[Posted October 31, 2008] For the first time in a great while, the Supreme Court’s opinion day falls on the spookiest day of the year. The court hands down 18 published opinions, most of which are criminal appeals from the CAV, and one published order.

In three consolidated civil appeals, the court rules that doctors at the Eastern Virginia Medical School in Norfolk share the same fate as their medical brethren and sistren in Charlottesville – the court finds that the Norfolk doctors are not entitled to charitable immunity from medical malpractice claims. The court also rules that Botetourt County can’t tax a home for the aged that is operated by a church. You like dissents? We’ve got some pretty good appelate fistfights today. Read on:

One of the most important, and most anticipated, decisions from the September session arrives in somewhat anticlimactic fashion, as the court reverses three decisions that had extended charitable immunity to doctors at EVMS. By published order, the court determines that the Norfolk doctors in the three cases are not entitled to immunity, on the rationale set forth in February in U.Va. HSF v. Morris.

In February, the court had ruled that the Charlottesville doctors were not immune because their organization was essentially being run as a business, not a charity. Citing many of the same considerations, the court today finds that the Norfolk doctors’ organization is not materially different from the one three hours up I-64. Those considerations notably included the finding that an extremely small percentage of the doctors’ work, measured by their receipts, is actually charitable.

Today’s ruling is by order, which presumably means that the court felt that there were few distinguishing features of it that would be valuable as precedent in future cases. The lead case of the three is Mayfield-Brown v. Sayegh.

In Fruiterman v. Granata, the court takes up a “wrongful birth” claim by the parents of twin girls who were born with Down’s syndrome. The parents sued two obstetricians who had, they contended, failed to recommend an available early test to determine the presence of the Down’s chromosome in the fetuses.

The mother testified that if she had known about the test, she would have taken it, and if it had revealed the presence of the extra chromosome, she would have elected to terminate the pregnancies. She recovered a verdict for $4 million (later reduced to the medical malpractice cap of $1.6M). In addition, her husband got a verdict for $500,000 in his own right.

The trial court set aside the verdict in favor of the father, holding that he was not the obstetricians’ patient. But the court entered judgment on the modified verdict in favor of the mother. Both the doctors and the father got writs.

Today’s ruling from the Supreme Court goes wholly in favor of the doctors. The court reverses the judgment in favor of the mother, since a key element of proof in her case was missing. Specifically, neither of her medical experts testified that, if the test had been performed, it would have revealed the fetuses’ condition. Accordingly, the court rules that the mother cannot show that the doctors’ negligence was the proximate cause of her damages (which had included not only mental anguish but the cost of caring for the two girls, presumably over their anticipated lifetimes).

The ruling in the mother’s claim is based solely on the presence or absence of evidence, with no novel legal doctrines involved. If this were the only ruling in the case, there is a good chance the decision would have been by unpublished order. The father’s claim, in my view, is what gets this decision into Virginia Reports.

The court declines to adopt a bright-line rule that males can never become the patients of obstetricians. Instead, it rules that the evidence in this case does not show that the doctors took on the father as a patient. The court cites several cases that hold that a doctor-patient relationship can arise even where the doctor is primarily treating someone else, but it holds that the father’s limited involvement in this case doesn’t create such a relationship.

I haven’t seen the briefs, so I don’t know for sure what arguments the parties raised on a possible bright-line rule. I suspect that these doctors, and their many colleagues across the state, would have liked to see the adoption of such a rule, while fathers hoped to avoid one. After all, as this father told the jury, these girls were his children, too. In that sense, this ruling will be seen as a limited victory for the broader medical profession.

The final tort case of the day arises in the context of the Federal Employers’ Liability Act, specifically relating to injuries sustained by a railroad worker. The decision is Norfolk and Portsmouth Belt Line Railroad v. Wilson.

Wilson was injured when he struck his arm on a fence post that was leaning inward, toward the railroad track, while he was riding on the side of a boxcar. He brought to trial copies of statutes from 38 other states, each providing minimum side clearance requirements of eight feet or more. This fence post was closer to the track than eight feet. That adds up to a national consensus, Wilson’s expert testified.

Sound convincing? It probably was to the jury, which awarded Wilson $330,000. The trouble here is that Virginia isn’t one of those 38 states; our fair commonwealth doesn’t have a minimum clearance statute. Today, the Supreme Court rules that the admission of all those statutes constituted reversible error. Statutes that don’t apply to a given circumstance aren’t admissible, and the trial court can’t allow the introduction of inadmissible evidence. Of course, there is always the problem of showing that the error was material – that it likely affected the outcome of the case. The court deals with this problem nimbly, by pointing out that a statute, “as the considered judgment of the elected representatives of the people, properly commands the respect of jurors.” (Sometimes I wish I could write as clearly as Senior Justice Russell, who authors today’s opinion.) That means that it was likely misleading and prejudicial. The case is accordingly sent back for a new trial.

. . . But before that trial starts, here are a couple more evidentiary rulings, the court adds. (Today’s opinion is entirely about the admission of evidence, and will have application beyond the narrow field of FELA.) Despite the fact that Wilson won’t be able to introduce the 38 statutes on retrial, his expert will get to testify that there is a national consensus for an eight-foot minimum. (He just can’t mention the statutes as a basis for that opinion. If for some reason the railroad inadvertently asks him on cross what his factual basis is, then he can fire away, and all of the court’s reasoning on the first point will be out the window.) Finally, the court rules that Wilson can introduce evidence of other sections of track where fences protrude within the 8’ space, even though Wilson wasn’t hurt there.

This last ruling is very important for tort law as a whole, and may prove to be the hidden gem in this opinion. In most instances, evidence of the defendant’s negligence that does not proximately cause a plaintiff’s damages will be inadmissible; certainly not if it’s offered to prove primary negligence. But the court reasons today that such evidence can be admitted to show the railroad’s “notice, or constructive notice, of the existence of the dangerous condition that caused Wilson’s injury.” If I’m reading that right, then the body of admissible evidence in tort cases just got a boost of rocket fuel. For example, in a suit against a city or town for a sidewalk defect, the plaintiff will no longer be limited to proving that the municipal defendant knew about the particular defect where plaintiff fell; she can introduce evidence of lots of other sidewalk defects, and justify that by contending that it proves that the municipality knew, or should have known, about this sidewalk problem.

There’s one other potential limitation of my comments above. According to the opinion, FELA creates a duty upon employers to provide a safe workplace. That duty might not be coextensive with the general duty on behalf of, say, the owner of property where an invitee will travel. I emphatically am not a FELA jock, so I won’t profess to know the precise limits of this ruling’s application.

The court declines to rule on one other issue, to which statement I will append, “alas.” The railroad had argued that the trial court should have excluded one of Wilson’s experts because of an inadequate disclosure under Rule 4:1(b). The court finds that this question will be rendered moot on retrial, because the railroad now knows exactly what the expert will say; in fact, it has a nice transcript of his testimony.

