ANALYSIS OF JANUARY 6, 2022 SUPREME COURT OPINIONS
(Posted January 6, 2022) On a day when most of America focuses on last year’s assault on our constitutional democratic republic, the Supreme Court of Virginia gives courtwatchers like us a welcome distraction in the form of two published opinions.
Taxation
I encountered an old friend in Emmanuel Worship Center v. Petersburg. The dispute here is local taxation of church property, and the old friend is Code §58.1-3984. This is the statute that allows a taxpayer to challenge a real-estate tax assessment.
The city sued the church in 2018 to collect unpaid real-estate taxes. The suit sought a decree to sell the property to pay off the taxes. At a trial the next year, the church challenged the assessment, even though it was more than three years old (the maximum extent of relief under the statute).
The circuit court rejected this defense as untimely and found the church liable for about $30,000 in back taxes plus a host of penalties and interest. The court decreed the sale of the property. To avoid that sale, the church paid the amount due – now well into six figures – under protest and filed a bill of review.
A bill of review, you ask? Why not an ordinary appeal? Because the church missed the deadline to note and perfect an ordinary appeal. For generations, the bill-of-review process has afforded certain litigants this safety valve for missed appellate deadlines. Such persons may file the bill within six months of the previous judgment.
The city replied to the bill by moving to dismiss it, contending that such bills relate only to equitable proceedings, and by the terms of my old statute pal, “all proceedings pursuant to this section shall be conducted as an action at law.” The circuit court found this persuasive and refused the bill. The church got a writ to review that decision, which brings us to today’s opinion.
The justices resolve two issues today. First, they hold that the original suit filed by the City was in equity. Code §58.1-3965 authorizes tax sales, and those are definitely equitable proceedings. That means that the bill of review is available to challenge the underlying judgment.
The Supreme Court next goes on to evaluate the circuit court’s supplemental finding that the prior judgment was legally correct. The lower court had held that the three-year limitation barred the church’s defense. Today, the SCV unanimously holds that the church’s defense – the constitutional exemption from taxation on church property – is self-executing, and the church wasn’t obligated to file suit within three years. The court remands the case to the circuit court for an initial determination of whether the subject property is “used for religious worship.” If it is, then it’s exempt.
Attorney discipline
As you can probably tell, I usually enjoy posting these analyses. There are exceptions – particularly savage crimes or cases involving cruelty to children or animals – but for the most part, I like the challenge of digesting each new decision when it comes in.
Attorney-discipline cases are one of the exceptions. These cases impugn the standing of the bar as a whole; attorney misconduct impairs our profession’s image in the eyes of the public. Today’s decision in Robol v. Virginia State Bar is such a case.
The factual backdrop is complex; the facts occupy about 60% of today’s opinion, which comes in at just over 20 pages. The short-form version of the facts is that the lawyer made a number of statements in an Ohio federal court that the Ohio Bar found to violate that state’s Rules of Professional Conduct. Specifically, he was found to have made false statements to the federal court and to have actively concealed evidence in pending litigation. The lawyer was allowed under Ohio law to retire or resign from the Ohio Bar with disciplinary charges pending.
While this was happening, the lawyer – who was originally licensed here in Virginia – had converted his VSB status to associate. That means that you can’t practice law here; you pay reduced Bar dues; and you can reinstate your active membership fairly easily.
The Virginia State Bar got wind of the Ohio action and initiated disciplinary proceedings here against the lawyer’s Virginia license. The lawyer responded that the Bar couldn’t discipline him because, as an associate member, he wasn’t subject to VSB regulation. The justices swat this argument aside, noting that by rule, “every person licensed by the Virginia Board of Bar Examiners or admitted by the Supreme Court of Virginia is a member of the Virginia State Bar.” This lawyer undeniably met this definition, so he’s subject to Bar discipline here.
The court also notes today that if the lawyer were correct, then any lawyer could convert to associate status, engage in any sort of unethical conduct elsewhere, and then reinstate his active membership, free of any Virginia consequences for his actions. The court calls that an absurdity.
The court next addresses the sufficiency of the evidence. As noted above, the facts are complex, so I won’t review them here to illustrate the court’s conclusion; a review of them will convince you that they warrant disciplinary action.
The lawyer has one final argument: He contended that the VSB couldn’t impose a sanction beyond what the Ohio Bar had found appropriate. The conduct was, after all, in Ohio. The VSB Disciplinary Board had imposed a four-year license suspension; the lawyer contended that he should have been allowed to resign or retire, just as in Ohio.
The justices find this argument to be procedurally defaulted. In arguing to the board, the lawyer had urged a suspension of no more than six months, but never urged the same-as-Ohio argument. Because Rule 5:25, the contemporaneous-objection rule, applies in attorney-discipline proceedings, too, the court refuses to consider this one.
Justice Mims writes both of today’s opinions. In the VSB appeal, he notes that the Ohio court turned aside the lawyer’s assertion that in making the false statements, he was relying in good faith on representations from his client. In doing so, that court had cited Lewis Carroll’s Through the Looking Glass, and What Alice Found There: “not even believing in ‘six impossible things before breakfast’” could the lawyer have reasonably believed what he was saying.
This passage illustrates that a lawyer can’t turn a blind eye to his client’s lies, and expect to retain a clean Bar record. This is one of the reasons why the New York Appellate Division suspended the license of former presidential legal adviser Rudy Giuliani last year, with a broad hint that the suspension would soon evolve into a permanent revocation. Today is an appropriate anniversary to reflect on the danger of following a road that’s paved with lies.
