ANALYSIS OF JANUARY 12, 2010 CAV OPINIONS[Posted January 12, 2010] Okay, everybody; break’s over! After taking a week’s hiatus, the Court of Appeals returns to the order-publishing business today, giving us six such decisions.
A panel of the court takes dead aim at the hornet’s nest of Melendez-Diaz v. Massachusetts, and connects fully, in Farmer v. Commonwealth, involving the admissibility of drug analysis certificates. This, in my view, is the biggest case of the day from the Court of Appeals.
We don’t know the underlying facts of Farmer’s arrest; all we know is that at trial his lawyer objected to the admission of two certificates of analysis because the forensic analyst who prepared them wasn’t present to testify. The trial court overruled that objection based on what looked for all the world to be solid legal ground – the SCV’s decision in Magruder v. Commonwealth (2008), which held that the defendant’s Confrontation Clause rights were protected as long as he had the right to demand in advance that the analyst be in court.
The Supreme Court of the United States famously threw that ruling into chaos with the 2009 decision in Melendez-Diaz. There, the court held that merely enabling the defendant to subpoena the analyst didn’t comply with the Constitution, because no criminal defendant could be required to summon a witness to testify against himself. (I’m simplifying greatly here.) But as every criminal practitioner knows by now, the Big Supremes threw a curve ball with the very next pitch, agreeing to review Magruder (sub nom. Briscoe v. Virginia, a case that Virginia Solicitor General Steve McCullough argued orally in Washington just yesterday) instead of just reversing for compliance with Melendez-Diaz.
Still with me? Okay, it’s time to fast-forward to 2010 and Farmer’s effort to extricate himself from this same problem. He no doubt figured that Melendez-Diaz, which is undoubtedly The Law of the Land right now, would spring him from the convictions. But today he finds, to his astonishment, that The Land doesn’t include Virginia – at least not Eighth Street, between Grace and Franklin, in Richmond.
The Court of Appeals affirms, noting that despite Melendez-Diaz, the Magruder doctrine remains in effect in Virginia until and unless the Big Supremes decide yesterday’s appeal. The court finds that Virginia’s statutory framework is still permissible, at least for now, so Farmer waived the right to demand the testimony of the analyst when he declined to subpoena him or her to trial.
I have to admit that this very short (4½ pages) ruling comes as a surprise to me. While I won’t speculate on the outcome in Briscoe, which may well turn on the as-yet-undisclosed views of former prosecutor, now Associate Justice, Sonia Sotomayor, it appears to me that the CAV owes at least some deference to the clear holding in Melendez-Diaz, at least until the justices decide whether to modify it or not.
Further review, anyone . . .?
The next criminal appeal implicates a Terry stop that occurred at the very moment the police were obtaining a warrant to search the defendant’s apartment for drugs. In Lawson v. Commonwealth, an officer observed Lawson over a period of two weeks, beginning after the department received a tip from a confidential informant. The suspect occasionally traveled to a local park, where the officer saw him conduct what looked like “hand-to-hand” drug sales. At other times, the officer saw people drive up to Lawson’s apartment, go inside for five minutes or so, and then leave. You know what they’re doing in there, right?
The officer figured that he sure-enough did know, so he went to a magistrate’s office to get the warrant. While he was there, other officers (who had been tasked to keep an eye on him until everyone could swoop in, warrant in hand, to search the place) saw him get in his car and start to drive off. After a few blocks they stopped him – this is the advertised Terry stop – and got his consent to frisk him, but turned up nothing.
That might well have been the temporary end of the matter, but the gendarmes decided to keep him there until a drug-sniffing dog could be brought around. Fido arrived about 25 minutes later and alerted on the car, which turned out to contain a modicum of cocaine.
Lawson moved to suppress, arguing that the search warrant for the apartment didn’t allow the police to search him several blocks away. The trial court took a different tack, finding that the police had an articulable suspicion that “criminal activity was afoot” while he was driving down the road, no doubt scrupulously minding his own business. That ruling is the focus of today’s appellate ruling.
