[Posted April 20, 2007] Today is the Supreme Court of Virginia’s opinion day. There are 24 published opinions, across a broader than usual variety of case areas. Some highlights:

  • Criminal defendants have a pretty good day, securing reversals in three out of six cases;
  • There are three sanctions opinions, and all of the sanctioned parties are lawyers;
  • Two important landlord/tenant cases arrive, and one side wins both cases;
  • We get new guidance on punitive damages, expert witnesses, contributory negligence;
  • Trial courts that set aside jury verdicts again produce a significant proportion of reversals and remands; and
  • The court wades into two land use disputes in the City of Alexandria.

For pure drama, it’s hard to beat Young v. Commonwealth, which is waaaaaay down at the bottom of the criminal discussion. In that case, a life sentence hangs in the balance as the court debates the meaning of the word in.

Waste disposal

I have never before analyzed a case under this heading, but this morning’s opinion in John C. Holland Enterprises v. SPSA gives me my first opportunity.

Holland Enterprises operates a landfill in Suffolk in which it has, for many years, disposed of construction, demolition, and debris waste. (The opinion uses the acronym CDD for this type of waste.) That’s different from ordinary household waste, like dead refrigerators and threadbare carpeting. SPSA had a household waste facility in Suffolk, and for years, the two systems operated in harmony, since they didn’t directly compete with one another.

But in 2003, SPSA quietly started allowing one (privileged?) customer to use its landfill for CDD waste. Holland Enterprises found out about it, and griped about the authority’s entry into what had always been the private company’s turf. Instead of backing down, SPSA turned the heat up, opening its landfill services to everyone. Now, Holland Enterprises is hopping mad; here is a governmental entity, offering to compete for business against a private company.

But the company knew about a provision in the state code, requiring that before any public authority can create a new system for waste disposal, both the authority and the local government have to certify several things, including that private services aren’t available. Here is a battle that Holland Enterprises is destined to win; no such finding was ever made, and a private service – Holland Enterprises’s – was, indeed available. The company filed suit seeking to enjoin SPSA’s operation of the CDD waste disposal service.

The trial court, however, bought SPSA’s argument that the twin certifications are only needed when a new system is contemplated; not when an existing system offers a new service. SPSA’s waste disposal system had been in place for decades, and all it was offering was the service of CDD waste disposal.

If you think that sounds hypertechnical, then you’re right, sort of, but in the end, you’re wrong. The Supreme Court affirms, finding that there is, indeed, a difference between a system (which encompasses a plant or facility) and a service. Several different services may be offered out of a given system, and here, all SPSA wanted to do was offer one more service out of its existing system.

If you think it’s unfair for the government to compete with private business in a field like this, you may be right, but this is a matter that will have to be addressed by the General Assembly if at all.


There is a little-known provision in chapter 24 of Title 8.01 (Injunctions), providing for almost instantaneous appellate review of trial courts’ decisions to grant or deny injunctions. A party aggrieved by such a decision can file a petition seeking review of that ruling within 15 days of the date of the order. There are very, very few cases in which the court has interpreted an injunction under this statute, and today we get a fresh entry, in Martin v. Howard. The grim subject is the exhumation of a corpse.

Palmer Martin was a native Virginian, but lived for a substantial part of his life in Ohio. While there, he, um, . . . sowed some wild oats. The result, according to the pleadings filed in this case, was one Tracey Howard, born in 1972. (The opinion states that she was “conceived and born on October 10, 1972, in Ohio,” which would doubtless be some sort of record for shortest gestation period. But I take the court’s meaning perfectly well.)

Mr. Martin never sought to distance himself from his daughter, readily acknowledging her paternity, and supporting her for many years, even after the child’s mother declined his offer of marriage. Thus spurned, he moved back to the commonwealth and found comfort in another woman’s arms (he got to marry this one), but stayed in touch with his daughter and treated her in just about every way as his own. When he was once asked to take a paternity test, he said it wasn’t needed, because Tracey was undoubtedly his.

Years later (the opinion doesn’t say when), Mr. Martin died and was buried in Russell County, where he had been born. He was survived by his wife and two other children, both the product of that marriage. Tracey then filed a suit asking that her alleged father be exhumed for the purpose of obtaining a DNA sample so she could prove her lineage. The widow, who was Mr. Martin’s personal representative, resisted, claiming that an exhumation was not appropriate, and that it would cause undue mental anguish to herself and her two children.

The trial court looked at the exhumation statute and decided that it was perfectly permissible for him to grant the request for an exhumation, since Tracey’s request fit squarely within the statute’s provisions. Today, on expedited appeal, the Supreme Court affirms, but adds a bit more oomph to the ruling below. It finds that when a person meets the statute’s requirements for seeking exhumation for the purpose of getting a DNA sample like this, an order of exhumation is virtually mandatory, despite the language of the statute. That language indicates that a trial court “may order the exhumation” if the statutory predicates are met, but the court finds this language, read in the context of the statute as a whole, to be “jurisdictional and directional, rather than discretionary.” That means, among other things, that whenever a person meets the statute’s requirements, a trial court commits error by denying the exhumation request.

This case may be cited as the latest in a line of decisions in which the courts rule that “may” means “shall,” or something comparable.


Today is a red-letter day for landlords, who win two important victories.

Is a new paint job an “alteration” of leased premises? Before you go asking, “Exactly what aspect of the survival of Western Civilization depends on THIS question?” you need to read on for a discussion of a first-impression issue that may have a profound effect on landlord-tenant relations.

The Runnymede Corporation is a well-known commercial landlord in the Tidewater area. In 2005, it leased space in a shopping center to a company that makes loans on automobile titles, known as LoanMax. Once LoanMax got in the space, it undertook to repaint the exterior of its storefront to its standard corporate colors – bright yellow, with red trim. The work was completed in short order, without the involvement of anyone from Runnymede.

Unfortunately, the lease had a provision that forbade the tenant to make any “alterations or improvements” to the demised space. Someone from Runnymede saw the paint job and gasped – the previous stone and off-white façade, which predominated throughout the rest of the shopping center, was now a ghastly (at least in Runnymede’s collective eyes) color that stood out from everything else. The landlord sent a 30-day notice to the tenant, directing it to restore the original exterior or face the fact that it was in default under the lease.

Instead, the tenant went to court, seeking an injunction and a declaration that the paint job was just a cosmetic change, not an alteration. The tenant plausibly pointed to the color schemes of other well-known businesses (the opinion lists such corporate luminaries as McDonald’s, Jiffy Lube, and Dairy Queen, all of which unquestionably have distinctive color schemes as part of their branding), and argued that this was all in good business. “We don’t care,” the landlord replied; “here are before-and-after pictures. We want our old colors back.” It introduced a cost estimate to restore the façade to the original appearance, which was some $18,000 (more than six months rent at the agreed rate).

This case then proved the adage that a picture is worth a thousand words; the trial court ruled in favor of the landlord and denied the tenant’s request for an injunction. On appeal, in Select Mgt. Resources v. The Runnymede Corp., the Supreme Court affirms. Evaluating the paucity of its own caselaw and selected cases from other jurisdictions, the court concludes that the new paint job is, indeed, an alteration. The court cites Black’s Law Dictionary for the principle that an alteration in this context is a “substantial change to real estate.” And one look at those pictures was all it took, despite the court’s recognition that ordinarily, a paint job is cosmetic and “not an alteration in the legal sense.” Here’s a quote from Senior Justice Carrico’s opinion:

“Here, the trial judge would have needed to take only one look at the graphic before and after photographs of the building to find that the change caused by the painting was substantial, not trifling, resulting in a change in the nature and character of the building. What once had the appearance of a stately stone building has been given the mark of crass commercialism, which can only be erased with the expenditure of a significant sum of money.”

One wonders whether the result might have been different if LoanMax’s corporate colors were a subtle silver and blue scheme. Probably not, in retrospect, but the bright yellow certainly made it easier for both courts to reach this conclusion.

There is a lesson here for appellate advocates: When you have a million-dollar photograph, don’t spend eight cents in getting it photocopied for the appendix. The court’s opinion leaves little doubt that the Supreme Court had access to the original, color photos, and that those bright colors played a key role in today’s ruling.

The other landlord-tenant case, with another issue of first impression, decided today deals with the interplay of the common law, which provides that a landlord is not liable in tort for injuries cause by failure to repair, and the Virginia Residential Landlord and Tenant Act, which requires the landlord to keep the premises in repair. The case is Isbell v. Commercial Investment Associates.

Isbell was a tenant of an apartment building, and sustained injuries when he fell on a “worn and slippery” stairway. He sued the owner of the building and the management company; after the property manager answered, he nonsuited the owner. The management company stood in the owner’s shoes, and is properly considered the landlord for the purposes of this case.

The trial court knew perfectly well about the common law doctrine I mentioned above; generally, a landlord is not liable for injuries to tenants caused by defects in the condition of the premises. That’s because the tenant “takes the premises in whatever condition they may be in.” But this tenant got creative, and sought to impose liability not based on the common law, but upon the VRLTA, a tenant-friendly statute that imposes lots of obligations on certain landlords. Two of those obligations are to comply with building codes, and to make all repairs that may be necessary to keep the premises in good condition.

