(Posted September 22, 2016) It’s an extraordinarily soggy Thursday here in Tidewater; we’ve had two months of rain in the past three days. That’s a good excuse to stay inside and unwrap the two presents we get this morning from the Supreme Court of Virginia.

Criminal procedure

The facts section of Du v. Commonwealth is painful to read. Justice Kelsey tells the tale of a young immigrant from Vietnam who comes to America at 18 to live with the father he never knew. He lived for a time with his father, stepmother, and half-sister. After a period that may have been tranquil, Du stormed out, seemingly never to return.

But return he did; four years later, he broke into the home and sexually abused and raped his then-13-year-old sister. The girl’s mother walked in on the pair, leading to a fight. That fight took a dramatic turn when Du reached for a metal baseball bat and began beating his father and stepmother about their heads. The beating continued until they were both insensible; the stepmother stirred once, but Du hit her again, stilling her. Du then told his sister, “Don’t panic; they’re dead.”

The attack left the father severely injured. Thanks to emergency surgery, he survived, but was dependent on others for normal life activities. The mother received stitches to close an open head wound; her victim-impact statement revealed the deep and lasting psychological impact of the attack on her.

While awaiting trial, Du wrote several times to his father and stepmother, encouraging them not to come to court to testify, so that the charges against him would be dismissed. I’m not sure that would have worked, since home-security video captured the events. But the prosecution introduced the letters in the trial court, showing the judge how Du had attempted to hamper the prosecution’s case.

Du pleaded guilty to aggravated malicious wounding, malicious wounding, and statutory rape. The trial judge sentenced him to life plus 30 years, and suspended all but 50 years of that term. The court added conditions of probation for life upon release from prison. In addition, the court directed that Du could have no contact with the three victims for the rest of his life. That, too, was a condition of the suspended sentence.

At the sentencing hearing, the prosecutor told the judge that the stepmother “requested that [the no-contact order] not be ordered for her.” The judge pondered that, then refused, noting that the stepmother could, if she chose, write to Du. The court expressly “discounted” the proffer of the stepmother’s wishes, given the clarity of the victim-impact statements.

The Court of Appeals refused Du’s petition for appeal to review the probation and no-contact provisions. The justices granted Du a writ, and today they affirm by a 6-1 margin. Noting that the appeal is evaluated under the deferential abuse-of-discretion standard, the court finds that the trial court acted within the limits of that discretion.

As for the probation, Justice Kelsey points out that the court could have imposed active prison time of life plus 30 years, and probation is “far less severe than life imprisonment.” All seven justices agree with this ruling.

The justices split over the no-contact provision. The majority finds that the trial court had the discretion to act as it did. The trial judge hadn’t spelled out much detail for the ruling, but the majority finds that the court could reasonably have considered Du’s attempt to influence the trial by manipulating his injured father and stepmother, and sought to ensure that Du wouldn’t subsequently try to pressure the stepmother into recanting her testimony. The sentence also found support in the victim-impact statement, which spelled out the psychological damage to the stepmother.

Justice Powell dissents here, observing that conditions of suspension must be reasonably related to rehabilitation and deterrence. She points out that Du has contact with only three people in this country, and the no-contact order permanently cuts him off from all of them. Given the expression of the stepmother’s wish not to be so separated, she finds the term unreasonable. It does not, in her view, serve a rehabilitative purpose.

As for the possibility of Du’s pressuring his stepmother to recant in order to undercut the conviction, Justice Powell argues that that possibility “cannot come to pass under our jurisprudence.” That’s because recantation evidence is highly suspect, since it is in essence a credibility attack by the witness upon herself. Since the video corroborated other evidence of the crimes, proof of a recantation would be highly unlikely.

When you read the opinion, Justice Powell’s opening sentence will resonate with you: “This is a horrible case which might tempt reasonable jurists to do things that they might not ordinarily do.” None of us can be truly aware of our subconscious biases, and perhaps she’s right about this. In reading the majority opinion, I found myself agreeing wholly with Justice Kelsey; and even after reading the dissent, I think I would have voted to affirm. But I cannot say that Justice Powell’s perspective is necessarily wrong; and the permanency of this isolation does give me at least some pause.

By the time Du is slated for release, he’ll be in his 70s, although he might find relief in Virginia’s geriatric-release statute and get out in his 60s. I have no idea how old the stepmother will be when this 50-year term ends; possibly in her 80s. The dissent contains the seed of a nagging question: Is the rehabilitative capacity of our corrections system so weak that it holds no hope of changing this young man? I like to hope that it can make a change like that, even after a crime this horrifying.


Upon seeing the line immediately above this one, you might be tempted to skip to the next section. Well, forget it; there is no next section. Besides, if you don’t stick around for Cygnus Newport-Phase 1B v. City of Portsmouth, you’ll miss a truly remarkable debate over a point of statutory interpretation. And sooner or later, every lawyer bumps into a statutory-interpretation issue.

