JUSTICE MIMS TO LEAVE SCV BENCH

 

 

(Posted July 28, 2021) Paul Fletcher of Virginia Lawyers Weekly has just broken the story that Justice Bill Mims of the Supreme Court of Virginia will step down from the court next year. The justice, who turns 65 next summer, wants to pursue other things after a very lengthy career of public service in all three branches of Virginia government. (Let’s just say that he has plenty of credits in the Virginia Retirement System.)

As usual, I’m not going to list here the many career milestones of the former legislator and Attorney General. You can find that elsewhere. My take on him is that he’s an unfailingly polite jurist with a devilish sense of humor, and is absolutely delightful in private conversation. I’ve spoken with him at bar functions and have always come away with a smile. He is, however, a bulldog questioner; if he senses that a lawyer is being evasive with a tough question, he won’t let go.

One technical point about this timing: Because his current term ends about three months before his 65th birthday, there will be a short period in which he isn’t able to serve as a senior justice. He would be eligible to do so after he turns 65. But eligible doesn’t mean will, and Paul’s story doesn’t indicate whether Justice Mims will choose to continue to serve the court in this fashion.

The number of pending and foreseeable judicial vacancies in Virginia’s appellate courts is almost unparalleled in the Commonwealth’s history. The only year like one this was 1984, when the legislature got to choose ten judges of the brand-new Court of Appeals of Virginia (birthdate January 1, 1985). In the next several months, the General Assembly will select seven new CAV judges plus Justice Mims’ successor. In 2023, Chief Justice Don Lemons will face a mandatory retirement, as will a couple more judges from the CAV. And if the legislature promotes lower-court judges to those seats, there will be even more robes to hand out. I’ve previously opined that it’s a good time to be an appellate lawyer in Virginia, with all the new hires in the very near future; it also seems to be a good time to be a judicial candidate.

 


PROGRAMMING NOTE

 

 

(Posted July 28, 2021) I’ll be away from the keyboard starting this afternoon for a little over a week. That means that I may miss some published opinions from the Supreme Court tomorrow, assuming the justices favor us with any.

Here’s a summary of what’s left from the appeals argued to date, and hence a list of what might come down in the next two weeks:

Lopez v. Intercept Youth Services – This is the last remaining undecided appeal argued in the March session. Among the issues is whether the Workers’ Comp bar prohibits wrongful-death actions by two murdered employees.

Phillips v. Rohrbaugh – This is an appeal stemming from the Uniform Power of Attorney Act, and includes a whopping eight granted assignments of error. The parties argued this one in April.

Burgess v. Commonwealth – Argued in June (as were all of the following appeals on this list), it’s a criminal appeal of a felony conviction for failure to appear. But the issues largely focus on waiver rulings by the Court of Appeals.

White v. United States – A certified question from the Fourth Circuit in a criminal case, this appeal is one of two fast-tracked proceedings on the current docket (Taylor v. Northam, below, is the other).

Barnes v. Berry – The appellants here achieved something special, getting a writ on a petition for rehearing after a panel refused the petition for appeal. For some reason, it doesn’t appear on the court’s writs-granted page, so I could only guess at the issues.

Mattejat v. Blosser – This is a vehicular tort case in which the circuit court struck the plaintiff’s evidence. The plaintiff got a writ to review that ruling and a Dead Man’s Act evidentiary issue.

Taylor v. Northam and Gregory v. Northam – From the major media’s standpoint, these two appeals, both relating to the Commonwealth’s intention to remove the statue of Gen. Lee from Monument Avenue in Richmond, are the twin 800-pound gorillas of the court’s merits docket.

Eubank v. Thomas – Here’s another case where the circuit court struck the plaintiff’s evidence, this time involving claims of malicious prosecution and abuse of process.

City of Charlottesville v. Sclafani – This is a Workers’ Comp appeal that tests whether the employee suffered an identifiable injury by accident.

 


VIRGINIA’S APPELLATE GUILD SIGHS

 

 

(Posted July 26, 2021) We are all a little poorer today. Supreme Court of Virginia Clerk Doug Robelen’s years-long battle with cancer has ended. On Friday morning, Doug drew his last breath.

Others will recount his professional accomplishments, culminating in his appointment as Clerk a bit over two years ago. I choose instead to mention his unfailing professionalism, usually accompanied by a reserved but playful sense of humor. I’ll miss our conversations in which we asked about each other’s daughters, both of whom had the same name. “How’s your Caroline doing?”

