(Posted June 21, 2017) Yesterday the Court of Appeals of Virginia handed down three published opinions. Let’s take a look at two of them here.


Domestic relations

The en banc court adjudicates an issue at the intersection of state and federal law in Canales v.  Orellana, involving a boy born in Honduras in 2004. His father had nothing to do with him, so he was raised by his mother and maternal grandmother. Two years later the mother emigrated to America, leaving her son behind with the grandmother.

Years later, the mother brought her son back to America, and in 2015 she petitioned a JDR court in Loudoun County for custody. In the course of that proceeding, she asked the court to make findings that could serve as the predicate for something called Special Immigrant Juvenile status, a means of obtaining permanent residency. The ultimate decision of whether to grant a child SIJ status is up to the feds; but it all starts with findings in state juvenile courts.

The Loudoun JDR judge was happy to help the mother with a custody award, but balked when it came to the predicate SIJ findings. The court felt that it didn’t have jurisdiction to issue such findings. On appeal, a circuit-court judge agreed.

The Court of Appeals unanimously affirms this ruling. Judge Humphreys writes the opinion, which is a methodical stroll through the origins and limitations of a JDR court’s jurisdiction under the Constitution and Code of Virginia. (On appeal, the circuit court’s jurisdiction is derivative of the JDR’s.)

The court begin by noting that while some states have enacted statutes allowing their courts to make SIJ findings, Virginia hasn’t done so. Nor does the federal statute require state courts to make such findings – and I’m not sure that it could ever do so in any event, since as I conceive it, federal law doesn’t govern the subject-matter jurisdiction of state courts.

That isn’t the end of the question. Virginia JDR courts are empowered to consider a spectrum of factors in adjudicating matters involving juveniles, specifically including the best interest of the child. The mother argued to the CAV that in the course of the custody case, the juvenile court had the authority and even the duty to consider all facts relevant to the child’s best interest, and SIJ status (or not) is emphatically relevant to a child like this.

Here; you can decide for yourself if you agree. These are the two predicate facts that would allow the federal authorities to confer SIJ status:

an immigrant present in the United States —

(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law; [and]

(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence …

The mother contended that her son was under the JDR court’s jurisdiction, and his best interest was at the heart of the second factor. So how does she lose?

The Court of Appeals focuses on what the federal statute does not do: “In short, nothing in the federal statutory scheme mandates or requires that a state court take any action regarding SIJ findings.” Judge Humphreys is careful to note that the findings that the lower courts made here might well satisfy federal authorities in this case and in other similar ones. But that’s a matter for the feds to decide; not for a state-court judge to “pre-decide.”

And yet that factor might scuttle the federal process in this instance. At the JDR level, after listening to some testimony, the court declined to make certain findings, such as that the father had abandoned the child. The judge heard testimony before reviewing a proposed order prepared by the mother’s lawyers. The judge struck out paternal-abandonment language, noting that testimony on that point constituted hearsay that was “not sufficiently reliable to find that the Father has abandoned the child.”

Because of the procedural posture of this case, the mother is stuck with that factual finding. Since it depends on the factfinder’s assessment of live testimony and other evidence, the CAV won’t touch it.

Even so, there’s a fair chance that the justices might decide to take a look at this case, if the mother decides to appeal onward. It’s clearly a matter of first impression in Virginia – the CAV opinion says so – and given both its novelty and the importance of immigration matters in today’s culture, the Supreme Court might well conclude that this appeal involves “matters of significant precedential value,” one of the findings that would allow the justices to review a case like this under Code §17.1-410(B).

I did have one lingering concern about this outcome. The lower courts didn’t decline to make specific SIJ findings because of a failure of evidence or an exercise of discretion; both judges expressly ruled that they didn’t have jurisdiction to make the findings. This aspect of the case is a legal determination, and the Court of Appeals reviews it de novo. But the court’s holdings in this opinion focus on whether the courts were required to make the findings; not on whether they had the authority to do so. Those are two separate issues.

I’ll mention one other matter about this case. The father, presumably back in Honduras, has no idea that these proceedings are going on, since he was served by publication, presumably in a periodical that isn’t likely to achieve wide distribution in Honduras. Because of the importance of the legal issues and a father’s right to some sort of relationship with a child, the Court of Appeals appointed my friend Bill Hurd, Virginia’s first Solicitor General, to represent the father’s interests. I’ve read Bill’s brief and it’s an excellent piece of lawyering; he also went the extra mile by attempting to contact the father through an embassy, to try to ascertain his desires. I won’t let this report conclude without my expressing my admiration for Bill’s professionalism.

Indeed, the Court of Appeals had an impressive array of highly professional briefs all around, including the mother’s and amici including the Virginia Attorney General. In an era when CAV judges have to slog through a great deal of sloppy prose, it must have been a pleasure to review a case that featured high-quality briefs all around.


Criminal law

And that provides a nice segue into the other decision that we’ll explore today – Bartley v. Commonwealth. At its core, it’s about a drug-possession conviction. But in reality, it’s about the other end of the briefing spectrum.

Experienced appellate lawyers know that in addition to setting out assignments of error, an appellant must include argument and authorities for each assignment. Bartley contended that he was essentially entrapped by police; he complained that the trial court should have granted his motion to suppress, and that without the “suppress-worthy” evidence, there was no case against him.

Most of the lawyers among my audience might have a fair idea about how to craft an argument along those lines. But the appellant’s lawyer in this case left something to be desired in the eyes of the panel that considered his appeal. The opinion comes from Judge Petty – whom I know to be a patient man – and ominously includes the appelant’s “entire argument, unedited,” in support of his sole assignment of error.

If that phrase didn’t cue ominous music in the back of your brain, welcome to the world of understated appellate writing. The entire passage appears at pages 2-3 of the slip opinion. It cites two cases (although it does so only by using a single name, with no citation to a reporter), one of which states only that search warrants are presumed to be valid – hardly a helpful point for a criminal appellant. It contains typographical and grammatical errors. The entire argument can be summarized as, “It wasn’t fair for the police to do this, so I deserve to be freed.”

If the argument were fully developed, perhaps he should be freed. We’ll never know, because the CAV panel unanimously (and understandably) rules that in the absence of authorities to back up your arguments, the issue is waived for review, because Bartley’s brief “leaves us without a legal prism through which to view his alleged error …”

In jurisprudential parlance, this short opinion is what’s known as a bench-slap.