ANALYSIS OF JANUARY 13, 2022 SUPREME COURT OPINION
(Posted January 13, 2022) The Supreme Court of Virginia today steps into a controversial fray with a dispassionate analysis of statutory and contract principles. The case is Smallwood v. Commonwealth, and involves the question whether a criminal defendant can be convicted of an underlying crime for failure to pay court costs.
The underlying crime here is heroin possession. Smallwood obtained court-appointed counsel due to his indigency, and from the looks of it, that lawyer did a good job. The circuit court approved a plea agreement that called for Smallwood to meet several conditions, and if he complied, the court would dismiss the charges under the first-offender statute at the end of a year. One of the conditions was the payment of court costs.
Smallwood obtained a one-year extension of the deadline, but when he appeared in court on the new date, he still hadn’t paid the costs, which topped $1,300. That, you will appreciate, is a lot of money for someone who’s indigent. He told the court, “I just haven’t had any money yet.” The judge knew about Smallwood’s limited income and his monthly expenses, but found that he hadn’t complied with the agreed terms. The court accordingly convicted him and imposed a suspended two-year prison term.
On appeal, Smallwood was unable to convince the Court of Appeals to intervene. The justices granted a writ, but today they, too, find nothing wrong with the conviction. Citing a 1983 SCOTUS ruling, the SCV today observes that in revocation proceedings, courts must “inquire into the reasons for the failure to pay.” If the defendant is doing everything that he can – in the words of the opinion, making “sufficient bona fide efforts to acquire the resources” to pay the costs – then the court has to look into alternatives to incarceration.
The reason for this is that we don’t want to incarcerate people for debt. The legislature has wrestled recently with a parallel problem, the suspension of drivers’ licenses for failure to pay fines. A system that allows the state to impose some type of adverse consequence upon someone who can’t pay, is punishing poverty, threatening to create a bifurcated system of justice, divided between rich and poor.
In a unanimous opinion written by Justice Powell, the Supreme Court rules today that the circuit court did inquire into the reasons for Smallwood’s failure to pay. It holds that in an inquiry like this, the defendant bears the burden to establish those bona fide efforts. Finding that Smallwood “did not present any evidence in support of his claims” of continuing indigency, the Supreme Court affirms the conviction. This, the court writes, “supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs.”
If that seems harsh, I invite you to consider the context. Today’s ruling may not reflect what the justices would do if they were drafting the Code. They may, individually and collectively, feel that this setup comes too close to debtor’s prison for their taste. But remember, they aren’t writing the statutes; they’re interpreting the Code (and, to be fair, applying that SCOTUS precedent).
I don’t practice in the criminal-law field, so others may have a more informed view on this. I plan to ask my appellate pal John Koehler for his thoughts on it, and I hope he’ll post those so you can read them, too. But I’m aware that there is at present a move away from adverse legal consequences for failure to pay fines and costs. This ruling might add fuel to that fire. Update January 17: John has now posted some insightful commentary on the case; you can read his analysis here.
ANALYSIS OF JANUARY 6, 2022 SUPREME COURT OPINIONS
(Posted January 6, 2022) On a day when most of America focuses on last year’s assault on our constitutional democratic republic, the Supreme Court of Virginia gives courtwatchers like us a welcome distraction in the form of two published opinions.
I encountered an old friend in Emmanuel Worship Center v. Petersburg. The dispute here is local taxation of church property, and the old friend is Code §58.1-3984. This is the statute that allows a taxpayer to challenge a real-estate tax assessment.
The city sued the church in 2018 to collect unpaid real-estate taxes. The suit sought a decree to sell the property to pay off the taxes. At a trial the next year, the church challenged the assessment, even though it was more than three years old (the maximum extent of relief under the statute).
The circuit court rejected this defense as untimely and found the church liable for about $30,000 in back taxes plus a host of penalties and interest. The court decreed the sale of the property. To avoid that sale, the church paid the amount due – now well into six figures – under protest and filed a bill of review.
