ANALYSIS OF SEPTEMBER 9, 2008 CAV OPINIONS

 

[Posted September 9, 2008]  We get two published opinions from the Court of Appeals today; one en banc decision in a criminal case, and one eerily “post-mortem” ruling in an arcane admin law appeal.

 

Criminal law

Earlier this year, a divided panel of the court reversed convictions of possession of marijuana and methamphetamine with intent to distribute.  That 2-1 ruling was unpublished, but the court granted en banc review, and today, in Dunn v. Commonwealth, it affirms by a lopsided 10-1 margin.

 

This appeal is about aiding and abetting.  Dunn lived in a house with her fiancé and their three-year-old boy.  The fiancé was in the pharmaceutical industry, but unfortunately he participated in the illicit arm of it, selling drugs out of the home.  Police caught up with him by making a controlled buy through an informant; the next day, they came in with a search warrant.

 

If you read the opinion, you’ll come to the conclusion that the décor of the house was Early-Modern Druggie; police found drugs, scales, baggies, a bong, and assorted paraphernalia all over the joint.  They also had the audio recording of the conversation of the previous day’s drug buy.  Faced with all that, the fiancé sang.  He did try to exonerate Dunn, by assuring the officers that while she knew the stuff was in the house, and while she was somewhere in the house at the time of the previous day’s transaction, and while she used some of the merchandise from time to time, she wasn’t in the same “business” as he was.

 

In truth, Dunn had no business at all; neither she nor the fiancé had a steady job, and they subsisted on the proceeds from his pharmaceutical avocation.  But police charged her with being a principal in the second degree to the fiancé’s sales, and that is a serious matter indeed.

 

A principal in the second degree isn’t the perpetrator of the crime, but is present when the offense is committed, and by some gesture, act, or word, incites or encourages it.  Today, the majority concludes that the trial court had enough evidence to convict.  In an elaborate pattern of disregarding unfavorable testimony and validating inferences, the majority (written by Judge McClanahan) finds that a factfinder could have concluded that Dunn was around, and tolerating the drug sales, the whole time, thus satisfying the aiding-and-abetting requirement.

 

Judge Elder dissents, and notes that the prosecution has hardly excluded every reasonable hypothesis of innocence.  For example, he notes that Dunn’s presence in the house during the drug buy isn’t enough to establish that she was in the room at the time – certainly not beyond a reasonable doubt.  He concludes that the evidence is certainly sufficient to prove the lesser included offenses of possession of the drugs, but not distribution.

 

I’ll admit that I’m a bit surprised that Judge Elder didn’t have any colleagues in his lonely dissent.  (He lost his one pal from the panel stage by attrition; Senior Judge Fitzpatrick had voted with him, and even wrote the majority opinion; but she didn’t participate in the en banc rehearing.)  The issues he raises in opposition to the majority’s conclusion are, in my view, substantial (and I’m not exactly a great apologist for drug dealers).  It is foreseeable to me that the less-conservative Supreme Court could opt to take a look at this case, especially now that it has the added imprimatur of the en banc tag, which always adds weight to a CAV ruling.

 

The court also grants en banc rehearing in an abduction case decided earlier this year by unpublished opinion.  That case is Clanton v. Commonwealth.  The case will be briefed anew and argued to the full court, with a published ruling likely coming after the first of the year.

 

Administrative law

Those of you who choose to read Doctors’ Hospital of Williamsburg v. Stroube should have some pain reliever handy.  Just the acronyms in this case are enough to cause headaches, dizziness, and shortness of breath.

 

Stroube is the Virginia State Health Commissioner, and the final administrative arbiter of certificates of public need for additional hospital beds throughout the Commonwealth.  In this appeal, he finds himself defending one of his findings, that four concurrent requests for additional hospital beds on the Peninsula should be denied.

 

I was an Economics major in college, and I recall well the firm inculcation we bright, eager, ignorant college freshmen got into the wisdom of a free market economy.  In that vein, we are left to wonder why the state would ever suppress the number of available hospital beds, instead of allowing the market to determine how many is too many.  But the free market does not rule the supply of such critical facilities, at least not in Virginia.  If you’re a hospital and you want to add beds, you have to prove to the Commissioner that they’re needed where you want to put them.

 

Two competing groups simultaneously sought certificates so they could add beds.  The local health systems agency submitted a report that suggested that there was no public need for the additional capacity.  But even such an agency has its own rules, and in one critical respect, the agency blew it.  A statute requires that each such agency be composed of at least half “consumers” – which I take to mean patients, or at least potential patients – and today’s opinion implies that there might have been too many medical professionals.

 

So what’s the Commissioner supposed to do when he gets a required report from an agency that isn’t properly constituted?  Well, that’s what today’s opinion is about – sort of.  The short answer is that the report is but one of twenty separate factors that the Commissioner is supposed to consider, so it’s of relatively minor importance in the grand scheme.  But more important, the report, warts and all, was admitted into the record, and the appellant today (one of the COPN applicants) conceded that it was appropriate to have it there.  The court concludes that the Commissioner is certainly empowered to consider all matters in the record, so it finds no error in the Commissioner’s ruling, or in the circuit court’s affirming that ruling.

 

But it’s not quite that simple.  There is yet another statute that says that if the agency doesn’t submit a timely report (within 60 days), then the Commissioner is supposed to act as though it submitted a report recommending approval without conditions.  In effect, that prevents the agency from holding an application hostage; if it takes too long, then the applicant gets a free pass.  But remember, it’s only a free pass on one of twenty factors; not on the whole application process.

 

I mentioned in the header above that this ruling is “post-mortem.”  That’s because it was authored by Judge Millette, now known as Justice Millette.  He not only sat on the three-judge panel that heard the case; he’s the one assigned to write the opinion (which turns out to be unanimous).  By the time this opinion was issued this morning, its author had been sitting on the Supreme Court for four days, officially (and unofficially since August 19, when he was sworn in at the Supreme Court).

 

One last point:  In case you’re wondering, the cephalgia-inducing acronyms in the case are COPN, HPA, EVHSA, LTACH, IFFC, and DCOPN, not to mention a couple of LLC’s.  That even hurts to type.