ANALYSIS OF SEPTEMBER 8, 2016 SUPREME COURT OPINIONS
[Posted September 8, 2016] The Supreme Court hands down six published opinions today. Most are from the June session; the exception is the oldest case on the court’s unadjudicated docket.
There are two big-dollar cases decided today. The first is Holiday Motor Corp. v. Walters, involving a $20 million judgment for personal injuries. (Including prejudgment interest, the actual amount in issue was well over $3o million.) It involves the rollover of a Mazda Miata convertible that rendered the 26-year-old driver a paraplegic.
This was a single-car crash that resulted when the driver had to swerve to avoid an object in a dark roadway. Her convertible – which was being driven with the top up – rolled over and the windshield separated from the roof. It collapsed inward, forcing her head down in what’s called hyperflexion. The steel bars of the car’s top actually held, so the rear part of the passenger compartment remained intact; only the windshield had collapsed inward.
The plaintiff sued the manufacturer and seller of the car, contending that part of the purpose of even a convertible’s roof was to protect the occupants from injury in foreseeable rollovers. A jury agreed and gave her that big verdict.
Today the justices take it away. The primary ruling is one that will gladden auto manufacturers: there is no duty to design a convertible to protect against injuries in rollover crashes. This reflects the fact that the Federal Motor Vehicle Safety Standards, as they address roof structures, exempt convertibles. Here’s the key language from the rulemaking explanation, courtesy of the National Highway Transportation Safety Administration:
We believe that to establish a roof crush requirement on vehicles that do not have a permanent roof structure would not be practical from a countermeasure perspective. A convertible roof would have to be strong enough to pass the quasi-static test, yet flexible enough to fold into the vehicle. Since we are not aware of any such designs, we do not agree with Advocates [who disagreed with excluding convertibles from FMVSS No. 216] on this point. We also note that new rollover and ejection requirements for convertibles are outside the scope of this rulemaking.
The justices accept this explanation and embrace its reasoning in today’s holding.
If that were as far as today’s opinion went, it would be a small enough victory for the auto industry. But Justice McClanahan’s opinion for a unanimous court has more good news for manufacturers and sellers of products, even outside the auto industry.
The Fourth Circuit has addressed products-liability cases in Virginia on a parallel track with SCV. In 1993, the Fourth decided a case called Alevromagiros v. Hechinger Co., in which it applied Virginia law. But in doing so, the Fourth imported a case decided under Kentucky law, which differed from Virginia jurisprudence in one key respect: it allowed subjective considerations, such as general acceptance by consumers, in determining whether a product was merchantable or not.
Today’s opinion cites Alevromagiros with approval, and as far as I can tell, that’s the first time the Supreme Court of Virginia has ever done so. Plaintiffs have been arguing for the past 23 years that consumer acceptance doesn’t determine a product’s merchantability under Virginia law; that determination calls for an analysis of the product’ safety at the time it left the manufacturer’s hands.
Today’s ruling is a blow to that argument; likely a fatal one. Consumer expectations, usually measured by who buys what, and how much of it, are now part of the merchantability calculus in Virginia, a legal development that makes our jurisprudence noticeably more pro-business. Those expectations aren’t the only consideration – Alevromagiros itself, in a passage cited in today’s opinion, counsels that government regulations can also play a part. But this means that things like sales volume of a given item can now be received in evidence in defense of a claim that a product is not merchantable. That’s a big win for manufacturers and vendors.
The court also cites with approval an earlier Fourth Circuit case, Dreisonstok v. Volkswagenwerk, that had applied specifically to convertibles, holding that the driver of a convertible cannot reasonably expect it to withstand a rollover. That’s now the law in Virginia, too.
There’s one last point that’s worth mentioning. The appellants had assigned error to several issues. Today’s opinion mentions several of them in footnotes, describing the arguments and then noting that the ruling on the nonexistence of a duty makes it unnecessary for the court to address those issues. But the court goes ahead and addresses one issue that seemed to me also unnecessary in light of the decision: the admissibility of the plaintiff’s expert engineering witness. Applying previous holdings on experts, the court rules that the expert’s opinions lacked an adequate foundation, so he should have been excluded.
The inclusion of this ruling puzzles me – not for the outcome, but because the court decides to address it at all. It breaks no new legal ground, and once the court finds no legal duty by the manufacturer and seller, the admissibility of an expert opinion on causation is analytically irrelevant. The court may have had a reason to reassert these prior rulings, but I can’t know what that reason is.
