ANALYSIS OF NOVEMBER 25, 2020 SUPREME COURT OPINION
(Posted November 25, 2020) In the spirit of the holidays, the Robes by the banks of the James give us a gift in the form of a published opinion this morning. Today’s ruling in Sheehy v. Williams will fascinate appellate lawyers; the rest of you may want to stick to planning tomorrow’s menu. Even so, I’ll try to make the prose sparkle.
The facts underlying the judgment are largely immaterial to today’s dispute. Williams got a judgment against Sheehy in circuit court for about $51,000. The clerk duly docketed the judgment, creating a lien in favor of the creditor against any real estate that the debtor owned in the city.
The debtor did indeed own a home there. She noted an appeal and eventually got a writ. But while the appeal was pending, after the writ grant, the debtor contracted to sell her home.
Dirt lawyers know well that, to convey good title to the buyer, that lien has to be addressed. The home buyer’s lawyer, who served as the closing attorney for the sale, picked up the judgment in a title examination, since it’s within the chain of title. He wrote to the judgment creditor’s attorney, asking for a payoff figure for the judgment.
The creditor’s lawyer wrote back, specifying an exact payoff figure of about $54K. The closing attorney prepared the usual collection of checks, including a payoff for the judgment. He sent the creditor’s attorney a check for the full payoff amount, along with a copy of the letter in which he had provided the figure. Next to the circled payoff figure on that letter appeared a set of initials that correspond to the judgment debtor’s name.
Uh-oh. The creditor’s appellate lawyer is no schnook; he immediately recognized that the debtor had evidently authorized a voluntary payment of the judgment. Under well-established Virginia caselaw, doing that moots the appeal. The debtor can still pursue the appeal if the payment is involuntary – for example, the creditor has obtained a garnishment summons or has initiated a creditor’s bill to sell real estate. But here, no one had forced the debtor to act; she just wanted to sell her home.
The creditor moved the Supreme Court to dismiss the appeal as moot. A month later, the parties presented oral argument on the merits to the full court. As you can imagine, the judgment payoff was the primary topic of discussion. At one point, Justice Kelsey directly asked the debtor’s lawyer if the debtor authorized the payoff. The lawyer said he didn’t know.
This puts the appeal in a perplexing posture. The potentially fatal event occurred well outside the trial-court record. The justices have only the appellate lawyers’ representations about what had happened a month before. Finding that that’s not enough to go on, the court takes the rare step of holding the appeal in abeyance and temporarily remanding the case to circuit court for factfinding on the circumstances of the payoff. Today’s opinion posits eight specific questions for the court to address. But the language of the opinion telegraphs clearly that if the facts come out as one would expect, the justices will eventually dismiss this appeal under the voluntary-payment doctrine.
What could the debtor have done to preserve her appeal here? Again, for dirt lawyers, there’s an easy answer: an escrow agreement. The debtor could have approached the creditor and asked for an arrangement whereby someone – possibly the closing attorney, who didn’t represent either party to this appeal – would hold the money in trust, awaiting the outcome of an appeal. For the creditor, that’s the functional equivalent of a supersedeas bond, making collection easy in the event of an appellate win. For the debtor, it allows her to sell her house without punting the appeal. But that’s not what happened.
This circumstance isn’t likely to occur often. But for appellate lawyers, this is an important refinement of the voluntary-payment doctrine.
APPELLATE NEWS AND NOTES
(Posted November 23, 2020) It’s time for a status report on a few developments in the appellate world.
The three appellate courts that convene here in Virginia continue to operate virtually:
- The Fourth Circuit has canceled in-court oral arguments through the end of the year. Its online announcement says that the cases slotted for the last session of the year, December 7-11, “will be heard by videoconference or teleconference as directed by the panel assigned to the case.”
- The Supreme Court of Virginia has heard its last merits argument of 2020; the next full session will convene the week of January 11, to coincide with the beginning of the 2021 legislative session. The court will convene writ panels on December 1, and while I don’t have a copy of the cover letter, I’m confident that those arguments will be audio-only.
