SCV Opinion & Analysis

[Posted October 31, 2013] Today emphatically is not a slow news day at Ninth and Franklin. While the Supreme Court hands down just eight published opinions, there are two of major news interest. The court reverses a ruling that VDOT unconstitutionally delegated the power to tax in fashioning an agreement for the Portsmouth Midtown Tunnel. The court also reverses a judgment against the Commonwealth arising out of the Virginia Tech massacre.

In addition to those, the court decides an appeal involving cameras in the courtroom, in the context of the Huguely murder trial in Charlottesville; resolves an impossibly complicated procedural mess in a criminal appeal; and ponders the legal effect on an appellant of endorsing an order, “I ask for this.”

After reading today’s batch, I can say that this is possibly the most fascinating set of opinions, handed down in a single day, in my memory.

Public-Private Partnerships
Down in this humble corner of the Commonwealth, the biggest decision of the day is Elizabeth River Crossings v. Meeks, involving the imposition of tolls on the Downtown and Midtown Tunnels that run between Norfolk and Portsmouth. In order to address serious traffic congestion, the Commonwealth contracted with Elizabeth River Crossings, a private company, for the construction of a parallel tube at the Midtown. To finance the project, the contract allowed ERC to impose tolls on both tunnels, starting early in 2014 and going forward 58 years. Note that the tolls would be collected before the second tunnel is built; that process will take several years.

Some citizens who use the tunnels filed suit, seeking among other things a declaration that the contract was an impermissible delegation of the power to tax. They pointed to the escalating toll structure and a guaranteed rate of return for the company; noted that Downtown Tunnel users were being tolled for construction of a separate facility; and charged that the imposition of toll rates was a legislative function. A local judge agreed last year and enjoined the collection of the tolls. The Supreme Court swiftly granted a writ and expedited docketing of the appeal.

Today the justices reverse, handing a complete victory to VDOT and the company. The court first rules that the tolls are not taxes but user fees, in part because they provide a benefit in exchange for a payment. The court notes that tolling the Downtown Tunnel is permissible because the project does call for certain improvements to that tube, albeit not as visible as building a second tunnel. It also relies upon the legislature’s characterization of the two tunnels, separated by a few miles, as nevertheless part of the same “facility.” The court cites several legislative pronouncements to that effect, going back to the 1950s.

The court next turns to the question, raised in the citizens’ cross-error, of whether the contract is an impermissible delegation of legislative power. This is the most detailed portion of today’s opinion, and in it, Justice Millette sets out that the General Assembly may lawfully delegate unto VDOT the authority to contract, including contract that set toll rates. The court goes on to authorize agreements that “empower” private companies to participate in the setting of such rates, as long as VDOT has ultimate control over them. Today’s opinion will warrant careful study to determine the boundary between a delegation and an empowerment.

Justice McClanahan differs with the majority on this part of the opinion, though not on the ultimate outcome. She points out that the trial court never ruled on the “empowerment” question, and the issues as framed in the assignments of error and cross-error dealt only with the delegation to VDOT, not further delegation or empowerment as relates to the company.

I haven’t taken the pulse of the entire Commonwealth here, but my sense is that this ruling will be roundly condemned here in Tidewater, and is being cheered in Richmond and other parts of the Commonwealth. Tolls are enormously unpopular around here, and critics of the contract have argued that these tolls will further balkanize this region because they erect a barrier to free transit between the cities here.

In that vein, there’s one line that sticks out broadly in today’s opinion. The trial judge had ruled that there is no reasonable alternative route to the two tunnels for those who want to travel between Norfolk and Portsmouth. To be sure, there are alternatives (the Gilmerton Bridge and the High-Rise Bridge on I-64), but the judge scoffed at the suggestion that those alternatives were reasonable.

A quick aside on the standard of review: Because this case was decided on reciprocal motions for summary judgment on agreed facts, the justices’ review was de novo, since the only issues were legal ones. But the judge’s finding that the Gilmerton and High-Rise alternatives weren’t reasonable is, I suspect, more factual than legal.

Here’s how the Supreme Court resolves this significant issue:

First, there are reasonable alternative routes of passage between Portsmouth and Norfolk available to users of the Downtown Tunnel and Midtown Tunnel. Reasonable alternatives include the Gilmerton Bridge and the High Rise Bridge, neither of which impose a toll on users.

