(Posted December 12, 2019) It never fails: Whenever I’m out of the office on a Thursday, it starts raining published opinions from Ninth and Franklin. Today I was in the Fourth Circuit to watch en banc oral arguments in DC v. Trump and In re Trump, two appeals involving challenges based on the Emoluments Clauses. When I got back to my car and turned on my cell phone, I learned that the Supreme Court of Virginia – no doubt metaphorically chuckling at me the whole time – handed down eight published decisions today.

Since I’m getting a late start, I’ll analyze some of today’s decisions now and compete the project tomorrow. The dominant theme of today’s batch is criminal law: Six of the eight decisions come in criminal appeals.


Local governments

Local governments are immune from tort liability for negligence in the performance of governmental functions, but they may be liable when the right of action stems from the exercise of proprietary functions. The Supreme Court explores the boundary between these two today in Massenburg v. City of Petersburg.

This is a tragic wrongful-death case involving a house fire. Firefighters responded to the scene but found the nearest fire hydrant inoperable. They located another one 1,000 feet away, but by the time they strung that hose and got to the burning house, the occupant had died from smoke inhalation.

The decedent’s personal rep sued, claiming that a systemic deficiency in the water supply to fire hydrants. The City filed a demurrer and a special plea, admitting the factual allegations but claiming that fire suppression was a governmental function to which absolute immunity applies. Because there were no factual disputes, the trial judge undertook to rule on the special plea over the plaintiff’s objection.

A note about that objection: If a party demands trial by jury, normally he gets a jury trial on a special plea. That’s the Bethel Investment v. City of Hampton ruling from 2006. But there’s a caveat, in that the right to a jury trial applies only where the facts are in dispute. The City admitted all of the facts, so there’s nothing for the jury to do here. Hence the judge correctly took up the matter himself.

The court sustained the plea and dismissed the case. On appeal, the dispositive issue is whether the pleadings here asserted a claim implicating the operation of a fire department (governmental) or the maintenance of a water system (that’s proprietary).

The justices today unanimously find that this claim relates to the operation of a fire department. It cites an old case that rejected immunity for liability related to water-supply issues because, in that case, the water issue was “not directly connected with the extinguishment of fires.” This claim was just that. Moreover, the court adds a cite holding that where governmental and proprietary functions overlap, the governmental function overrides and immunity protects the locality. The court thus affirms the dismissal of the suit.


Criminal law

Murder includes the components of killing another person with malice. A defendant may act with malice when he intends to harm one person but inadvertently kills another, such as when a stray bullet strikes a bystander, through the doctrine of transferred intent. But can a defendant be guilty when the prosecution can’t prove that he was shooting at anyone? That’s the issue in Watson-Scott v. Commonwealth, where the decedent, a mother of three, was admittedly killed by a shot fired by Watson-Scott.

The hypothetical above fits this case well. The decedent was struck by a bullet while sitting in a car with her mother and her children. The defendant had been seen walking a bicycle along the same street with a companion. When a witness looked up at the sound of shots, he saw only the defendant; the companion was nowhere to be seen. The prosecution argued at trial that the judge, as factfinder, could infer that he was firing the gun at his erstwhile companion; the defense insisted that without proof of another person, there could be no malice and hence no murder.

The trial judge agreed with the reasonable-inference argument and convicted the defendant; the Court of Appeals agreed. Today, the Supreme Court affirms on different reasoning. The court cites a line of caselaw that permits a finding of malice not directed toward “any one or more particular persons,” and that malice “may be implied from the deliberate use of a deadly weapon.”

Well, we emphatically have that here, and the justices apply that to rule that this established implied (not transferred) malice, and affirm. The prosecution satisfies the malice component by proving that a defendant intentionally engages in “wrongful conduct likely to cause death or great bodily harm.”

The next decision involves a criminal statute that you don’t see often: felony destruction of property. That statute proscribes destroying the property of another, and makes it a felony if the value of the property is more than $1,000. My best guess as to why this is a relatively rare prosecution is that most folks who do the damage will pay the owner to replace the item, and the owner decides that getting a new item is as easier resolution than prosecuting and taking several trips to court to testify.

Today we get one of the exceptions. In Spratley v. Commonwealth, the property was a grocery scale in an upscale grocery store. Security video showed Spratley in a lively discussion – we don’t know if it was an argument because there’s no audio – with another person. In the course of that encounter, Spratley knocked over the scale, which broke into a gazillion pieces.

The grocer tried to order a replacement from its customary supplier, but the supplier replied that there were no scales of that model available. The company accordingly bought a different, though very similar, scale made by a different company. The purchase price was a bit over $4,000, and that’s what the prosecution claimed was the value of the broken scale.