- The Court of Appeals of Virginia has today issued a fourth order on court operations. This order continues current pandemic operations through “at least April 30, 2021.” This means electronic-only filings and virtual oral arguments, as has been the case for months now.
My informal sense is that the CAV is working wonders somehow – the court is coming the closest of the three to operating with minimal effect from the state of emergency.
Another indicator of docket decline
I mentioned just now the Supreme Court’s December 1 writ-panel dockets. The justices will consider just 36 petitions for appeal that day. I don’t have a copy of the docket for the final writ panel of 2019, but I might wager a small amount of American currency that the figure was closer to 60 or even 65 last year. I pointed out in a September 30 post here that the October panels contained only 40 appeals, and we’re even down from that.
My best guess is that the SCV’s docket will continue to lag in the first half of 2021. The Court of Appeals is down significantly this year, but I think that will rebound more quickly. That’s because the primary components of its docket are (1) criminal cases, which will get priority as courts reopen; (2) domestic-relations cases, which are bench trials and thus not affected by the Supreme Court’s jury-trial restrictions; and (3) Workers’ Comp appeals, which again don’t go through juries. Another best guess is that the CAV’s 2021 docket will lag behind 2019’s only fractionally; the SCV’s will be off much more significantly.
A drop in opinions, too
I need to preface this section by noting that while SCOTUS calculates and published its statistics according to Court terms, which run October through June/July, the SCV publishes its stats on a calendar-year basis. The comparison here isn’t perfect, but I think it’s close enough.
I recently “attended” a video presentation by Boalt Hall Law Dean Erwin Chemerinsky on the significant civil and criminal decisions from SCOTUS in the October Term 2019. That’s the not-quite-year between the first Monday in October 2019 and the issuance of the Court’s final opinion in early July of this year. Dean Chemerinsky annually offers this talk in the ABA’s Appellate Summit; but for the pandemic, that Summit would have met last week, and today’s essay would be a recap of it. (The 2021 Summit is, at least as of this point, on for the second weekend in November in Austin, Texas.)
The dean always prefaces his comments with a few statistical notes. As you’ve no doubt realized, I’m a stats geek, so I always enjoy that part. This year, he told the over 1,000 video attendees that the Supreme Court issued just 53 published opinions in OT19; he added that that’s the lowest total since 1862.
That made me wonder about the SCV and its rate of published opinions. This is no secret; you just go to the court’s web page listing published opinions, and count them up. Thus far in 2020, The Robes have given us 41 published opinions and seven published orders. We’ve also seen 25 unpublished orders – rulings that adjudicate the appeal but don’t appear in Virginia Reports and don’t carry precedential weight. That means there are 73 total dispositions on the merits so far.
Let’s take a look backward to see how this pace compares with historical figures. Ten years ago, in 2010, there were 117 opinions and 59 orders, for a total of 176. Another ten years back and it’s 159 opinions and 84 orders, so we’re up to 243 merits rulings.
I won’t keep boring you with numerals; I’ll get to the bottom line. I have statistics on the court going back to 1965, and what we’re seeing in the past few years are historically low numbers of merits rulings. The court set a new low record, going back as far as I know, in 2018 with just 116 such rulings. That dropped to 112 last year. This year, unless something extremely dramatic happens, we won’t hit triple digits.
The final point I’ll mention here is that these 2020 stats don’t reflect pandemic decreases. As I noted in a recent post, all of the appeals that the court has ruled on this year reflect final lower-court decisions that came down before March 2020. That means that next year, with the possibility of a sharp drop in new filings due to the pandemic’s effect on circuit courts, this year’s unfortunate record won’t survive twelve months before the 2021 total undercuts it.
