The Supreme Court hands down fourteen published opinions today. It also disposes of three other appeals by unpublished order. There are two criminal appeals, both of which are affirmed; one habeas corpus decision that is decided in favor of the petitioner; one original jurisdiction case involving a Constitutional officer; and eleven civil cases among the published opinions.

Original jurisdiction

The court holds today that the Circuit Court of Floyd County has the authority under the Code of Virginia to appoint an acting Commonwealth’s Attorney when the duly elected prosecutor, who has no assistants, is activated from the reserves and called to military duty overseas. The case is In re Hannett.

The prosecutor received word of his callup in February 2005, effective in May, and notified the Circuit Court judge accordingly. He sought and obtained approval from the Compensation Board to fund a temporary assistant who would handle the day-to-day activities of the office during his deployment. In April, the judge suggested that the prosecutor hire a local attorney to man the position. In early May, he gave the prosecutor three names of local attorneys who would be willing to serve during his absence, allegedly saying that if one of those three were not hired, the court would appoint one of them. The prosecutor took the names, but did not choose one then, or two days later when the judge called to ask.

If you’re sensing a turf war here, you’re right; on May 5, the prosecutor hired a Roanoke attorney as his assistant, to work in his absence. That attorney took the oath of office that day. The judge, undeterred, convened court at 5:25 pm, without notifying the prosecutor, and appointed a local attorney as acting Commonwealth’s Attorney. Upon learning of this, the prosecutor filed a petition for mandamus and/or prohibition in the Supreme Court, invoking that court’s original jurisdiction to determine such cases.

Today the court rules that the circuit court has the power to make the appointment, notwithstanding the hiring of the temporary assistant. It cites two statutes dealing with the vacancy of such offices and the absence of officers, reconciles the two, and holds that the temporary absence statute applies to empower the circuit court to decide the matter. In doing so, the Supreme Court finds that mandamus is the proper remedy; it specifically finds that prohibition is not available, since the court was not exceeding its jurisdiction. Justice Kinser, joined by Justices Koontz and Lemons, dissent, holding that the actions of the court in essence deprive the prosecutor of his office.

One effect of this ruling is the possibility of an uncomfortable working environment; the acting CA now has an assistant she didn’t hire, in the form of a person who took the oath with the expectation of running the place.

Civil procedure

In Williamsburg Peking Corp. v. Kong, the court holds that a plaintiff cannot divest the trial court of jurisdiction to consider a defendant’s motion for sanctions by the expedient of taking a nonsuit. Kong filed a wrongful termination claim against her former employer, and added “numerous discovery requests and motions” over the next 45 days. The employer filed a motion for a protective order. At a hearing on that motion, the court learned that Kong’s pleadings and other papers had been prepared for her by a nonlawyer, and that they were “tainted or poisoned with the unlawful practice of law.”

The employer thereupon filed a motion for sanctions aggregating roughly $26,500. Seeing the writing on the wall, Kong hired an attorney to attend the sanctions hearing. That lawyer, at the outset of the hearing, moved for a nonsuit, which the trial court granted. The court denied the employer’s request to grant the sanctions, finding that it had no jurisdiction once the nonsuit was taken.

But of course you do, the Supreme Court answers today. Rule 1:1 gives trial courts jurisdiction over cases for 21 days after entry of final judgment, and a nonsuit is emphatically a final order. Besides, the court notes, the trial court could have taken up the sanctions motion before signing the order. The case is remanded with instructions for the circuit court to adjudicate the merits of the sanctions motion and then enter the nonsuit order.

This decision may come as a surprise to many attorneys who have come to regard the invocation of the word nonsuit as bringing an immediate halt to all proceedings, sort of an automatic stay on any further action except the entry of the nonsuit order. This ruling emphasizes that a nonsuit is merely one more way of terminating a case, and all the rules that apply to other sorts of orders apply in the nonsuit context as well. On remand, the plaintiff will face potential liability in a matter in which the judge has already mentioned, on the record, that he smelled a rat. One question that may arise is whether defendant will be entitled to claim, as additional sanctions, costs and fees incurred in prosecuting the appeal. If so, that $26,500 will seem small by the time everything is resolved.

