[Posted October 31, 2014] I’ve had too long a hiatus from the keyboard, due to a hectic schedule of briefing, oral arguments, and other commitments. The Supreme Court gives me a gentle nudge this morning with a batch of 15 new published opinions and three published orders.

Today marks the final merits day in the center chair for Chief Justice Cynthia Kinser, who will retire from the court effective at the end of the year. She may continue to assist the court as a senior justice, but I’ll miss her gracious manner and her piercing questions. I’ll especially miss when she sent those questions to my adversary.

Criminal law
Today’s bounty includes a larger-than-usual batch of criminal appeals – six published opinions and one habeas-corpus ruling. We’ll start with the shorter ones; that will allow me to get more cases analyzed as quickly as possible today.

Statutory burglary is the felony of breaking and entering a dwelling house with the intent to commit larceny. It’s a felony because of the inherent danger – to both victim and perpetrator – of entering someone’s home and encountering the occupants. The decisive issue in Grimes v. Commonwealth is whether a crawlspace under a house is part of the dwelling, so as to warrant the enhanced punishment.

Grimes was seen coming out of the crawl space of a Newport News home, carrying purloined copper pipe and some cutting tools. As for the larceny part, it looks like the gendarmes have him red-handed. But the prosecutor charged him with statutory burglary. Grimes responded that the crawlspace wasn’t part of the dwelling house; no humans could live there. This argument has an air of plausibility, when you consider the purpose behind the statute; after all, you aren’t likely to encounter a homeowner in a bathrobe while you’re under the house, stealing his piping.

The trial court disagreed, finding the crawlspace to be a part of the house, and the Court of Appeals agreed. Today the Supreme Court makes it unanimous, finding that since the crawlspace was enclosed within the exterior walls of the home, it was a part of the home. The fact that it isn’t designed for humans to live there is irrelevant to the analysis. The court turns to caselaw from other states to reach this conclusion, which is apparently an issue of first impression here in Virginia.

Brown v. Commonwealth involves a Sixth Amendment claim. Brown received a court-appointed attorney for his drug-distribution trial. The day before trial, his lawyer told him that she had just accepted other employment and couldn’t continue to represent him past the guilt phase, in the event he was convicted. She offered to have another lawyer handle the sentencing in that event, but Brown wanted to have one lawyer handle the entire case.

When the case was called for trial the next morning, the lawyer conveyed Brown’s request for a continuance, so the second lawyer could handle the entire proceeding. The court noted that the first lawyer was competent and ready to handle the guilt phase, so it denied the request. It also denied a subsequent request to secure privately retained counsel, paid for by Brown’s family, to handle the entire case.

The court convicted Brown after a bench trial, and the retained lawyer entered an appearance to handle the sentencing. She renewed the request that one lawyer should have been allowed to handle the entire defense, but again the court refused to budge.

The Sixth Amendment gives every criminal defendant the right to have “the Assistance of Counsel for his defence.” The Supreme Court of the United States has interpreted this to mean not only an attorney, but an attorney of one’s choosing. This last right is constrained in cases of indigency; you can’t insist that the court appoint Clarence Darrow for you. This distinction proves crucial in today’s decision, which affirms the conviction.

The court today notes that Brown remained indigent throughout the proceeding, so he couldn’t invoke the right to choose a specific lawyer:

Brown’s continuance request was deficient, as a matter of law, because, when made, he established no factual predicate for seeking substitution of other counsel in place of his court appointed counsel under the authority of the Sixth Amendment.

Today’s opinion does leave undecided one argument advanced by Brown, who had contended that he had a right to have a single lawyer represent him throughout the proceeding, instead of having to accept a series of lawyers for different phases of the case.

I have a confession to make: I particularly look forward to reading opinions from the always-clear pen of Senior Justice Russell. Today, he delivers: Hawkins v. Commonwealth is a short (7½ pages), compelling explanation of why Hawkins will continue to enjoy free room and board for a while.

Portsmouth Police received information that a specific individual, in whom they were definitely interested, might be found in a pool hall. When they arrived, they discovered Hawkins, dressed exactly as had been described.

When the officers approached Hawkins, he put his hand into his pocket. (A special note to all the criminals who might somehow wander onto this website: Don’t do that.) The lead officer told him to remove his hand from his pocket. When that didn’t work, a drawn handgun told Hawkins to do the same thing. That did the trick; Hawkins’s hand came out, clutching a wad of money, which he promptly threw to the floor.

No, really; he did. As Hawkins was being arrested, the lead officer scooped up the cash and handed it to officers who were inventorying Hawkins’s personal possessions. Hawkins, who was within earshot, denied that the money was his.

It will come as no surprise to my better-heeled readers that the bills – 18 of them in all – were counterfeit. Hawkins was indicted for the felony of possessing more than ten such counterfeit bills with intent to utter.

The prosecution is required to prove three things to get a conviction of this crime. The first is that the defendant possessed the bills. That part was easy; the police officer watched Hawkins draw them out of a pocket and fling them down. The second is knowledge that they’re counterfeit; the third is an intent to utter, or represent them to be legitimate. Now we’re necessarily entering the realm of circumstantial evidence, since few defendants will orally inculpate themselves.

The justices today agree that the circumstances are sufficient to justify an inference that Hawkins knew the bills were fake and intended to utter them. The opinion includes this compelling quote from a Fifth Circuit decision: “Probably the strongest evidence of guilty knowledge is an attempt to abandon counterfeit currency when detection is feared.”

Okay, so that establishes that Hawkins knew the bills were counterfeit. How about an intent to spend them? Couldn’t he just have them in his personal collection of counterfeit money, like those fake million-dollar bills that are used as gags?

Here again, circumstantial evidence is Hawkins’s undoing. Federal caselaw, which is helpful here because the federal statutes on this topic employ the same language, indicate that this intent can be inferred from possession of a large number of bills and bringing them “to a commercial establishment, where cash transactions are likely.” Justice Russell notes that “frequent cash transactions could be anticipated” at a pool hall. I’m going to take his word on this.