I added the “alas” because I saw this as an opportunity for the court to tone down the furor that has arisen in the trial courts in the wake of John Crane, Inc. v. Jones, 274 Va. 581 (2007), where the court affirmed a trial court’s decision to exclude two experts whose testimony as not properly disclosed before trial. In my opinion, trial courts (and let’s be fair about this – litigants, too) have taken a much broader view of the John Crane ruling than is appropriate, to the point that some litigants insist that no word that isn’t in the pretrial disclosure can be introduced into evidence. That’s forcing lawyers to craft novellas in which they disclose every possible thing that an expert might possibly say at trial. That isn’t the law; the rules require that a party disclose “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” They do not require a party to “disclose” every bloody thing an expert might say. But that position is becoming commonplace, especially in certain parts of the commonwealth. I earnestly hope that the court will have another opportunity to address this situation, if only to invoke J. Alfred Prufrock: “That is not what I meant at all. That is not it, at all.”

[Let’s see any of your OTHER appellate web sites quote T.S. Eliot in the body of a case analysis. Hmph.]

Domestic relations
In a case that will be of significant interest in this field, the court approves the invocation, for the first time in Virginia, of something called the Fugitive Disentitlement Doctrine. The case is Sasson v. Shenhar, and involves a great deal of parental squabbling over a very unfortunate little boy.

The little boy’s father is a Mexican citizen; his mother enjoys dual citizenship here in the States and in Israel. The family has at times lived in Florida (where the boy was born, so he’s a US citizen, too), in Switzerland, and in Spain. Marital discord arose when the boy was two or three years old.

Today’s opinion recounts a dizzying array of facts and legal petitions filed in two different jurisdictions, in Spain and here in Virginia, where the mother and the boy landed when he was 3½. I won’t try to describe or even list all of those petitions here, in keeping with my strong preference for brevity, and my desire to focus these analyses on the precedent-setting rulings and on tips for practitioners. (Ominously, today’s 25-page opinion, including 12 full pages describing the facts and the procedural posture, begins with the assurance that it recites “only those facts necessary to explain the context in which this appeal arises,” leading to the scary conclusion that the full set of facts is actually more complicated than this.) Instead, I’ll jump right to the main issue, which is the doctrine I mentioned above.

The Fugitive Disentitlement Doctrine is apparently a creature of the common law; it’s not a statute. It enables a court to dismiss an appeal under certain circumstances without reaching the merits, on a premise similar to that underlying the unclean hands doctrine in equity. A court may employ the doctrine where three circumstances are present: (1) The appellant (note: the person seeking the aid of the court) is a fugitive; (2) his status as a fugitive is connected to the current proceeding; and (3) dismissal of the appeal “must be necessary to effectuate the policy concerns underlying the doctrine.”

As you will readily imagine, this doctrine will prove particularly useful in domestic relations cases, and this one is a good example. The father was dissatisfied with the outcome of a ruling in a Virginia circuit court. At his residence in Spain, he resisted efforts to serve him with process on a show cause order, since he flatly refused to obey the order. When he sought to appeal a ruling, the Court of Appeals dismissed his appeal by employing the doctrine, finding that he should not be permitted to invoke the protection of the courts while simultaneously refusing to obey their directives. (Indeed, in one telling passage in today’s opinion, the Supreme Court approves the CAV’s determination that the father “is unwilling to submit to the jurisdiction of Virginia’s courts unless he receives a judgment in his favor.” Now, that would be a clever way to avoid losing.)

The father contended that the CAV should at least have considered his contention that the courts did not have jurisdiction over the question of where his son should live. The Supreme Court finds that the Court of Appeals correctly invoked the doctrine, and affirms the dismissal of the appeal. This is strong stuff, particularly where there is an assertion of no jurisdiction. Accordingly, this case will be cited often by appellees who sense that their appellants are flouting trial court’s orders even as they seek appellate review.

Criminal law
Of the 17 published opinions released today, 12 arise in criminal cases. That continues a trend that many close observers of the court (and even some casual bystanders) have observed for a couple of years now. Once upon a time, the Supreme Court would decide three to five criminal cases in a given session, with the other 20 or so coming in civil cases. One result of this trend is that it’s taking a lot longer for civil cases to mature for appellate decision; criminal cases have precedence on the Supreme Court’s docket, just as they do in trial courts.

In Ortiz v. Commonwealth, the court tackles a number of evidentiary and procedural issues. Ortiz was convicted of the rape of his step-granddaughter a child well under the statutory threshold of 13 years (the girl was between five and eight years old in the times charged in the indictments).

The evidentiary rulings in today’s opinion are relatively straightforward. The court rules that the trial court acted within its discretion in admitting evidence of other bad acts, since that evidence served to show the relationship between the parties, and to show that the defendant’s explanation for the events (as originally described to police) were untrue. The court also affirms the trial court’s decision to exclude evidence of prior sexual activity on the part of the victim (in part because it appears that there was no genuine prior sexual activity) and to exclude a recanted accusation of another person. Finally, the court predictably affirms the trial court’s decision to permit the child to testify after satisfying itself that she could do so. In my view, it is extremely unlikely that the Supreme Court would ever second-guess a trial court judge who has personally spoken with and evaluated a minor witness in this regard.

The real fireworks in today’s opinion are in the procedural rulings. A couple of tantalizing issues are procedurally defaulted. For one, the defense had asked the trial court to appoint a doctor to tell the jury about the “suggestibility” of children when sexual abuse allegations are involved, and to permit that doctor to testify for the defense. The trial court denied the request to appoint the doctor, so Ortiz went ahead and hired him. That was mistake #1; the Supreme Court finds that this hiring mooted the request for appointment. The trial court also refused to allow the doctor to testify, ruling on the record that the proffered testimony was within “the realm of common experience of the jurors who are highly educated in this jurisdiction.” Personally, I think this ruling would have attracted a great deal of appellate scrutiny; but Ortiz inexplicably limited his assignment of error to the trial court’s failure to appoint the doctor. The assignment mentioned nothing at all about the rejection of the evidence, so the Supreme Court won’t consider that issue.

The court also refuses to consider Ortiz’s sufficiency-of-the-evidence challenge. The defense made a motion to strike at the conclusion of the prosecution’s case in chief, but failed to renew that at the close of all the evidence. That, the court finds, irretrievably consigns the issue to the jury.

There is one other significant issue – actually, two related issues – that the court addresses today. During the trial, the Commonwealth moved to amend the indictments to change the dates involved. The original indictments charged Ortiz with acts that occurred over a total period of one year, calendar 2003. But after the prosecution had rested, and during Ortiz’s case in chief, the court permitted the indictments to be indicted to cover a total of three years (2003 through 2005). The court also refused Ortiz’s request for a continuance to address the new time frames.