The tenant argued that this legislative enactment abrogated the common law, and made VRLTA landlords (note that not all landlords are subject to VRLTA, but this one is) potentially liable in tort for failure to repair.

The trial judge wasn’t havin’ any of it; he granted summary judgment in favor of the landlord, finding that the common law rule applied to this case. The tenant got a writ.

Today, the Supreme Court affirms, in a meticulous opinion that recites a number of reasons why the Act didn’t modify the common law. Some of those may seem obscure to the casual reader, such as the provision that the Act provides for judge (not a jury) to assess damages ancillary to an award of injunctive relief. The court cites last year’s ruling in Bethel Investment v. City of Hampton, 272 Va. 765 (2006), which preserves jury determination of virtually all disputes in law actions, and notes that to rule otherwise today would create a fundamental conflict with that doctrine. The court also quotes interpretive notes from the VRLTA’s sire, the Uniform Residential Landlord and Tenant Act, which notes indicate that the repair obligation merely carries forward the landlord’s (undoubtedly contractual) warranty of habitability.

But in my mind, the most important reason for the court’s conclusion today is the boundary between contract claims and tort claims. This hearkens back to the court’s seminal ruling in Sensenbrenner v. Rust, Orling & Neale, 236 Va. 419 (1988). Indeed, today’s opinion cites Sensenbrenner to support the court’s key holding.

Contract cases are those in which the defendant’s duty arises by virtue of the contract; without that contract, the defendant would have no duty to the plaintiff. Tort cases are those in which the defendant’s duty is imposed by law, so that the duty is owed to virtually everyone; these cases involve personal safety, whereas contract cases are just about money. This court has traditionally and consistently held that parties are free to shape their contractual relationships in any way they please, and when they do so, the courts will protect the expectations the parties have bargained for. That means the parties are free to shape their relationship in almost any way they see fit. But tort cases are different; since they protect health, safety, and lives, parties are generally not free to contract away the effect of existing tort law.

This case presents an issue at the intersection of those doctrines. Isbell wouldn’t have been on the premises at all if not for the contract. But the requirement to repair sounds an awful lot like it’s for the preservation of health and safety. So is this a contract claim, or a tort claim? Is the origin of the defendant’s duty the contract, or the Act?

The answer is that it’s the contract. The court’s most important rationale for this result is that the Act’s requirements are intended to standardize a landlord’s duty to keep premises in repair (I’m paraphrasing here), but the fundamental relationship between the parties starts with the signing of the contract of lease. With that in mind, this becomes a contract case that fits squarely within the parameters of the common law.

Those interested in statutory construction issues will also find here the court’s latest discussion of its rules on statutory changes to established common law doctrines.

One final note: In an early footnote, the court hints that the plaintiff might have left one argument on the table. It observes that he argued to the trial court that he should be permitted to amend his suit to add a claim for negligence per se, but the trial court did not address this motion. I doubt that this argument, if it had been preserved, would have changed the outcome of this case. But this language emphasizes an important lesson for appellate lawyers. When a trial court does not rule on one of your arguments, you can and often should assign error to the failure to rule. Many meritorious arguments die untimely deaths because of the failure of appellate counsel to raise the proper issue in this way.


Today will also be an important day for those researching the field of sanctions law. The court hands down three opinions on sanctions, and all of the sanctioned parties are attorneys or law firms.

Two of these cases involve suits against People for the Ethical Treatment of Animals, brought by the owners of the Ringling Brothers circus. The circus asserted in two suits that PETA had infiltrated the circus and followed the elephants around in order to get the inside poop (sorry; unreconstructed punster at work here) on its treatment of animals.

During the pendency of the suits, the trial court ruled that the cases would not be consolidated for purposes of discovery; it specifically denied the litigants in one of the cases access to discovery in the other. In Case #1, the parties had arranged for the deposition of an out-of-state witness. An attorney for one of the parties in Case #2 found out about that, and subpoenaed the same witness to appear for a deposition in his case, at the same place, date, and time.

Believe it or not, this action produced a motion for sanctions against the attorney, and eventually in a sanctions order requiring the payment of $14,000. But we’re getting ahead of ourselves here.

The out-of-state witness had an attorney, and that attorney wrote to the parties and asserted that his client would consent to come for only one deposition. That made it all the more urgent for the lawyer in Case #2 to get his deposing done at the same time. Otherwise, he might be denied the opportunity to conduct a separate deposition at another time, and he might not be permitted to see what was said in the already-scheduled deposition.

The lawyer’s opponents filed a motion for sanctions, asserting that the deposition notice violated the trial court’s order denying consolidation of the cases for discovery purposes. The court convened a hearing on this and imposed sanctions as noted above. The lawyer got a writ to review this sanction.

Today, in the first of the PETA cases, styled Petrosinelli v. PETA, the Supreme Court reverses. The key ruling here is that one cannot violate a provision of a judicial order if that provision is at best implicit. There is nothing in the previous brief orders that prohibits the noticing of any deposition, particularly under the constrained circumstances shown here. The court cites a prior holding to the effect that “a duty that arises by implication cannot sustain a finding of contempt.” The court also points out that the attorney was doing only what was reasonable under the circumstances, considering the risk, noted above, that he might lose the right to obtain evidence or learn what the out-of-state witness had to say.

The other PETA case involves several pleadings filed by attorneys for Ringling Brothers’ owner, which pleadings the trial court found directly contemptuous. The pleadings included the always-dangerous request that the trial judge recuse himself from further involvement in the case. The rule with such a motion is, Be sure you’ve got the goods before you file anything. It is inherently dangerous to ask your trial judge to find that he is biased in the case, and approaching this less than very carefully risks grabbing a tiger by the tail. (Did I warn you? I warned you.)

But these lawyers went beyond that, and entered Taboada territory. Taboada v. Daly Seven, decided in August 2006, involved sanctions imposed by the Supreme Court directly against an attorney who filed an ill-advised petition for rehearing. That petition contained inadvisably strong language directed to the court itself, including implications of the court’s competence and ability to reason. The case is now a paradigm for attorneys’ self-immolation.

The attorneys in this case came right out and said what they no doubt privately believed: The trial judge was prejudiced against them and their client; he behaved unethically and inexcusably, and ignored “basic tenets of contempt law.” The motion also referred to one of the judge’s rulings as “preposterous.”

[Memo to self: When tempted to fire off a motion like this, always remember Mark Twain’s advice: “When angry, count four. When very angry, swear.”]

The trial judge not only declined to recuse himself; he presented the lawyers with a lovely parting gift in the form of a civil sanction, to the tune of $40,000. The Supreme Court awarded the lawyers an appeal.

Today, in Williams & Connolly v. PETA, the appellate court affirms in a divided ruling. The majority, authored by Justice Keenan, finds that the pleading violates Code §8.01-271.1, Virginia’s counterpart to federal Rule 11. This case is best read as the logical descendant of last session’s decision in Ford Motor Co. v. Benitez, in which the court upheld the imposition of sanctions against an attorney who filed a defensive pleading without a factual basis for some of the defenses pleaded. In today’s ruling, the court analyzes each of the attorneys’ troublesome assertions through the three lenses of the statute, Taboada, and Benitez, and finds that two of the statute’s mandates are violated: The pleadings had no reasonable factual basis (as in Benitez), and were filed for an improper purpose (as in Taboada).

In my view, this case stretches the Taboada/Benitez doctrine slightly, but not by much. Taboada’s language was more volcanic than the pleading here, but this one still clearly, in my view, fits within the statute’s proscription. And this case does not feature the important factual distinction of Benitez that the case had already been through discovery once before the problematic pleading was filed. In that sense, this case makes it clear that Benitez was not, in the court’s view, a one-time event driven by the unique procedural posture of that case.

Justice Agee has the interesting distinction of authoring both the unanimous opinion of the court in Petrosinelli and a dissent (joined by arguably the court’s most prolific dissenter, Justice Kinser) in Williams & Connolly. The dissent notes that the trial court considered five separate pleadings filed by the offending lawyers, but that only two of those contained the kind of language the court found offensive to the sanctions statute. He points out that a trial court must segregate non-violative pleadings in making an award of sanctions, and the trial court did not do so here.

One final note: The court makes a ruling of first impression, but one that will soon be overtaken by a new rule, in affirming the trial court’s revocation of a foreign attorney’s pro hac vice admission to practice in the case. The court rules that the proper standard of review in such a case is for abuse of discretion. But the court’s expansive revision to Rule 1A:4, which will take effect July 1, 2007, spells out how future challenges will be determined.

The third sanctions opinion handed down today is In re Moseley, involving a circuit court’s order revoking the right of an attorney to practice in that court. The attorney represented one party in a protracted and contentious course of litigation. During that litigation, a circuit court judge imposed sanctions against the lawyer and his client, jointly and severally, in the amount of $83,000. The lawyer filed a bankruptcy petition, which action threatened to place the entire burden for the sanctions on his client.