The opinion doesn’t end without one more thing of analytical beauty. Since it’s only two paragraphs long, I’ll set it out in full here:

     Hawkins makes the ingenious additional argument that if he brought counterfeit bills to the pool hall to pay gambling debts or to purchase drugs or other contraband, he would have lacked the intent to employ them as true, as contemplated by Code § 18.2-173. This, he contends, is a reasonable hypothesis of innocence that the Commonwealth’s evidence failed to exclude. We do not agree.

     Although federal counterfeiting laws have as their primary purpose the protection of the national currency, state laws on the same subject are aimed primarily at protecting their citizens from thefts and forgeries. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 707, 713 (1834); Brooks v. United States, 76 F.2d 871, 872 (1935). When counterfeit currency is put into circulation, even if originally for an illegal purpose, someone will ultimately be defrauded by its use. United States v. Hagan, 487 F.2d 897, 898 (5th Cir. 1973).

This, it would seem, is the “You can’t convict me of this offense, because I’m a crook” defense.

Here’s a criminal-law pop quiz. Capital murder is a Class 1 felony. By statute, the only available punishments for a conviction are (A) death or (B) life in prison. Is it correct, then, that the mandatory minimum punishment for capital murder is life in prison?

If you said yes, you’ll want to read Jones v. Commonwealth to find out why the justices – all of them – think you’re wrong. This case blends irony and foreboding in a gruesome context.

Jones pleaded guilty in 2001 to capital murder, arising out of the killing of a store clerk during a robbery. He had been 17 years old at the time of the offense. Under the plea agreement, he was sentenced to life in prison without possibility of parole.

Eleven years later, SCOTUS handed down Miller v. Alabama, in which it held that mandatory-life-without-parole sentences for juveniles violate the Eighth Amendment. Such juveniles have to be afforded the right to offer mitigating circumstances. Jones read Miller and decided that his sentencing order was invalid. He filed a pro se motion to vacate his sentence. He alternatively asked the circuit court to suspend his sentence under Code §19.2-303. The trial court refused, but the justices granted a writ.

So, how does the court escape the problem of Miller? By ruling, as I hinted above, that the life-without-parole option in the sentencing statute (§19.2-10) isn’t the equivalent of the Alabama and Arkansas statutes that were in issue in Miller. The distinction? In Virginia, even with capital murder, the judge has the option to suspend a criminal sentence.

To be sure, there are some statutes that contain express mandatory-minimum language. For example, aggravated involuntary manslaughter carries a mandatory minimum sentence of one year. The legislature has even taken care to define the term mandatory minimum. But somehow, that phrase doesn’t appear in the statutes that govern capital-murder proceedings.

The court thus rules that, since a trial judge has the authority to suspend a sentence of life in prison – I bet you didn’t know that fact five minutes ago – Miller doesn’t apply in Virginia. The court finds further support for the premise that suspension of the life sentence is available in the language of the sentencing order, which “specifically stated that he was sentenced to life and no portion of that sentence was suspended.”

I sense that the folks in the Attorney General’s Office will regard this holding as good news and bad news. It’s good because, if this ruling withstands a likely cert petition in Washington, Virginia’s sentencing scheme is invulnerable to the Miller doctrine. But it’s bad news because suddenly, trial judges have been told that they have the authority, despite the specific nature of the enumerated punishments for capital murder, to suspend a life sentence if they so choose. Of course, few judges will be likely to risk legislative wrath at reelection time by doing something so dramatic; but today’s decision holds that a judge can, indeed, do just that.

Sarafin v. Commonwealth represents a return to frustrating territory for me. It’s a DUI prosecution, and for the third time since 2011, the court is called upon to decide whether a defendant can be convicted of that offense because he sat in the driver’s seat with the car’s engine off. In the past two, Nelson v. Commonwealth in 2011 and Enriquez v. Commonwealth in 2013, I’ve expressed disagreement with the court’s affirmance of the convictions.

Today the justices affirm again, but this time, it’s a sharply divided ruling. The reason the court went from 7-0 in the other cases to 4-3 today is the one factual distinction of this case: Sarafin was on private property, not on a highway or other public road.

The facts are otherwise unremarkable. Sarafin snoozed peacefully in the driver’s seat of his car while it sat in his driveway. The key was in the ignition, turned to the accessory position, allowing the radio to play, no doubt as an aid to his slumber. A police officer noticed, tapped on the window to wake him up, and noticed an odor of alcohol when he got out. The rest of the story is fairly standard stuff for a DUI charge.

Today’s majority – Justice Lemons writes the opinion on behalf of Justices Goodwyn, Millette, and Powell – adheres to the previous ruling that one can indeed “operate” a motor vehicle even though the engine is off. The majority finds that the private-property factor doesn’t help Sarafin because the DUI statute doesn’t contain an express requirement that one be on the road; literally, you can be convicted of DUI by driving drunk around your back yard.

But three justices find that there is a highway requirement. In two separate dissents – one from Justice Mims, and one from Justice McClanahan (joined by the chief justice) – we learn that the court’s caselaw has expressly relied upon a definitional statute in the previous decisions. That statute defines an “operator” as “every person who either (i) drives or is in actual physical control of a motor vehicle on a highway or (ii) is exercising control over or steering a vehicle being towed by a motor vehicle.”

This isn’t a towing situation, so the second part of this definition doesn’t apply. But the first part clearly does, and that certainly contains the highway element. If this statute governs, then Sarafin can’t be convicted.

In previous cases, the court had read the DUI statute in conjunction with that very definition. Those cases go back to at least 1964. And inEnriquez, the justices had paid tribute to this nexus: “the statutory definition of ‘operator’ is controlling.” Today’s majority discards that as dicta; the dissents argue that it was the heart of the decision.

Thus, my forlorn sentiment that one shouldn’t be convicted of DUI while the engine is off finds no support, but the court musters only a bare majority for the proposition that one may indeed be convicted of DUI while on private property.