A bill of review, you ask? Why not an ordinary appeal? Because the church missed the deadline to note and perfect an ordinary appeal. For generations, the bill-of-review process has afforded certain litigants this safety valve for missed appellate deadlines. Such persons may file the bill within six months of the previous judgment.
The city replied to the bill by moving to dismiss it, contending that such bills relate only to equitable proceedings, and by the terms of my old statute pal, “all proceedings pursuant to this section shall be conducted as an action at law.” The circuit court found this persuasive and refused the bill. The church got a writ to review that decision, which brings us to today’s opinion.
The justices resolve two issues today. First, they hold that the original suit filed by the City was in equity. Code §58.1-3965 authorizes tax sales, and those are definitely equitable proceedings. That means that the bill of review is available to challenge the underlying judgment.
The Supreme Court next goes on to evaluate the circuit court’s supplemental finding that the prior judgment was legally correct. The lower court had held that the three-year limitation barred the church’s defense. Today, the SCV unanimously holds that the church’s defense – the constitutional exemption from taxation on church property – is self-executing, and the church wasn’t obligated to file suit within three years. The court remands the case to the circuit court for an initial determination of whether the subject property is “used for religious worship.” If it is, then it’s exempt.
As you can probably tell, I usually enjoy posting these analyses. There are exceptions – particularly savage crimes or cases involving cruelty to children or animals – but for the most part, I like the challenge of digesting each new decision when it comes in.
Attorney-discipline cases are one of the exceptions. These cases impugn the standing of the bar as a whole; attorney misconduct impairs our profession’s image in the eyes of the public. Today’s decision in Robol v. Virginia State Bar is such a case.
The factual backdrop is complex; the facts occupy about 60% of today’s opinion, which comes in at just over 20 pages. The short-form version of the facts is that the lawyer made a number of statements in an Ohio federal court that the Ohio Bar found to violate that state’s Rules of Professional Conduct. Specifically, he was found to have made false statements to the federal court and to have actively concealed evidence in pending litigation. The lawyer was allowed under Ohio law to retire or resign from the Ohio Bar with disciplinary charges pending.
While this was happening, the lawyer – who was originally licensed here in Virginia – had converted his VSB status to associate. That means that you can’t practice law here; you pay reduced Bar dues; and you can reinstate your active membership fairly easily.
The Virginia State Bar got wind of the Ohio action and initiated disciplinary proceedings here against the lawyer’s Virginia license. The lawyer responded that the Bar couldn’t discipline him because, as an associate member, he wasn’t subject to VSB regulation. The justices swat this argument aside, noting that by rule, “every person licensed by the Virginia Board of Bar Examiners or admitted by the Supreme Court of Virginia is a member of the Virginia State Bar.” This lawyer undeniably met this definition, so he’s subject to Bar discipline here.
The court also notes today that if the lawyer were correct, then any lawyer could convert to associate status, engage in any sort of unethical conduct elsewhere, and then reinstate his active membership, free of any Virginia consequences for his actions. The court calls that an absurdity.
The court next addresses the sufficiency of the evidence. As noted above, the facts are complex, so I won’t review them here to illustrate the court’s conclusion; a review of them will convince you that they warrant disciplinary action.
The lawyer has one final argument: He contended that the VSB couldn’t impose a sanction beyond what the Ohio Bar had found appropriate. The conduct was, after all, in Ohio. The VSB Disciplinary Board had imposed a four-year license suspension; the lawyer contended that he should have been allowed to resign or retire, just as in Ohio.
The justices find this argument to be procedurally defaulted. In arguing to the board, the lawyer had urged a suspension of no more than six months, but never urged the same-as-Ohio argument. Because Rule 5:25, the contemporaneous-objection rule, applies in attorney-discipline proceedings, too, the court refuses to consider this one.
