ANALYSIS OF MAY 4, 2010 CAV OPINIONS[Posted May 4, 2010] There’s a particularly interesting batch of four published opinions from the Court of Appeals today.
The law virtually always catches up with someone who figures out how to scam the system. But catching him and convicting him may well be different things. We get a particularly intriguing legal problem today in Brown v. Commonwealth.
Brown worked for United Airlines for several years. In doing so, he eventually figured out an ingenious method to obtain free air travel. The airline caught on to him and suspended (and eventually fired) him, but that didn’t stop him. Here’s how Brown’s scam worked (and you can be reasonably confident that the airline has closed this loophole, so don’t try this at home):
When you made a reservation at United, you used to have the option of paying for the ticket at that time, or else paying for it when you got to the airport. Brown made several reservations, indicating in each instance that he’d pay once he got to the terminal. But he was careful to always book seats on oversold flights.
Maybe you see what’s coming here. In each case, when he arrived at the airport, he went straight to the desk and offered to give up his seat in exchange for a travel voucher – the customary compensation for a passenger who is “bumped” (the airlines call it a denied boarding compensation). The ticket agent, grateful for anyone who would alleviate the plane’s overcrowding, accepted Brown’s ticket, which still hadn’t been paid for, and gave him vouchers good for future travel. Now Brown has several vouchers that are good for air travel, without ever having to open his wallet. Is this a great country, or what?
The authorities decided that Brown had been scamming them – and so he had, if today’s recitation of the events is accurate. The issue is whether this amounted to embezzlement and uttering a forged document, which is what he was convicted of.
Today, a panel of the Court of Appeals unanimously reverses the convictions and dismisses the indictments on the grounds of insufficiency – which you must admit is generally a longshot for a criminal appellant. The court notes that Brown didn’t get the vouchers by virtue of his employment status, which (at the time he got these vouchers) had been suspended or terminated. Thus, there was no embezzlement; he only did what any other ingenious scammer could have done before United closed the loophole. As for uttering, there was nothing forged or altered about the tickets, once he got them. They were plain, old tickets that were perfectly good. Brown might well have obtained forged vouchers, but the indictments charged him with forging the tickets, so the indictment didn’t apply to the vouchers. All of the convictions thus vanish today in an unlikely victory for an appellant.
Wells v. DSS arises in the admin-law context, but today’s opinion is really about appellate jurisdiction and the finality doctrine. At first blush, it looks to me like a straightforward application of the principle that filing a post-final-judgment motion to reconsider doesn’t toll appellate deadlines. Any decent appellate lawyer who can read Rule 1:1 could tell you that. But what about in an admin-law context, where the rules are somewhat different?
Wells operated a group home for children, and was charged by the local DSS with maintaining an inadequate supply of food for the kids. The DSS eventually founded the charges, and a circuit court affirmed that finding. When the trial judge entered a final order, Wells sent the trial judge a letter asking him to reconsider, based on evidence at the last hearing in the case. About nine weeks later, the trial court entered an order noting that it had considered the motion in light of the relevant evidence, and decided not to change the ruling. Wells noted an appeal a week later.
Unfortunately, that was ten weeks after the final judgment order in the case, and that’s hopelessly beyond the 30-day deadline in Rule 5A:6. The only hope that Wells had was for the appellate court to consider that the final order really wasn’t final, because she had filed a request to reconsider. In a garden-variety litigation context, that argument is going nowhere, because there was no suspension order entered within the first 21 days. Today’s ruling, dismissing the appeal for want to jurisdiction, finds that the same requirement applies to appeals from admin-law rulings where the trial court essentially sits as an appellate court.
The court also issues a highly-technical ruling in a Medicaid-reimbursement appeal, Avante at Roanoke v. Dep’t of Medical Assistance Services. At issue here is the rate at which DMAS has to reimburse four nursing homes for contracted respiratory-therapy services. The state agency tried to apply a lower rate, based on when the nursing homes performed the services in-house, despite the fact that the homes later contracted out for the services from a private contractor. The circuit court agreed, but today the CAV reverses that ruling based on state and federal Medicaid regulations, and sends the case back with a direction that the agency recalculate the fees.
I’m not sure if the marriage that ended in White v. White was exactly a May-December matter (for that, you have to think of Anna Nicole Smith, who famously wed an oil tycoon when she was 26 and he was 89). But this one was at least April-September; husband was in his early 50’s, and wife was in her late 20’s. The problem with April-September romances is that they eventually turn into July-December deals. When husband got to his December, specifically the time of the evidentiary hearing in the divorce case, he was a 75-year-old Parkinson’s disease patient, and wife might still have been in her 40’s.
Neither spouse asked for support, so the big issue for the trial court was equitable distribution. The parties had assets worth $1.2 million to split, so this was a battle well worth fighting, no matter what your “month” is.
The primary issue in this appeal is that the trial judge, on the record, noted that he was considering husband’s “age and medical condition” in arriving at his award, which eventually landed at 55% for husband and 45% for wife. Wife argued on appeal that the proper context for any consideration of a party’s future needs is support, not ED. And she had a pretty good argument there, based on this language from a 1989 CAV opinion: “It is axiomatic that whatever the future may hold for either of the parties has no bearing on the issue of the appropriate division of what has been accumulated by their contributions during the marriage.” That is, spousal support looks forward; ED looks only backward.
Axiomatic is one of those words that good writers use sparingly, because of its strong connotation. It means self-evident, sort of like those truths in the Declaration of Independence; something that no sensible person would question; a conclusion not even open to debate. In this appeal, husband has a problem, in defending a ruling that looks for all the world like the trial court has given him more money because of his age and infirmity, which increases his future needs.
Wife understandably climbed onto the back of the 1989 ruling and rode that horse for all it was worth. I’ll tell you know that the Court of Appeals affirms this judgment, without resorting to the waiver doctrine on this issue. So how do you get from Point A (the axiomatic stuff) to Point B (affirming anyway)?
In this instance, you make a very fine distinction, and employ what the military calls a strategic withdrawal. The court notes today that in the 1989 case, it was construing subdivision 11 (the catchall provision) of the ED statute. In this case, the trial court considered husband’s age and condition in conjunction with subdivision 4, which invites courts to divide property after considering the “ages and physical and mental condition of the parties.” That’s a different horse entirely, the court unanimously rules today, and it was perfectly appropriate for the trial judge to use that factor in its analysis.
The strategic-withdrawal part comes in a footnote, where most of the appellate goblins usually reside. There, the court cites Chief Justice John Marshall’s admonition against reading every line of an opinion as a substantive ruling. In more blue-collar terms, the court says today that all that “axiomatic” stuff was just dicta, and distinguishable dicta at that. This, of course, raises the question why the 1989 court couldn’t have applied the age condition to subsection 4; but we don’t get any discussion of that issue today.
This ruling is, in my mind, a close call, and if I had been on this panel, I might have been tempted to dissent, based on the earlier ruling. But in the end, I think the court’s ruling today is correct, by applying the plain language of subsection 4. This decision, at a minimum, should serve to clear up any misconceptions among domestic-relations practitioners as to whether age can ever be considered in a purely-ED context.