DEVELOPMENTS IN THE WEEK OF MARCH 28-APRIL 1
I’ve gotten behind in my postings lately for a couple of reasons, including this past weekend’s VTLA Annual Convention in Hot Springs. Accordingly, here’s a summary of the most important happenings over the past week in the three appellate courts that sit in the Commonwealth.
Supreme Court of Virginia
The Court announced the award of one appeal in an estate case, Hudson v. Cox, and disposed of two cases argued during the March session. One of those appeals was dismissed for the failure of the appellant to ensure that dispositive material was included in the record on appeal. (One may imagine the difficulty with which the appellant’s counsel began to compose a letter to his client, explaining this ruling.)
On Friday, a new appellate Rule of Court took effect. The new rule is 1:1A, and applies to cases where a party has received an award of attorney’s fees at trial “pursuant to a contract, statute, or other applicable law.” In those cases, when the losing party unsuccessfully petitions the Supreme Court for a writ, the prevailing party may then request an award of attorney’s fees incurred in resisting the petition in the appellate court. A couple of practice pointers: (1) If the appellant gets a writ, but the decision below is subsequently affirmed, then the rule does not apply. The provisions are only triggered by the denial of a petition for appeal or of a petition for rehearing under Rule 5:20. (2) The new rule only applies to the Supreme Court, not to the Court of Appeals. The reason for this is simple – most cases in the Court of Appeals are appeals of right, so there is no petition stage. The only cases where a petition is required are criminal appeals. The rule will not punish criminal defendants for trying to get their convictions overturned.
Court of Appeals of Virginia
The Court announced several rulings on Tuesday, March 29, including six companion cases involving terminations of parental rights, each styled Strong v. DSS. (The link provided here will take you to the rulings in one of the mother’s cases; as the rulings are substantially similar, I have elected not to provide links for all six opinions. To access the others, you can go directly to the Court’s listing of published opinions here.)
In another DSS case, the Court reversed a trial court’s finding that an appellant had failed to list the state DSS as a party to the appeal, in Christian v. DSS. In what the Court acknowledged were “the unique circumstances of this case,” it found that the appeal under the Administrative Process Act sufficently apprised the state DSS (as opposed to the county department) that it was involved in the appeal. The Court signaled here a subtext of frustration with what appears to be a hypertechnical objection by the Department. As the court observed, the petition specifically identified the state hearing officer’s decision as the one being appealed; requested service on the Commissioner of the state DSS; used the same style of the case as the state agency’s administrative appeal had used; and certified mailing to the state Commissioner. Under these circumstances, the Court reasoned, it should have been abundantly clear to the Department that it was being made a party to the appeal.
The Court was careful to state that strict adherence to pleading rules should be the goal in all appeals. And appellate litigants who take this ruling as a signal that sloppy pleading will be tolerated, will be in for a rude shock in their own cases. But the Court took a pragmatic approach in this case, and held that common sense would prevail over technicality.
The Court issued an important injunction decision on Tuesday, in D’Ambrosio v. D’Ambrosio. There, a husband appealed three aspects of a chancellor’s ruling below in a child abuse case. First, the lower court had given medical decisionmaking power to the wife. This aspect of the case is interesting because neither spouse had requested such relief below. The appellate court approved this decision, noting that a court of equity has the inherent power to fashion appropriate remedies even where neither party specifically requests a given action. The Court found the chancellor’s decision to be within his discretion to take such actions as were in the best interests of the child.
Second, the Court addressed an injunction ordered by the chancellor, prohibiting the husband from making defamatory comments to “third parties.” The husband contended that the injunction was unjustified because the wife would have an adequate remedy at law for any such statements (a suit for damages for defamation); and that the order was unconstitutionally vague and a prior restraint of speech. At the outset, the husband’s position here was problematic; he had neither argued any of these points in the trial court, nor objected properly to the entry of the injunction decree.
The husband accordingly asked the Court of Appeals to apply the “ends of justice” exception to Rule 5A:18 (the Court of Appeals’ corollary to Rule 5:25, the contemporaneous objection rule) to consider the objection anyway. No doubt to the great surprise of the mother, the appellate court agreed to consider the issue in the first instance, and agreed with the husband that the injunction was unwarranted. It dissolved the injunction and reversed the trial court’s decree in this regard. (Note: Any case, of any variety, in which one of the Virginia appellate courts applies the ends of justice exception is, by virtue of that fact, newsworthy. This doctrine is extremely rarely used, and is often the last-ditch effort of a desperate appellant.)
Finally, the Court considered the husband’s objection to the trial court’s award of attorneys’ fees to the wife at trial. The appellate court generally approved of this determination, noting that the award had been relatively limited (only $6,000 instead of the $32,000 requested), but remanded the case for adjustment of the fee award in view of its reversal of the injunction. The court also denied the wife’s request for additional fees for appellate work (a subject of keen interest to appellate lawyers).
