ANALYSIS OF MAY 27, 2021 SUPREME COURT OPINIONS
(Posted May 27, 2021) We get six published rulings today – four opinions and two orders – from the Supreme Court of Virginia.
On average, the SCV issues decisions that turn on standing to sue perhaps once every year or two. Today we get three. Added to the two standing decisions earlier this year, Plofchan v. Plofchan in April and Platt v. Griffith in January – that makes five in the first five months of 2021. That probably isn’t coincidence; it likely reflects the justices’ greater focus on the right of parties to sue.
Our first decision is a published order in Historic Alexandria Foundation v. City of Alexandria. This is the litigation relating to the last home of the late SCOTUS Justice Hugo Black, in the Old Town section of that city. An open-space easement covers the property, preventing most types of development.
The foundation was established to advocate for preservation of historic sites and structures in the city. It appeared at public hearings to oppose planned renovations of the Black homesite. The local board of architectural review and then the city council both approved the plans over the foundation’s objections.
Citing a City Code provision that allows aggrieved persons to appeal adverse decisions, the foundation took its grievance to circuit court. There, a judge ruled that while the foundation had standing to appear before the city council, it didn’t meet the definition of an aggrieved party, so as to allow it to appeal in court. The circuit court dismissed the case for lack of standing.
Today the Supreme Court unanimously agrees. While the foundation may, due to its purpose, be interested in the outcome of the application process, it didn’t suffer a discrete, particularized harm. This is so even though the foundation owns property 1,500 feet away, and has itself given and received comparable preservation easements.
This has to be regarded as a major blow to the foundation, and to similar organizations elsewhere. It retains the right to urge specific courses of preservation in the city, but it now has no teeth; no right to seek court action to block development that it opposes.
The next standing decision is a whopper. In Bonanno v. Quinn, we get a landmark ruling as the court backs away from some memorable language in several past published opinions.
This is a step-parent adoption case. In 2013, a woman with a daughter married a husband who thus became the girl’s stepfather. The next year, a JDR court awarded the woman and her mother – this would be the girl’s grandmother – joint custody of the girl. The grandmother received scheduled visitation rights. Reading between the lines of today’s opinion, it appears that the grandmother wasn’t diligent in exercising those rights.
Four years later, the girl’s mother died. The stepfather filed a petition in circuit court to adopt the girl. The trial judge referred the matter to the local DSS for an investigation.
The task proved difficult when it came to the grandmother. The social worker tried several times to make contact, but the best she achieved was an exchange of voice mails. Being favorably impressed with the girl’s relationship with her stepfather, the worker recommended that the court approve the adoption.
Shortly after this, the grandmother contacted the social worker; they spoke on the phone after the worker’s report but before any action on it. In a supplemental report two days after this call, the worker reported that the grandmother “denied knowledge of [the stepfather’s] petition to adopt the child and denied consent to the adoption.”
This account would prove fateful in the appeal. On April 30, 2019, the circuit court entered a final adoption order as the stepfather had requested. The stepfather waited 21 days before e-mailing a copy of the order to the grandmother. She responded by doing two things, both on May 30: She noted an appeal of the adoption order, and she moved the circuit court to unseal the record and vacate the final order.
How can she do that, you ask? After all, the circuit court loses jurisdiction 21 days after final judgment. It can no longer vacate or modify its order at that point. The grandmother addressed this concern by observing that, by statute, a circuit court retains jurisdiction over an adoption for six months.
Two months later, the grandmother filed another motion, this one asserting that the adoption order was void ab initio because the stepfather hadn’t filed the right procedures.
Law professors and procedure geeks will immediately recognize that this situation is simply pregnant with many legal issues. Does the circuit court really have continuing jurisdiction? Did the grandmother’s noting of an appeal deprive the circuit court of any power to act on her motion to vacate and unseal? Was the adoption order really void ab initio?
