[Posted February 17, 2009] For the second straight week, we get three published opinions from the Court of Appeals. Two of these are in criminal law; the third is a new Workers’ Comp decision. I don’t customarily issue directives to my beloved readers, but I will in this case: Thou shalt read the Workers’ Comp discussion, even if that’s not your field.

Criminal law
Last May, a divided panel of the court decided Edwards v. Commonwealth (my earlier analysis of the case is here), involving the question of whether an empty purse was a “burglarious tool” within the meaning of one of the ancillary larceny statutes. The majority found that it was not, but a dissent, authored by Judge Beales, claimed that the “preparation” of the purse for burglarious uses (by emptying it) made it an “outfit”, and that it was not put to the purpose for which it was normally used.

The court granted en banc rehearing, and this morning, we get not two but three opinions to explain the court’s decision. As of last May, a purse wasn’t a burglarious tool and today, it still isn’t; the en banc court agrees with the panel majority, and reverses the conviction. But there is a concurrence, written by the chief judge, with whom Judges Elder and McClanahan join; those judges find that the only tools that qualify are those designed to open things like locks or safes. Judge Beales again dissents, and this time he’s joined by Judges Kelsey and Haley. The dissent points to the fact that Edwards brought her purse into the store empty precisely so she could stuff her loot into it. (This is probably the dark side of bringing your own canvas shopping bag into the grocery store, to cut back on plastic consumption.)

Much of today’s opinion turns on fine linguistic points; one well-explicated issue is the meaning of the word such in the wake of a statutory amendment back during the Woodrow Wilson Administration. The majority concludes that “an ordinary purse is not ‘special equipment’ for the purpose of shoplifting,” and that merely emptying the purse in advance doesn’t change that fact. The concurring judges would go a bit further and hold that relatively recent CAV precedent, in which the court approved a conviction for a pair of pants that had been doctored to facilitate theft, was flawed. The concurring judges believe that a tool is a tool, and under our plain understanding of that word, purses don’t qualify.

Batson challenges have vexed trial judges since, . . . well, since Batson, back in 1986. The landmark case held that it was improper for a prosecutor to systematically target members of the defendant’s racial group when exercising peremptory challenges of veniremen. The doctrine has been expanded to civil cases and to strikes based on sex; there’s no telling where else it will ultimately go, since this doctrine is based on due process considerations, not the language of a particular statute. Accordingly, any appellate decision interpreting the law relating to such challenges will be welcome on trial benches across the state. We get one today, in Hopkins v. Commonwealth.

Hopkins was charged with selling cocaine. The Commonwealth, in a move it no doubt now regrets, used its peremptory challenges to strike four black veniremen. Two guesses what Hopkins’s race was. In response to the subsequent Batson challenge, the prosecutor went immediately to Step 2 of the required analysis. [Important lesson here for prosecutors – never skip Step 1. That’s the one that requires the movant to establish, prima facie, that you used your strikes in a discriminatory fashion. This prosecutor immediately started explaining himself – that’s Step 2 – and under well-established precedent, he thereby waived any claim that his strikes weren’t prima facie discriminatory.]

The prosecutor explained that two of his strikes had criminal records. Okay; sounds race-neutral to me; and the Court of Appeals doesn’t fuss with this part today. As for the other two, the prosecutor explained that they both had relatives who had been charged with drug-related offenses. He reasoned that they might therefore “be more sympathetic to Hopkins.” Again, this information is race-neutral, so it looks like the prosecution has survived Step 2.

We now turn to Step 3, where the movant gets to try to show that the offered reasons were pretextual. Hopkins’s lawyer addressed this by pointing out that three of the Caucasian veniremen also had family members who had found themselves on the business end of an arrest warrant in a drug case, and the prosecutor had elected not to strike any of those.

The trial court mused on that, and agreed. He helpfully added that he had noted that one of the struck veniremen “seemed very uneasy” to him. He overruled the Batson challenges, and the trial went on, eventually ending with a conviction.

Today a panel of the Court of Appeals unanimously reverses. There’s one primary reason, and one side note that is a useful tip for lawyers and judges alike. The main reason for the court’s ruling is that when a race-neutral reason is given that applies to members of the defendant’s class and to other veniremen, you can’t use that as a basis for striking members of the defendant’s class. The court cites one 1993 case that explains why: If the prosecutor lists age as the basis for his strikes, he can’t then use age to strike all the older (or younger) black veniremen, and leave the old (or young) white veniremen. Against that backdrop, you can see why the Commonwealth’s offered rationale for these two strikes isn’t enough to turn the tide.

