SCV THINS THE JANUARY HERD[Posted February 20, 2009] The Supreme Court has, over the past two Fridays, decided by unpublished order seven cases that were argued in the January session. Since these cases won’t appear in Virginia Reports, I’ll summarize the holdings here; any of my readers who would like copies of any of these orders may contact me.
If any of you needs a lesson in just how lethal is the immunity enjoyed by the Commonwealth, I invite you to take a look at State Board for Community Colleges v. Calvert. Calvert originally sued the Northern Virginia Community College, seeking a declaratory judgment on a matter that isn’t described in the Supreme Court’s order. The trial court decided that it didn’t have jurisdiction over the college, but it allowed Calvert to amend. He filed an amended complaint, this time naming the State Board as defendant. This time, he persuaded the trial court to hear the case, and after a trial on the merits, he won.
The State Board appealed, and for the first time, raised the defense of governmental immunity, since it’s an arm of the Commonwealth. Calvert correctly pointed out that no such defense had been raised at trial, arguing that that personal defense had been waived.
My long-time readers will recall that the only defense that can be raised for the first time in an appellate court is subject matter jurisdiction. Immunity looks for all the world like a personal defense, but previous holdings have defined it as jurisdictional in nature – if the Commonwealth is immune, then the courts don’t have jurisdiction to consider the suit. And that’s exactly what the Supreme Court rules here, reversing the judgment and dismissing the case. One additional lesson: In this context, immunity from suit also means immunity from declaratory judgment actions, not merely from suits seeking monetary or injunctive relief.
I’ll admit that there is a part of the ruling in James River Petroleum v. Bagga that I just don’t fully understand. That may be because these orders aren’t as detailed in reciting the facts as are published opinions, so maybe if I knew more of the facts I’d better understand why the court ruled the way it did.
Bagga owned a gas station. These days, consumers who pump their own gas (and that’s virtually everybody) are accustomed to using a type of gas pump called a multiple product dispenser. That’s where there is only one hose, and you push a button to determine what grade of gas comes out. James River contracted to replace four MPD’s at the gas station, but for some reason it only replaced two. This, the court finds, was a material breach of the contract.
Bagga was in breach, too, for reasons that aren’t specified; I assume that it simply failed to pay for the work. But James River’s breach came first – so the order specifically says. And the party who first breaches the contract can’t sue to enforce it. The order specifically recites that, too.
Somehow, the only relief that Bagga gets out of this presumptively fatal holding (from James River’s perspective) is that the court overturns the trial court’s award of attorney’s fees in favor of James River. But based on what I’m seeing, that was likely a Pyrrhic victory for Bagga, as the court goes on to reverse other aspects of the judgment, specifically including $65,000 in offsets in favor of Bagga. It finds that there was no evidence to support such an offset, so James River’s judgment should not have been reduced by that amount. Accordingly, James River loses its unquantified attorney’s fee award, but gains $65,000.
Let’s go back to the beginning for just a moment, to see where I’m likely missing a fact or two. If, as the court holds, James River first breached the contract, and if the first person to breach a contract can’t enforce it, how is James River recovering anything here? There must be more to it; otherwise the order would have ended with the initial ruling, with James River taking nothing.
Miller v. McLeod involves a case with no fewer than four complaints – the original, followed by three amendments. The trial court evidently got tired of seeing futile efforts to plead a viable cause of action for breach of contract, and it dismissed the third amended complaint with prejudice. The Supreme Court reverses and reinstates the suit, noting that the plaintiff pleaded all the requisite elements of such a claim. This case is noteworthy because both litigants acted pro se. And if I’m reading the order correctly, I infer that the appellee, McLeod, missed the filing deadline for the brief of appellee (or else he simply declined to file a brief), so the appellant is the only one who argued the case to the full court.
The justices are wary of situations where one side of a case isn’t represented by an attorney, since it’s more difficult for the court to reach the correct ruling where the issues aren’t professionally briefed. You can imagine that some bad law might come out of a case where the court doesn’t have the benefit of breifs filed by trained lawyers. Supreme Court rulings are designed to have effects in cases beyond the ones at issue; that’s why the opinions are published. So one can only imagine the justices’ concern about this case, with nary a lawyer in hailing distance. The court has a program to provide volunteer attorneys to represent indigent appellate litigants, but I infer that neither party qualified on the basis of indigence.
Hence the happy solution: The court adjudicates this case, but does so by unpublished order, so the ruling won’t serve as meaningful precedent.
Landrio v. Winchester Neurological Consultants involves the interplay between arbitration and res judicata. Landrio is a doctor who once practiced with Winchester Neurological. He sold his interest back to the company, and signed an agreement not to compete. Any lawyer who has practiced in this field knows of the Supreme Court’s barely-concealed hostility toward covenants not to compete, which are in restraint of trade and therefore subject to meticulous scrutiny.