Okay; I’ve asked enough questions for now. Here’s what happened with the case: The circuit court issued an order refusing the motion to vacate because the Court of Appeals had exclusive jurisdiction. The Court of Appeals later granted the stepfather’s motion to dismiss the appeal, holding that the grandmother didn’t have standing to appeal. This was because she wasn’t a party in the circuit-court proceeding. The court granted the stepfather’s request for appellate attorney’s fees, and remanded the case so the circuit court could calculate those.
A writ panel of the Supreme Court evidently couldn’t resist all of the goodies in this case, so it awarded the grandmother an appeal. The fundamental ruling today is that while some rights inure to persons, only an aggrieved party may appeal a judgment. Those two words aren’t synonymous (and the SCV expressly rejects a Black’s Law Dictionary definition that says that they are), and so only a person who was actually a party below can take the case up.
As a side note, todays’ opinion observes that an unsuccessful intervenor can appeal the denial of the intervention motion. That person is obviously a party to his own motion. But the appeal of that denial only brings the intervention motion to the appellate court; not the merits of the case.
Back to our tale: The justices agree that the circuit court got it right when it ruled that the filing of the notice of appeal had divested it of power over the case. This litigation preceded the 2019 amendment of Rule 1:1B, which now governs situations like this.
The court then turns to the void ab initio issue. It’s here that a time-tested phrase from many previous opinions dies an ignoble death. In prior holdings, the court has ruled that a void order is a nullity, and may be challenged “directly or collaterally by all persons, anywhere, at any time, or in any manner,” “before any court, or by the court itself.”
Let us begin by noting that this language is categorical and unconditional. It’s an open invitation to collateral attack on an order, without time limitation. The theory is that a nullity can’t be enforced.
The court started to back away from this broad language two years ago, in Watson v. Commonwealth. There, the court held that a challenge to a criminal sentence as void must come from a person with standing to raise it. Thus, a nosy busybody couldn’t comb through courts’ records in search of invalid sentencing orders, and then bring suit to declare them void.
The Watson court watered down the previous absolute rule – in effect, “We may have said any person, but we really meant any person with standing” – but today the justices drive a stake through the phrase’s heart:
We go still further today, declaring that the language in Barnes that orders void even for lack of subject-matter jurisdiction may be challenged “by all persons, anywhere, at any time, or in any manner,” 144 Va. at 705, is a rhetorical flourish that does not accurately state the law, now or at the time Barnes was decided.
The discussion section of this part of the opinion concludes, “we strongly discourage litigants from invoking that language in future proceedings.”
There it is; you have been warned. It won’t do you any good to complain that you only cited the language because that’s what the court had said before. This is an emphatic closing of that door.
The justices finally remand the case for calculation of appellate attorney’s fees. The grandmother had objected to the CAV’s award, arguing that her appeal wasn’t frivolous or interposed for an improper purpose. The riposte is simple: Rule 5A:30 fee awards don’t require a frivolous proceeding. That’s the standard for sanctions under Code §8.01-271.1. The rule, in contrast, expressly provides that the court isn’t limited to considering whether the appeal was frivolous or meritless.
This may be one of the cases where troublesome facts help to drive the decision in directions other than those first intended. Specifically, the grandmother argued that, because the proceeding was sealed, she didn’t know about the adoption until she received the final order, coincidentally 21 days after final judgment. You have to admit that she has a point: Interested persons can’t be held to this tough standard when the entire proceeding is conducted in secret.
But the social worker’s report indicated that the grandmother knew about the case dispositively earlier; the phone call between the two women preceded entry of the order by about three weeks. The grandmother didn’t move to intervene in that time. A helpful hint: Don’t make demonstrably inaccurate claims of fact. That won’t help you in any court.
As I promised, this is a whopper of a case. Its tendrils will reach far beyond the realm of adoption cases. This is an important holding in several regards, and will reward careful study.
The third standing decision is another published order: Machen v. Williams involves a challenge to a will on the grounds of fraud and undue influence. The testator, aged 93 at death, had never married and had no children. What she did have was an investment account worth $1.3 million.
The testator had befriended an attorney who “had helped her in the past.” He held her power of attorney. When he learned of the account in 2018, he urged her to make a will. She agreed.
