(Posted May 31, 2018) The Supreme Court of Virginia today announces published rulings in four appeals, including the closely watched redistricting case of Vesilind v. Board of Elections.

Before we get to the analysis, I’ve seen that the argument docket for the June session is on the court’s website. There are 15 cases scheduled for next week. That brings to 65 the number of arguments this year.

There are only two more sessions in 2018 – one in mid-September and the other at the end of October. The court is on a pace to hear fewer than 100 merits arguments this year. That would be the smallest number in a long, long time. That being said, September’s docket tends to be somewhat larger, because more appeals mature over the three-month summer break, so perhaps we’ll crack the century mark after all.



The justices heard oral argument in Vesilind v. Board of Elections on the last day of February, and today, on the last day of May, we get a ruling. This is a challenge by 14 Virginia voters who asserted that the 2011 General Assembly gerrymandered five House districts and six Senate districts to ensure Republican control of the legislature. The challengers asserted that the eleven districts violated the requirement in the Constitution of Virginia that legislative districts must be compact.

We learn from today’s opinion that there’s a great deal of science in the districting process, but it’s a social science; not something as readily definable as physics. Both the challengers and the legislature (the Board of Elections was the only named defendant, but the trial court permitted the House and its speaker to intervene as parties) adduced expert testimony exploring the issue by various means of calculating compactness.

In the end, the trial court found that the legislature’s judgment call on compactness was fairly debatable, in that reasonable, objective persons could have come to different conclusions. That court ruled against the challengers, and today the justices affirm. Justice Goodwyn’s opinion for the court lays out the competing evidence in detail, but in the end it’s a combination of a deferential decision-making standard at trial and another deferential standard of appellate review that compel affirmance.

Given the subject matter of this litigation, I’m going to add some editorial comment here on an issue other than appellate procedure. I have no quarrel with the Supreme Court’s opinion, given those deferential standards. I only wish there had been some way to reverse.

I’m well aware that, depending on who’s in power, both political parties have engaged in gerrymandering districts to benefit their respective candidates. Regardless of who does it, it’s wrong. I regard partisan redistricting as a form of blatant political corruption; as a cancer on our republican form of government. The justices’ decision today means that we, the voters, are the surgeons who must remove this cancer. We can do so by telling our legislators that we insist upon it, and by voting for candidates who will pledge to commit the redistricting process to a nonpartisan group, as six states have already done. Once I finish today’s analysis, I plan to let my Delegate and my Senator know that.


I will admit to having drawn in a sharp breath on just the second page of Davis v. MKR Development, LLC, an appeal involving a derivative action by a majority member of a limited liability company. It’s when I got to the part where the member sued the managers. Those managers are siblings, and in their youth, they no doubt referred to the eventual plaintiff in the case as “Mom.”

Uh-oh. We’ve seen family disputes many times here since the early days of VANA, and most of them end in tears. Here’s the setup for this one:

Dad established a business. He sells the stock to his children, the siblings. He and Mom own land that the business leases. Mom and Dad form an LLC to hold title to the property; that LLC lists the siblings as managers.

One day, Mom checks the balance on her bank account. She expects there to be over a million bucks in there from lease payments; but the balance is a measly $35K. She asks the siblings for payment; they give her the brush-off. She asks for an accounting, but they ignore that, too. Cue the lawsuit.

In the circuit court, the siblings demurred, saying that Mom had to make a formal statutory demand to bring suit in the corporate name, instead of straight-out filing a derivative action. The judge agreed and dismissed the suit.

On appeal, the justices turn to age-old caselaw on derivative suits. These were chancery causes, fashioned by the courts to permit shareholders from being fleeced by unfaithful corporate directors. That caselaw did require a formal demand by the shareholder to file a corporate action before the derivative remedy was available. But that hoary law also provided something called the futility exception; if it’s obvious that making the formal demand would be useless, the shareholder can go ahead and sue.

Mom’s situation seems tailor-made for this exception. But you need to know that the legislature amended the corporate title of the Code in 2011; that amendment seems to require a formal demand before a shareholder can sue, and there’s no mention of the futility exception.

The Supreme Court evaluates the amendment under the two competing canons of construction. First, new legislation that covers the area of previous common law is presumed to work a change in that law, and supersede it to the extent they’re inconsistent. That militates in favor of the siblings’ position.

