ANALYSIS OF MAY 18, 2023 SUPREME COURT OPINION

(Posted May 18, 2023) For the second time in three weeks, we get a significant decision interpreting Virginia’s Freedom of Information Act. The case is Gloss v. Wheeler and arises in Prince William County.

Wheeler chairs the County’s Board of Supervisors. When protests in Manassas and Gainesville arose – eventually growing into what county officials called riots – five days after the killing of George Floyd by a Minneapolis police officer in May 2020, county police officials notified members of the Board. The Board chair met with police shortly after noon the next day, May 31, and then attended a meeting of the police department’s Citizens’ Advisory Board at 1:00. Four other members of the Board also attended; the other three members weren’t made aware of the meeting.

At the CAB meeting, the Board of Supervisors chair addressed the audience and another Board member asked the police chief for an “after-action report” on events of the previous evening. At 4:00 that afternoon, all eight members attended a properly noticed emergency meeting of the Board to discuss the disturbance and the police response to it. At this meeting, the three excluded members of the Board learned of the CAB meeting that had begun just three hours earlier.

Several citizens sued the five attendees, claiming that their appearance at the CAB meeting violated the open-meetings requirement of FOIA. At the ensuing trial, the circuit court granted a motion to strike the citizens’ evidence, concluding that the CAB meeting was only for informational purposes and not for the conduct of public business.

That ruling draws spirited debate among the justices this morning. By a 5-2 vote, the Supreme Court reverses and sends the case back to circuit court for a retrial. Justice Russell, writing for the majority, cites the legislative presumption of openness and the required “thumb on the scale” in favor of expansive interpretation of FOIA protections. The majority rules that “a topic is ‘public business’ for the purpose of Code § 2.2-3701 if it is either ‘pending before’ the public body at the time or it is ‘likely to . . . come before it in the future.’”

The chief justice, joined by Justice Powell, reasons that the majority’s rule would stifle open discussions, not prompt them. The dissenters perceive that there’s a difference between public business and a mere topic of discussion, so even an expansive reading of FOIA wouldn’t encompass the meeting at issue here.

Here are a couple of things that caught my eye in my stroll through the opinions. First, the majority cites a concession by the supervisors’ lawyer in oral argument that the majority’s reasoning would “logically follow from a ‘literal reading’ of” prior caselaw. Appellate advocates are well aware of the dangers of concessions made at the lectern; many an appeal has found itself scuttled by a lawyer who wasn’t circumspect enough to decline to concede something.

But the dissent doesn’t see it as a concession at all. Here, judge for yourself:

The unprecedented definition which is being criticized in this dissent is the assertion that certain topics constitute public business. The response perceived and cited by the majority as a concession (to the majority’s assertion that a topic can be public business regardless of the context in which it is discussed or by whom) was in response to a question regarding whether business that was likely to be on the agenda in the future could be public business, and the defendants replied: “That is a literal reading of Beck and I urge the Court to look at that case and that context when evaluating this case because that was a very different . . . that was a very different set of circumstances there.” That statement by defendant Board members is not a concession that a general topic can be considered to be public business.

In fairness, I agree with the dissent that this is far from an unqualified concession; the lawyer for the supervisors did what he could to distinguish the prior caselaw. This highlights the risks attendant to answering “will you concede …” questions in oral argument with anything less than a robust refusal to concede.

One other significant point in my mind: The citizens brought this lawsuit in 2020, shortly after the CAB meeting. After the trial but before entry of final judgment, the supervisors moved the court to reconsider its ruling, which it had announced from the bench at trial. The circuit court entered an order on May 18, 2021 that denied the reconsideration motion; this was evidently the final order in the case.

I’ll do the math for you: May 18, 2021 is two years ago today. It took this case two full years to proceed from final judgment below to a final appellate judgment. Note that because the citizens appealed in 2021, this case didn’t get diverted to the Court of Appeals first; it went straight to the Supreme Court.

This, my treasured readers, is what I call a problem. Here’s the timeline, including the approximate time elapsed at each stage:

• May 18, 2021 Circuit court enters final judgment
• October 12, 2021 The record arrives in Richmond (5 months)
• April 21, 2022 Writ granted (6 months)
• July 7, 2022 Merits briefing complete (2½ months)
• November 1, 2022 Oral argument in the November session (4 months)
• May 18, 2023 Final appellate ruling (6½ months)

That’s how you get to two years. Most of the earlier entries on this list are fairly normal time spans, though they each – other than the merits briefing – seem to be toward the longer end of the normal range. The most significant outlier is the last one. The Supreme Court entertained oral argument in this appeal 28 weeks ago, one of the longest delays I’ve seen since the court moved to rolling release dates for opinions in 2015.

I hasten to add that this case has features that tend to lengthen the time for a decision. It’s a matter of significant public interest, and it features a lengthy dissent. Where there’s a split vote, the authors of the majority and dissenting opinions share their drafts with each other, allowing the other to respond in writing. That often generates new passages that themselves call for revisions in the opposite draft; the process goes back and forth until the two authors are satisfied with the product.

But make no mistake: Judging from the statistics that I keep, including a copy of each argument schedule going back almost eight years, a six-month delay is extraordinary. I mention this not to be critical but to inform my readers who advise appellate litigants. The time it takes to resolve an appeal can be quite long, and your clients will want to know that.

ANALYSIS OF MAY 4, 2023 SUPREME COURT OPINIONS

(Posted May 4, 2023) Popular culture will focus today on the lighthearted Star Wars Day (May the Fourth be with you). I, too, mark this day, but for a very different reason. I ponder the seething fury in Neil Young’s mind as he penned these stirring words of accusation:

Gotta get down to it;
Soldiers are gunning us down.
Should have been done long ago.
What if you knew her and found her dead on the ground?
How can you run when you know?

RIP Allison Krause, Jeff Miller, Sandy Scheuer, and Bill Schroeder, the tragic Four Dead in Ohio.

Real property

Dirt lawyers will appreciate the important holding today in Oreze Healthcare LLC v. Eastern Shore CSB, from the Portsmouth Circuit Court. It’s a claim by a former landlord for water damages to leased property, asserted against the tenant.

Oreze owned the property and leased it to a local community services board to provide care for people with behavioral health issues. The property sustained damage when pipes froze in the cold winter of 2017-18. Shortly after the end of the tenancy, the owner sued the board to recover those damages.

While the case was pending, the owner sold the property, conveying title by general warranty deed. The tenant learned of the sale and moved for summary judgment, arguing that the broad language of the deed meant that the landlord had conveyed its damages claim and no longer had standing. The circuit court agreed and dismissed the case.

The Supreme Court today unanimously reverses that ruling and sends the case back for trial. Justice Chafin’s opinion notes that this isn’t a case of merger by deed, because those apply to claims between the parties to the deed. The tenant wasn’t a party to the conveyance. The court reaches back to English common law to conclude that the damages claim was a chose in action, not a part of the real estate, so it did not convey with the land unless the deed expressly so provided.

Attorney discipline

I’ve noted before that appeals in disciplinary proceedings against lawyers generate some of the most painful opinions for me to read. Today’s decision in Brown v. Virginia State Bar is no exception.

A client engaged the lawyer here to represent her in several matters arising from her marital difficulties. The client was particularly vulnerable, in that she was a substance and alcohol abuser. Her husband accused her of adultery, and today’s opinion from Justice Mann will lead you to conclude that she engaged in multiple adulterous relationships.

Early in the engagement, the lawyer appears to have provided some solid advice and representation; as I see it, he handled the early phase of the case capably. But the attorney-client relationship turned flirtatious and then salacious, as a string of text messages amply demonstrated. Things culminated with a lawyer-client meeting at a hotel – the lawyer declined to convene at his office because “I don’t want to be rushed” – that appears to have fulfilled their fantasies.

Alas, an employee at the hotel knew the client’s husband and alerted him. The husband quickly contacted a private investigator, and the PI obtained solid evidence of the tryst. The husband later confronted the lawyer with what he had and threatened a Bar complaint; the lawyer quickly withdrew from the representation, and the client proceeded through the divorce case, up to and including the final decree, pro se.

This disciplinary proceeding ensued, and the Bar certified charges of violations of Rule 1.7 (conflict of interest) and 2.1 (advisor’s independent professional judgment). A three-judge panel ruled in the lawyer’s favor on the second charge, but upheld the first one, imposing a public reprimand with terms.

The lawyer appealed and the Bar cross-appealed the finding on Rule 2.1. The Supreme Court today affirms the judgment, finding that the record amply supports a finding that the lawyer had a conflict of interest when he developed a sexual relationship with the client. In this context, the liaison exposed the client to a possible legal detriment, because it was adulterous. This would hurt her in her divorce proceeding, and (believe it or not) it’s still a crime in Virginia, albeit one for which prosecutions are quite rare. The court shrugs off the lawyer’s suggestion that the wife would have defenses in the divorce case, holding that it’s enough that he created a legal detriment.

On the Bar’s cross-appeal, the justices take an unusual approach. The Bar had asked the Supreme Court to impose a finding that the lawyer had violated Rule 2.1, but didn’t ask for any added sanction beyond the existing public reprimand. Justice Mann writes that this puts the court in a bind, because the absence of a different sanction means that nothing would change if it reversed the panel’s decision. The court thus declines to address the Bar’s cross-error. This is a good object lesson in shaping appellate briefs: Be careful what you ask for, and that you actually ask for something.

At the beginning of my legal career, I promised myself three things: I would never get romantically involved with a client, never get romantically involved with a coworker, and never drink while I was working. A dose of that policy might have helped the lawyer here; surely there had to be a point at which a voice in the back of his mind whispered, “You know, this might not be such a brilliant idea …” But he wasn’t listening.

That being said, I’ve long recognized the wisdom in a saying that my late father-in-law, Bob Gelb, was fond of: You can’t put your head on someone else’s shoulders. I accordingly will not pile on any condemnation here. Because the opinion is published, the lawyer’s temporary folly is something that he’ll have to live with, and that should be enough for anyone.

One final note: I saw that the lawyer was represented on appeal by my appellate pal Chris Holinger. From what I can see, Chris did a commendable and professional job here without a great deal of material to work with.

ANALYSIS OF APRIL 27, 2023 SUPREME COURT OPINION

(Posted April 27, 2023) Today is the “birthday” of one of my favorite short piano works. On this date in 1810, Ludwig von Beethoven sat down to compose a tune that he named “Für Elise,” honoring a woman whose identity is probably lost to history. Between this work and Debussy’s “Clair de Lune,” I find that I can derive immense pleasure in a short period of listening.

Freedom of Information

There’s one published opinion from the Supreme Court of Virginia today. In Suffolk School Board v. Wahlstrom, the justices address a citizen’s exclusion from a school board retreat.

The retreat was always supposed to be open to the public; the board’s public notice said so. Scheduled for July 22, 2021, it fell three weeks past the date when the Governor’s pandemic orders had expired, but the board still felt it necessary to ensure social distancing. The meeting occurred at a large room in a local school building, with well-spaced round tables spread through the room.

Wahlstrom is a citizen who came to the meeting. She discovered the tables in the designated room and sat down at one. A staffer then told her that the tables were reserved for staff; she accordingly walked over to a spare chair at the side of the room and sat there.

If that had sufficed, we wouldn’t have litigation and hence no opinion today. Someone from the board’s staff informed Wahlstrom that the pubic couldn’t sit in the meeting room; the board had instead arranged for a video feed of the meeting, broadcast into a nearby room. She was invited to go to that room to watch.

