ANALYSIS OF RECENT APPELLATE DEVELOPMENTS
The appellate courts have been relatively quiet of late. The Supreme Court is between sessions, and has not issued a writ since mid-September; the only published opinion from the Fourth Circuit in the past two weeks is an order, issued yesterday, denying rehearing in a defamation case. Only the Court of Appeals has been busy, issuing several interesting opinions over the past eight days. Here are summaries of those cases, followed by a brief note on the Fourth Circuit case.
COURT OF APPEALS OF VIRGINIA
Mattox v. Commonwealth – Mattox was a juvenile with an attitude. His attitude was that he could operate his ATV at and around a Pittsylvania County marina in any manner he chose, including recklessly. A local game warden, at the marina to conduct boat patrols, was not so laissez faire, and undertook to stop Mattox before he injured someone in the large crowd nearby. With an unmistakable single-digit gesture of defiance, Mattox sped off.
Later that day, the warden encountered Mattox again, and again ordered him to stop. Mattox initially slowed his ATV, then suddenly accelerated toward the warden, running him down and seriously injuring him before speeding off.
In the inevitable criminal prosecution for, among other things, felony hit-and-run, the Commonwealth asked that Mattox be committed as a “serious offender” under Code §16.1-285.1(A). That section was amended in 2001, and this decision is the first to consider the new statutory provisions.
Mattox protested this treatment in the trial court, offering testimony of his peaceful, law-abiding nature. The trial court wasn’t having any of that; it found the statutory predicate that “the needs of the juvenile and the interests of the community would clearly best be served by commitment.” In the opinion issued October 11, the Court of Appeals agrees, and affirms the commitment order.
A few appellate decisions are made on the law; the overwhelming majority of them, including this one, are made on the facts. It is clear to this writer that both courts regarded Mattox’s protestations that he was not a “serious offender” to be hollow in light of his demonstrated disdain for authority and for human life. One cannot run over a law enforcement officer in the Commonwealth of Virginia and expect to be treated favorably in the courts. This is not a surprising ruling at all, and illustrates more about the folly of Mattox’s actions, in comparison with his subsequent protestations, than it does about the state of the law.
Sharma v. Sharma – This decision illustrates one of the grave hazards of appellate practice, including appeals of juvenile court decisions to the circuit court. Here, the juvenile court awarded to the wife, among other things, an arrearage judgment of roughly $700 for child support, and an award of attorney’s fees. The husband appealed to the circuit court.
When the juvenile court clerk filled out the appeal paperwork, she inserted in the line for the appeal bond, “0,” indicating that no bond was required. Actually, it was; Code §16.1-296(H) generally provides exemptions for appeal bonds in these instances, but specifically requires one for an appeal of an arrearage award. The clerk was wrong.
Unfortunately for the husband, he relied on the clerk, and did not insist on posting a bond as required by the statute. That trust resulted in a dismissal of the case by the circuit court for lack of jurisdiction. On October 11, the Court of Appeals agreed.
We as attorneys have come to rely on the clerks of the several courts to do their jobs flawlessly, and they usually do that. But in the unusual situation, it is the clients, and their lawyers, not the clerks, who will pay the price. (If you think that’s unfair, I may gently suggest some introspection on the topic of personal responsibility; but that’s beyond the scope of this essay.) The lesson here is that you, as the attorney, are responsible for knowing the legal requirements of all aspects of your cases. If this means that you have to look behind clerical errors that run in your favor, so be it; not doing so here cost this lawyer’s client his right to appeal. Fortunately for him, the award was only $700 and not a significant multiple of that. In all, that’s a relatively inexpensive education.
Oliver v. Commonwealth – In another unsurprising ruling, the Court of Appeals finds that the Uniform Code of Military Justice is a “law of the United States” for the purpose of finding a prior offense in a charge of third-offense petit larceny. The decision was handed down on October 18.
Yesterday’s decision notes that the court had previously ruled in cases involving priors under the UCMJ, but the court had always assumed, without specifically discussing the issue, that the military code did constitute a law of the United States. Oliver argued, in the trial court and on appeal, that the military code deprives defendants of fundamental rights afforded in civilian criminal trials, and therefore should not be used to enhance sentencing in this way.
The appellate court disposes of this argument in two ways. First, it notes that while a defendant is free to make a collateral attack on the validity of a prior conviction, Oliver did not do so in the trial court, and therefore could not do so here. Second, the court lists in a footnote several ways in which military tribunals have incorporated several of the constitutional protections afforded to civilian defendants. Oliver did not argue that any specific right of his had been violated; he merely contended that if the rights afforded were not substantially the same, then it was improper to regard a UCMJ conviction as a prior offense.