Back in 2006, the practice sued the doctor, seeking an injunction against his practicing in violation of the agreement. It also instituted a separate arbitration proceeding, as the agreement required. A judge issued a temporary injunction, but the arbitrator later ruled that the CNTC was unenforceable. That made the injunction wrongful, and the arbitrator granted the doctor’s request for damages, presumably reflecting his lost income while the injunction was in place.
The doctor then initiated a second arbitration proceeding, to resolve a dispute about the practice’s buyout of his stock in the company. The practice filed a DJ action in which it asked the court to rule that the second arbitration proceeding was barred by res judicata. The trial court agreed and barred the second arbitration, but the Supreme Court reverses. It begins by noting that Rule 1:6 applies to claim preclusion issues like this, but only to those arising after July 2006. Since the initial arbitration preceded that date by a few months, the rule doesn’t govern this case.
What does govern the case is a solid body of caselaw on res judicata. The court briefly lists the factors for determining claim preclusion, and notes that the test is “whether the same evidence is necessary to prove each claim.” (There’s a rough parallel to this principle in the field of criminal law — the Blockberger analysis for Double jeopardy claims.) Here, the doctor’s evidence on his stock buyout claim was significantly different from his evidence on the enforceability of the covenant, so the Supreme Court reverses and permits the second arbitration to proceed.
Skeens v. Blankenship is a very complicated appeal involving the division of property (real and personal) held by two women who lived together but decided to part company (and, a cynic might add, part property). It would take me an inordinate amount of space to describe the several classes of property, the legal analysis applicable to each, and the court’s rulings on the various items. In my view, the ruling doesn’t break any new legal ground (hence its unpublished status), but it should be instructive guidance to lawyers handling similar matters, even if it can’t be cited as authority.
In Mitchell v. O’Brien, the court rejects a request by an indigent father for a court-appointed lawyer to help him resist the efforts of a couple who wanted to adopt his daughter away from him. His mother (the child’s paternal grandmother) also sought custody, but the trial court ruled in favor of the “adopters.” Under Virginia law, the grant of an adoption severs all legal ties between parent and child (and, by extension, between grandparent and grandchild), so the father and his daughter became legal strangers to one another as soon as the ink was dry on the order.
The father raised several challenges on appeal. He contended that the trial court, because of his indigence, should have provided him with a free transcript to enable him to appeal. (The Court of Appeals had rejected the appeal because of the absence of a transcript.) The Supreme Court holds that the available alternative of a written statement under Rule 5:11(c), which doesn’t entail the expense of a transcript, meant that the father had no right to a free transcript. To be sure, the Supreme Court discourages appellate litigants from using written statement, and so do I; such a statement is usually a poor substitute for knowing exactly who said what, and when. But poverty is a perfectly understandable reason for a litigant to turn to the statement, and its availability means that the father wasn’t denied any rights. The same procedural defect acts to defeat the grandmother’s claims.
Another issue raised by the father is far more troublesome from a philosophical perspective; he argued that he had a due process right to an attorney in the first place. Beyond question, the absence of an attorney had a profound affect on the case; the father’s custody petition had been dismissed in the trial court as a sanction for his failure to comply with court orders concerning discovery. Citing a 1981 US Supreme Court decision, the court holds that the father has no due process right to a lawyer unless his personal liberty is at stake, and there is no statutory requirement to provide him one. (If this had been a petition filed by the local DSS to terminate the father’s parental rights, then he would have received counsel by statute. But since this was a private adoption proceeding, that statute didn’t apply.) For obvious reasons, the prospect of a litigant’s having to act pro se in defending his right to a relationship with his own flesh and blood raises visceral philosophical concerns, but the court rules that there is currently no provision in the constitution or statutes that can help in this situation.
Sexually violent predators
All of the court’s previous rulings under the relatively new Sexually Violent Predators Act have involved the question of initial commitment – whether a prisoner who’s approaching his mandatory release date should be held in custody past that date for involuntary treatment of his condition as a sexually violent predator. Smith v. Commonwealth, in contrast, involves review of a mandatory annual evaluation of such a prisoner after he’s been in a course of treatment. As such, it’s at least potentially a useful bellwether of how the system treats prisoners, and how effective that treatment is.
As you’d imagine, the program probably has some successes and some relative failures. Count Smith in the latter category. He advanced from level I to level II of treatment, but evidently regressed to the point that he had to be demoted to level I. According to the evidence before the trial court, he was still in denial over the whole situation, and exhibited strong indications that he’s every bit as much a sexually violent predator today as he was back when he was first assigned to the program.
Smith’s primary argument seems to be that the trial court improperly considered his refusal to take a polygraph in reaching its conclusion. Instead of ruling on whether the refusal to take a polygraph can be considered in this context (which, you have to admit, would have been a useful thing for trial judges to know), the court assumes without deciding that it was improper, and rules that even without that evidence, the record is quite sufficient to support the trial court’s conclusion. That polygraph issue will have to wait for another day.