No dice, she said, insisting that FOIA permitted her to attend the meeting in person. That prompted the board chair and the division superintendent to approach her and order her out of the room. When she still resisted, a police officer was summoned to escort her, not merely to the other room but out of the building.

That predictably led to a lawsuit. Wahlstrom sued the board, the chair, and the superintendent, seeing injunctive relief, civil penalties, and attorney’s fees. She sued the two officers in their individual and official capacities.

The circuit court sustained a demurrer to the individual-capacity pleadings, holding that FOIA’s obligations run to public bodies, not to individuals. But it permitted the remaining claims to proceed to a bench trial. At the conclusion of that proceeding, the court ruled in Wahlstrom’s favor as against the board, but held that the officers, in their official capacities, had not willfully and knowingly violated FOIA. The court awarded $19,000 in fees against the board and enjoined it from future exclusions of citizens.

The Supreme Court affirms this judgment today. It adopts the trial court’s factual findings, including its conclusion that the board acted “shamefully” in having Wahlstrom escorted out of the building. The court notes that this very school board has had to answer for multiple previous FOIA violations, a fact that assuredly didn’t help its cause at trial or on appeal.

The primary ruling today for FOIA purposes is that the open-meeting requirements generally require – with some exceptions not relevant here – that the public be permitted to be physically present at these meetings. Providing a video feed in this situation didn’t suffice. As I read the opinion, I considered one reductio ad absurdum that the justices don’t mention today: If a video feed were permissible, what’s to stop a public body from prohibiting all in-person attendance, merely by broadcasting the meeting on television or a streaming service? After all, there’s no meaningful difference between watching a video feed from the next room and watching it in your living room.

The Supreme Court today approves of the circuit court’s findings and its imposition of an injunction against future violations. It next turns to Wahlstrom’s cross-error to the dismissal of the individual-capacity claims.

FOIA imposes certain obligations upon public bodies. The officials convinced the circuit court that, because individuals aren’t public bodies, there was no viable claim against them. The Supreme Court finds that this ruling was erroneous, because in its penalties section, FOIA refers to civil penalties against individual actors who are government officials, including members of public bodies. Thus, even though there’s no express obligation in the statute placed upon persons, they can be sued for FOIA violations.

Just as you’re thinking that this will mean a remand, the Supreme Court affirms anyway, thanks to our old pal, the harmless-error doctrine. In its final order adjudicating the official-capacity claims, the circuit court found, as a matter of fact, that the officials didn’t willfully and knowingly violate the act. The Supreme Court rules that that finding disposes of any individual-capacity claims that could have been tried.

Justice Wes Russell pens today’s opinion for a unanimous court.

ANALYSIS OF APRIL 20, 2023 SUPREME COURT ORDER

(Posted April 20, 2023) The Supreme Court this morning turns to a statutory morass — or maybe desert is the better metaphor — in the field of expungement petitions. Williams v. Commonwealth highlights the lack of specificity in the Code for persons who seek to clear their arrest records.

The Commonwealth indicted Williams for being an accessory to a murder, but before trial, she agreed to plead to a reduced charge of obstruction of justice, a misdemeanor. She then sought expungement of her felony arrest. The prosecutor commendably had no objection.

But the judge did. The court concluded that because Williams had pleaded guilty to a crime related to her original arrest, she wasn’t one of those innocent citizens whom the expungement provisions undertake to protect. The court refused the petition. Last year, the justices decided to take a look.

Here’s the relevant passage from the statute: It applies after an acquittal, or where a “nolle prosequi is taken or the charge is otherwise dismissed ….” Williams contended on appeal, as she did below, that her felony indictment was “otherwise dismissed,” because the Commonwealth dropped that charge and allowed her to plead to a lesser offense. The question here is what that otherwise dismissed language means.

The legislature didn’t define the term or list a bunch of examples. That has left the courts to try to sort it out.

Existing precedent holds that where the subsequent charge is a lesser-included offense of the original, then the defendant isn’t innocent enough to warrant relief. But where the successor charge is “completely separate and unrelated,” the defendant can seek expungement. The justices today explain what that quoted phrase means: “a court should (1) compare the conceptual similarities and differences between the original charge and the amended charge and (2) examine whether the two charges share a common nucleus of operative facts.”

Today the Supreme Court sort-of unanimously rules that Williams is eligible for expungement consideration. At least as an abstract principle, obstruction of justice is completely separate from aiding in a murder, so six members of the court join in a published order — this means that we don’t know the identity of the author — that remands the case to allow a hearing on the merits of that request. (My barely educated guess, based solely on the writing style, is that Justice McCullough wrote this one. The bad news is that we’ll never know if I’m right or wrong.)

The order contains this language in a closing footnote: “The General Assembly, as the policy making body of our Commonwealth, remains free, of course, to narrow or to broaden the scope of the expungement statute. Whether it should do so is for that body to determine. It is not the province of the courts to ‘inquire into the wisdom of legislation.’” That’s the genteel and understated language of Supreme Courtese; the English translation is “Legislature, we can’t amend your botched wording in this statute; that’s your job.”

One member of the court isn’t content to be this discreet. Justice Mann pens a concurring opinion agreeing that Williams deserves a shot at expungement. His entreaty to the General Assembly lays out in detail the reasons why he perceives statutory guidance to be inadequate. He goes on to explain that in his view, the court’s two-part explanation, which I quote three paragraphs above this one, is unnecessary and actually adds complexity.

Will the 140 Troublemakers pick up the baton and run with it? Let’s hope so; by the narrow margin of seven-zip, the court today concludes that this statute needs major surgery. Keep in mind that it’ll be a different set of Troublemakers, as a slew of retirements and redistricting pair-ups will lead to a greatly altered General Assembly in January 2024.

ANALYSIS OF APRIL 6, 2023 SUPREME COURT OPINION

(Posted April 6, 2023) Today brings one concise opinion from the Supreme Court of Virginia. Ranger v. Hyundai Motor America was argued in March; it arose in Accomack County and implicates Virginia’s motor vehicle Lemon Law.

Ranger bought a Hyundai that he felt was a lemon. This morning’s opinion recites that the car “had to be repeatedly repaired.” Ranger got himself a lawyer who wrote to demand Lemon Law relief: a refund of the price plus some assorted expenses. He added a demand for prelitigation attorney’s fees.

The manufacturer replied commendably, as I see it: It offered to buy the car back and to pay some of the legal fees. Because the offer didn’t cover all of those fees, Ranger directed his lawyer to head to court.

Because Ranger’s name is on the western side of the “v.” in this case, you know that this didn’t end well for him in circuit court. That court ruled that the manufacturer’s offer complied with the statute, so Ranger had no right to sue. The court granted summary judgment in Hyundai’s favor.

This case bears the Record Number 220058, meaning it was the 58^th appeal filed in the Supreme Court last year. I infer that the final order came down before December 1, 2021, because otherwise Ranger would have been entitled to an appeal of right in the Court of Appeals, simply by filing his notice of appeal on the first business day of 2022. The earlier judgment date meant that he had to run the writ gantlet in the Supreme Court.

The good news for Ranger is that the justices awarded him one of the court’s precious writs. The bad news is that the Supreme Court today affirms. In a matter of first impression here in Virginia, the court holds that prelitigation attorney’s fees aren’t within the “collateral and incidental damages” that a buyer is entitled to under the Lemon Law. True, the act allows an award of fees to a successful litigant once he goes to court; but to avoid Lemon Law liability, a manufacturer need only tender an offer that meets the statutory requirements before a suit is filed, and those don’t include fees.

Justice McCullough pens today’s short opinion for a unanimous court.

ANALYSIS OF MARCH 23-30, 2023 SUPREME COURT OPINIONS

(Posted March 30, 2023) Today is one of the blessed days on the Emmert calendar, as fifteen men dressed in blue and spread across the continent will each pull a mask over his face and utter an especially sweet two-word phrase: “Play ball!” Life begins again after a long, cold winter without baseball.

I was absent last week, so let’s dive into two new SCV opinions, one from last Thursday and one from this morning.

Domestic relations

The justices today take up the meaning of provisions in the Uniformed Services Former Spouses Protection Act, relating to distribution of military pension benefits. The case is Yourko v. Yourko, and arose in the Circuit Court of Williamsburg and James City County

The parties entered into the military equivalent of a property settlement agreement that gave the wife 30% of the husband’s military retirement pay. It accordingly contained a provision that guaranteed her $1,200 per month, to be paid from the husband’s financial resources if his retirement pay dipped.

A quick aside about military law: The law allows disabled veterans to voluntarily forgo part of their retirement pay for an equal amount of disability pay. That’s a treasured right, because military disability pay, unlike retirement benefits, is untaxed. The husband chose this route, resulting in a reduction of his retirement pay from $4,000 a month to $844 a month. Thirty percent of that is just over $250 a month for the wife.

The husband accordingly moved the circuit court, long after final divorce, to reopen the case and modify the divorce decree and the settlement agreement. He pointed to a recent SCOTUS ruling that divorce courts can’t order military retirees to reimburse ex-spouses for reductions in benefits like this. He also argued that the settlement agreement was a product of mutual mistake of fact, specifically, the amount of the husband’s retirement benefits.

The circuit court dismissed the motion, holding that the 21-day rule deprived it of jurisdiction. It also found no mutual mistake of fact. But the Court of Appeals reversed late in 2021. It held that that SCOTUS decision established that federal law preempted a state court’s right to order this relief, so the equitable-distribution order was void ab initio. The CAV panel remanded the case for recalculation of the wife’s monthly benefit.

Today a unanimous Supreme Court reverses that finding and enters final judgment for the wife. In doing so, it distinguishes this situation from the facts in the SCOTUS case. The key difference is that the husband voluntarily agreed here to indemnify the wife; a court didn’t order it against his wishes. As today’s unanimous opinion notes, “a growing number of states” (three so far, plus now Virginia) hold that a voluntary agreement to indemnify doesn’t run afoul of the SCOTUS holding.

Justice Powell pens today’s opinion for a unanimous court. In a footnote, she mentions one tidbit that, in my view, decisively tilts the equities in favor of the wife. The husband’s unreduced military retirement benefits were $4,000 a month, but his overall monthly income was over $10,000. The court has little difficulty in concluding that he can easily make up the $950-a-month indemnification from his $6K in other income. Allowing him to collect $10K a month while paying his ex just $250 does, you will admit, seem a little unbalanced.

Justice Russell sits this one out, as the case came through the Court of Appeals while he was a judge there. Because it was a published opinion in that court, he got a chance to review the panel opinion and comment on it before publication. Justice Millette fills in to give the parties here a full set of fresh eyes on the case.

Freedom of Information

Last week, while I was out of the Commonwealth with my back turned, the justices couldn’t resist handing down an opinion, so they gave us Berry v. Fairfax County. This is an open-meeting dispute over a county board’s complete overhaul of its zoning ordinance during the pandemic.

On its face, you might find this to be an easy call. The legislature enacted pandemic-driven measures to enable local governments to carry on business at times like the ones we endured starting three years ago this month. The special legislation empowered local governing bodies to conduct meetings and vote on ordinances by remote means. In 2021, the Fairfax County Board used those procedures to finalize its comprehensive rezoning, a deliberative process that had started in 2016.

Several citizens who opposed the rezoning filed suit, challenging the process as violating FOIA. That act requires open and in-person meetings in the transaction of public business. A circuit-court judge ruled in favor of the county, first denying a request for a temporary injunction to stop the virtual meeting and then holding that, after enaction of the ordinance, the challenge was moot.

The challengers hopped on I-95 South. After granting a writ, The Robes unanimously reversed last week and – surprise! – enter final judgment in favor of the challengers, invalidating the ordinance in the process. In doing so, the court rules that the county board had to meet in person for this action.