The lawyer then drew the will to give almost all of the money to himself. He arranged for individual bequests of $10,000 each to several nieces and nephews, related by blood or marriage, and included an in terrorem clause that would cut them out of the will if they contested it. The lawyer came to the rehab center where the testator spent her final weeks and had her execute three copies of the will, using strangers as witnesses. No one knew then that she had but ten days left to live.
A week after the testator died, the lawyer presented the will for probate. He qualified as executor. Another lawyer, acting as his counsel, sent letters to the several nieces and nephews, telling them about their modest bequests. The letter promised them “that he would expedite their payments if all of them signed and promptly returned a release form enclosed in his letter.”
All of them signed the releases; all but one. That one, joined by his wife, sued to impeach the will, claiming fraud, undue influence, and lack of testamentary capacity. The lawyer filed a plea in bar against the wife, because she had signed a release. The court took that plea under advisement and convened a jury trial.
The jury found that there was no will. Based on his comments, the judge was probably only too happy to enter judgment on the verdict. He denied the plea in bar, holding that the release was a product of the lawyer’s fraud.
On appeal, the lawyer claimed that the husband who had sued had no standing to bring the action, because he wasn’t a blood relative of the testator. His wife was, the lawyer pointed out, and she had signed a release in exchange for valuable consideration.
Alas for the lawyer, the justices had awarded him an appeal on only one of his eight assignments of error, that relating to the husband. That meant that the circuit court’s ruling setting aside the wife’s release was final, and the law of the case. Prior caselaw establishes that as long as one party has standing, another party’s lack of standing won’t defeat the action. This means that any claimed error regarding the husband was harmless.
This ruling comes in an order. In another context, or perhaps at another time, that order might have been unpublished. But today’s order ends with a directive that it be published in Virginia Reports. I sense that the justices were offended by the lawyer’s actions, and decided to impose publication as a form of sanction.
Had enough of standing? Let’s go to another hotbed of controversy: returns on service of process. The case is Logan v. Commonwealth, and it’s sexier than that introduction would make it seem. Because the dates matter here, I’ll set them out exactly.
July 24: A GDC judge enters an order extending a previous preliminary protective order against Logan. The complainant is the mother of Logan’s girlfriend. The order extends the provisions until the following January, and sets a hearing date on whether to make the order permanent.
July 25: A deputy sheriff files a signed return of service with the court, certifying service of the order on both Logan and the complainant. The form indicates that the deputy personally served both persons at the same time, one minute before the deputy filed the return.
July 27: Logan goes into a pawn shop and tries to buy a gun. He fills out a form that asks if he’s under a protective order; he answers no. The pawn shop owner sends the form to the Stat Police.
August 1: The State Police rejects the application, presumably after checking a database of persons subject to protective orders.
An officer met with Logan sometime thereafter and showed him the GDC’s extension order. Logan answered that he knew that he had previously been under a protective order, but believed that it had expired by the time he entered the pawn shop. He denied any knowledge of the extension order.
I infer that the original order was one of very limited duration, designed to freeze the status quo until the court can consider making it more permanent. Nevertheless, the Commonwealth prosecuted Logan for a felony (the false statement) and a misdemeanor (the attempted purchase).
The case proceeded to a bench trial. The complainant testified that the deputy never served her with the extension order. That seems to matter a lot to the case, because the deputy’s return indicated service on both her and Logan at the same minute. This testimony called into question the accuracy of the return of service.
The real fireworks arrived when the prosecution offered the return of service into evidence. Logan objected that the return was an out-of-court statement offered against him to prove the truth of the matter asserted. He raised both hearsay and Confrontation Clause objections (good for his lawyer; you have to raise those separately).
The circuit court overruled the objection and admitted the extension order and the return of service into evidence. The court eventually shook Logan loose on the felony charge, but convicted him of the misdemeanor.
On appeal, a CAV panel affirmed, holding that the primary purpose of the return was administrative, not testimonial. The full court took up the case after granting en banc rehearing; a plurality of the court agreed with the panel, holding that signing the return was a ministerial duty performed by the deputy that “was functionally different from live testimony.”