His opponent filed a motion to disqualify him from representing his client, due to this and related conflicts of interest, but the attorney refused to step aside. The court convened a hearing on this motion in February 2006, but the lawyer did not appear due to a scheduling mix-up. The hearing proceeded, and the court (this time with a different judge presiding) received expert testimony indicating that the lawyer had acted unprofessionally, both by remaining in the case and by making false allegations about the original judge (who had thereupon recused herself from further proceedings).

At the conclusion of the hearing, the court entered an order that, among other things, revoked the attorney’s right to practice in that circuit court. It also ordered that he step down as counsel for his unfortunate client, and referred the matter to the State Bar for proceedings with regard to his license.

The lawyer received a copy of this order, and immediately moved for a new hearing, citing the mix-up. The court granted that, and set a hearing for the next month; in the meantime, the lawyer received a transcript of the testimony that had been adduced and the argument that had been made in the February hearing. And then things went thermonuclear.

The attorney had made the mistake of trusting the wrong people – members of his prayer group. In an e-mail to that group, he referred to opposing counsel as “demonically empowered” and evil. Worse, he complained about the $83,000 sanction, describing it as “an absurd decision by a whacko judge, whom I believe was bribed.”

Uh-oh. Remember the intemperate language of Taboada? This lawyer has just seen that set of insults, and raised them. Needless to say, the trial court got a copy of the e-mail, and that was that. After a new hearing, the trial judge entered a similar order, providing the same relief.

On appeal, the attorney raised two issues. One, the more fundamental, questioned the authority of the circuit court to revoke an attorney’s license. In this day and age of statewide admission to practice law, he argued that the only way in which an attorney’s license to practice could be suspended or revoked was by the process in the state code for Bar complaints and disciplinary proceedings. The court, citing a string of precedent going back to the days of Andy-by-God-Jackson, pointed out that courts inherently have the power to control attorneys practicing before them, and always have had that power. Under clear precedent, that power includes the right “to suspend or annul the license of an attorney practicing in the particular court which pronounces the sentence of disbarment.” Having recently reaffirmed that power (last session, in Nusbaum v. Berlin), the court declined to back off that ruling, and affirms the suspension.

The attorney’s second assignment was more fact-specific; he asserted that, in the absence of a show-cause order, he did not have sufficient advance notice of the nature of the alleged misconduct. The court disposes of this contention by noting that the attorney had plenty of notice of what misconduct was charged; in fact, he had a whole transcript full of such notice, in the form of the February hearing.

Careful appellate practitioners will also discern that the attorney sought to argue in the Supreme Court an issue to which he did not assign error. He argued on brief that he did not have advance notice of the fact that intra-circuit disbarment was being considered. But the court declines to consider that argument, since he only assigned error to the lack of notice of the alleged misconduct.

The presence of three such attorney sanction cases, coming on the heels of Taboada, Nusbaum, and Benitez, is troubling. It should serve as notice to the bar that the courts are evidently taking sanctions more seriously than before, as previous caselaw on sanctions against attorneys was sparse and comparatively infrequent.


Tort lawyers on both sides of the aisle have hungered for years for additional guidance on the Supreme Court’s views of punitive damages, particularly in the bodily injury field. Most of the court’s rulings on punitives have come in cases involving torts like defamation. Today, the court answers the muted clamor, in Baldwin v. McConnell.

Baldwin and McConnell worked for one of America’s great companies, General Electric. Unfortunately, GE has a no-tolerance policy for physical altercations; one fight and you’re fired. That fate awaited both men after a tussle outside their workplace, which occurred when McConnell knocked Baldwin on his head (and, the opinion points out, his posterior).

Baldwin blamed McConnell; McConnell blamed Baldwin. Consequently, Baldwin sued McConnell; McConnell counter-sued Baldwin. A Chesapeake jury got the whole mess, and determined that McConnell must have been the Bad Guy; it awarded compensatory damages of $240,000 and punitives of $100,000 to Baldwin.

The first hint of trouble came when Baldwin’s lawyer checked his suit papers and realized that he had only sued for $100,000 in compensatory damages. That got his total award cut back to $200,000. Worse, McConnell asked the trial judge to order remittitur of both aspects of the award, and the trial court agreed; he slashed the compensatory award to a measly $1,000, and the punitives to $10,000. Baldwin got a writ from the Supreme Court to review his now-deflated judgment.

I’ll cut to the bottom line here: The court reverses, reinstating the jury’s verdict (albeit cutting the compensatory award down to $100,000, as it had to do) and entering final judgment. The court noted that the trial court had given an instruction without objection that included among the factors the jury could consider, humiliation and indignity suffered by the victim. It also invited the jury to consider “the insulting character of the injury” in deciding what to award. But in evaluating the remittitur motion, the court omitted those factors form its analysis, evidently focusing solely on the physical injuries suffered by Baldwin.

When a trial court gives an instruction without objection, that instruction becomes the law of the case, and it’s binding on all future proceedings, specifically including post-verdict motions. Since the jury was told to consider those factors, the trial court abused its discretion in failing to evaluate them. That part of the judgment is therefore reversed.

But the court does a surprising, and to me almost inexplicable, thing here. Instead of remanding the compensatory award and directing the trial court to consider it using all of the factors, the Supreme Court makes that judgment for him, with its entry of final judgment. Note that I said it was “almost” inexplicable; the best explanation I have for this is that the court unanimously felt that the compensatory remittitur motion should have been denied, so it decided to save the litigants and the trial court a step. The slow, methodical approach, which probably would have been taken if this case were in federal court, is for the court to remand for a re-analysis, and then decide the case again if necessary. But our Supreme Court has done this before; it did so (well, sort of) last year, in Bethel Investment v. City of Hampton. And what’s wrong with a little judicial economy, if the ultimate result is the same?

Now we get to the punitives lesson. Citing the US Supreme Court’s very recent (February 2007) ruling in Philip Morris USA v. Williams, the court finds that the punitive damage award does not fail the proportionality test, especially when (note this) it is compared with the jury’s original, unreduced $240,000 compensatory award. The court observes that the compensatory award would have been $240,000 but for the artificial cap of the ad damnum, so it reviews the proportionality of the $100,000 award by comparison with the higher figure.

Under this analysis, it’s a foregone conclusion; the US Supreme Court has approved punitive damage awards that are single-digit multiples of compensatory awards, so it’s easy to see that this court will approve one that’s less than half the compensatory award.

Let me keep the advice simple here. If you try tort cases, you’ve got to read this decision.

As we all learned somewhere around the time of kindergarten, the proper place to cross a city street is at an intersection or a crosswalk. The state code tells us the same thing, now that we’re adults. Code §46.2-923. A plaintiff who violates a law protecting his own safety is negligent. A contributorily negligent plaintiff defeats any right of recovery.

Bobby Moses decided that he didn’t need no stinkin’ crosswalk one day in downtown Roanoke. Despite the fact that he was crossing one of that city’s main arteries, the four-lane, one-way Campbell Avenue, he headed across the street some 40 yards clear of the nearest crosswalk. Oh, he looked both ways first (you might wonder why he would look both ways before crossing a one-way street, but let’s give him the benefit of the doubt here), and ascertained that there was no traffic moving anywhere; the street was clear. So he ambled on across. Just as he was about to reach the opposite curb, misfortune struck, in the form of a bus that had just pulled out of a garage. The bus driver was looking the other way, in the direction from which oncoming traffic might come, and didn’t see the elderly pedestrian.

In the ensuing personal injury suit, the defendants asserted that Moses was contributorily negligent, no doubt reciting the mantra above, starting at the kindergarten level. The trial court took allowed the jury to decide the matter, and it did, in Moses’s favor. But when Moses’s attorney asked for entry of judgment that day, the judge said no. That must have inspired the defendants, who promptly filed a motion to set the verdict aside, citing Moses’s contributory negligence. The trial court granted that motion and entered final judgment in favor of the bus company and driver.

On appeal, the Supreme Court, in Moses v. SW Virginia Transit, reviews the law relating not only to contributory negligence, but that relating to proximate cause. It finds today that while Moses may have violated a statute in crossing where he did, the case still presented a jury issue whether that act was a proximate cause of the injury. Specifically, the court reaches the conclusion that Moses’s negligence in crossing did not, in fact, contribute to the injury. If the jury believed Moses’s testimony (plus that of an eyewitness, who established that the bus driver was looking the other way), it could have found that the efficient cause of the collision had nothing to do with Moses’s choice of his path. Accordingly, the judgment is reversed, and Moses gets final judgment.

In conjunction with McGuire v. Hodges, decided earlier this year, this case illustrates the dilemma facing a judge who wants to sustain a motion to strike, but takes that motion under advisement, in the hope that the jury will bail him out. Once the jury returns a verdict, that bronzes the facts in place, in a light most favorable to the party who got the verdict. Moses today is helped enormously by the fact that the Supreme Court evaluates the evidence in a light most favorable to him, even though he’s the appellant.