But how can that be, you ask? How can the Supreme Court invalidate the comprehensive rezoning where the General Assembly has specifically authorized remote meetings? Hey, that’s why we’re here; let’s dig in.

First, know that the temporary legislative authorization was designed to enable local governments to continue to provide essential governmental services during an emergency. The precise language authorizes remote meetings for “business statutorily required or necessary to continue operations of the public body[.]”

The county board argued that this language empowered it to conduct any form of county business without convening in person, but the justices see it differently. The temporary exemption only covers actions necessary to continue operations of the local government, in addition to the limitation quoted in the previous paragraph. While a rezoning certainly is governmental in nature – indeed, you can’t get much more governmental than that – it isn’t necessary for continuation of government operations. Remember, this wasn’t an emergency act; the county had been contemplating this rezoning for almost five years.

The Supreme Court ultimately rules that “the phrase ‘necessary to continue operations’ … does not encompass all that the Board may lawfully do, and thus, the budget language cannot be construed as a wholesale license to ignore VFOIA’s open meeting requirements in conducting any and all business that the Board might wish to conduct.” This means that for business that doesn’t involve continuation of government services, FOIA still requires open, in-person meetings. That, in turn, means that the board approved the rezoning ordinance in a manner contrary to law.

This doesn’t end the matter; the board can now reconvene, after properly noticing the rezoning ordinance, and reenact it this spring or summer. But the challengers will have an opportunity to register their objections – openly, and in person.

The Supreme Court received oral arguments in both Yourko and Berry during the January micro-session, which featured just four appeals. That leaves us with one undecided case from that docket, two more from last November, and the full slate of eight appeals on the February/March argument docket.

In the next week or so, we’ll get a peek at the April argument docket, and I’m eager to see it. As I’ve noted here, that’s the court session when we’d normally get appeals granted after the October writ panels. But the court granted only two writs from those panels. The briefings in those two weren’t complete until early this month. That’s probably enough time for the court to prepare for a normal argument in mid-April. But I’ve never heard of a two-argument merits docket; I’ve never even conceived of one.

In theory, the court could fast-track the only other writ granted in 2022, a criminal appeal on whether excluded evidence was for alibi or impeachment purposes, to create at least a three-argument session. But the reply brief isn’t in on that one yet – it isn’t due until next week – so it might be hard to get that one ready. We’ll see shortly.

ANALYSIS OF MARCH 16, 2023 SUPREME COURT OPINION

(Posted March 16, 2023) Everybody make it through yesterday okay? No stab wounds or anything? I ask because, at least in the legal profession, March 15 has been an unlucky day for over 2,000 years. (Gaius Julius Caesar was walking to court when he was murdered.)

On the assumption that all is well in your world, let’s take a look at a brand-new opinion from the Supreme Court of Virginia.

Criminal law

There’s no doubt that a woman named Kimberly Paul Barney robbed a drug store in Hampton early in the morning on Christmas Day in 2015. Here’s how today’s opinion describes the relatively simple factual setup; the person identified as Daugherty was the drug-store cashier:

Barney presented Daugherty with a box of candy and a handwritten note that stated: “[T]his is a robbery, stay calm, [and] don’t make a sound if you want to live.” Id. at 157. Mistakenly thinking the note was a shopping list, Daugherty initially ignored it, “rang up” the candy on the cash register, and put the candy in a bag. Id. Displeased by the oversight, Barney verbally commanded: “[G]ive me the money.” Id. at 158. Daugherty then read the note.

“[W]hen I saw the note,” Daugherty testified, “I looked and it appeared to me that she had a weapon in her pocket[,] and it was pointing at me in a motion for me to notice that she had what I believed to be a weapon.” Id. She continued, “I was being robbed at what I believed to be gunpoint.” Id. at 157.

I’ll quickly add that no one was physically harmed in this encounter. Barney got a fistful of cash and left the store without taking her right hand out of her sweatshirt pocket. The matter ended appropriately, with Barney’s arrest the next day by local police. Authorities never found a firearm.

The issue in Commonwealth v. Barney isn’t the robbery; Barney pleaded guilty to that charge, and is probably receiving a substantial period of free room and board with the compliments of the Director of Corrections. The issue today is Barney’s conviction for a companion firearm charge – use of a firearm in the commission of a felony. At trial, Barney admitted the robberies, but denied that she actually had a weapon at the time.

When it comes to victims, Virginia law emphatically is not heartless; you can be convicted of robbery even when you bluff your way through it by convincing a victim that her life really is in danger. The store clerk unquestionably feared for her life. But the companion-firearm statute is different: It affirmatively requires the use of a firearm, or a replica that looks enough like a firearm. The question in this appeal is whether the prosecution proved that Barney had a gun, and not merely an extended finger, in that pocket.

Although no one ever saw a gun and Barney never claimed that she had one, a jury was satisfied and convicted her of the firearm charge. A panel of the Court of Appeals semi-unanimously reversed that conviction, holding that the evidence didn’t establish the presence of a weapon beyond a reasonable doubt. (It was semi-unanimous because one judge concurred in the result.)

That made it the Commonwealth’s turn to appeal; it sought and obtained a writ. Today a sharply divided Supreme Court reverses the CAV, reinstates the conviction, and enters final judgment.

Justice Kelsey pens the majority opinion; he’s joined by Justices Powell, McCullough, and Chafin. The majority concludes that there was enough circumstantial evidence to enable the jury to find the presence of a weapon.

In a 2004 SCV decision, the robber had stated to his victim that he possessed a gun. The Dubya-era justices found that sufficient to establish possession of the weapon. In voting to reverse Barney’s conviction, the CAV had found this factual difference critical, but today’s majority calls it “a feather-weight distinction,” continuing,

Barney threatened to kill Daugherty. Barney made this threat while pointing at Daugherty what looked like the barrel of a handgun. The murder weapon in her pocket — Barney’s words and gestures obviously implied — was a handgun, not a finger. We thus see no persuasive value in the observation that unlike in Powell, Barney’s note “mentioned nothing of a weapon, let alone a firearm.”

I noticed a few other disputed angles in today’s opinions, but in my mind, this is the key dispute. Today’s dissenters – Justice Mann, joined by the chief justice and Senior Justice Mims – see things differently:

An affirmative inculpatory statement by a defendant that he or she possesses a firearm establishes an essential element of Code § 18.2-53.1. Without such an affirmative statement, to satisfy its burden of proof, the prosecution is required to present other evidence, which is sufficient to prove beyond a reasonable doubt, that a defendant did in fact possess a firearm.

The dissent adds, “Here, the feather is mighty when weighed against silence.”

It’s been a long, long time since I handled criminal work, so I know better than to start making broad pronouncements about that area of the law. I try to stay in my lane. But today’s opinion does pique my interest in an area that emphatically is in my lane: appellate review of jury findings.

Criminal prosecutions demand the strongest burden of proof known to the law: proof beyond a reasonable doubt. In this case, that means that the prosecution had to establish the presence of a weapon, and that proof had to be so strong that any doubt about its presence would be unreasonable.

If this had been a civil case, measured by a preponderance standard, then it would be easy to shrug and say that the jury could well have concluded that the robber probably had a gun. But in a criminal case, one must conclude that the possibility that Barney used only her finger is not only improbable; it’s unreasonable.

In that context, I invite you to envision yourself trying to explain to a layman the difference between this case, in which the Supreme Court defers wholly to the jury, and the recent civil ruling in Colas v. Tyree, where the justices on January 26^th simply discarded a jury’s well-supported fact finding in favor of a little-used evidentiary presumption.

I encourage you to keep this conversation hypothetical. Don’t actually try to convince a real layman, because you won’t succeed. You will instead get a puzzled look and a question like, “So does the appellate court allow the jury to find the facts, or not?” In these two decisions, the majorities – Colas was 4-3, too, with the same four justices in the majority – defer to the jury in the case with the tougher burden of proof, and intervene on the more lenient one. That’s the reverse of what I would expect.

Today’s decision is the latest in a small number of rulings in which the Supreme Court ironically splits 4-3 on the question whether reasonable people can disagree on something.

ANALYSIS OF FEBRUARY 9, 2023 SUPREME COURT OPINION

(Posted February 9, 2023) The Supreme Court of Virginia hands down a single published opinion this morning. Horn v. Webb is primarily about easements by prescription, though there’s a side order of punitive damages on the menu.

This appeal relates to lakefront property in Fairfax County, designated as Lot 612. Back in the Johnson Administration – Lyndon; not Andrew – the owners of that lot reached an agreement with two landlocked neighbors. Lot 612’s owners would grant to the owners of Lots 613 and 615 a nonexclusive but still valuable easement of access to the lake. In exchange, the two neighbors agreed to build a retaining wall – I assume this is a bulkhead – along the lake frontage of Lot 612. The parties memorialized this agreement in a deed of easement.

The owners of the inland lots built the wall and a set of steps to allow access by all three owners to the lake; they also moored a pontoon boat along the frontage of Lot 612, and kept it there for many years. (The two inland neighbors jointly owned the boat. It sank about 50 years later, but was quickly replaced.) They also periodically stored canoes on Lot 612, presumably just landward of the bulkhead.

Gradually, title to all three properties changed hands. The current owners include the Webbs, who own the waterfront lot, and the Horns, who own Lot 615. The Webbs bought their lot in 2017 and wrote to the owners of the inland lots, asserting that the easement didn’t allow the mooring of the pontoon or the storing of the canoes on the site. The owners of the inland lots refused to change anything in response, citing their rights under the deed of easement.

Now we’re heading for court. The owners of Lot 613 sued the Webbs, seeking a declaratory judgment that they possessed the disputed rights; the Webbs counter-sued for trespass. (Justice McCullough, who pens today’s opinion for a unanimous court, helpfully calls this “Round 1.”) The circuit court ruled in favor of the Webbs, the owners of the servient tenement.

Instead of appealing, the losing owners of Lot 613, having had enough, sold their half interest in the boat to the Horns for the princely sum of one dollar, American. When the Horns still refused to remove the boat and the smaller craft, it was the Webbs’ turn to sue. They sought a declaration and punitive damages, asserting that in the wake of Round 1, the Horns could no longer plausibly claim the disputed rights. They asserted that the Horns were in privity with the owners of Lot 613, so they were bound by the earlier ruling.

The court convened a bench trial with a different judge. The result was favorable for the Webbs: judgment for compensatory and punitive damages, plus a declaration that the Horns’ use was in excess of the limited rights in the deed of easement. The Horns sought and received a writ.

Today’s opinion offers something for each side. The justices first affirm the circuit court’s holding that the Horns had not established a prescriptive right to store small watercraft on Lot 612. The evidence at trial established some periodic use like that, but not continuous use for the required 20-year period.

The Horns fare better when it comes to the mooring of the pontoon boat, as the court rules that the evidence established the requisites for a prescriptive easement: open, visible, exclusive, and continuous use under claim of right for the statutory period. The fact that the owners of Lot 613, plus the Webbs themselves, also had the right to use the space doesn’t make the Horns’ (and their predecessors’) use any less exclusive. That may sound counterintuitive, but there’s unambiguous SCV precedent to back it up.

The Supreme Court today rejects the Webbs’ claim that their neighbors’ use was permissive. That matters because a permissive use can never mature into a prescriptive easement. Here’s a key passage from this part of the opinion: “The fact that prior owners of these lots were on friendly terms does not establish a permissive use. Failure to object is acquiescence. Acquiescence is not the same as granting permission.” The court adds that there’s no “tacking” allowed of prior owners’ consent to use the easement, noting that once Lot 612’s original owners sold the lot, any permission that they may have granted must end. That means that the Webbs can’t establish that the Horns’ use was permissive, so that use can ripen into a prescriptive easement.

