ANALYSIS OF APRIL 8, 2021 SUPREME COURT OPINION AND ORDERS
(Posted April 8, 2021) The Supreme Court of Virginia decides one appeal by published opinion this morning. Bryant-Shannon v. Hampton Roads Community Action Program, Inc. rises from a defamation suit filed by a former executive-level employee of an organization that addresses poverty-related problems in the southeastern corner of the state.
The employee sued the organization based on statements placed in her personnel file and on statements made in a Virginia Employment Commission proceeding after her termination. The circuit court sustained a demurrer and dismissed the suit.
Today the Supreme Court unanimously affirms the dismissal. The court reviews the statements in the personnel record and agrees with the trial court that they don’t contain the requisite sting to maintain a defamation action. Here’s one example:
[O]n September 9, 2015, you . . . engaged in several email messages concerning the minutes of one of our board meetings. You also emailed Mrs. Ben Shalom about the status of one of the agency vans. You were engaging in these activities while you were on vacation. I am requesting that when you are on vacation, please refrain from any communication with staff unless it is an emergency.
The justices today hold that this isn’t defamatory; it’s a request for future actions.
The issue that probably gets this opinion published relates to the second class of claimed defamation, the statements in the VEC proceeding. A statute bars the use of information provided to the VEC in judicial or administrative proceeding. In a ruling of first impression at this level, the court holds that this statute confers absolute privilege to those statements.
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In an unpublished order, the Supreme Court also dismisses Sheehy v. Williams, an appeal that I discussed here back in November. There, a plaintiff got a money judgment for about $50,000. The defendant noted an appeal and got a writ. During the pendency of the appeal, the defendant sold her home. To enable her to convey good title, the settlement agent paid off the judgment, which would otherwise have impaired the buyer’s title.
The judgment creditor then moved the Supreme Court to dismiss the appeal as moot, because the appellant had paid the judgment voluntarily. Because these facts occurred after the record was finalized, the justices remanded the case to the circuit court for factfinding on what had happened.
The learned judge duly answered the justices’ questions. That told the Supreme Court that the appellant had known about the judgment payoff and hadn’t objected to it. The Supreme Court today rules that this indeed moots the appeal.
In another unpublished order, the justices address an unusual procedural quirk arising from a Batson challenge. In Bryant v. Commonwealth, the defendant demanded a jury trial on a charge of unreasonable refusal to take a breath test.
After voir dire and just before the jury was seated, Bryant’s lawyer noticed that the only black member of the venire had been struck by the prosecution, and requested the opportunity to make a motion outside the jury’s presence. The court accordingly directed the selected jurors to wait in the jury room and the other veniremen to wait in another area.
Bryant’s lawyer noted that his client was black, and the Commonwealth had removed the only black venireman with a peremptory strike. After argument, the court ruled that the strike was impermissible, but doubted that enough veniremen was present to start the selection process anew. Bryant’s lawyer told the court that the only remedy he sought was to restore the struck black venireman, expressly adding that the request didn’t include empaneling a new jury.
The court decided to fashion what it thought was an appropriate remedy: It added new veniremen and gave each party one more strike. The ensuing jury convicted Bryant.
After trial, Bryant’s lawyer renewed the motion to reseat the struck juror, this time arguing that the only legitimate option was to empanel a new jury. In oral argument, though, the lawyer only argued for reinstatement of the black venireman.
On appeal, Bryant urged the Supreme Court to hold that the circuit court should have either reinstated the struck venireman or empaneled a new jury. But because the lawyer had disavowed the new-jury alternative when it mattered – at the time of the Batson challenge – the justices refuse to consider it.
That means that the only issue on appeal is whether the court abused its discretion in using the approach described above. The justices today agree with the trial judge that merely reseating that venireman would be problematic because it was clear that she had initially been struck – remember, she was part of the group that had been set apart from the initially selected jury – and might foreseeably hold that against the Commonwealth in the trial.
In a footnote at the end of today’s order, the justices note that the question of whether the circuit court’s approach was proper or not isn’t before them, because no one assigned error to it. Today’s ruling is limited to the question whether the circuit court acted within the bounds of its discretion in not reseating the struck venireman.