(Posted March 1, 2018) The justices continue to clear off their desks today, handing down five published opinions and two unpublished orders.


Criminal law

Virginia’s statutes have long prohibited the public display of a noose with the intent to intimidate. Today’s ruling in Turner v. Commonwealth explores what a “public place” is in the context of that statute.

Turner knew not to put up his noose, complete with a mannequin of a black hanging victim, on public land. He decided that he could lawfully exercise this particular free-speech right by hanging the noose on his own property, just a few paces away from a public road, in plain sight for anyone passing by.

A trial judge, conducting a bench trial, viewed the phrase “public place” more expansively than Turner did, and convicted him. The Court of Appeals agreed and affirmed. Today the justices make it unanimous, affirming the conviction without a dissenting vote.

In his briefs, Turner continually referred to the requirement that the display be on “public property,” and he insisted that his land was private. But as Justice McClanahan’s opinion for the court points out, the statute doesn’t say “public property.” In another context – a prosecution for disorderly conduct – the court interpreted the phrase “public place” to include things that are done on private property but that are so close to a highway that they’re in a public place.

That’s enough to justify the conviction, but Justice McClanahan goes on to mention a separate and particularly important factor: the purpose of the statute. That purpose is to deter people from making threats that will intimidate others and place them in fear for their safety. Viewed in that light, this interpretation of the phrase makes perfect sense; Turner’s racially diverse neighbors will feel just as threatened by a noose and “victim” hanging just off the road as they would if the display were on public property.

In 2013, the General Assembly amended the actual-innocence statute relating to DNA evidence. Previously, a petitioner had to show that with newly acquired biological evidence, no rational finder of fact could have found proof of guilt beyond a reasonable doubt. The amendment changed the word could to would. Today’s opinion in In re Watford gives the justices the first opportunity to explore the effect of the amendment.

Watford was convicted on a plea of guilty to a charge of rape in 1977. The 12-year-old victim saw a doctor who filled out a report listing three names of possible perpetrators: “Skip, Anthony, Vale Waffer.” The Watford family includes three brothers named Anthony, Evelio, and Roy; the last of these is our petitioner, and his nickname was Skip.

Watford, who was 18 at the time of the assault, pleaded guilty on advice of his grandfather and received an extraordinarily lenient sentence: ten years in prison with all of that suspended.

Nearly 40 years later, the Department of Forensic Science was able to conduct DNA testing on the evidence in the case. That testing indicated that none of the biological evidence gathered at the scene and from the victim matched Watford. Based on this finding, he petitioned the Supreme Court for a writ of actual innocence to clear his name.

The justices found the record sketchy, so as provided by statute, they commissioned the local circuit court to conduct an evidentiary hearing on the case and report its findings back to Richmond. At that hearing, the victim, now over the age of 50, stated that she had not seen Watford at the scene, though she had seen one of his brothers. Today’s opinion adds,

When she was asked if she had named Watford as one of her attackers, she responded “I can’t remember I did.” When the circuit court pressed her on the matter, she stated, “I don’t remember, no. I don’t remember naming him.” She then stated that she remembered naming Evelio. Additionally, when asked if she knew Watford’s nickname at the time of the offense, she said she did not.

The circuit court also heard testimony from two other witnesses, one of whom lived next door to the scene of the attack. They both testified that they never saw Watford at the scene.

The Supreme Court considers all of this under the newer and more lenient standard of the revised statute, and concludes that on this record, no correctly instructed jury would have found guilt. The fact of the guilty plea is usually sufficient to establish guilt, and Justice Powell, in her opinion for the court, acknowledges as much. But a guilty plea doesn’t foreclose an actual-innocence petition under the statute, so the court evaluates all of the evidence and finds that it falls short of what’s needed to convict. Thus, 40 years after the guilty plea, the Supreme Court vacates Watford’s conviction.

For our final venture into criminal-law matters, consider the fate of those unfortunates who are remembered in history for their worst moment. For all his military brilliance, ranking him among the handful of greatest military geniuses in history, and despite winning scores of major battles, Napoleon Bonaparte is best-known today mostly for his defeat at Waterloo. For a more recent and more mundane example, recall how Steve Bartman – a nice guy – became Satan incarnate to Cubs fans merely for trying to catch a foul ball at a baseball game. (All was forgiven when the Northsiders won the Series 13 years later. They even gave Bartman a ring.)

The General Assembly has recognized that sometimes a person just needs a second chance. That gave rise to the expungement statute, allowing an arrestee to have his or her arrest record wiped away in certain circumstances. Our heroine in A.R.A. v. Commonwealth had too much to drink one night a few years ago; she ingested enough to necessitate a visit from the gendarmes. She didn’t like that, and struggled with the investigating officer. At one point, she grabbed that officer in a region that we don’t customarily mention in detail here at VANA.