Education law
The court takes up a challenge to an employee suspension in Payne v. Fairfax County School Board. The employee was not a teacher but a food-service manager. She was suspended for three days for allegedly poor performance. Challenging the suspension in a declaratory-judgment action, she contended that she was entitled to a grievance hearing before the school board before she could be suspended.

In making this argument she cited a statute that governs suspensions of school-division employees. Here’s the relevant text; I’ll highlight the key provisions:

Except when a teacher or school employee is suspended because of being charged by summons, warrant, indictment or information with the commission of one of the above-listed criminal offenses, a division superintendent or appropriate central office designee shall not suspend a teacher or school employee for longer than sixty days and shall not suspend a teacher or school employee for a period in excess of five days unless such teacher or school employee is advised in writing of the reason for the suspension and afforded an opportunity for a hearing before the school board in accordance with §§ 22.1-311 and 22.1-313, if applicable. Any teacher or other school employee so suspended shall continue to receive his or her then applicable salary unless and until the school board, after a hearing, determines otherwise.

The employee contended that since she was never given a school-board hearing, the division had no right to withhold her pay, under the last sentence.

The task of unraveling this tangle falls to Justice Mims, and in my view he does a fine job. He notes that the second sentence above refers back to the first one, since it includes the phrase, “so suspended.” The second sentence actually allows an administrative suspension, without a school-board hearing, if the suspension is shorter than five days, so this suspension was permissible. And since it was, the mandatory-pay provision in the second sentence doesn’t help the employee.

There’s a particularly interesting aspect of this ruling, in that it evidently conflicts with an Opinion of the Attorney General from 1983, and a US District Court decision from the same year. The court notes that “Virginia courts do not defer to an interpretation of a statute, such as the one in the Attorney General’s opinion, that contradicts the plain language of the statute.”

The employee also raised a Dillon Rule challenge, claiming that the right to suspend non-teaching employees is not granted by statute. But today’s opinion notes that, despite the foreboding, ominous language of Judge Dillon’s pronouncement, he actually authorizes localities – including school boards – to exercise powers beyond those expressly granted, as long as those powers are “necessarily or fairly implied from expressly granted powers” or “essential and indispensable.” The division is granted the express right to supervise schools, and the justices find that the power to discipline school employees fits within both of those exceptions.

I got to watch the oral argument in Blake v. Commonwealth in September. This is a criminal case, but since the dominant issues relate to schools, I’ll put it in this section.

Blake is the mother of three school-age children. She’s divorced, and she has custody of the children on Wednesday evenings. School officials began to notice a pattern of tardiness for her children; they were repeatedly late to school on many Thursday mornings, by between five and twenty minutes. Citing the Code’s compulsory-attendance statute, a local prosecutor charged her with several counts of a misdemeanor, for failing to “send” her children to school.

The question here is whether the reference to “sending” the children to school imposes an obligation to enroll them in school, or to ensure that they’re there on time. The trial court and the Court of Appeals held that a parent can indeed be prosecuted and convicted when her children arrive late to school.

On the assumption that the parents in my readership have just swallowed hard, I’ll spill the beans here: a divided Supreme Court today reverses and vacates the convictions. Justice Millette writes for the court, noting first that the key word send is ambiguous in this context, since it plausibly can convey either of the two meanings noted above. The majority points out that the statutory scheme provides a “graduated plan for addressing multiple days of nonattendance,” including notices and parent-administrator conferences. This setup would be largely meaningless if a parent could be criminally prosecuted whenever Junior shows up after the bell. The majority concludes that the compulsory-attendance statute requires enrollment, but doesn’t make the parent an insurer of timely arrival.

Justice Powell dissents; she’s joined by Justice Mims. She argues that even if there is an ambiguity, the alternative meaning that is embraced by the majority represents a strained interpretation. She points to other instances where the statutes specifically use the term enroll, and argues that if the compulsory-attendance statute were similarly limited, the legislature could have used that word here, too.

There’s one aspect of the dissent that warrants particular mention here. It’s where Justice Powell responds to the objection that an affirmance would authorize criminal prosecutions for de minimis absence or tardiness. The dissent’s response is that we can rely on prosecutorial discretion to prevent that. After all, how many prosecutors are going to go after a parent when his son is late by three minutes once?

I’m not convinced by this part of the dissent’s argument. I’m all in favor of prosecutorial discretion, but the idea of authorizing a prosecutor to get an indictment for this level of “offense” is quite troublesome to me. In my view, holding that certain de minimis conduct is a crime, but most prosecutors would be unlikely to enforce it, doesn’t justify authorizing prosecutions.

Today’s decision does lead to one problem: what tools are available to school divisions when a student, with his parent’s knowledge and consent, really does abuse the system?

Mechanic’s liens
I know; some of you are already scrolling to another section of the analysis. Mechanic’s liens are seldom the sexiest appellate topics; their primary source of interest is the number of zeroes involved in major construction contracts. Let’s see if I can make the prose sparkle as we explore Synchronized Construction Services v. Prav Lodging, LLC.

This one arises from a construction contract for a hotel in Orange County, one of the most beautiful corners of the Commonwealth. The landowner got a construction loan from a bank, then hired a general contractor to manage the project. The general hired several subcontractors, including Synchronized, to perform construction work.

The project reached substantial completion in early February 2010. For the uninitiated, substantial completion doesn’t equate to completion-completion; there remained a few items on what you’d call a punch list. Five weeks later, on March 11, Synchronized recorded a mechanic’s lien for $200K.

Practitioners in this field know well that mechanic’s liens operate against the property, to secure a debt incurred by the contractor, who doesn’t even own the land. It’s a good thing for Synchronized that such a remedy is available, because on March 12, the day after recordation, the general went out of business.

In order to perfect a lien, the lienor has to file suit within six months. This Synchronized did, filing suit on September 9. The defendants included the owner, the general contractor, and the bank, plus some other subs. The suit sought to enforce the lien and included a breach-of-contract claim against the general.