And that’s it. Trust me – this part of the opinion is going to inspire howls of protest in Tidewater. It’s worth mentioning that of the seven justices who decide this case, none live in Tidewater; Justice Goodwyn, who lives here, didn’t take part in the case, and Justice Millette, the author of the majority, is on the other side of the James. Consequently, our local citizens are not going to be happy about the fact that seven people who live elsewhere are telling the locals whether a given alternative is reasonable or not. (A random survey of seven Tidewater commuters would be quite likely to reach, unanimously, the opposite conclusion from the one the justices announce today.)

Another aspect of the opinion caught my eye. One of the citizens’ arguments was that the contract abridged the police power of the Commonwealth, since it gives the contractor enforceable rights, including the right to increase tolls. The court rejects this argument for several reasons, but one in particular is noteworthy. The court observes that under the terms of the contract, if the contractor claims contract damages, those moneys only get paid if the General Assembly chooses to appropriate funds for that purpose. In other words, the legislature has (at least technically) the power to ignore the damages provision of the contract, leaving the contractor with no meaningful remedy.

How’s that grab you? The Commonwealth is not immune from contract liability, but here’s an opportunity to make the state’s financial obligations just vanish. But the court notes that if the legislature were to exercise this prerogative, there would be – oh, I’ll go ahead and say it: There would be hell to pay, starting with major damage to the state’s credit rating. But despite the fact that this option is extremely unlikely to be exercised, the fact that it’s there undercuts the argument that the police power is being given away.

So starting early next year, you’ll have to pay to drive through these two crossings of the Elizabeth River. Will this inspire more tolling elsewhere in Virginia? Maybe; the justices have cleared away any constitutional infirmities, and future projects need only follow the ERC blueprint in order to avoid a similar challenge. But the consequences of an affirmance would have been dramatic; I don’t know how the court could have affirmed without gutting the Public Private Partnership Act.

The other major news story in today’s batch of cases in Commonwealth v. Peterson, which arises from the Virginia Tech shootings in 2007. Two families sued the university, contending that in the wake of two early-morning dormitory shootings, school administrators failed to warn the university community about the danger. Two hours later, their daughters were among 31 shooting victims at an engineering building on campus.

A jury awarded each family $4 million. The trial court reduced these awards to $100,000 each, the limit of liability under the Virginia Tort Claims Act. The university appealed, and the justices agreed to review the judgment.

Today, the court unanimously reverses and directs final judgment for the Commonwealth. The court assumes, without deciding, that a special relationship existed between the students and the school. It then goes on to rule that under the circumstances of this case, even that special relationship didn’t give rise to a duty to warn the university community of a danger.

There are two significant aspects of this ruling that merit mention here. First, the relationship of the parties is that of business owner and invitee. Under those circumstances, the owner owes a duty to warn only if he knows of an “imminent probability of harm.” The trial court had instructed the jury to find in favor of the families if they met a lesser standard of proof, showing only a reasonably foreseeable harm.

Instead of remanding for a new trial using the correct legal standard, the court goes ahead and evaluates the case using the lower standard. It’s here that the court finds that the families didn’t reach even this lower threshold; hence the reversal and final judgment.

Second, the court sets out at some length the situation from the viewpoint of the school’s administrators – what they knew about the dormitory shootings and what they suspected. The court rules that the administrators

believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others.

Under these circumstances, the court finds, it was not essential to warn the community immediately; the administration felt that there was no reasonable probability of further harm.

This holding is noteworthy because the families had urged the jury to find that the administrators had ample cause to perceive that the dormitory shooter was still a threat. That urging was based in part on the crime scene at the dorm, and on private correspondence, including a notice to the Governor’s office well before the later shootings, about a “gunman on the loose.” The jury found in favor of the families on this issue, but today, the justices rule that “Based on the limited information available to the Commonwealth prior to the shootings in Norris Hall, it cannot be said that it was known or reasonably foreseeable that students in Norris Hall would fall victim to criminal harm.”

Media law
There’s no truth to the rumor that the reason why Virginia law disfavors cameras in the courtroom is because there were no cameras recording George Wythe’s trials, and Virginia is notoriously slow to change. Believe it or not, the Code actually permits the broadcast of a trial if a judge chooses to allow it. We get an explanation of how that process works in Virginia Broadcasting Corp. v. Commonwealth.
The underlying litigation was emphatically newsworthy; a Charlottesville TV station sought to cover the sentencing phase of the prosecution of George Huguely, IV, the U.Va. athlete who was convicted of murdering his girlfriend. The trial judge convened a hearing on the station’s request, receiving evidence and entertaining arguments from the prosecution and defense (both of whom wanted to keep the cameras out of the proceedings) and the station. The court eventually refused to allow the broadcast, and the station appealed.