A watershed moment looms
Peter Vieth of Virginia Lawyers Weekly reported early this month that the Judicial Council of Virginia has endorsed the idea of creating a universal appeal of right to the Court of Appeals of Virginia. The Council’s approval was unanimous. The matter goes on to the General Assembly, where I understand that Senator Edwards or Senator Surovell may carry it.
This won’t mean an immediate shift on July 1; the smarter money is on a delay of about a year, maybe more. As it’s now in the hands of the 140 Level Heads, I won’t weigh in too strongly; I’ll offer only three short comments instead. About. Damned. Time.
ANALYSIS OF NOVEMBER 19, 2020 SUPREME COURT ORDER
(Posted November 19, 2020) My love of history prompts me to pause before taking up this morning’s solitary published ruling from the Supreme Court of Virginia. Today is the anniversary of the most celebrated speech in American history, the Gettysburg Address. Lincoln’s memorable prose, his brevity – two minutes! – and his stirring closing remain one of the best studies on how to craft an effective speech.
Those of us who are up to their elbows in post-election disputes, specifically those who seek to invalidate ballots with which they disagree, would be wise to heed that closing. If government of the people, by the people, and for the people is not to perish from our corner of this Earth, then undemocratic efforts to obtain political power by subterfuge must end, and end now. An earlier great American described the result of the Constitutional Convention as “a Republic, if you can keep it.” Our constitutional democratic republic doesn’t operate on autopilot; it takes commitment to the rule of law to ensure that we can stand apart from the petty dictatorships of the world.
A divided Supreme Court today affirms the Court of Appeals in two related proceedings under the caption Commonwealth v. Groffel. The case implicates the Double Jeopardy Clause, running in both directions.
Groffel was found to have possessed a firearm while under the burden of five separate protective orders. The orders protected three adults and Groffel’s two children. The issue is how many separate violations that single possession constitutes.
The circuit court found that it made for five separate crimes and convicted Groffel on each. It also convicted him for two counts of possession or transportation of ammunition. In a published opinion written by Chief Judge Decker, a panel of the Court of Appeals reversed one of the ammunition convictions, but affirmed the multiple firearm convictions.
In a short published order this morning, four justices vote to affirm for the reasons set out in the CAV opinion. The Supreme Court doesn’t craft its own prose here; it merely adopts the CAV’s analysis by reference. In this way, Chief Judge Decker effectively writes the Supreme Court’s final opinion in the case. Her analysis centers on the wording of the statutes, which she concludes indicate a legislative intent to create separate offenses for persons under multiple interdictions.
Three justices dissent in part. Justice Powell, writing for Justices Goodwyn and Mims, would reverse the multiple firearm convictions “on the basis that the possession of a firearm is a single offense regardless of the number of disqualifying classes to which Groffel belongs.”
If you’re wondering if an unsigned order like this carries precedential weight, the answer is yes. Because the court chooses to publish the decision, this is the law of the land (at least the land that’s in Virginia) henceforth. If you plan to cite it, the best practice is to do it like this: Groffel v. Commonwealth, 70 Va.App. 681 (2019), aff’d sub nom. Commonwealth v. Groffel, 300 Va. ___ (2020).
One final note: Justice Chafin sits this one out, because this appeal came through the Court of Appeals during her tenure there. She wasn’t on the panel that decided the case below, but because the CAV circulates all published opinions to the full court for comment, she had seen and evaluated this case back then. Senior Justice Russell sits in for her in the Supreme Court.
APPELLATE DOCKETS IN A PANDEMIC
(Posted November 18, 2020) Let’s take a few moments to see where the Virginia appellate courts are in processing incoming appeals.
I’ll admit to experiencing a few Chicken Little moments over the past several months. The primary raw materials of an appellate caseload are final circuit-court judgments. As every Virginia lawyer knows, those aren’t coming down at the same pace this year because of the judicial emergency, including the paucity of jury trials. At this writing, 28 circuit courts across the state have received green lights to resume trying cases by jury.