When I reviewed the assignments of error in this case a few days ago, these two related issues seemed to me to be the most likely to secure reversal. I figured that most trial courts would either refuse the requested amendment, or else permit it and liberally allow a continuance. Today, the Supreme Court affirms these rulings, too (thereby affirming the conviction, having exhausted the other assignments of error). In the first instance, a statute permits the amendment of indictments during the trial to conform to the evidence, as long as the amendment “does not change the nature or character of the offense charged.” These amendments changed the dates charged, but beyond question, they did not change the nature or character of the charges.

The other issue, that of a continuance, is a bit tougher for the prosecution (but as I’ve already told you, the Commonwealth wins this battle, to). Continuances are consigned to the trial court’s discretion, and by the same statute should be granted “if the court finds that such amendment operates as a surprise to the accused.” This last clause is where the Supreme Court hangs its collective hat in affirming. The defense offered no specific showing of surprise; Ortiz’s attorney merely argued that “my remedy at that point would be that I should at least be given some continuance time.”

Not enough, the court rules today. The practice tip here is that while you can probably get a continuance under most circumstances, it isn’t enough to ask for one just because you figure you have a right to it. This ruling requires a defense attorney to make at least some particularized showing of surprise or real (not feigned) prejudice before you’re entitled to a continuance, even when the charges are amended in the middle of the trial.

The next criminal case, Milazzo v. Commonwealth, involves a conviction for felony hit and run. A police corporal pulled Milazzo over one day in 2006 for speeding. Evidently Milazzo had not gotten the memo that those Southside jurisdictions are a string of speed traps. In any event, he stopped his car, but soon decided that he really, really didn’t want to sign the summons. He accordingly “became belligerent, put his car in gear, and sped away.”

The corporal gave chase, of course, and the pursuit inspired Milazzo into some creative driving, right out of The French Connection. Milazzo blew through red lights and stop signs and swerved across double yellow lines. Needless to say, he neglected to heed the posted speed limit. He eventually made his way onto I-85, where another police officer joined the pursuit.

In his efforts to escape, Milazzo tried to take an exit ramp, but spun out. The two officers maneuvered their cars so that one was in front and the other behind Milazzo’s car. At this point, in the vernacular, they got him.

Well, no; they don’t got him. Milazzo put his transmission in drive, and rammed one police car; he then slid it into reverse, and bashed the other. He needed but one more collision with the police car in front to make enough room to drive away. Unfortunately, probably because of the damage to his front and rear, he “was unable to drive away from the scene,” so he took off on foot. Police nabbed him a few hours later.

From the looks of this situation, you’d think that Milazzo had a bundle of outstanding felony warrants, and was trying to avoid getting sent to The Big House. But no; today’s opinion merely recites the several parting gifts he received from the circuit court – convictions for eluding police (the felony variety), destruction of property (ditto), reckless driving (finally, a misdemeanor), and felony hit and run. He elected to appeal only the last of these charges.

The basis of Milazzo’s appeal is clever, but in my mind was destined to fail: He argued that the hit and run statutes only apply to a driver who is involved in an “accident,” and his striking the police vehicles was no accident; it was on purpose. Today’s Supreme Court decision doesn’t come right out and say, “Oh, gimme a break” (Senior Justice Stephenson, who wrote the short opinion, is much too reserved to even consider that kind of language, so I’ll supply it for him). But the court agrees with a 1979 Rhode Island decision on the same facts, holding that, in evaluating a charge like this, “it makes no difference whether the collision was intentional or unintentional.”

In December 2007, the Court of Appeals handed down a published opinion in White v. Commonwealth, where it held that a period of good behavior, that was part of a first-offender deferral, had no fixed expiration date. Thus, when the trial court continued the case from the original probation review date (to give White an opportunity to pay costs), the good-behavior requirement got expended as well. That mattered, because shortly after the original review date, White backslid into drug use. The Court of Appeals accordingly affirmed the revocation of her first offender status, and her two-year prison sentence. You can see my earlier analysis of the case here; you’ll need to scroll down nearly to the bottom of the page.)

Today, in White v. Commonwealth, the Supreme Court turns that ruling upside down. It unanimously finds that the trial judge’s sentencing comments placed a limit on the duration of her term of good behavior. Specifically, the trial judge had placed her on probation “until . . . December 21, 2005.” It then went on, “Between that time and now, Ms. White is on first offender status, [and] will be of good behavior . . .” That ruling puts a specific time limit on the period of good behavior. When the December 2005 date arrived, and White had done everything except pay her court costs, the court continued the matter six months“to check the status of payment” of those costs. The December 2005 order said nothing about extending the period of good behavior.

Perhaps the primary lesson from this case is that where an order sets a specific time period for good behavior, there will be no implied period on top of that. The Commonwealth had argued that White’s good behavior requirement should be read into all grants of preferential treatment (including first offender proceedings); the court rejects this, because where a specific provision is inserted in the order, there is no reason for the law to imply a different one.

George v. Commonwealth involves the rare picture of the prosecution of a physician. This one is for embezzlement, and Dr. George couldn’t have picked a worse crime victim.

The funds Dr. George is charged with embezzling constituted withheld payroll taxes for his employees. The principal issue in the case is whether the funds, once withheld, belonged to the employees, to Dr. George, or to the Commonwealth. The court rules today that, by virtue of a statute that creates a trust in favor of the tax man, they belong to the Commonwealth from the moment they’re withheld. That matters because Dr. George had argued that the funds were his employees’ (or his), and so the relationship between the good doctor and the Tax Commissioner was that of debtor/creditor, not, . . . well, embezzler/embezzlee. Dr. George contended that you can’t be indicted for embezzlement just because you owe someone a debt; if that were the case, we’d have overflowing debtors’ prisons around here.

The court turns to a US Supreme Court case that interpreted a “virtually identical” federal statute in the US Tax Code. In that case, the Big Supremes had held that the employer “does not hold an equitable interest in property he holds in trust for another.” Based on that federal case, the Virginia court holds today that the funds do indeed belong to the tax man immediately, so Dr. George can be prosecuted for embezzling them. The court also rejects an argument that the statute should only be applied in the civil context, not as the basis for a criminal prosecution.

When this case was before the Court of Appeals in January, that court found one of the doctor’s arguments to be defaulted based on the contemporaneous objection rule (Rule 5A:18 in the CAV; Rule 5:25 in the Supreme Court). Today the Supreme Court reverses that finding, determining that the argument of whether there was a fatal variance between the indictments and the evidence had, indeed, been argued with reasonable specificity below. But this is an empty victory; having placed the issue back on the appellate table, the court today finds on the merits that the doctor is wrong. It holds that there was no such variance, so his convictions stand.

The lesson of this case is plain: Not paying your taxes is bad, but not handing over withheld payroll taxes is worse.

An age-old inference in burglary cases gets a bit of a tweaking today in Vincent v. Commonwealth. Vincent used a pole to break one of the glass doors to a retail store. He then went inside, stayed for four minutes, shoved a shopping cart into a rack of clothes, and left. As he did all this, he passed cash registers without even trying to open them.