Today, in a short opinion by Justice Mims, the Supreme Court agrees with the CAV and affirms. The court turns to the primary-purpose test and concurs that, at the time the deputy signed the document, there was no reasonable expectation that there would be litigation over the return. Citing decisions from elsewhere, the Supreme Court concludes that the return “performs a record-keeping function, documenting that the ministerial duty of service of process was executed.”
I don’t handle criminal work, so I don’t have a fully informed view on this. But speaking as a quasi-outsider, this ruling makes me uneasy. I follow the court’s reasoning, and the caselaw is unmistakably there. But one of my tests for a given ruling is whether you can explain it to a nonlawyers in a way that makes that person nod and say, “Okay, I understand.”
In this case, the information on the return was an essential part of the case against Logan. If he had never been served with the order, then he would have entirely innocently tried to buy the gun. That means that what appears on that paper is crucial to the prosecution.
There’s more. On its face, the paper seems incongruous: The deputy asserted in the return that he had served both the complainant – the person who asked for the protective order – and the respondent – the person whom she was ostensibly afraid of – at the same minute. If her object was to keep Logan away from her, why would she be so close to him that they were both served at the same moment?
Finally, the complainant testified that, contrary to what it says on the return, she was not, in fact, served. That calls into question the accuracy of the return on Logan. Yet the courts have ruled that he can’t ask questions of the person who signed the statement that gets Logan convicted.
To a layman, that can’t sound right. To a civil lawyer like me, it seems … well, I’ll say uncomfortable. The law is supposed to give a criminal defendant a fair shot, and this ruling seems to deprive Logan of one.
In Merck & Co. v. Vincent, the court takes up the compensable-consequence doctrine. That holds that where an employee sustains a compensable work-related injury, and later sustains another injury that’s traceable to the first one, the second one may be compensable, too.
Vincent sustained injuries while on the job and received an award of temporary total benefits. Sometime later, he fell down a flight of stairs. Doctors attributed the fall to the effect of medications to treat his initial injury. He got an award for that, too.
Eight years after the first incident, the employee applied for permanent total disability benefits, citing a change in condition. A deputy commissioner awarded the benefits, rejecting the employer’s contention that the injuries hadn’t occurred in the same accident. The full commission and the Court of Appeals affirmed.
The Supreme Court today reverses and remands the case. It holds that under current law, “in the same accident” means just what it says, and an employee can’t rely on the compensable-consequence doctrine to stretch his claim. The opinion explains in detail the court’s conclusion that an earlier decision in 1945 hadn’t meant quite what the Court of Appeals had thought. And the statutory underpinning for the doctrine didn’t survive the recodification of Workers’ Comp statutes.
From Fairfax we get a hot-topic issue, the taxation of short-term home rentals. The growth of Airbnb and related sites has led some jurisdictions to take a closer look at their zoning laws. In Norton v. Fairfax County, we see where the county acted, and the homeowners howled.
In 2018, the county adopted a resolution noting the proliferation of these rentals. To address these, it passed two amendments to its zoning ordinance. The first redefined a dwelling in a way that excluded short-term rentals from the definition. The second imposed a 2% tax on such rentals.
Several homeowners rebelled and filed a declaratory-judgment action, seeking a ruling that the amendments were arbitrary and capricious, or that they violated the Dillon rule. The case went to a bench trial, where the circuit court dismissed the claims with prejudice. The court noted that before the amendments, short-term rental wasn’t a by-right use in the residential zoning classifications. It further found that the county’s decision was anything but arbitrary, and ruled that a statute gave the county the right to impose the tax.
The homeowners got a writ, but today the Supreme Court agrees with the circuit court and affirms the judgment. This is the second decision of which I’m aware in which the Robes have weighed in on rentals like those facilitated by Airbnb. The first, Haynes-Garrett v. Dunn in 2018, held that rentals like these don’t create a landlord-tenant situation, so the owner doesn’t owe that level of duty of care to the renter.