Justice Mims writes both of today’s opinions. In the VSB appeal, he notes that the Ohio court turned aside the lawyer’s assertion that in making the false statements, he was relying in good faith on representations from his client. In doing so, that court had cited Lewis Carroll’s Through the Looking Glass, and What Alice Found There: “not even believing in ‘six impossible things before breakfast’” could the lawyer have reasonably believed what he was saying.
This passage illustrates that a lawyer can’t turn a blind eye to his client’s lies, and expect to retain a clean Bar record. This is one of the reasons why the New York Appellate Division suspended the license of former presidential legal adviser Rudy Giuliani last year, with a broad hint that the suspension would soon evolve into a permanent revocation. Today is an appropriate anniversary to reflect on the danger of following a road that’s paved with lies.
A QUICK YEAR-END STATS REPORT
(Posted December 30, 2021) With the Virginia appellate courts closed today, it’s safe to report on some preliminary numbers. I’ll have a fuller stats essay when I get the courts’ caseload reports in two or three months.
Supreme Court of Virginia
In an update that I posted back on January 7, I noted that the Supreme Court had opened just 1,571 new files. That was a decline of about 10% from 2019, when the total was 1,760. I predicted then that 2021 would be an even leaner year.
I got this one right (relax; I’ll tell you about my less-than-accurate prediction in a moment). From what I can discern from the court’s case-information web page, the Clerk opened just 1,233 records this year. That’s a drop of 21.5% from last year’s depressed total, and of 30% over the past two years.
I expect next year’s total to decline, too, but for a different reason. Starting with next week’s notice-of-appeal filings, civil appeals go to the Court of Appeals of Virginia first. Only after the CAV acts on those cases will we likely see some of these appeals in the Supreme Court. That means that we’ll probably experience a one-time delay of eight or nine months with effectively no civil petitions coming into SCV Clerk Muriel Pitney’s office. My best estimate is that the 2022 total, for all case types, will be somewhere around 1,000, after which it will start to rebound in 2023.
In the humility column, I incorrectly forecast that the justices would issue noticeably fewer merits decisions in 2021. They handed down 84, comprising 46 published opinions, 9 published orders, and 29 unpubs. That’s essentially unchanged from 2020, when the total was 83. And the court received oral argument in 89 merits appeals this year, up seven from the previous year.
Given this year’s significant decline in new filings, the only way the court can keep hearing 80-90 merits appeals per year is to grant a higher percentage of writs in deciding petitions for appeal. I know better than to start dishing out predictions on that one.
Court of Appeals of Virginia
The CAV’s published-opinion count dropped again this year, falling to 61 from 2020’s total of 71. The 2019 spike to 86 continues to look like an anomaly.
This, too, will change. With the Commonwealth’s overhaul of the appellate system, I expect a sharp increase in the number of published opinions, starting somewhere in the middle of 2022 and carrying into the following years. For courtwatchers, 2022 will be a year unlike any we’ve seen since 1985, when the Court of Appeals was born.
I’ll wait for the Spring stats report before checking to see if the court modifies its tiny reversal rate in criminal cases. Given the way the stats report reads, I may not be able to discern that reversal rate easily starting in 2023.
The Supreme Court decided nine appeals that meet the criteria for a David v. Goliath appeal in the final quarter of 2021. Actually, it was ten, but one of them, Stoots v. Marion Life Saving Crew, ended as a mixed result, with a partial victory for each side. I elected to disregard that one instead of awarding each side half a victory.
That means that 4Q 2021 was a clean sweep for Goliath: Nine victories (five opinions; four unpubs) and no losses. That brings our year-end total to 15 wins for our Davids and 38 for the Goliaths, for a final D-GI of 28/72. That’s almost identical to the 2020 index of 30/70.
Many years ago, the index usually came out within a very few points of 50/50. Those days are gone. It’s possible that the looming retirements of the chief justice and Justice Mims, and the elections of their successors, might bring back some semblance of balance starting next year; but I tend to doubt it.