(Posted December 6, 2018) If you’re shivering in the cold snap that now afflicts the Commonwealth, the justices today give us four published opinions and one published order to keep you warm.


Criminal law

The Code of Virginia contains a provision that makes it a felony to shoot at an occupied vehicle. Jones v. Commonwealth answers the interesting question whether one must be outside the vehicle while shooting, to violate the statute.

In a sadly familiar scene, this case arises from a drug deal that turned violent. Jones climbed into the victim’s car to purchase pills from the victim. While sitting in the car, Jones shot the victim several times, killing him. Among other charges, Jones faced an indictment for shooting at an occupied vehicle. The trial court refused a motion to dismiss that count, and convicted Jones. The Court of Appeals affirmed.

In the Supreme Court, Jones repeated his contention that one cannot shoot at a vehicle while sitting inside it. He notes that a separate statute criminalizes dangerously shooting a weapon while in or on a vehicle, and urges that this second statute would be superfluous if his conviction were to stand.

The justices apply the plain language of the statute and note that it doesn’t require a defendant to be outside the vehicle. For example, a person could sit in the front passenger seat and shoot a bullet at the driver’s-side door. The door is a part of the car, so a shot fired at the door is fired at the car. If the statute criminalized shooting into a vehicle, this analysis might be different; but that’s the way the legislature wrote it.

As for the other statute, the court observes that it’s similar but not identical. Most violations of the second statute will involve shooting out of the car. As the Court of Appeals had observed, “Code § 18.2-154 focuses on the direction of the shot, while Code § 18.2-286.1 focuses on the location of the shooter.”

This case illustrates some advice I read a year or so ago from an expert in personal security. He had three tidbits of advice to minimize your risk of being murdered: Don’t use illegal drugs or associate with people who do; don’t stay out after midnight; and don’t marry a psychopath. The expert opined that if you do none of these things, your chances of getting murdered are “an inch tall.” If you break one of the rules, your odds go to two feet tall. If you violate all three, your odds are 30 feet tall.

Perhaps this is the mark of a boring existence, but I’ve managed to adhere to all three recommendations, and I’m happy to still be here.


Freedom of Information

Years ago, when I was a municipal attorney, I defended litigation filed against my city. During the pendency of the suit, my adversary, not content with the discovery process, submitted a request for documents under FOIA. I objected, claiming that the proper remedy while parties are litigating is the discovery process. Otherwise, I contended, the city is a second-class litigant. A circuit-court judge ruled against me.

As a municipal lawyer, that rankled; but we didn’t appeal the ruling. I always wondered how the justices would approach this issue. Today we find out: In Bergano v. Virginia Beach, the Supreme Court evaluates the extent to which billing records are exempt from disclosure under FOIA.

Bergano was embroiled in federal litigation against the City of Virginia Beach. Anticipating a fee claim in that court, he submitted a FOIA request to the City for copies of its outside counsel’s billing records. The City produced the records, but with virtually every legal task redacted. The documents as produced showed the date, amount of time, and responsible attorney for each entry, but no hint as to what the attorney had done.

Bergano filed a mandamus petition, seeking unredacted records. A circuit-court judge reviewed unredacted copies of the records in camera, and ruled in favor of the City.

The Supreme Court reverses today, ruling that the trial court interpreted FOIA exemptions too broadly. The relevant exemptions are for the attorney-client privilege and the work-product doctrine. Work product normally covers documents “prepared in anticipation of litigation or for trial.” These billing records don’t fit that description.

That leaves the attorney-client privilege. The Supreme Court today cites with approval a Fourth Circuit decision, noting that the privilege typically “does not extend to billing records …” The court also embraces an opinion of the Attorney General, which states that “an attorney’s analytical work product or legal advice” is exempt, along with confidential communications from the client to the attorney.

If you’re familiar with attorneys’ bills, most of them don’t contain narrative analysis or advice; nor do they recite the client’s confidential disclosures. The Supreme Court accordingly sends the case back to the trial court with instructions to permit Bergano to have non-confidential billing records. The trial court will also evaluate Bergano’s own request for an award of attorney’s fees, which the courts usually award when a citizen successfully sues to obtain access to public documents.


Dangerous animals

Two key issues mark Frouz v. Commonwealth as noteworthy. This is a case originally brought under a statute that makes the owner or custodian of a dangerous dog liable for injuries caused when that dog attacks another dog. After hearing evidence, the trial court ruled that Frouz was liable to pay almost $4,000 to her neighbor, when Frouz’s dog, Blue, attacked the neighbor’s dog.

Actually, the first issue is whether Blue was Frouz’s dog at all. Her son owned it, and he was in New York for a period of time; Frouz and her husband had agreed to care for Blue while the son was away. During that time, Blue and the neighbor’s dog got into a scrape near the boundary between the properties. The encounter started in Frouz’s yard, but moved over to the neighbor’s yard. That’s when Blue attacked and seriously injured the other dog. A trial judge ruled that Frouz was liable for the neighbor’s vet bills.

On appeal, the first issue is one of jurisdiction. Frouz appealed straight to the SCV because, she felt, this is a civil case. The justices asked the parties to brief the issue whether this appeal belongs in the Court of Appeals, because the statute specifies that “[t]he procedure for appeal and trial shall be the same as provided by law for misdemeanors.”

The parties argued that jurisdiction was appropriate in the SCV, and today the justices agree. This is like a refusal appurtenant to a DUI charge. While the procedure is like a misdemeanor, the substantive right of appeal is civil.