The practice tip relates to the judge’s observation about the uneasiness of one venireman. His honor was probably quite accurate in his assessment, but the problem was that the prosecutor hadn’t mentioned nervousness in listing his race-neutral reasons. The court points out in today’s opinion that a Batson analysis rises and falls on the government’s offered rationale, not on additional reasons that the court might have noticed. After all, the whole point of the exercise is to divine what was in the prosecutor’s mind at the time he exercised his strikes. Accordingly, attorneys need to be careful to list all reasons for their strikes; judges won’t be able to fill in the gaps on their own.

Workers’ Compensation
Last week, we got three Comp decisions. This week, there’s only one, but it’s a whopper. The case is Hitt Construction v. Pratt, and gives enhanced meaning to the familiar term, the full Commission. Even if you don’t handle Comp cases, you should read this one for the stunner of a ruling in it.

The underlying dispute is almost an afterthought. Pratt got a permanent partial disability award from a deputy commissioner two years ago. The employer appealed to the full commission. While the appeal was pending, Commissioner Larry Tarr retired, leaving only two members of the commission in office.

Remember last year’s dreadful logjam in the legislature over the selection of judges? You know, the part where the General Assembly repeatedly found itself unable to fill vacant benches at various levels around the state because of partisan infighting? The problem that led to Judge Humphreys being shamefully cast into the rolls of the unemployed for eight days in April? Well, that very impasse left the third seat on the commission vacant for almost three months.

During that interregnum, Pratt’s claim came to be heard before the commission. Since it takes three to perform this particular tango, the two remaining commissioners appointed a deputy to fill the third chair. The three then apparently affirmed the original deputy commissioner’s award (today’s opinion doesn’t come out and say what the three did, but since the employer moved to set the ruling aside, you can read between the lines with me).

Okay, I’ve spoiled the surprise by telling you that the employer moved to set the matter aside. But the big news is its reason – it argued that the two commissioners plus the one deputy didn’t add up to “the full Commission.” I can envision the response of the employee’s lawyer to this argument – “C’mon; this is the best you’ve got?” – which might well have been my own initial response to such an argument. The two full commissioners, without even waiting for a deputy to fill out the trio, denied that motion.

The whopper I promised you is that the employer wins on appeal, for exactly this reason. The Court of Appeals concludes (quite correctly, in my opinion after following the analysis) that this wasn’t a situation in which the remaining two members formed a quorum of the “full commission.” That’s because the curative statute provides that a deputy can round out the threesome when one of the regular commissioners “is absent or is prohibited” from participating. Interpreting this language strictly but fairly, the court notes that this wasn’t one of those situations. Commissioner Tarr wasn’t absent or prohibited from sitting; he was retired, and the third seat was just plain vacant. That meant that the fill-in deputy might as well have been Claude Rains, because as far as the Code is concerned, he was invisible.

Interestingly, the State Corporation Commission can operate with two members as a quorum; that body has a specific statute that says that a majority of those commissioners shall constitute a quorum. But for whatever reason, the General Assembly never got around to providing this simple saving clause for the Workers’ Comp Commission. As the court notes today, judges aren’t permitted to fill in missing provisions in the Code; that’s the legislature’s job.

Now, lest you think this ruling has just invalidated every ruling that came down between the dates of Commissioner Tarr’s retirement and Commissioner Williams’s appointment to replace him, you can relax. The court carefully notes that this lack of a quorum goes to the commission’s authority to review the award, not to subject matter jurisdiction. That means that the ruling is voidable, not void. Since the employer’s lawyer may well have been the only one smart enough to raise this argument, he looks to be the only one to benefit from it – at least this time around; the failure to raise a “voidable order” objection constitutes a waiver, so there’s no going back to vacate last year’s rulings on this basis. But from now on, everyone is on notice that when the commission is short-staffed as a result of things like retirement, it’s essentially powerless to act until that vacancy is filled. This ruling will no doubt inspire a curative bill, but it’s far too late for that to happen in 2009; the earliest it will likely happen is July 1, 2010.

There’s one last ironic gem here that I simply cannot resist mentioning. Remember poor unemployed Judge Humphreys? He was reelected by the legislature, finally, on April 23 of last year, the same date on which Commissioner Williams was appointed to round out the Commission. Well, that same Judge Humphreys, now assured of continued employment through mid-April 2016, is on the unanimous panel that decides this case today.