[Posted October 9, 2007] Today, the Court of Appeals of Virginia hands down three published opinions, affirming two convictions rising out of traffic offenses and one administrative law ruling.

Administrative law

Northern Virginia Community Hospital wants to build a new facility. You’d think that wouldn’t generate an appellate opinion; after all, who would object to the construction of more health care facilities? Another hospital; that’s who. When Loudoun Hospital Center simultaneously applied to build a smaller facility, the State Health Commissioner approved the first request, but denied the competitor’s application. At that point, the legal fussin’ was on, in a case that today becomes Loudoun Hospital Center v. Stroube.

NoVa Community first applied in 2002 for a certificate of public need to build two facilities. After hearings on the application, the Commissioner decided that no public need had been demonstrated, so he denied the application. But the hospital company decided to learn from the loss instead of just moping over it. It filed a new, scaled-down application in 2003, roughly at the same time as Loudoun’s application, so the two applications were considered at the same time. A hearing officer considered the two, and decided to grant NoVa Community’s, but to deny Loudoun’s. The Commissioner agreed, and Loudoun appealed under the APA to circuit court.

Here Loudoun won an interim victory, when it produced some e-mails and evidence of other official contacts (generally involving the Commissioner and third parties) that were not included in the original record. Since this is a public issue, those matters have to be accessible under FOIA. The circuit court remanded so the record could be supplemented, and so Loudoun could raise all the cain it wanted to in a new hearing.

After that hearing, the same hearing officer concluded than none of the e-mails or other contacts (which involved the Commissioner, not the hearing officer) had influenced him in any way. He made the same recommendations, and again the Commissioner approved them. This time, an appeal to the circuit court bore no fruit at all for Loudoun, as the Commissioner’s ruling was affirmed. Today’s opinion addresses that judgment.

Time for a slight digression here. Judicial decisions, particularly the published ones, are the tools of a lawyer’s trade. When a particularly helpful one comes down, and it addresses a number of significant procedural issues, sensible lawyers snap it up and read it for insight into how they can improve their practice. Each of these cases presents one or more lessons in basic technical proficiency. This decision presents several, which I will list here.

Collateral estoppel. The trial court had applied arguably the wrong legal analysis in overruling Loudoun’s estoppel argument (Loudoun had contended that the first denial collaterally estopped NoVa Community from presenting the same proposal again). Nevertheless, the CAV holds that, at a minimum, the decision was right for the wrong reason. It finds that the second application materially differed from the first one, so that the second prong of the test for collateral estoppel (whether the identical factual issue was litigated in the first case) is not met. One important feature of this discussion is the court’s adoption of a de novo standard of review for whether collateral estoppel applies. The court also notes that if Loudoun were right, then no one would ever be able to take constructive criticism from an initial administrative defeat. NoVa Community did just that when it addressed and corrected the matters on which the Commissioner had found its first application wanting.

Ex parte communications. When NoVa Community filed its second application, Loudoun alleged, everybody seemingly wanted to get in on the decisionmaking process. In this case, it was a pretty substantial Everybody, including former Governor Warner and several legislators. Loudoun argued that the meddling by those folks, who had no right to throw their political weight around, had tainted the whole administrative process. But it’s one thing to assert that such meddling existed; it’s entirely another matter to prove that it actually “influenced, or could have influenced, the Commissioner’s decision.” The court adopts a test formulated in another case, holding that a case like this will not be reversed absent a “clear showing of prejudice” or unless it’s “plain that the agency’s conclusions were determined by the improper evidence.” With that high standard, it will come as no surprise that the court finds that Loudoun failed to make a record sufficient to show such influence.

[Second digression: The opinion notes that Loudoun likens these allegations to “the crime of embracery,” which it defines as “an attempt to corruptly influence a juror.” Candidly, despite a quarter century in the practice of law, I had never heard of that term before. If you had asked me to define it yesterday, I might have guessed that it was the product of a Victorian-era General Assembly’s effort to prohibit public displays of affection: “Your honor, I saw this couple commit flagrant embracery on a park bench, in broad daylight.”]

“Should.” Many experienced lawyers have seen caselaw that holds, in certain circumstances, that may actually means shall, or vice versa, converting a mandatory duty into a discretionary one. An administrative regulation provides that no certificate of public need in a case like this “should be approved unless:” and then goes on to list three factors, listed in the conjunctive, one of which NoVa Community’s plan clearly didn’t meet. Loudoun pounced on that, and argued that this plan accordingly had to be rejected. However, today, the court rules that should means just that – should. It grants discretion to the hearing officer and the Commissioner to decide the matter, as long as they consider the three factors. There is no question that the Commissioner did, in fact, consider each of these factors, plus a whole lot more, so the court finds that the decision was an appropriate exercise of his discretion.

Administrative discovery. Unsatisfied with the state of the record, Loudoun asked the trial court to permit it to depose several persons, including the Commissioner, the hearing officer, and others. Generally, discovery isn’t available in administrative law cases under Rule 2A:5. The only exception is that the trial court may (and this is going to sound familiar: “in its discretion”) permit depositions to be taken. The problem here seems to be that Loudoun waited until it got back to the trial court before raising this objection. From my reading of today’s opinion, it looks as though the Court of Appeals wants litigants to take those depositions at the hearing officer stage, or at least before the Commissioner. It rules that Loudoun made a “tactical decision” not to include any deposition evidence at the hearing stage, and cannot raise that issue later, on appeal. (Keep in mind that “on appeal” in this context includes proceedings in the trial court, which sits in administrative law matters as an initial appellate court, reviewing a record.)

