(Posted December 12, 2019) It never fails: Whenever I’m out of the office on a Thursday, it starts raining published opinions from Ninth and Franklin. Today I was in the Fourth Circuit to watch en banc oral arguments in DC v. Trump and In re Trump, two appeals involving challenges based on the Emoluments Clauses. When I got back to my car and turned on my cell phone, I learned that the Supreme Court of Virginia – no doubt metaphorically chuckling at me the whole time – handed down eight published decisions today.

Since I’m getting a late start, I’ll analyze some of today’s decisions now and compete the project tomorrow. The dominant theme of today’s batch is criminal law: Six of the eight decisions come in criminal appeals.


Local governments

Local governments are immune from tort liability for negligence in the performance of governmental functions, but they may be liable when the right of action stems from the exercise of proprietary functions. The Supreme Court explores the boundary between these two today in Massenburg v. City of Petersburg.

This is a tragic wrongful-death case involving a house fire. Firefighters responded to the scene but found the nearest fire hydrant inoperable. They located another one 1,000 feet away, but by the time they strung that hose and got to the burning house, the occupant had died from smoke inhalation.

The decedent’s personal rep sued, claiming that a systemic deficiency in the water supply to fire hydrants. The City filed a demurrer and a special plea, admitting the factual allegations but claiming that fire suppression was a governmental function to which absolute immunity applies. Because there were no factual disputes, the trial judge undertook to rule on the special plea over the plaintiff’s objection.

A note about that objection: If a party demands trial by jury, normally he gets a jury trial on a special plea. That’s the Bethel Investment v. City of Hampton ruling from 2006. But there’s a caveat, in that the right to a jury trial applies only where the facts are in dispute. The City admitted all of the facts, so there’s nothing for the jury to do here. Hence the judge correctly took up the matter himself.

The court sustained the plea and dismissed the case. On appeal, the dispositive issue is whether the pleadings here asserted a claim implicating the operation of a fire department (governmental) or the maintenance of a water system (that’s proprietary).

The justices today unanimously find that this claim relates to the operation of a fire department. It cites an old case that rejected immunity for liability related to water-supply issues because, in that case, the water issue was “not directly connected with the extinguishment of fires.” This claim was just that. Moreover, the court adds a cite holding that where governmental and proprietary functions overlap, the governmental function overrides and immunity protects the locality. The court thus affirms the dismissal of the suit.


Criminal law

Murder includes the components of killing another person with malice. A defendant may act with malice when he intends to harm one person but inadvertently kills another, such as when a stray bullet strikes a bystander, through the doctrine of transferred intent. But can a defendant be guilty when the prosecution can’t prove that he was shooting at anyone? That’s the issue in Watson-Scott v. Commonwealth, where the decedent, a mother of three, was admittedly killed by a shot fired by Watson-Scott.

The hypothetical above fits this case well. The decedent was struck by a bullet while sitting in a car with her mother and her children. The defendant had been seen walking a bicycle along the same street with a companion. When a witness looked up at the sound of shots, he saw only the defendant; the companion was nowhere to be seen. The prosecution argued at trial that the judge, as factfinder, could infer that he was firing the gun at his erstwhile companion; the defense insisted that without proof of another person, there could be no malice and hence no murder.

The trial judge agreed with the reasonable-inference argument and convicted the defendant; the Court of Appeals agreed. Today, the Supreme Court affirms on different reasoning. The court cites a line of caselaw that permits a finding of malice not directed toward “any one or more particular persons,” and that malice “may be implied from the deliberate use of a deadly weapon.”

Well, we emphatically have that here, and the justices apply that to rule that this established implied (not transferred) malice, and affirm. The prosecution satisfies the malice component by proving that a defendant intentionally engages in “wrongful conduct likely to cause death or great bodily harm.”

The next decision involves a criminal statute that you don’t see often: felony destruction of property. That statute proscribes destroying the property of another, and makes it a felony if the value of the property is more than $1,000. My best guess as to why this is a relatively rare prosecution is that most folks who do the damage will pay the owner to replace the item, and the owner decides that getting a new item is as easier resolution than prosecuting and taking several trips to court to testify.