That stat is just about the end of the good news. The bad news includes:
- Ninety-two circuit courts are still not approved
- The 28 that have reopened must give priority to criminal appeals, so civil cases will languish awhile
- Those 28 courts are processing trials very slowly
- A recent spike in Covid cases has led the Governor to tighten restrictions on gatherings
For the second bullet point above, there’s a wide disparity between circuits. Norfolk held its first civil jury trial yesterday. Fairfax probably won’t start until 2022; that court expects to take all of 2021 to clear out the backlog in the criminal trial docket.
On the fourth point, my fear is that the Supreme Court may follow the Governor’s lead if the spike continues; the justices may suspend new approvals or reverse previous ones. That’s conjecture for now, but if the contagion expands here, I wouldn’t be stunned to see that kind of retrenchment.
I decided to look into what may be the best indicator of appellate business, new appellate filings. Yesterday, SCV Clerk Doug Robelen opened Record No. 201382. The first two digits are the year; the next four represent the ongoing count. The court has received and processed 1,382 appeals (including original-jurisdiction filings) since January 1.
I was initially surprised to find that the Clerk opened the 1,382nd record last year on October 15, about a month earlier. That was reassuring – while filings are down, it isn’t the catastrophic collapse that I had feared. But I suspect that this year’s filings, particularly in the past several months, are disproportionately in criminal appeals from the CAV, where there’s no moratorium on the process. I suspect that when we get the annual statistical report early next year, we’ll see a significant drop in the number of civil appeals. That, too, is speculative for now, but I believe that the stats report will bear this out.
In the Court of Appeals, Clerk Cyndi McCoy has opened 1,299 files through yesterday; she reached that number last year in mid-August. This is where the real slowdown shows up.
Time to translate those stats into English: In the Supreme Court, filings are about a month behind where they were last year, leading me to guess that the year-end figure will be down by something on the order of 10% from last year’s 1,730. The CAV is three months behind, so that court might only see about 1,600 filings this year, down 500 or so from last year’s total of 2,090. That’s a drop of almost a quarter.
Let’s take the next step and project what may happen in 2021. The Supreme Court’s caseload includes direct appeals from circuit courts in most civil cases, and secondary appeals from the CAV in criminal and domestic-relations appeals. (The CAV also processes Workers’ Comp appeals, but Deputy Commissioner Debbie Blevins’s mediation crew is so dag-blasted effective that there are relatively few of those to appeal these days.) The criminal/domestic appeal pipeline will slow somewhat, based on what we’re seeing in the CAV. The civil supply has already slowed to a trickle, to the point that I fear several micro-dockets in merits sessions in the middle of next year.
The Court of Appeals will probably see an uptick in its 2021 caseload, as more and more circuit courts reopen and prioritize criminal trials. But I don’t expect 2019 levels anytime soon; it may be a couple more years for that.
In sum: We appellate lawyers are not in a growth industry right now. There’s a good possibility that more and more litigants will turn to ADR, especially those facing delays into 2022. I sometimes offer a good-natured curse to successful mediators, since nobody appeals a settlement, and appellate lawyers gotta eat, too. But the judicial system exists to supply a meaningful and peaceful alternative to violent dispute resolution, and it’s plainly impaired in that function now, through no fault of the judiciary. To many litigants, ADR is looking better than ever.
ON SUBSTANTIVE DUE PROCESS
(Posted November 5, 2020) Not a peep out of Ninth and Franklin today, so let’s take a look at an issue that will be on a lot of lawyers’ minds in the coming months. The confirmation of Justice Barrett to SCOTUS has many observers musing the prospective longevity of Roe v. Wade, to say nothing of the Affordable Care Act. Let’s bite off a small chunk of that topic: the role of substantive due process in our modern jurisprudence.
That sound you just heard was hundreds of lawyers’ eyes rolling simultaneously. Many lawyers don’t encounter SDP in their practices and haven’t considered it since the ordeal of Constitutional Law back in law school. Many nonlawyers will understandably wonder what it means: Due process must involve procedure; how can it be substantive?