The court also decides one default judgment case today, in the consolidated appeals of State Farm v. Remley and Griffin v. Remley. There, the plaintiff filed a personal injury suit arising out of an automobile accident. Defendant was served with suit papers on March 30, 2004; State Farm, the plaintiff’s UIM carrier, was served six days later.

The defendant made several calls to the plaintiff’s attorney’s office over the next several days. Eventually he spoke with a receptionist who explained that these things are usually handled by insurance. Her suggestion to him was, “What you need to do is contact the insurance people if you know them . . .” The defendant knew who his insurer was (not State Farm), but for some reason did not call that insurer. Later, he called the attorney’s office again, and was again told, “the insurance company will take care of it . . .” He finally called State Farm (probably because he saw the company’s name on the suit papers), and upon speaking with that company’s representative, was again told that insurance would handle it.

Then trouble arose: The insurance people didn’t handle it. Neither the defendant nor State Farm appeared within 21 days. Early in May, the plaintiff and his lawyer appeared in Circuit Court and got a default judgment for $150,000. The judgment order contained an error in that it awarded judgment in favor of “plaintiff, Craig Griffin, against the defendant.” (Griffin was actually the defendant; Remley was the plaintiff.) Later that day, State Farm filed grounds of defense, but by then, the horse had already escaped the barn.

Along with the responsive pleading, State Farm propounded some discovery to the plaintiff, and issued several subpoenas duces tecum to health care providers. The plaintiff’s lawyer ignored all of it. Finally, in June, the defense lawyer mailed a motion to compel now-overdue discovery responses. (Inexplicably, he certified that he had attempted to confer with plaintiff’s counsel to avoid the court appearance, as required by Rule 4:12(a)(2), but perhaps he made phone calls that went unreturned.) The same day (now more than 30 days after judgment), plaintiff’s lawyer sent his counterpart a letter notifying him of the now-final judgment and asking for a check. That produced the expected thermonuclear detonation.

State Farm filed a motion for relief from the default judgment under Code §8.01-428. At the hearing the defendant testified about his several attempts to contact plaintiff’s attorney, as well as his conversation with State Farm’s representative. The trial court found that there had been no fraud upon the court, or upon the defendants, for that matter; they simply failed to appear and plead within the time permitted by law. The court did enter an order correcting as a scrivener’s error the reference to Griffin as the plaintiff. Both State Farm and Griffin appealed.

Today the Supreme Court holds that the plaintiff’s attorney’s actions were not fraudulent, in that there is no indication that the defendant relied upon them. The receptionist’s statement that the “insurance people will take care of it” was not a statement designed to prevent him from contacting his insurer to arrange a defense; the court also places special emphasis on the fact that State Farm had given him the same advice. The default judgments are thus affirmed.

The most important lesson in this case is the emphasis the court places on the reliance factor in fraud cases. The defendant, the court notes, did not rely upon the statements by the receptionist, and in fact got the same advice — “contact your insurer” — from State Farm. The Supreme Court agrees with the trial court that this conduct did not defraud the courts or the defendant. It also worth noting, although it is not mentioned in the opinion, that the receptionist’s advice is consistent with Rule 4.3 of the Rules of Professional Conduct, which provides that the only advice you can give an unrepresented adverse party is for him to get himself a lawyer.

A few additional points are worth mentioning here. First, the court clearly was not happy with the plaintiff’s attorney’s actions, implicitly finding that he should have contacted his adversary sooner. But it declined to find fraud, as it had in the far more egregious case of National Airlines v. Shea, 223 Va. 578 (1982). Second, there is a short but useful description of the related doctrines of intrinsic and extrinsic fraud, at pages 9 and 10 of the slip opinion. Finally, the court rejects State Farm’s argument that the correction of the scrivener’s error was sufficient to re-vest the court with jurisdiction over the case, including the ability to decide its motion to set aside the judgment. The court rules that the invocation of jurisdiction pursuant to 8.01-428 is limited to the circumstances contained in the several subsections there; the court does not reacquire general jurisdiction over the case as a whole. Also, in a parenthetical note, the court declines to apply Rule 1:9 to the circumstances of this case, holding that the power to extend filing deadlines does not give the court jurisdiction once it has lost it.


