(Posted August 5, 2021) The Supreme Court issues three published rulings this morning.


For the second time in four weeks, we get a ruling in a malicious-prosecution appeal. Last month, in Dill v. Kroger LP, the justices reinstated a struck malicious-pros claim while affirming the dismissal of a companion count for abuse of process.

Today the court takes up Eubank v. Thomas, where a couple faced a short-lived prosecution for alleged zoning violations at their home in Mathews County. When the local prosecutor dismissed or withdrew all charges, the couple filed suit against the county administrator and two planning and zoning employees. The action asserted that the county wanted to acquire the couple’s land cheaply, so the defendants field sham violation notices, hoping to force the couple to demolish their home and thereby reduce the property value. This would permit the county to condemn the land at a cheaper price.

The defendants demurred, noting that the couple hadn’t appealed the zoning administrator’s determination that their house was nonconforming. They claimed that this determination was accordingly a “thing decided” that cannot be collaterally attacked.

The circuit court sustained the demurrer and dismissed the action. Today, in what will seem eerily familiar to fans of last month’s Dill decision, the Supreme Court reinstates the malicious-pros claim, holding that the couple alleged actions by the county-employee defendants that, if proved, would support such a claim. The court affirms the dismissal of the abuse-of-process count, again holding that there was nothing irregular about the process used in the prosecution.

Because the ink on Dill is still fresh, this might have come down as an unpub if not for the “thing decided” issue. The court rules today that a zoning administrator’s decision is not a “thing decided” in a tort action like this — remember, this is no longer a land-use proceeding or even a criminal prosecution — so it isn’t a bar to maintaining this action.

Tragedy underlies today’s decision in Lopez v. Intercept Youth Services. Intercept operates something called a “YouthQuest Independent Living program for at-risk youth” in Prince William County. This case involves the murder of an Intercept employee by one of those at-risk youths, a resident at the facility. The decedent worked as an evening support counselor, which required her presence at the site. She kept her door locked, but residents were allowed to knock and ask permission to enter.

The assailant here asked for entry to the counselor’s office to get some medications. Because administering those meds was part of her job, she allowed the resident inside, where he strangled her to death.

The decedent’s personal rep sued Intercept for wrongful death, alleging that several of the employer’s actions or inactions proximately led to the death. The employer pleaded the benefit of the Workers’ Compensation bar, asserting that the personal rep’s sole remedy was a Comp claim. The circuit court agreed and dismissed the action.

Today, the Supreme Court affirms. The only disputed issue here is whether the death arose out of the employment. This morning’s meticulous opinion from Justice Kelsey, writing for a unanimous court, lays out allegations in the complaint to establish that the risks that resulted in this death related to the counselor’s employment; she didn’t endure a risk common to others in the area. In essence, she was chosen for this terrible crime because her job placed her there.

Comp bar cases cut both ways. Sometimes an employer tries to establish that the Act doesn’t cover a specific injury, so it asserts that the injury doesn’t arise out of and in the course of the employment. Other times, as here, an employer fully embraces the Act’s coverage so it can avoid exposure to enormous tort damages.


Domestic relations

There’s a very short published order in Barnes v. Berry, an adoption case from the Court of Appeals. The CAV found last year that a circuit court had erroneously ruled that a putative father hadn’t timely registered as such. The circuit court had held that the father thus had no standing to participate in adoption proceedings. The CAV sent the case back.

The case took a detour upstairs after that, as the justices agreed to take a look; but today they affirm on the same reasoning in the CAV’s opinion. Justice Mims appends a dissenting opinion in which he argues that the statute creating a deadline for fathers to register is ambiguous. He doesn’t argue in detail that the case should come out a particular way; he instead calls on the legislature to sharpen the wording to eliminate the ambiguity. This emphatically isn’t my usual swimmin’ hole, but I sense that this should be a fairly easy legislative fix — something that probably occurred immediately to the court’s only former state legislator.