If you’re looking for an in-depth discussion of the origin and contours of this legal principle, look elsewhere. The world is full of law-review articles on the subject, most (though not all) making for quite dry reading. Because I love you, my dear readers, I plan to keep this breezy. We will instead focus on some of the holdings that turn on substantive due process and its near cousin, the right to privacy. This will necessarily focus on federal decisions, those arising in SCOTUS.
Any attack on Roe will likely strike at its underpinning in SDP. That decision held that before fetal viability, a woman had a privacy right to be free from government interference in her decision whether to have an abortion. (Roe doesn’t stand for “abortion on demand up to the moment of birth,” as many of its detractors insist.)
But we’re here to describe the bounds of SDP rights; not to advocate. As I’ve stated many times, we don’t do politics here at VANA, and I’ll leave that to others.
To today’s audience, freedom to marry points immediately to Obergefell v. Hodges from 2015, where the Court ruled that same-sex couples had a right to marry, just like heterosexual ones. A substantial portion of America still rankles at this holding, but the large number of same-sex spouses here won’t go away.
The marriage issue goes deeper, though: Loving v. Virginia (1967), which barred antimiscegenation statutes, turns on SDP analysis. While I can envision that substantial portion of America described in the previous paragraph, I doubt there’s more than a tiny sliver of Americans who agree that states may prohibit interracial marriage. Loving is now a fully accepted part of our society. Even so, abandoning SDP will undercut the ratio decidendi of Loving.
Roe v. Wade is, of course, the star of the show here, but its analytical ancestor, Griswold v. Connecticut (1965), would likely fall with the same blow of the judicial axe. Griswold holds that married couples have a privacy right to use contraception if they wish. (The Court added unmarried couples to the protection of this umbrella seven years later in Eisenstadt v. Baird.) The State of Connecticut had barred the use of contraception; the justices ruled that the government had no place in private bedrooms. As with Loving, I seriously doubt that most of America would tolerate a reversal of Griswold’s holding.
Another decision implicates the decision whether to bear a child at all: Carey v. Population Services Int’l (1977) holds that even minors have the right to decide whether to use a pharmaceutical called Plan B to prevent pregnancy.
Family and personal relationships
In Pierce v. Society of Sisters (1925), the Court applied SDP to strike down compulsory public-school attendance, holding that parents have a right to send their children to parochial schools. This was one of the first decisions to recognize noneconomic substantive due process. Previous cases, such as Lochner v. New York (1905) had addressed the individual freedom to contract.
End-of-life decisions are the focus of Cruzan v. Director (1990), in which the Court ruled that a terminally ill patient has the right to refuse life support. Media dubbed this the “right to die” case, noting that it was different from physician-assisted suicide. This decision is the foundation for advance medical directives (something you should have, in my humble opinion).
SCOTUS later applied SDP to invalidate prohibitions of sexual relations between consenting same-sex adults in Lawrence v. Texas (2003), reversing a decision announced merely 17 years before.
These, then, are some of the rights that the law now affords to American citizens, all based on substantive due process. The principle has its share of detractors, most famously Justice Nino Scalia, who scorned it as “infinitely plastic,” seemingly able to cover rights mentioned nowhere in the Constitution. Justice Clarence Thomas maintains that antipathy today; readers may see his frequent dissents in recent caselaw, criticizing the doctrine harshly.
I sense that Thomas may have company now in the form of the three Trump-appointed justices: Gorsuch, Kavanaugh, and Barrett. If these four agree to revisit the entire concept of SDP, they’re likely to find a willing ally in Justice Alito, able to form a five-justice bloc willing to cast the principle into the annals of legal history.
Closer to home, Justice McCullough of the Supreme Court of Virginia has expressed his skepticism of SDP. In a concurring opinion in Palmer v. Atlantic Coast Pipeline in July 2017, he observes that the SCV has never recognized a substantive component to our state constitution’s Due Process Clause; the court has discussed the right only in the context of federal decisions. He goes on to note that nothing in the text or legislative history of our constitution indicates that such a right exists in Virginia law.