We know all this because the store’s security camera caught him on tape. What it did not catch him doing, however, was actually stealing anything. He was arrested several hours later, but police found no stolen merchandise on him. And the store’s last inventory was a year back, so there was no reliable way to tell if anything was missing from the store.

Nevertheless, he was indicted for statutory burglary. That offense requires proof that the defendant entered the premises with the specific intent to commit larceny. Now, proving what was on someone’s mind almost always requires resort to circumstantial evidence, and this is no exception. The trial court, sitting without a jury, elected to employ the permissive inference that Vincent had that intent because there was no evidence of a contrary intent.

It occurs to me that one problem with this approach is that it requires the defendant to produce affirmative evidence of intent, thus (unconstitutionally) relieving the prosecution of proving an essential element of the offense beyond a reasonable doubt. (The US Supreme Court has held that a criminal prosecution can’t include evidentiary presumptions against the accused, since that would conflict with the constitutional presumption of innocence. This was a permissive inference, which is just a shade on this side of the line, instead of the forbidden presumption.) Vincent raised this argument on appeal, but the court never squarely addresses it, based on my reading of the opinion.

Instead, the court cited a decision from earlier this year, Velasquez v. Commonwealth, 276 Va. 326 (2008), in which it disapproved a comparable jury instruction. (Remember, the Vincent case was tried to the court, not to a jury.) The court reversed Velasquez’s conviction because the jury had been instructed that, “[i]n the absence of evidence showing a contrary intent, you may infer that a defendant’s unauthorized presence in a building of another was with the intent to commit rape.” The court held that this instruction constituted improper comment on the evidence by the trial court, in that the judge shouldn’t be telling the jury how it should, or even could, interpret the evidence.

Where does that leave us with Mr. Vincent, who has been patiently waiting all this time for us to resolve this issue? It means that the trier of fact can infer the defendant’s intent “from the surrounding facts and circumstances.” A directive language goes, this is fairly noncommittal, but the court utilizes it to reverse the conviction. It finds that there is no evidence to suggest any intention on the part of Vincent to steal anything; he could just as well have gone in there with the intention of banging things around for a while and then leaving. In fact, that’s just what the video showed him doing. Since there is no evidence to support an inference of intent to steal, the court reverses the conviction and dismisses the indictment.

Virginia ’s appellate courts have confronted cases involving principals in the second degree with surprising regularity recently; the Supreme Court decided two and the Court of Appeals another in the month of September alone. Today we get another one, Brickhouse v. Commonwealth. This one’s a charge of possession of cocaine with intent to distribute.

Portsmouth police officers came to Brickhouse’s home looking for two men for whom they had a warrant. They found Brickhouse outside; she cheerfully told them that she knew why they were there, and escorted them inside. The two men weren’t there, but a whole lot of evidence was; they found a digital scale, drug packing material, 45 grams of cocaine, and more. In return for her eager helpfulness, the police charged her with possession with intent, because all this stuff was out in the open in her house.

Brickhouse testified at her trial that she didn’t have exclusive possession of the house; among other people, her boyfriend (who was one of the men the police were originally looking for) had a key, and he came and went from time to time. From the evidentiary summary, that fact apparently wasn’t in dispute. But the trial court still found her guilty of being a principal in the second degree, since (in the court’s words) she “knew these folks were using her house essentially as a drug house, either to stash or to sell.” The Court of Appeals was even more forceful, finding that she had “actually provided her home as a venue for the operation of a drug distribution scheme.”

Tough words, those; but the Supreme Court washes them all away today, ruling that the evidence did not establish that Brickhouse knowingly possessed the drugs, or that she was a principal in the second degree while others possessed them. The Commonwealth had no direct evidence of her possession, or of an overt act by her that contributed to the commission of the crime. As such, the circumstantial evidence had to do. But it didn’t in this case; the court rules that the circumstantial evidence did not “exclude every reasonable hypothesis of innocence.” The evidence certainly demonstrated that she knew of drug activity, but that’s not enough to show that she’s the one who permitted the house to be used for that purpose (since others “possessed” the house with her). The conviction is accordingly reversed, and the charge is dismissed.

The court interprets a statute that forbids a person from taking indecent liberties with a minor with whom he “maintains a custodial or supervisory relationship” in Sadler v. Commonwealth. Sadler was the coach of a girls’ softball team; the 17-year-old victim was one of his players. At trial, the Commonwealth proved that Sadler went to her home one day while she was alone, kissed her, and caressed her legs and buttocks. This didn’t happen during a team-related activity; the nearest one of those was a trip to a tournament three days later.

Sadler argued at trial that he couldn’t be convicted of this particular crime, which is a felony, because he wasn’t engaged in the “custodial or supervisory” aspect of the relationship at the time of the events. The trial court disagreed and convicted him; the Court of Appeals affirmed by published opinion in December 2007. Today the Supreme Court makes it three strikes for Sadler. The heart of the court’s ruling is that the statute doesn’t require that the parties be engaged in the supervisory activity at the time of the offenses; it merely requires the existence of the relationship. That makes perfect sense to me. There will naturally be pressure, implied or express, upon a juvenile athlete to impress the coach, and that creates the opportunity for abuse by the person who has the power. The fact that the abuse doesn’t occur during a game, or at least during a tournament, doesn’t lessen the pressure, or the degree of culpability.

Britt v. Commonwealth is an interesting analytical issue that may nevertheless have limited application in other cases. It’s about establishing the value of stolen goods in a grand larceny charge, and the decisive fact relates to the asportation requirement.

Asportation, my readers will recall, is the act of taking possession of goods and moving them some distance, however slight. In your garden variety take-‘em-and-run larceny, asportation is accomplished when the bad guy runs away with his ill-gotten stuff. So how, you may wonder, does the asportation requirement possibly relate to the value of the items taken?

Here’s how: Britt didn’t get away with everything. According to the evidence, he (and possibly an accomplice) broke into a store at night and grabbed boxes of cigarettes. When police arrived shortly thereafter, they found Britt and the accomplice in a parking lot across the street, holding a bag that contained unopened packs of cigarettes. Evidently they had forgotten the “run” part of “take-‘em-and-run,” but the arrival of the police reminded them; the two took off. Britt’s attempt to flee was, alas, unsuccessful. The police went inside the store and found several more cartons of cigarettes strewn on the floor.

Cooperating with the police, the store owner added up the price of all the cigarettes – those recovered from Britt and those found on the floor of the store – and announced the total: $410.59. Since that’s more than the $200 threshold for grand larceny, Britt was charged accordingly.

At trial, Britt’s lawyer objected to the introduction of that total, which was never segregated into the amount found on Britt and the amount found on the floor inside. The trial court let it all in and convicted Britt. The Supreme Court accepted the case to consider whether the evidence was sufficient to prove a value greater than $200.