A.R.A. was charged with two misdemeanors and one felony – assault and battery of a law-enforcement officer. By the time the case matured, she was apparently contrite enough that the local prosecutor agreed to let the misdemeanors go and drop the felony down to disorderly conduct. I presume that the officer consented to this reduction; in my experience, a prosecutor won’t do this over the objection of a cop who’s the victims of a crime.

The judge agreed to the charge, accepted her plea, and imposed a negotiated disposition of a fine and a suspended jail sentence. By all accounts, A.R.A. turned her life around; she finished college with a 3.8 average and got a good job.

But still, the arrest record troubled her. She had pondered going to law school, but feared that the arrest would work against her in the application process. She also decided not to seek a few positions that involved working with children, since she figured that the arrest would scotch that plan immediately. In order to free her from the lingering effects of her worst moment, she petitioned the local circuit court to expunge her arrest record.

The trial judge had no trouble with the misdemeanor arrests; those were gone with the stroke of a pen. But he refused to erase the felony arrest, ruling that “the continued existence and possible dissemination of information relating to the arrest of Petitioner on this charge does not cause and may not cause circumstances which constitute a manifest injustice to the Petitioner.” This tracks the language of the statute; the court simply found that the petitioner hadn’t made out a case of manifest injustice.

On appeal, a divided Supreme Court reverses. Justice McCullough, joined by four justices, finds that this is a proper case for an expungement petition, because the felony was “otherwise dismissed.” It may have been a different situation had the prosecution ended with a Speedy Trial Act violation; but here, the prosecution simply declined to prosecute her for the felony. That means she occupies “the status of innocent.”

This last part plays a big role in the court’s analysis of the merits of the case. The primary issue here is whether the trial court can look at the circumstances that got the petitioner arrested in the first place, presumably to see how egregious her conduct was. The trial judge had leaned heavily on those circumstances in denying the petition, but today’s majority rules that a court may not do so. A petition like this is “forward-looking,” in that by statute a judge has to consider not the offense but the likely effect of the arrest record on the petitioner.

That statute is phrased very favorably for the petitioner:

If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition.

Note that it says that if the arrest record “causes or may cause” a manifest injustice. That causes us to exit the realm of certainty and enter the realm of possibility. The majority today decides that A.R.A. had made out a plausible claim that she may be harmed by the record, so that means that the trial court “shall enter an order requiring the expungement.”

This is almost good enough for the chief justice. He files a short opinion concurring in the judgment, though he would permit trial courts to look backward in addition to forward. In his view, even that backward look compels the conclusion that the petitioner is entitled to relief.

It is not, however, good enough for Justice Kelsey, who dissents along with Justice Goodwyn. The dissent finds it entirely appropriate for a trial court to look backward, and in this context, that set of circumstances could lead a judge to exercise the discretion not to grant the petition. Abuse of discretion is supposed to be a lenient standard of appellate review, and the dissent thinks that this judge wasn’t obviously wrong to say no.


Elected officials

In 2015, the Clerk of the Montgomery County Circuit Court stood for reelection. She won despite the fact that roughly half of her staff didn’t support her campaign. (Speaking as a political outsider, I’ll add that that fact probably should have been a big red flag for the voters; but they reelected her anyway.) When the Clerk fired everyone who had not supported her, fifty citizens of the county prepared and circulated a petition to remove her for neglect of, misuse of, or incompetence in the performance of her duties. This is the backdrop of Commonwealth v. Williams.

Removal procedures are tough; you have to gather signatures from voters representing 10% of the number of votes cast in the previous election. In the case of this election, that meant over 1,800 signatures. But the citizens spearheading the effort persevered, and they amassed more than the required number. That automatically triggered a show-cause order directed to the Clerk.

In response, the Clerk moved to quash the rule, claiming that the 1,800 endorsers of the petition hadn’t signed under oath. The Commonwealth’s Attorney, who by statute handled the proceedings after the show-cause order issues, answered that only the organizers needed to sign under oath, and all 50 of them had done so.

There are two statutes primarily in play here. Here’s the first one, setting forth the number of signatures required:

The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.

The next statute contains the oath requirement:

A petition for the removal of an officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury. . . .

The italics in both passages are inserted in today’s majority opinion. So, who has to sign under oath? Justice Goodwyn, writing for four other justices, believes that all 1,800 signatories must do so. That makes the petition ineffective to trigger a valid show-cause order, so the Supreme Court affirms the trial court’s order quashing the show-cause.

Justice McCullough dissents, and Justice Powell joins him. As befits a former appellate lawyer, his prose sparkles. Here’s his opening salvo:

Virginia has long been blessed with many talented and conscientious officials who ably labor for the public good. Human fallenness being what it is, however, accountability mechanisms are necessary to protect Virginians in the rare instances when their public officials go astray. Because I disagree with the majority’s interpretation of the applicable statutes, and because I fear that the majority’s interpretation will have baleful consequences on the accountability of our public officials, I respectfully dissent.