When I was a baby lawyer in the 1980s, I performed roughly a gazillion title examinations. I traveled to record rooms near and far, pulled musty books off shelves, scoured hoary indexes, thumbed through cabinets of financing statements, and hand-wrote a whole mess of property descriptions. Even now, the typical beginning of the anciently worded and thoroughly redundant description comes to me without fail: “All that certain lot, piece, or parcel of land, together with the buildings and improvements thereon, lying, situate, and being in the City of _______, and known, numbered and designated as …”

The lawyers who originally crafted language like that were either hypercautious or getting paid by the word.

In order to assess a title, you have to know about priorities among liens. The first rule is that real-estate taxes come first, even if God holds the mortgage. After that, Virginia is a “race-notice” state, so whichever lienholder records his lien in the clerk’s office first gets priority over all subsequent liens.

If a debt secured by a lien isn’t timely paid, the holder can foreclose on it by selling the property at auction. When he does so, all inferior liens are extinguished.

So far, all this is Liens 101, and most lawyers are rolling their eyes, waiting for me to get to something they don’t know. This case is about the lien held by a creature of statute: a community development authority. CDAs are authorized to provide local governments “with an additional means to finance infrastructure associated with development in an authority district.”

The City of Portsmouth has a number of problems, and a shortage of taxable land is one of them. The city is surrounded by other cities, so annexation is no longer an option. (Indeed, the City of Chesapeake was created in 1963 as a defense against continued annexation of Norfolk County lands by Portsmouth.) The federal government owns a large proportion of the land in the city, so Portsmouth can’t tax that land. As you can imagine, Portsmouth will look kindly upon just about any legitimate “additional means to finance infrastructure.”

In 2004, an LLC bought a large (176 acres) tract of land somewhere in Portsmouth and wanted to develop it. The LLC borrowed money from a bank to finance the acquisition, and gave the bank a mortgage, which the bank promptly recorded. The City then created a CDA at the LLC’s request, and the CDA then issued $16 million in bonds to pay for things like roads and light poles.

In order to pay for this, the City – with the LLC’s express consent – levied special assessments on all land within the district, including these 176 acres. The LLC and the CDA signed an acknowledgement that the assessment would run with the land. The LLC got about $12 million out of the bond revenue and started building in 2005.

You remember what happened in 2007-08, right? The economy tanked, and the real-estate market got clobbered. By 2011, the LLC had apparently run out of money without finishing the infrastructure. The bank sold the note to an investor, and assigned the deed of trust. This development is what real-estate lawyers refer to as a bad sign.

The LLC defaulted and the investor foreclosed on the mortgage; the investor was the high (and probably sole) bidder at the auction. It allocated the property to various subsidiaries, including today’s appellant. The issue in this appeal is whether the foreclosure on the 2004 mortgage wiped out the subsequent lien created by the special assessment.

If the assessment were a tax, the answer would be easy: you can’t wipe out a tax lien by foreclosing on a mortgage. But assessments are different, and the statute that authorizes them contains language that mirrors the race-notice statute for other recorded liens. Who wins?

This is actually a very close call, and the Supreme Court’s 4-3 division today reflects that. Justice McCullough draws majority-writing chores, and he holds that assessment liens comparable to this have been regarded as immune from lien-foreclosure since a 1904 decision, which had held that special assessments had priority over other liens “by necessary implication.” The court equated assessment liens to tax liens.

That isn’t the end of the discussion, but I’m going to jump forward to Justice McClanahan’s riveting dissent. She observes that the 1904 decision was interpreting liens that arose in the late 1890s, before the creation in 1900 of the modern race-notice system.

Back to the majority, which also rules that the assessment lien arose long before the investor took title in 2012, so its recording in 2006 makes the assessment the higher priority. But the dissent invokes something well-known to dirt lawyers: the shelter doctrine. That rule states that when a buyer with knowledge of another’s equity (you can read that in this context to mean “another person’s lien”) acquires the property from a person who got it without notice of the other lien, the buyer steps into the shoes of his seller and takes the property free of that other lien. The purpose of this legal fiction is simple: if the good-faith owner couldn’t convey good title to a buyer, he might never be able to sell his property. The imposition of the subsequent lien would effectively take his property.

Let’s jump back and see what Justice McCullough says about that. He points out that by law, assessments cannot exceed the benefits resulting from the improvements. He goes on to quote this language from a 1935 law-review article that discusses this very topic:

Assuming, as we must, that this guarantee is effective, the property itself is directly increased in value to the amount of the assessment, and this increase in value necessarily inures to the benefit of all earlier lienholders. Such being the case, there seems to be no good reason why earlier lienholders should not pay for such increased value.

The majority concludes that “in the limited context of special assessments,” the shelter doctrine doesn’t apply.

Oh, yes it does, Justice McClanahan fires back. She points out that the majority’s premise relies on the absence of any provision for the priority of assessment-liens’ status. But these statutes are not, as the prior law had been, silent as to super-priority; they expressly state that whoever wins the race to record has the superior lien. This Code provision thus overrides any common-law presumption of a super-priority.

In the relative tranquility of the appellate world, we don’t get many bar fights like this. These decisions are a fascinating read, even if you aren’t a dirt lawyer.