The court last takes up the punitive-damage award. After independently reviewing the record, the justices first hold that the Horns can’t be liable for punitives for the pontoon-boat mooring, because they’re now the prevailing parties. Even on the claim involving the canoes, the court today notes that the Horns had plausible evidence to support their defense. Although the circuit court ruled against them, there’s no ground to find that they acted maliciously. And the Horns weren’t parties to the Round 1 proceedings, so they can’t be bound by it. The punitive-damage award thus vanishes today.

In all, this probably makes the Horns, the owners of the dominant tenement, the primary victors today. They have to relocate their canoes and will owe $3,300 for trespass damages; but they retain the right to moor the pontoon boat and they escape liability for about $8,000 in damages on that claim. Most important, the justices vacate a $45,000 punitive-damage award.

Ah, but this is probably a Pyrrhic victory, you’re thinking, because the Horns must have incurred appellate legal fees that matched or exceeded the amount of the damages that they saved by appealing. Surprise! The Horns appeared in the Supreme Court pro se. That’s a rare victory for an uncounseled appellate litigant.

One last point: Today’s decision comes down after a quick turnaround. The justices entertained oral argument in this appeal on January 10, just over four weeks ago. This is thus the first appellate decision issued in an appeal argued in 2023. The Supreme Court’s docket now contains just five undecided appeals in argued cases – two from November and three from January. The February argument docket isn’t out yet, but as I’ve noted here, I expect approximately eight appeals to be argued when the full court next convenes in less than three weeks.

ANALYSIS OF FEBRUARY 2, 2023 SUPREME COURT OPINION

(Posted February 2, 2023) Honestly, how could that blasted groundhog not see his shadow when countless floodlights rudely greet him first thing in the morning? All he wants to do on a cold, dreary winter day like this is get up and go out to the driveway to get his morning newspaper to enjoy with a cup of coffee in front of the fire, only to find a horde of media there waiting for him with cameras rolling. Of course there’ll be six more weeks of winter.

(Sigh) Let’s check in on today’s published opinion from the Supreme Court of Virginia.

Land use

I could just as easily have titled this section Standing, because that’s the dominant issue in Morgan v. Hanover County. The genesis of today’s dispute is the prospective development of a vacant site into a huge distribution facility in Hanover for the major retailer Wegmans.

This site was rezoned in 1995 for industrial use, but it was regarded as speculative zoning, because there wasn’t a concrete development plan. The land sat idle for a generation before Wegmans contracted to buy it from the owner, hoping to build the facility mentioned above. To do that, it needed to tweak the zoning a bit and get a special use permit.

The retailer sought such approval for those changes; the planning commission approved both applications. That sent the matter to the county’s board of supervisors for final action.

The board approved the applications in 2020. You’ll recall that public life sustained a major hit that year from the pandemic, so the board conducted its business under some form of Covid protocols.

These neighbors filed suit in circuit court to challenge the land-use decisions. They objected to the granting of the retailer’s requests, and to the manner in which the board of supervisors decided the matter. The circuit court eventually sustained demurrers and dismissed the action, concluding that the neighbors hadn’t established standing to sue.

Last year, the justices agreed to take a look, and today they reverse, sending the case back for a decision on the merits. Justice Kelsey, writing for a unanimous court, notes that standing is a threshold issue that requires two things in land-use challenges like this, to establish that the neighbors have a personal stake in the case. They have to own or occupy property that’s near the subject site, and they have to show that they would suffer a particularized harm that’s different from the development’s effect on the public generally.

The court today holds that the complaint here satisfied both of these requirements. The neighbors are all adjacent to or near the 200-acre site, and they alleged specific effects on their properties sufficient to enable them to bring these claims. They may or may not ultimately win on the merits – the Supreme Court today specifically declines to comment on the substantive issues of the case – but they’ll have a shot at trial now.

This is the latest in a recent string of significant SCV decisions on standing. The justices today warn trial courts not to “conflate the threshold standing inquiry with the merits of [a litigant’s] claim.” An energetic defendant might try to couch a merits defense in standing terms, hoping for a quick win on an issue that the justices have described as jurisdictional. But if the pleadings allege facts that would, if proved, establish the plaintiff’s right to sue, a resolution of the issue must await trial on the merits.

ANALYSIS OF JANUARY 26, 2023 SUPREME COURT OPINION

(Posted January 26, 2023) There’s universal agreement that the circumstances of Colas v. Tyree were tragic. Nor does anyone dispute that those circumstances wrought an irreparable loss. But today’s split decision from the Supreme Court of Virginia generates substantial disagreement as to the liability question, and a major debate about an arcane evidentiary rule.

The tragedy arose here in Virginia Beach, my hometown. It began when a 57-year-old man, Jeffrey Tyree, suffered what the court describes today as a mental breakdown while at his mother’s house. His sister described his behavior as crazy, angry, and erratic, a major change from his usual calm demeanor; he was usually “the most caring, giving person you could ever meet.”

I’ll interrupt this analysis to say that I anticipate your skepticism. Perhaps you believe that the sister’s laudatory description was hyperbole. But this case comes to the Supreme Court on a verdict in favor of the sister, as Tyree’s personal representative. Because of that verdict, we have to take the evidence, including the sister’s description of her brother, as true.

Tyree’s erratic behavior prompted a call to police; the goal was to get him to consent to mental-health treatment. When officers arrived – and they came in droves – they observed that he had a knife in his hand. This wasn’t a table knife; one officer described it as a military-style blade.

Because Tyree was inside a fenced yard, the officers began to speak with him in an extended effort to de-escalate the situation. The conversation lasted over two hours, during which time Tyree’s mood temporarily calmed, though he never did agree to receive treatment. He occasionally placed the knife down but didn’t surrender it. He told the officers that he had no desire to harm them and never threatened or lunged at any of them.

The officers designed a plan to get Tyree to drop the knife for a moment, at which point they’d fire rubber bullets at him to enable them to subdue him. Tyree dropped the knife as they had asked, but the careful plan vanished when one officer named Tuft-Williams, contrary to the established plan, charged Tyree and tackled him. (Today’s majority opinion describes this phase as “The Plan Goes Awry”; I think that’s a euphemism.)

Tyree and Tuft-Williams landed on the ground, near each other. The officer started to roll away, and Tyree picked up the knife and held it aloft. At this point – about two seconds after the tackle – a detective at the scene, Bradley Colas, fired a single shot, hitting Tyree. Despite receiving immediate medical attention, Tyree died.

Tyree’s personal rep sued for gross negligence and battery. At trial, the circuit court allowed the jury to decide both claims.

Detective Colas testified that the fired his weapon because he believed that Tyree was about to stab Officer Tuft-Williams. He said that he perceived that Tyree was moving the knife toward Tuft-Williams, though other officers at the scene saw no such movement; all they said was that Tyree held the knife in the air.

The jury sided with the personal rep, awarding her damages against Colas on the battery claim only; the circuit judge entered judgment on the verdict. The detective got a writ.

Today a bare majority of the Supreme Court votes to reverse and enter final judgment for the detective. Justice McCullough writes for Justices Powell, Kelsey, and Chafin; he concludes that the adverse-party-witness rule compels a finding that the detective acted in defense of another’s life.

Normally, a jury is free to accept or disregard any testimony in a trial. Credibility is purely a jury question, and appellate jurists have long shied away from second-guessing the body that got to hear witnesses testify live. But there’s a narrow exception to that principle: When a party calls an opponent as an adverse witness, the calling party is bound by that testimony unless it’s contradicted by other evidence or is inherently incredible.

Today the majority concludes that the detective’s testimony about his perception of danger is uncontradicted and is not inherently incredible. It thus finds that a finder of fact was effectively required to believe it, so the trial court should have struck the plaintiff’s evidence. That is, the justices rule that the detective’s testimony conclusively established the defense-of-another defense.

I mentioned a dissent, and it’s spirited. Not that one would expect a subdued dissent from Justice Russell, who writes for the chief justice and Justice Mann. The dissent acknowledges the evidence cited in the majority opinion, and concurs that the adverse-party-witness rule is an exception to the right of the jury to make unfettered credibility determinations. But in the dissenting justices’ view, the majority’s recitation of the facts is too breezy, and omits evidence that could entitle a reasonable jury to find that the detective’s version of the story ain’t necessarily so.

Here’s one key example. As I mentioned above, after the tackle the detective saw the knife in the air, analyzed the situation, and concluded that his law-enforcement partner was in grave danger, so he fired – all within two seconds. Part of that calculus was his testimony that Tyree was moving the knife toward the officer. But the other officers didn’t corroborate that perception, and a jury might not have found that Tyree was actually threatening anyone with it.

There’s more. Here’s a passage from the dissent:

Tyree was fifty-seven years old and suffered from physical disability that caused him to use a cane or walker to get around. Both the video evidence and the testimony established that his movements were not those of a physically vigorous person, with one police witness characterizing Tyree’s movements as “shuffling or stuttering[.]” This contrasts with Tuft-Williams, who was younger, an active member of the police force, and who, from the video evidence, did not suffer from a physical disability sufficient to impair his movements. Certainly, Tuft-Williams’ movements at the time of the tackle and immediately afterwards would not be characterized as “shuffling or stuttering.” A rational juror was entitled to consider the contrast in the physical condition of these two individuals in determining whether it was reasonable for Colas to conclude that Tyree posed a lethal threat to Tuft-Williams, even if Tyree fell in close proximity to Tuft-Williams after Tuft-Williams tackled Tyree by surprise.

The majority opinion mentions nothing about Tyree’s physical (as contrasted with mental) condition; the dissent has to drag these facts into the case long after the majority has rested. The majority doesn’t even touch this issue.

Note that there are two components to the detective’s defense. He had to establish that he actually perceived an imminent risk of serious harm or death, and that that perception was reasonable. The first of these is subjective while the second is objective. The dissent insists that his testimony can only establish, at best, the first component, and that assumes that the jury believes him; it was up to the jury, assessing all of the evidence, to decide the objective criterion. The Supreme Court has now countermanded the jury’s decision on that aspect of the defense.

This is the second consecutive SCV opinion to feature a troubling dynamic: The dissent raises important points that the majority decides not to touch. Last week, Justice Mann’s solo dissent in Forness v. Commonwealth contained multiple highly plausible arguments that the concise opinion of the court just ignored, without attempting to refute them. These objections aren’t surprises; the justices who write majority and dissenting opinions exchange drafts in advance, so each can see and address what the other is writing.

Justice Russell acknowledges that a reasonable jury, receiving testimony such as this, may well choose to accept the detective’s version and return a verdict accordingly. But that didn’t happen here; the jury saw the testimony the other way. The Supreme Court’s decision today, the dissent posits, amounts to a finding that no rational jury could have found otherwise.

O those among ye who try cases, harken to my warning: This opinion is a strong suggestion that you should call an adverse party as a witness only under extremely dire circumstances. The Supreme Court, normally deferential to jury verdicts, has signaled its willingness to take away a plaintiff’s verdict based on a defendant’s self-serving adverse-witness testimony. If you have other evidence that flatly contradicts the self-serving parts, then you can probably go ahead and force the Bad Guy to take the stand; but in my humble view, that’s still probably too risky now, in almost all circumstances.