Who said appellate opinions have to be dry?

Justice McCullough notes that in 1989, the Attorney General had issued an opinion that went the other way, expressing the view that only the organizers – the people who craft the petition – have to sign under oath. That opinion stood the test of time for almost 30 years, but today the majority simply disagrees with it, holding that the language of the two statutes is clear.

My sentiment here lies with the dissent. I agree that asking 1,800 citizens to sign a petition under penalty of perjury is a very different matter than asking them to sign without that threat. And while the prosecution of several organizers for filing materially false statements in a petition is understandable, can you picture the prosecution of 1,800 people for the sin of having agreed that their elected official needs to go? I cannot envision that that’s what the legislature had in mind.

It is, of course, foreseeable that the 2019 General Assembly will see a bill to address and reverse this decision, specifying that only the organizers of a petition drive have to sign under oath. Otherwise, as a practical matter the Supreme Court has made it all but impossible for a citizen petition drive to succeed. (In fairness, today’s majority will insist that the legislature did it that way, intentionally or not.)


GDC appeals

When I picked up The Robert and Bertha Robinson Family, LLC v. Allen, I figured that the dominant issue was sanctions, and I intended to caption this section accordingly. The amount in controversy bears this out; the two appellate issues are a $2,600 landlord-tenant judgment and a $10,000 sanction award. But after reading it, I believe that the primary legacy of this opinion will be the resolution of a procedural issue that has perplexed bench and bar for some time.

Landlord sued tenants in general district court for unpaid rent and for damage to the leased property. Tenants counterclaimed, seeking a return of their security deposit. After a trial, a GDC judge ruled against both parties on their claims, awarding nothing to anybody.

The landlord decided to appeal to circuit court. The tenants didn’t appeal the denial of their counterclaim. But in the circuit, court, the tenants started acting as though they were still pressing the counterclaim. The landlord decided to be proactive, moving to dismiss the counterclaim, since the tenants hadn’t appealed. The tenants responded that the GDC had decided the whole case, and landlord’s notice of appeal was sufficient to bring the whole case up, including the counterclaim.

Before the court could adjudicate this motion, the landlord – a family-held LLC – decided to pull the plug on its appeal, moving to withdraw it under Code §16.1-106.1(A). The manager and his wife decided that, in light of some health problems, life was too short to keep fighting the tenants.

But the tenants weren’t through fighting. They filed a motion for sanctions. The circuit court granted the motion to withdraw, but “summarily awarded the tenants $2,600 on their counterclaim without hearing evidence on the matter.” The trial judge also awarded the tenants $10K in sanctions.

I will confess that when I read this procedural history, my reaction was, “Oh, no, you didn’t!” Judgment on a counterclaim with no evidence? Sanctioning a party merely for having appealed from GDC?

As it turns out, I am not alone; today the Supreme Court unanimously reverses both awards and enters final judgment. The sanction award falls easily; the trial judge based his ruling on the erroneous premise that an appealing party must have all of his trial evidence in hand before filing the appeal. That’s nonsense, of course; for one easy example, parties marshal evidence during the discovery process all the time. There is no requirement in the law that a party has to be ready to call her first witness when she notes an appeal from GDC to circuit.

The second issue implicates the very pregnant question whether an appealing party brings the entire case up to circuit with him when he appeals. Citing a “leading scholar of Virginia procedural law, Judge J. R. Zepkin,” the court today notes that this issue has never been firmly decided by the appellate court, so it undertakes to provide that guidance. (I agree that the issue needed appellate attention. I also agree that Judge Zepkin is about as expert as they come on Virginia procedure.)

Justice Kelsey authors today’s unanimous opinion for the court, and since this question implicates the meaning of the right of appeal, we’re in for the treat of a trip through legal history. He begins with an all-too-brief citation to one of my favorite recent law-review articles, which discusses the ancient origins of appeals. (A disgruntled litigant in ancient Egypt could appeal to an oracle in a temple, though that appeal usually turned on which side provided the better bribe to the priests. If you still weren’t happy, you could appeal on to pharaoh, but that could have unintended consequences.) He then explains the difference between a true appeal and a writ of error.

Candidly, none of this is essential to the resolution of today’s case, but for history nerds like me, it’s fun reading. I’ll let you read the slip opinion yourself to get the full reasoning, but today, for the first time, we have the definitive answer: If you want your dismissed counterclaim heard on appeal to circuit court, you have to file your own notice of appeal. You cannot rely on your adversary to bring the whole case up, and if you don’t appeal, the adverse judgment on your claim will trigger claim preclusion under Rule 1:6.

Because the counterclaim wasn’t properly before the circuit court, the justices reverse that judgment.