In court, Spratley argued that this evidence was insufficient to prove the value of what she broke. It was a different model and it was brand-new, not used as the old one was. The trial court looked at the statute and found this passage:

The amount of loss caused by the destruction, defacing, damage, or removal of such property, memorial or monument may be established by proof of the fair market cost of repair or fair market replacement value.

Did you catch the or in there? The court reasoned that the “fair market replacement value” was the cost to buy a substitute. Since the court found the replacement scale to be functionally equivalent to the old one, it convicted Spratley of the felony. The Court of Appeals offered he no succor.

Today the justices affirm, holding that this quoted passage distinguishes this statute from larceny cases, where the value proved must account for depreciation. In destruction-of-property cases, proving the cost of the replacement item is sufficient.

In a short published order, the court today resolves an unaddressed jury-instruction question involving alternative theories. The case is Davison v. Commonwealth. A jury convicted Davison of several crimes including forcible sodomy and aggravated sexual battery. Over Davison’s objection, the trial court gave a combined instruction that covered three alternate ways in which Davison may have overcome the victim’s will: by force, by her mental incapacity, or by her physical helplessness. The jury convicted and the CAV rejected the challenge to unitary instruction. Davison appealed to the Supreme Court, arguing that the instruction could produce a non-unanimous verdict if some jurors found one component and other jurors found a different one.

Today’s order notes that this issue has evaded a definitive ruling. In at least one prior case, the CAV assumed without deciding that the instruction was erroneous but found the error to be harmless; the justices, on further appeal, found that the argument hadn’t been preserved. Today the Supreme Court ends speculation by embracing the CAV’s holding here. In alternative-cause situations like this, where the evidence is sufficient to establish each of the three alternatives, a unitary instruction like this is appropriate.

In yet another published order, Yoder v. Commonwealth, the court takes up yet another case of a defendant who regards the revocation of her driving privileges to be a suggestion instead of a mandate. Yoder was twice convicted of driving after a revocation, once in 2010 and once four years later. On the later of those occasions, she served jail time. When a sheriff’s deputy pulled her for a minor traffic infraction in 2016, she handed over the scarlet letter of a government-issued ID card, not a driver’s license. A quick computer check of her driving record led the deputy to return to her car with a pair of handcuffs.

Despite all this, Yoder complained when the trial court convicted her. She asserted – first in the CAV and then in the SCV – that the evidence was insufficient to prove that she knew her license was suspended. But the abstracts of her convictions showed that she was present in court on both prior occasions, in 2010 and 2014, and that she pleaded guilty and stood there while the judges successively found her guilty. This, the justices hold today, furnished ample support for the conclusion that she knew her licensure status, so the court unanimously affirms her conviction.

Next, in Cilwa v. Commonwealth, the court takes up the question whether a trial court validly imposed an indefinite period of probation. Cilwa found herself on the wrong end of the law in a series of adventures, starting with grand larceny and proceeding to drug offenses. The trial courts treated her with consideration, as I perceive it, offering her sentencing leniency and access to drug-treatment programs. Despite this, she continued to commit crimes and continued to get caught.

In 2009, Cilwa and a prosecutor agreed to extend her previous probation from one year to an indefinite period “in order to complete inpatient substance abuse treatment” and so she could resolve an outstanding felony charge. A year later, a court again imposed indefinite probation, for reasons we can understand.

Several years later, after being arrested yet again, Cilwa challenged the 2009 consent order imposing indefinite probation. She asserted that the court could only modify her probation terms before the original term expired. She also asserted that the deal allowed her to escape supervision by completing her drug-treatment program, and she had a contractual right to be free of that probation.

Justice Kelsey does an excellent job of explaining in detail why both of these arguments are unavailing, so I won’t try to improve on that. Instead, here’s the Reader’s Digest version:

  • Assuming the 2009 order came too late to validly extend the probation, Cilwa consented to it, and then didn’t challenge it for many years. Because any claimed error in the order doesn’t implicate subject-matter jurisdiction, any objection to it is waived by that lapse. In other words, the order was at most voidable, not void ab initio.
  • No criminal defendant can claim that an agreed period of supervision or parole is a contract. It is, under established caselaw, “a free gift of the Commonwealth” to help him turn his life around.

The court thus affirms the revocation of suspended incarceration.

The final criminal appeal of the day is Watson v. Commonwealth, involving convictions of murder, robbery, and companion firearm counts. A jury convicted Watson of shooting two victims, one of them fatally, outside a night club. The surviving victim identified Watson as the shooter.