When, as here, a ruthless disease claims a 55-year-old with much more life due to him, we naturally reflect on the tragedy of his family’s loss and on the pleasant memories of our interactions with a friend, now beyond our reach. As I’ve noted on this site, none of us are truly gone, even in death, as long as there’s someone out there who remembers us, and cherishes the memories.

I’ll add that a time like this is a good reminder to reach out to those you care about. Don’t wait. Don’t ever put yourself in a position where you have to say, “Thank you,” or “I apologize,” or “I love you” to a tombstone. Convey it now.

Doug Robelen’s style included one nod to tradition: He predominantly wore bow ties. A couple of generations ago, bow ties were the mark of the three professions: doctors, lawyers, and architects. My grandfather, Stan Emmert, was an architect and I always saw him wearing one; I always wear one on his birthday. Today I’m wearing such a tie in Doug’s honor.

On February 25, 2019, the Supreme Court held a ceremony to mark Doug’s elevation from Chief Deputy Clerk to Clerk of Court. A few of his friends managed a low-level conspiracy – we wore bow ties to the event. Someone had the foresight to snap a photo of those conspirators; it’s reproduced below, with Doug occupying the place of honor in the center. Rest well, my brother; your pain is at an end.

 


ANALYSIS OF JULY 22, 2021 SUPREME COURT OPINION

 

 

(Posted July 22, 2021) The Supreme Court hands down a single published opinion this morning. Potter v. BFK, Inc. is a wrongful-death action; the primary issue is the statute of repose.

Potter is the personal representative of his late son’s estate. The son, a truck driver, was killed on the site of a stone quarry where a stone company manufactured sand from crushed stone. The company’s system employs a silo to store the sand and a product called a Buell Classifier to separate fine sand from super-fine, and convey the resulting material into the silo. The son was killed when the classifier malfunctioned, causing him to be buried in the material.

The father sued several defendants, including the manufacturer of the classifier. The manufacturer raised the bar of the statute, noting that the classifier had been installed onsite eight years before the death and ten years before the father filed suit. The circuit court conducted a hearing and ruled in favor of the manufacturer.

Today the Supreme Court reverses and remands the case for trial. The dispositive issue is whether the classifier is equipment or ordinary building materials. The statute expressly excludes equipment from its coverage; if the classifier is equipment, the suit is timely.

Justice Powell, writing for a unanimous court, surveys the court’s previous holdings on the seemingly fuzzy boundary between equipment and ordinary building materials, and finds that the classifier is indeed equipment. In her summary, she notes that the classifier “has several qualities that we have recognized as being characteristic of equipment: the manufacturer exerts some degree of control over its installation and maintenance, it is not required for the operation of the building, and it is neither fungible nor generic.” She also points out in a footnote that the manufacturer itself regularly refers to the classifier as equipment – a factor that, while not dispositive, certainly looks like a smoking gun in a dispute like this.

If you’ve litigated statute-of-repose cases before, you may have raised a mental objection that the statute excludes “equipment or machinery,” and the opinion doesn’t address the second of these key words. That’s because the father’s assignment of error didn’t assign error to the circuit court’s refusal to find that the classifier was machinery. In the end, it doesn’t matter.

Finally, if you were hoping for a new bright-line test to establish the boundary between those products that fall within and without the statute, get ready for disappointment. The justices decline to do so, meaning that you’re left with the existing patchwork quilt of caselaw to sort out on which side of the boundary your case belongs.

 

 


ANALYSIS OF JULY 15, 2021 SUPREME COURT OPINIONS

 

 

(Posted July 15, 2021) The Supreme Court of Virginia hands down three published opinions this morning. Two of those involve the Commonwealth’s dominant provider of electric power, Virginia Electric and Power Company.

 

Service of process

The primary issue in Evans v. Evans is service of process under Virginia’s longarm jurisdiction statute. It’s a suit challenging a final divorce decree on the grounds that the divorce court didn’t acquire personal jurisdiction over the husband.

The spouses married near the turn of the millennium and lived together here in Virginia Beach for five years before separating. The next year, they executed a property settlement agreement that obligated the husband to pay $1,000 per month in child support starting in July 2005.