The court decides two easement cases today, including one involving “one of the most popular bike trails in America,” the W&OD Trail running 45 miles from Arlington County to Purcellville. The case, VEPCO v. Northern Virginia Reg. Park Auth., involves the question of whether VEPCO’s easement rights, which it retained when it sold the underlying land to the Authority, are exclusive or nonexclusive. For those of you wondering who on Earth would care about such a minor, esoteric point, read on; there are probably millions of dollars at stake.

The Authority bought the trail from VEPCO in the late 1970’s. The company reserved to itself and its successors the right to run utilities along and across the route. In the following two decades, telecommunications exploded, producing an extraordinarily lucrative opportunity for the owners of land to lease the space to, say, wireless telephone providers. The issue here is who has the right to do that, VEPCO or the Authority. Based on the language in these particular documents (this fact makes the decision of somewhat limited application for future cases), the court finds that the Authority has that right. That’s because it determines, by a well-contested 5-2 vote, that VEPCO obtained only a non-exclusive easement in gross, and that such an easement is not “apportionable,” or divisible for the purposes of leasing or resale. If the easement had been exclusive, then VEPCO would have had the right to apportion its rights and start printing money.

So, does the Authority now have that right? Perhaps, but there is an important caveat: It may do so only upon VEPCO’s written approval, “provided such approval shall not be withheld unreasonably.” So VEPCO has a limited veto power over the Authority’s assignment of rights, but it has to be used judiciously. If you foresee future litigation over such consent, then you and I are on the same page.

The other easement case is Ellis v. Simmons, involving several large parcels in Bedford County that were consolidated and resubdivided by plat in 2002. The surveyor left off the original boundary lines of the old parcels, and that proved to be the dispositive fact in this appeal.

For many years, the original parcels had enjoyed access to a public highway by using a small, apparently unpaved, road across three privately owned tracts. When the large parcel was resubdivided, it continued the use of that road for the newly configured parcels. But in crafting the new tracts, the surveyor included some additional land that was not part of the original gross acreage. Doing this, unfortunately for the subdivider, subjected the servient tenement to an additional burden; Virginia law clearly states that “an increase in the area of the dominant estate increases the burden of an easement upon the servient estate as a matter of law.” And when that happens, the additional burden can be enjoined, and the easement can even be extinguished.

When the surveyor left off the original lot lines, it became impossible for the court to determine the extent to which the size of the dominant tenement had been increased. And since the burden is on the holder of the easement to establish, by clear and convincing evidence, that there has been no increase in the burden of the easement, that resulted in a loss for the subdivider and a reversal of the trial court.

The specific holding of today’s ruing is that “the claimants’ failure to prove the boundaries of the dominant estate is fatal to their claim.” If you are crafting easement language, it always pays to take care to set forth the areas you will be affecting. In litigating such cases, the lawyer needs to be sure he can prove that the proposed new configuration or use does not increase the burden of the easement.


In the latest in a line of cases interpreting covenants not to compete, the court finds overbroad and unenforceable such a covenant arising in the security industry. The employer in Omniplex World Services Corp. v. US Investigations Services, Inc. entered into a one-year contract with an employee who had a top secret security clearance, which was required for her contracted job with a government agency. As you can imagine, employees with high-level security clearances are hot commodities. So the employer included a restrictive covenant, providing among other things that the employee could not “perform any services . . . for any other employer in a position supporting OMNIPLEX’s customer [the government agency], if the employment requires Employee to possess the same level of security clearance Employee relied on during his employment with OMNIPLEX . . .”

You know what happened next; the employee got a better offer, within two months, and left Omniplex to follow the cash. The employer sued the employee and the new employer, alleging breach of contract, tortious interference, and conspiracy. The trial court determined that the contract language was overbroad because it had no geographical limitation. The employer appealed; today, the Supreme Court affirms, but for a different reason that will be of great interest to those litigating these cases.

The majority in this 4-3 decision holds that the language quoted above is overbroad because it is not limited to employment with the employer’s competitors. In the example cited by the majority, the employee, who performed “general administrative security support” for Omniplex, could be prohibited from driving a delivery truck for another entity that served the same government agency. Since that’s not “employment that would be in competition with Omniplex, the covenant is overbroad and unenforceable.”