Synchronized served everyone except the now-defunct general with the suit papers. Meanwhile, the owner and the bank sought and obtained court leave to bond off the lien. Once they posted that, the lien against the realty was released. Instead of having a lien against the land, Synchronized had a claim against the bond.

Construction litigators also know that strict compliance is the rule in lien litigation; if you cut corners, you’re quite likely to lose your lien. In the enforcement action, the bank succeeded in persuading the trial court to dismiss the case because a necessary party, the general, had never been served. The justices granted a writ to review the question whether the posting of the bond meant that the general was no longer a necessary party.

Since I promised sparkling prose, I won’t go into the minute details, but the conclusion is that the general is no longer a necessary party where the owner has posted a bond and released the mechanic’s lien. Justice Millette walks us through the process before concluding that the general may be interested in the outcome of the litigation, but that isn’t the same as having a financial stake in it. And besides, the general missed its own deadline to file its own lien, so any claim by that defunct entity is unenforceable anyway. Since the suit can proceed even without the missing party, the case is remanded for trial. Nice and neat.

Okay, it isn’t quite that simple. Just when you figured it was safe to move on to the next case analysis, Senior Justice Koontz, writing for Justices Mims and Powell, files a dissent in which he argues that in any mechanic’s-lien enforcement suit, you have to name the general; it’s an indispensable party. He notes, intriguingly, that while the general went out of business the day after the lien was recorded, the record is silent as to whether its corporate existence was reinstated during the pendency of the suit.

The dissent points out that this isn’t a situation where the general knew about the suit but ignored it; the lienor never notified the general. And Justice Koontz notes one other important limitation: the owner can never be liable to the sub for more than he owed the general. So how much was that amount? Who knows? And since this litigation is intended to provide a complete adjudication of the financial issues in the project, this aspect of the case cannot be addressed, now that the general is beyond the sub’s reach.

Okay, it’s safe to exhale now, as we’re done with the hard part. The dirt lawyers among us will recognize that while the majority opinion states that this is not an issue of first impression, it’s no worse than first-and-a-half, since the court had never, before today, decided whether a general is a necessary party when the owner bonds off the lien.

You’ve no doubt heard the adage that “hard cases make bad law.” McBride v. Bennett is emphatically a hard case, and in my view, the law it makes is beyond bad. I sometimes disagree with the justices, and I don’t hesitate to say so in this space. But there have been few previous decisions in which I believe the court has made a mistake this profound.

This is a wrongful-death appeal that turns on an issue of public-employee immunity. The defendants are two Norfolk police officers. In the wee hours of a July night, Officer A got a call to transport a prisoner. Moments later, he heard a dispatcher assign Officer B to investigate a domestic-disturbance call in an area of the city that’s just east of downtown. Under Police Department policy, officers responding to domestic calls must have backup. Officer A knew that the designated backup for Officer B was across the city, so he decided to act as backup instead of picking up the prisoner.

In order to get to the site of the disturbance, the officers had to cross the Campostella Bridge, which crosses the Eastern Branch of the Elizabeth River. When I grew up here in Tidewater, the Campostella Bridge was much lower than it is now; the current span is a high arch that allows shipping traffic to pass under without requiring a bridge lift.

The officers drove north across the bridge, accelerating through the ascent to speeds around 60 mph, greatly exceeding the 30-mph limit. Neither officer used emergency lights or a siren. When they crested the top of the bridge, Officer B slowed a bit. Suddenly, he saw a bicyclist in his lane. He brought his car to a stop as the no-doubt startled bicyclist, surprised to see two vehicles approaching at very high speed, veered into another lane. It was there that Officer A’s police car struck and killed the bicyclist.

Norfolk Police Department policy specifies the manner in which its officers are to respond to calls for service:

Emergency vehicle operation is authorized during the following:

1. When the immediate presence of the police is required in order to protect a person from possible death or serious injury.

2. When the telecommunicator dispatches a message with a response Code 1 or 2.

3. When directly authorized by a supervisor.

4. When engaged in a vehicular pursuit.

Since the second entry above specifies response codes, you need to know about those, too. A Code 1 response is the most urgent; officers may exceed the speed limit by up to 15 miles per hour, and must use lights and sirens when driving above the speed limit or otherwise disregarding normal traffic regulations. Code 2 is a step down; officers must use emergency lights, and sirens “as necessary.” The car must obey normal traffic laws, except that it can enter an intersection against a red light after stopping to see that the way is clear. A Code 2 response allows the officer to exceed the speed limit by five mph. Finally, a Code 3 response is non-emergency. The officer has to obey all traffic laws and is not to use lights and siren. The policy concludes, “When no specified response code is assigned to the message, response Code 3 will be used.” The dispatcher who sent Officer B to investigate the disturbance hadn’t assigned a code, so this was a Code 3 call.

Both officers were prosecuted for reckless driving and involuntary manslaughter; each was convicted of reckless driving because of this incident. The bicyclist’s personal rep filed a wrongful-death action against both officers, but a trial judge granted a special plea of immunity after conducting an evidentiary hearing.

That’s the factual and procedural setup for the legal analysis, which implicates the doctrine first espoused in James v. Jane in 1980. Since I’m a former government lawyer, and I represented a lot of cops who got sued, this is familiar turf for me. I litigated immunity issues like this on several occasions, and I grew to know and appreciate the four factors that go into the question of whether a public employee is immune from personal liability in tort:

(1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; and (4) whether the act complained of involved the use of judgment and discretion.

From a practical standpoint, most immunity pleas turn on the fourth factor. In two cases decided the same day in 1991, the Supreme Court explained the difference for claims arising out of driving by government-employee defendants.

In Colby v. Boyden, a police officer who wrecked in an intersection was immune because he was engaged in hot pursuit of a fleeing Bad Guy. In that instance, he had to use plenty of judgment and discretion, making snap decisions that implicated public safety.

