[Posted November 17, 2009] The Court of Appeals issues five published opinions today, only four of which adjudicate the merits of appeals. (The other one transfers an appeal to the Supreme Court under Code §8.01-677.1, since the court determines that it doesn’t have jurisdiction over the subject matter and the Supreme Court does.) There’s one en banc decision (those are always published) and one in the field of administrative law. But we’ll start with today’s major ruling; the one that will mean the most to practicing lawyers. It’s a case that rips open a recently-sutured wound involving the authority of judges to engage in creative dispositions in criminal cases.

Criminal law
Last year, the Supreme Court decided two cases involving the authority of trial courts to defer findings in criminal cases. I don’t need to describe to trial lawyers the importance of this issue; deferred findings have long been urged by defense lawyers who seek to avoid the harsh consequences of sometimes-minor criminal violations.

Before last year’s twin rulings, the Court of Appeals had flatly held that trial courts had no general authority to defer findings. Its rationale was simple: The legislature has made specific provisions for deferred findings in a select few areas, and those specific grants of authority would be wholly unnecessary if a general authority already existed. Given what I know about statutory interpretation, there is a certain inescapable logic to this reasoning. And yet, could all those trial courts over all those years be just plain wrong?

They were wrong, the Court of Appeals ruled in Gibson v. Commonwealth, applying the approach I described above. But the Supreme Court granted a writ, and in that case and Moreau v. Fuller, decided the same day, the Supreme Court reversed . . . sort of. The Moreau decision contained a footnote (!) in which the justices reversed Gibson’s per se rule. But it left open the question of whether such authority existed in a properly-presented case, because it ruled that the issue of inherent authority wasn’t properly before the CAV in the appeal. Two justices wrote separately, expressing thinly-veiled and opposite views of the likely answer to the eventual question. It promised to be a very interesting ultimate issue, whenever it did get approached head-on.

Today, the Court of Appeals renews the battle, deciding in Hernandez v. Commonwealth that trial courts can’t defer findings where a specific statute doesn’t authorize it. This is the Gibson ruling redux, and the wording of today’s opinion comes just short of a dare to the Supreme Court to take the case and decide the question once and for all.

How do I know? Consider this language, the very first paragraph of the opinion:

“The issue here for resolution may be stated as follows: Does a trial court have the inherent authority to dismiss criminal charges on grounds other than the legal or factual merits, when such a dismissal is not authorized by statute? We conclude a trial court does not have such inherent authority.”

Okay; imagine that you’re a prosecutor in a DUI case. The defendant is a nice-guy Navy Commander with a perfect driving record and a high-level security clearance. He gets some devastating news one night – maybe a buddy died in action; maybe his wife was unfaithful to him – and he goes out to a pub to drown his sorrows. On the way home, he’s driving fine, but he gets pulled for a burned-out tail light, and the officer smells alcohol; the commander blows a .09 and gets arrested.

What I’ve just described is just about the minimum you can do and get convicted of DUI. The defense lawyer wants to adduce evidence of the mitigating factors here, including the fact that the defendant will lose his security clearance if he’s convicted, and will be consigned to a dead-end job for the rest of his career. The lawyer acknowledges that you’ve got a valid prima facie case, but she wants to ask the judge to just have mercy on the guy.

According to the language in this opinion, which as of today is the law of the land in Virginia, the trial judge cannot cut the commander a break on that basis; the sympathy factor unquestionably is a ground “other than the legal or factual merits.” You accordingly move the court to exclude from evidence the painful circumstances of this arrest, and the even-more-painful consequences, and you hand the judge a copy of Hernandez.

More than a few judges will read today’s opinion and sustain the objection. I’m not saying that all of them will; and I can’t predict with reliability whether a majority of them will. But many will read the plain language, and the clear subtext, of today’s opinion, and rule that the defense is inappropriately trying to get the case decided based on sympathy or compassion instead of the law and the facts. That’s because, in my opinion, that is exactly what the Court of Appeals has ruled today.

For those defense lawyers who breathed a sigh of relief after the Supreme Court countermanded Gibson last year, the next few months will be an anxious time as they wait for either an en banc CAV opinion or a Supreme Court writ. I’ll be watching this one for further appellate review. En garde!

Administrative law
The burden of proof plays a decisive role in Mazloumi v. DEQ. Mazloumi had a certificate entitling him to perform vehicle emissions tests. Someone using his certification performed five tests on cars other than the ones for which the tests were supposed to be performed, presumably in order to pass vehicles that weren’t up to DEQ standards. But you can’t fool those guys, because their computer programs are better than you think; the department found out about the five faked tests and told Mazloumi that he had some ‘splainin’ to do.

He ‘splained that he hadn’t faked any tests, but he recalled that he often left his wallet (containing his certificate information) next to the testing machine, and anybody could have done the tests using the readily-available information. That didn’t satisfy DEQ; a hearing officer decided that “[n]o evidence has been presented to support Petitioner’s contention that . . . anyone else knew Mr. Mazloumi’s PIN or conducted the emissions inspections at issue.” Mazloumi responded in the ensuing circuit court appeal that no one had proved that he, as opposed to a fiendishly-clever certificate-burglar, had performed the fake tests. Basically, DEQ and Mazloumi are arguing over who has to prove the misdeed, or lack thereof.

Today the Court of Appeals agrees with the circuit court that the hearing officer had a legitimate basis to conclude that Mazloumi had probably faked the tests. The standard is a preponderance; not beyond a reasonable doubt, as it would be if this were a criminal case instead of a licensure proceeding. The court notes the futility of requiring DEQ to disprove a negative, so it affirms.