It’s always an interesting sign when the dissent is significantly longer than the majority opinion. (The majority is usually longer because, among other things, the facts are generally spelled out in greater detail in the first opinion.) Today, Justice Agee’s words are stinging; joined by Justices Keenan and Kinser, he chides the majority for the example of a delivery truck driver, noting that one of Domino’s Pizza delivery drivers would be unlikely to have to have a top secret clearance in order to make a delivery. (This assumes there are no anchovies on the pizza.)

One irony of this decision is that the job the employee took for the competitor was really not too different from what she was doing for Omniplex. You’ll note that the covenant was invalidated because it could have overbroad application, not that it was overbroad in this context. In this aspect of the case, today’s opinion contrasts with a parallel ruling, in a criminal context, in the recent decision in Muhammad v. Commonwealth, the sniper appeal decided on April. There, Muhammad argued that one statute under which he was prosecuted (the anti-terrorism act) was void for vagueness, since at its very fringes it could arguably criminalize legitimate conduct. The court held that such an argument was unavailing, since Muhammad’s conduct was squarely in the middle of the statute’s coverage, and he could not legitimately claim that he wasn’t aware that his conduct was prohibited.

The court plainly declines to follow that line of reasoning today, in a civil context. In the past, many such covenants have been challenged under the so-called “janitor rule,” in which plaintiff seeks to void the covenant because it prevents, say, an engineer from taking a position as a janitor with a competitor. My sense here is that the court is increasingly intolerant of these covenants, which are, after all, inherently in restraint of trade. Those drafting such covenants will now have to be careful to proscribe only truly competitive employment.


The court hands down three tort cases today, not including the State Farm case discussed above, in the civil procedure section. In a case of first impression, the court declines to apply the doctrine of apparent or ostensible agency to a circumstance in which a hospital is sued for negligence of an emergency room doctor who is an independent contractor. The case is Sanchez v. Medicorp Health System.

Sanchez appeared at the emergency room at Mary Washington Hospital to get treatment for head injuries. While there, he was treated by a doctor who was an employee of a local emergency medical group, not of the hospital. Sanchez contended that the care rendered there by the doctor was negligent; he sued the doctor, the local group, and the hospital. Recognizing that the doctor was not an employee of the hospital, Sanchez invoked the agency doctrine listed above, in an attempt to pin liability on the hospital.

The trial court rejected this effort and sustained the hospital’s demurrer. On appeal, the Supreme Court today affirms, holding that the doctrine has no application in this context. In doing so, the court notes the difference between apparent authority (which presupposes the existence of an agency relationship) and apparent or ostensible agency (by which the plaintiff seeks to establish a sort of constructive agency that did not exist in fact). The latter term, sometimes called agency by estoppel, is an exception to the general rule of respondeat superior in that there is no master/servant relationship here; employers are not liable for the negligence of independent contractors. (There are certain other exceptions, which are spelled out in footnote 5 on page 8 of the slip opinion.)

The court notes that it has recognized the apparent/ostensible agency doctrine in contract cases, but never before in tort cases. Today, despite a citation to several other jurisdictions that have recognized the doctrine as it relates to hospitals, it declines to do so. In distinguishing the holdings from the other jurisdictions, the court finds that in each, “the particular jurisdiction involved had already adopted the theory of apparent agency or agency by estoppel as a basis of tort liability” before it applied the concept to hospitals. The court apparently does not close the door firmly against this doctrine, but holds that it will not begin the process of recognizing it by using a hospital case.

In Newman v. Walker, the court applies Code §8.01-229(D) to toll the running of a statute of limitation, where a driver gave a police officer a fake ID at the scene of an accident. The plaintiff, relying on the identifying information given to the officer, sued the wrong person, and only learned the identity of the true tortfeasor after more than two years had passed. The trial court thus simultaneously gave her leave to add the true tortfeasor as a party defendant, and sustained the new defendant’s plea of the statute of limitations.

On appeal, the Supreme Court reverses, holding that the defendant took affirmative steps to misrepresent his identity, thereby preventing the plaintiff from finding the right defendant. The court distinguishes the recent case of Grimes v. Suzukawa, 262 Va. 330 (2001), in which a sexual assailant wore a mask to conceal his identity. The decision today holds that affirmatively representing that you are someone else is different from merely silently concealing who you really are. The case is remanded for two important factual findings relating to the purpose of the concealment and its duration.

