(Posted June 27, 2019) Today is a busy appellate day. Across the Potomac, SCOTUS announces its final decisions of October Term 2018. We get a 5-4 ruling in the partisan gerrymandering cases out of Maryland and North Carolina (the bare majority rules that the redistricting litigation is a nonjusticiable political question, much to my chagrin) and a fractured ruling in the census-question appeal.

But we’re here to focus on developments by the rive gauche of the James. (If you want coverage of those SCOTUS rulings in depth, I heartily recommend SCOTUSblog. I may post a future essay discussing some of the more significant late-term SCOTUS rulings.) Today the Supreme Court of Virginia hands down two published opinions and one published order. Let’s dig in.

Criminal law

Post-trial proceedings in criminal cases carry some, but not all, of the procedural protections at trial. One difference is that some hearsay may be admissible against the accused. That’s the origin of Mooney v. Commonwealth, involving probation-revocation proceedings.

Having twice been convicted of grand larceny and given mostly suspended sentences, Mooney backslid and committed three violent felonies. A circuit court issued a show-cause order to revoke probation on the larceny convictions.

At that hearing, Mooney acknowledged the new convictions, but objected when the prosecutor read to the judge a newspaper account of the victim’s plight in the violent-felony case. The judge ruled that “this is a show cause hearing and hearsay is allowed.” The court then gave Mooney three years to serve. The Court of Appeals affirmed, ruling that the news account wasn’t testimonial hearsay.

Today, the justices affirm in a split decision. Justice McCullough, writing for the chief justice and Justices McClanahan and Kelsey, assumes without deciding that the evidence was improper, and holds that any such error was harmless as a matter of law. The trial judge knew of the violent felonies from the major violation report, and the court imposed far less prison time than it could have, and even less than what the prosecutor urged.

Justice Goodwyn pens a dissent on behalf of Justices Mims and Powell. He contends that while hearsay may be admitted at a hearing like this, that’s not the case for testimonial hearsay, and he feels that the news account was patently testimonial. If a court is going to admit hearsay, precedent commands it to set out the reasons why good cause exists to permit it. The trial judge didn’t do that here; the court merely asserted a blanket rule of admissibility.

As for the harmless-error angle, the dissent notes that all error is presumptively prejudicial. Justice Goodwyn opines that this record doesn’t show the extent to which the newspaper story affected the judge’s decision.

One last note: I always enjoy a good turn a phrase in judicial opinions, and there are some of those in today’s opinion. My favorite is from Justice McCullough’s pen, when he describes Mooney’s conduct after his latest probation release. Trial courts found that Mooney had violated probation six times in seven years, “which suggests a less than optimal adjustment to probation.”

Given the greater freedom that I have as an unofficial expositor, I might have described this as Mooney’s having accumulated a wealth of frequent-flyer miles in the criminal-justice system. But I like his way of phrasing the same thing.


There’s a whopper of a published order today in Sroufe v. Waldron, a libel judgment out of Patrick County. It’s not a whopper in length – at just six pages, it’s a quick read – but in terms of the message sent.

This is a dispute between an elementary-school principal and the superintendent of schools. The superintendent decided to remove the principal from her job and eventually reassign her to a teaching position. He told her that in person and followed it up with an explanatory letter. The letter recited the superintendent’s conclusion that the principal didn’t properly understand and apply the Virginia Alternative Assessment Program for students with disabilities.

Somehow, the local news media got a copy of the letter; today’s order doesn’t say how. It also doesn’t expressly say this, but the news must have published the letter. The teacher sued.

At a jury trial, the superintendent claimed that the statement wasn’t actionable for three reasons. It was either opinion, or true, or “lacked defamatory sting.” The superintendent raised these three arguments in a motion to strike after the teacher’s evidence and after all of the evidence. The judge sympathized, feeling that in light of the teacher’s on testimony that “reasonable people can disagree” on her adherence to the VAAP, this was indeed a matter of opinion.

But the court decided to let the full case unfold, to see what the jury would do. The jury decided to award the teacher half a million dollars, American money. The superintendent moved the court to set the verdict aside, raising the same three arguments.

As the saying goes, that’s where the trouble started. In a letter opinion, the judge agreed fully with the superintendent: “It is opinion; if it is not opinion, it is true; and if it is factual and false, it is too mild to be defamatory.” That bodes well for the superintendent. But somehow, this train jumped the tracks. The judge decided to enter judgment on the verdict, despite his affirmative knowledge that the superintendent was entitled to judgment:

Accordingly, and in light of the foregoing, and with the full expectation that I will be reversed by a unanimous Supreme Court of Virginia, I hereby affirm the verdict.

To no one’s surprise, a unanimous Supreme Court of Virginia reverses this remarkable order and enters final judgment for the superintendent. What may surprise careful courtwatchers is the tone of the order entered today. It’s sharply critical of the judge’s decision to abandon his role to ensure that his orders comport with the law to the best of his ability. Rather than quote it at length, I’ll commend it to you – as I noted above, it’s short and won’t take you long to read – to get a sense of how deeply upset the justices are with this court.

We don’t know who drafted today’s order; it is unsigned, as are virtually all dispositions by order. (On occasion, there’s a dissent from an order, and those carry the name of the author.)

Sexually violent predators

The newest entry in Virginia’s SVP caselaw arrives today. The court combines two appeals, each raising the same issue, into a single opinion styled Harvey v. Commonwealth. The issue is whether the Commonwealth must provide a psychological expert to the respondent in a proceeding to determine if a released SVP has violated the conditions of his release.

Here, I’ll cut straight to the ruling. Four justices rule today that the answer to the question above is no. If this were a criminal prosecution, SCOTUS precedent requires a state to furnish such an expert where, for example, the defendant’s sanity is in issue.

Today’s majority rules that while there are parallels, this isn’t a criminal prosecution, and a respondent in an SVP proceeding has a diminished liberty interest. Among other reasons, he’s already been adjudicated a sexually violent predator, and this detention is temporary – up to six months, until another evaluation takes place.

Three members of the court – interestingly, the same three justices who dissent in today’s Mooney decision – dissent here. Justice Mims writes an opinion that describes a psychiatric expert in this context as essential for the mounting of an effective defense. In the dissent’s view, “the appointment of a mental health expert is essentially an extension of the right to counsel,” and no one disputes the Commonwealth’s obligation to provide counsel.

This conclusion will resonate with many lawyers who know plenty about legal procedures and rules of evidence but not much about psychiatry. I’ve never handled SVP proceedings and don’t plan to start now, but I would have no clue how to evaluate psychiatric issues; nor would I know how to cross-examine a psychiatric expert effectively.

Because these appellants’ claims found support in the Due Process Clause, it’s foreseeable that we could read about a future appeal styled Harvey v. Virginia, back across the Potomac. This is one of those cases – unlike appeals involving purely state law – where a federal constitutional claim enables SCOTUS to review a decision from Virginia’s highest court.