But there’s another modern Code provision that cuts the other way: “In derivative action, the complaint shall set forth with particularity the effort of the plaintiff to secure commencement of the action by a member or manager with the authority to do so or the reasons for not making the effort.” If “the effort” is mandatory, what is this emphasized text; a useless appendage that can be ignored? Courts are loath to construe statutes so that part of it is useless surplusage.

In the end, the justices decide to construe the amendment in such a way that the futility exception survives. Since it plainly applies here, the court reverses and sends the case back for further proceedings.

I’ll add one last point on a finality issue. In a footnote, the Supreme Court notes that the trial court dismissed Mom’s complaint without prejudice. Instead of refiling, she went ahead and appealed, fearful that if she filed a new suit, the siblings would assert the statute of limitations. As we’ve seen, the justices decide this case on the merits.

That’s noteworthy because it’s probable that the federal circuit courts would regard a dismissal without prejudice as nonappealable. Such a dismissal puts the plaintiff back in the position where she was before filing suit in the first place. Be careful not to translate this ruling into your federal-court practice.

Criminal law

At what point would you say that a defendant has been convicted of a crime? It’s not when the judge says that the evidence is sufficient to convict; we learned in Moreau v. Fuller (2008) that the court still has the authority to acquit. By the time of the sentencing order, there’s definitely been a conviction; that’s the final, appealable order in a criminal prosecution. That’s Burrell v. Commonwealth from 2012.

What about the time in between? Has a defendant been convicted when the judge states, “I find you guilty, and we’ll defer sentencing”? That’s the key issue in today’s Lewis v. Commonwealth.

A grand jury indicted Lewis on two felony counts of domestic assault. Assault of a family or household member is a felony if the defendant has two prior convictions of such assault. The grand jury tagged Lewis for assaulting his girlfriend on October 2015 and in December of that year.

Here’s our first complication: Lewis had only one prior before the October assault. The prosecutor thus agreed to reduce the charge on the October charge to a misdemeanor. When Lewis presumably asked about reducing the December charge, too, the prosecutor refused. A conversation something like this probably ensued: “So how are you going to show a prior conviction for the December charge?” “I’m going to get a conviction on the October charge, and then use that as the second prior.”

The civil advocate within me reacted to this with scorn: Oh, come on; that’s too cute by half. But I know plenty about what I don’t know about criminal law, so I kept reading to see how the analysis unfolds.

The trial court did just as the prosecutor wanted, bifurcating the two charges (over Lewis’s objection), then conducting a bench trial on the October charge. The judge convicted Lewis and deferred sentencing. Without missing a beat, the court then arraigned Lewis on the felony indictment, got a not-guilty plea, and tried him then and there. Guilty again. Lewis argued in vain that both prior convictions had to precede the December assault.

Lewis appealed the felony conviction. The CAV shrugged him off with a per curiam order, but the justices granted a writ.

I warned you a moment ago that my civil practice doesn’t give me criminal-law expertise. I will accordingly report that I read today’s 12-page opinion agape, not believing what I was reading, as the Supreme Court affirms the conviction. Here are the rulings that lead to this result:

The domestic-assault statute provides that “where it is alleged in the … indictment on which a person is convicted” that the defendant has two priors, a conviction is a felony. Here, the indictment clearly asserted that. There may well have been a defect in the evidence that the prosecution presented to the grand jury to establish that second prior, but as usual, there’s nothing in the appellate record to show what happened in the grand-jury hearing.

Justice Mims’s opinion for the court notes the obvious: At this stage, there’s no way the October assault could have triggered the felony, because Lewis hadn’t been convicted of it yet.

“But, while intriguing, that question is not before us in this case.” While the prosecutor amended the October indictment down to a misdemeanor, Lewis didn’t object to the December indictment, or ask for a bill of particulars to spell out what the claimed second prior was. The opinion doesn’t call this a waiver, but that’s just what it is: The clear implication is that if he had done so, the trial court would have to step in and stop the felony proceeding.

So let’s go to the real question: What’s a conviction? You’ll recall that that’s where we began to explore today’s decision. Today, the Supreme Court holds that when a judge announces, “I find you guilty,” that’s a conviction. Thus, when the trial judge here found Lewis guilty of the October charge, he had been convicted of a second predicate offense, and could be tried and convicted for the felony on the December charge.

