(Posted March 30, 2023) Today is one of the blessed days on the Emmert calendar, as fifteen men dressed in blue and spread across the continent will each pull a mask over his face and utter an especially sweet two-word phrase: “Play ball!” Life begins again after a long, cold winter without baseball.

I was absent last week, so let’s dive into two new SCV opinions, one from last Thursday and one from this morning.


Domestic relations

The justices today take up the meaning of provisions in the Uniformed Services Former Spouses Protection Act, relating to distribution of military pension benefits. The case is Yourko v. Yourko, and arose in the Circuit Court of Williamsburg and James City County

The parties entered into the military equivalent of a property settlement agreement that gave the wife 30% of the husband’s military retirement pay. It accordingly contained a provision that guaranteed her $1,200 per month, to be paid from the husband’s financial resources if his retirement pay dipped.

A quick aside about military law: The law allows disabled veterans to voluntarily forgo part of their retirement pay for an equal amount of disability pay. That’s a treasured right, because military disability pay, unlike retirement benefits, is untaxed. The husband chose this route, resulting in a reduction of his retirement pay from $4,000 a month to $844 a month. Thirty percent of that is just over $250 a month for the wife.

The husband accordingly moved the circuit court, long after final divorce, to reopen the case and modify the divorce decree and the settlement agreement. He pointed to a recent SCOTUS ruling that divorce courts can’t order military retirees to reimburse ex-spouses for reductions in benefits like this. He also argued that the settlement agreement was a product of mutual mistake of fact, specifically, the amount of the husband’s retirement benefits.

The circuit court dismissed the motion, holding that the 21-day rule deprived it of jurisdiction. It also found no mutual mistake of fact. But the Court of Appeals reversed late in 2021. It held that that SCOTUS decision established that federal law preempted a state court’s right to order this relief, so the equitable-distribution order was void ab initio. The CAV panel remanded the case for recalculation of the wife’s monthly benefit.

Today a unanimous Supreme Court reverses that finding and enters final judgment for the wife. In doing so, it distinguishes this situation from the facts in the SCOTUS case. The key difference is that the husband voluntarily agreed here to indemnify the wife; a court didn’t order it against his wishes. As today’s unanimous opinion notes, “a growing number of states” (three so far, plus now Virginia) hold that a voluntary agreement to indemnify doesn’t run afoul of the SCOTUS holding.

Justice Powell pens today’s opinion for a unanimous court. In a footnote, she mentions one tidbit that, in my view, decisively tilts the equities in favor of the wife. The husband’s unreduced military retirement benefits were $4,000 a month, but his overall monthly income was over $10,000. The court has little difficulty in concluding that he can easily make up the $950-a-month indemnification from his $6K in other income. Allowing him to collect $10K a month while paying his ex just $250 does, you will admit, seem a little unbalanced.

Justice Russell sits this one out, as the case came through the Court of Appeals while he was a judge there. Because it was a published opinion in that court, he got a chance to review the panel opinion and comment on it before publication. Justice Millette fills in to give the parties here a full set of fresh eyes on the case.


Freedom of Information

Last week, while I was out of the Commonwealth with my back turned, the justices couldn’t resist handing down an opinion, so they gave us Berry v. Fairfax County. This is an open-meeting dispute over a county board’s complete overhaul of its zoning ordinance during the pandemic.

On its face, you might find this to be an easy call. The legislature enacted pandemic-driven measures to enable local governments to carry on business at times like the ones we endured starting three years ago this month. The special legislation empowered local governing bodies to conduct meetings and vote on ordinances by remote means. In 2021, the Fairfax County Board used those procedures to finalize its comprehensive rezoning, a deliberative process that had started in 2016.

Several citizens who opposed the rezoning filed suit, challenging the process as violating FOIA. That act requires open and in-person meetings in the transaction of public business. A circuit-court judge ruled in favor of the county, first denying a request for a temporary injunction to stop the virtual meeting and then holding that, after enaction of the ordinance, the challenge was moot.

The challengers hopped on I-95 South. After granting a writ, The Robes unanimously reversed last week and – surprise! – enter final judgment in favor of the challengers, invalidating the ordinance in the process. In doing so, the court rules that the county board had to meet in person for this action.

But how can that be, you ask? How can the Supreme Court invalidate the comprehensive rezoning where the General Assembly has specifically authorized remote meetings? Hey, that’s why we’re here; let’s dig in.

First, know that the temporary legislative authorization was designed to enable local governments to continue to provide essential governmental services during an emergency. The precise language authorizes remote meetings for “business statutorily required or necessary to continue operations of the public body[.]”

The county board argued that this language empowered it to conduct any form of county business without convening in person, but the justices see it differently. The temporary exemption only covers actions necessary to continue operations of the local government, in addition to the limitation quoted in the previous paragraph. While a rezoning certainly is governmental in nature – indeed, you can’t get much more governmental than that – it isn’t necessary for continuation of government operations. Remember, this wasn’t an emergency act; the county had been contemplating this rezoning for almost five years.

The Supreme Court ultimately rules that “the phrase ‘necessary to continue operations’ … does not encompass all that the Board may lawfully do, and thus, the budget language cannot be construed as a wholesale license to ignore VFOIA’s open meeting requirements in conducting any and all business that the Board might wish to conduct.” This means that for business that doesn’t involve continuation of government services, FOIA still requires open, in-person meetings. That, in turn, means that the board approved the rezoning ordinance in a manner contrary to law.

This doesn’t end the matter; the board can now reconvene, after properly noticing the rezoning ordinance, and reenact it this spring or summer. But the challengers will have an opportunity to register their objections – openly, and in person.


The Supreme Court received oral arguments in both Yourko and Berry during the January micro-session, which featured just four appeals. That leaves us with one undecided case from that docket, two more from last November, and the full slate of eight appeals on the February/March argument docket.

In the next week or so, we’ll get a peek at the April argument docket, and I’m eager to see it. As I’ve noted here, that’s the court session when we’d normally get appeals granted after the October writ panels. But the court granted only two writs from those panels. The briefings in those two weren’t complete until early this month. That’s probably enough time for the court to prepare for a normal argument in mid-April. But I’ve never heard of a two-argument merits docket; I’ve never even conceived of one.

In theory, the court could fast-track the only other writ granted in 2022, a criminal appeal on whether excluded evidence was for alibi or impeachment purposes, to create at least a three-argument session. But the reply brief isn’t in on that one yet – it isn’t due until next week – so it might be hard to get that one ready. We’ll see shortly.