The other big-dollar case decided today is Loudoun County v. SCC. In this case, the dollars don’t arrive all at once, but in thousands and thousands of small transactions.
This is the appeal involving the setting of toll rates for the Dulles Greenway, a private toll road that runs from Leesburg to Dulles Airport. A legislator objected to a request from the toll road’s owners for a rate adjustment. The SCC, which gets to toll rates for privately owned roads in Virginia, conducted hearings and ruled in favor of the owners.
The dispositive legal provision here is a statute that guides the SCC’s exercise of that authority. For years, subsection D of that statute listed three factors that would be relevant to the calculus: whether the rate was reasonable to the users of the road; whether it would meaningfully discourage traffic; and whether it produced no more than a reasonable rate of return for the owner. If the SCC found it appropriate, it had the authority to approve a rate increase.
In 2008, the legislature amended the statute, adding a new subsection I. That law now requires the SCC to approve annual rate increases at the greatest of three factors: the consumer price index plus 1%, the change in gross domestic product, or 2.8%. For our purposes, the important thing to note is that the statutory amendment didn’t eliminate subsection D.
This begins to look like the SCC no longer has the discretion. The appellants – in this case, the legislator and the County – argued that no paragraph I increase could be made “so long as the existing rates continue to satisfy [subsection D’s] minimum criteria.” Here the Supreme Court parts ways with the appellants, holding today that subsection D provides the SCC with discretion, and the evidence in the case met the threshold for a rate increase anyway.
I’m going to curb my enthusiasm – which is quite real – for the economic and statistical components of today’s ruling. After all, I don’t often get to use some of the geekier skills I took away from my college Economics degree, or all that stuff I learned in Statistics class. I could sing to you a siren song of regression analyses and price elasticity of demand.
But that’s not why you come to this website. For your purposes, please note that the Supreme Court affords extraordinary deference to the SCC. That applies to its factual determinations, of course; in that sense it’s just like a judge or jury making such findings in a circuit-court trial. But the justices also defer to the SCC’s expertise in matters within its bailiwick. They stop short of deferring on rulings of pure statutory interpretation, but when the SCC sets rates, it engages in a legislative act, and the Supreme Court takes a hands-off approach to that. That deference is decisive here.
The justices give us important guidance on written statements and on post-judgment supplements to the appellate record in Granado v. Commonwealth. It’s an appeal of a DUI conviction that originated in Chesapeake.
We never do get to the merits of the conviction, because the Court of Appeals never got to it. As required by Rule 5A:8(c), the appellant’s lawyer timely filed – on the deadline day – a proposed written statement in lieu of a transcript. Two days later, the lawyer filed a revised version that he and the prosecutor had both endorsed. Two days after that, the judge signed the revised one, and that copy went up with the record to Richmond. The clerk of the trial court decided not to include the original, pre-revision version.
That omission proved fatal in the CAV, as a single judge, reviewing the petition for appeal, found nothing to indicate a timely filing of the written statement. That judge found that without the statement, the record was insufficient, so the petition was refused.
Three days later, and quite evidently on request from the appellant’s lawyer, the trial-court clerk forwarded the original, timely statement to the CAV clerk. The appellant then asked a three-judge panel of the court to consider his petition on the merits. No dice; the panel noted that no one had requested or obtained a writ of certiorari, and without one, the trial court was powerless to expand the appellate record. The panel also refused the petition.
If all this appears patently unfair to you – losing because the clerk of court decides to trim back the record – relax. Today the justices ride to the rescue, noting that by statute, a writ of certiorari is only required after an appellate court grants a writ. While an appeal is still in the petition stage, the record can be supplemented without a writ.
The Supreme Court notes that since the appellant followed the proper procedure for filing a written statement, and since the trial-court clerk’s action was permissible, the CAV now gets to consider the petition on its merits on remand. The appellant still doesn’t have a reversal of his conviction, or even a writ of appeal; but at least he’s still in the game.
If you don’t handle criminal work, and your primary source of information about the criminal-justice system is TV crime dramas, the real world will have some surprises for you. Here’s an example:
Let’s say you’re a felon – okay, work with me here; this is fantasy – and you’ve been sentenced to a couple of years of hard time, with a few more years suspended. You grind out that time and are released back into society, subject to supervised probation. During your probation, you’re arrested for another crime. The original sentencing judge gets word and issues a warrant; you’re hauled back into court to face the prospect of imposition of that suspended prison sentence. You have a right to the assistance of counsel at that revocation hearing, right? Not so fast.
