ANALYSIS OF NOVEMBER 19, 2020 SUPREME COURT ORDER
(Posted November 19, 2020) My love of history prompts me to pause before taking up this morning’s solitary published ruling from the Supreme Court of Virginia. Today is the anniversary of the most celebrated speech in American history, the Gettysburg Address. Lincoln’s memorable prose, his brevity – two minutes! – and his stirring closing remain one of the best studies on how to craft an effective speech.
Those of us who are up to their elbows in post-election disputes, specifically those who seek to invalidate ballots with which they disagree, would be wise to heed that closing. If government of the people, by the people, and for the people is not to perish from our corner of this Earth, then undemocratic efforts to obtain political power by subterfuge must end, and end now. An earlier great American described the result of the Constitutional Convention as “a Republic, if you can keep it.” Our constitutional democratic republic doesn’t operate on autopilot; it takes commitment to the rule of law to ensure that we can stand apart from the petty dictatorships of the world.
Criminal law
A divided Supreme Court today affirms the Court of Appeals in two related proceedings under the caption Commonwealth v. Groffel. The case implicates the Double Jeopardy Clause, running in both directions.
Groffel was found to have possessed a firearm while under the burden of five separate protective orders. The orders protected three adults and Groffel’s two children. The issue is how many separate violations that single possession constitutes.
The circuit court found that it made for five separate crimes and convicted Groffel on each. It also convicted him for two counts of possession or transportation of ammunition. In a published opinion written by Chief Judge Decker, a panel of the Court of Appeals reversed one of the ammunition convictions, but affirmed the multiple firearm convictions.
In a short published order this morning, four justices vote to affirm for the reasons set out in the CAV opinion. The Supreme Court doesn’t craft its own prose here; it merely adopts the CAV’s analysis by reference. In this way, Chief Judge Decker effectively writes the Supreme Court’s final opinion in the case. Her analysis centers on the wording of the statutes, which she concludes indicate a legislative intent to create separate offenses for persons under multiple interdictions.
Three justices dissent in part. Justice Powell, writing for Justices Goodwyn and Mims, would reverse the multiple firearm convictions “on the basis that the possession of a firearm is a single offense regardless of the number of disqualifying classes to which Groffel belongs.”
If you’re wondering if an unsigned order like this carries precedential weight, the answer is yes. Because the court chooses to publish the decision, this is the law of the land (at least the land that’s in Virginia) henceforth. If you plan to cite it, the best practice is to do it like this: Groffel v. Commonwealth, 70 Va.App. 681 (2019), aff’d sub nom. Commonwealth v. Groffel, 300 Va. ___ (2020).
One final note: Justice Chafin sits this one out, because this appeal came through the Court of Appeals during her tenure there. She wasn’t on the panel that decided the case below, but because the CAV circulates all published opinions to the full court for comment, she had seen and evaluated this case back then. Senior Justice Russell sits in for her in the Supreme Court.
