(Posted October 20, 2022) The Supreme Court of Virginia continues its efforts to clear the decks of unresolved appeals, issuing three published opinions today in four argued cases.


Open government

While we do get one FOIA ruling today, the dominant news of this morning arises from a different context. The Daily Press, LLC v. Commonwealth implicates the public’s right of access to court proceedings.

This appeal arises from an ancillary proceeding to a criminal prosecution. The defendant is a Newport News police officer charged with murder in the course of his official duties. The officer was admitted to bail, but the prosecution subpoenaed certain records from the City, including its police internal-affairs investigation of the incident.

The City objected to the issuance of the subpoena, but the circuit court issued it anyway, directing that the subpoenaed documents be filed under seal until further court order. The City complied.

Upon reviewing the documents, the prosecutor moved the court to revoke the officer’s admission to bail, alleging that he was a danger to the community. This motion, also filed under seal, attached as exhibits many of the subpoenaed documents.

The court scheduled a hearing on the bail-revocation motion. Given the nature of the case and widespread public interest in police-involved homicides, the local newspaper sent a veteran reporter to cover the hearing. But at the outset of that hearing, the prosecutor moved the court to close the hearing to the public – specifically including the reporter – citing various concerns including the possibility of tainting a pool of veniremen.

The judge decided that this was an issue requiring some careful thought. The court continued the hearing and gave the reporter and his employer an opportunity to intervene and argue against closure. At a reconvened hearing, the court eventually granted the prosecutor’s request and gently invited the reporter to leave the room.

After the revocation hearing, the newspaper sought access to a transcript of what had transpired. No dice, the court ruled, also refusing to allow access to the bail-revocation motion and its many attachments.

That led to this appeal. The primary ruling today is that the circuit court erred by closing the revocation hearing to the public. Legal proceedings – and especially criminal proceedings – are matters of obvious public concern. As Justice Kelsey points out in today’s unanimous opinion, the public certainly has a right to know what’s going on when the issue is whether a person who might be a danger to the community should remain at large.

The justices today reject, one by one, the three grounds on which the circuit court had ruled as it had. The prosecution abandoned the first, an allegation that the pandemic had made summoning jurors problematic. By the time of this hearing, the courts were operating, if not normally be pre-pandemic standards, at least smoothly enough to make this a non-issue. For the second, the possibility of pretrial prejudice, the Supreme Court rules that lesser alternatives, such as extensive voir dire or even a change of venue, were preferable to denying the public’s right to know.

Finally, the circuit court had ruled that some of the subpoenaed documents, relating to previous incidents involving this police officer, had occurred before the time of the events charged in the indictment, and so were not relevant. Justice Kelsey’s riposte is worth quoting here: “This statement may be true, but it is answering the wrong question.” The trial court had held that prior incidents weren’t material to the pending criminal charge. But the Supreme Court rules today that they really-most-sincerely are relevant to whether the defendant should remain at large, especially if they might show him to be a danger to the community.

The ultimate ruling on the newspapers’ appeal is that the Supreme Court directs the unsealing of the sealed documents – it’s too late to allow the reporter into the hearing – and those documents will become public as soon as the SCV Clerk issues the mandate in this appeal. That should happen sometime in November, unless there’s a petition for rehearing.

This was a consolidated case, as the City filed an appeal of the circuit court’s ruling that it had no standing to participate in the decision whether to unseal the subpoenaed records. The City wasn’t the prosecuting authority – that was the Commonwealth – so the judge reasoned that it had no say in the proceedings. Not true, the Supreme Court rules today. The rules specifically permit a person or entity who produces records in response to a subpoena to try to prevent their disclosure.

The City thus wins the threshold issue, but that’s about it. On the merits – which the justices go ahead and reach, since the issues are purely legal – the Supreme Court holds that each of the lodged objections is insufficient to prevent disclosure. One of those arguments seemed quite promising: Internal affairs investigations, including interviews with the police officer involved, are traditionally regarded as confidential. That’s because officers must participate in the interviews, upon pain of losing their jobs. SCOTUS caselaw holds that that confidentiality can trump a judicial subpoena, because otherwise the officer would be compelled to give self-incriminating testimony.