For brevity’s sake, I haven’t discussed all of the disputed issues here. You’ll find disagreement over whether the plaintiff established that a battery had occurred, because that includes the component of whether a touching was justified or not. Under the law, the plaintiff has to prove a lack of justification to establish a battery; it’s essential to his case in chief. At trial, the detective’s lawyer admitted to the jury, “A battery occurred.” Despite that admission, the majority concludes that the plaintiff’s evidence establishes that the touching (here, by a bullet) was justified. The dissent just can’t stomach that inconsistency, making for very interesting reading for courtwatchers like us.

One last point. Citing the guaranty in Art. I, section 11 of our constitution, the Supreme Court often repeats the admonition that reviewing courts must accept the evidence in the light most favorable to the party who got the jury verdict. The dissent’s primary critique here is that the majority turns its back on that ancient principle, essentially reengineering the facts in favor of the detective.

After reading today’s opinions, you may agree or disagree with that criticism; I won’t try to steer you either way. Just don’t assume that fact-bending like that never happens on appeal. I can cite multiple occasions where appellate courts have rejiggered the facts to fit a desired conclusion. I’d prefer to believe otherwise, but having seen it before, I no longer subscribe to such a naïve perspective. It happens.

ANALYSIS OF JANUARY 19, 2023 SUPREME COURT OPINION

(Posted January 19, 2023) This morning brings the first decision of the year from the Supreme Court of Virginia. In Forness v. Commonwealth, the court addresses an expungement petition filed by a defendant who admittedly was accused of the wrong crime.

Forness was the involuntary recipient of a document entitled, “WARRANT OF ARREST – FELONY.” The charging language alleged that he “did unlawfully and feloniously in violation of Section 18.2-266 . . . drive or operate a motor vehicle while having a blood alcohol concentration of 0.08 percent or more by weight” and did so “after having committed one prior violation of § 18.2-266 or an offense set forth in subsection E of § 18.2-270 during a period of five to ten years from the date of the current offense and after having committed a previous violation of § 18.2-36.1, 18.2-36.2, 18.2-51.4, 18.2-51.5, or a felony violation of § 18.2-266.” The shortcut language for this is a felony charge of a second DUI after having previously been convicted of felony DUI.

Forness did indeed have a prior DUI conviction, but it wasn’t a felony. That led the local prosecutor to move the general district court to amend the charge to plain-vanilla DUI-second, which is a misdemeanor. The court granted that motion and then convicted Forness. An appeal to circuit got him nothing but another conviction. But that isn’t the heart of our tale.

Forness filed a petition to expunge records of the mistaken felony arrest. He pointed out that he works in the jewelry industry, and having a record that indicates falsely that he has a felony conviction can impair his ability to get work; he also might face an incorrect charge of carrying a firearm by a convicted felon. The arrest record is in state and national criminal databases, so this mistake will follow him everywhere.

At a hearing on the expungement petition, the circuit court ruled that he hadn’t established the required manifest injustice to justify judicial intervention. The court reasoned that Forness’s fears about employment opportunities were speculative.

Forness got a writ, and today a divided Supreme Court affirms the denial of expungement. Justice Powell writes the opinion of the court, and her reasoning is simple; indeed, the majority opinion is just 4½ pages. Applying the right-for-a-different-reason approach, the justices hold that Forness can’t establish that the original charge resulted in an acquittal or nolle prosequi, “or [was] otherwise dismissed.”

Citing a 2011 decision involving a conviction of a lesser included offense, the court reasons that the amendment of the original felony charge down to a misdemeanor won’t satisfy the threshold criterion for expungement relief. Justice Powell notes that there’s only one primary-offense DUI statute; the felony/misdemeanor distinction only appears in a separate statute that sets out the penalties for a conviction. Because the underlying charge didn’t change, the court concludes that it wasn’t “otherwise dismissed,” so Forness isn’t entitled to relief.

For the first time in over four months, we have a dissenting opinion. Justice Mann finds it “confounding” that this case before the court. “After all, there is no dispute that Forness was charged with the wrong crime.”

In contrast to the short majority, the dissent is expansive – 12 pages in all. Justice Mann points out that the majority’s reliance on the lesser included offense precedent is ill-advised, because the prosecution has the burden to prove each element of the offense, including prior convictions, beyond a reasonable doubt.

The majority had held that the greater charge – the felony prosecution – subsumed within it the lesser charge of second-offense DUI. Justice Mann’s rejoinder seems to make a solid point: A fictitious prior felony conviction is something entirely different from the prior misdemeanor conviction that the prosecution had to establish in the amended charge. He adds,

The majority’s line of reasoning implies that a DWI is a DWI, no matter the aggravating facts. If that were the case, Code § 18.2-270 would not exist, the Commonwealth would never have amended Forness’ original charge, and this appeal would likely not be before us. After all, why would the Commonwealth need to amend the charge if Forness’ prior offense was not an element of the crime? Under the majority’s analysis, it could simply address the issue during the sentencing phase.

You know what? Good point! The majority opinion doesn’t touch it, so this objection to the affirmance goes unanswered. He also notes, persuasively, that if the prosecutor had taken another approach in the GDC – nolle prosequi followed by issuance of a new arrest warrant, or even trial followed by acquittal, there would be no doubt of Forness’s right to expungement relief.

Justice Mann goes on to address the manifest-injustice prong, the basis for the judgment below, even though the opinion of the court found it unnecessary to address that component of the case. The dissent concludes that Forness did make out a case of manifest injustice, so the case should be remanded.

I found myself nodding in agreement as I read through the dissent here. The expungement statute is remedial, and courts are supposed to construe remedial statutes liberally in furtherance of their purposes. I believe it’s more than merely plausible to view these facts as a form of dismissal of the original, mistaken felony charge. As I see it, the Supreme Court today interprets the requirement of “otherwise dismissed” quite narrowly, limiting the reach of this remedial act by the legislature. Forness now gets to live with this too-narrow reading for the rest of his life.

ANALYSIS OF DECEMBER 29, 2022 SUPREME COURT OPINIONS

(Posted December 29, 2022) “There is no doubt that Marley was dead. This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.”

These lines appear near the opening of A Christmas Carol, Dickens’s wonderful holiday tale. It seems fitting to invoke them, because the Supreme Court of Virginia provides three hauntings (published opinions) this morning.

The First of the Three Spirits

Criminal law

The rule of lenity haunts us first, in Morgan v. Commonwealth. It’s a prosecution for carrying a concealed weapon while intoxicated. The statute in issue here is a cousin of the basic proscription of carrying a concealed weapon.

“There is no doubt that the weapon was concealed. This must be distinctly understood.” Morgan, who possessed a concealed-carry permit, was stopped for erratic driving one day here in my sunny home town of Virginia Beach. He immediately reported to the investigating officer that there was a handgun in the car, holstered and inside a zipped bag.

The officer eventually charged the driver with DUI and added other charges, including the one at stake here. At trial, the driver argued unsuccessfully that he wasn’t carrying the weapon; it was inside the bag and unavailable for use or surprise. That defense harks back over a century to a 1909 case in which a defendant was convicted of carrying a concealed weapon that was “encased in a scabbard that was concealed within a saddlebag.” The Supreme Court reversed that conviction, holding that the statute didn’t reach a weapon thus secured.

In 1979, the justices modified the holding of the saddlebags case, ruling that a pistol inside a woman’s purse was indeed a carried concealed weapon. After all, the owner could merely reach into the purse, grab the gun, and shoot right through the bottom of the purse. That set of Robes added that the saddlebags case could be factually distinguished, but in case of any conflict, it was overruled.

That brings us to the 21^st Century. After a conviction at trial and an affirmance in the Court of Appeals, the justices – to my surprise – reverse and enter a final judgment of acquittal. Noting a difference in the language of this statute and the general prohibition of concealed-carrying, the court rules that there are two possible interpretations of the Code. When that happens, the rule of lenity dictates that a close call goes to the defendant, because we don’t want to punish people for violating ambiguous criminal statutes. The SCV rules today that the General Assembly didn’t intend to reach this conduct, based on the specific wording that it chose to enact.

The Second of the Three Spirits

Taxation

The second spirit has haunted us before: The litigants in Isle of Wight County v. International Paper Company last appeared two years ago in an appeal that resulted in a remand, a trial judge’s worst nightmare. Today they return, hungry for more.

This, my loyal readers may recall, is a dispute over machinery and tools taxes for a large paper factory. The county assessed the machinery and tools at $139 million. In a prior challenge, the company obtained tax relief of $2.4 million for tax years 2012-14, and the county had to provide other M&T taxpayers with comparable relief.

This left the county with a real fiscal problem. Its solution was to jack up the tax rate – not the assessment values, but the ad valorem multiplier – for M&T taxes for the 2017 tax year only. The rate went from $1.75 per $100 of value to $4.25 per $100.

A jolt like that – perhaps combined with the knowledge that the county could in the future impose another short-term rate hike to raise funds – might foreseeably inspire some of the county’s large taxpayers to seek a friendlier home for their operations. The decisionmakers there accordingly fashioned a one-time tax-relief program to ease the burden of the new higher tax rate. This program allowed a credit to those taxpayers affected, capping their tax increase at the amount of the tax refund they had just received. In other words, they county designed the program to be tax-neutral for those taxpayers.

It didn’t work; International Paper sued and, after the circuit court struck its evidence, got that reversal and remand in 2020. In that reversal, the justices ruled that the company made out at least a prima facie case for relief.

On remand, the court conducted a hearing in which the county adduced almost no evidence; just an admission that the company owned machinery and tools that were subject to taxation. Deciding the case on the merits, the learned judge held that the company had rebutted the presumption of correctness and had shown that the tax was not uniform. He had evidence in the record to back that up, too; today’s opinion notes that International Paper paid an effective tax rate of $3.94 per $100, while another taxpayer’s rate was $2.76. The court ordered a refund of the entire tax payment of almost $6 million for that tax year.

Swallowing hard, the county petitioned for a second writ. The spirits of Christmas were merciful, and the justices agreed to revisit the dispute.

Today’s ruling will haunt the county – the Supreme Court holds that the circuit judge had ample grounds to find a lack of uniformity. It rejects the county’s fallback request to invalidate only the tax relief program and leave the $4.24 tax rate intact. In doing so, the court agrees with the company that the tax increase and the tax-relief program were “interrelated and serve complimentary purposes.” They were enacted in tandem and they work together. That means that the entire framework falls.

There’s one final nightmare for the county. In the Supreme Court, the county’s amici asked the justices, in the event they agreed with the circuit court, to impose at least the old $1.75 tax rate. The county’s lawyer echoed this request in oral argument. But he had to admit that he hadn’t made that request either at trial or in appellate briefing. That means that this ultimate fallback position is defaulted under Rule 5:25, and the county gets zero M&T tax dollars from International Paper’s $139 million worth of equipment for that tax year.

Now you see why I described it as a nightmare: The sudden loss of nearly $6 million has to be devastating for a rural county like Isle of Wight. In this litigation, the county chose to roll the dice, hoping to enhance its odds of a large payday by not inviting the courts to “compromise” on a lesser figure. The dice came up snake eyes this morning.

The Third of the Three Spirits

Subrogation

The Uniform Commercial Code. There; I’ve said it, and have no doubt petrified some of my readers who grew to despise the UCC while in law school. But despite the minor-chord music that’s playing in the back of your mind, today’s ruling in Arch Insurance Company v. FVCbank is reasonably simple and easy to understand. Fear not; walk with me as we explore the snowy landscape of bank deposits.

