RECENT APPELLATE DEVELOPMENTS
On Tuesday, July 19, the court announced two new writs, to be argued in the 2005-06 term. In Foster v. Commonwealth, the court will consider a conviction for a bad check charge that was allegedly brought after the one-year statute of limitations for misdemeanor prosecutions had run. Boynton v. Kilgore presents several politically sensitive issues surrounding the Attorney Generals Office, in the context of the Workforce Transition Act of 1995. The suit was evidently brought by former employees of the A.G., who sought benefits under the Act; the trial court ruled against them on several grounds, including a finding that an award of benefits would conflict with the A.G.s autonomy in personnel matters. One may reasonably expect the separation of powers doctrine to play at least a nominal role in the appeal. Interestingly, the A.G.s Office is representing itself in the case.
Court of Appeals
The court handed down three published opinions on Tuesday. In White v. Commonwealth, an en banc court affirms convictions for murder and assault and battery of a law enforcement officer. A panel of the court had reversed the convictions in November 2004, finding that the trial court had impermissibly excluded evidence of the defendants sanity. On review by the full court, the convictions are affirmed by an 8-3 margin. Judge Elder, who wrote the majority panel opinion, authors Tuesdays dissent, while Judge Bumgardner, an original dissenter at the panel stage, writes the majority opinion of the court.
In Campbell v. Commonwealth, a panel of the court considers civil penalties assessed by the Department of Forestry for environmental law violations regarding water quality. The Department imposed the penalties in 2003; the appellants sought Circuit Court review under the Administrative Process Act, but that court affirmed. On appeal, the Court of Appeals generally affirms, although it reverses one aspect of the trial courts ruling for a recalculation of the penalties. In one passage, the court rejects the appellants contention that the calculation of the penalties under a matrix was arbitrary, stating: “Though the penalty matrix attempts to impose a measure of uniformity and predictability on the ultimate decision, it nevertheless retains the elusiveness of a judgment call rather than the certitude of an algebra equation.” In other words, this determination was truly “close enough for government work.”
The court also issues an important ruling on representational standing in an environmental law context in Chesapeake Bay Foundation, Inc. v. Commonwealth, involving the Stumpy Lake Nature Preserve near the Chesapeake/Virginia Beach border. The trial court had found that the plaintiff associations did not have the requisite standing, either in a representational capacity or in their own rights, to challenge the issuance of a Water Protection Permit that would permit the development of land adjacent to Stumpy Lake. On appeal, the Court of Appeals reverses in part, holding that “Code §62.1-44.29 permits an organization to sue on behalf of its members.” The court affirms the trial courts finding that the organizations did not have standing to sue in their own rights. In doing so, it declines to address the tantalizing assertion that an action that poses a threat to an organizations viability confers such standing.
The Fourth issues a significant ruling on the attorney-client privilege in a grand jury context. The case involves internal memoranda within AOL Time Warner. Several AOL employees moved to quash a grand jury subpoena, claiming that the documents were within the scope of the privilege. The court of appeals affirms the district courts ruling that the privilege belongs to AOL, not the employees, and since AOL had waived that privilege, the employees could not rely upon it to resist the subpoena. The [censored] ruling is In Re: Grand Jury Subpoena: Under Seal.
In United States v. Cheek, the court holds that prior convictions, used in conjunction with a defendants guilty plea, are not within the aegis of the Booker doctrine, and thus the absence of such prior convictions from the indictment does not violate the Sixth Amendment. In so holding, the court observes: “It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.” Cheek had argued that, in light of intervening caselaw (including Apprendi and Booker), “it is only a matter of time” before the case cited by the government (Almendarez-Torres v. US, 523 US 224) is reconsidered by the Supreme Court. Perhaps so, responds the court of appeals, but until the Supreme Court does that, were not free to anticipate such a reversal.
Finally, the court reverses a dismissal of an FLSA complaint filed by the Secretary of Labor. In Chao v. Rivendell Woods, Inc. (evidently Tolkien fans), the court assesses two important doctrines, whether a dismissal without prejudice is appealable, and the specificity of pleading required under Rule 8(a) for claims of FLSA violations. In each instance, the court rules in favor of the Secretary. First, it finds that the district court had dismissed the action, not merely the complaint. That distinction, while seemingly minor, is key here, as the Fourth joins the Sixth and Seventh Circuits in holding that such a dismissal is appealable. In this vein, the court also points to the fact that the Secretary had made an election to stand on her existing complaint, instead of seeking leave to file a second amendment. And second, it finds that although the district court dismissed the Secretarys amended complaint for lack of specificity, the pleading asserted sufficient facts to inform the defendants “of the claim and its general basis.”