In rejecting this argument, the court declines to speculate on ways in which the UCMJ might deny a right in a hypothetical situation (since Oliver pointed to no actual denial). In doing so, the court adopts the approach used by the Supreme Court in April of this year, when it considered a challenge by convicted sniper John Muhammad to the Commonwealth’s anti-terrorist statute. Muhammad had argued that the statute was unconstitutional because it arguably criminalized legitimate behavior on its fringes. The Supreme Court refused to consider amorphous fringes when Muhammad’s behavior was squarely within the center of the statute’s reach. Yesterday’s ruling by the Court of Appeals implicitly adopts this line of reasoning.
Lassiter v. Commonwealth – We have all heard stories of difficult landlord-tenant situations, and this is one of them. When a dispute arose over rent, the landlord filed an unlawful detainer suit, and won. He and the tenant reached an agreement for the tenant to move out by August 15, 2003, with a moveout inspection of the premises set for the next day.
On August 16, the landlord and a security guard arrived for the inspection, but the tenant was nowhere to be found. The property was vacant, except for the usual moveout reside of trash and discarded items. The landlord changed the locks, gave the key to the guard, and left.
When the landlord returned home, he learned that the troubled relationship, which he had thought was over, still raged. The tenant had returned to the premises and found the locks changed; he thereupon broke into the property and called the landlord, leaving him threatening messages on his answering machine. That got the police involved.
The tenant called the landlord again late that night, while the police officer was interviewing the landlord for criminal charges. The tenant even spoke with the officer, and gave him a dose of verbal abuse before the officer hung up on him.
When the landlord returned to the property the next morning, he found it ransacked, with several significant items of damage that had not been present on the previous afternoon at the inspection. That led to the charges of statutory burglary, which form the basis of this appeal.
The issue here is whether a tenant can be convicted of breaking into a dwelling of which he is the tenant, at any time before the landlord obtains a writ of possession. The Court of Appeals answers this question in the affirmative.
In unlawful detainer proceedings, the landlord ordinarily gets an order of possession, which is merely judgment in his favor as to the right to possession. If the tenant refuses to leave, the court can then issue a writ, authorizing the landlord to recover possession. That writ is normally executed by a law enforcement officer, to prevent a breach of the peace.
Here, the landlord and tenant reached an agreement for turnover, meaning that no writ was necessary. The landlord did in fact take over possession by the act of entering without a breach of the peace, and changing the locks. At that point, the tenant had no more right to enter the premises than, well, . . . a burglar.
Cabaniss v. Cabaniss – In this appeal, the court analyzes a challenge to Virginia’s long-arm jurisdiction statute in the context of a divorce proceeding. Wife was a Virginia resident; husband lived in the West Indies. Husband’s only challenge to the divorce proceeding was in a special appearance to contest the court’s in personam jurisdiction over him.
In a decision handed down on October 18, the Court of Appeals affirms the trial court’s finding that such jurisdiction existed, based on the domicile allegations in the bill of complaint. The wife asserted that the couple had last cohabited in Lexington, Virginia, and that he had called her in 2002 to say that the marriage was over.
The court analyzes this argument and finds that the jurisdictional basis was adequately pleaded. But the most important aspect of this opinion is the court’s finding that a challenge to subject matter jurisdiction, raised in a special plea, should be analyzed as a demurrer. The court’s discussion of this point takes up more than a quarter of the entire opinion, and is worth reading for its effect on pleadings in other types of cases. As a practical matter, this finding was dispositive in this case, since this standard of evaluation gave the wife’s pleading the benefit of a liberal view of facts and inferences in her favor. It is one of those inferences that the court relies upon to decide this case in favor of the wife.
Hatfill v. New York Times Co. – The Fourth Circuit announced on Tuesday, October 18, that the court had denied rehearng en banc in this case, which had been decided by a panel of the court in July. Judge Wilkinson offers a spirited dissent from the denial of rehearing; that opinion is worth reading for his views on First Amendment rights in the media.
The full court split evenly on the rehearing petition, so the original panel opinion stands as the court’s official action on the case. If you suspect an impending petition for certiorari, then you and I are on the same page; if a case can inspire an even division on an appellate court, there is a good chance that (1) the losing litigant will be emboldened to appeal, and (2) the Supreme Court will take notice of the 6-6 split.