The dramatis personae here include a subcontractor, its bank, and a surety company. The contractor set up accounts with the bank for three significant construction projects. The bank agreed to extend an $8 million credit line for the contractor’s operations, and extended payments accordingly. The agreement required the contractor to deposit its project receipts into something called a cash management account. Daily, the bank would grab (the technical banking term is “sweep”) the funds in this account to pay down the credit-line debt. The contractor granted a security interest to the bank over all of its deposits.

The next year, the contractor separately agreed with the surety company for payment and performance bonds for the contractor’s work. The contractor agreed that the surety would be subrogated to any of its claims in the event the surety had to bail it out of financial trouble.

If there were no ensuing financial trouble, we wouldn’t be having this conversation now; would we? The contractor ran into trouble and the surety agreed to deposit almost $4 million into the bank to help the struggling principal. The contractor asked the bank to accept the payment in trust, to protect the surety, but the bank never agreed to that. When things finally got bad enough, the bank swept $2.5 million to pay down its loans.

The contractor and the surety sued, claiming conversion and unjust enrichment. At trial in circuit court, the surety offered an expert witness in tracing the deposits. The court sustained the bank’s objection as to relevance and eventually dismissed the two claims, entering final judgment for the bank.

On appeal, the surety implored the Supreme Court, just as Ebenezer begged Jacob Marley’s ghost, “Speak comfort to me.” The court answers today, just as Marley did back then, “I have none to give.” The court affirms both trial-court rulings. The analysis in today’s 19-page opinion looks complex, but it really comes down to a simple principle: The bank had a perfected security interest in all of the deposits, so it acted well within its rights in sweeping the funds. The surety can rise no higher in its rights than its principal, and as Justice Mann’s opinion points out, “Regardless of the bonded or nonbonded character of Dominion’s funds, Arch only obtained Dominion’s right to the deposit accounts – a right Dominion had already signed away.”

*   *   *

In Dickens’s tale, a reformed Ebenezer observes that “The Spirits have done it all in one night. They can do anything they like. Of course they can. Of course they can.” The Robes today match that feat, doing it all in one morning for these three sets of litigants. With these rulings, there are only six unresolved appeals from among the 14 argued in the November session.

Will the court again clear its merits docket completely before the convening of the next session on January 10? I wouldn’t bet on that, as there’s only one more opinion day before then. But if you believe in Christmas miracles, who knows?

ANALYSIS OF DECEMBER 8, 2022 SUPREME COURT OPINION

(Posted December 8, 2022) It’s Thursday, and The Robes don’t disappoint. The Supreme Court of Virginia hands down a single published opinion this morning. It’s a declaratory-judgment action between two insurance companies, fighting over the subrogation rights of a Workers’ Comp insurer against the insurer of a tortfeasor.

Okay, I’ll admit that this one isn’t going to generate a banner headline in tomorrow morning’s newspapers. It barely generates a banner headline here at VANA. But let’s plunge in and see what The Robes hath wrought.

Today’s appeal is styled Hartford Underwriters Insurance Company v. Allstate Insurance Company. Hartford is the Comp carrier and Allstate insures the tortfeasor. The dispute arose after a motorist crashed her car into a storefront, injuring an employee inside. The employee obtained Comp benefits and retained the right to sue the driver.

Except the Comp benefits greatly exceeded the available liability-insurance coverage. The liability carrier decided to tender its policy limits of $50,000. The injured employee wanted to accept the tender and pursue her own UIM coverage, but learned that doing so might funnel all of the proceeds directly to the Comp insurer, as subrogee. She understandably decided not to accept the tender.

What do you do when someone won’t do what you want him or her to do? You haul ‘em into court; that’s what. The liability carrier filed an interpleader action asking the circuit court to figure out who was entitled to what. The employee insisted that, by law, she was at least entitled to the amount of the attorney’s fee for pursuing a successful claim against the tortfeasor’s insurance.

Today’s opinion lists a fee of $16,667, or the classic contingent fee of one-third of the gross recovery, plus a bit over $200 in costs advanced. If I’m reading this opinion correctly, that means that the insurers sent some very capable lawyers – I’ve seen the listing of counsel, and these folks are very capable – to Richmond to argue over roughly $17,000.

Not that I mind! I like it when appellate lawyers get paid. Nevertheless, that relatively small sum is the playing field in this case.

The issue in circuit court was whether the Comp carrier could use intercompany arbitration to resolve the competing claims and distribute the money. That court ruled that the Comp carrier got only about $33,000 out of the $50K. The Comp carrier appealed and got a writ.

Today the justices affirm, holding that the employee did indeed retain the right to sue the tortfeasor, and that the Comp carrier was entitled to a lien on any recovery. The opinion goes on to cite a 2017 amendment to a subrogation statute. That amendment, the court holds today, effectively overruled a key holding of a 2016 Court of Appeals decision in this field. Now, arbitration can only determine “the amount and validity of the employer’s lien.” The previous version of the statute had allowed the Comp carrier to satisfy its lien through arbitration. That remedy isn’t available anymore.

As a practical matter, satisfaction of a Comp lien now must await “an additional event, a settlement or verdict in a claim” by the tort victim or its subrogee carrier. Until such an event, the Comp lien remains inchoate.

*   *   *

In addition to the published opinion in Hartford Underwriters, the Supreme Court decides three appeals by unpublished orders:

• In Sasson v. Shenhar, the reprise of a dispute first decided by the Supreme Court 14 years ago, the court issues a right-for-a-different-reason ruling, holding that a DJ action is the wrong procedural vehicle to challenge an old contempt order.
• Handberg v. The Morgan Center is, in a sense, another repeat appearance. It’s a sequel to Handberg v. Goldberg from three years ago. Today the justices affirm a mootness dismissal in a case involving convoluted facts over two corporations. The Supreme Court affirms the learned trial judge’s holding that the case is moot.
• Finally, in Anderson v. Bowen, the justices reverse a distribution order for numerous guns in a decedent’s estate.

The Supreme Court has now decided five of the 14 appeals argued in the November session, just five weeks ago. A part of me is rooting for the court to again clear its argument docket before convening for the January session on January 10, though the holidays make that somewhat unlikely. But I won’t rule it out! The Robes have become very good at surprising me on little things like this.

ANALYSIS OF DECEMBER 1, 2022 SUPREME COURT OPINION

(Posted December 1, 2022) I got one right! At the time of the Supreme Court’s November session four weeks ago, I gingerly predicted that today would be the first likely date on which we might see rulings from that session. Today the court hands down a single opinion in an insurance-coverage case.

The issue in Geico Advantage Insurance v. Miles is whether an insured can “stack” the uninsured coverage and the underinsured coverage in a single policy. Miles was injured in a collision caused by two other drivers. One of the others stopped at the scene; the other took the coward’s approach and fled. He thus became John Doe.

The driver who stopped at the scene had statutory minimum coverage of $25,000 per claimant. Miles’s special damages greatly exceeded that, so she turned to two insurance policies that protected her: her own vehicle’s policy, and one owned by her brother, with whom she lived. Each had $50,000 in UM/UIM coverage. Geico affiliates issued both of these policies.

The at-fault driver’s insurer tendered its $25K policy limits. Miles sought payment from the two Geico policies, asking for $75K from her own policy and $100K from her brother’s. She reasoned that she was injured by both an uninsured driver and an underinsured driver, so both coverages applied. Allowing a credit for the original $25K, that made her claims on the Geico policies $175,000.

Geico responded that it only owed $50,000 on each of the policies. That led Miles to head to court, where she filed a declaratory-judgment suit against the insurers. The circuit court agreed with Miles and found that both policies’ UM and UIM coverage were available to her. The court declared that Geico owed her another $75,000.

Today’s opinion from the Supreme Court notes that there’s a split in the circuits on this issue. Today the court comes down on the side of the insurer, holding that UIM coverage is derivative of uninsured coverage. It then rules that you can’t stack both, even where, as here, the injuries are caused by one uninsured and one underinsured driver.

My sense is that this may be a very significant ruling in tort law, as inflation has steadily eroded the value of statutory minimums.

ANALYSIS OF OCTOBER 27, 2022 SUPREME COURT OPINION

(Posted October 27, 2022) They went and did it. All it took was for me to predict, in last week’s analysis, that the Supreme Court was highly unlikely to release a decision in its last remaining undecided appeal, and thereby completely clear its argument docket for the first time in years. Years!

I’ll never know if Justice Kelsey found that prediction to be a challenge: Oh, yeah? Watch this. Today the court hands down a published opinion in Appalachian Voices v. SCC, argued just six weeks ago in the September session. That means that the court has decided all of the appeals submitted to it, nearly a week before convening the November session next Tuesday. If you ever sought confirmation that I have no inside information on Supreme Court proceedings, this morning is Exhibit A.

My records indicate only one time in my nearly 18 years of covering the court when it has released opinions in all argued cases before convening the next session. That was the infamous “Roush to judgment” on February 12, 2016. Knowing that Justice Roush’s appointment was about to expire, and not wanting any legal wrangling over her participation in cases handed down after that expiration, the court labored to decide all pending merits appeals by that date. Before that it was … never, I suppose; before late 2015, the court always held opinions until the last day of the ensuing session. That became “opinion day,” and I knew to set aside those six days for analysis. Now we have 50 or so opinion days each year.

But I digress. We have an opinion! That being said, if you’re looking for fireworks, you may be waiting a while longer. This is a case over whether the law allows VEPCO to recoup its expenses to buy cap-and-trade allowances in the Regional Greenhouse Gas Initiative.

I’m genuinely grateful to Justice Kelsey for publishing an easy-to-understand two-paragraph summary of what cap-and-trade entails. I knew of the program, but never really appreciated the framework. Utilities have to purchase allowances – skeptics might call them “pollution indulgences,” channeling Martin Luther – for the right to release carbon dioxide into the atmosphere. These allowances become rarer as time goes by, so the price will rise. This is supposed to encourage utilities to pursue greener sources of energy.

VEPCO has bought these allowances – plus a small buffer, just in case – and sought State Corporation Commission approval for a rate adjustment to recover their cost. Yes, they can do that. Appalachian Voices, an environmental nonprofit, argued before the SCC that the utility bought more allowances than necessary, so it shouldn’t get a full reimbursement from utility customers.

As today’s opinion notes, the whole appeal turns on the definition of necessary. The nonprofit had argued for a strict interpretation, one that would deny reimbursement where, for example, the utility could have gone greener sooner, and thereby bought fewer allowances. The SCC didn’t buy that, and today, by unanimous vote, the Supreme Court agrees with the commission. It notes that Appalachian Voices can raise that kind of challenge in future reviews of VEPCO’s compliance with the new Virginia Clean Economy Act, which will govern future rate challenges.

*   *   *

If you’re an appellate junkie who waits with bated breath each Thursday morning hoping for new love letters from The Robes, you’re going to have to be patient. There is almost no chance (note the adverb; last week taught me a lesson) that we’ll see any opinions next Thursday or the week after that; the appeals will simply be too new. November 17 is possible, now that the court has enacted its own rocket docket. If I were forced to make a wager, American money, I’d circle December 1 as the next likely day for opinions. But I was wrong before, and I could be wrong here.

ANALYSIS OF OCTOBER 20, 2022 SUPREME COURT OPINIONS

(Posted October 20, 2022) The Supreme Court of Virginia continues its efforts to clear the decks of unresolved appeals, issuing three published opinions today in four argued cases.

Open government

While we do get one FOIA ruling today, the dominant news of this morning arises from a different context. The Daily Press, LLC v. Commonwealth implicates the public’s right of access to court proceedings.

This appeal arises from an ancillary proceeding to a criminal prosecution. The defendant is a Newport News police officer charged with murder in the course of his official duties. The officer was admitted to bail, but the prosecution subpoenaed certain records from the City, including its police internal-affairs investigation of the incident.