Because this eyewitness identification was crucial to the case, Watson hired an expert to testify about the reliability of such testimony. In particular, the expert was hired to explain two key concepts: confidence inflation (where a witness’s confidence in his identification rises based on extrinsic factors) and unconscious transference (where a witness unknowingly “transplants” a known person onto an unknown assailant).

The trial judge considered the admissibility of these expert opinions outside the jury’s presence. After a thorough hearing in which the judge participated actively, querying the expert in addition to questions from counsel, the court ruled that the expert could testify as to other matters about identification, but not these two. As to the first, the court felt that the confidence testimony was a matter of common sense and thus within the jury’s province. As for transference, the witness stated that he wasn’t able to identify any in this case, so the court found that testimony irrelevant.

Before sending the case to the jury, the judge refused a model jury instruction that Watson offered, keyed to eyewitness testimony. See VMJI (Criminal) 2.800 (you’ll need to scroll down). The court felt that other instructions in the case adequately covered the topic. The jury convicted Watson, and the court imposed the jury’s recommended sentence of life plus 58 years in prison.

The Court of Appeals rejected Watson’s appeal in a per curiam order, but a writ panel at the Supreme Court agreed to take a look. Today the court unanimously affirms the convictions, agreeing with the trial court’s reasoning in excluding the expert testimony and in refusing what would have been a redundant instruction. On the latter issue, the court notes that the model instruction permits a court “in its discretion” to give the instruction, nothing requires it where the other instructions adequately address the issue.

If you were keeping score today, you noted that in these decisions, criminal appellants went 0-6. The Supreme Court of Virginia is a particularly tough place to get a criminal conviction reversed.



The final published decision of the day – that’s because I read the shorter opinions first, and save the long ones for last – is Transparent GMU v. George Mason University. It evaluates whether a private foundation that exists to support a public university is subject to the Freedom of Information Act.

It’s no secret that George Mason University is a favorite of conservative donors, and maybe even conservative causes. Its notable donors include Charles Koch and his late brother David. An entity named Transparent GMU submitted a FOIA request to the university and its privately owned foundation, seeking records of donations from the Kochs and one other donor.

The university replied that it had no such records, since donations went to the foundation. The foundation responded that, as a private entity, it wasn’t subject to FOIA and had no duty to disclose anything. In the ensuing lawsuit, a circuit court agreed with the respondents and dismissed the case.

Today the Supreme Court unanimously affirms. Justice Powell’s opinion for the court spells out the history of the university and its foundation, noting the separation between the two. The court notes that the foundation is not a GMU entity and, except for a minimal payment to pay student employees, doesn’t receive public funding. The court rejects Transparent GMU’s effort to pierce the university’s corporate veil – assuming the school is a corporation that possesses a veil – because there’s nothing to show that it uses the foundation as an alter ego for improper purposes. Finally, one overlapping official – a university vice president who also sits on the foundation’s board – doesn’t warrant a conclusion that the two entities are actually one.

I’m as big a proponent of open government as the next guy, but I have to agree with the court’s reasoning here. It’s understandably frustrating that donor records for a public school aren’t publicly available, but in my mind there’s no arguing with this arrangement. Today’s opinion notes that the legislature considered a bill in 2017 that would expand the definition of public body to encompass foundations like this, but the bill died in a Senate committee. It is at least conceivable that the new Democratic majority in the legislature could revisit that, in which case today’s ruling would have a short shelf life.





(Posted December 5, 2019) The Supreme Court of Virginia today decides Davis v. Davis, involving the question whether a power of attorney granted the attorney-in-fact the power to give away all of the maker’s property. The maker granted to his mother the power to “sell and convey any and all personal property and all real property” that he owned and to “execute and perform all and every act or acts …  to all intents and purposes whatsoever as [her son] might or could do if acting personally ….”

Twelve years later, the son made a will leaving his property to various family members, to a church, and to a family employee who performed some caretaking tasks for him. The mother knew that the will existed, but didn’t know what it provided.

Another eight years later, the son fell ill. The family placed him in a nursing facility. On October 1 of that year, the son married the family employee in what today’s opinion describes as a closed-door ceremony, presumably with no family members present or even aware of the wedding. The mother found out two weeks later.

The son’s condition worsened to the point that he was moved to a hospital. On the 25th day of his marriage, he became “incapacitated and in jeopardy of dying.” On the 31st day of his marriage – we’re now up to Halloween – the mother transferred most of her son’s personalty to herself and executed deeds of gift conveying his real estate to her other two children. She didn’t tell her son about these transfers, the value of which exceeded $2 million. The son died 15 days later.