Now you know why asportation matters in relation to value. Britt argued that he can’t be charged with the value of the boxes that were on the floor, because he didn’t “asport” them. The Commonwealth responded that the crime was complete as soon as the thieves tried to grab them, even if they didn’t succeed. (Foolish burglars don’t get a break just because they don’t bring a big enough loot bag.)

In resolving this issue, the Supreme Court notes that a crook takes an item, “for the purposes of larceny, when [he] secures dominion or absolute control” over it, even if that’s for a momentary period of time. The evidence here didn’t establish that fact beyond a reasonable doubt. It’s just as possible, for example, that the crooks were after a specific brand of smokes, and merely knocked some other brands (in which they had no interest, being loyal to their brand) onto the floor in their haste to get outside (no doubt so they could light up, since I assume the store was a no-smoking zone). Absent any evidence of the value of the property actually taken, the court finds the evidence insufficient to prove that that value was more than $200. The court thus reverses the conviction, and remands for a new trial on petit larceny, if the Commonwealth still wants to pursue the matter.

Today’s opinion in Hasan v. Commonwealth takes up the question of just how much information the police can get from a suspect before they have to read him Miranda warnings.

Late in May 2004, an armed robbery occurred in Newport News. The police department issued a notice describing a vehicle that was suspected in connection with the crime, and pretty soon, a couple of officers spotted a car that matched the description perfectly. Since armed robbery is not exactly jaywalking, they called for backup before making the stop; the officers wanted to avoid a shooting, and an overwhelming show of numbers is just the thing to deter a bad guy from making a rash decision.

The driver of the suspect vehicle stopped it in response to the officers’ lights and siren. Using a loudspeaker, the officers directed the driver to get out of the car, presumably with his hands in view. He did so, leaving a passenger inside the car. By this time, there were at least six, and possibly eight, police officers on the scene; some of them had pistols or shotguns drawn. With this much of a show of force, this guy isn’t going to try anything funny, unless he’s suicidal.

Fortunately for everyone, he still loved life; no shots were fired during the encounter. But the police patted him down for weapons and then handcuffed him. One of the officers then asked him if there were any weapons in the car. The driver responded truthfully that there was a handgun under the driver’s seat. The police then directed the passenger to step out; that, too, was achieved peacefully, after which the police went in and got the gun.

Guess what? The driver was a convicted felon, and wasn’t supposed to possess a firearm. Guess what #2? He wasn’t the robber after all; the police had stopped the wrong guy. But they still charged him with carrying a concealed weapon, and possession by a convicted felon.

The issue in this case is whether the officers should have Mirandized the driver before asking him about weapons. The trial court overruled his motion to suppress, and thereafter allowed him to enter a conditional guilty plea, preserving his right to appeal the suppression ruling. Today, that approach bears fruit for the driver; the Supreme Court reverses. The trial court and the Court of Appeals had held that the question about weapons didn’t take place during a custodial interrogation. I haven’t gone back to look at the CAV’s opinion, but this doesn’t look like a close call to me. How many people, handcuffed and surrounded by police officers with guns drawn, would have the presence of mind to ask, “Gee, fellas; am I free to leave?”

Despite this manifestly sensible ruling, a voice in the back of my mind (that place where common sense often resides, unacknowledged and unloved) kept pestering me. Doesn’t this fact pattern fit within the officer-safety exception? Aren’t police officers entitled to make sure they aren’t going to get shot, before they go through the formality of the Miranda process?

Evidently there is a similar voice in the back of Justice Lemons’s mind (although his may not be as neglected as mine); today’s opinion, which he authors, notes that since this is a conditional guilty plea, we aren’t yet at the stage of evaluating the officer safety exception. The driver now gets to go back to the trial court and decide whether he wants to withdraw that plea and take his chances on an acquittal. The subtext of today’s opinion is that the driver will still have to climb the officer-safety mountain if he hopes to shake loose of the charges entirely, and he might just decide not to chance that.

At least, I think that’s what it says. The opinion specifically states that the denial of the motion to suppress was erroneous. That part is clear. That means that the statement that led to the discovery of the gun will not be admissible; today’s opinion deals specifically with the driver’s words. And while the motion to suppress was comprehensive, dealing with the statements and their fruit, the one and only assignment of error in the case deals exclusively with those words, not the evidence the police found as a result. Today’s ruling doesn’t say that the gun itself won’t be admissible, nor that police won’t be able to testify about where they found it. Presumably the driver can move the trial court to suppress those matters, too, under the Wong Sun doctrine (“fruit of the poisonous tree”), at which time the trial court can take up the public safety exception and the inevitable discovery rule, which the Commonwealth had also urged in this appeal. Both of these arguments are premature, if I’m reading today’s opinion correctly.

The court today provides important guidance on the use of an anonymous tip to support a DUI arrest. Harris v. Commonwealth turns on a couple of razor-thin judgment calls, and produces a 4-3 split in the court.

Personally, I almost never leave home on New Year’s Eve. There are way too many crazy people on the roads, each figuring “I’m okay to drive” despite the seven spiked egg nogs, or Jell-O shooters, or good old fashioned beers in his belly. This policy diminishes my status as a party animal, but it also ensures that I will spend New Year’s Day watching outdoor NHL hockey on television at home, instead of recovering from injuries in a hospital somewhere. (This year, it’ll be the Red Wings and Blackhawks from Wrigley Field.)

On New Year’s Eve 2005, while I was thus safe at home, a Richmond police officer received word from a dispatcher to be on the lookout for a suspected drunk driver. The dispatcher, acting on an anonymous tip, mentioned that the suspect was driving a green Nissan Altima southbound in the 3400 block of Meadowbridge Road. The report said that the driver had on a striped shirt and that the car had a license plate of Y8066.

The officer went to the area and saw a green Altima traveling south on Meadowbridge; the license number was YAR-8046. Close enough, thought the officer, and fell in behind the car to observe from a distance.

From spending nine years prosecuting drunk drivers back in the 90’s, I recognize that, sooner or later, they’re going to screw up and do something that’ll justify lights and siren. This officer figured as much, too; even though the car was being operated steadily and within the speed limit, the driver was likely to make a mistake before too long. Sure enough, he saw the driver slow down as he approached an intersection, even though he had the right of way. Down the road, the driver also activated his brakes 5o feet away as he approached a red light. He stopped for that light without incident. When the light turned green, the driver proceeded through the intersection, then pulled off to the side of the road and stopped. Cue the lights and siren; the officer initiated a traffic stop. The driver had slurred speech, watery eyes, and a strong odor of alcohol. Bingo.

DUI prosecutions are always a big deal, but this one was especially so because of the driver’s two priors. That would make this one a felony. The driver accordingly hired himself a good lawyer, and that lawyer moved to suppress, claiming that the traffic stop violated the Fourth Amendment’s prohibition of unreasonable searches and seizures. The trial court denied this motion, and the Court of Appeals affirmed that ruling.