We start with an issue that will interest appellate practitioners: Can the Supreme Court touch this case? The statute on broadcasting court proceedings provides that the trial court “may solely in its discretion permit the taking of photographs,” etc. If it’s solely in the trial judge’s discretion, what business does an appellate court have reviewing the case?

There are several other “sole discretion” provisions in the Code, and in some of those, the legislature has expressly stated that a given finding is not subject to judicial review. This statute doesn’t say that, so the justices rule that appellate scrutiny isn’t foreclosed.

Next: What’s there for the appellate court to do? The object of the original proceeding was to compel the judge to allow the broadcast. That sentencing hearing is now long in the past, so a reversal with direction to allow the broadcast would be futile. The parties didn’t address this mootness issue, but the court must. Fortunately for those of you who want a definitive answer, the court goes ahead and decides the merits, since this is one of those issues that are “capable of repetition, yet evading review.” If the courts didn’t decide these issues, even retroactively, the matter would never be adjudicated, and litigants and trial courts would get no guidance.

At this point, the court turns to the merits, and here, the standard of review takes over. I’ve theorized that the standard of review is case-dispositive in 80-85% of all appeals, and you could make a plausible argument for 100%. Since the statute gives the trial judge discretion, the appellate courts have to review that decision for abuse of discretion, which is quite deferential.

Understandably in this context, the justices today decide that the trial court acted within its discretion in cutting off the broadcast of the sentencing hearing. The lower court had expressed concern over the effect of the cameras on youthful witnesses, and wanted to avoid tainting a potential jury pool in the decedent’s family’s separate civil suit against Huguely. That’s a good enough explanation under this standard.
The devil within me cannot be restrained from posing a forlorn wish that someday, arguments in the Supreme Court will be televised. A quick check of the Weather Channel’s website reveals no massive cold fronts approaching Hell, so I probably shouldn’t hold my breath on that one.

Criminal law
Malicious wounding is a much more serous charge than simple assault, and it correspondingly requires proof of far more: “intent to maim, disfigure, disable, or kill.” In Burkeen v. Commonwealth, we find out whether a single punch with a bare fist can be enough to sustain a conviction of the more serious offense.

It all started, implausibly enough, with a pool cue. The victim had spent an evening using his $230 cue in its intended fashion and had stepped outside as the watering hole closed for the night. The assailant approached him and asked to see the cue, asking him how much it had cost. The victim told him. The assailant replied, “You’ll take $200.”

I’ve negotiated the sale of small items (happily, none of them contraband) on occasion, but never on quite these terms. The victim tried to take the cue back, at which point, without further ado, the assailant clobbered him with a single punch to the face.

Previous cases on malicious wounding have involved repeated blows, and the assailant essentially asked for a ruling, as a matter of law, that a single blow with a fist can’t rise to the level of malicious wounding. The justices aren’t biting on that one; the court unanimously affirms a Court of Appeals ruling that these facts were sufficient to establish the felony. The court points to the victim’s substantial injuries, including an orbital blowout fracture of the bone beneath the eye. It also notes some of the assailant’s subsequent acts: He only hit the victim once because someone else intervened; the Good Samaritan was rewarded with several punches to the head. The assailant also bragged that he was in the Army and could bench press 200 pounds. (Memo to assailant: I’m a 55-year-old desk jockey, and I’ve benched well over 300. Choose your trash talk with more care.)

In sum, this assailant did enough to convince a finder of fact that despite the single punch, he intended to do more than token damage to the victim. That makes it a felony.

Appellate procedure
I don’t know where to begin in Amin v. Henrico County. There are so many procedural twists and turns that I almost need to draw you a flow chart. But being an appellate lawyer – we don’t need no stinkin’ visual aids – I’ll paint my pictures with words.

Let’s start with the charge: carrying a concealed weapon, in violation of a county ordinance. That ordinance incorporates certain state statutes into the county code. This dynamic inspires our first short digression: Why would they do that? Why make something a county offense when it’s already in the state code? The answer, in French, is “Cherchez le lucre” (“Look for the money”). When an offense is written up under the county ordinance, the fine is payable to the county.

Okay, back to that incorporation ordinance: It hauls Title 18.2, Chapter 7, Article 2 into the county-ordinance fold. Unfortunately for the county, that’s the article on DUI charges. What they wanted, but didn’t get, was Title 18.2, Chapter 7, Article 7, involving weapons.