The final tort case of the day is Reilly v. Shepherd, a malicious prosecution case arising in Virginia Beach. Reilly is a detective who was assigned to investigate the robbery of a cab driver. The cabbie was robbed by a man who hit him over the head, said he had a gun, and then took off on foot. The detective assembled several statements from investigating police officers, talked to the victim, and then ran some fingerprints in a database; he came up with Shepherd as the likeliest suspect. Shepherd was the right height, weight, and age, and wore his hair in dreadlocks – which the detective evidently felt was relatively rare for a Caucasian. Additionally, the robbery was two miles from where the Shepherd lived – close enough to be able to run home, but far enough away so as not to excite immediate suspicion. The detective thereupon secured a warrant for Shepherd’s arrest.

Shepherd got arrested, all right, in a traffic stop in Petersburg. But when he appeared for a preliminary hearing, an unusual thing happened: The cabbie couldn’t identify him, despite his previous detailed description. (One wonders whether Shepherd had the foresight to lose the dreads before the hearing.) Stripped of an in-court identification, the Commonwealth obtained a nolle prosequi of the charge.

Now, Shepherd went on the offensive, suing the detective for malicious prosecution. The suit was originally filed against the detective in his personal and official capacities, but the latter went away on demurrer; official-capacity suits are the same as a suit against the governmental entity, and the City is wholly immune from ordinary tort liability in the operation of a police department. That left a suit against the officer, personally.

A jury returned a verdict in favor of Shepherd for $120,000. Turning aside a defense motion to set that aside, the trial court entered judgment on the verdict, and the parties headed to Richmond. There, the Supreme Court evaluates whether Shepherd established the elements of a malicious prosecution claim. Two of those elements (whether the detective initiated the prosecution, and whether it terminated not unfavorably to Shepherd) were slam dunks for the plaintiff. The other two elements are malice and lack of probable cause. As for malice, Shepherd conceded that the detective didn’t have actual malice against him – the detective had never heard of the guy before he took up the case – but he argued (correctly) that malice can be implied from lack of probable cause.

The case thus turns on whether or not there was probable cause to support the issuance of the arrest warrant. In an almost anticlimactic ruling, the court finds that there was, indeed, probable cause, given the close match between Shepherd’s physical description and that given by the cabbie; by the presence of Shepherd’s fingerprints on the door of the taxi, in the exact spot where the cabbie had said the robber had put his hand; and by the fact that there were no other known suspects. The court therefore sets this one aside and enters final judgment in favor of the detective.

My sense is that this case, like many another malicious prosecution affair, turns so heavily on the facts that it won’t be seen twenty years from now as breaking any new ground. I will note before closing, though, that one aspect in particular of the court’s review is noteworthy. Finding that “the facts relating to probable cause are not in dispute,” the court does not afford the trial court’s ruling the customary deference, electing instead to perform a de novo review of whether those facts constitute probable cause. That determination of the standard of review might surprise some lawyers, who are accustomed to having the facts viewed in a light most favorable to the party who got the verdict (as with the Moses case, above). But in this context, this is the correct standard, since the question of whether a given set of facts constitutes probable cause is one of law for the court.

Civil procedure

Arbitration comprises at once one of the plaintiff’s bar’s biggest goblins and one of the defense bar’s darlings. With the prospect of a “trial lite,” it offers a quick and cheap way for an insurer to dispose of a claim. Plaintiffs, on the other hand, complain that the rise of arbitration serves to deprive litigants of their constitutional right to trial by jury. Implicit in both sides’ views is the premise that arbitrators award less money for the same injury than juries will. I have no way of knowing whether that’s true, but it is unquestionably the common perception.

Against this backdrop, the Supreme Court today decides Phillips v. Mazyck, a personal injury case in which the plaintiff’s and defense counsel engaged in some preliminary discussions about whether to arbitrate Phillips’s case, and upon what terms. The attorneys reached a tentative agreement (from the plaintiff’s perspective) or a firm deal (if you view this with the defense) to mediate the case subject to a high-low agreement.

The devil, however, arrived with the details. The parties selected a company to furnish an arbitrator, but they didn’t select a particular individual at that time. The insurance adjuster then sent everyone a letter indicating that the agreement to arbitrate was “subject to liability and damages discovery” by its attorney. That wasn’t in the original discussions, but no one raised a fuss.

Then the insurer wanted a medical examination, pursuant to Rule 4:10. Phillips’ lawyer again noted that this wasn’t discussed before, but he didn’t have a lot of heartburn with this, either. Still, he used this as an opportunity to hold on to the draft agreement sent to him by the arbitration company, figuring he’d see what the examination revealed before forwarding it. He signed the document, but kept it in his file for the time being.

At this point, the medical report arrived. To everyone’s surprise (including plaintiff’s counsel), it indicated that Phillips’s injuries were more severe than had originally been thought; she would need surgery. Her attorney then called his counterpart and said the arbitration deal was off. The insurer’s lawyer wrote back to say that it was still on, and the game was afoot.

The defense filed a plea in bar, asserting that the plaintiff’s lawyer had signed the written agreement, so it was binding on the plaintiff. The trial court agreed, and stayed the trial so the parties could arbitrate. They did that (in a manner that one infers did not go the plaintiff’s way), at which point the trial court dismissed the lawsuit with prejudice.

That would bring us to the appellate level; the plaintiff got a writ, and today, the Supreme Court reverses on basic contract-formulation principles. It finds that the parties never reached a full and final agreement on the details of the arbitration, including the finding (which is going to drive this insurer nuts) that the insurer never indicated its assent to the specific terms of the contract sent out by the arbitration company. The company had sent the original to the plaintiff’s lawyer with a request that he sign and forward it. He signed it, but as noted above, he held onto it. Accordingly, there was nothing to indicate in writing the insurer’s assent to those terms. The insurer could swear all it wanted that it did agree, but its actions showed otherwise, including the inclusion of additional terms not previously mentioned (the discovery and medical exam, for starters). And since silence cannot show that a party agrees to be bound by a contract, this one fails. As a result, the plaintiff gets the arbitration award set aside, and she gets to try to convince a jury to give her more money than the arbitrator did.

In my view, many plaintiff’s lawyers will find this decision simultaneously satisfying and troubling. (Their defense counterparts will find the whole process abhorrent, so we won’t go there.) Virtually no plaintiff’s lawyer likes arbitration; the general perception in the plaintiff’s bar is that such proceedings result in lower awards than jury trials in all but the most conservative of jurisdictions. Personally, I don’t know if this fear is well founded or not; I simply know that it exists. But many lawyers, in both camps, will be troubled by the prospect of a lawyer’s agreeing to arbitration, giving his word on it, and then finding a way to crowbar himself out of that pact.

While the decision arises in the arbitration context and will significantly affect arbitration in the personal injury and related fields, it is really about plain old hornbook law on the formulation of written agreements.

Today’s other civil procedure case deals with the expert witness statute, §8.01-401.1. That provides the circumstances upon which experts are permitted to offer their opinions at trial. Today’s case, Budd v. Punyanitya, relates to the admissibility of statements in learned treatises.

Budd filed a medical malpractice suit against his doctor. He wanted to use certain excerpts from a few medical articles in his cross-examination of the doctor at trial. In order to do that, the statute provides that Budd had to provide copies of the articles to his opponent thirty days before trial. The purpose of this requirement is to give the testifying doctor fair notice of what the other side plans to use against him.

Roughly thirty days before trial, Budd duly designated the articles, and sent the designation to the doctor’s counsel. Unfortunately, Budd’s lawyer forgot to actually attach the copies of the articles, so the only thing that got to the defense lawyer was the designation itself. That, you will understand, is a problem. But Budd’s lawyer didn’t just shrug when the omission was pointed out to him; nor did he nonsuit the case. Instead, he figured out another way that he could get the articles in.

At trial, Budd’s expert took the stand. At the outset of that expert’s testimony, Budd’s lawyer announced that he needed to take care of “one little administrative thing.” That little thing was nothing less than asking the plaintiff’s expert to acknowledge that the articles were authoritative. That way, he could use them in cross of the opposing expert, even if the defense expert refused to agree that they were authoritative.

If you want to say, “Hey, wait a minute” at this point, you need to get in line. The doctor’s lawyer said pretty much that, objecting to this back-door approach to the use of the articles. The plaintiff’s lawyer then disclosed his carefully thought-out argument, which goes like this:

The only use of the articles that would trigger the 30-day requirement is where a party first asks the opposing expert to testify that the articles are reliable authority. The statute says nothing about such a requirement when the offering party’s expert testifies as to that reliability, in advance of the opposing expert’s testimony. All he wanted to do here was to lay the foundation in advance, so he could later cross the defense expert with the articles. He also argued that the 30-day requirement didn’t apply because the statute only mandates that disclosure when the articles are to be used in direct examination, not in cross.

I have never met this particular trial judge, but even now, sitting here, 175 miles and a year or so away, I can envision his scowl. No dice, he ruled; the articles were out. The plaintiff’s lawyer no doubt sighed and moved along with his expert’s principal testimony. Interestingly, he did not proffer the witness’s testimony on whether the articles were reliable. More on that later.