Here’s one last warning before you read this opinion yourself. Get ready for a vertigo-inducing bout of alphabet-itis. There are so many acronyms here that you will spend lots of time going back to earlier pages to see what a given term means. I offer the following plaintive (and tongue-in-cheek) entreaty to Senior Judge Coleman, the author of today’s opinion: Please, please use more descriptive phrases and fewer acronyms! I have a major headache now . . .

Criminal law

One of the fundamental premises of American law is that an accused has a right to counsel at every meaningful stage of a criminal case. Today, the court decides whether the taking of a breath test in a DUI prosecution is one of those stages. The opinion is Brothers v. Commonwealth.

Brothers evidently had begun accumulating frequent flyer miles in traffic court. One consequence of that is that you get to talk to a lot of lawyers, and one of those gave Brothers something like the following sage advice: “If you ever get arrested on suspicion of DUI again – and let’s both assume that you will, given your history – here’s what you need to do. First, do NOT tell the officer that you refuse to take the breath test. Tell him you will take the test, but you want your lawyer to be present, to make sure everything is done according to Hoyle.”

Now, let’s think about this, shall we? Since very few intoxicated drivers are likely to bring their lawyers on their drinking binges with them, this procedure, if the officer is dumb enough to accede to it, will delay matters for the few hours that the lawyer will take to get out of bed, get dressed in his three-piece suit, head to his office, do a little legal research on breath tests, send a couple of e-mails to his stockbroker, then climb in his Lexus and drive (well below the speed limit) to the police station. By that time, the defendant is likely to be stone cold sober, and will fear no breath test known to technology.

In this case, it was worse; Brothers, who was arrested in Arlington County, asked the gendarmes to call his lawyer in Virginia Beach, nearly 200 miles away. Well, this cop wasn’t havin’ any of that. When Brothers did as he was trained to do, the unimpressed officer took him to a magistrate for a refusal summons. This, it turns out, was a multiple-offense charge for Brothers, who had seen the hammer fall on refusal charges before. That made it a criminal offense (a first offense of refusal is a civil matter, but subsequent offenses are criminal).

Brothers asked for a jury trial, but the judge decided to do the next best thing to directing a verdict: He ruled that Brothers couldn’t present his planned defense. The court instructed the jury that there was no such thing as a conditional consent to take a breath test, and that demanding a lawyer doesn’t make a refusal reasonable. The jury predictably saw things the prosecution’s way.

On appeal, The Court of Appeals notes that the Supreme Court has decided a parallel issue under a previous version of the implied consent statute. That court had held in 1969 that you don’t have the right to consult an attorney before taking a blood test, so the judge instructed the jury correctly. But Brothers had one other argument (which may have been why the Court of Appeals granted a writ in this case). He contended that the 1969 case had been decided before the General Assembly made subsequent offenses punishable under the criminal law, instead of civilly. (The 1969 case had specifically listed the civil nature of refusal sanctions as a reason why the defendant had no right to consult counsel.) In turning that argument aside, the Court of Appeals today notes that there was an independent ground listed by the Supreme Court in 1969. Specifically, it found that allowing a lawyer to approve of or reject the process would “frustrate the intent and object of the [implied consent] law and perpetuate the evil it seeks to correct.” And that consideration stands the test of time, and survives the amendment to the statute.

It occurred to me for a fleeting moment that this doctrine could spur a cottage industry at bars, the “Rent-a-Lawyer” who would drive behind a patron from the bar to his home, to make sure nothing bad (like being arrested) happened to him. But here in Virginia Beach where I live, we don’t have enough lawyers to go around for an idea like that, given the large number of bars around here. Perhaps I just don’t have enough entrepreneurial spirit.

The second criminal case of the day involves an offshoot of one issue from Brothers. In Depsky v. Commonwealth, the question presented is whether the sixty-day administrative license suspension imposed upon drivers charged with DUI, second offense, is in fact a criminal sanction, so that it triggers the bar on double jeopardy.

The autumn and winter of 2005-06 must have been a dark time for Ms. Depsky. She got herself arrested for DUI in Clarke County in November, and then again in Chesterfield County in February. Upon the second arrest, she blew a .16 on the Breathalyzer. As required by current Virginia law, her license was suspended for 60 days, even though she had not yet been convicted of the Clarke County charge. In fact, when that case came on for trial, she was found guilty only of reckless driving. That got her license back, but not before she had suffered for six weeks without it.

When the Chesterfield case came up for trial, her lawyer interposed a double jeopardy plea, asserting that the administrative suspension was in fact a criminal sanction. This argument seemed to fly in the face of a 1999 CAV opinion, holding that the seven-day suspension imposed upon those charged with first-offense DUI is civil, not criminal. But the lawyer argued that the whopping sixty-day period transformed the suspension from civil into criminal.

In affirming today, the Court of Appeals finds that the analysis of this provision is almost exactly the same as the previous analysis in 1999. The US Supreme Court has set for a test for determining whether a given sanction is civil or criminal, and applying this test to Depsky’s facts, it rules that we’re still in the realm of the civil. One key factor that produces this result is the fact that, contrary to what you might think, Virginia’s administrative suspension is still much lighter than those imposed in the majority of other states (at lest 90 days seems to be the norm). The legislature clearly intended this to be a civil sanction, and it takes “only the clearest proof” to countermand that.