I’m not sure if anyone noticed this misfortune in the trial court, but somehow, the defendant got convicted. He appealed to the CAV, but didn’t raise this issue; instead, his only assignment was a simple one: “The trial court erred in denying the motion to suppress.” The Court of Appeals initially refused his petition for appeal, but eventually got around to granting a writ on a petition for rehearing.
This is when the train really jumps the tracks. If you’re an appellate lawyer, I recommend Dramamine at this point. The appellant filed his appendix designation, in which he added a new assignment of error, this one pointing out the problem with the incorporation ordinance. Really, he did; I can’t make this stuff up.

This gave the CAV panel something unusual to consider. Since the defendant was convicted of a non-crime, his conviction was void ab initio, so he can challenge it at any time. But since he hadn’t included this assignment in his petition for appeal, the panel felt that it didn’t have jurisdiction over that issue. And since you can’t finesse jurisdiction unless you’re SCOTUS, that meant that, however meritorious the argument was, the appellate court didn’t have the ability to reach it.

Onward to the Supreme Court of Virginia, where a writ is granted and poor Justice Lemons is tasked with straightening out this tangled mess of procedural confusion. The first problem he spies is a new one, originating in the Supreme Court. Here’s the appellant’s assignment of error:

That the Court of Appeals erred in denying that the conviction is void as a matter of law as there exists no Henrico County Ordinance 22-2 incorporating Virginia Code Section 18.2-308 pursuant to the ends of justice exception of Rule 5A:18 by applying Rule 5A:12. Relief is requested here pursuant to Rule 5:25.

Experienced appellate advocates will spot the problem immediately: The assignment identifies the CAV’s “denying the conviction is void,” but the panel never did that. The CAV ruled instead that it couldn’t reach the issue. Today’s majority rules that while the assignment “could have been more artfully drafted,” it’s good enough to get him in the door, since it’s clear that he’s challenging the incorporation ordinance. On to the “merits.”

The justices today begin by agreeing with the CAV panel that under Rule 5A:12, it can disregard any assignment that isn’t properly included in the petition. But the justices note that orders that are void ab initio can be attacked at any time, in any manner. They hold that a basic right like that can’t be infringed by a rule of court (a premise that I’ll come back to below), since the Due Process Clause is involved here.

Next, the justices agree with the CAV panel that a court has to acquire jurisdiction over an issue before it can adjudicate that issue. And the Supreme Court has ruled that the failure to include proper assignments of error can deprive an appellate court of jurisdiction over an appeal. But the justices hold here that the inclusion of one proper assignment – that thin one that I quoted above, about the motion to suppress – was enough to give the CAV jurisdiction over the case. At that point, when the appellant raised a collateral challenge to his void conviction, it was within the CAV’s power to adjudicate it.

At this point, I expected the justices to rule on the “merits” of the incorporation ordinance, and probably dismiss the charge. But no; the court remands to allow the Court of Appeals to take this seemingly perfunctory step. In the past, when the only remaining issue is a legal one, I’ve seen the justices go ahead and resolve it, rather than waste the step of remand. (For a memorable example, see Bethel Investment v. Hampton, from back in 2006.)

Justice Powell dissents, maintaining that the assignment in the Supreme Court wasn’t sufficient to give the Supreme Court jurisdiction. You have to admit, she’s got a point; it’s never been acceptable to assign error to a ruling that the lower court didn’t actually make. But this conviction is, as far as I can tell, facially invalid, and the justices aren’t going to allow a conviction like that to stand.

I promised you a lagniappe about the tension between a void judgment and rules of court. When I read that part of the discussion, I understood the ruling, but I wondered how far this doctrine could be extended. Let’s assume that this principle is that no rule of court can deny someone the right to have a void judgment overturned. How about a litigant who chooses to ignore Rule 3:2(a)? That’s the one that says that litigation is initiated by the filing of a complaint. Let’s suppose, just for fun, that this appellant had walked into his local circuit court, stood up from the gallery, and orally asked the trial judge to vacate his conviction. No written complaint; no numbered paragraphs; no nothin’, but an oral request.

You can see where this gentle descent into absurdity could lead. And that’s why I’m torn about this opinion. I emphatically want this conviction to be tossed; no one should stand convicted of a non-offense. But the means by which this legal issue got resolved – the entire tortuous path, leading up to today’s published opinion – makes me think back to Judge Roy Bean, who could do what he felt was right because the nearest appellate court was so far away as to be a non-factor. There were a lot of mistakes made here – and I mean a lot of mistakes – so for the right thing to happen in the end is at least a passably good outcome. If only we didn’t have to concern ourselves with all those procedural detours.