There are two components to the analysis of the background for this stop. The first is the anonymous tip; the second is the officer’s observations of the driving. The court first considers the tip; it finds that there is no indication at all about how reliable this particular tipster is, because no one knew who he or she was. This, evidently, was a truly anonymous tip. Such a person, the court finds, does not put his own credibility at issue, and can never be prosecuted for providing false information; he is free to, as the majority notes today, “lie with impunity.”

Still, there is a calculus that courts employ in evaluating such information. If the tip comprises merely descriptive information that any observer could notice – “he’s driving a green Altima” – then it’s not of much use. If it contains predictive information – “he will appear at the Elbow Room at 9:15 pm tonight, carrying a black bag” – then the courts give that greater credence (assuming he really does show up on time and carrying the bag, of course). The majority finds that the information given is merely descriptive, and notes that the informant “provided information available to any observer, whether a concerned citizen, prankster, or someone with a grudge” against the driver.

Turning to the officer’s observations, the majority finds nothing wrong with the way the driver operated the car. It finds that the drivers’ acts of slowing down before entering the first intersection, and in braking upon seeing a stop light 50 feet away, in no way indicated that he was driving while intoxicated. And pulling over to the side of the road and stopping, while it “may be subjectively viewed as unusual,” doesn’t corroborate the tip, either. The court holds that the information available to the officer, in consideration of the wholly unknown reliability of the informant, did not create a reasonable suspicion of criminal activity. The court accordingly reverses, holding that the motion to suppress should have been granted.

There is, as I mentioned above, a dissent. It’s written by the court’s most prolific dissenter, Justice Kinser, and she is joined by Justices Lemons and Millette. The primary focus of the dissent is on two narrow distinctions. First, she argues that the tip did include at least some predictive information – the fact that the vehicle would be traveling southbound on Meadowbridge Road, near the 3400 block. That “prediction,” she notes, proved true. Second, she maintains that the officer’s observations should have been evaluated in view of his training and experience. The dissent prefers to evaluate the tip and the officer’s observations together, instead of separating them for independent analysis. Doing so, Justice Kinser concludes, leads to the conclusion that there was a reasonable, articulable suspicion that justified the stop and the subsequent arrest.

The dissent has one last shot to fire. It notes that, unlike certain possessory offense (such as possession of drugs or a concealed weapon), the presence of a drunk driver on the road is itself an exigent circumstance, a “qualitatively different level of danger” that justified police intervention to prevent harm to the community. (Specifically, she’s looking out for all those people who are more venturesome than I am on New Year’s Eve.)

Practitioners should keep in mind that this case does not create a hard-and-fast rule that anonymous tips cannot justify a traffic stop. Both of today’s opinions stress the importance of the officer’s personal observations of how the driver operated the vehicle. And if the driver had, indeed “screwed up,” as so many of the drivers I prosecuted did, then he would likely have faced a united court affirming his conviction today. Even if an officer’s attention is brought to a given vehicle by a wholly unreliable tip, still, if he sees objectively erratic driving, he can institute a valid traffic stop.

Where a victim of a sexual assault orders an attacker to leave her home, does the law permit the jury to regard his subsequent departure as guilty flight from the scene? That’s the principle issue in Turman v. Commonwealth. Turman either did, or didn’t (depending on which account you believe) rape his girlfriend in her Fairfax County apartment.

Since the jury convicted him, we’ll go with the victim’s version, in which after the attack she picked up a cordless phone and ordered him to leave, or “I’m going to call the cops . . .” While he dawdled for a time, and even lunged at her and tried to grab the phone away, he eventually did leave.

At trial, the jury got an instruction that was similar to one found in the venerable VMJI:

“The court instructs the jury that if a person leaves the place where a crime was committed, or flees to avoid detection, apprehension or arrest, this creates no presumption that the person is guilty of having committed the crime. However, it is a circumstance which you may consider along with the other evidence.”

Right at the outset, the Supreme Court notes that this model instruction is an incorrect statement of the law (and for all my fellow grammarians, the ruling has nothing to do with the gruesome misuse of which instead of that in the second sentence). The court points out that unless the perpetrator of a crime is caught at the scene, he will virtually always leave at some point; but his departure has nothing to do with any permissible inference of guilt. It’s only if he’s fleeing to escape capture or detection that this provision is relevant.

In the end, the court reverses not because of this anomaly in the instruction, but because “[t]he record is simply devoid of more than a scintilla of evidence that Turman left the victim’s apartment after the sexual acts had occurred because he sought to avoid detection, apprehension, arrest, or criminal prosecution.” Accepting the victim’s version of the facts, Turman plainly left because she ordered him out of her apartment. The court rejects an argument by the Commonwealth that this constituted harmless error (that ruling will almost – almost! – always fail when a jury is instructed incorrectly), and remands for a new trial.

The final criminal ruling of the day (well, only if you line them up the way I just did) is Moore v. Commonwealth. This one is decidedly not unanimous.

Police officers know that traffic stops produce mixed results. Sometimes they’re fairly routine, and sometimes you get a bonanza. When a HenricoCounty police officer stopped a motorist on February 15, 2005, he hit the prosecutorial jackpot.

There wasn’t much wrong with the car, really; the thing that caught the officer’s eye was the inspection sticker. Perhaps you figure the sticker was expired; but you’d be mistaken. This one was perfectly valid. But it was peeling off the windshield somewhat. To most civilians, that’s no big deal; there isn’t even a traffic law that proscribes “Improperly Peeling Inspection Sticker,” as far as I know.

But police officers have a different frame of reference, and a vastly different body of experience, than the rest of us. This officer testified that in the previous six months, he had stopped about 50 cars with peeling stickers, and that as many as 35 of those had stickers that had been peeled off a different car and sort of taped onto the current car’s windshield. Now we can see why this might be suspicious. While in pursuit, the officer learned from computerized registration records that the car was owned by a nearby auto rental agency.

The officer stopped the car to investigate the sticker. When the driver rolled down the window to speak, the evidence blossomed before the officer’s eyes like a garden in May. First there was the unmistakable odor of marijuana. When the driver got out of the car, the officer looked around inside and found the evil weed, plus cocaine, heroin, and digital scales. And then there’s the gun . . .

Like our previous guest star, Hasan, from three cases up, this driver already had a felony conviction in the bank account, so he wasn’t supposed to possess a gun. Prosecuted for that and for possession of the cocaine with intent to distribute, he moved to suppress the evidence, contending that a peeling sticker was no good reason to stop a car. The trial judge disagreed, after which the driver entered a conditional guilty plea.

In the Court of Appeals, the driver’s lawyer committed a sin that many other lawyers would never even recognize. He framed the question presented in that court as follows: “Did Officer Bryan have probable cause to make a traffic stop of the vehicle being driven by Moore on the sole basis that he observed a valid inspection sticker was not totally affixed to the windshield of the vehicle?” Actually, with one exception, that’s a very good question presented; it’s specific, and completely apprises the court and the appellee of the precise issue that’s being appealed. The problem is that the words probable cause have no business being there; the applicable standard for a traffic stop is a reasonable articulable suspicion, which is a lower standard.