Today we get one of the exceptions. In Spratley v. Commonwealth, the property was a grocery scale in an upscale grocery store. Security video showed Spratley in a lively discussion – we don’t know if it was an argument because there’s no audio – with another person. In the course of that encounter, Spratley knocked over the scale, which broke into a gazillion pieces.

The grocer tried to order a replacement from its customary supplier, but the supplier replied that there were no scales of that model available. The company accordingly bought a different, though very similar, scale made by a different company. The purchase price was a bit over $4,000, and that’s what the prosecution claimed was the value of the broken scale.

In court, Spratley argued that this evidence was insufficient to prove the value of what she broke. It was a different model and it was brand-new, not used as the old one was. The trial court looked at the statute and found this passage:

The amount of loss caused by the destruction, defacing, damage, or removal of such property, memorial or monument may be established by proof of the fair market cost of repair or fair market replacement value.

Did you catch the or in there? The court reasoned that the “fair market replacement value” was the cost to buy a substitute. Since the court found the replacement scale to be functionally equivalent to the old one, it convicted Spratley of the felony. The Court of Appeals offered he no succor.

Today the justices affirm, holding that this quoted passage distinguishes this statute from larceny cases, where the value proved must account for depreciation. In destruction-of-property cases, proving the cost of the replacement item is sufficient.

In a short published order, the court today resolves an unaddressed jury-instruction question involving alternative theories. The case is Davison v. Commonwealth. A jury convicted Davison of several crimes including forcible sodomy and aggravated sexual battery. Over Davison’s objection, the trial court gave a combined instruction that covered three alternate ways in which Davison may have overcome the victim’s will: by force, by her mental incapacity, or by her physical helplessness. The jury convicted and the CAV rejected the challenge to unitary instruction. Davison appealed to the Supreme Court, arguing that the instruction could produce a non-unanimous verdict if some jurors found one component and other jurors found a different one.

Today’s order notes that this issue has evaded a definitive ruling. In at least one prior case, the CAV assumed without deciding that the instruction was erroneous but found the error to be harmless; the justices, on further appeal, found that the argument hadn’t been preserved. Today the Supreme Court ends speculation by embracing the CAV’s holding here. In alternative-cause situations like this, where the evidence is sufficient to establish each of the three alternatives, a unitary instruction like this is appropriate.

In yet another published order, Yoder v. Commonwealth, the court takes up yet another case of a defendant who regards the revocation of her driving privileges to be a suggestion instead of a mandate. Yoder was twice convicted of driving after a revocation, once in 2010 and once four years later. On the later of those occasions, she served jail time. When a sheriff’s deputy pulled her for a minor traffic infraction in 2016, she handed over the scarlet letter of a government-issued ID card, not a driver’s license. A quick computer check of her driving record led the deputy to return to her car with a pair of handcuffs.

Despite all this, Yoder complained when the trial court convicted her. She asserted – first in the CAV and then in the SCV – that the evidence was insufficient to prove that she knew her license was suspended. But the abstracts of her convictions showed that she was present in court on both prior occasions, in 2010 and 2014, and that she pleaded guilty and stood there while the judges successively found her guilty. This, the justices hold today, furnished ample support for the conclusion that she knew her licensure status, so the court unanimously affirms her conviction.

Next, in Cilwa v. Commonwealth, the court takes up the question whether a trial court validly imposed an indefinite period of probation. Cilwa found herself on the wrong end of the law in a series of adventures, starting with grand larceny and proceeding to drug offenses. The trial courts treated her with consideration, as I perceive it, offering her sentencing leniency and access to drug-treatment programs. Despite this, she continued to commit crimes and continued to get caught.

In 2009, Cilwa and a prosecutor agreed to extend her previous probation from one year to an indefinite period “in order to complete inpatient substance abuse treatment” and so she could resolve an outstanding felony charge. A year later, a court again imposed indefinite probation, for reasons we can understand.

Several years later, after being arrested yet again, Cilwa challenged the 2009 consent order imposing indefinite probation. She asserted that the court could only modify her probation terms before the original term expired. She also asserted that the deal allowed her to escape supervision by completing her drug-treatment program, and she had a contractual right to be free of that probation.