The CAV panel falls in line with the trial court’s ruling, affirming the conviction because the officer’s observation of a series of drug transactions was enough to establish a reasonable articulable suspicion. Note that it isn’t enough to establish probable cause (as the opinion specifically notes today); but all it has to do is give the officer a reasonable justification for the stop, just long enough to see if his suspicions were justified.
This ruling is unanimous, as are all the other decisions released today, and that fact is at least a bit surprising to me. That’s because while I can follow the panel’s reasoning, it seems to me that this is a much closer call than what the panel describes. Defining the boundary between probable cause and articulable suspicion is always tricky, and this fact pattern doesn’t fit unambiguously in the articulable-suspicion category.
Did you know that 7-Eleven employees get to eat stuff in the store without paying for it?
Okay, hold on; before you go rushing to apply for a job there, you should know that there’s a catch. The chain permits its employees to purchase food and drink for on-site consumption without pulling any cash out of their pockets, but the price is eventually deducted from their paychecks. That policy is at the heart of VEC v. Trent, an unemployment comp claim by a fired 7-E store manager.
There’s a key provision to the policy that plays a major role in the decision: The purchases have to be for on-site consumption. The policy permits store employees to catch a quick bite whenever business slows down, so they won’t have to take a lunch hour and maybe go to a restaurant. That facilitates the operation of the store and relieves the employees of having to carry cash for their in-store lunches and cups of coffee. The policy doesn’t apply to things that aren’t for in-store consumption while on the job, such as tobacco and alcohol. It also excludes money orders and phone cards.
Trent was unlucky enough to be caught on video for the heinous offense of buying a phone card without paying for it immediately. I don’t know whether the company thought she was trying to steal it; but it pointed to the limitations of the policy and told her to walk. Personally, that seems like a harsh punishment. I don’t know if there was anything else on her record, or if this is a no-tolerance policy, so there’s no way to tell from this record whether there was some enhanced justification for the firing.
Trent sought unemployment compensation, and the company defended on the ground that she had been terminated for misconduct. Misconduct includes violation of “a company rule designed to protect the legitimate business interests” of the employer. That’s the playing field for today’s appeal.
The VEC ruled in favor of the employer, determining that the store did have a legitimate business interest behind the policy. A circuit court disagreed and directed an award of benefits. Today, the Court of Appeals reverses and reinstates the Commission’s denial of benefits. It bases that ruling on the requirement that a reviewing court (and that includes the circuit court in an appeal like this) must accept the Commission’s factual determinations, and can only reverse under circumstances that amount to arbitrariness or capriciousness. Whether the circuit judge agreed with the severity of the punishment or not, the company had a legitimate reason for the policy, and that, essentially, is the end of the inquiry.
There are a couple of important lessons in McCoy v. McCoy. Husband and wife signed a property settlement agreement in which wife waived spousal support as long as Husband did everything else he was supposed to do. A separate provision of the agreement stated that Husband would continue to provide health insurance for Wife until she got a job of her own that provided her with coverage of her own.
Several years later, Husband stopped paying the premiums somewhere around the time that Wife remarried. Husband reasoned that his payment of the premiums was in the nature of spousal support, and once she remarried, he didn’t have to support her anymore. A trial judge disagreed and found him in civil contempt.
On appeal, a panel of the Court of Appeals agrees and affirms the contempt finding. It notes the difference between the two provisions, one providing for support and the other dealing with insurance. And since the agreement provides a specific termination event for the insurance requirement, and that event is not her remarriage, Husband is out of luck.
There are a couple of important practice tips here. The first one is obvious: If you’re crafting an agreement like this, and you represent the obligor, you need to specifically include remarriage as a terminating event. If this agreement had contained that language, we wouldn’t have this case to talk about. The second lesson is in appellate practice. During the pendency of the appeal, Husband moved the trial court to set aside the contempt finding, based on fraud on the court. I don’t know what kind of goods he had on Wife, but it must have been pretty juicy, because the trial judge entered an order vacating the contempt order.