The wife moved to Martinsville during their separation, and eventually sued for divorce there. Her complaint stated that she last had contact with him about a month earlier, and stated that his last known residence was in Virginia Beach. She attached an affidavit asserting that the husband couldn’t be found despite due diligence. In a later deposition, she explained the diligence that she had used: She called his family members.

The clerk of court in Henry County issued an order of publication that ran for four weeks in the newspaper there. The husband didn’t appear in response to the publication, so the Henry County Circuit Court shortly thereafter entered a final decree of divorce in which it ratified and confirmed the PSA and incorporated it into the March 2006 final decree.

Time passed; a lot of it. In 2019, the husband went to Henry County and moved the court to reopen the case. He asserted that the court hadn’t validly obtained personal jurisdiction over him, so the support order was void.

The issue here is whether this was an appropriate use of the longarm jurisdiction statute. For those of you who endured Civil Procedure in law school, your first thought must be that this procedure only governs suits against nonresidents. But a line of caselaw indicates that it can apply to Virginians, too.

The circuit court considered the matter and agreed with the husband. On appeal, the Court of Appeals agreed, but the justices decided to review the question.

The Supreme Court’s docket comprises two kinds of cases: We call them error correction and law development. The latter category includes appeals that raise previously undecided issues of significance to the field of law. In my judgment, the SCV writ panel took this case for that reason. Justice Kelsey’s opinion for a unanimous Supreme Court fully agrees with the underlying judgment, and explores why this form of substituted service won’t do in a case like this.

First, please understand that a circuit court can enter a divorce decree, one that dissolves the bonds of matrimony, without acquiring personal jurisdiction over a defendant. Dissolving a marriage is an in rem proceeding. But an award of support is in personam; for that, you have to tag the defendant somehow with process.

The court notes today that in the spectrum of process service, an order of publication is the least satisfying, the “lowest quality of notice.” The court rules today that it’s usable only as a tertiary approach. The first and best method is by personal service; the second is substituted service, such as by delivery to a family member or by posting at the defendant’s home. Here, the wife went straight to the least effective means, and didn’t even list the parties’ marital home as a last-known address for the husband.

There’s some important language in today’s opinion that challenges the efficacy of service by publication unless “all other alternatives have been diligently exhausted.”

The wife had one arrow left in her quiver. She argued that by statute, a divorce court is empowered to incorporate PSAs, including support awards, into divorce decrees, even when service is by publication. This looks promising, but the argument dies at the hands of a familiar executioner. The wife hadn’t made this argument in circuit court or in the Court of Appeals, so the justices decline to consider it.

Finally, a closing footnote refuses the husband’s request for attorney’s fees, finding that “he has no just basis for seeking an award” of them. The footnote is very short and doesn’t go into detail. The only hint that we get is that the husband’s appellate counsel shares the same name as the husband; the husband’s name includes a “Jr.” It’s possible that the Robes decided not to award fees where the representation was within the family.

 

Torts

A short opinion from the chief justice decides Kinsey v. VEPCO, from the April session. This is a claim by a mother and daughter in Rockingham County, alleging that they suffered a number of debilitating personal injuries when VEPCO placed an experimental smart meter on their home. The description of their symptoms is alarming: major moods swings, hair loss, insomnia, an endocrine disorder, and even epilepsy, among other things.

The two eventually figured out that the utility had installed the meters without notice to them, and contacted VEPCO to seek their removal. The utility wouldn’t budge, insisting that the meters were safe. It eventually offered to move the meters to a pole several feet away from the home, adding the condition, “but you’ll have to pay for the move.”

VEPCO eventually offered customers the opportunity to opt out of the experimental program. The mother and daughter speedily took the utility up on that, but the utility still refused. It eventually replaced the meter with another one, which had its transmitter disabled.

The mother and daughter sued for damages; VEPCO demurred and filed a special plea, claiming federal preemption. After argument, the circuit court granted the plea and dismissed both lawsuits.

The Supreme Court affirms that ruling today. The court finds that FCC regulations cover this turf. The other and daughter argued that the original smart meters were defectively installed and operated, but the Supreme Court rules that that wasn’t the basis of their complaints. They instead alleged that the ordinary radio frequency emissions from the device caused their injuries. Since those emissions are governed by the FCC regs, this state tort claim is barred.