In truth, while the opinion purports to distinguish the facts of Grimes, I believe this decision is in fact a retreat from that doctrine. It is difficult to find a meaningful distinction between concealing one’s identity by wearing a mask and doing so by telling someone that you are, in fact, someone else. This was a case in which virtually all of the subjective considerations ran against the defendant — in essence, he crafted a statute of limitations defense by lying, something the Supreme Court would understandably strive to avoid.

There is a subtle distinction between cases at Law and in Chancery, a distinction that may or may not be eradicated when the Rules of Court are revised in January to eliminate the dichotomy that has existed since the dawn of Virginia courts. In cases at Law, the court is constrained to interpret documents and statutes according to their strict terms; in Chancery cases, the trial court is freer to “do the right thing” (albeit not in direct contravention of a statute). The court’s ruling today strikes me as being equitable in its nature, or at least in its foundation, despite the fact that this is an action at law. Nevetheless, the clear holding today, that giving a fake ID is in fact an act to prevent the filing of the lawsuit, clarifies Virginia law in this narrow factual instance.

In the final tort case of the day, the court reverses a judgment in favor of an accident victim who was permitted to testify, without objection, of her emotional trauma at contemplating injuries to her companion dog in the accident. Kondaurov v. Kerdasha involved a horrific collision that resulted in the plaintiff’s Jeep lying upside down, having been struck first by a tour bus driven by the defendant and then by an ambulance (for which plaintiff had slowed down, but defendant did not). The case was tried to a jury on liability only. In opening statement, plaintiff’s lawyer made reference to the special relationship between the plaintiff, a multiple sclerosis sufferer, and her companion animal, which admittedly provided her with significant emotional support.

The plaintiff then testified about her significant anguish over the fate of the dog, which was thrown from the vehicle and injured in the collision and not located until many hours later, when plaintiff was hospitalized. Remarkably, plaintiff’s physical injuries were slight, but her doctor diagnosed significant physical problems arising from her psychological trauma over the fate of the dog.

Defendant moved to strike the claims related to the dog’s injuries (other than veterinary bills), arguing that even the most beloved of dogs is, under Virginia law, a chattel. The court denied this motion, and did so again when it was renewed. The court then granted plaintiff’s jury instruction on damages and refused defendant’s; the critical differences between these two related to whether plaintiff could recover for her own injuries arising out of injury to the dog, and whether the specific injuries had to be reasonably foreseeable.

The jury returned a verdict of $300,000; defendant appealed. Today, the court holds that (1) the trial court properly denied the motions to strike, but (2) it erred in giving plaintiff’s instruction and in refusing defendant’s. The key ruling here is the holding that the “thin-skulled plaintiff” doctrine does not apply to claims of emotional damages, whether there has been a physical impact or not. Generally, in the case of physical injuries, the defendant “takes the plaintiff as he finds him,” meaning the defendant cannot escape liability by arguing, for example, that no person who was reasonably fit would have been injured in a minor crash. If the person he hit is especially sensitive, then that’s the defendant’s problem. But the rule, as announced today, in cases of emotional injuries, is that the defendant “is responsible for such emotional distress as could reasonably be expected to be sustained by a person of normal sensitivity and normal reactions under the circumstances of the case.” The case is remanded for a new trial on the issue of damages only.

This case may have the greatest consequences for trial practice of all of the cases handed down today. The effect of this ruling goes beyond a restriction of the thin-skulled plaintiff rule. The new doctrine applies to virtually every personal injury case, in which plaintiff claims as an element of damages some psychological trauma. The rule handed down today does not limit physical harm to that which would be suffered by a “normal” person, but it does limit emotional damages (including physical deterioration brought on by emotional trauma) to a “normal person” standard.