The trial went badly for Budd in at least one significant respect: The jury returned a verdict against him. His lawyer moved the court to reconsider it ruling, and renewed his request to be able to use the articles. It was only at this point that he proffered his expert’s testimony on the reliability of the articles. Still no dice; the trial court denied that motion and entered judgment.

On appeal, the Supreme Court considers just when the 30-day requirement is triggered, and unsurprisingly (in my view, anyway) finds that Budd’s attempt at an end-run won’t work. Given the purpose of the statute, I cannot envision that this case could have come out any differently. This is especially true because Budd’s lawyer acknowledged that he intended to use the articles as substantive evidence against the defendant, not merely to call the opposing expert’s credentials or opinion into question. Today’s opinion concludes with what is probably the clincher in the court’s view, the fact that a contrary result would entitle the parties to ambush their opponents’ experts, contrary to the obvious purpose of the statute.

One final note: The defendant argued that Budd had waived the issue in two ways. First, he didn’t proffer his doctor’s testimony establishing the reliability of the articles until after the trial was over. Second, he never tried to get the articles acknowledged by the defense witness, who might well have recognized and respected the articles. While both of these seem plausible, given the court’s views of issue waiver, the court declines to find the issue procedurally defaulted. It notes that whether the defense doctor would have approved of the articles is not relevant to whether the plaintiff should have been able to authenticate them through his own witness. And despite the hammer of the court’s recent Bitar v. Rahman doctrine (objections to the foundation of an expert’s testimony must be made when the witness is on the stand, not in a motion to strike after the witness has been excused), the court simply states that the lack of a contemporaneous proffer doesn’t matter. In doing so, it concludes that such a proffer wouldn’t have changed the trial court’s calculus because “it would not have altered the underlying fact” that the materials were not timely produced.

This last ruling may come as a surprise to those who are accustomed to seeing strict enforcement of proffer requirements. But here, it wasn’t the issue of whether or not the articles were reliable that was at stake; it was whether they had to be produced in advance when they were being used in this particular fashion. That finding also enables the court to reach the merits of the substantive argument, and that’s always a good thing.

Environmental law

The court issues an important opinion dealing with the concept of representational standing in two consolidated appeals. The lead case in the opinion is Philip Morris USA v. The Chesapeake Bay Foundation.

Philip Morris is, . . . well, you know who the company is. America’s largest cigarette manufacturer; a dominant force in the Virginia economy; major player in an embattled yet thriving industry. The company has a plant alongside the James River, into which it discharges treated wastewater, pursuant to a permit that was first issued in 1972. But from time to time, it has to renew that permit by going through an application process with the State Water Control Board. The most recent application for renewal came in 2002. It was at that point that the tobacco giant met The Chesapeake Bay Foundation, a public interest non-profit corporation that lobbies for greater protection for the bay and its tributaries. (Okay, I made part of that up, for artistic effect. As far as I know, the foundation has been nipping at Philip Morris’s heels for a generation or more. Work with me here.)

The foundation argued to the SWCB that Philip Morris’s plant discharged unacceptably high levels of nitrogen and phosphorus into the river, creating the imminent threat of some bad consequences for fish and aquatic plants. Despite this, the Board approved the renewal of the permit.

The foundation then brought suit to appeal the grant of the permit, citing various federal and state statutes enacted to protect water quality. For the purposes of today’s opinion, the factual allegations of the suit aren’t important; what does matter is the foundation’s standing to bring the suit. It asserted both representational standing (on behalf of some of its members, who were not named) and individual standing (in its own right). The trial court sustained demurrers filed by Philip Morris and the Commonwealth (who was a party in the other half of the consolidated appeals) and dismissed the case, finding that the foundation could not bring the suit in either capacity.

The case then went to the Court of Appeals, since it’s an administrative law matter, one of the CAV’s specific areas of appellate jurisdiction. That court reversed in April 2006, finding that the foundation had both individual and representational standing. It ordered the matter sent back to the trial court for further proceedings. But before that could happen, both Philip Morris and the Commonwealth got writs from the Supreme Court to review the judgment yet again.

The guts of today’s opinion comprise the extensive review of caselaw (principally from the US Supreme Court) on the topic of representational standing. Much of the impetus for an expansive view of such standing comes from a provision of the federal Clean Water Act, which admonished the states not to “narrowly [restrict] the class of persons who may challenge the approval or denial of permits.” That tilts the playing field in favor of liberalized standing rules, and it shows in today’s decision.

Back in the Dark Ages (before 1996), Virginia had exactly such restrictions. Its law held that the only proper party to appeal a permit decision was a rejected applicant. That meant that if the SWCB issued a permit, no one, no one at all, could challenge the decision. When the feds threatened to start leaning on Virginia (and some other states, which had done pretty much the same thing) for this sin, Virginia caved and amended its statute to permit an appeal by any person aggrieved of a decision.

There are three requirements under federal law (which Virginia essentially adopted in 1996 when the federal pressure rose) for the assertion of representational standing by a group like the foundation. Those are (a) the members must have standing to sue on their own if they wish; (b) the foundation’s objections must relate to its primary purpose; and (c) joinder of the individual member isn’t necessary for the claim or the relief requested. The Supreme Court reviews the facts asserted in the lawsuit (remember, this was decided on demurrer, so the allegations in the foundation’s suit have to be taken as true) and decides today that this suit meets each of those requirements. While this ordinarily would end the opinion, the court goes on to find, under parallel reasoning, that the foundation has individual standing, to assert a claim in its own right. That makes sense as a matter of judicial economy, because if for some reason the representational standing claim were to drop out of the suit, the parties would otherwise have to head back to Richmond for an eventual ruling on individual standing.

One final point on this case: There is a paragraph at the top of page 22 of the slip opinion that, I confess, I had seen coming for about half the opinion. The court points out that today’s ruling is not a blanket endorsement of representational standing for public interest groups, even those with environmental causes. This ruling is limited to the circumstances of this case, so it would be a mistake for environmental advocates to claim too sweeping a victory here. Still, they get to go forward with this challenge, and that right is more than they had yesterday at this time.


One of the least surprising opinions of the day comes in one of the more esoteric areas of the law, that of suretyship. Most general practitioners know something about suretyship law, but most of them have the good sense to know that there are minefields all over the place, and they had best contact someone who knows the landscape well.

Still, given the arcane knowledge that most lawyers ascribe to this field, today’s ruling in APAC-Atlantic v. General Ins. Co. will come as little surprise to anyone who takes the time to read the facts. And as this is perhaps the shortest opinion of the day, at 6 ½ pages, that includes most anyone.

At issue here is a one-year statute of limitations for bringing suit on a payment bond in a construction contract. The general contractor hired a subcontractor who did work on two job sites. But the general didn’t pay the sub in full, and eventually went into bankruptcy. That left the sub with a claim against the general’s payment bond.

The bond is, as far as I know, fairly typical. In pertinent part, it provides that if the general “shall promptly pay all just claims . . . then this obligation is to be void; otherwise; to be and remain in full force and virtue in law.” Basically, if the general pays, then the surety owes nothing; if the general doesn’t pay, then the surety is on the hook. When the general went into bankruptcy, the surety was emphatically on the hook.

But sureties have more ways of slipping a hook than the cleverest brook trout. Inexplicably, the sub didn’t file suit until more than a year after the date it last performed work on the two job sites. As noted above, the usual statute of limitations for such claims is one year, so the sub had to get clever, or this trout would be gone. Here’s the argument he came up with:

The language of this particular bond specifically says that it will “remain in full force and virtue in law” if the general doesn’t pay. That means that this bond specifically extends the period of limitations, for as long as the general doesn’t pay.

Did you buy that? Neither did the trial court or the Supreme Court; the trial court awarded summary judgment to the surety, and the Supreme Court today affirms. Given the amount of the claim ($368,000), the sub is now out a lot of money that it probably could have collected if it had filed suit sooner.

Today’s opinion notes that it is possible for parties to contract away the one-year limit, but it requires specific language to do that. (Compare the analysis of Isbellv. Commercial Investment in the Landlord-Tenant section above; parties to contracts are usually free to make any deal they want, even if that overtakes a statutory provision.) This bond had no such specific language.

Land use

Two new land use decisions arrive today, both courtesy of the City of Alexandria.

Anybody here like coal-burning power plants? Want to live near one? Me neither. But a company called Mirant Potomac River has operated one by the banks of the Potomac since 1949, and the encroachment of residential development since then means that hundreds of families now live uncomfortably nearby. You can imagine that a use like that is not likely to find favor with the City fathers.

But Mirant Potomac’s use of the site predated the adoption of the Alexandria zoning ordinance, so that use was grandfathered. Additionally, the company had obtained two special use permits, also predating the current version of the ordinance, allowing support offices and a transportation plan. The whole arrangement was perfectly legit.