Justice McCullough then adopts Justice Scalia’s argument that SDP is too pliable and undefined to be useful as legal doctrine: “Having made its peace with economic legislation, shape-shifting substantive due process has now found new form as a device to invalidate a different kind of disfavored legislation, usually by slender majorities.” He argues that other courts’ attempts to apply the doctrine have resulted in uneven and ill-supported holdings.
The concurrence includes this fascinating passage toward the end; I quoted it when I reported on the ruling in 2017, and I’ll repeat it again here:
To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive due process as part of Virginia’s constitutional jurisprudence, a review of the United States Supreme Court’s jurisprudence convinces me that we ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.
No justice joined this concurrence, because it wasn’t necessary to the Supreme Court’s holding. But you should assume that this line of thinking has company on the court. An attempt to claim a right based on substantive due process arising from the Constitution of Virginia is likely to find stiff resistance from the bench.
For now, SCOTUS-watchers will be on the lookout for cert grants where the new Supreme Court can address SDP. The justices, if they choose to strike down Roe, may tailor their ruling narrowly, preserving somehow the principle of substantive due process in non-abortion contexts; or they may paint with a broad brush, echoing Justice McCullough’s fiery words and calling into question the several rights enumerated above. If they take the latter approach, several aspects of American life may change significantly.
ANALYSIS OF OCTOBER 22, 2020 SUPREME COURT OPINIONS
(Posted October 22, 2020) Let’s divert our attention from the most important nationwide event these days – I’m referring to the World Series, of course – to peer into today’s crop of four published opinions from the Supreme Court.
Government data collection
The same dance partners return to the court today, after a two-year absence, in Neal v. Fairfax County Police Department. This is a challenge to the department’s passive use of automated license-plate recognition readers, usually mounted on police cars. The readers record every license plate that comes close enough, and stores that information in a database.
I mentioned passive use, and the distinction is worth noting here. Police can use the system actively, by checking to see if a given license plate has been reported as stolen or involved in an abduction. That’s hunting actively for a Bad Guy. Passive use merely records the information and stores it away in a metaphorical dungeon for 364 days. After that, the custodian has to purge it. This passive use is what’s in issue today.
Two years ago, The Robes sent the case back after ruling that the photos of a given plate and a given car can constitute “personal information.” The justices directed the circuit court to determine whether the license-plate-reader system met the statutory definition of an information system. The trial court held that it did, and enjoined the passive use. The delighted citizen submitted a $600,000 attorneys’-fee petition; the judge awarded only $75K.
Both parties appealed – the citizen wanted all those fees, while the department wanted to avoid being probably the only agency in America to suffer a loss on this issue – and the justices granted both petitions. Today the court reverses again, this time entering final judgment for the police department. They reach this conclusion because the challenged system only stores the license plate information. It doesn’t list who the plate is registered to; to find that, an officer must log out of the reader system and log into some other database managed by a separate entity – for example, the Department of Motor Vehicles or the State Police. Because the plate-reader system alone doesn’t contain that information, it doesn’t meet the statutory definition.
The bad news doesn’t end there for the citizen; this ruling means that he loses his entire fee claim, because he wasn’t a prevailing party. As for the circuit court, it might feel whipsawed in this case. It first ruled in favor of the department, only to have the Supreme Court reverse; it then ruled for the citizen, only to be reversed again.
Justice McCullough, writing for a unanimous court, achieves something special today. I’m a strong proponent of personal-privacy rights. I wholly dislike these automated readers, which I see as a form of Big Brother surveillance. But as Justice McCullough notes, the court’s task here “is not to reach the right public policy balance by weighing competing demands for efficiency and security against considerations of privacy. Our duty is more modest: we must determine from the text and structure of the Data Act where the legislature has drawn the line.” He’s absolutely right, and I (perhaps grudgingly) find no fault with the analysis in his opinion today.