But in Heider v. Clemons, a deputy sheriff was denied immunity. He had just served a summons at a residence. He then got back into his car and hit another vehicle as he was backing out of the driveway. He wasn’t immune because what he was doing constituted ordinary driving, not any special use of judgment and discretion.

Ten years ago, the justices refined this distinction in Friday-Spivey v. Collier. That case involved a claim against a fire-truck driver who had hit a car while driving to a non-emergency call. The justices held the driver’s actions to be ministerial, like the deputy in Heider, so there was no immunity. The court found significant the driver’s failure to adhere to the county’s emergency-vehicle policy, and denied immunity based on an objective analysis of his actions.

With that legal background, let’s turn to today’s analysis. Six members of the court vote to affirm the judgment in favor of the officers. Justice Powell writes the majority opinion, and she’s joined by Justices Lemons, Goodwyn, and Millette. She returns to Colby, where the court had ruled that the officer’s actions in a hot-pursuit setting aren’t necessarily constrained by departmental policy, since such an officer “must make prompt, original, and crucial decisions in a highly stressful situation.” I agree with her, and the Colby court, that officers in those situations aren’t held to the same standards of driving care that you and I face in ordinary traffic.

But the majority contains this passage, for which I can find no support in the opinion’s factual summary:

In the present case, [the officers] determined that it was necessary for them to respond to the domestic disturbance call in an emergency manner and proceeded to do so. In so doing, [they] exercised their judgment and discretion.

They did what? Actually, the record shows that when questioned in the ore tenus hearing on the immunity plea, neither officer could give a reason why this was an emergency situation. The dispatcher had regarded it as a nonemergency, and a Police Department policy – one founded in the safety of the public – specified that they were to obey all traffic laws while proceeding to the site of the disturbance call. This emphatically was not a vehicular pursuit (exception 4 in the policy); nor had a supervisor authorized the use of emergency driving (exception 3).

The majority reasons that the officers drove at high speeds, and thus had to exercise judgment and discretion, triggering immunity. This grave error is laid bare by Justice Mims’s dissent:

This reasoning is circular. [The officers] treated a Code 3, nonemergency situation as an emergency, without authorization from their superiors or justification based on specific, objective facts known to them but not their supervisor. They unjustifiably drove their vehicles at excessive, reckless speeds without sirens or emergency lights. Thus, they created the “special risks” that triggered the application of sovereign immunity. This reasoning permits government employees to assume an emergency into existence and respond in a manner that poses “special risks” to themselves and the public while hiding behind the shield of civil immunity.

Folks, he’s right. The majority opinion permits police officers to craft their own immunity, merely by deciding – contrary to orders and without any offered justification – to drive faster, more recklessly, than departmental policy and the law allow. Remember, they were successfully prosecuted for their actions on this night. The majority holds that this irresponsible decision actually clothes the officers with immunity that would not exist otherwise.

I am no police critic; as noted above, I represented enough of them to drive home to me that their job requires them to put their lives on the line to protect my family and me. But when they disobey orders, as here, the law doesn’t shield them. At least, it shouldn’t; but as of today, it does in Virginia.

This has been a painful and difficult essay to craft; perhaps the toughest in the nearly ten years that I’ve published these analyses. I’m mindful that I’m coming down hard on law-enforcement officers, a group I esteem highly. I’m also being highly critical of the justices in the majority, each of whom I like as a person and respect as a jurist. But this message has to be delivered. This decision is worse than just mistaken; it actually makes the Commonwealth, as of today, a more dangerous place in which to live.

A decade ago, the Supreme Court held in Wright v. Kaye that risks-of-surgery discussions between a doctor and patient are inadmissible at trial, where the patient claimed that the doctor performed surgery negligently. As the court held then, consent to surgery is not consent to negligence. In Fiorucci v. Chinn, the court today applies that doctrine to claims of negligence in diagnosis, not merely the performance of the surgery itself.

This is a dental-malpractice case involving extraction of impacted wisdom teeth. The surgery left the patient with permanent numbness in his jaw. His standard-of-care expert opined that the surgery was unnecessary, because the condition in this patient’s case was benign. The trial court granted a motion in limine to exclude the information given to the patient in advance about the risks of the extraction.

The Supreme Court holds that this ruling was correct. This analysis, involving misdiagnosis instead of negligent performance of the operation, is no different from Wright, since the patient hadn’t consented to a misdiagnosis.

In Lasley v. Hylton, a divided court delivers a first-impression ruling, or an unnecessary advisory opinion, depending on whom you listen to. Maybe both. Let’s walk through it together and see.

Here’s the setup: Host decides to have a cookout at his home in Botetourt County. He invites a pal, whom we’ll call Dad; Dad brings his two daughters, age 12 and 8.

Host owns a couple of all-terrain vehicles. The sisters see a boy riding one of them and decide that it looks like fun; the younger one accepted a ride on one of them.

You know how little sisters are; the older one wanted to try it, too. Host said she could operate the smaller of the two vehicles as long as Dad consented. The consent was given, and after substantial preparation, the older girl enjoyed her first experience of piloting a motorized vehicle. It was a wobbly affair, and when bringing the ATV to a halt, she actually bumped into Host. Happily, no damage.

Now the younger girl wants more. After all, she only got the equivalent of a piggyback ride, while her sister actually got to drive one. She asked to be able to try it, and asked Host to give it a spin. Host said, “Okay, but only if you get your Dad’s permission.” Dad said okay, too, and supervised by Host and Dad, the little girl got on the ATV.

That would be the ATV with the prominent warning labels that contain language like this: “NEVER permit children under age 12 to operate this ATV.”

You already know what happens next; the little girl took off and promptly lost control. Fortunately, she was only going between five and ten miles per hour when the vehicle tipped over, so she wasn’t killed or crippled. But she did sustain several injuries, including a broken shoulder.

(In case it isn’t obvious, I have a soft spot in my heart for this little girl, since I raised one myself, and mine was just as fearless as this one was. This injury happened six years ago, and I hope and trust that she’s a happy, healthy 14-year-old by now.)