The City objected to the issuance of the subpoena, but the circuit court issued it anyway, directing that the subpoenaed documents be filed under seal until further court order. The City complied.

Upon reviewing the documents, the prosecutor moved the court to revoke the officer’s admission to bail, alleging that he was a danger to the community. This motion, also filed under seal, attached as exhibits many of the subpoenaed documents.

The court scheduled a hearing on the bail-revocation motion. Given the nature of the case and widespread public interest in police-involved homicides, the local newspaper sent a veteran reporter to cover the hearing. But at the outset of that hearing, the prosecutor moved the court to close the hearing to the public – specifically including the reporter – citing various concerns including the possibility of tainting a pool of veniremen.

The judge decided that this was an issue requiring some careful thought. The court continued the hearing and gave the reporter and his employer an opportunity to intervene and argue against closure. At a reconvened hearing, the court eventually granted the prosecutor’s request and gently invited the reporter to leave the room.

After the revocation hearing, the newspaper sought access to a transcript of what had transpired. No dice, the court ruled, also refusing to allow access to the bail-revocation motion and its many attachments.

That led to this appeal. The primary ruling today is that the circuit court erred by closing the revocation hearing to the public. Legal proceedings – and especially criminal proceedings – are matters of obvious public concern. As Justice Kelsey points out in today’s unanimous opinion, the public certainly has a right to know what’s going on when the issue is whether a person who might be a danger to the community should remain at large.

The justices today reject, one by one, the three grounds on which the circuit court had ruled as it had. The prosecution abandoned the first, an allegation that the pandemic had made summoning jurors problematic. By the time of this hearing, the courts were operating, if not normally be pre-pandemic standards, at least smoothly enough to make this a non-issue. For the second, the possibility of pretrial prejudice, the Supreme Court rules that lesser alternatives, such as extensive voir dire or even a change of venue, were preferable to denying the public’s right to know.

Finally, the circuit court had ruled that some of the subpoenaed documents, relating to previous incidents involving this police officer, had occurred before the time of the events charged in the indictment, and so were not relevant. Justice Kelsey’s riposte is worth quoting here: “This statement may be true, but it is answering the wrong question.” The trial court had held that prior incidents weren’t material to the pending criminal charge. But the Supreme Court rules today that they really-most-sincerely are relevant to whether the defendant should remain at large, especially if they might show him to be a danger to the community.

The ultimate ruling on the newspapers’ appeal is that the Supreme Court directs the unsealing of the sealed documents – it’s too late to allow the reporter into the hearing – and those documents will become public as soon as the SCV Clerk issues the mandate in this appeal. That should happen sometime in November, unless there’s a petition for rehearing.

This was a consolidated case, as the City filed an appeal of the circuit court’s ruling that it had no standing to participate in the decision whether to unseal the subpoenaed records. The City wasn’t the prosecuting authority – that was the Commonwealth – so the judge reasoned that it had no say in the proceedings. Not true, the Supreme Court rules today. The rules specifically permit a person or entity who produces records in response to a subpoena to try to prevent their disclosure.

The City thus wins the threshold issue, but that’s about it. On the merits – which the justices go ahead and reach, since the issues are purely legal – the Supreme Court holds that each of the lodged objections is insufficient to prevent disclosure. One of those arguments seemed quite promising: Internal affairs investigations, including interviews with the police officer involved, are traditionally regarded as confidential. That’s because officers must participate in the interviews, upon pain of losing their jobs. SCOTUS caselaw holds that that confidentiality can trump a judicial subpoena, because otherwise the officer would be compelled to give self-incriminating testimony.

But the court holds today that the City is the wrong party to assert this claim. The privilege belongs to the officer making the statements to internal-affairs investigators. The officer’s lawyer didn’t make an appearance in the appellate court, and the City can’t step into his shoes to raise this objection by proxy.

In a coda to these holdings, the justices note that while the case was pending in the Supreme Court, the circuit court went ahead and tried the officer on the murder charge. The jury found him guilty on at least one charge, but he hasn’t been sentenced yet. Today’s opinion directs the circuit court to go ahead and sentence him without waiting for the appellate mandate here. It specifically orders that any appeal of that conviction will run from the sentencing date, unaffected by this ancillary proceeding.

I promised you a FOIA decision. In Hawkins v. Town of South Hill, the justices interpret some relatively new language in the Virginia Freedom of Information Act.

This is the first opinion of the court written by the newest justice, Thomas Mann. In my humble opinion, he begins on a communicative high note. Here’s the first line of his opinion: “Our government belongs to the people it serves.” Well said. He goes on to note that information in the possession of the government likewise belongs to the people, unless a FOIA exemption applies. This appeal is about one such exemption.

The appellant here, Hawkins, is a Richmond attorney who sought certain documents from the Town, relating to what today’s opinion calls “employment disputes.” The Town responded, furnishing some documents and withholding others under a claim of exemption. Perceiving the responses as insufficient, the lawyer filed a mandamus petition seeking an order of disclosure, plus civil penalties and attorney’s fees.

The parties narrowed the dispute to seven documents. The circuit court reviewed the seven in camera before giving the lawyer a partial win in a letter opinion. It ruled that two of the documents could be disclosed, but the other five were exempt. Finding that the Town had won more issues than it lost, the court directed counsel for the Town to prepare a final order for endorsement and entry.

That counsel did so, but eventually had to report to the court that the petitioning lawyer “wants to address the issue of attorney’s fees.” The Town eventually moved the court to enter the order, and the petitioning lawyer didn’t oppose that motion. He instead endorsed the order, noting an objection to the failure to award fees.

The lawyer got a writ, and the Supreme Court received oral argument on the merits a scant five weeks ago. Today the justices reverse in part and remand. Noting that the trial judge didn’t have the benefit of an appellate interpretation of language inserted into FOIA in 2016, the opinion meticulously traces what FOIA means when it now exempts “personnel information concerning identifiable individuals.”

The current version of FOIA defines certain terms, but it leaves others maddeningly vague. The Supreme Court’s task here is to fill in the gaps in the statutory language. After explicating the words and the context, here’s what the court comes up with:

… we hold that “personnel information” for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.

This is a privacy-based interpretation that the court intends will enable courts to balance an individual government employee’s expectation of privacy against the public’s right to know. The justices remand the case for the circuit court to evaluate the FOIA request under this new guidance.

That leaves the issue of attorney’s fees. The Supreme Court ducks – well, let’s say that it declines to reach this issue by holding that the lawyer didn’t preserve it below. If you read my procedural recitation carefully, you might find that surprising: Emmert said a while back that the lawyer objected in his endorsement to the failure to award fees.

Today we get an important refinement in preservation jurisprudence. Yes, the lawyer included an objection in his endorsement; but he had never affirmatively asked the circuit court to award fees. In effect, the circuit court never ruled on a fee request because the lawyer never presented such a request (except in his original pleading). The letter opinion didn’t mention fees, and that issue only arose when the Town’s counsel mentioned that the lawyer wanted to address it. But he never did that, so there’s no real, live ruling for the court to review.

Can he make a fee request on remand? Maybe; I’m not sure. But I spotted an underlying issue that the court mentions obliquely today, in footnote 4: “Given our ruling today, we do not address the issue as to whether an attorney, who proceeds pro se, may be granted attorney fees.”

I don’t like to prejudge issues that may never arise, and even if they do, might never find their way into Virginia Reports. But I offer this tidbit of insight from SCOTUS, in a slightly different but highly analogous context:

Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that “a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators.

That’s from Kay v. Ehrler, 499 U. S. 432, 437-38 (1991), where Those Other Robes ruled that a pro se litigant – even one who’s a lawyer – can’t get an award of attorney’s fees under 42 U.S.C. §1988 when he represents himself in civil-rights litigation. I humbly forecast a similar outcome here, if this issue resurfaces.

Auctions

This is a new heading in the VANA annals. I’ve never previously addressed the requirements for auctions, but today, Justice Powell does just that in Williams v. Janson.

The subject here is a voluntary auction by two owners of 31 acres in Mecklenburg County. They advertised the property for sale at auction on a date certain. On that date, a prospective buyer attended, interested in the property. He decided to record the proceedings.

One of the owners served as auctioneer. Before the bidding began, he made a public announcement:

All right, so we’re going to auction this off. The high bidder today will be required to pay a five thousand dollar deposit due today or at the time of the commencement of the sale. It has to be in cash and certified funds. They have fourteen days to complete the sale. There’s an agreement to be signed at the end of the sale.

The bidding started at $30,000. The auctioneer tried to get someone to bid $40,000, but silence ensued until our prospective buyer volunteered, “I’ll do thirty-five.” The auctioneer recognized this as a bid of $35,000, and continued to ask for higher bids. Crickets. Finally, the auctioneer, building the tension, cried out, “Going once, going twice, I guess we’re going to have to no sell it.” He then declared that the auction was canceled.

Wait, what? That, at least, was the prospective buyer’s reaction. He had just made a bid and the auctioneer had recognized it. No one had outbid him. When the owners wouldn’t budge, he went to court, seeking specific performance.

The circuit judge agreed with the prospective buyer that the auctioneer was obligated to award him a contract at $35,000. The court directed the owners to convey fee-simple title to him for that price.

On appeal, we learn the difference between an auction with reserve and an auction without one. The latter is usually known as an absolute auction. With a reserve, the seller has the right to decline to sell if the bids don’t reach a price that he or she finds acceptable. In absolute auctions, the property can’t be withdrawn as soon as the first bid arrives.

I learned today that the default rule is that an auction is with reserve unless its terms specify an absolute auction. Here, neither the advance notice of sale nor the auctioneer’s preliminary instructions indicated an intent to waive a reserve. That means that the circuit court erroneously ordered the sale, so the Supreme Court reverses and enters final judgment. The sellers get to keep the property, maybe to try again at another auction.

*   *   *

The court also hands down an unpublished order today, in Dagvadorj v. Aljabi. It’s a will contest in which the testator decided to save himself some money. Instead of hiring a lawyer to prepare his will, he got a form off the Internet and filled it out himself.

You already know how this is going to turn out, right? The final version of the will contains inconsistent provisions. At one place, the testator appears to cut his wife and daughters out of the will; at another, he’s pretty clearly contemplating distributions to them. Alas, he’s no longer able to settle the ambiguity, having died three years ago. A circuit court judge was tasked to figure it all out.

The trial judge read the will and ruled that it unambiguously intended to cut the wife and children out. Today, the Supreme Court unanimously reverses, finding the language inherently ambiguous. Instead of ruling today who gets what, the justices remand the case for the circuit court to resolve the ambiguities.

The release of this unpub presents a remarkable situation. The Daily Press appeals were the last undecided cases argued in June. Hawkins, Williams, and the unpub were three of the four remaining undecided cases from the September session. That means that there is but one undecided appeal on which the court has received oral argument. If The Robes hand that one down next week, the court will have done something that I’ve never seen before in my 17+ years of covering this court: decide all of its argued cases before it convenes for the next argument docket. That may not mean much to casual observers, but a clearance rate of 100% is remarkable as far as I’m concerned.

Now that I’ve got your hopes up, it’s time to deflate them. The last remaining appeal is Appalachian Voices v. State Corporation Commission. I have zero, nada, no inside information on when this will come down, but SCC appeals tend to be complex, and complexity tends to mean longer delays before we see a ruling. One can dream, but I wouldn’t wager any actual American money that we’ll get the opinion next week. The next session, by the way, convenes Tuesday, November 1.

