(Posted October 19, 2023) Today marks one of the most important days in the history of our Commonwealth, and indeed of the nation. On this date in 1781, Colonial troops, including the Continental Army and numerous members of local militias, lined the roads near Yorktown to witness the proceedings as British troops under Lord Cornwallis marched sullenly and laid down their arms. This event didn’t mark the formal end of the Revolutionary War, or even the end of fighting; battles would continue for another year and a half, and the war didn’t end until the parties signed the Treaty of Paris in 1783. But Americans have long marked the capture of the main British army on October 19, 1781 as the symbolic end of America’s most important war.

My family has a personal connection to the surrender: My great-great-etc. grandfather, Jasper Cather of Frederick County, served in the Virginia militia and, by family lore, was present at the surrender. It must have been the greatest day of his life.

It’s a great day in 2023, too, as the dam breaks on the clogged stream of opinions from the Supreme Court of Virginia. After last week’s trickle, the court releases three new published decisions – two opinions and one published order. Let’s take them up in the order in which the justices received oral argument.



I found the analysis in McKeithen v. City of Richmond fascinating. It involves the priority of subordinate liens after a tax sale of real property.

Oh, I hear you groaning out there. But you’re wrong. No, it’s not boring. You should be more open-minded. Read along and see if you agree.

The story starts with an owner of land in Richmond. He evidently paid his property-tax bills faithfully until Father Time claimed him in 2006. His heirs didn’t pay the taxes thereafter. After eleven years of nonpayment, the City finally got around to filing suit to sell the property to satisfy the tax lien.

I’ll leave aside for now the question why it took City Hall over a decade to enforce its tax lien. The issue for us is what to do with the sale proceeds. A title search revealed two prior recorded liens, whom we’ll call Creditor A and Creditor B. Creditor A had an old lien of $14,000, while B’s, far newer, exceeded $100,000.

A tax sale of the property brought a bit over $50,000. The City got the first bite of the pie – as the Code requires, tax liens are first in priority – and that came to about $29,000, leaving around $21,000 for the junior lienors.

Creditor B appeared and sought payment of his uncontested $7,000; the court directed that payment. But Creditor A never appeared, despite the passage of the statutory two-year period that the court must hold funds. When that period ended, Creditor B returned to the court, arguing that since creditor A had blown off the proceedings, that lien was extinguished and B was entitled to the remaining $14,000.

The City responded with a nasty surprise: Under the statute, if another creditor doesn’t claim his share, the new surplus doesn’t go to junior lienors, but is escheated to the taxing authority – in this case, the City. The circuit court agreed with the City; a panel of the Supreme Court agreed to take a look.

Today’s opinion divides the analytical labors into two parts. In the first, the court agrees with the circuit court and the City that a textual view of the statute does indeed compel the conclusion that the City is entitled to the remaining $14,000. But step 2 in the process is the decision whether following the statute in this situation effects a taking of private property without just compensation. The Supreme Court here agrees with Creditor B and holds that the statute is indeed unconstitutional.

Beyond question, Creditor B had a property interest in the land that’s the subject of the tax sale. By providing for escheatment – the process for public confiscation of property where there’s no private owner – the statute cuts off a valid lien. Basic lien law gives a creditor thus secured a lien over the whole of the debtor’s property; not merely that part that exceeds the value of senior lienors. This means that Creditor B will receive, after remand, the entire res of this appeal – fourteen thousand dollars. I cannot guess what his attorney’s fees for the appeal were.

I’ll offer one other observation. This case took a long, long, long time to make its way through the appellate system. That’s happening with greater frequency now that appeals must transit the Court of Appeals first, before heading upstairs to the Supreme Court. But this isn’t one of those cases; the record number is 210389. That means that it arrived at the Supreme Court 2½ years ago, long before the expansion of the Court of Appeals.

How did it take that long? Two factors caused the extraordinary delay. The first was the writ process: The SCV Clerk received the petition for appeal in April 2021 and the brief in opp the next month. The writ panel originally dunked the petition in July 2021, likely for a procedural default; but the entire court granted a petition for rehearing in October of that year, reinstating the case to the normal writ process. So far, we’re not exceptionally behind schedule.

But now the problem arises: It took the Supreme Court another 15 months, until January 2023, to rule on the merits of the petition. This length of delay is all the more ineffable because the briefs are already in; there’s no four-month gap for the petition and brief in opp. The panel simply took its time in deciding what to do.

By March 2023, the merits briefs were complete. The Clerk placed the appeal on the June micro-docket (just two appeals, an all-time low in the span of my career and possibly of all time). After receiving argument on June 7, the court took the case into its breast and the parties settled down to wait for a ruling.

And they waited. Today’s ruling is unanimous; there were no dissents to coordinate. The analysis is also, as I see it, unassailable. Every component of Justice Kelsey’s opinion for the court makes full sense to me. This case doesn’t bear any of the earmarks of a tough analytical slog, with the possible exception of the court’s declaring a statute to be unconstitutional as applied. In normal times, I would have expected to see an opinion like this in perhaps six to eight weeks. This one took 19, and I can’t imagine why.

Experiences like this and Vlaming v. West Point School Board – a monstrous temporal outlier that’s closing in on a full year since oral argument – give us a broad hint that the current Supreme Court doesn’t prioritize the speedy resolution of appeals the way some of their judicial ancestors did. To be fair, some of the justices probably do. I infer that linguistic exactitude and uber-careful analysis are the greater motivators for Justice Kelsey; of the decisions that take half a year or more to arrive, a disproportionate percentage involve his work as the author of the opinion of the court or a dissent. That doesn’t make his approach wrong; just different.