The right-for-a-different-reason doctrine gets a workout in McCrary v. Jenkins. This appeal challenges a local sheriff’s agreement with federal Immigrations and Customs Enforcement agents to ask immigration-status questions of arrestees, and take related actions. Two citizens challenged the agreement, suing the sheriff and the county board on the basis that local funds were being improperly used for this work.
The sheriff demurred, asserting federal preemption, lack of standing, and the sheriff’s right to enter into the agreement. The board also demurred, raising standing and the contention that the sheriff acted within his authority. The citizens field responsive briefs that included a request for leave to amend should the court find that their allegations were in any way insufficient.
The circuit court sustained the demurrers and dismissed without leave to amend. It ruled that the sheriff’s action was lawful, and evidently didn’t address the standing issue.
But the Supreme Court does. Standing is a jurisdictional issue; today’s opinion points to caselaw holding that a suit filed without standing is “a legal nullity.” The court accordingly takes up that issue first.
Despite what you might think, there is such a thing as taxpayer standing in Virginia. The justices have handed down several decisions recognizing the right of taxpayers to sue localities where they challenge public expenditures. The taxpayers here cite one of those rulings, noting that it imposes a “minimal requirement” to allege the expenditure of public funds. They specifically asserted that the sheriff acted outside his authority, and because the county board allotted funds to run his office, that satisfied the minimal requirement.
Not enough, the Supreme Court rules today. Calling this a “vague, speculative, and conclusory” allegation, the court finds that the taxpayers don’t identify any specific local funds that went to this project. That means that they haven’t established taxpayer standing.
Normally, this holding would call for remand for the taxpayers to pursue that amended pleading, so they could make more specific allegations. But there’s a bomb in footnote 3 on the last page of today’s opinion:
Given our ruling regarding standing, the action filed by McClary and Stockton is a legal nullity, and the appellants’ assignment of error concerning the circuit court’s failure to grant them leave to amend that action is moot.
Appellate lawyers will likely read this twice or more to make sure they get it. The Supreme Court rules that because the suit is a nullity, it can’t be amended to correct the pleading deficiency that makes it so. This holding is comparable to those in suits filed by an estate, which isn’t a legal entity. But really, in this context the taxpayers should have had at least one chance to clean up their pleading, and I’m quite surprised that the justices have barred them from doing so.
Is there a way around this? Can the taxpayers seize on this nullity ruling and file a new suit on the same cause of action, where they beef up their fiscal allegations by including descriptions of specific expenditures and sums? Maybe, though I’d hate to have to tangle with the fire-eating dragon that is Rule 1:6 on claim preclusion.
We find several interesting tidbits in Dumfries-Triangle Rescue Squad, Inc. v. Prince William County. This is a proceeding by the county to dissolve the squad’s corporate existence. The squad’s primary asset is a parcel of land with a rescue-squad station on it, valued at $1.6 million. That’s enough to get most people’s attention.
The squad incorporated during the Eisenhower Administration with stated purposes to “assist in the saving of life, administer first aid and teach methods of safety.” (Because of the squad’s salutary purpose, I’m going to forgive the absence of the Oxford comma there. Also, the lawyer who drafted it back then has probably gone on to that great appellate court in the sky. Let’s be gracious.) It provided rescue services in the county for decades, in return for financial support.
Three years ago, the county decided to get in on the action. It created its own Fire and Rescue System and terminated its contract with the squad. But the county didn’t stop there: Citing a statute giving it authority over rescue squads, the county filed an action to dissolve the squad’s corporate existence and to force a sale of its assets, including the valuable land.
The squad filed a demurrer and special plea, challenging the county’s authority to impose the corporate death sentence upon it. The circuit court overruled the demurrer and plea and entered summary judgment for the county, directing a receiver to wind up the squad’s affairs and distribute its assets to organizations providing similar services. Pouring salt in the wound, the court refused a motion to stay the judgment pending appeal.