 

Utilities

Have you ever wanted to compete against one of the dominant electric-power providers in Virginia, VEPCO or Appalachian Power Company? The General Assembly is looking out for you. Despite the big companies’ huge head start and protected market position, you can offer competing services to customers. You just have to satisfy one little requirement: You have to offer 100% renewable-source energy.

A company called Constellation NewEnergy, Inc. decided to do just that. To generate the energy, it used something called a pumped storage hydroelectric facility. Today’s opinion in VEPCO v. State Corporation Commission describes what this setup entails: “a configuration of two water reservoirs at different elevations that can generate power (discharge) as water moves down through a turbine” and then “draws power as it pumps water (recharge) to the upper reservoir.”

It seems complex to me; but usually in these utility cases, there are a lot of zeroes, so I have no doubt that it made good economic sense for Constellation to do it. Having received some ominous throat-clearing noises from VEPCO about its setup, the company petitioned the SCC for a declaration that its process was indeed renewable energy.

To complicate matters, the 2020 General Assembly stepped in and amended its statutory definition of renewable energy. This amendment expressly excluded pumped storage hydroelectric facilities. VEPCO’s lawyers no doubt licked their metaphorical chops as the parties drew battle lines.

The SCC conducted a hearing and ruled that the Constellation generation was “derived from falling water” and thus met the pre-2020 statutory definition. It handed Constellation an even greater victory by ruling that the new definition wouldn’t apply to Constellation’s contracts entered into before the effective date of the amendment.

VEPCO did the natural, the commendable, thing by appealing. (We here at VANA always appreciate it when someone appeals.) In doing so, it didn’t have to run the writ-stage gantlet; SCC appeals are of right in the Supreme Court of Virginia. Today we get that rare treat, a divided opinion with a compelling dissent to challenge the majority.

Justice Chafin writes for three other justices in accepting the SCC’s rulings. The court finds that the plain meaning of “falling water” is good enough to decide the first issue in the case. There’s no obligation in the statute that the water has to be part of a normal watercourse – what you might think of when you envision a waterfall or water running through turbines in a dam.

The court then finds that where Constellation had entered into contracts before the effective date of the statute, the old definition should continue to govern. Holding otherwise would impair existing contract rights. For future contracts, Constellation has to arrange for a qualifying renewable-energy source; but for its preexisting contracts, it’s good to go with this facility.

Perhaps you’ve been reading along and nodding in agreement. If so, you need to heed the admonition that trial judges administer to jurors: Wait to hear both sides before you make up your mind.

Justice Kelsey writs today’s dissent on behalf of the chief justice and Justice McCullough. The dissent agrees about the first issue: Under the old statutory definition, the pumped storage hydroelectric facility meets the definition of renewable energy. But the dissent offers a decisively different take on the second question.

The dissent concludes that the prospective-only application of the statutory change applies to services provided after the July 1, 2020 effective date of the new act. That is, the new act has no effect on past sales, but governs all sales that occur thereafter.

Under this analysis, Constellation sells electricity to its customers on a monthly basis. The contract doesn’t contemplate an advance purchase, but ongoing monthly purchases of power. This is the way you pay your electric bill, right?

Every contract is subject to the possibility of future changes in law. No one can insulate himself from a change in law by contracting for the perpetual application of prior or existing law.

Turning to the impairment-of-contract issue, the dissent notes that it can still deliver electricity to its customers; the General Assembly “simply took one renewable-energy option off the table.” And when the legislature modifies a law like this, it uses the police power to do so, and every contract is subject to the exercise of that power.

The caption of this appeal might have portended a dry discussion of arcane principles of little interest to those outside the energy-regulation field. But it turns out to contain a spirited debate about the effect of statutory change.

 


FOURTH CIRCUIT ISSUES MAJOR GUN DECISION

 

 

(Posted July 13, 2021) Because the subject of today’s sermon begins in the Johnson Administration, I think it’s fitting to recount a story — perhaps apocryphal, but too good not to share — from that era. In 1964, when President Johnson decided to run for a full term as president, he needed to find a vice-presidential candidate. (The 25th Amendment, which provides for filling a vacancy in the vice presidency, didn’t pass until 1967.)

Johnson called Hubert Humphrey and asked in his slow Texas drawl, “Hubert, if I pick you for my vice president, can you keep your mouth shut for four years?” “Yes, sir, Mr. President,” came the answer, “you can count on me, sir.” There was a pause before Johnson resumed, “There you go … interruptin’ me already …”

In 1968, Congress passed legislation that prohibited persons aged 18 through 20 from buying handguns. In Hirschfeld v. ATF, a panel of the Fourth Circuit evaluates whether that statute infringes the Second Amendment right to keep and bear arms.

