ANALYSIS OF JULY 24, 2012 CAV OPINIONS[Posted July 24, 2012] The Court of Appeals of Virginia gives us three published opinions today, each of which is of significant interest in at least one respect.
We see a wonderfully clear explanation of the regulatory framework of the statute providing benefits for birth-related injuries in today’s first decision, Kavanaugh v. Virginia Birth-Related Neurological Injury Compensation Program. When their child was born with a neurological injury, the Kavanaughs filed a petition for benefits. That petition didn’t include any specific bills, reserving that unto a later time. The program accepted the claim, and a deputy commissioner entered a consent order.
Three years later, the parents submitted $16,000 in accumulated bills for payment. The program paid less than $3,500 and refused the rest, claiming that the parents had submitted the bills more than two years after they were incurred, thus violating program regulations requiring prompt submission of bills for payment. The Workers’ Comp Commission (which has adjudicatory responsibility over claims) agreed with the program.
On appeal, the CAV notes today that the program is given very limited (and perhaps only implicit) authority to promulgate regulations. In contrast, the statute setting up the program specifies only one time-based limitation on claims: they must be filed not later than the child’s tenth birthday. The parents argued that the program was not at liberty to promulgate regulations that would effectively provide for a shorter limitations period.
The CAV agrees with the parents, and reverses the commission’s ruling. It holds that the statutes require the program to pay covered claims and not to pay uncovered expenses. Under the statutes, these expenses were covered, so the program was not free to refuse them by resorting to internal regulations.
This ruling might come as a surprise to some lawyers who are accustomed to viewing all regulations as having the force of law. But the parents’ counsel pressed what might have appeared to be a quixotic point, losing at each stage before today. The lesson we may learn from her is to look behind regulations to ensure that there’s authority behind them. In addition, this case is a reminder that statutes always trump regulations, where the two conflict.
A few years back, I included in a year-end post a subject called, “Stupid Criminal Tricks.” My winning entry that year was McDowell v. Commonwealth, a shoplifting prosecution in which the stolen goods were never recovered. The defendant argued that there was no way to prove that he had stolen more than $200 worth of stuff, but he had unfortunately chosen to take his five-fingered discount three to four hours after the victimized pharmacy had conducted inventory. It therefore was quite easy to identify exactly what he’d stolen, and to establish its value ($1,179.93).
We have a new entry today, in Washington v. Commonwealth. Mr. and Mrs. Homeowner return to their Mecklenburg County abode one snowy January day and discover a fresh set of tracks in the newly fallen snow. The tracks lead to their car and then to their kitchen, the windows of which have both been smashed in. Not knowing whether a burglar is inside, they call the law.
Sheriff’s deputies arrive and determine that it’s clear inside, but the Homeowners see that some things are missing. The deputies then notice that the footprints in the snow (made by boots with an unusual checkered pattern) lead from the Homeowners’ house to a trailer across the way. The follow the tracks and knock on the door of the trailer. No answer, but the deputies enter, to ensure that the Bad Guy isn’t inside, holding a terrified family at gunpoint in silence.
The trailer is empty, but in the process of ensuring that there’s no one inside, the deputies see some of the stolen stuff from the burglary, and (steel yourself for a surprise) a pair of shoes with the same checkered pattern. Time to go get a warrant. With that in hand, they reentered the trailer and found all of the stolen stuff. A few minutes later, who walks up the driveway but our hero, who asks what’s going on. The following conversation ensues:
DEPUTY: Something has occurred in the area, in the neighborhood.
WASHINGTON: I haven’t done anything. I haven’t broken into anybody’s home.
Really, if you had to make this material up, it would be much harder; that’s what he said. In the ensuing prosecution for, among other things, burglary and grand larceny, Washington moved to suppress the seized evidence, contending that the deputies conducted an unreasonable search of his trailer when they first appeared (pre-warrant, of course).
Fourth Amendment jocks will recognize that this is a classic exigent-circumstances analysis. The CAV today evaluates whether a reasonable officer could have concluded that there might have been a victim, or even the perpetrator, inside the trailer, and finds that such a conclusion was reasonable. The court is careful not to confine its analysis to what any of the deputies actually thought; this is an objective analysis, not a subjective one. The court therefore affirms the convictions.
A few years ago, I remember reading a news account of a guy who fled on foot from pursuing police officers. It was dark, but the suspect had helpfully worn those high-tech sneakers that have lights in the heel, that flash with each footfall. I recall reading that the officers’ primary difficulty in the pursuit was refraining from falling down from laughter. Today’s entry, with the novel concept of leaving a clear getaway trail in newly fallen snow, probably ranks up there with the sneaker guy.
Finally, Boone v. Commonwealth involves a criminal-law provision that I didn’t know existed. Did you know that a capias can become stale? Felony warrants can be executed within seven years after they’re issued; other warrants (presumably this would be for misdemeanors) are subject to being ordered destroyed after three. A Suffolk court issued a capias for Boone in 2007, seeking revocation of his probation for driving as a habitual offender, second offense. The capias listed his current address, but for unknown reasons, no one served it until 2011.
Boone argued that the capias was void because it charged a misdemeanor and hadn’t been served within three years. On appeal, the CAV panel assumes (without deciding) that the warrant was subject to being destroyed after three years. But it affirms anyway, for the simple reason that the warrant had not actually been ordered destroyed.
This statute isn’t a self-executing process. That is, it doesn’t say that four-year-old warrants are void; it authorizes trial courts to order them destroyed after three years. The law also states that once a court orders a capias destroyed, you can’t arrest anyone based on it.
But no one had ever ordered this warrant to be destroyed. Until such an order is entered, the capias remains “alive” and subject to being executed. That’s what happened here, so Boone’s probation revocation stands. He gets one victory today, as the court orders that he be given time-served credit for the time he spent in a detention and diversion center.