Enter Mom, who sues Host in her own behalf and on behalf of the little girl. Her initial and first-amended pleading stated claims based on the girl’s status as a social guest on the premises. But she amended her pleading again, and the final version omitted that claim. It relied instead on a general duty, allegedly owed by Host to the world, to refrain from injuring others. In essence, this isn’t a premises-liability claim anymore; it’s based on Host’s failure to supervise the girl.

The case thus presents the first-impression issue that I referred to at the outset of this essay: What duty does Host have to the girl when she’s also being actively supervised by a parent?

A majority of the court answers this question, holding that when the parent is actively supervising the child, the parent’s duty supersedes that of Host. The court rules that if Dad couldn’t see anything wrong with this situation, despite the fact that the risks were open and obvious, it wouldn’t be right to thrust a greater duty upon Host.

Three justices file a concurring opinion. Justice McClanahan, writing for Justices Lemons and Goodwyn, agree with the outcome but prefer not to wade into this first-impression issue because, as they see it, Mom abandoned it when she amended her pleading. Her lawyer expressly disavowed such a claim in oral argument. The dissent thinks there’s no reason for the court to issue what is in effect an advisory opinion on a question that shouldn’t be decided here.

You know what? I think they’re right. To me, this looks like a careful explanation of a difficult legal issue that wasn’t really before the court. Of course, my vote counts for exactly as much here as it does back at home whenever I disagree with The Boss.

There are several “wow” aspects of RGR, LLC v. Settle. The first, and most readily apparent, is its heft; it comes in at 83 pages, comprising a 54-page majority and a 29-page dissent. That makes it easily the lengthiest opinion of the day. (In case you’re wondering, the answer is yes, there have been longer ones. The ultimate Magilla in my ten-year stint here was the 2005 decision in Muhammad v. Commonwealth, the DC-sniper appeal; that one came in at 139 pages.)

The second is the procedural posture. You may recognize the case name, because the court originally decided this appeal in the June session. In that decision, the court by a 5-2 vote ruled that the plaintiff’s decedent was contributorily negligent as a matter of law, so it set aside the judgment in favor of the estate. But the court granted a petition for rehearing, and heard argument again in September.

That’s where we get a little bit of history made today. First, you need to know that the court hands out rehearings with tweezers. You’re facing odds of something like 100-1, so just getting the justices to take another look at a case is a major victory. Second, in the time that I’ve been covering all Supreme Court decisions – going back to January 2005 – I’ve seen several reissued opinions after grants of rehearing, but only one before today where the outcome the second time was different. That previous exception was Ford Motor v. Funkhouser, where a 4-3 win for the family turned into a 4-3 win for the manufacturer. [Update: One of my long-time readers has contacted me to remind me that there have been two other changed-outcome rulings on rehearing: John Crane, Inc. v. Hardick in 2012, and the unpublished order in Nunnenkamp vCopenhaver in 2011. Thanks, George.]

In all of the other rehearing grants, the outcome of the case was the same. Sometimes the voting changed, as with Taboada v. Daly Seven, which went from 7-0 to 5-2; other times, the votes stayed the same but the court removed some troublesome language from the initial opinion. Kondaurov v. Kerdasha and Brandon v. Cox are two examples of that.

Today’s ruling is a stunner in that context. The original ruling went 5-2 in favor of the defendant landowner, but today, two justices change their votes, and the estate gets a 4-3 win. In retrospect, the rehearing grant in Funkhouser was full of portent, since someone from the majority had to vote to grant a second look, and a switch of one vote will necessarily change a 4-3 into a 3-4. But I’ve never seen two justices switch at once before.

The facts of the case are, of course, the same as before, so I won’t replicate my June coverage. Today’s majority – the chief justice, plus Justices Millette, Mims, and Powell – hold that the driver of the doomed truck was not contributorily negligent as a matter of law. That had been the basis for the reversal in June. The majority goes on to tackle what I had thought was the thorniest issue for the estate, that of the existence of a duty.

Instead of using premises-liability analysis, the majority applies a more general duty, one that’s owed to the whole world. I learned it in Latin in law school: Sic utere tuo ut non alienam laedas. That translates to, “Use what you have in such a way that you don’t harm anyone else.” This, the majority holds, is a duty “owed to mankind generally,” not to a specific person.

The court holds that the encroaching lumber piles in the railroad’s right-of-way were actionable because they made the crossing dangerous, and that RGR could have foreseen the risk to truck drivers making the crossing. The court accordingly affirms the verdict.

There’s one ruling on which the justices reverse and remand. The estate had settled with the railroad, receiving half a million dollars. The jury awarded prejudgment interest along with its $2.5 million principal award. The court took that total  — $3.1 million – and reduced it by the railroad’s $500K, leaving a final judgment of a bit over $2.5 million against RGR. The court finds that this approach was incorrect, in that the court should have reduced the primary verdict by the $500K, leaving $2 million, and then calculated the prejudgment interest from that starting point. This makes sense to me; otherwise, RGR has to pay interest on the principal that the railroad had paid.

None of this makes any sense to today’s dissenters. Justice McClanahan writes for Justice Lemons and Goodwyn. She disagrees with the assessment of the duty, arguing that this broad exception swallows whole the previous duty doctrines in premises cases. She also insists, as the court had previously held, that the driver was contributorily negligent as a matter of law, since the driver was unable to safely ascertain, by any means, when it was safe to cross the tracks. The dissent does acknowledge the driver’s predicament, saying that “no precaution was reasonable once [the driver] made the decision to cross.”

When you read today’s opinions, you’ll likely conclude that the dissent has some powerful arguments on this majority’s expansion of a duty. I’m less confident of the merits of the contrib issue, since a check of the site of the collision on Google Earth shows something that isn’t discussed in either opinion: the private road is a dead end, with no alternate means of getting from “civilization” to the site where the driver had to offload his gravel. While theoretically he could have simply quit his job instead of delivering to that site, I doubt that the law would put any worker in that kind of position. The dissent does a good job, though, of describing this scenario in critical terms, concluding that since no safe alternative existed, the majority thinks that no precaution at all was due by the driver.