The justices were moved by this haste; they granted the requested stay and took up the case on the merits.
To see how we got to this point, let’s look at the language of the statute that the county cited so lovingly. To clarify one of the points I’m going to make, I’m going to insert bracketed numbers to indicate parallel provisions:
An emergency medical services agency established pursuant to this section may be dissolved  when the local governing body of the county, city, or town in which the emergency medical services agency is located determines that the emergency medical services agency has failed, for three months successively, to have or keep in good and serviceable condition emergency medical services vehicles and equipment and other proper implements, or  when the governing body of the county, city, or town for any reason deems it advisable.
My first thought upon reading this was who on Earth wrote that statute? Translated, it says that a locality can dissolve an EMS agency (1) when the agency doesn’t keep up its equipment for three straight years, or (2) whenever the locality feels like it. Why is the first option in there, when the second one is so comprehensive? Hmmm?
Well, it turns out that the patron of the bill that created this statute comes from my fair city of Virginia Beach, so maybe I’d better keep my head down after posting this. Let’s get back to our appellate story.
The decisive language for today’s ruling is “established pursuant to this section.” The justices observe that there’s no way the squad could have been established pursuant to this statute, because the act dates only to 2015, while the squad is over 60 years old. This means that the county can’t rely on these provisions to snuff out the squad’s corporate existence and liquidate its assets. It can, of course, decline to continue its contract for provision of rescue services; that doesn’t seem to be in issue in this appeal.
Readers of today’s opinion, authored by Justice Powell for a unanimous court, will see a passage on page 9 noting that the county cited three circuit-court opinions in support of one of its contentions. Don’t try this at home, folks; like water, decisional authority flows downhill. You can’t cite a trial-court opinion as authoritative in an appellate court. I can think of only three uses for citing a circuit-court decision in the Supreme Court: First, to establish res judicata in the event of subsequent litigation between the same parties; second, for its persuasive value, if the learned judge has set out a particularly scholarly opinion; and third, to establish a split between two or more circuits.
The result of today’s ruling, reversing and entering final judgment for the squad, is that the squad gets to keep its corporate existence and, more important, its land. One wonders what can be done with that property now. Today’s opinion notes that the squad has commendably allowed the county to use the station for free during the pendency of this case.
An assignment of life-insurance benefits forms the heart of the dispute in Wood v. Martin. A man we’ll call Husband obtained a seven-figure life-insurance policy while married to Wife. The marriage soured a few years later, and the spouses entered into a settlement agreement that a circuit court eventually ratified and incorporated into a divorce decree.
The relevant provision of the agreement provided that Husband would maintain Wife as a 50% beneficiary on the policy even after the divorce. The obligation was to endure as long as Husband owed spousal support, or until the couple’s youngest child finished college or turned 23.
A few years later, Husband found himself on the wrong end of a contempt citation for sloughing off his obligations to Wife. The court tossed him in jail, allowing himself to purge the contempt by satisfying various support obligations, including telling Wife about the named beneficiaries on the policy.
The story then takes a tragic turn: Husband changed the beneficiaries on the policy, cutting Wife out entirely, and two days later took his own life.
Because the divorce-related obligation hadn’t expired yet, Wife filed a suit for declaratory judgment, naming the new beneficiaries and the insurance company. The company paid the disputed proceeds into court and was dismissed from the litigation. Wife also dismissed her request for an injunction and the parties settled down to litigate their in rem claims against the money.
The circuit court ruled in favor of Wife, awarding her the principal and accumulated interest. The other beneficiaries appealed, and today the Supreme Court affirms. The court rejects the argument that Wife’s claim was barred by a statute governing legal claims. This is an equitable claim, the court holds, and Wife is entitled to enforce her chose in action in a court of equity. As there are no plausible equitable defenses to the circuit court’s relief, the circuit court correctly allocated the disputed amount to Wife.