The problem here is that the case by then was firmly before the CAV, and no one had bothered to ask the appellate court for leave to conduct this supplemental proceeding. When you appeal, the trial court’s jurisdiction ends and the appellate court takes over; that means that the trial court can’t go around vacating orders without checking upstairs first.
The Comp Commission gets to do a bit more homework in Fairfax County School Board v. Martin-Elberhi, a permanent-partial impairment finding for a knee injury. The employee sustained a significant knee injury that wasn’t connected with her job, and she got a knee replacement. The next year, she fell at work, damaging the repaired joint. Her doctor assessed her impairment at 37% for the leg, which translates to 15% of the whole body, and the Commission awarded benefits accordingly.
The CAV reverses today. It rules that no evidence ever segregated the effect of the original injury from the effect of the re-injury. Since the employer is responsible for the latter but not the former, the court remands the case back to the Commission and invites it, if it wishes, to reopen the evidence for the purpose of making that required analysis.
The merits of Chabolla v. DSS are, in my view, buried by the first-impression procedural ruling in the opinion. Chabolla found himself on the wrong end of a child-abuse proceeding after a fiery war of words with his teenage daughter. During the argument, he unwisely took down his handgun from its perch atop a cabinet in the home. He didn’t point it at her or threaten to shoot, but from what I understand, there appears to be little doubt that he brandished it. In addition to the daughter, Chabolla’s four-year-old son was present.
Someone from Child Protective Services showed up shortly thereafter. Chabolla was combative and defensive, to the point that the CPS worker had to call the police to help her conduct her investigation. The whole situation eventually settled down with no gunfire and no injuries, but DSS did report a founded complaint of “Level One” (evidently the highest level on the scale) physical abuse.
Chabolla asked for review by a hearing officer, and that officer was a bit more sympathetic, confirming the finding of abuse but reducing it to Level Two, since Chabolla hadn’t pointed the gun or actually threatened to use it.
Chabolla still wasn’t satisfied, so he sought further review in circuit court, and this is where the procedural ruling comes into play. He timely filed a petition for appeal on November 6, 2006. That triggers a requirement to file a petition for appeal within 30 days. The petition came in, all right, on November 30; but it wasn’t accompanied by the required filing fee, so it wasn’t officially marked as filed until December 7. Worse, it didn’t contain assignments of error or even specify what relief Chabolla wanted.
Those defects led DSS to move to dismiss, citing Rule 2A:4. Subsection (a) of that rule requires the filing of the petition within the 30-day period. Under well-established caselaw, that deadline is mandatory. Subsection (b) is where you’ll find the requirements for assignments of error and a statement of the relief requested. DSS argued that those requirements were mandatory, too, so the whole petition should be thrown out because Chabolla didn’t file a proper petition within the mandatory time limit. The trial court refused to do that, and granted Chabolla’s request to file an amended petition that complied with the rule.
Today, in a first-impression decision, the court rules that subsection (b), unlike its cousin, isn’t mandatory, so the trial court properly granted leave to amend. The court agrees with DSS that the provisions of Title 8.01 don’t apply to admin-law appeals. But Rule 1:8, which contains the familiar leave-to-amend-shall-be-liberally-granted language, applies to all types of proceedings, including administrative law. That means that the trial court was free to allow Chabolla to amend.
My candid advice here is this: Don’t try this at home. If you figure you can use the Chabolla decision to file a sloppy appellate brief, and then get leave to amend it up to par later, your stay in the appellate court will be solitary, poor, nasty, brutish, and short. (I wish I could take credit for that deft turn of phrase; but I’m purloining a line from Thomas Hobbes. He’s dead now, so he probably won’t notice.)
Alas for Chabolla; he wins the procedural issue but loses the war on the merits, as the CAV affirms the trial court’s decision to affirm the Level-Two finding. That means that Chabolla doesn’t get to enjoy the fruits of his victory, but we in the legal profession get an important refinement of a significant jurisdictional issue.