In the end, I think that we probably have seen a dramatic opening of tort law in this field. I agree that future plaintiffs would be well-advised to plead the duty as it has been described in today’s opinion, in general terms and running to all of mankind. If this doctrine holds, then a plaintiff’s burden has become substantially easier.

Finally, I’d be remiss if I didn’t acknowledge the remarkable tenacity of the estate’s attorneys. The Supreme Court originally denied a writ in this case, then issued one on rehearing. The decision then came down against them by a problematic 5-2 margin, and again on rehearing, they overcame that setback. You don’t have to agree with the outcome today in order to respect their perseverance in the face of repeated adversity.

The court takes up an appeal involving one of the coolest automobiles of all time, a 1960 Thunderbird. The case is Owens v. DRS Automotive Fantomworks, and arises under the Consumer Protection Act.

Owens and his wife traveled to New England one fine day in 2012 and bought the precious vehicle for $11,500. They got such a good price because the car needed a lot of work. They engaged DRS and its principal, named Short, to conduct the extensive restoration. Despite the fact that the work would be complex and would cost tens of thousands of dollars, the parties never got around to signing a written contract.

Short told Owens that the project would probably cost in the neighborhood of $40,000. That was fine with Owens, so DRS went about the process of acquiring parts to do the work. Short told Owens that the best way to get those parts was to buy a “donor car,” from which used parts could be scavenged at a fraction of the cost of new parts. Go for it, Owens told him.

DRS found a suitable donor, a crashed police interceptor that nevertheless had perfectly intact parts that would be needed for the T-bird. Short testified that he agreed with the seller, a Navy lieutenant, to buy the car for $6,000. That was more than what Owens had originally been told that such a car would cost, but in the ensuing weeks, he expressed no concern about the excess. Owens timely made two $15,000 payments to DRS as the work progressed.

All remained peaceful until Mrs. Owens, who’s a lawyer, wrote what I might term a nastygram to DRS, essentially demanding an accounting for the funds that had been expended. I’m not really sure it was a bona fide nastygram, of course; but I’ve seen more than a few of those from lawyers in my day. DRS answered that the car would be available for inspection by anyone the Owenses chose, and offered to deliver both vehicles to them if that was their preference. Instead, the Owenses went to court, suing under the CPA.

At trial, Owens called Short to testify as an adverse witness. He –

Okay, I have to interrupt this discussion to comment on this tactic. In my view, calling your Bad Guy as an adverse witness is fraught with danger. When you put his testimony in your case in chief, you’re bound by so much of it as is clear, reasonable, and uncontradicted. You also have the problem that the defense lawyer now has the opportunity to interrupt your case’s cohesive presentation by cross-examining his own client, getting him to adduce evidence that can cause untold damage to your case. And he gets to do it before he makes a motion to strike!

Perhaps it’s acceptable to do this with an adverse-party deposition under Rule 4:7(a)(3); at least that way you have containment of the subject matter, and your opponent can’t wade in with damaging cross-examination before you rest. But putting a live, unfavorable witness in a position where he can do you harm is too risky for my blood, unless there really is no alternative.

On the theory that the trial lawyer here may have had no alternative, I’ll end this rant now and return you to your regularly scheduled appellate analysis.

Short testified that he had indeed paid the lieutenant $6,000 for the donor car. Given the agreed 25% markup for parts, he charged Owens $7,500. The lieutenant also testified – in the plaintiff’s case in chief! – and confirmed that the sale was for $6,000. He did offer at least one damaging admission: he had originally offered it for sale on Craigslist for $2,000 before selling it to DRS. This was a major part of the basis for the CPA claim; Owens alleged that DRS had inflated the acquisition cost of the interceptor, and had passed that phony price along to Owens.

When Owens rested, the defense moved to strike. The judge noted that the $6K price was uncontested by any positive evidence. In unfortunate phrasing, the judge described the witnesses (Short and the lieutenant”) as “believable” and “credible.” Based on that, he struck the CPA claims, leaving only a breach-of-contract claim for resolution by the jury. At the close of the trial, the jury sided with the defendants.

The primary issue in this appeal is whether the court correctly struck the evidence. You have to admit, any time a judge takes an issue away from a jury by observing that a witness was credible, there are already red flags waving and sirens going off. Judges don’t get to make credibility determinations in jury trials. And yet a bare majority of the Supreme Court votes to affirm anyway.

Senior Justice Russell writes on behalf of Justices Lemons, Millette, and McClanahan. The majority rules that, despite the unfortunate choice of words, the trial court was really only applying the adverse-witness rule, as noted above. The majority also notes that literally all of the documentary evidence, including the bill of sale, was consistent with a $6,000 purchase. The court holds that while the plaintiffs may have generated a suspicion that another price had been paid, there was no actual proof of it. Hence the court affirms the decision to strike the CPA counts.

Justice Powell again dissents, and she’s joined by the chief justice and Justice Mims. She believes that there was circumstantial evidence that the sale price was only $2,000, and whether to accept the $6K testimony was a matter that should have been left to the jury. For example, the lieutenant had asked for $2,000 for the car, and DRS gave him a check in that amount – plus $4,000 that was to be paid in cash. These suspicious circumstances, in the dissent’s view, should have been jury questions.

One last point about this decision, and it will be important for those of you who handle consumer litigation. The court rules that the Consumer Protection Act is broader than the law of fraud. Proof of fraud can, of course, support an action under the CPA, but if fraud is always required, then the act is simply declarative of existing law. The majority opinion includes this important passage: “[W]e agree with the plaintiffs’ argument that the VCPA’s proscription of conduct by suppliers in consumer transactions extends considerably beyond fraud.”