Figuring that this wasn’t such a big deal, the Commonwealth simply rephrased the QP in its brief, correctly stating the legal standard, and then arguing the case on that basis. And that’s the basis on which the CAV panel decided the case, reversing the ruling and giving the driver a victory. But the Commonwealth got en banc review. And this time, the full court had a nasty surprise for the driver (and his lawyer).

After an otherwise uneventful briefing and oral argument to the full court, the en banc court decided, sua sponte, that it could not reach the merits of the issue, because the petition for appeal did not set forth the correct legal standard for analysis. Four judges dissented in two separate opinions, raising a “have a heart” argument that the court could and should go ahead and reach the merits of the case that everyone had understood it to be (and that both sides had fully briefed and argued).

The Supreme Court granted a writ, and now we have two tough issues. The first is whether the CAV should have done what it did, by refusing to consider arguments that didn’t line up with the QP. The second constitutes the merits of the case: Is a peeling but otherwise valid sticker enough of a reason to pull someone over?

Believe it or not, the first issue is a lot thornier than the second. A majority of the Supreme Court finds that the mis-phrasing of the QP was not jurisdictional, and that the Court of Appeals erred in not going ahead and addressing the issue. The majority holds that when the Attorney General chose to correct the phrasing of the QP, and then went ahead and discussed the case using the correct standard, it “relinquished any reliance the Commonwealth might have made on Moore’s violation of” the rule requiring QP’s.

Now, that being done, the Supreme Court could have remanded the case back to the CAV with a direction that it decide the properly-framed issue. Instead, the court today goes ahead and decides the matter itself, ruling that the officer lacked a reasonable suspicion at the time he pulled the car over. The key fact in this analysis is that the officer learned that the car was rented; while the owner of a car might well intentionally play around with an inspection sticker, a guy who rents a car is unlikely to know anything about the inspection status of the vehicle. The court therefore reverses and remands the case.

. . . but not before Justice Lemons, joined by Justice Kinser, files a forceful dissent that chides the majority for whipsawing the Court of Appeals. Back in April, the Supreme Court decided Jay v. Commonwealth, 275 Va. 510 (2008). In that case, the court held that the CAV’s practice of dismissing (as opposed to affirming) appeals in which the appellant cited no statutory or caselaw authority in support of an argument, was incorrect. The court held that the CAV could still treat the issue as waived if it chose to do so (hint, hint); but the omission of legal authority was the equivalent of not citing cases in alphabetical order in the table of citations – not good, but not jurisdictional, either.

The dissent points out that misstating a question presented is a vastly different default than simply arguing without citing a case. Justice Lemons writes, “In this case, the Court of Appeals not only has done what this Court routinely does [in evaluating assignments of error], it has also followed our direction to do likewise.” (That sound you may have heard just now in downtown Richmond was several CAV judges shouting, “Hear, hear!”) He then cites a couple of cases in which the Supreme Court has reversed the CAV for essentially rewriting QP’s – exactly what the Supreme Court mandates here. He concludes this section of the dissent, “We should not reverse the Court of Appeals for failure to properly interpret [Rule 5A:12] as we did in Clifford, and then here reverse it again when it has done so.”

Ouch! These pointed arguments seem compelling to me. Just as assignments of error conclusively establish the playing field in the Supreme Court (and cannot be changed, even if the appellant wants to), the same thing goes for questions presented in the Court of Appeals. As much as the facts of this case might merit reversal – I fully agree that the officer didn’t have a valid Fourth Amendment basis for this traffic stop – it’s still the appellant’s responsibility to get the proper issue before the appellate court.

Now, if you’re eager to try out the majority’s holding by fudging on an assignment of error in the Supreme Court, be my guest. Please just let me know in advance when the oral argument will be, so I can go and watch the court dance on your head for playing footsie with the appellate pleadings. [Translation: Don’t try this at home. Regardless of this procedural ruling, you must shape your appellate pleadings with care, and you should not count on similar benevolence from either appellate court if you get sloppy.]

Sexually violent predators
Virginia ’s relatively new Sexually Violent Predators Act is a magnet for controversy. Its premise is that some prison inmates who are approaching their mandatory release date may constitute such a danger to the community of sexually violent conduct, that they should be held in civil custody after their prison term ends, for psychological or psychiatric treatment. Civil libertarians view the law with skepticism (I’m trying to be understated here) as authorizing incarceration to prevent someone from possibly committing a crime in the future. They reason that if that were permissible, then kleptomaniacs cold be locked up for life, if only to prevent them from stealing again and again.

Courts are not blind to the Act’s incongruity with our notions of individual liberty. From the cases I’ve seen in the appellate sector, I think trial judges are reluctant to order the confinement of potential predators absent absolutely compelling circumstances. Many evidentiary rulings may go the way of the inmate, simply because, although this is a civil proceeding, it has definite liberty consequences.

The trial court judge in Commonwealth v. Garrett may have been leaning that way when he evaluated the prisoner’s motion in limine, seeking to exclude testimony from the Commonwealth’s expert witness. That expert had concluded that Garrett was a suitable candidate for the Act’s provisions. She considered, among other things, three charges of having carnal knowledge with a minor that had been lodged against him while he was a juvenile. In each case, the Commonwealth took a nolle prosequi of the charges. But the expert, a licensed clinical psychologist, took those charges into account as unadjudicated bad acts, as such doctors often do. She concluded that Garrett would be a danger to children, based on a diagnosis of “Paraphilia . . . Sexual Abuse of Child.”

The trial court decided that using those charges, which were in fact the only offenses involving juvenile victims of which Garrett had ever been accused, was improper. The court therefore ruled, after a series of hearings, to exclude the doctor’s testimony in its entirety, since it rested on a faulty foundation. The Commonwealth sought and got a writ on an interlocutory basis to consider the ruling, which would obviously have a decisive effect on the trial.

The Supreme Court rules today that the exclusion of the expert’s testimony was proper, since the justices all agree that the mere allegations in the complaint, subsequently withdrawn, could have no probative value in this context. But curiously, the court leaves the door open for the doctor to “rehabilitate” her testimony if she can find a way to support her diagnosis without relying on the three charges.

There’s another important aspect of today’s ruling, and the Commonwealth wins this one. Garrett had argued that he had a property right to have all of his juvenile records expunged after a certain time. The trial court agreed, but the Supreme Court reverses that ruling today. Here’s what happened:

The last hearing on Garrett’s juvenile record was in December 1985, right after he turned 18. State law at the time required that those records be destroyed twenty years after the last hearing date. In 1990, the law was changed, deleting the 20-year period and requiring instead the destruction of the records when the juvenile turned 29.