One last point, for you appellate practitioners: We have, on page 6 of today’s slip opinion, a ruling by the Supreme Court that a bare-bones assignment of error (“The trial court erred in denying the motion to suppress.”) is legally sufficient to give the appellate court jurisdiction to decide the merits. While I advocate a reasonable level of detail in crafting assignments, the court holds today that when you undertake to “lay your finger on the error,” you don’t have to do so with microscopic precision. That, at least, will be a comfort to many appellate litigants.

Res judicata
Rhoten v. Commonwealth is a sexually-violent-predator proceeding that has a couple of interesting procedural components. The appellant was convicted in 1989 of aggravated sexual offenses. He got lengthy prison terms, with portions suspended. He got out of prison eight years later, but found his way back because of parole violations.

When he was approaching his second release date, the Commonwealth sought to commit him as a sexually violent predator. But the trial court ruled against the Commonwealth in that 2005 proceeding, and he was released.

You can guess what happened next – the prisoner returned to being a prisoner yet again, due to another parole violation. When his next release date approached in 2011, the Commonwealth again sought to civilly commit him.

In response, the prisoner moved to dismiss on res judicata grounds, claiming that he had already won this very case. (It’s res judicata and not double jeopardy because SVP commitments are civil, not criminal.) When the trial judge denied that, the prisoner decided to roll the dice. In what must have looked like Christmas for the Commonwealth’s attorney, the prisoner stipulated that he was an SVP, and that the Commonwealth’s petition had been timely and properly filed. Basically there was nothing left for the trial judge to do except enter an order of commitment so the prisoner could appeal.

And that’s what happened, of course. There are two issues on appeal. The first is whether the prisoner abandoned his objection by stipulating to the legitimacy of the Commonwealth’s case. The court finds that he didn’t, because of the premise behind Code §8.01-384. That’s the statute, enacted to countermand Lee v. Lee (1991), that says you don’t have to keep objecting again and again once you’ve argued a matter and lost the ruling. The prisoner made his position on res judicata clear, and never abandoned it, so the appeal can proceed.

The second question is the application of res judicata – which doctrine applies, and whether it bars the new proceeding. As for the first question, keep in mind that Rule 1:6, promulgated in 2006, changes previous caselaw on res judicata. Formerly, a new action was barred only if it contained the same “cause of action,” or set of operative fats that give rise to a right of action. The current rule bars all claims based on the transaction, whether you raised them or not.

The court finds that it doesn’t matter, because this really isn’t a res judicata case at all. You see, the prisoner got a finding that he wasn’t an SVP back in 2005. But that doesn’t answer the question in this proceeding, of whether he was an SVP in 2011. Times change, and apparently, so do prisoners. The Supreme Court rules today that the 2005 proceeding doesn’t bar this new petition, and the prisoner can indeed be committed.

Preservation of issues for appeal
Technically, Cashion v. Smith belongs in the torts section above, or perhaps in its own section under the heading Defamation. But from my perspective, the dominant issue in the case is one of preservation and waiver. Given who my audience is, this is likely to be the area of primary importance for you, too, so we’ll call this one a preservation case.

This one’s a suit by one doctor against another, claiming slander. A patient came into a hospital emergency room after sustaining critical injuries in an accident. During surgery, the patient died.

A few minutes later, out in the hallway, the surgeon confronted the anesthesiologist and berated him for what had happened. The surgeon blamed the patient’s death on his colleague’s actions, claiming that the patient would have survived but for the anesthesiologist’s performance. The tirade concluded with, “You just euthanized my patient.”

As you probably know, we don’t permit euthanasia here in Virginia, no matter how bleak the patient’s prospects are and no matter how bad his suffering is. This assertion is thus an accusation of murder, or at least manslaughter, by the anesthesiologist. Hence the lawsuit.

The surgeon demurred to the complaint, and the trial judge gave each of the parties a half-victory. He ruled that the statements about euthanasia (there was more than one mention of that word) were statement of fact, so the plaintiff got to proceed with those; but the other statements constituted opinions, which aren’t actionable. The judge directed the plaintiff’s lawyer to prepare an order memorializing the rulings.
That lawyer did so, and for reasons that are never set out in today’s opinion, his own signature line read, “We ask for this.”