How does this effect daily trial practice? It means that in every such case, the defense will be able to introduce testimony about what a “normal” person’s emotional sensitivities are, and how such a person would be likely to have been effected by the trauma suffered by the plaintiff. It means discovery will now likely include a request, on both sides, for the parties’ contentions as to how a normal person would have responded; it means expert testimony will frequently be offered for the purpose of showing what “normal” is in this context. (Remember, the jurors aren’t permitted to place themselves in the plaintiff’s shoes, so simply arguing that the jurors are, by definition, normal is likely to be objectionable.) Personal injury practice just got significantly more complicated.

Criminal law

The court affirms two criminal convictions today. One of those involved a pair of murders in Sussex County, in which the sole issue on appeal was the trial court’s failure to strike two veniremen for cause. In Townsend v. Commonwealth, Townsend argued that one venireman socialized with the family of one of the victims; another was the wife of the bailiff who provided courtroom security throughout the trial. In the trial court, Townsend argued that both women should be struck due to bias, for the reasons set forth above. The judge determined that both could try the case fairly, based on the entirety of their voir dire responses. Townsend used peremptory challenges on both, but was convicted anyway; he was sentenced to life in prison.

On appeal, Townsend tried a slightly different tack on this issue; he contended that public confidence in the fairness of trials would be seriously impaired by the failure to strike these two women from the jury pool. Readers of this site know what’s coming next – both the Court of Appeals and, today, the Supreme Court held that this argument had not been raised in the trial court, and was thus waived for appellate purposes.

Townsend no doubt will find this distinction hypertechnical, but it results in a more or less summary affirmance of his convictions. The court finds that an allegation of bias and a claim that public confidence will be impaired are distinct arguments. It distinguishes – and arguably overrules – an earlier decision in which the Court of Appeals had held that “an analysis of ‘public confidence’ is inherent in any appellate review of a juror’s impartiality and does not depend solely upon a juror’s explicit acknowledgement of bias.” This is some pretty strong language, and probably gave Townsend considerable hope at the appellate level. But it helped him not at all in the Supreme Court today. Failing these arguments, the appellate court reviews the trial court’s decision for abuse of discretion, and finds none today.

In a case that will generate interest in all crimes involving attempt, the court affirms the convictions of attempted indecent liberties with a minor and use of a computer to solicit a minor. The rub in Hix v. Commonwealth is that there was no minor.

Late in 2001, Hix engaged in the all-American activity of hanging out in chat rooms on the Internet. He found himself chatting with a girl named Heather, who reported that she was 13 years old, but was tantalized by his inquiries about sex. Learning that she was that young, Hix initially broke off the conversation, but had a change of heart five minutes later; he wrote back and picked up the thread again. In an exchange of e-mails, he asked Heather about certain parts of her anatomy, and told her what kind of sex he would like to have. He suggested that they hook up, although he admitted that he could get 30 years in prison for doing so.

As you have already figured out by now, Heather was in fact a thoroughly adult male special agent with the State Police, and Hix was in a world of trouble. He actually went to the site of the arranged hook-up, a local McDonald’s, at which he met not the teen of his dreams but several law enforcement agents who were just as eager to make his acquaintance. At trial, Hix argued that he could not be convicted of attempting indecent liberties with a minor, since the special agent was in fact not a minor. As such, he claimed that the crime was a legal impossibility, for which he could not be convicted. The trial judge disagreed and submitted the case to the jury, which convicted Hix and sentenced him to 30 months in prison.

On appeal, the Supreme Court takes great pains to distinguish between the doctrines of legal impossibility (which might have helped Hix) and factual impossibility (which would be no help at all). In a discussion that occupies eight pages of the 21-page slip opinion, the court determines that this was a case of factual impossibility, since the actions Hix intended were “proscribed by the criminal law, but a circumstance or fact unknown to the defendant prevents him from bringing about the intended result.”

Hix’s challenge to his other conviction, on the computer charge, is found to have been waived by his failure to raise it at trial.

Workers’ Compensation

The exclusivity provision of the Workers’ Compensation Act forms the basis for the decision in Safeway, Inc. v. DPI Midatlantic, Inc., where an employee of DPI sustained injuries when making a delivery to Safeway. The employee sued Safeway, alleging unsafe premises. The grocery giant, pointing to an indemnity agreement it had executed with DPI, filed a third-part action against the shipping company. The shipper filed a plea in bar, asserting that the Workers’ Comp exclusivity provision abrogated such an action. The trial judge agreed and dismissed Safeway’s suit.