A precious few months before Garrett hit the magic 29th birthday, the General Assembly struck again; in 1996, it deleted the former provision and required that, thenceforth, all juvenile records were to be maintained. The Supreme Court rules today that Garrett did not have a property right in that expungement, so when the legislature changed the rules on him, he had no due process right to have them destroyed. Accordingly, whatever records the Commonwealth can dig up about the juvenile charges will be fair game in the trial – assuming, of course, that the Commonwealth can show more than just the nolle prosequi. If that’s all they’ve got, then they won an empty victory on this point.

Hearken, my readers, for today we have a rare sighting among the flock of opinions: A sexy taxation case. Today’s ruling is Virginia Baptist Homes v. Botetourt County, and involves the question whether a retirement home operated by Virginia Baptist qualifies as tax-exempt.

In Virginia, there are two ways in which a given entity can achieve tax-exempt status for its property. Those two methods are by classification and by designation. Classification is, I suspect, by far the more common; the General Assembly sets forth certain guidelines, and any entity that meets those guidelines gets the tax benefit. Designation is where the legislature picks out a particular entity and specifically states that that entity is tax-exempt, usually as long as it continues to do what its charter says it will.

Virginia Baptist has for years operated three retirement homes in Virginia, and it got its tax-exempt status by designation. In 1976, the General Assembly passed an act that provided that Virginia Baptist was exempt from personal and real property taxes as long as any such property is used for “the purpose for which [Virginia Baptist] is organized.”

Ten years ago, Virginia Baptist formulated plans to build a fourth retirement center, this one in Botetourt County, near Roanoke. The new facility, known as The Glebe, looked to be a pretty swanky place; residents would pay an entry fee ranging from about $100,000 to $250,000, and would have to pay between $1,700 and $3,600 monthly on top of that as maintenance. And these fees are just for the privilege of living there; if a given resident needs assisted living or nursing care, those fees are extra. It’s pretty clear that most people aren’t going to be able to wipe their feet on the doormat of this place, much less move in there.

The county looked at the setup and decided that the purpose of The Glebe wasn’t the religious and benevolent stuff of which Virginia Baptist’s tax exemption was crafted; it accordingly sent out a nice, hefty tax bill, commensurate with the value of the property. The Glebe protested, and we’re off to court.

The trial court considered a host of factors, including the nondenominational aspects of the village, and concluded that this facility had gone beyond Virginia Baptist’s religious and benevolent purposes; it accordingly ruled that the property was subject to taxation.

Evaluating this issue on appeal, the Supreme Court rules that “[w]hile this rigorous examination may be necessary in a case involving tax exemption by classification, it is not the correct inquiry in a case involving tax exemption by designation.” In this case, the court finds, the only question is whether the property is being used as a retirement community for the elderly on a nonprofit basis.

And for a majority of the court (the opinion is written by Justice Lemons), that’s the end of the inquiry. Beyond dispute, the property is being used as a retirement home. And the trial court didn’t find that it wasn’t being operated on a nonprofit basis. Since the county didn’t assign error to that failure, it cannot now maintain that the use is actually for profit. The court accordingly reverses the circuit court’s ruling, and affords tax-exempt status to the property.

Justice Koontz, joined by the chief justice, dissents. Agreeing that the property is operated on a non-profit basis, the dissent takes issue with the finding that it is used for a benevolent or religious purpose, as the legislature’s 1976 act specifies. (Remember, if the property falls outside the bounds of this designation, then it isn’t automatically tax-exempt anymore.) It isn’t benevolent, the dissent concludes, because the trial court made a well-supported finding that residents would pay 100% of the costs of their care at the facility. That leaves “religious” as the sole remaining ground for exemption (and indeed, the majority bases its ruling on the “religious” prong).

In this appeal, this is where the action is. The dissent points to the trial court’s factual findings, based on things like its open door policy with regard to religious beliefs, the lack of a religious requirement for employees, and the fact that the chapel is basically there for use on a voluntary, unorganized basis for meditation, instead of for organized religious services.

I have taken a bit more time than normal with this case today (as you can imagine, my opinion days are full of intensive reviews of opinions, with little time to mull over the rulings), and my sentiment on this question is with the dissent. The majority rules, as I noted above, that “the only question to be answered is whether The Glebe, in fact, operates a retirement community for the elderly on a nonprofit basis.” If that were indeed the “only question,” then the property would indeed be tax-exempt, as it is clearly operated for the elderly on a nonprofit basis. But the dissent is right: There has to be a religious component to this test, and the majority, after having placed the question in the simple terms I just quoted, purports to find, without citing any factual support, that it is “used exclusively for a religious purpose.” The trial court didn’t discern any such purpose, and neither can I.

The Supreme Court decides relatively few rate cases arising in the State Corporation Commission, but we get one today: Potomac Edison v. SCC. This one deals with Potomac Ed’s request to recover some of its costs for power it had to purchase, in the wake of the “functional separation” of its power generating, transmission, and distribution assets, to comply with 1999 statutory deregulation requirements. Basically, the utility was required to dismantle its former vertical monopoly, in which it had previously generated power, then distributed it, all “in-house.” It achieved that objective by selling its generating facilities to an affiliate. While that type of sale might not satisfy you, it satisfied the SCC, so things went fine for a while.

Potomac Ed negotiated a deal with the SCC staff, by the terms of which deal the company agreed to generate a certain minimum amount of power, to satisfy its customers. If it needed more power, it could buy it from the affiliate for a limited time, and thereafter on the open market. But if it took a financial hit in doing so, it could apply to the SCC to recover some or all of those extra costs by a rate increase.

I’ll fast-forward to the time when the problem arose: Potomac Ed found itself in need of a rate increase in 2007. It asked for a 26% increase (which would have been a – ahem! – real shock to its customers), representing its projected $45 million (later reduced to $37M) in extra costs. The commission considered the request, listened to input from its own staff, and approved an increase of $9½ million, exactly the amount the SCC staff had recommended.

Where I come from, the difference of $27 million is what we describe as “an amount worth appealing,” so Potomac Ed headed to the Supreme Court. Today, the court affirms the commission’s decision, since it constituted the exercise of legislative power that had been delegated to the SCC by the General Assembly. As such, the court reviews the decision only for abuse of legislative discretion, which (trust me on this) is a very lenient standard of review. Potomac Ed had evidently asked the court to review the decision as a question of law (which would move to the opposite end of the standard-of-review spectrum, de novo review), but the court was having none of that. The SCC’s decision effectively constituted ratemaking; and while the commission has legislative, executive, and judicial powers (it’s the only agency I know of that has all three governmental powers), the setting of rates is emphatically legislative.

The court finds evidentiary support in the record for the SCC’s ruling, so the order setting the rates for Potomac Ed is affirmed.

I offer my condolences to the author of today’s opinion, Justice Keenan, a very nice lady who somehow managed to be unlucky enough to be randomly assigned to write the opinion in this thoroughly dry appeal. She deserved a better fate.