There are several issues of interest in this case, but the one that will probably receive the most attention, including citations in non-domestic-relations cases, is the Court’s analysis of the propriety of the injunction award. As with any other form of prior restraint, the Court carefully scrutinized both the grounds for the relief requested and the nature of the remedy. The trial practitioner will find this discussion a very useful primer on when and how injunctive relief may be ordered.
Finally, the Court affirmed a perjury conviction in Fritter v. Commonwealth. There, a suspect in a robbery wrote an inculpatory note to Fritter, a friend of his. Despite his sensible advice in the body of the note to “[b]urn this letter when you finish reading it,” Fritter instead gave it to an investigating detective.
But tethered by the priceless bonds of friendship, Fritter thought better of inculpating his friend, now a full-fledged defendant, when the time came for the latter’s trial. When summoned to testify for the Commonwealth in order to authenticate the letter, Fritter denied ever having seen the note before. This dealt the Commonwealth only a temporary setback; it later secured an alternative means of authenticating and introducing the letter into evidence.
This change of heart bought Fritter an indictment for perjury. The trial court convicted him, and he appealed on two grounds, contending that the testimony was not material to the original prosecution, and that the Commonwealth did not meet the common law two-witness rule (requiring corroboration of a perjury charge). The appellate court predictably rejected the first claim, since authentication of the letter was clearly required in order to enable the Commonwealth to introduce it into evidence. The Court of Appeals also held that the detective’s testimony was bolstered by “other corroborating evidence of falsity,” namely, the letter itself. That, together with the original defendant’s testimony in the first trial (after the letter was admitted, that defendant took the stand and admitted sending it to Fritter), was sufficent to justify the conviction.
Traditionally, the Fourth Circuit issues very, very few published opinions. The overwhelming majority of its holdings are unpublished, with consequences for the use of those decisions as precedent. This week may have been a new record; the Court issued only three new published opinions, out of the eighty cases decided.
In Perafan-Saldarriaga v. Gonzales, the Court affirmed a decision of the Board of Immigration Appeals that ordered the removal (essentially, deportation) of a Columbian national who had claimed asylum here in the United States. Contending that he was caught up in the drug wars that pervade that nation, Perafan asked the Court to permit him to stay here in safety.
Unlike many persons subject to removal orders, Perafan had not been accused of any criminal conduct while here; he simply overstayed his work visa. When the government summoned him for a removal hearing, he claimed asylum, and told what was apparently a very believable story of drugs, power struggles, and murder. He alleged that he feared for his life if he were forced to return to his native country.
The Fourth Circuit was clearly moved by the story and by the danger confronting this man, but found itself powerless to do anything for him, as it was required to afford great deference to the findings of the Board (which comprises a portion of another branch of government). In the words of the opinion,
We appreciate Perafan’s desire to remain outside Colombia and away from the foment of the drug trade. But statutes sometimes require saying no, even to hard luck cases. We are not empowered to bestow the privilege of residing in the United States in violation of the standards that Congress has announced . . .. Being involved in the drug wars of a foreign country with their webs and patterns of violence and recrimination is not the same thing as being persecuted on account of political opinions.
The lesson here is that asylum requires more than merely a fear of violence, of even death, upon return. It necessarily requires a political component, and Perafan didn’t have that.
The Court also decided a special education case, J.S. v. School Board, in which it affirmed a district court’s grant of summary judgment for the School Board on an IDEA claim. The Court iterated its 1998 decision in Sellers v. School Board, in which it held that plaintiffs could not bring a §1983 claim to enforce an IDEA violation. But it reversed a similar grant of summary judgment on a claim arising under the Rehabilitation Act holding that the district court had improperly “borrowed” state law notice provisions relating to similar claims under the Rights of Virginians With Disabilities Act, in violation of the Supremacy Clause.
Finally, in a decision announced Friday, April 1, the Court held that a bankruptcy court and a district court had properly enjoined a debtor’s participation in an English arbitration proceeding, finding that such participation would “seriously interfer[e] with the debtor’s efforts to reorganize.” In In re White Mountain Mining Company, LLC, the appellate court also refused to enforce an arbitration provision in a core adversary proceeding related to the bankruptcy case. The most important aspect of this ruling for the practitioner is its finding that the power of the bankruptcy court can and often should override a mandatory arbitration provision in contracts. In this day, when arbitration provisions are becoming ubiquitous, leading some commentators (notably Trial Lawyers for Public Justice) to fear the complete privatization of the process of enforcement of rights, any decision limiting the application of such provisions is noteworthy.