The opening paragraph of Judge Richardson’s majority opinion telegraphs the answer, and the result of this appeal:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

This is a challenge to that 1968 law by a Virginia resident who, according to today’s opinion, has a fairly compelling reason to carry a handgun. She had obtained a protective order against her abusive ex-boyfriend, but he failed to show for court. He had a prior arrest for unlawful possession of a firearm, so it’s a fair inference that he’d have one if he came after her.

The young lady wanted the security of buying a gun from a licensed gun dealer; not the risk of buying from a private owner. But that federal law prevented any such dealer from selling to her. Hence this litigation.

A district court upheld the statute, applying intermediate scrutiny; but today a majority of the Fourth Circuit panel strikes it down. Judge Richardson, joined by Judge Agee, holds that this situation calls for at least intermediate scrutiny, as it effectively prevents 18-20 year olds from buying a gun at all. This isn’t the equivalent of a time, place, or manner restriction for speech; it’s a complete shutoff.

The majority holds that this complete ban isn’t “a reasonable fit between the challenged regulation and a substantial government objective.” The stated purpose of the law was to control crime, but the court today holds that this doesn’t justify a categorical ban, especially where there’s little or no evidence of a causal link between the gun sales and the perceived crime levels.

In reviewing Judge Richardson’s analysis, you’ll probably find his evaluation of the early Republic’s militia laws most enlightening. Courts in these cases look to the meaning of the words (here, of the Second Amendment) at the time they were used. That means 1791, the date of ratification. And back then, 18-year-olds were expected to answer the call to join a militia.

This law, then, infringes on the constitutional right to keep and bear arms, and the majority finds that it isn’t narrowly tailored to achieve a compelling government need.

Arguing in dissent, Judge Wynn urges that the courts leave this question to the democratically elected branches of government. He notes that Congress saw a problem of gun violence by young adults in the 1960s, and after extensive legislative hearings, chose a means to deal with it.

Judge Wynn’s approach is to accept the majority’s two-prong test – first, whether the law burdens a constitutional right, and if so, whether the law survives intermediate scrutiny. He assumes the first prong, but parts ways with the majority on the second. He notes that the two major recent Second Amendment decisions from SCOTUS – DC v. Heller and McDonald v. Chicago – each retained a number of undefined limitations on their holdings. Both of those decisions had struck down gun limitations, but each contained language assuring readers that reasonable limitations on gun ownership were still permissible.

Judge Wynn finds this statute to be one such reasonable limitation. He cites decisions affirming longstanding conditions and qualifications on the commercial sale of arms, and would hold that this is just such a restriction. This, in turn, prompts a riposte from Judge Richardson, who notes that the restrictions in those cases applied to sellers, while this one is a wholesale ban on buyers.

A few idle notes about this decision: First, it’s long. The majority opinion is 83 pages and is followed by several pages’ worth of tables, setting out the militia laws in the colonies both before and after ratification of the Constitution. He includes 77 footnotes, many of which are quite detailed. Judge Wynn’s dissent exceeds 50 pages and includes 34 footnotes.

By Fourth Circuit standards, this decision has been quite a while in coming. The parties argued it at the end of October, 8½ months ago. For comparison’s sake, the median time between oral argument and decision in the court is 2.8 months. The complexity of the dueling opinions is a good explanation for the delay.

Assuredly, this isn’t the last word; ATF will likely seek en banc rehearing or petition the Supreme Court for cert. While the grant rates for either petition are dauntingly small – 0.3% for en banc rehearing and single digits in SCOTUS – the issues here make a grant more likely.

Finally, I write to note with admiration the tone of these two opinions. They’re respectful, cordial, and civil toward each other. Judge Wynn has long been an advocate of such civility. In his relatively short time on the court, I’ve noticed the same kind of respectful differences of opinion in Judge Richardson’s writings. As a professional consumer of appellate opinions, I appreciate that. There’s none of the flame-war language of other Fourth Circuit judges who shall remain nameless, but whose initials are Judge Wilkinson and Judge Niemeyer. To be sure, those unnamed jurists’ opinions make for entertaining and usually compelling reading; but I prefer the gentle form of disagreement that we see today.