On appeal, the Supreme Court finds that the agreement is effective despite the statute. The Workers’ Comp Act serves as a protection of the employer from suits by employees. But as the court notes, an employer is within its rights to “relinquish its statutory protection” by entering into a contract such as this. In suing on the agreement, Safeway was merely enforcing the agreed allocation of risks that it had negotiated (the opinion does not disclose whether the agreement was a contract of adhesion) with the shipper.

In the meantime, the court notes in a footnote that a jury awarded the employee $350,000 against Safeway, and that that judgment is now final. Accordingly, this claim returns to the circuit court for the enforcement of DPI’s obligation. The practical effect of this ruling is that DPI is liable to its employee for an injury that was caused by the negligence of Safeway, and DPI cannot turn to the Workers’ Comp bar to escape liability.

Land Use

In what is really a special statute of limitations case, the court reverses a trial court’s reversal of a BZA’s ruling that reverses a Zoning Administrator’s determination. Did you follow all that?

In West Lewinsville Heights Citizens Association v. Fairfax County, the dispute centers on a public park located in a residential district. The park is operated by the county’s Park Authority, which entered into an agreement with a private youth soccer group for the club to make substantial improvements to one of the soccer fields, in exchange for a substantial period (over 3,000 hours a year) of exclusive use of that field by the club. The agreement allowed the club, in turn, to assign up to 300 hours a year to a local university for collegiate athletic events and practices.

The citizens association got word of this arrangement, and contacted the Zoning Administrator to ask for a ruling that such an arrangement would require a special use permit or a special exception to the county’s zoning ordinance. The Administrator determined that such a permit or exception was not required.

Not satisfied with this ruling, the association appealed to the local Board of Zoning Appeals. In the words of today’s opinion, “After a public hearing on September 16, 2003, the BZA unanimously voted to overturn the Zoning Administrator’s decision.” Eight days later, as required by the BZA’s bylaws, the Deputy Clerk of the BZA sent a letter describing the decision, and stating that “The final decision date is September 24, 2003.”

Thirty days later, the County filed a petition for certiorari to review the BZA’s decision. Counsel for the BZA moved to strike the petition as untimely filed, arguing that the petition had to be filed within 30 days after the vote, not 30 days after the follow-up letter. That motion was overruled; on the merits of the case, the circuit court reversed the BZA and reinstated the Administrator’s decision.

Now it was the citizens’ turn to appeal, this time to the Supreme Court. Today, that court finds that the petition was, indeed, filed too late; a statutory change in 2001 had in essence eliminated the mandatory 8-day waiting period before such decisions became final. As such, despite the BZA’s bylaws, and despite the deputy clerk’s erroneous letter, the County had to file its petition within 30 days after the date of the vote, since that is a final action on the matter. The court thus rules that the trial court did not have jurisdiction to consider the matter, and enters final judgment for the citizens association.

One of the dispositive issues here is the presumption, in the field of statutory construction, that when the General Assembly amends a statute, it is presumed to effect a change in the law thereby. The legislature is not presumed to amend statutes for the purposes of show. Since the earlier version of this statute was consistent with the County’s arguments, and the amendment eliminated the provision on which those arguments were based, the County ends up losing an appeal that, if the case had been heard on the merits, it probably would have won.

Habeas corpus

Paradice Carnell Jackson II did a remarkable thing. I’m not referring to the burglary and grand larceny of which he was convicted; lots of people, unfortunately, achieve that. What Mr. Jackson did was to file a pro se petition for a writ of certiorari, and win.

Jackson v. Washington, Warden is the result of a prisoner’s long quest to face a jury in civilian clothes. After his arrest, he was unable to make bail, so he spent the time before trial in custody. During that time, his jailers lost his street clothes. They told him they would look for them; and if they couldn’t find them by the time he was released or transferred, he would be reimbursed for their value.

But Jackson was facing trial by jury, and expressed to his attorney a specific desire to wear street clothing, especially since he intended to testify. His lawyer made a brief effort to contact his family to get replacement clothing, but got no response. Believing that Jackson greatly desired an end to the proceedings, she did not object when Jackson was brought to trial in a jail jumpsuit. Jackson testified in that jumpsuit; the jury convicted him and recommended a prison term totaling 20 years.