That didn’t make it popular, of course. After receiving the results of a study of the plant’s effect on air quality, the City commissioned some experts to study it further. That work backed up the original study – the plant produced a lot of pollution in addition to the power it generated. Accordingly, the City started hunting around for ways to curtail the unwelcome use.

City staff seized on the idea of shutting down the plant by use of the zoning ordinance. Eventually, the City took two specific actions: It revoked the special use permits, and amended the zoning ordinance to reclassify the plant. The new classification would require the plant to be shut down within seven years, unless the City approved otherwise. (Close your eyes for a moment and imagine how likely that approval would be.) Mirant Potomac predictably sued, and after a hearing, the trial court swatted down both of the City’s actions. The City got a writ.

The Supreme Court’s analysis of the case, in Alexandria v. Mirant Potomac River, begins with a recognition of the concept of vested rights. In the land use context, and by statute, once an owner properly obtains a right to use his land in a particular way, that right continues even if the zoning laws are subsequently amended. Mirant Potomac’s right to operate the plant was, in this case, certainly a vested one, so the question on appeal is whether the City’s actions impaired that right.

Do you see where this is going? The court notes that the answer to this question is obvious; of course it impaired the vested right. The ordinance amendment required the shutdown of a perfectly permitted use that had been ongoing for generations.

As for the revocation of the use permits, the analysis is a bit more involved. The City had revoked the permits based on a finding that the company had violated provisions of the Clean Air Act. The ordinance authorized the revocation of permits upon a finding that the permittee “has failed to comply with any law.” But the trial court and the Supreme Court both take a narrow view of this provision, requiring that in order to justify a revocation, the violation of law must “have a nexus to the purpose of” the permit. As the court notes today, it isn’t exactly fair for the City to be able to revoke a permit if the holder is convicted of a traffic offense or a federal tax statute. The circuit court’s judgment is thus affirmed.

If you’re environmentally minded and regret this ruling on that basis, you should know that there are ways for the City to obtain an abatement of the plant’s operations; it just can’t use the cheap way it tried first, to regulate it out of existence. If the plant really is violating clean air laws, the appropriate authorities can and no doubt will take action. If the City is really convinced that the plant must go, it can buy it from Mirant Potomac. That isn’t exactly a cheap option, but it’s available. And given the Supreme Court’s deference to local governments’ public necessity decisions (see Hoffman Family LLC v. Alexandria, decided in November 2006, for a prime example), I have no doubt that the City can come up with a valid public use of the property if its wants to. Of course, doing that entails one additional drawback for the city — if it buys the property, then it will be the proud owner of what might prove to be an environmental disaster area.

The other land use case announced today is Seymour v. Alexandria, a far less controversial, but no less contentious, case involving the resubdivision of a residential lot into two separate ones. Seymour’s lot comprised 18,801 square feet – a bit under half an acre – and he wanted to split it into two lots, so he could build houses on each of them. The resulting lots would be between 9,300 and 9,500 square feet, which is well within the range of lot sizes in the neighborhood.

In all, this one sounds pretty uncontroversial, and probably isn’t going to make the front page of anybody’s newspaper. But some neighbors got the idea that Seymour was going to build McMansions – that’s what they called them – and they didn’t like the idea of someone overbuilding the neighborhood. They fussed, and the Planning Commission and the City Council listened. Despite the City staff’s recommendation for approval, both bodies rejected the subdivision. Citizen complaints included a demand that the neighborhood “have the opportunity for input as to the design of any houses to be built” on the lots. Another was the assertion that two new SuperSized houses would impair the values of other houses in the area. In essence, the complaints weren’t directed to the drawing of the new line; they were directed to the owner’s anticipated future use of the two new lots.

Seymour didn’t think that was fair – at least at this point in the process. He appealed to the circuit court, and while he won a partial victory there (on partial summary judgment, the court disapproved consideration of any future development of the lots), he ultimately lost. The reason he lost is a curiosity: The City had considered that the two new lots were actually corner lots, even though they demonstrably were not located at an intersection.

Seymour appealed, and the City assigned cross-error to the summary judgment ruling described above. Today, the Supreme Court rules wholly in Seymour’s favor. It finds:

Consideration of anticipated improvement can play no part in a local government’s analysis of whether a lot line can be drawn. In reaching this conclusion, the court points to an interrogatory answer in which the City essentially conceded that “The division of land into lots is a purely legal construct that, of itself, can have no effect on the value of anything.” (Personally, I have a hard time accepting this as a fundamental principle, as I know perfectly well that raw acreage is worth significantly less than the same land that has been divided into marketable lots. But that’s what the City said, and it helps doom the City’s position in this case.)

The City conceded on numerous occasions that the two proposed lots were interior, not corner, parcels. The City’s conclusion (expressed in a rambling monologue by one local official, quoted at length in the opinion, and in my view, a splendid example of George Orwell’s “doublethink”) that the lots were nevertheless corner lots could not form the basis for a rational denial of the application.

Ultimately, the court finds that the disapproval of the subdivision was “plainly wrong and without evidence to support it,” the dauntingly high standard by which the court reviews decisions like this by local governments. Seymour still might not get to build his McMansions – he still has to get site plan approval, where these considerations might play a proper role – but he’s cleared this hurdle.

Criminal law

One opinion arrives today in a capital case, the murder for hire conviction in Teleguz v. Commonwealth. Teleguz is of Russian or Ukrainian background, and was convicted of hiring a murderer to kill his former girlfriend. The reason given for the crime is that Teleguz “was upset bout a court order requiring him to pay child support” for the couple’s 23-month-old son.

A jury found Teleguz guilty and recommended a sentence of death. The trial court imposed this sentence, triggering automatic review by the Supreme Court.

This last point is worth some explication. For all criminal convictions and sentences but one, the course of appellate review requires the filing of a petition for appeal in the Court of Appeals. If that court denies the petition (or if the case is affirmed on the merits), the criminal defendant can repeat the process in the Supreme Court. In each court, the appellant must first convince the reviewing court that the case merits a spot on the court’s argument docket. The overwhelming majority of criminal petitions for appeal get denied; the refusal rate is almost 90% in the CAV, and about 96% in the Supreme Court.

The lone exception to this two-stage petition process is a conviction of capital murder, for which a sentence of death is imposed. In all such cases, Supreme Court review is both mandatory and automatic; no petition for appeal need be filed, and the court reviews the sentence even if the defendant chooses not to fight his own execution.

One incongruous effect of this arrangement is that death penalty appeals tend to have less appellate merit than the average case for which a petition has been granted. That’s because death penalty cases don’t have to go through the winnowing process, by which the courts separate the potentially meritorious appeals from those that lack appellate merit. The cases emphatically deserve careful review, of course, since the sanction to be imposed is ultimate and irreversible. For these reasons, the Supreme Court pays special attention to death penalty cases, even beyond what one might expect for the appellate issues involved. Death penalty opinions tend to be longer than most other criminal opinions, and today’s is no exception; the Teleguz opinion is the longest handed down today, at 55 pages.

In this context, most of the appellate issues in the case are unremarkable. The court finds that a quarter of Teleguz’s assignments of error have been waived or abandoned, and that three others raise “arguments [that] have been previously considered and rejected,” such as the use of unadjudicated criminal acts in the sentencing phase.

The court affirms the conviction and the death sentence, and doesn’t break much new ground in doing so, so I won’t recount the rulings in detail here. I will, however, mention a couple of interesting points I found while making my way through this long ruling (hey, if the justices take the time to write ‘em, the least I can do is read the whole thing):

The court declines to address one tantalizing issue at the sentencing phase. Teleguz argued that the trial court should not have submitted the vileness predicate to the jury, since he didn’t commit the crime himself and was hundreds of miles away when it happened. The court cites previous caselaw holding that o9ne who masterminds a murder-for-hire plot thereby may satisfy the vileness requirement. But since it so concludes, it does not take up the argument that “the actions of the perpetrator cannot be imputed to Teleguz.” My sense here is that the Commonwealth would have liked to have the court sanction this imputation, to give it another arrow in its prosecutorial quiver for future cases.

There is an interesting issue arising in the court’s review of Teleguz’s motion to transfer venue due to pretrial media reports about the case. Two veniremen noted that they had read about the case, and said they would have at least some difficulty setting aside what they had thus learned. Today’s opinion notes that neither venireman was ultimately selected for the jury. It doesn’t recite whether those veniremen were struck for cause, whether they were the subject of a peremptory challenge, or whether their names simply never came up in the ultimate selection of jurors from the undoubtedly massive venire pool. If this were a discussion of the propriety of the trial court’s refusal to strike them for cause, that might be one thing. But the only discussion of this issue arises in the context of the venue issue, and view in that light, the court’s decision to affirm the trial court’s discretion seems sound.