If you’re still skeptical, here’s a quote from a couple of the court’s recent decisions in this field: “once a court has entered a judgment of conviction of a crime, the question of the penalty to be imposed is entirely within the province of the legislature …” Thus, the court recognizes that the finding of guilt is when conviction takes place, even before sentencing.

Lewis had one more angle of attack: While the trial judge announced his finding of guilt on the trial date, he didn’t get around to entering an order to that effect for another eleven days. Note that the quote immediately above refers to a court’s entry of judgment. As of the trial on the December charge, no judgment of conviction had been entered against him. (Entry of a judgment is the act of signing an order. Rendition of judgment is the announcement of a ruling, usually orally, but sometimes in letter opinions.)

Lewis takes home the silver medal in this contest, too. The Supreme Court notes that an order is just evidence of what has happened in a case. It’s not the only possible evidence. Here, the trial judge was able to take judicial notice of the fact of Lewis’s conviction of the October charge, because he had just decreed that conviction a few minutes earlier. Lewis didn’t appeal the judge’s taking judicial notice, so that plays no part in the analysis.

That’s how we get from a proposition that was facially implausible to me, all the way to a unanimous affirmance.

The next criminal appeal is a joint one, decided by a single opinion styled Gerald v. Commonwealth. It involves convictions for driving on suspended licenses, third or subsequent offense, and perjury. The defendants are a mother and daughter.

On January 22, 2017, two days after “the largest crowd ever to witness a presidential inauguration” had allegedly assembled, presidential adviser Kellyanne Conway gave birth to the unforgettable phrase, “alternative facts.” She invited the public to believe the president’s boast instead of their own lyin’ eyes, spurring creation of a hundred memes to mock the idea that lies are facts. Today’s opinion gives the clear impression that the appellants are Conway devotees.

It started simply enough, with a rear-end fender-bender. Fortunately no one appears to have been seriously hurt. The driver of the front car – we’ll call him the victim – got out and saw the mother getting out of the driver’s side of her car. She said she was sorry. The daughter then got out of the passenger side and told the victim that the car was hers. The victim saw groceries and another passenger in the back seat. There followed a routine exchange of insurance information.

Normality vanished, though, when the victim asked for the mother’s driver’s license. At that request, the daughter “ran around to the driver’s side, hopped in the car,” at which point the mother “got in the passenger seat, and they sped off.” Now what brought that on? The victim jotted down the license plate number and called police.

It wasn’t hard to find the escapees; a police officer drove to the registered address for the license plate and found daughter, mother, and several others unloading groceries at their apartment. If the mother was planning to be coy, her first question to the officer blew that chance: “Is this about the crash?” Why, yes, the officer must have replied with a concealed chuckle.

It’s at this point that mother and daughter unleash a dizzying series of alternative-fact statements about who was driving, about who had a suspended license, and who the car belonged to. Rather than try to outline all of them, I’ll let you sift through the slip opinion at your leisure.

The important thing for our purposes is that when the two women were tried for driving on suspended operators’ licenses – remember, they each drove the car that day – the alternative facts wouldn’t stop. There was no court reporter in the traffic-court trial, but the prosecutor must have sensed that something would happen, so he asked a police officer to take detailed notes on what the mother and daughter said. Sure enough, their version parted ways in significant respects from reality – at least in the prosecutor’s judgment. After the Albemarle GDC judge convicted them and they appealed, those notes became the basis for felony indictments for perjury.

In circuit court, the women offered two primary defenses in their joint perjury trial. First, they insisted that they couldn’t be convicted without proof of the verbatim questions. There may have been ambiguities, for example. Second, they objected to venue of the perjury trial, because the Albemarle GDC is actually in the City of Charlottesville.

Both defenses fail; the Supreme Court today affirms based largely on the trial court’s factual findings, particularly his statement that he found the victim particularly credible. As for venue, the Charlottesville city charter provides that the county courthouse is under the joint jurisdiction of the city and county.

The daughter also appealed her driving conviction, insisting that the victim was incredible as a matter of law. For example, she noted that he was driving east, so when he turned around to see who had hit him, the sun would have blinded him from seeing accurately who was driving. Justice McClanahan, who writes for a unanimous court, is gracious enough to refrain from inserting, “Oh, give me a break” in the slip opinion. This is a pure-credibility issue, and the justices predictably won’t touch that.