But the court holds today that the City is the wrong party to assert this claim. The privilege belongs to the officer making the statements to internal-affairs investigators. The officer’s lawyer didn’t make an appearance in the appellate court, and the City can’t step into his shoes to raise this objection by proxy.

In a coda to these holdings, the justices note that while the case was pending in the Supreme Court, the circuit court went ahead and tried the officer on the murder charge. The jury found him guilty on at least one charge, but he hasn’t been sentenced yet. Today’s opinion directs the circuit court to go ahead and sentence him without waiting for the appellate mandate here. It specifically orders that any appeal of that conviction will run from the sentencing date, unaffected by this ancillary proceeding.


I promised you a FOIA decision. In Hawkins v. Town of South Hill, the justices interpret some relatively new language in the Virginia Freedom of Information Act.

This is the first opinion of the court written by the newest justice, Thomas Mann. In my humble opinion, he begins on a communicative high note. Here’s the first line of his opinion: “Our government belongs to the people it serves.” Well said. He goes on to note that information in the possession of the government likewise belongs to the people, unless a FOIA exemption applies. This appeal is about one such exemption.

The appellant here, Hawkins, is a Richmond attorney who sought certain documents from the Town, relating to what today’s opinion calls “employment disputes.” The Town responded, furnishing some documents and withholding others under a claim of exemption. Perceiving the responses as insufficient, the lawyer filed a mandamus petition seeking an order of disclosure, plus civil penalties and attorney’s fees.

The parties narrowed the dispute to seven documents. The circuit court reviewed the seven in camera before giving the lawyer a partial win in a letter opinion. It ruled that two of the documents could be disclosed, but the other five were exempt. Finding that the Town had won more issues than it lost, the court directed counsel for the Town to prepare a final order for endorsement and entry.

That counsel did so, but eventually had to report to the court that the petitioning lawyer “wants to address the issue of attorney’s fees.” The Town eventually moved the court to enter the order, and the petitioning lawyer didn’t oppose that motion. He instead endorsed the order, noting an objection to the failure to award fees.

The lawyer got a writ, and the Supreme Court received oral argument on the merits a scant five weeks ago. Today the justices reverse in part and remand. Noting that the trial judge didn’t have the benefit of an appellate interpretation of language inserted into FOIA in 2016, the opinion meticulously traces what FOIA means when it now exempts “personnel information concerning identifiable individuals.”

The current version of FOIA defines certain terms, but it leaves others maddeningly vague. The Supreme Court’s task here is to fill in the gaps in the statutory language. After explicating the words and the context, here’s what the court comes up with:

… we hold that “personnel information” for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.

This is a privacy-based interpretation that the court intends will enable courts to balance an individual government employee’s expectation of privacy against the public’s right to know. The justices remand the case for the circuit court to evaluate the FOIA request under this new guidance.

That leaves the issue of attorney’s fees. The Supreme Court ducks – well, let’s say that it declines to reach this issue by holding that the lawyer didn’t preserve it below. If you read my procedural recitation carefully, you might find that surprising: Emmert said a while back that the lawyer objected in his endorsement to the failure to award fees.

Today we get an important refinement in preservation jurisprudence. Yes, the lawyer included an objection in his endorsement; but he had never affirmatively asked the circuit court to award fees. In effect, the circuit court never ruled on a fee request because the lawyer never presented such a request (except in his original pleading). The letter opinion didn’t mention fees, and that issue only arose when the Town’s counsel mentioned that the lawyer wanted to address it. But he never did that, so there’s no real, live ruling for the court to review.

Can he make a fee request on remand? Maybe; I’m not sure. But I spotted an underlying issue that the court mentions obliquely today, in footnote 4: “Given our ruling today, we do not address the issue as to whether an attorney, who proceeds pro se, may be granted attorney fees.”

I don’t like to prejudge issues that may never arise, and even if they do, might never find their way into Virginia Reports. But I offer this tidbit of insight from SCOTUS, in a slightly different but highly analogous context:

Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that “a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators.