Back to the will: The son’s brother found himself in what may have been an uncomfortable dual position. In addition to being the grantee on a deed conveying real property, he was also the executor of his late brother’s will. He sensibly filed a petition seeking the aid and direction of the court to sort out the legality of his mother’s gifts. The trial court ruled that they were indeed legitimate, considering the expansive language of the power of attorney and the decedent’s history of giving property away during his lifetime.

Except, the Supreme Court rules today, the language wasn’t so expansive and there was no such history. The Uniform Power of Attorney Act requires an express grant of authority to make gifts, and you won’t find that word in the language I quoted above. The mother argued that the phrase sell and convey equated to the power to make gifts, because a gift is a form of conveyance. But interpreting the phrase narrowly, the justices today rule that this only gives the power to convey property for money. Reading the phrase the way the mother urged would convert it into “sell or convey,” and the court declines to edit the document in this way.

As for a history of giving, the court considers the three events of which the trial court received evidence. In the first two, the son had made a 90-year lease of land, for a one-time payment of $1,000, to the son of his late-in-life wife, and allowed that man to use the land as collateral for a loan to enable him to build a barn on it. But that’s not a gift, no matter how low the rental payment was; and besides, the owner got the benefit of a new barn on his land. The tenant also paid real estate taxes on the land for many years. That makes the transaction a contract, not a gift.

Similarly, the trial court heard that the maker had once, many years earlier, given $10,000 to his brother, the executor. The justices today rule that that’s different in character from giving away all of one’s property; and in any event it was just one gift, not a pattern of giving.

The court thus reverses and remands the case for a fuller construction of the will. Today’s opinion fills in at least one gap in our jurisprudence; as the court notes, “There is little Virginia case law interpreting the phrase ‘sell and convey.’” Practitioners who seek to cite this case need to be aware of the interpretive context, though; here, the court was required by statute to construe the term strictly and narrowly. In another context – ordinary contract interpretation, for example – a different rule of construction might apply. But in my view, this ruling is entirely correct within the realm of powers of attorney.





(Posted December 2, 2019) I reported recently on a very rare development at Ninth and Franklin: a looming motion hearing before the full Supreme Court. I’d never heard of such a thing, and after mentioning this to some of my appellate pals, they shrugged as well. The motion sought to compel a lawyer-legislator to stop using Code §30-5 to extend indefinitely the deadline to file a brief of appellee in a granted appeal.

For those of you hoping to see some fireworks, I’m going to have to disappoint you. The appellee saw the freight train coming and decided to get off the tracks. The brief of appellee hit the Clerk’s Office one day before the appellee’s pre-hearing letter brief was due. Since that filing resolved the motion, the Supreme Court has removed the hearing from tomorrow’s docket.

This is good news in one regard for the lawyers who’ll be presenting or monitoring writ arguments tomorrow: They’ll get home sooner. The court had set the motion hearing for 1:00, which is the normal start time for writ panels. That would have set everyone’s schedule back by 30-45 minutes. At this point, I expect writ arguments to begin at 1:00, ending somewhere around three hours later.

Back to the motion itself: I strongly suspect that the justices were relieved that the lawyer capitulated instead of defending his statutory right to an automatic continuance. This could have been a real turf war between the legislative and judicial branches of government, at the highest level. With a declining number of lawyers in the General Assembly, perhaps this perk is less important to the legislators now. But an endless delay is an intolerable price to pay for that statute, and I sense that the court would have found a way to compel him to file, holding that he had somehow waived the privilege. For now at least, we won’t know the answer. Let’s hope we never do.






(Posted November 27, 2019) Looking at the weather forecast for much of the eastern half of the nation, I hereby offer my sincere wish that, wherever you’re planning to spend your Thanksgiving, you’re there already.

The appellate courts are closing for the holiday weekend, starting this afternoon for the state courts and tomorrow for the Fourth Circuit. Both will remain closed through the weekend, reopening Monday. This means that if you have a filing deadline in the appellate court that falls today through Sunday in state court, or tomorrow through Sunday in federal court, you get an automatic extension until Monday, December 2.

For those of you who like long-term planning, I know the state court schedules for the end of December. The Supreme Court and Court of Appeals of Virginia will close December 24-26 and December 31-January 1. For Christmas week, that means an oddball calendar: open Monday and Friday only. I imagine there will be more than a few requests for vacation days in there, especially if someone has use-‘em-or-lose-‘em days.

Meanwhile, we’ve got opinions! With the courts closed tomorrow, the Supreme Court hands down two published opinions today from appeals argued in the October session. Both of today’s opinions are short, for which boon I thank Justices Mims and Lacy, the authors of the decisions.