Appellate jurisdiction
My audience includes trial lawyers and appellate lawyers, and I try to be mindful of that duality. Today, in DRHI, Inc. v. Hanback, the justices hand down a published order that will be of major interest to the latter category. It addresses the procedure-geek topic of certification of an appeal, which is the process by which the Supreme Court plucks a case out of the CAV’s inbox. “Here; we’ll take that one.”

The procedural posture is a little complicated, but I’ll try to simplify it. The litigation arose out of a contract for the sale of some land to a developer. When the deal threatened to go south back in 2004, the parties went to court. That resulted in an order directing the sale to go forth, and the buyer to pay the seller the purchase price. It contained another provision that’s the subject of this appeal:

in the event that the [subdivision] plans submitted by DRHI, Inc. permit the construction of six or more individual residences, DRHI, Inc. shall pay to Mr. Hanback $70,000 for the sixth lot and $70,000 for each additional approved lot.

The developer eventually got permission to build several additional lots, in part by purchasing an adjacent parcel. In 2012, eight years after this order, the seller came back to court and asked for a rule to show cause. He contended that the developer owed him for the extra lots, but had refused to pay.

The court conducted an evidentiary hearing and ruled in favor of the long-ago seller. It granted the show-cause petition, found the developer to be in contempt, and entered judgment for $350,000.

You, my experienced readers, will already have spotted the preliminary issue like a law-review student. The Supreme Court has jurisdiction over monetary judgments, while the CAV has jurisdiction over contempt findings. So, if the developer wants to appeal, which court does he go to?

The developer’s lawyer decided that the answer to this question was, “Yes.” He or she figured that the only safe thing to do was to note an appeal in each court, so that’s what got filed. The lawyer even filed separate petitions in each court, with different assignments. (That decision admittedly gave me pause.) Finally, the lawyer filed motions in each court seeking a stay of execution on the judgment.

The Supreme Court actually resolved this last issue first. It ruled that it couldn’t grant the relief because the case belonged in the CAV, so the justices didn’t have the authority to make rulings in the matter.

This order actually came down on the exact day when the developer filed its petition for appeal. Despite the fact that a panel of the court had already ruled that the case belonged downstairs, someone took a look at the petition and liked what he or she saw. Here’s what happened next:

Because it was not immediately apparent from the petitions for appeal whether this case involved a monetary judgment, a civil contempt fine, or both, this Court determined that in the interests of judicial economy it should grant DRHI’s petition for appeal to this Court … and certify the case before the Court of Appeals … pursuant to Code §§ 17.1-409(A) and 409(B) (2).

The court ultimately resolves the issue in favor of the developer, ruling that since the order didn’t contain an amount certain on the date of its entry, the developer could not be in contempt of it. In effect, you’d have to conduct additional proceedings at a later date to determine the exact amount due. This is reminiscent of Shebelskie v. Brown, decided earlier this year, in which a respondent was ordered by a trial court to pay money to the Bad Guy, but there was no specific final amount due; nor was there a specific due date. Indeed, the order cites Shebelskie for that premise.

So where’s the finely honed appellate-geek issue? Let’s go back to the certification process, and review the statute that allows it:

only when, in its discretion, the Supreme Court determines that:

     1. The case is of such imperative public importance as to justify the deviation from normal appellate practice and to require prompt decision in the Supreme Court; or

     2. The docket or the status of the work of the Court of Appeals is such that the sound or expeditious administration of justice requires that jurisdiction over the case be transferred to the Supreme Court.

This statute limits the discretion of the justices to purloin juicy appeals from the CAV’s docket. Because of it, three justices dissent from the decision, arguing that “[w]hile the majority’s conclusion that the circuit court abused its discretion may be correct, the Court has no subject matter jurisdiction to reach it.”

Okay, now we have the attention of the aforementioned appellate geeks. Subject-matter jurisdiction is always an issue, in every legal proceeding, in every court. Most of the time it doesn’t cause a problem, since most legal proceedings are brought in a court that has authority to pass on such actions. But SMJ is a major-league hurdle when it’s a close call; courts aren’t free to finesse it. It cannot be conferred by consent or by waiver, for example.

Justice Mims writes the dissent, and he’s joined by Justices McClanahan and Powell. He notes that the first ground for certification isn’t in issue; no one has asserted that this is a vital legal issue that the court just has to take up. That leaves #2. The majority opinion – sorry, no author is identified today – holds that this allows the SCV to certify a case in the interest of judicial economy, and that looks plausible enough. But let’s read #2 again:

2. The docket or the status of the work of the Court of Appeals is such that the sound or expeditious administration of justice requires that jurisdiction over the case be transferred to the Supreme Court.

This isn’t really a judicial-economy provision; it’s designed to relieve docket congestion in the Court of Appeals. The problem is that no one has suggested that the CAV isn’t moving tidily through its docket; by all accounts, the court does a good job of handling its appeals in a timely, efficient manner.

The majority has a response. It cites the 2007 decision in Petrosinelli v. PETA, where the trial court had found a lawyer in civil contempt and had separately made a monetary award against his law firm. That led to appeals to two different courts: the lawyer correctly appealed to the CAV and the firm correctly appealed to the SCV. In that case, citing judicial economy and the desire to have the obviously related appeals decided together, the justices certified the lawyer’s appeal, and the decisions eventually came down on the same day. The majority accordingly notes that the court is just doing what it’s done before.

And of course the dissent has a riposte to this. It notes that the Supreme Court unquestionably had a proper appeal before it in 2007 (the law firm’s), so there was actually something solid there to which the certification order could metaphorically attach itself. Here, there’s only one ruling. The dissent argues that the lawyer’s hypercautious approach, of filing appeals in both courts, shouldn’t justify the justices in sandpapering a patent deficiency in subject-matter jurisdiction.

This is great stuff for those couple-dozen of us who really love this kind of arcane issue. Of course, the developer’s lawyer didn’t have to file in both courts. Under Code §8.01-677.1, filing in the wrong court just gets you transferred to the correct  one; no harm, no foul. But if he or she had done that, we wouldn’t have this enjoyable jurisdictional scrap, so who am I to complain?