Justice Kelsey does an excellent job of explaining in detail why both of these arguments are unavailing, so I won’t try to improve on that. Instead, here’s the Reader’s Digest version:

  • Assuming the 2009 order came too late to validly extend the probation, Cilwa consented to it, and then didn’t challenge it for many years. Because any claimed error in the order doesn’t implicate subject-matter jurisdiction, any objection to it is waived by that lapse. In other words, the order was at most voidable, not void ab initio.
  • No criminal defendant can claim that an agreed period of supervision or parole is a contract. It is, under established caselaw, “a free gift of the Commonwealth” to help him turn his life around.

The court thus affirms the revocation of suspended incarceration.

The final criminal appeal of the day is Watson v. Commonwealth, involving convictions of murder, robbery, and companion firearm counts. A jury convicted Watson of shooting two victims, one of them fatally, outside a night club. The surviving victim identified Watson as the shooter.

Because this eyewitness identification was crucial to the case, Watson hired an expert to testify about the reliability of such testimony. In particular, the expert was hired to explain two key concepts: confidence inflation (where a witness’s confidence in his identification rises based on extrinsic factors) and unconscious transference (where a witness unknowingly “transplants” a known person onto an unknown assailant).

The trial judge considered the admissibility of these expert opinions outside the jury’s presence. After a thorough hearing in which the judge participated actively, querying the expert in addition to questions from counsel, the court ruled that the expert could testify as to other matters about identification, but not these two. As to the first, the court felt that the confidence testimony was a matter of common sense and thus within the jury’s province. As for transference, the witness stated that he wasn’t able to identify any in this case, so the court found that testimony irrelevant.

Before sending the case to the jury, the judge refused a model jury instruction that Watson offered, keyed to eyewitness testimony. See VMJI (Criminal) 2.800 (you’ll need to scroll down). The court felt that other instructions in the case adequately covered the topic. The jury convicted Watson, and the court imposed the jury’s recommended sentence of life plus 58 years in prison.

The Court of Appeals rejected Watson’s appeal in a per curiam order, but a writ panel at the Supreme Court agreed to take a look. Today the court unanimously affirms the convictions, agreeing with the trial court’s reasoning in excluding the expert testimony and in refusing what would have been a redundant instruction. On the latter issue, the court notes that the model instruction permits a court “in its discretion” to give the instruction, nothing requires it where the other instructions adequately address the issue.

If you were keeping score today, you noted that in these decisions, criminal appellants went 0-6. The Supreme Court of Virginia is a particularly tough place to get a criminal conviction reversed.



The final published decision of the day – that’s because I read the shorter opinions first, and save the long ones for last – is Transparent GMU v. George Mason University. It evaluates whether a private foundation that exists to support a public university is subject to the Freedom of Information Act.

It’s no secret that George Mason University is a favorite of conservative donors, and maybe even conservative causes. Its notable donors include Charles Koch and his late brother David. An entity named Transparent GMU submitted a FOIA request to the university and its privately owned foundation, seeking records of donations from the Kochs and one other donor.

The university replied that it had no such records, since donations went to the foundation. The foundation responded that, as a private entity, it wasn’t subject to FOIA and had no duty to disclose anything. In the ensuing lawsuit, a circuit court agreed with the respondents and dismissed the case.

Today the Supreme Court unanimously affirms. Justice Powell’s opinion for the court spells out the history of the university and its foundation, noting the separation between the two. The court notes that the foundation is not a GMU entity and, except for a minimal payment to pay student employees, doesn’t receive public funding. The court rejects Transparent GMU’s effort to pierce the university’s corporate veil – assuming the school is a corporation that possesses a veil – because there’s nothing to show that it uses the foundation as an alter ego for improper purposes. Finally, one overlapping official – a university vice president who also sits on the foundation’s board – doesn’t warrant a conclusion that the two entities are actually one.

I’m as big a proponent of open government as the next guy, but I have to agree with the court’s reasoning here. It’s understandably frustrating that donor records for a public school aren’t publicly available, but in my mind there’s no arguing with this arrangement. Today’s opinion notes that the legislature considered a bill in 2017 that would expand the definition of public body to encompass foundations like this, but the bill died in a Senate committee. It is at least conceivable that the new Democratic majority in the legislature could revisit that, in which case today’s ruling would have a short shelf life.