Perhaps you’re one of those folks who collectively yawn at the prospect of an opinion that sorts out liens subject to a subordination agreement. I’m not about to tell you what you should be interested in, but give Futuri Real Estate v. Atlantic Trustee Services a fair read. The conundrum in it will at least make you think.

Here’s the setup: A particular Blackacre in Fairfax County is encumbered by three deeds of trust. To be consistent with today’s opinion, we’ll call them Liens A, B, and C. They were recorded in that order, and aggregate to nearly a million bucks, so this Blackacre must be pretty valuable.

Wells Fargo Bank held Liens A and C; SunTrust held B. For internal reasons that today’s opinion doesn’t discuss, Wells Fargo wanted to subordinate Lien A to Lien C. It therefore recorded a subordination agreement doing just that. The document didn’t mention SunTrust or Lien B.

Well, you know what happened: The debtor, eager to see what would happen, defaulted on Lien B. SunTrust’s substitute trustee foreclosed, knocking down the sale at $468K, which is somewhat short of the amount necessary to satisfy everyone. The trustee paid the costs of sale, paid SunTrust its lien, and had about $200K left over.

At this point, the auction buyer and Wells Fargo started arguing over where that money should go, and whether the bank’s first lien still encumbered the property. The issue here is what effect the subordination agreement had on Lien B. If Lien A is now subordinate to Lien C, that puts it last in line, so the foreclosure of what was then a first lien wiped out all junior liens. Right?

That’s not the way the learned circuit court judge saw it. Believe it or not, this kind of dispute crops up often, and American courts have diverged on which approach to use. A majority follow the partial-subordination approach, whereby the agreement leaves Lien B in second position, and Liens A and C fight over the money attributable to Lien A. A minority of courts take the simpler complete-subordination approach: By subordinating itself to the last lien in line, Lien A has now become, well, last in line. That would make Lien B seniormost.

The judge sided with Wells Fargo, ruling that Virginia law requires partial subordination. Today the Supreme Court unanimously agrees and affirms. The court rules that in Virginia, we interpret contracts so that we carry out the intention of the parties. We also require that if someone is to be a third-party beneficiary of someone else’s contract, that fact should be apparent in the contract. This means that SunTrust is paid in full, but Wells Fargo is still entitled to be paid up to the amount of the first lien.

I work in a firm with a lot of dirt lawyers, and they love this stuff. When I saw the assignments of error here, I sent word around my firm, spurring a host of predictions about how the appeal would come out. Most of them guessed wrong.



This header is bound to get the attention of the appellate lawyers in my audience. Jackson v. Jackson resolves the power of a circuit court to make substantive changes in a pension-distribution order more than 21 days after final judgment.

This appeal involves spouses who divorced in 2011. The circuit court entered two decrees on the same day. The divorce decree stated the parties agreement to divide marital property, including the husband’s military pension. The second, entitled “Order Dividing Military Pension,” carried out that agreement by specifying a monthly annuity amount to be paid to the wife. The second order provided that the court retained jurisdiction under Code §20-107.3(K)(4) to enter orders necessary to effectuate and enforce it.

Six years later, the wife moved the court to reopen the case to modify her pension amount. She asserted that the husband’s benefits had increased over the years, but her annuity payment remained fixed. The trial court ruled that the parties had agreed to a fixed monthly amount, so the second order was consistent with the divorce decree.

The wife appealed to the Court of Appeals, which ruled that the circuit court didn’t have jurisdiction six years later to modify the second order anyway. It also ruled that the statutory authority to modify a distribution order doesn’t extend to changing the substance; it only allows a court to correct errors and omissions. Since both original orders were by consent of the parties, the court couldn’t use the statutory power to materially alter the agreement.

The justices affirm today, agreeing fully with the CAV’s reasoning. The court holds that trial courts indeed can’t use the statute to change the parties’ deal; only to effectuate it.

I’ll note here my gratitude to Justice Mims, who writes today’s opinion for a unanimous court. Here’s the second sentence of the opinion: “Marie Dolores Jackson and Dennis Michael Jackson married in June 1974.” Did you see what’s missing? Identifiers, that bane of legal writing. Another writer might have written, “Marie Dolores Jackson (“Marie”) and Dennis Michael Jackson (“Dennis”) married in June 1974.”

While this runs counter to what lawyers have learned, it’s almost always better to omit the modifiers where there’s no reasonable probability of ambiguity. There’s only one Marie and one Dennis in today’s published opinion, and Justice Mims wisely doesn’t insult the reader by telling us what to expect.






(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

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(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

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