That sets the table for the real battle: Whether Frouz was Blue’s owner or custodian. Before and at the trial, she had referred to Blue a couple of times as “my dog,” probably causing her attorney to wince. But the justices today find the evidence satisfactory to show that she was at least Blue’s custodian, in that she provided shelter or refuge to the dog in her son’s absence. Under this statute, that makes her liable.



The Red Onion State Prison in Wise County is Virginia’s lone maximum-security penal facility. It houses long-term prisoners with the following reported criteria: “Disruptive; Assaultive; Severe Behavior Problems; Predatory-type behavior; Escape Risk.” That’s enough to make me relieved that I’m on the far end of the state from the prison.

An inmate at the prison has accumulated plenty of frequent-flier (actually, in this case it’d be “filer”) miles in the judicial system. When he filed yet another suit in the Wise County Circuit Court, the warden moved to dismiss and sought an order to thwart future filings. Before the court could rule on that, the inmate filed a motion for a temporary injunction. Six days later, and with a hearing looming on the docket, the inmate filed a motion to nonsuit, or in the alternative an extra 30 days to respond to the warden’s motion.

The local judge may have seen more than enough of this repeat litigant. He granted the motion to dismiss and imposed a prefiling-review requirement that would enable the court to summarily dismiss future filings. The court did not address the nonsuit or extension requests.

By statute, if a given inmate has had three suits dismissed as frivolous, malicious, or for failure to state a claim, it can deny that prisoner in forma pauperis status unless circumstances exist such as an imminent risk of serious bodily harm. The trial court found this to be the inmate’s fifth such dismissal, so it imposed the IFP limitation.

That generates plenty of legal issues for the justices in today’s opinion, Gordon v. Kiser. The first is whether the trial court erred in refusing the nonsuit. Because the case hadn’t been submitted to the court for decision – the inmate had asked for extra time to respond, and there was a hearing set on the docket – the justices today rule that this ruling was error; the court should have allowed the inmate his one of-right nonsuit.

In theory, you might think that that moots the rest of the case. But that’s not what happens; a nonsuit doesn’t automatically extinguish a pending motion for sanctions. Trial courts have jurisdiction to consider such motions even after the plaintiff nonsuits, as long as they act within 21 days after the nonsuit, or if they retain jurisdiction over the case to adjudicate the motion.

That allows the justices to evaluate the sanctions imposed by the trial court. The first is the pre-filing review requirement. Citing last year’s Adkins decision, in which the SCV itself imposed such a requirement on a frequent litigant, the justices require consideration of four factors before a court may so act. The record here shows that the trial court considered only one, so the Supreme Court remands the case with direction to look into all four.

As to the second limitation, the denial of IFP status, the justices have bad news for the litigant. The statute only requires three “strikes,” and he already has four. Today’s opinion walks us through the first three, confirming that they do indeed qualify as “strikes” under the statute. That means that the trial court wasn’t wrong when it suspended the inmate’s right to file IFP.


Criminal law

The justices hand down one published order today, in Martinez v. Commonwealth. It addresses – rather, it declines to address – a baffling problem in a criminal prosecution.

Martinez is a deaf mute who doesn’t communicate in any language. Police arrested him on two indictments for capital murder in 2005. He hasn’t been to trial yet, long after the deadlines prescribed in the Speedy Trial Act. What gives?

The fact that Martinez can’t communicate means that he can’t assist in his own defense, and that, in turn, means he’s not competent to stand trial. He isn’t insane, so the insanity statutes don’t apply. Pursuant to statute, the Commonwealth has performed evaluations twice a year for twelve years to determine if he has become competent. But experts for the Commonwealth and the defense agree that he’s not much better now, and the trial court found that he has plateaued and won’t ever be competent.

This raises several thorny questions. The big one is, What are we to do with this man? Simply releasing him, because he probably will never be competent to stand trial, is practically unthinkable. This is a capital murder case. Placing him in a mental hospital for psychiatric treatment would be appropriate if he were insane; but he’s not insane. Trying him is out of the question.

Martinez’s lawyers moved the trial court to dismiss the indictment. The trial court denied the motion and, sensitive to the need for appellate review, decided that its decision “was appealable as a civil commitment order.” Martinez’s lawyers dutifully appealed, and since they’re appealing a civil order, they went straight to the Supreme Court, just as the appellant in Frouz, above, did.

The justices granted a writ and directed the parties to brief the issue of appellate jurisdiction. That turns out to be the entire battle today as the court rules that the denial of the motion to dismiss occurred in the criminal case, so any appeal has to go to the Court of Appeals. Normally that means that the justices will simply transfer the appeal to the CAV under Code §8.01-677.1. But the court declines to do that, ruling that the CAV doesn’t have jurisdiction, either, since this plainly isn’t a final order in the criminal case. (We call those sentencing orders.)

Okay, now what? Martinez is being held on suspicion of the most heinous crime in our book. He can’t stand trial, Virginia doesn’t want to release him, and he probably doesn’t even know what’s happening to him. Now the courts are saying he cannot obtain any appellate review of his detention.

My best guess is that the only way the courts are going to be able to get off the dime here is if Martinez files a habeas corpus petition. I assume that his lawyers can pursue that even if he isn’t competent for a criminal trial, and if so, the trial court will rule in favor of one party or the other. If it refuses to issue the writ, Martinez can appeal that (and that one definitely would go to the SCV). If the court grants the writ, the Commonwealth can appeal, and I suspect the trial judge would readily suspend execution of the release order pending an appellate decision. In that sense, today’s jurisdictional ruling postpones a ruling on the ultimate issue in this painfully difficult case.