(Posted August 9, 2018) The justices continue to clear off their desks with three published opinions this morning.


Qui tam proceedings

We’ll pay a rare visit to the world of false-claims law in Commonwealth v. Commonwealth ex rel. Hunter Laboratories, LLC. This appeal stems from a proceeding under the Fraud Against Taxpayers Act, which is the Virginia version of the federal False Claims Act. The Virginia act provides that when an action results in a recovery, the relator is entitled to a percentage share of the proceeds.

The question in this appeal is whether that percentage is calculated on the gross or the net recovery. This was an action to recover Medicaid overpayments. As you may know, Medicaid is a joint program administered by states and the federal government. Since Uncle Sam and Aunt Virginia split the costs 50-50, that means the feds get 50 cents out of each dollar recovered.

This proceeding produced a gross recovery of $1.25 million. The Commonwealth and the relator agreed that the relator’s share would be 28%. But they unwisely didn’t specify whether that was 28% of gross or net. The difference is about $210,000, an amount worth litigating.

The trial court ruled in favor of the relator, and today the justices unanimously affirm. The plain language of the statute doesn’t limit the relator’s recovery to a portion of the net recovery, and in many other instances, the General Assembly has been careful to spell out when it means “net, not gross.” The court also turns aside the Commonwealth’s contention that viewing things its way would mean more money in public coffers – a desirable thing if you’re in the governing business. But Justice McCullough’s opinion reveals the weakness in that view:

A significant reduction in the relator’s share will discourage relators from bringing these lawsuits. The Commonwealth receives nothing when a relator decides to stay home and foregoes the risk and expense associated with a qui tam suit. Speculation about the potential for the Commonwealth to recover less from qui tam actions constitutes an insufficient basis upon which to depart from what constitutes the most natural, plain language reading of Code § 8.01-216.7(B)


Criminal law

I saw a report this week saying that Dubai, in the United Arab Emirates, is the most cosmopolitan city in the world, with 83% of its residents born outside the country. I don’t know how far down the list our own Arlington is, but that’s the setting for Tirado v. Commonwealth, involving a confession by a native of Guatemala.

Police brought Tirado in to ask questions about an alleged rape of his cousin, a juvenile. The questioning – which appears from the opinion to have been fairly low-key – began in English, but Tirado switched to Spanish when another police officer came into the room. An officer fluent in Spanish and English acted as a translator.

The officers went over Tirado’s Miranda rights with him in Spanish. At each step, he indicated that he understood his rights; he even read the Miranda form back to the police in Spanish. He thereafter made one or two statements that you would likely regard as highly inculpatory. Thereafter, the officers asked him if he would like to write a letter of apology to his cousin. He agreed, and when they gave him pen and paper, he wrote it in Spanish – with 22 spelling and grammatical errors, but well enough for a translator to understand what he was writing.

At a motion to suppress, Tirado insisted that his native language was not Spanish but Mam, a language of Mayan origin that’s spoken in Guatemala. The trial judge watched the video of the interview and heard from the interrogator, but not the translating officer. The court denied the suppression motion, finding that Tirado understood what he was doing in waiving his right to remain silent. At trial, both officers testified. During cross-examination at the jury trial, Tirado admitted that he spoke Mam until he was six years old, and then shifted to Spanish.

That was good enough for the jury, which got ‘im. The Court of Appeals refused his petition for appeal, but a panel of the Supreme Court granted him a writ.

That was the last of Tirado’s victories; today the justices unanimously affirm the conviction. While Tirado makes much of the translator’s failure to testify at the suppression hearing, she did testify at trial. In evaluating suppression-motion appeals, appellate courts consider all relevant evidence, including what’s adduced at trial.

As for the merits, Tirado is undone by that ruthless slaughterer of appeals, the standard of review. Appellate courts review the admission or exclusion of evidence for abuse of discretion. The justices find today that the trial court’s admission of the video recording was an appropriate exercise of discretion. They also reject the contention that the confession was not knowing and voluntary, again bowing to the trial court’s superior knowledge of the circumstances (since the judge watched the video and heard witnesses testify).

Land use

Let’s step into the arcane world of lawful nonconforming uses to take up Prince William County v. Archie.

The county fathers (and no doubt the mothers, too) up in Prince William have no appetite for auto graveyards within their jurisdiction. The county’s zoning ordinance, enacted in 1958, doesn’t allow the facilities anywhere in the county. That doesn’t mean that they don’t exist; in fact, there’s a great big one on Minnieville Road in Woodbridge.

The reason that graveyard still exists, and presumably thrives, is because it was established in 1954. A use that predates a zoning ordinance is grandfathered and may continue as a lawful nonconforming use. That privileged status can vanish if the use ceases for two years. And that sets up our tale.

The Archie family has long owned the property, which was originally intact but now comprises three contiguous lots. Justice Goodwyn explains the layout: “The three parcels are ‘stacked up like boxcars,’ with Parcel 20 fronting Minnieville Road, Parcel 20B in the back, and Parcel 20A in the middle between Parcels 20 and 20B.” The family partitioned it in 1974, assigning the front and back parcels to Mr. and Mrs. Archie and the middle one to a relative we’ll call Aunt Dorothy. At all relevant times, the place simply teemed with vehicular cadavers, regardless of the lot lines.

In 1987, Aunt Dorothy sold her lot to a company. That company sued the Archie family, essentially saying, “Get your %#&!! dead cars off my property.” The court in that case ordered the Archies to remove the cars within 30 days.

I will admit that as I read this far into the opinion, I figured that a month was nowhere near enough time to clear out a junkyard. It turns out that I was right; the family never got the body count below 100 or so. That led the court to hold the family in contempt. But the parties eventually submitted a consent order, calling for the family to pay money to the company for what looks to me like rent.

Meanwhile, the county’s zoning folks initiated enforcement proceedings against all three lots, claiming that the use was illegal. Testimony established the grandfathered use for Parcels 20 and 20B, and the company certified that it had reached agreement for the Archies to clear off 20A. Based on that, the court let the company out of the zoning case and declared the uses on 20 and 20B to be lawful.

The company eventually defaulted on its mortgage. At the ensuing foreclosure sale, Aunt Dorothy reacquired it. She sold it in 1995 to the owners’ son, whom we’ll call Junior, so that Junior now owned all three lots. (I infer that Junior inherited Parcels 20 and 20B when his parents passed away.)

Let’s fast-forward to 2015. Junior still operated the family business, but to be safe, he asked the county to confirm that he had a lawful nonconforming use on all three parcels. The Zoning Administrator said yes for 20 and 20B, but no dice on 20A, since there had been an interruption in ownership, and the company hadn’t consented to the continued use.

Junior appealed to the BZA, which ruled against him by a 3-2 vote. He appealed to circuit court and found better luck there; the learned judge read the ordinance differently, holding that actual use, regardless of who the owner is, governs. Several witnesses testified that there had been cars all over Parcel 20A for many, many years. The judge bought that and ruled in favor of Junior.

The county got a writ, but today the justices affirm. The court respects the trial judge’s factual finding that the use was continuous, so no matter who the owner was or what his intent was – those factors are actually immaterial – the extended, continuous use of the property as an auto graveyard means that the use is grandfathered across all three parcels.

At this point, you’re wondering if there’s anything those county fathers and mothers can do to rid themselves of a business they don’t like. The answer is yes, but they may not like their options: They can offer to buy the property from Junior, or they can condemn it, assuming they can find a public use for the land.