Jackson filed a pro se motion before sentencing, asking the trial court to set aside the convictions because his lawyer was ineffective in failing to object to his appearance in the jumpsuit. The trial court denied that motion and sentenced him according to the jury’s recommendation. Jackson pursued a direct appeal on the same basis, without effect, since his lawyer had failed to object at trial. (Ineffective assistance of counsel is generally unavailing on direct appeal; it usually can only be reached on habeas corpus review.) Knowing the lesson of the previous parenthetical, Jackson filed his own habeas petition in circuit court. The Commonwealth responded that the decision not to object was a tactical one made by the lawyer, and was therefore not ineffective assistance. Without an evidentiary hearing, the trial court dismissed the petition, for the reasons cited by the Commonwealth.

But today, the sun rose for Jackson. The Supreme Court reverses the trial court and orders the granting of the writ. It finds that the lawyer’s failure to object was ineffective assistance under the Sixth Amendment, particularly in light of Jackson’s stated intention to testify. That made his personal credibility an especially relevant concern for the jury. The decision follows the analysis mandated by the US Supreme Court in Strickland v. Washington, 466 US 668 (1984).

Under Strickland, a court analyzing an ineffective assistance contention must find two things. First, it must find that the assistance was ineffective, and second, it must find that the ineffective assistance likely affected the verdict. The latter factor is where the jury’s credibility determination is decisive; the court notes that “It is difficult to conceive of a circumstance more likely to disadvantage an accused than compelling him to testify in his own defense to the jury while wearing jail clothes.” The first factor was almost academic – a long line of cases holds that a defendant has a right to wear street clothes at trial – so the result is a new trial for Jackson.

Justice Kinser, joined by Justice Agee, dissents, opining that the Commonwealth’s evidence was so strong against Jackson that the second prong of the test could never be met. Under well-established precedent, a reviewing court does not have to find ineffective representation first; it can (and often does) skip straight to the second prong, if that’s easier. The court took the same approach earlier this year in Yarborough v. Warden, a habeas petion filed by another inmate.

One other thing: I don’t mean to detract in any way from Jackson’s remarkable achievement as his own appellate “lawyer,” but once the Supreme Court granted the writ, it appointed an outstanding appellate attorney, Gail Starling Marshall of Culpeper County, to represent him in the merits hearing.

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The court also hands down three decisions by unpublished order. In Green v. Virginia State Bar, the court generally affirms findings of misconduct by an attorney, but reverses one finding and remands for reconsideration of the sanction. The Bar had suspended the attorney’s license for 60 days, based on several allegations of misconduct arising out of missed court dates and allegedly ineffective assistance to a criminal defendant.

In Gordonsville Energy v. SCC, the court affirms the SCC’s determination of the fair market value of the assets of an electric utility for local taxation purposes. The SCC had placed the value at nearly $152 million; the utility contended that the value was actually just over $54 million. Resolution of this appeal is based on the strong presumtion of correctness attached in judicial proceedings to the findings reported by taxing authorities (including the SCC’s valuation in this case). As ordinarily happens in such cases, the underlying hearing was a battle of experts, in this case appraisers. The court finds that the SCC’s valuation was correct (more specifically, that the utility failed to rebut it; but the order leaves no doubt that the court agreed that the SCC’s finding was accurate).

The final order case is Shoup v. Ira and Virginia Cox LP, a BZA/land use case that returns to the Supreme Court for a second round. In the first one, the court refused a petition for appeal of an order that affirmed the BZA’s decision, and “allowed” the partnership 180 days to bring the subject property into compliance with the applicable zoning regulations. During that first appeal, the partnership repeatedly categorized the order as being an injunction against it. Now, in this second appeal, the partnership contended that the order was in fact not an injunction at all; note that it allows, but does not require, the appellants to do anything. The Supreme Court wasn’t having any of that; citing the ancient doctrine of estoppel by inconsistent positions, it holds that the argument on this basis is barred by the partnership’s arguments in the first appeal.

These orders are not available on the court’s web site; readers of this site who would like a copy of any of the orders may get one by e-mailing me at