(Posted October 18, 2018) The justices continue to clear their desks today, handing down four new published opinions.

Real property

There’s no new ground (sorry) broken in Ettinger v. Oyster Bay Community POA, an appeal of a dispute between a property owner on the Eastern Shore and the local property owners’ association.

The owner sought to develop a roughly 4 ½ acre site at the corner of two roads. The POA didn’t like that idea, so it put up construction fencing and no-trespassing signs at the edge of one of the roadways.
The owner sued, seeking a declaration that he owned the land all the way to the middle of the road. The judge ruled that the owner had a right of way in the road, but he owned only to the road’s edge.

The justices reverse today, relying on a long-standing principle of property law: When someone receives title to land that’s bounded by a street, that person owns the land all the way to the middle of the street, unless the conveyance expresses a different intention. The deed into this landowner didn’t include any express limitation, so the POA can’t shut him off from access.

The POA also contended that the deed into the landowner set forth the boundaries, including the two roads, but it also specified a number of square feet, and that total excluded any part of the road. Dirt lawyers will know what’s coming here: Under Virginia law as elsewhere, “a designation of acreage must yield to definite boundaries.”

Criminal law

The shortest opinion of the day comes from Justice McCullough’s pen: Thomas v. Commonwealth implicates a creative sentencing order. A jury convicted Thomas and sentenced her to seven years in prison. But the trial judge eventually entered an order sentencing her to ten years, with three years suspended.

Okay, that still subtracts out to seven years, so why the fuss? The fuss is because a judge can’t impose a sentence exceeding the one the jury fixed. He can suspend all or part of it, but he can’t add to it. What the judge wanted to do was provide for a three-year period of post-release supervision – the modern term for what used to be parole.

The court reverses and remands the case for proper sentencing. The opinion concludes with a footnote spelling out just how the trial court can do what it presumably wanted to do.

There’s plenty of caselaw indicating that the procedural protections accorded to criminal defendants don’t apply to ancillary proceedings like probation revocations. Today, in Johnson v. Commonwealth, the justices evaluate whether the respondent in a revocation proceeding has the right to be confronted with the witnesses against him.

A trial court convicted Johnson of rape in 2005 and sentenced him to 30 years in prison, suspending 20. He served the ten years and was released, subject to probation. But soon thereafter, his probation officer reported a violation.

One of the conditions of probation was that Johnson was to have no contact with juveniles. A detective told the probation officer that two girls, aged 16 and 17, reported that a man matching Johnson’s description approached them and started chatting them up. They got suspicious with the situation and, after he gave them his phone number and left, they decided to start checking. The detective reported that the girls had checked a site called, and found a photo of their guy, who turned out to be Johnson.

Johnson objected to this report at the hearing, because the girls weren’t present to testify. The court asked for some indicia of the statements’ reliability. The detective explained several corroborating facts, such as the girls’ positive identification of Johnson, Johnson’s residence nearby the location of the alleged contact, and a series of text-message exchanges between the girls and Johnson using an app called, showing Johnson’s attempts to meet with the girls.

In their conversations, the suspect said that he was 28 years old and worked at Dollar Tree; the detective learned that Johnson had recently worked at that store or Dollar General.

The trial judge ruled that all of these things added us to sufficient corroboration to indicate that the girls’ statements were reliable, so the detective’s description of them was permissible evidence at the hearing. That and the fact that Johnson had been convicted of a felony at about this time were enough for the trial judge. The court reimposed the suspended 20 years, and then resuspended 15 of those.

The Court of Appeals took the easy route to affirmance. The felony conviction alone, plus a relatively minor aggression toward his probation officer, meant that Johnson had violated the terms of his parole and could be sent back to prison. Assuming for argument’s sake that the evidentiary ruling was erroneous, that error was harmless.

Today, the Supreme Court arrives at the same destination – alas for Johnson, his is the only appeal decided today that isn’t reversed – but the justices take the harder route of addressing the substance of the girls’ statements’ admissibility. The court rules that the corroborating circumstances in the record do indeed make the statements admissible without confrontation.

It may surprise you that a man can be sent to prison based on what’s obviously hearsay, without the right to be confronted by his accusers. But post-conviction proceedings really are quite different.

Education law

The court explores the boundary between in-state and out-of-state tuition today in George Mason University v. Malik. A student attended Northern Virginia Community College for almost three years before transferring to GMU under the transfer policy implemented by the State Council of Higher Education. The community college had treated her as in-state, but GMU regarded her as out-of-state, so it charged higher tuition. It found that she was in Virginia primarily for educational purposes, not as a permanent resident.

The student asked for a reclassification, but the school refused, so off the student went to circuit court. The judge reviewed numerous facts before concluding that the school’s decision was arbitrary and capricious. The justices reverse today by holding that the trial judge improperly reweighed the evidence.

I’ve preached often that the standard of review is outcome-determinant in an enormous percentage of appeals. Here, the trial judge applied the wrong standard in reviewing GMU’s administrative decision. The circuit court reviews the school’s decision to determine if it can “reasonably be said, on the basis of the record, not to be arbitrary, capricious or otherwise contrary to the law.”

That standard puts the burden on the student to show arbitrariness or caprice. And that burden is stiff: clear and convincing evidence, significantly more than a mere preponderance. By statute, schools must consider the entire case, including an enumerated list of items such as driver’s licensure, income tax payments, voter registration, and employment.

The justices unanimously find today that while it might be possible to view the student’s case favorably, there was plenty of reason for skepticism about several factors. At least one factor that seemed to bode well for the student – she registered to vote here – occurred less than the statutory one-year cutoff before the semester began. There was, the Supreme Court ultimately rules, nothing arbitrary or capricious about the university’s decision, so the trial court exceeded its authority in reversing.