In two instances, the court either finds or arguably assumes that the trial court erred, but finds in each case that the error was not material to the outcome. The first, a pure harmless error analysis, deals with the admission of testimony from the victim’s father, who testified about her statement to him that Teleguz wanted out of the child support obligation. The Supreme Court notes that this testimony was hearsay, but it was cumulative of other evidence in the case. The other is not really harmless error analysis; it deals with Teleguz’s assertion that the Commonwealth denied him Brady exculpatory materials before trial. The court lists the three factors by which alleged Brady violations are evaluated: (a) Failure to disclose evidence that’s favorable to the defense; (b) The withholding was either willful or inadvertent; and (c) “the accused must have been prejudiced.” The court zooms right to the third factor and, analyzing the material identified by Teleguz in a post-trial motion, decides that he wasn’t prejudiced, since the claimed omission doesn’t “undermine confidence in the outcome of the trial.”

Next, the court decides two appeals involving the felony-level offense of obstruction of justice.

Obstruction is of two types. There is garden-variety obstruction, in which a person is guilty of a misdemeanor if he “knowingly obstructs . . . any law enforcement officer in the performance of his duties as such.” The same fate awaits someone who, “by threats or force, knowingly attempts to intimidate or impede . . . any law enforcement officer, lawfully engaged in his duties as such.

A stiffer penalty is in store for someone who, “by threats of bodily harm or force knowingly attempts to intimidate or impede . . . any law enforcement officer, lawfully engaged in the discharge of his duty, or to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate” certain enumerated offenses related to drugs or street gangs. That’s a felony.

The differences in these provisions might not be obvious if you just made a quick cruise through those two paragraphs, but they make all the difference in the world for the first of these cases, Washington v. Commonwealth. Washington, you see, had just finished accumulating plenty of frequent-flyer miles with the criminal justice system, when he made some comments back in the courthouse lockup to a deputy sheriff. Those started out just being smart-mouthed, but quickly turned to a threat to kill the deputy. The deputy wasn’t in imminent danger, but that doesn’t matter for today’s discussion.

Ordinarily you might think that Washington’s threat would earn him a misdemeanor citation under the “threats or force” provision in the first of the twin paragraphs above. But the Commonwealth wanted a stiffer sanction, so it charged Washington with the felony.

The issue in this case is one of grammar, mixed with law. If you simply study the second sentence, it looks like someone who “by threats of bodily harm or force knowingly attempts to intimidate or impede . . . any law enforcement officer, lawfully engaged in the discharge of his duty,” has committed a felony. But how is that different from the misdemeanor offense above? Can the same conduct be either a felony or a misdemeanor, based only upon the whim of the prosecutor?

No, it can’t, the court rules today; at least not in this context. Despite the technical grammatical arrangement of the felony provision, the court finds that the drugs-or-gangs requirement must be met in any felony prosecution for obstruction. Since the Commonwealth didn’t attempt to prove at Washington’s obstruction trial that the deputy was, at the time of the threats, working on a drug or gang case, the evidence failed to establish one necessary element. Accordingly, Washington’s conviction is reversed, and the prosecution is dismissed. (This one, at least; he still has plenty of time on those other frequent flyer charges.)

The second such case is Jordan v. Commonwealth, which ironically does involve a drug offense. But it doesn’t arise in the same context as Washington’s most recent brush with the law.

Jordan was driving down a Henrico County road in the wee hours of a fine spring morning, mindin’ his own business, when he was pulled over for driving in an erratic manner. When he stopped the car, his passenger, one Curtis Wright, opened the passenger door and delicately discarded a small vial. All of this happened within the police officer’s view.

Jordan was charged with DUI, but this isn’t a DUI appeal. The vial had several ecstasy tabs. Worse, the officer opened the glove compartment and found $3,400 in cash, rolled up. That got Jordan charged with possession with intent, which is a whole lot worse than DUI.

The officer placed the wad of bills on the console of his police car, and a handcuffed Jordan in the front seat next to him. He arrived at the magistrate’s office, and went inside to check his gun before bringing Jordan inside. Now, stop me if you saw this coming – when he got back outside and escorted Jordan out of the car, the roll of bills fell out of Jordan’s pocket. Hey, if your bankroll were just lying there, would you have done something different?

Well, maybe you would have, but you’re not Jordan. He sheepishly explained that he thought the officer was going to steal it. Now he’s in real hot water. But inexplicably, he turned up the stove; while inside the station, he was decidedly uncooperative with the officer, stalling, stubbornly refusing to move, even bumping into the officer. All of this bought him a felony indictment for obstruction.

But Jordan enjoys the same boon as Washington; the Supreme Court finds that the evidence is insufficient to convict him of either charge. The ecstasy tabs were just as likely Wright’s as Jordan’s; in fact, the only person whom the officer had seen in possession of the tube was Wright. As for the obstruction charge, Jordan’s actions in taking the bankroll, while not a model of civic virtue, were not forceful. And while his petty behavior inside the station was not exactly laudatory, either, that conduct made the officer’s job harder, but was not forceful.

One bit of irony is that both Washington and Jordan would easily have been guilty of the misdemeanor levels of these offenses. The Commonwealth loses these cases because it charged both men with the wrong level of offense.

The court decides a narrow evidentiary issue relating to expert testimony in two parallel cases today. Specifically, the court finds that a licensed clinical social worker and a licensed professional counselor may qualify to testify as to a diagnosis of post-traumatic stress disorder in crime victims. These two cases are not truly companion cases, as they arose wholly separately (indeed, in different circuit courts), but their synchronous announcement today will probably link them in the foreseeable future as the “Conley/Fitzgerald Doctrine.” The cases (now that I’ve spilled the beans) are Conley v. Commonwealth and Fitzgerald v. Commonwealth, and both arise in the context of sexual offenses against juvenile victims.

The two opinions are written by Justice Koontz, and follow identical analytical tracks. The court first recognizes the general principle that expert testimony can be offered by any person who has accumulated, and can demonstrate, sufficient expertise in a given subject matter. When it comes to personal injuries, the court has previously restricted the class of persons qualified to give such opinions to physicians. But today’s rulings provide that persons who are well trained and qualified in other disciplines can make a diagnosis of mental conditions.

In both cases, the court notes that this is not a blanket rule of qualification. Just because a person has a framed certificate on the wall doesn’t make that person’s opinion testimony admissible. The trial court must find that the witness truly possesses the requisite expertise in order to make the diagnosis. But since state laws regulating both of these professions include references to their making diagnoses of mental conditions, the court finds it appropriate to permit this class of professionals to offer expert opinions. In each of these cases, the court affirms the trial court’s determination that the witnesses were qualified to offer the opinion testimony.

Note that this doctrine is not limited to criminal prosecutions. I can readily envision the use of such experts in civil cases, where, for example, a plaintiff’s lawyer might offer the testimony of a LCSW to prove this condition as part of the mental anguish component of the plaintiff’s damages.

The final criminal case of the day is the opinion that produces the hottest controversy. Young v. Commonwealth is an appeal of a life sentence for a robbery conviction. The Court of Appeals found that the trial court had committed error in the admission of certain evidence in the guilt phase of the trial, but noted that the error only affected sentencing, since even without the confession video, “the evidence of [Young’s] guilt was overwhelming.” 47 Va.App. 616, 636 (2006). Accordingly, it reversed for resentencing only. Young then got a writ from the Supreme Court, in which he sought a whole new trial.

Near the beginning of today’s opinion is a sentence that brought a wry smile to my face when I read it: “Young chose to represent himself at his trial.” We in the legal profession have a word that we use to describe a criminal defendant who has elected to represent himself at trial; we call him an “inmate.” Getting involved in a life of crime is a foolish decision indeed, but to really break into the utterly stupid category, you need to take a turn as your own criminal defense lawyer.

That being said, Young at least had the legal ability to object in one place where he had to speak up, and succeeded in preserving an issue for appeal that might have slipped by a trained lawyer. Here’s what happened:

Young walked into a check-cashing store in Danville and handed the cashier a note. The note directed the cashier to turn over the princely sum of $2,100 within ten seconds, and stated that Young had a gun. On a side note, one wonders why he selected that amount, instead of everything the teller had. In the end, it doesn’t matter, because she gave him $1,776 (which indeed was all she had).

This evidently wasn’t Young’s only effort at illicit fundraising; he was arrested a week or so later on suspicion of a separate bank robbery (they usually have more money on hand there). The police interviewed him about the bank robbery, and after doing that for three hours, asked him about the check cashing heist for an hour. Young sang, confessing to the check cashing robbery; he also threw in some more confessions to other crimes for good measure. The police were careful to videotape the entire interview.

The complication here is that not everything Young said on that tape would be admissible in his robbery trial. Certainly, nothing he said about the bank robbery could be played for the jury in the check-cashing robbery prosecution. Accordingly, the Commonwealth had to go through the laborious process of editing out the extraneous (and highly prejudicial) matter. They did that, but they weren’t perfect, and the end product included several statements that really, really should not have been played to the jury, such as admissions relating to illegal drug use and his involvement in other robberies.

When the jury saw that, Young, Esq., had the presence of mind to object to the trial court. The judge admonished the jury to disregard the extraneous material, but that admonition was destined to fall short; this is the basis of the Court of Appeals’ reversal for a new sentencing.