Now you know why this case is about waiver. Normally when a judge does something you don’t like, you endorse the order, “Seen and objected to.” In truth, that’s more than you need to do if you’ve solidly made a record of your objection; in that event, you can endorse it, “Seen.” That’s because of Code §8.01-384, our old pal, which states that once you’ve made an objection and have gotten a ruling, you won’t be held to have waived the issue for appellate review unless you do so affirmatively.

The next step up the endorsement ladder is “Seen and consented to.” Believe it or not, we have a recent Supreme Court opinion on that very language; it’s Johnson v. Hart from 2010. In Johnson, the court allowed an appellant to appeal despite that endorsement of the final order because it was clear that he was consenting only to the phrasing of the order; he had made his previous objections clear and had never waived them.

And that brings us to the far end of the spectrum, with the twin demons “Seen and agreed” and “I ask for this.” The former is almost indistinguishable from “Seen and consented to,” although I think it’s marginally more dangerous. But “I ask for this” is a four-alarm waiver fire. And that’s what the anesthesiologist walked into, with this endorsement on an interlocutory order.

I should mention here that the trial court eventually granted summary judgment to the surgeon after determining that the euthanasia statements were qualifiedly privileged. The vanilla portion of today’s opinion is that the justices reinstate the anesthesiologist’s claim, finding that the trial court should have submitted to a jury the factual question of whether the surgeon lost the privilege in one of several ways.

But back to waiver, and that conflagration. Justice Mims plays the part of the valiant firefighter today, writing for a four-justice majority that the endorsement didn’t waive the underlying objections which beyond question were in the record from the demurrer hearing. Justice Powell, joined by Justices Goodwyn and McClanahan, disagree, contending that a waiver can be clearly drawn by the language of the endorsement. After all, you can’t “ask” the trial court to do something, such as enter an order, and then assign error in an appellate court to the entry of that order. That’s the invited-error doctrine.

Justice McClanahan files a separate dissent; she would have affirmed the dismissal for a different reason. In her view, the allegation of euthanasia was nothing more than rhetorical hyperbole – that is, something not meant to be taken as literally true, but an exaggeration that’s designed to make or illustrate a point.

A 4-3 ruling is a near-run thing, and the anesthesiologist gets back in the game in a set of circumstances in which he could easily have lost. Most of the appellate lawyers with whom I’ve discussed this issue (before today’s opinion) were of the opinion that there’s a huge difference between “Seen” and “I ask for this”; we would never take the risk of using the latter endorsement if the order contains any adverse rulings. The risk-averse among us would write something like, “I ask for this as to Count 1; seen and objected to as to Count 2.” Today’s ruling makes the appellate path a bit easier for those who might get a bit sloppy in crafting endorsement language.

Real property
Old Town Alexandria provides the setting for yet another case involving a very small parcel of land. The parcel in Old Dominion Boat Club v. Alexandria is an alley near the waterfront. This appeal involves a very old easement over that alley; it was created by deed in 1789, while George Washington was busy being sworn in as our first president. The easement gave each of two abutting landowners the right of “free use and passage” over the alley.

We need to fast-forward a couple centuries to reach the successors in interest to those initial easement holders. These days, the near-neighbors are the boat club and the owners of a restaurant (based on the corporate name, it might be an Irish pub, which means I’m rooting for that side). The City recently gave the restaurant a special use permit to build a deck that obstructs part of the alley. The boat club sued to enforce its easement.

The trial court ruled in favor of the City and the restaurant, holding that by operation of the City Charter, the fee-simple title in the alley had been impliedly dedicated to the City. That dedication, the court held, extinguished the easement, so the boat club no longer had any rights to the alley, except those held in common with other members of the public.

The Supreme Court today reverses this ruling. It notes that an implied dedication can only arise from a long-continued use of property by the public in a manner that’s inconsistent with the property owner’s rights. The trial court had relied upon the City’s control over and maintenance of the alley over the years in finding that the property had been so dedicated. But that dedication only extended to the underlying fee. No party had obstructed the boat club’s right of “free use and passage” until the permit was issued, so the judgment is reversed.

There are a couple of important lessons here. First, the dedication of a fee-simple interest doesn’t necessarily extinguish existing easement rights. Those rights would remain if a landowner sold the fee-simple title to a purchaser, and this situation is no different. Second, in order to acquire the easement right by dedication, the City would have to show that it had cut off those same easement rights. Allowing everyone in town to use the easement for transit doesn’t prevent the easement holder from doing so.

So much for my rooting interest; it looks as though the ostensible Irish pub is going to have to do without its new deck. But sentiment aside, this appeal is correctly decided. Absent a showing that the boat club was cut off from access, its ancient easement rights remain intact.