to probable cause.

The court first deals with two matters on the fringes of the analysis. It finds that the rapid dispersal of the four men nearby and the position of the car in the alley, while they might otherwise indicate potential criminal activity by Brown, were rendered meaningless when the officer found Brown asleep. Even if the other men had been engaged in criminal activity, a sleeping man could hardly have been understood by a reasonable officer to have been acting in concert with them. That left the hand-rolled cigarette.

In the past, the court has considered such evidence as a part of the totality of circumstances to justify a warrantless search. But the court notes that it has never found this circumstance, standing alone, to constitute probable cause. Many people hand-roll perfectly legal tobacco cigarettes, the court notes, and merely seeing such a cigarette in someone’s hand does not give an officer probable cause to suspect criminal activity. In analyzing this point, the court refers to a parallel circumstance involving film cartridges, which are often used to store drugs, but equally often hold nothing more sinister than film. The court thus holds today that the observation of material that can be used for legitimate purposes can only constitute probable cause when it is “combined with some other circumstance indicating criminal activity.”

Other criminal appellants did not fare as well as Brown. In McAlevy v. Commonwealth, the court confronts a challenge to a conviction for larceny based on the requirement of asportation, or removal of the stolen goods from their previous location. McAlevy evidently offered to sell to an unsuspecting stranger certain farm equipment, telling the stranger that the owner had authorized McAlevy to make the sale. The stranger agreed and paid McAlevy, who invited the purchaser to take the equipment away at his leisure. The purchaser did so, and McAlevy pocketed the purchase price.

Of course, McAlevy had no such consent. When the purchaser learned that, he did the honorable thing and returned the property. He also called the police.

In the ensuing grand larceny prosecution, McAlevy contended that he had not removed the stolen goods from their previous location. The trial judge wasn’t having any of that; he imputed to McAlevy the purchaser’s act of asportation, even though the purchaser had not known the goods were stolen. The Court of Appeals agreed with this approach and affirmed the conviction. Today, the Supreme Court, in a per curiam opinion, affirms on the reasoning of the trial judge and the Court of Appeals. In doing so, it cites precedential holdings that one who enlists the aid of an innocent or unwitting agent in the commission of a crime is himself a principal in the first degree. And arranging to have an unwitting agent commit a crime inculpates the original perpetrator. The court concludes, “the third party who carried away the property was acting under McAlevy’s direction and as his agent.”

The court also deals with a perceived sentencing quirk in Williams v. Commonwealth, involving two firearms convictions. Williams was convicted of two Class 6 felonies, and sentenced to five years (the statutory maximum) on one and 2 ½ years on the other. Pursuant to Code §19.2-295.2, the trial court tacked on a three-year period of post-release supervision, based on his good behavior for ten years. Williams did the math and found that he had, in effect, been sentenced to 10 ½ years for two Class 6 felonies. Since that period is more than the ten years he thought were his maximum, he appealed.

The court notes the inconsistency in Williams’ argument: “He would have us ignore the three-year term . . . when computing the length of the term permitted . . . but count the three-year term when calculating the total length of punishment imposed.” Since he can’t have it both ways, the court finds that even his longest possible term, 10 ½ years, is within the 13-year statutory maximum of sentence plus post-release supervision.

The court probably regarded this as one of its easiest decisions of the session (along with the McAlevy appeal), and could have taken any of several routes to reach the same conclusion. For example, it could have regarded the mandatory period of supervision as not being the equivalent of incarceration; it also could have pointed to the fact that the General Assembly specifically required this supervision, as evidence that the legislature did not intend it to count toward the maximum punishment found elsewhere in the Code. Nevertheless, Williams gets to study New Math at his leisure, while his room and board needs are met for him.

The final criminal decision of the day was nowhere near as clear-cut. Coles v. Commonwealth presented a challenge to a conviction arising out of a traffic stop. Two police officers stopped Coles after receiving word that the car he was driving had been stolen. The stop initially went without a hitch; Coles brought the car to a stop on a Norfolk street, with one police car behind him and another partially blocking an intersection in front of him. The policeman who had stopped in the intersection got out and directed Coles to give up, which he apparently decided to do, raising his hands in a show of surrender. The officer then walked toward the stolen vehicle.

But Coles had a change of heart; he put the car in gear and drove forward at a slow pace, “nudging” the police car at between five and ten miles per hour. The impact pushed it toward the officer, who had to jump back in order to avoid injury. Coles then drove away; he was caught 15 minutes later.

Based on the foregoing, you may or may not be surprised to learn that the charge against Coles was attempted capital murder. At the bench trial and in the Court of Appeals, he argued that the Commonwealth could never establish one essential element of that crime, namely, an intent to kill, beyond a reasonable doubt. The evidence, he contended, was equally consistent with an intention to flee the scene without causing death to anyone.

The trial court was unmoved by this argument; it convicted Coles and sentenced him to 50 years in prison, with 30 suspended. The Court of Appeals affirmed. Today, a sharply divided Supreme Court affirms, finding that a reasonable factfinder “could have rejected defendant’s theories and found him guilty of the charged offense beyond a reasonable doubt.” The court, as usual, affords substantial deference to the trial court’s factual findings, including the factual predicate for intent.

One unusual aspect of this case is that the majority and dissenting opinions (Justice Koontz, joined by Justices Lacy and Agee, form the minority) seem to have differing views of one crucial fact: Whether the officer was between the two vehicles or behind his police car. The majority clearly believes that the officer was directly in Coles’ path (slip op., at 8), while the dissent finds that the officer was “standing behind the police cruiser which Coles only ‘nudged’ . . .” My sense is that the resolution of this fact is dispositive of this case; there is an immense difference between driving at an unoccupied vehicle and driving straight for a human being. The dissent apparently reasons that the only way Coles could have “nudged” the car toward the officer is if the officer was behind it. The slow speed also apparently plays a part in the minority’s conclusion that the evidence does not establish an intent to kill beyond a reasonable doubt.