Walker, Warden v. Forbes is a slightly modified version of this scenario. Forbes pleaded guilty to a felony, served his active time, and then committed robbery and abduction while on probation. He had a lawyer at the revocation hearing, but because he admitted to committing the robbery and abduction, the judge hit him with part of the suspended time. Forbes wrote to his lawyer, instructing him to appeal; he insisted that one of the predicate offenses in the original conviction lacked an indictment, so he had a way out.
Alas; the lawyer wrote back, enclosing a copy of the supposedly missing indictment, and told Forbes he had no appealable issue. He indicated that if Forbes still wanted to appeal, he should hire someone else to do it.
Instead, Forbes filed a pro se habeas petition, asserting that he received ineffective assistance of counsel at the revocation hearing and beyond. He specifically pointed to his lawyer’s failure to appeal the revocation order.
The habeas judge bit and issued the writ, granting Forbes a delayed appeal to the CAV. The court distinguished a SCOTUS ruling that held that you have no constitutional right to counsel at a revocation hearing. The Warden, the respondent in the habeas suit, appealed that ruling to the SCV.
First appellate issue: Why the Supreme Court and not the Court of Appeals? After all, this is a criminal matter, and criminal appeals have to go to the CAV. But habeas petitions are civil, not criminal; so the SCV is the right home for this appeal.
Today the justices reverse the grant of habeas relief and enter final judgment for the Warden. The court notes that while you do have a statutory right to a lawyer in a revocation proceeding, it’s not a constitutional right. That’s because, by clear precedent, “in Virginia, while a probation revocation hearing is a criminal proceeding, it is not a stage of a criminal prosecution.”
Did that surprise you? After all, the nice judge is considering whether to send you up the river for a substantial period of time, and that clearly implicates your liberty. But the constitutional right to counsel, arising from the Sixth Amendment, ends when you’re sentenced. After that, you’re still entitled to due process of law under the Fourteenth, but that simply requires notice and a hearing. SCOTUS has spelled out the circumstances under which appointment of counsel in such proceedings might be appropriate, but those circumstances aren’t present here.
In the end, the justices rule that Forbes didn’t have a right to counsel at the revocation hearing, so he didn’t have a right to the effective assistance of counsel at that hearing – or in a subsequent appeal.
You’re probably going to feel some sympathy for both parties in Huff v. Winston, which addresses the relief available to a servicemember who wants to return to work after a temporary period of military service.
Huff worked as a deputy sheriff in Roanoke County and was assigned to courtroom duty. Her Army reserve unit was called up and she was shipped out to Afghanistan. While there, she suffered significant injuries, including a traumatic brain injury. Shortly after being diagnosed with PTSD, she returned to Virginia.
Federal law protects men and women like Huff. It guarantees her right to reinstatement of her previous employment and even imposes a one-year moratorium on the at-will rules of employment. Huff applied to return to her work, and her boss, Sheriff Winston, welcomed her back. He sent her right back to courtroom duty.
But Huff’s injuries wouldn’t just go away. She needed continued treatment. Because of Thursday evening counseling, she asked for Fridays off. The Sheriff responded that she couldn’t do that and stay in the courtroom, but he offered to move her to corrections, which would provide more flexibility. She refused that move, feeling it was a demotion.
Huff worked full time but on light duty until she suffered a heart attack. Her doctor ruled that it was service-related. She eventually returned to part-time work, but the Sheriff figured he could no longer carry a part-time deputy; he terminated her employment a year and a half after she returned to the Department.
One key issue in this case is whether the provision in the federal statute that allows the employee up to two years of convalescence, applies after she returns to work. Huff argued that it does, but the Supreme Court unanimously rules otherwise: “Nothing in the text of subsection (e) affects the terms of employment once the service member has been rehired.”
The court also rules against Huff on her claim that the Sheriff failed to make reasonable efforts to accommodate her disabilities. The employer is allowed to take into consideration the employee’s functional limitations in assessing how to accommodate her, but even that part of the statute relates to her rehiring; it doesn’t govern ongoing employment terms after rehire.
Hence my prediction that you’d feel for both sides here. The Sheriff has an office to run, and needs a reliable assembly of deputy sheriffs; while Huff is a legitimate American heroine who’s just trying to get her life back. The law unfortunately doesn’t offer a good way to accommodate them both.