I mention this because you, my beloved readers, have to advise your clients about the appellate process. One of the components that’s important to most clients is the time it’ll take for an appeal. With the CAV now possessing near-plenary appellate jurisdiction, and with the pace slowing noticeably in that court in comparison with pre-2022, your clients should expect a full appellate process to take no less than 2½ to 3 years, and perhaps more. This is one of the unintended consequences of Senate Bill 1261: The appellate pace has demonstrably slowed to a crawl.


Criminal procedure

Basic principles of double jeopardy bar a subsequent prosecution of a defendant who has been acquitted of the same charge in the same jurisdiction. Commonwealth v. McBride explores what happens when a judge mistakenly grants a motion to strike the prosecution’s evidence.

McBride found himself at the point of the Fairfax Commonwealth’s Attorney’s metaphorical sword, answering drug-distribution charges. The prosecution sought to introduce evidence of prior convictions from Maryland, hoping for an enhanced conviction and sentence. The prosecutor obtained a ruling in limine that these convictions would be admissible at trial based on the authentication from across the Potomac.

At trial, the defense sought to exploit doubt about whether the person in the Maryland records was the same as the person in the dock here. At first blush, this looks like a longshot; the defendant’s full name is Danjuan Antonio McBride, not John Johnson. I’ll go out on a limb and speculate that there are perilously few persons with his name. But I digress.

The circuit court, citing at least some ambiguity (including a record that showed two different birthdates, exactly one year apart), granted a motion to strike at the end of the prosecution’s case, at least as to the recidivist component. The Commonwealth’s Attorney objected strongly and asked if he could reopen the evidence to introduce one added, clinching document. Pondering that, the court decided to allow that, over a foreseeable objection from the defense.

With the new document in the case, the court ruled that the jury would have to decide whether the prosecution had proved that the prior convictions belonged to the current defendant. It reversed its prior ruling on the motion to strike. Today’s opinion adds, “At that point, the defendant had not presented any evidence or taken any other steps such as releasing witnesses.”

The jury got ‘im, of course. The defendant appealed to the CAV, which bought his double-jeopardy argument and reversed in a published opinion. The Commonwealth then perfected an appeal, resulting in today’s opinion.

The justices this morning unanimously reverse the Court of Appeals and enter a final judgment of conviction on the enhanced charge. The court holds that while Rule 3A:15 directs a circuit court to enter a judgment of acquittal upon striking the evidence, the circuit court’s initial decision to strike was interlocutory, and the court had the authority to reconsider it (as courts may do in any case where they still have jurisdiction). The fact that the defense hadn’t taken any action in reliance on the initial ruling means that he isn’t prejudiced by the quick reversal, so he gets no help from the federal Double Jeopardy Clause.


Assignments of error

I was ready to classify Moison v. Commonwealth in the field of criminal law until I got to the surprise ending. But resolution of the case turns unmistakably on how the appellant proceeded in the appellate courts.

This appeal involves convictions for multiple counts of aggravated sexual battery and taking indecent liberties. The defendant is the father of two girls; Norfolk police charged him with the offenses after the girls told their mother about numerous incidents over the years.

The precipitating event came on the evening of a party at the home of one of the defendant’s friends. The prosecution alleged that the two girls went inside the friend’s home to sleep on a sofa while the two adults stayed outside. The defendant entered the house around 5:00 am and allegedly committed sexual batteries on his daughters.

At trial, the defense called his friend – the host of the party – who was prepared to testify that she and the defendant had stayed outside together until 6:00, so he couldn’t have been inside at the time of the claimed incident. The prosecutor objected, noting that the defense has an obligation to disclose alibi evidence before trial, and no such disclosure came in this case. The defense responded that the offered testimony wasn’t an alibi. The learned judge wasn’t having any of it; he excluded the evidence and the jury convicted the defendant.

In the Court of Appeals, the defendant argued that the evidence was actually impeachment of the daughters. The CAV observed that this contention was made for the first time on appeal, but it went ahead and analyzed the argument anyway before concluding that the evidence was, indeed alibi, so the trial judge correctly excluded it.

Today the Supreme Court affirms. Unlike the Court of Appeals, the justices don’t touch the question whether this is or is not alibi evidence. Instead, the court turns to the language of the assignment of error:

The Court of Appeals erred in affirming the trial court’s barring the Defendant from presenting relevant and material testimony on grounds that the evidence was alibi evidence which had not been properly disclosed to the Commonwealth in advance of trial pursuant to Rule 3A:11(d)(2) of the Rules of the Supreme Court of Virginia because such testimony did not constitute evidence of alibi but rather was offered to impeach by contradiction the testimony of the two alleged victims.

You see that last clause, starting with “because such testimony”? The court today holds that that language “cabins the error that this Court can consider to only whether the trial court erred by not admitting Lee’s testimony as impeachment evidence.” That is, the court can’t consider whether it was or wasn’t alibi evidence, because that isn’t the issue that the defendant framed on appeal. Because this argument is procedurally defaulted under the contemporaneous-objection rule, and that’s the only issue that the appeal raises, the justices vacate the alibi finding but affirm on procedural waiver.

 *   *   *

Today’s bounty of decisions leaves just three argued but undecided appeals on the Supreme Court’s docket as we steam toward the November session. Schmuhl v. Clarke, a habeas appeal, and Commonwealth v. Puckett, a restitution case, were both argued in the September session. The Vlaming appeal, mentioned above, was argued somewhat earlier than that.