EARLY SEPTEMBER DEVELOPMENTS

[Posted September 4, 2007] I am back from a week-long vacation here, and can report on a few appellate developments during my absence. (The report on the vacation is that it was wonderful, but I doubt you came to this site looking for a report on that.)

September SCV argument docket

The argument docket is out for next week’s September session of the Supreme Court, and I can honestly say that I have never seen anything like this one. There are 29 cases set for argument next week, and fully 20 of those are criminal cases. That is a mind-boggling number, considering that criminal cases probably occupy 20-25% of most sessions, tops. There is an important distinction here; note that I’m talking about the court’s regular sessions, where it considers cases at the merits stage. I am not referring to the petition stage, where roughly 70% of the court’s docket is criminal.

In addition to those 20 criminal cases, there are three attorney discipline cases, one JIRC appeal, and one that looks like a habeas corpus appeal. That means that attorneys looking for opinions in ordinary civil cases will be hard pressed to find them on the November opinion day (November 2).

Important ruling on deferred findings

The Court of Appeals handed down a published opinion last week in a criminal case that goes beyond the bare bones of the offense charged. This is likely one of the biggest cases of the year, at least in terms of one criminal procedure ruling.

Gibson v. Commonwealth involves a charge of failure to pay taxes. It’s not tax evasion, where the taxpayer knowingly ducks an existing obligation by, for example, filing a fraudulent return. Gibson accurately and honestly reported the amount of payroll taxes that his company owed for two tax years; he just didn’t accompany those returns with checks. The Commonwealth decided that instead of suing civilly to recover the taxes, it would go after Gibson criminally, under Code §58.1-1815.

After being convicted in General District Court (the charges were misdemeanors, despite the fact that roughly $48,000 in unpaid taxes was involved), Gibson appealed and got a trial de novo in circuit. There, the circuit court judge, in language that virtually every criminal practitioner will find familiar, ruled that the evidence was sufficient to determine guilt, but he decided to defer a finding for a year. If Gibson would behave himself over that time (implicitly, that should include paying the taxes in full), then the matter would be dismissed.

Gibson kept his end of the deal. He reported back to court about 15 months later, apparently expecting the matter to end then and there. To his chagrin, the judge had had a change of heart. Not about Gibson’s behavior – the judge decided instead that he had no authority to defer the finding. Gibson was accordingly convicted and given a (mostly suspended) jail term. The Court of Appeals agreed to hear the case.

On Tuesday, the court affirms the convictions. The initial holding is that one who accurately reports the taxes due, but fails to pay them, is nevertheless guilty of the misdemeanor. The specific ruling is that either misreporting OR failing to pay is enough to get the defendant convicted. Next, the court finds that one other argument is procedurally defaulted under that ancient goblin, Rule 5A:18. But the real news of this case is the third holding; for that, you’ll want to skip forward to pages 10-12 of the slip opinion.

The appellate court holds that a trial judge does not have the authority to defer findings in criminal cases, absent a specific statutory provision for such deferrals. There are several examples of that authority (the court gives examples on page 10), but this tax statute isn’t one of them. Employing familiar rules of statutory construction, the court rejects Gibson’s principal argument, that courts have the inherent authority to defer. If that were true, the Court of Appeals reasons, then there would be no need for the General Assembly to have specifically granted authority to defer in those cases described on page 10. That means that the general rule is that there is no such authority, absent a specific statutory grant.

This ruling isn’t exactly brand-new; the court notes that Judge Humphreys had reached the same conclusion in a 2001 case. But he was writing a concurring opinion; this one is a unanimous ruling from a three-judge panel of the court, so effective immediately, it is the law of the land, until and unless the Supreme Court (or the en banc CAV) or the General Assembly find otherwise. This is a tremendous victory for prosecutors, and will probably come as a rude shock to many criminal defense lawyers.

One other point – the Supreme Court is indeed considering this very issue, or at least its first cousin, in Moreau v. Fuller, a case that will likely be calendared for argument in the November session. In that case, a juvenile court judge deferred a finding, but the prosecutor got a circuit court judge to issue a writ of mandamus, compelling the JDR judge to act. The Supreme Court accepted an appeal of the mandamus writ, and one of the assignments of error specifically raises the issue of the judge’s authority to defer. My decidedly non-insider view is that the Supreme Court is reasonably likely to decide the case on the appropriateness of mandamus to compel such a ruling, instead of reaching the merits of the authority issue. So unless the Gibson decision gets appealed (or en banc rehearing granted), this will be standard operating procedure across the Commonwealth for the foreseeable future.