That’s from Kay v. Ehrler, 499 U. S. 432, 437-38 (1991), where Those Other Robes ruled that a pro se litigant – even one who’s a lawyer – can’t get an award of attorney’s fees under 42 U.S.C. §1988 when he represents himself in civil-rights litigation. I humbly forecast a similar outcome here, if this issue resurfaces.



This is a new heading in the VANA annals. I’ve never previously addressed the requirements for auctions, but today, Justice Powell does just that in Williams v. Janson.

The subject here is a voluntary auction by two owners of 31 acres in Mecklenburg County. They advertised the property for sale at auction on a date certain. On that date, a prospective buyer attended, interested in the property. He decided to record the proceedings.

One of the owners served as auctioneer. Before the bidding began, he made a public announcement:

All right, so we’re going to auction this off. The high bidder today will be required to pay a five thousand dollar deposit due today or at the time of the commencement of the sale. It has to be in cash and certified funds. They have fourteen days to complete the sale. There’s an agreement to be signed at the end of the sale.

The bidding started at $30,000. The auctioneer tried to get someone to bid $40,000, but silence ensued until our prospective buyer volunteered, “I’ll do thirty-five.” The auctioneer recognized this as a bid of $35,000, and continued to ask for higher bids. Crickets. Finally, the auctioneer, building the tension, cried out, “Going once, going twice, I guess we’re going to have to no sell it.” He then declared that the auction was canceled.

Wait, what? That, at least, was the prospective buyer’s reaction. He had just made a bid and the auctioneer had recognized it. No one had outbid him. When the owners wouldn’t budge, he went to court, seeking specific performance.

The circuit judge agreed with the prospective buyer that the auctioneer was obligated to award him a contract at $35,000. The court directed the owners to convey fee-simple title to him for that price.

On appeal, we learn the difference between an auction with reserve and an auction without one. The latter is usually known as an absolute auction. With a reserve, the seller has the right to decline to sell if the bids don’t reach a price that he or she finds acceptable. In absolute auctions, the property can’t be withdrawn as soon as the first bid arrives.

I learned today that the default rule is that an auction is with reserve unless its terms specify an absolute auction. Here, neither the advance notice of sale nor the auctioneer’s preliminary instructions indicated an intent to waive a reserve. That means that the circuit court erroneously ordered the sale, so the Supreme Court reverses and enters final judgment. The sellers get to keep the property, maybe to try again at another auction.


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The court also hands down an unpublished order today, in Dagvadorj v. Aljabi. It’s a will contest in which the testator decided to save himself some money. Instead of hiring a lawyer to prepare his will, he got a form off the Internet and filled it out himself.

You already know how this is going to turn out, right? The final version of the will contains inconsistent provisions. At one place, the testator appears to cut his wife and daughters out of the will; at another, he’s pretty clearly contemplating distributions to them. Alas, he’s no longer able to settle the ambiguity, having died three years ago. A circuit court judge was tasked to figure it all out.

The trial judge read the will and ruled that it unambiguously intended to cut the wife and children out. Today, the Supreme Court unanimously reverses, finding the language inherently ambiguous. Instead of ruling today who gets what, the justices remand the case for the circuit court to resolve the ambiguities.


The release of this unpub presents a remarkable situation. The Daily Press appeals were the last undecided cases argued in June. Hawkins, Williams, and the unpub were three of the four remaining undecided cases from the September session. That means that there is but one undecided appeal on which the court has received oral argument. If The Robes hand that one down next week, the court will have done something that I’ve never seen before in my 17+ years of covering this court: decide all of its argued cases before it convenes for the next argument docket. That may not mean much to casual observers, but a clearance rate of 100% is remarkable as far as I’m concerned.

Now that I’ve got your hopes up, it’s time to deflate them. The last remaining appeal is Appalachian Voices v. State Corporation Commission. I have zero, nada, no inside information on when this will come down, but SCC appeals tend to be complex, and complexity tends to mean longer delays before we see a ruling. One can dream, but I wouldn’t wager any actual American money that we’ll get the opinion next week. The next session, by the way, convenes Tuesday, November 1.