That reversal was based on a statute that provides for sentencing-only remands in bifurcated jury trials like this one. The statute sets up a procedure for such remands, and concludes with this language:

“If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due to an error in the sentencing proceeding, the court shall empanel a different jury to ascertain punishment . . ..” §19.2-295.1.

The Court of Appeals noted that this error occurred during the guilt phase, not the sentencing phase, but found that it affected only the sentence, not the ascertainment of guilt (Young was, in the CAV’s view, about as guilty as a chocolate-covered, sick-to-his-stomach five year old in a trashed candy store), so resentencing was all that was required. And therein lies the dispute.

In the end, this case turns on one of those little words we all take for granted. In is one of the shortest words in the English language. My dictionary lists 22 different meanings for it in its prepositional form (the only one that’s relevant to this debate), and my dictionary isn’t one of those unabridged things that are the size of a Buick and list every hypothetical meaning imaginable. The court parses this statute and decides on a narrow interpretation, by a narrow margin.

The majority opinion, authored by Justice Keenan, finds that “an error in the sentencing proceeding” means an error that occurs during the sentencing proceeding. Plain meaning; no statutory construction rules necessary; end of issue. The court thus reverses the Court of Appeals and remands to the trial court for a new trial on all issues. Upon a first read of the majority opinion (Justice Keenan is a very convincing writer), you wonder how anyone could disagree; the CAV looks to have re-engineered the statute to say, “an error that has an effect on the sentencing proceeding.”

But three justices (Justice Kinser, joined by Justices Lemons and Agee) think otherwise, in prose that will make you realize that this isn’t such an easy call after all. The dissent argues that the majority, in claiming that no statutory construction is needed, actually goes out and engages in its own construction (just quietly, so no one will notice). It argues that the majority effectively substitutes the word during for in, resulting in this language: “an error during the sentencing proceeding.”

The dissent does get in one good potshot here; it observes that the majority’s conclusion elevates the form of the statute over its substance. The General Assembly, in creating the procedure for bifurcated trials, intended to separate these two parts of trial, so errors that affect only one part could be isolated and dealt with separately. The majority’s ruling, and specifically its narrow interpretation of the word in, will require a whole new trial for an error that didn’t affect guilt.

Interestingly, my non-Buick dictionary lists one sense of in as meaning “during” and another as meaning “affecting.” Here is a debate on the meaning of the simplest of words, that is worthy of the finest lexicographers. But Noah Webster is dead and William Safire isn’t talking, so you’ll have to make up your own mind on this point.

I always try to post analysis of each of the Supreme Court’s published opinions. But if they ever get around to a ruling in which they decide what the meaning of is is, I might have to pass on that one.

Sexually violent predators

As Virginia’s Sexually Violent Predator Act is relatively new, there are only about half a dozen Supreme Court opinions interpreting it. That number grows by one with today’s announcement of Commonwealth v. Miller, which brings lessons on expert witnesses, and meeting a clear and convincing standard of proof. The opinion also highlights the civil, as opposed to criminal, nature of the Act.

Everybody agreed that Miller is a pedophile. Twice convicted of sexual offenses involving very young victims (one as young as five years old), he has been in prison since 1994. As his release date neared, the Commonwealth identified him as a candidate for post-incarceration confinement for treatment. He was evaluated by two experts for the Commonwealth, and by one of his own. At the trial of the case, all of the experts agreed that he was a pedophile, but they gave varying opinions as to his likelihood of recidivism.

Sorting all this out, the trial court determined that the Commonwealth had failed to prove that Miller should be detained after his release from incarceration. It found that the government’s witnesses testified less than clearly, and made one or more errors in their analysis. It also noted that Miller’s opportunity for interaction with juveniles after release would be sharply limited by his status as a sex offender.

The Commonwealth appealed, and got a writ from the Supreme Court. Today, that court reverses and remands the case. There are several interesting aspects of today’s ruling.

First, the court takes a narrow view of who may testify as an expert witness in these cases. The relevant code section requires that such witnesses must be either psychiatrists or psychologists who are “skilled in the diagnosis and treatment of mental abnormalities and disorders associated with violent sex offenders.” Miller’s expert seemed very well credentialed indeed – a psychiatrist who is the director of U.Va.’s Institute of Law, Psychiatry, and Public Policy, certified by the state to treat sex offenders.

Believe it or not, that isn’t enough, the court rules today. It upholds the Commonwealth’s argument that the mandates of the statute, quoted above, are conjunctive – “skilled in the diagnosis and treatment” of sex offenders. This doctor, while certified to treat patients, didn’t actually do so (as probably befits the director of a program like this, who therefore has a lot of administrative duties). In this vein, the requirement is the functional equivalent of the Medical Malpractice Act’s “active clinical practice” requirement for expert witnesses in those cases. Accordingly, the court rules that Miller’s expert testimony is inadmissible.

One other note merits mention here. The opinion recognizes that ordinarily, the qualification of expert witnesses is a matter left to the discretion of the trial court. But where, as here, a statute contains specific requirements for such qualification, a trial court errs as a matter of law when it admits testimony from someone who doesn’t meet those requirements.

That leaves us with just the Commonwealth’s evidence, since Miller only used the one expert. Those two witnesses, you will recall, had their testimony discounted by the trial court, which is the finder of fact. In that context, you may be surprised to find that the Supreme Court reverses here, too, finding that the two doctors’ testimony succeeded in proving, as a matter of law, that Miller fell within the parameters of the Act.

The Commonwealth had a tough burden in the appellate court; in asking the Supreme Court to reverse on sufficiency of the evidence, it fought against the tide of Code §8.01-680 (appellate court must uphold sufficiency finding unless plainly wrong or without evidence to support it). Add to that the enhanced burden of proof (clear and convincing), and you’ll understand that the Commonwealth scaled a very high mountain today.

Of all the decisions handed down today, this one is the most troubling to me from an analytical standpoint. There are two reasons for this. First, the disqualification of Miller’s expert does not seem to match the facts and the statute. The statute requires “skill” in diagnosis and treatment; it does not require an active practice. Miller’s psychiatrist was undoubtedly skilled in diagnosis and treatment. Indeed, she has been certified, by the very Commonwealth that objected to her credentials, to treat sex offenders. For the court now to add the equivalent of an active clinical practice requirement seems like judicial legislating.

Second, the Supreme Court essentially tells the trial court how it should have evaluated the credibility of the Commonwealth’s witnesses, and then enters judgment accordingly. I recall my astonishment last year when the Fourth Circuit ruled that, as a matter of law, a district court judge should have afforded greater credibility to a particular witness in a case, and reversed based on the appellate court’s view of that witness’s credibility. Long-established precedent requires that appellate courts must defer to the finder of fact on credibility determinations, but today’s ruling, like the one from the Fourth last year, puts the appellate court in the unfamiliar position of deciding whether a given witness should be believed.

Two final notes: (1) As indicated above, today’s ruling highlights the civil nature of these quasi-criminal proceedings. The Act provides for the involuntary commitment of persons due to a determination that those persons are dangerous. Detention and treatment under the Act is supposed to be therapeutic, not punitive, since the persons subject to it have served their full prison terms. The Supreme Court has nevertheless applied to SVPA proceedings many of the procedural safeguards required in criminal cases. Against this backdrop, you can see that this ruling would never have arisen in the criminal context; a finding in Miller’s favor would otherwise have prevented an appeal by the Commonwealth. (2) Keep in mind that the expert witness requirement here is driven by this particular statute, so this decision should not be applied elsewhere. In this light, one may see that this decision will be far less sweeping in the panorama of Virginia jurisprudence than, say, the Conley/Fitzgerald doctrine mentioned above.

* * *

The court issues two orders, one of which is published, in addition to the published opinions. In Thomas v. Commonwealth (unpublished), the court affirms the criminal conviction of a getaway driver in two burglaries in Albemarle County.

In Reifman v. Gorsen, it affirms a medical malpractice judgment in favor of the health care providers. The issue in Reifman is whether the trial court erred in refusing to admit a medical record describing the decedent patient’s condition a few days before his death. The trial court marked the exhibit for identification purposes at the plaintiff’s request, and permitted her to attempt to authenticate it by cross-examining one of the defendant doctors. The issue was whether the doctor had seen the document before the patient’s death. But the doctor steadfastly denied having seen the document until five days after the death.

Given this problem, the plaintiff did not immediately ask the trial court to admit the document into evidence, and ultimately did not do so at any time before the jury retired to consider its verdict. At that point, with the jury in deliberations, plaintiff’s lawyer belatedly asked the judge to admit the exhibit. Noting that the trial would have to be reopened in order to do that, the trial court declined, and the jury rendered its defense verdict without the admission of the document.

On appeal, the Supreme Court notes that plaintiff had ample opportunity to offer the exhibit into evidence, since the trial took five days. The court does not reach the question of whether the document should or should not have been admitted on its merits; it rules instead that the trial court did not abuse its discretion in declining to reopen the trial.

As Thomas is unpublished, and is not available on the court’s web site, readers of this site who want a copy of it may e-mail me.