The other labor-law decision handed down today is Property Damage Specialists, Inc. v. Rechichar. This appeal answers the question whether a plaintiff can recover punitive damages when suing under Virginia’s statute protecting labor-law whistleblowers.
The relevant statute has two components. When an employee makes a complaint to the Commissioner of Labor and Industry, the Commissioner investigates the case. If he finds a violation, he can bring a civil action against the employer. If he chooses not to do so, then the employee can sue in his own name.
The provisions for these two types of suit contain slightly different provisions for the relief that can be awarded. If the Commissioner sues, the court can “order appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay plus interest at a rate not to exceed eight percent per annum.” If the individual sues, the court can order “appropriate relief.” There’s no parallel enumeration of what kind of relief fits the bill.
Rechichar sued in his own name for a retaliatory discharge. He sought various forms of relief, including punitive damages. The employer demurred to the punitives, claiming that they weren’t permitted under the statute. The judge disagreed and submitted the claim to the jury, which gave the former employee compensatory and punitive damages.
Justice Goodwyn writes today’s opinion for the court. He notes that the statute itself doesn’t specify whether punitive damages are in or out as “appropriate relief,” so the court has to parse the statute to resolve the ambiguity. The court rules that the words in the first provision – reinstatement, back, pay, etc. – “provide guidance as to the meaning of the term in both subsections ….”
The justices today rule that the words appropriate relief in the private-action subsection mean the same as they do in the first subsection, so punitives aren’t available. The court observes that the purpose of this entire section is to make the employee whole; not to punish wrongdoers. Since the General Assembly didn’t specify punitive damages, it was improper to submit them to the jury. The court thus vacates the punitive-damage component of the judgment, the only aspect that was on appeal.
I have a suspicion that this ruling may become a popular citation in upcoming litigation. I believe that the right to seek punitives is well-established in common-law rights of action such as suits for personal injuries; but where the Code specifies a right to sue for something but doesn’t declare that punitive damages are available, defendants may ask trial courts to apply this holding to strike the punitives claim.
I will admit to a degree of unease with the court’s reasoning in this case. First, let’s go back to those parallel tracks. The statute says that when the Commissioner sues, he can get “appropriate relief,” including some specific items. Then for private actions, plaintiffs can get “appropriate relief,” but the list is omitted. When the legislature treats these two scenarios differently, shouldn’t that indicate that the relief available is different?
The easy way for the legislature to achieve what the court held today would be to say that private plaintiffs can get “the same relief that would be available to the Commissioner in a suit filed under subsection A.” But that’s not how the statute is set up; the two subsections are phrased differently, so the result, it seems to me, should be different.
Here’s another thing that sticks in my mind: beyond question, this labor law is highly remedial. It’s protecting employees from retaliation after they report safety violations. I have little problem in concluding that Virginia has a strong public policy in favor of exposing safety violations. So why does the court choose to construe a highly remedial statute narrowly?
I’ll take a moment here to post a few points that have occurred to me as I’ve read and analyzed today’s batch of opinions. First, all six decisions released today were unanimous. That’s become a rarity in this court, marked as it is by an increased use of dissents (or at least concurring opinions) in the past four years.
Second, with one exception, all of today’s rulings came from the Supreme Court’s June session, which took place 13 weeks ago. As I’ve written here recently, while that may seem like a very long time, weep not for these litigants, who at least got decisions a week earlier than they would have under the old system of six opinion days per year.
The one exception is Holiday Motor v. Walters, which was argued way back in April, almost five months ago. I had wondered on occasion why that one had taken so long. The usual suspects for a delay like that are a complex fact pattern; a dissent/concurrence or two; or possibly some disagreement on precise wording. In the end, the court came out with a single 7-0 opinion. I don’t know why this one took that much time, and we probably never will.
Third, this batch continues the long winning streak enjoyed by appellants seeking to get out from under big (eight-digit) judgments. As I noted in a recent post here, the last appeal I can recall seeing where the justices affirmed a judgment this large was VEPCO v. Dungee, back in 1999. That one, coincidentally a $20 million award, was decided by a completely different Supreme Court. (Each member of the current court arrived after Dungee was decided.) I hasten to add that there may have been an affirmance somewhere along the line in a case that big; I just don’t remember seeing one.
Finally, there remain eight undecided cases from the June session, subject to any unpubs that may hit the wire later today. We’re also still waiting for a ruling in Edwards v. Vesilind, the special-session case argued in July. I expect to see at least one or more of those decisions next week.