ANALYSIS OF SEPTEMBER 14, 2010 CAV OPINIONS[Posted September 14, 2010] There are two published opinions out of the Court of Appeals of Virginia today, and for the first time in six weeks, we get one in an area other than criminal law. But I’m so accustomed to writing up the crooks’ cases by now, we’ll start with the one criminal-law decision today, before we get to the new material.
Hunting is one of man’s oldest pastimes. Selling things on e-Bay is one of the newest. Those two matters collide today in Goble v. Commonwealth, involving convictions for “selling or offering to sell wild animal parts.” (Honestly, I had no idea we had a statute like that around here. Publishing this website is a remarkably educational experience.)
As you will have inferred from my introduction, Goble was convicted of selling animal parts – specifically, stuffed deer heads – on e-Bay. There are a few sufficiency issues that look fairly ordinary except for the fairly exotic nature of the offenses, but the real issue here (and the one that gets this opinion published) is one that will have application elsewhere. It relates to the trial courts’ jurisdiction over a multi-jurisdictional offense.
You see, the deer heads weren’t in Virginia when Goble posted them for sale. They were in Pennsylvania. Even after they were sold, they were shipped out to their purchasers’ addresses elsewhere. The only thing that happened in Virginia was that Goble sat at his computer in his Augusta County home and uploaded the sale listing onto the e-Bay website.
Today, a majority of the CAV panel (Judge Elder, joined by Senior Judge Annunziata) finds that that’s enough to find that the sale (or at least enough of it) took place here in the Commonwealth. The court finds that the “traditional view of jurisdiction” doesn’t help here, but it applies something called the immediate-result doctrine. The best illustration of that is where a person in, say, Moyock, NC, right across the state line, fires a shot northward, and that shot injures a person standing in southern Chesapeake. The shooter doesn’t do anything in Virginia; he never even sets foot on the classier side of the state line. But he immediately causes harm here, so he can be prosecuted here.
The majority finds that this doctrine gives the Virginia courts jurisdiction over these crimes because the sale of Pennsylvania property implicates harm here in Virginia. The specific harm the majority cites is “Virginia’s loss [of] its right to control the sale of its natural resources.” The Commonwealth, it holds, has “the duty to safeguard its resources for all Virginians,” and stopping this sort of sale furthers that purpose.
Judge Powell is unconvinced, and after reading her dissent, I have to admit, so am I. She notes that if those are the harms to be guarded against, then the proper charge should be poaching. There is no “immediate result” in Virginia, arising out of the sale, that relates to a loss of natural resources. Those resources were already long-gone by the time Goble fired up his computer. Judge Powell would reverse the conviction that was based on sales (though not the ones based on offers to sell, because those offenses unquestionably occurred here in Virginia).
Even the court acknowledges that the factual background in Williams v. Real Estate Board is “rather convoluted.” It’s a disciplinary matter in which a licensed real estate agent was charged with various forms of malfeasance in connection with his own purchase of two contiguous Hanover County parcels in 2005. The amounts involved were, by current real-estate standards, almost tiny: $7,000 for a 1¼-acre lot, and $35,000 for a seven-acre parcel. Williams’s alleged sins included – get this – failing to make a timely earnest money deposit of one dollar on the smaller parcel.
Admittedly, some of the other allegations were more serious than a single buck; but we aren’t talking about multi-million-dollar deals here. Still, real-estate agents, like attorneys, are fiduciaries, and any malfeasance in office will likely attract regulatory attention. An investigator determined that Williams hadn’t acted properly, and he recommended a $4,250 fine and attendance at an ethics course. Williams was having none of that, so the matter proceeded to an informal factfinding conference before the chair of the Board.
Things, alas, did not go well for Williams at the conference. The Board chair recommended fines totaling $9,000, and far more important, she called for revocation of his license. The full Board approved this sanction. Losing a few thousand dollars is one matter, but losing your entire livelihood is another thing entirely. Williams appealed to circuit court, claiming due-process violations and that the decision was arbitrary and capricious.
The trial judge agreed with Williams, to a point. He noted that doubling the fine from what had been offered smacked of retaliation. He also observed that the investigator could have done a better job of interviewing witnesses (one of whom had subsequently died). But in the end, the judge found that the facts supported the imposed sanction, so he affirmed the Board’s decision.
This, you will appreciate, is a tough factual record to overcome on appeal, and today, Williams fails to persuade a CAV panel to overturn the sanction. He does win one minor battle, in that a single $500 component of the fine is reversed. But he loses the war as the CAV finds that there was at least some evidence in the record to support the finding of malfeasance, and that the scope of the fine was within the Board’s authority.
Getting a reversal in a fact-intensive proceeding like this is extraordinarily difficult. That’s especially the case here, where reviewing courts are supposed to afford substantial deference to administrative agencies’ determinations. Those agencies are like juries on steroids, at last as far as finding and interpreting facts within their bailiwick are concerned – you have to have a real smoking gun to get an appellate court to step in.