ANALYSIS OF OCTOBER 13, 2022 SUPREME COURT OPINIONS

(Posted October 13, 2022) Just four weeks after the September session, the Supreme Court of Virginia hands down rulings in nearly half of the appeals argued that week. I’ll confirm what you’re thinking: That’s fast work, measured by the court’s historical pace.

Probate

I could just as easily have classified Taylor v. Aids-Hilfe Koln E.V. as a foreign-judgments appeal. A man we’ll call Uncle James, who has dual German-US citizenship, makes a will in 2000 that leaves everything to Aids-Hilfe, a German charity. (My rudimentary recollection of the German language tells me that hilfe means help in that language, while Koln is the German spelling of the city we call Cologne, where Uncle James lived.) He also held a brokerage account here in the Commonwealth.

In 2018, Uncle James signed a TOD designation for his account, indicating that the account should be transferred on his death to his nephew and the nephew’s wife. Uncle James died a little under two years later.

The German charity sued in German courts, claiming that it was the sole heir of all of Uncle James’s assets, including the brokerage account. It alleged that Uncle James was incompetent when he signed the TOD designation. That court awarded the charity something called a certificate of heirship.

The charity then sued in Virginia, seeking to domesticate the German judgment here. A circuit court overruled the nephew’s demurrer and eventually awarded summary judgment to the charity. The nephew got a writ.

Today generates a split result, as the Supreme Court affirms in part and reverses in part. But make no mistake: The nephew emerges as the real winner here. The Supreme Court today affirms the decision to admit the will to probate and to appoint an administrator c.t.a., but rules that the charity doesn’t have standing to challenge the TOD designation. Only the estate, acting through its personal representative, can do that. It also rules that the German court didn’t “grant or deny recovery of a sum of money,” so the Uniform Foreign-Country Money Judgments Recognition Act doesn’t apply. The justices accordingly reverse the TOD ruling and enter final judgment for the nephew.

That doesn’t necessarily end things, though; the newly appointed administrator could move to invalidate the TOD designation, and a trial court (including a jury, if requested) could pass on Uncle James’s capacity. We’ll have to await further proceedings to learn what happens there.

Labor law

The Supreme Court interprets a new statute and provides a legal-writing milestone in Cornell v. Benedict, arising from my home town of Virginia Beach. It’s a suit for unpaid wages brought by counselors who worked for a group called Christian Psychotherapy Services. The group paid its clinicians every two weeks, based on moneys received for their work in a prior two-week billing period.

In 2020, the company found itself in financial distress. It hired an outside company as a “turnaround consultant”; I suppose that meant that they hoped that the outsiders would help them turn the business around and make it profitable. An employee of the consultant company served as president of Christian Psychotherapy’s newly established board of directors, and a long-time counselor acted as chair of the board.

As 2021 neared, dark clouds still overhung the company’s books. The board voted to cut costs by reducing its clinicians’ pay by 1%. The board chair communicated this to the employees, who probably grumbled a bit but didn’t overtly fuss.

As the ensuing pay period drew nigh, the company’s problems had worsened. The board voted to reduce pay by 30% and to pursue corporate bankruptcy. The board chair dutifully reported this to the clinicians and then promptly resigned, likely as a sign of solidarity with her co-workers.

The next day, the board reconvened to address its chair’s resignation. It collectively determined that the 30% reduction wasn’t workable, so it voted to fire every clinician, effective immediately. The president – the employee of the consultant hired to turn things around – carried out his instruction to notify the employees. That assuredly didn’t go over well.

Two days later, the president worked with Christian Psychotherapy’s staff to process final paychecks for the now-fired clinicians. Remember, they were paid in arrears for moneys brought in over a prior period, so the company emphatically owed them for their work. The president evidently figured out that the paycheck plan wouldn’t be feasible, so he, too, resigned immediately. The turnaround company terminated its contract the same day, leaving an empty therapy group with unpaid employees.

You can see that this is not going to end well. The clinicians sued to recover their pay. Perhaps sensing that Christian Psychotherapy might prove to be judgment-proof, they added claims against the president and the board chair, alleging that they were acting as employers in withholding paychecks. The suit cited a statute that defines employer to include companies, partnerships, etc., and “any similar entity acting directly or indirectly in the interest of an employer in relation to an employee.”

The president and board chair filed pleas in bar, asserting that “they were not employers, as that term is used in Code § 40.1-29(J), and that their resignations, before the wages were withheld, constituted an absolute bar to recovery” against them for the debt owed by the company. The learned judge heard evidence and then sustained the plea and dismissed the claims against the two individuals.

The Supreme Court awarded an appeal, presumably because the statute is quite new and hasn’t been interpreted yet. In a short opinion by the chief justice, the Supreme Court affirms, holding that the language of the statute doesn’t contemplate individual liability. That’s because it uses the word entity; the court rules today that that includes businesses but not humans. A similar statute expressly incorporates persons, so the legislature knew the difference.

The court’s analysis doesn’t address this, but I sense that the individual defendants’ actions played at least some role in this. The two defendants evidently were unwilling participants in corporate activity that they couldn’t stomach. They carried out the directives of the board, but then immediately resigned in what I assume was protest. The board had voted to withhold the final paychecks well after both individuals were gone. Note that the justices don’t reach this defense, but they had to know it.

I promised you a legal-writing milestone. There it is, on page 7 of the slip opinion:

“We believe it to be our duty to interpret the statute as written and when this is done our responsibility ceases.” Id. (internal quotation marks omitted). “The one canon of construction that precedes all others is that we presume that the legislature says what it means and means what it says.” Id. (cleaned up).

From what I can see, this is the first appellate opinion in the history of our fair Commonwealth that uses the relatively new parenthetical, “(cleaned up).” I first encountered this new practice a couple of years ago, when first advocates and then jurists took to removing all the editing clutter from truncated quotes. This method allows the writer to draft a normal-looking sentence while conveying to the reader that the original passage essentially says this, but that non-material changes have been made for ease of reading.

It may surprise my readers to learn that, in drafting briefs, I’m very conservative, stylistically speaking. For example, here at VANA, I routinely use contractions because that greatly aids readability for you. But in briefs, I almost never use them. (Once, perhaps ten years ago, I agonized for two days over whether to include one. I went ahead and did it, and the Supreme Court didn’t consign me to perdition for the sin. The next time, I pondered it for about two minutes before using one. Even so, I’ve probably used contractions three times in my entire briefwriting career.)

Now that we have what looks to me as judicial imprimatur for “(cleaned up),” I might consider using it, and you probably can, too.

Utilities

A judicial turf war simmers beneath Ashland, LLC v. Virginia-American Water Company, from the Hopewell Circuit Court. The appellee is a water utility that operates in that city; the appellant is one of its customers, a manufacturer of chemicals.

In 2018, the utility performed maintenance that resulted in a ruptured water line. That caused an interruption in service. As a result, the manufacturer was shut down for a time. It sued the utility in Hopewell Circuit Court for about $500,000 in lost business and profits.

In response, the utility pointed to what looked like some solid affirmative defenses. Today’s opinion cites this language from the tariff – the “schedule of rates, rules, and regulations” issued by the SCC – that governs the utility’s provision of water service:

Virginia-American cited tariff Rule 8(f), which provides in part that Virginia-American “shall not, in any way or under any circumstances, be held liable or responsible to any party … for any losses or damage resulting from any … deficiency in … supply of water due to any cause whatsoever[,]” and Rule 17(a), which states that Virginia-American “does not guarantee a[n] … uninterrupted supply of water, and customers are cautioned to provide sufficient storage of water where an absolutely uninterrupted supply must be assured.”

The reader will immediately note that Justice Wes Russell, who pens this, his first opinion in his new billet, has not yet adopted the “(cleaned up)” protocol. But I digress.

The trial court asked the parties to brief a jurisdictional issue: Can a circuit court evaluate a case that’s based on an SCC tariff, or must these disputes be tried in that other tribunal? The parties evidently concurred that the circuit court was a perfectly appropriate forum for such a challenge. But the court ruled otherwise, holding that the Constitution of Virginia expressly provides that only the Supreme Court can review SCC decisions. The court accordingly dismissed the case.

Today’s opinion is notable for two things – something the court does, and something it doesn’t do. The SCV does reach the constitutional question, ruling that the circuit court wasn’t being asked to review the SCC tariff; just to apply it. Circuit courts can and do try such claims regularly. Indeed, in a footnote, Justice Russell points out that if a circuit court can’t hear such a case, then no tribunal can, because the SCC “lacks jurisdiction to resolve contract claims between utilities and their customers.”

The justices thus reverse the jurisdictional dismissal. The litigants here asked the Supreme Court to go ahead and address the demurrer, since that presents solely questions of law. In such situations, appellate courts – including the SCV – sometimes go ahead and decide the legal questions instead of remanding. That saves everyone time and expense, including the foreseeable expense of a second appeal by whichever party loses on remand.

No dice, the justices rule today. Acknowledging that the Supreme Court can do this, it nevertheless declines to do so. The opinion observes that the parties’ briefs focused on the jurisdictional issue instead of the affirmative defenses. The court accordingly remands to give the circuit court the first crack at the issues. Of course, subsequent legal proceedings will be all the longer now, because the losing party on remand will have an appeal of right in the Court of Appeals, followed, perhaps, by discretionary review in the SCV. This litigation will probably be ongoing for another two or three years.

*   *   *

Something in the Ashland opinion caught my eye. It observed that the circuit court entered final judgment on May 24, 2021. That means that about 17 months passed between circuit-court judgment and the final decision in the Supreme Court. I checked the other two appeals decided today, to see how long the gap was for them. Ashley v. Cornell, from Virginia Beach, came down June 23, 2021, so about 16 months ago; Taylor v. Aids-Hilfe Koln left the circuit court August 13, 2021, just 14 months ago. This confirms my general sense that an appeal under the old regime, directly to the Supreme Court, generally takes about 15-16 months. It’s a bit faster now in the Court of Appeals; perhaps 12-13 months. But if the CAV loser seeks discretionary review at Ninth and Franklin, the writ process alone will add probably 6-8 months.

ANALYSIS OF SEPTEMBER 15, 2022 SUPREME COURT OPINION

(Posted September 15, 2022) Today is a noteworthy day for appellate lawyers. It’s the 165^th anniversary of the birth of William Howard Taft, 27^th President of the United States and 10^th Chief Justice of the United States. Many people with a passing knowledge of our nation’s early Twentieth Century recall that he’s the only person to have held both offices, being appointed to the Court eight years after leaving the Oval Office.

But this mention is for another reason: Taft is also the only former Solicitor General to be elected president. I read a book recently that asserted that Abraham Lincoln is the only president ever to have argued a case in the Supreme Court. Taft, had he lived long enough to have read that book, would likely have cleared his throat and pointed to his 15-3 record in SCOTUS appeals. (Abe lost his one and only case there.)

Sanctions

I consider myself a reasonably serious student of Virginia sanctions jurisprudence, and am always happy to see new material on this topic. T0day’s opinion in AV Automotive, LLC v. Gebreyessus brings that material and a dissent.

Gebreyessus worked for a car dealership, one affiliated with a manufacturer that had an incentive program for its staff, paying them bonuses. In a complaint filed by the dealer against the employee, it asserted that she had cooked the books, including customer reviews, to artificially inflate her own bonuses. The complaint asserted that the manufacturer had penalized the dealer $700,000 for these misstatements.

But that last part wasn’t true; the manufacturer soon revealed that it hadn’t imposed any penalty, and wouldn’t be doing so. (Ulp!) The employee sought sanctions for this false pleading. The circuit court agreed to impose sanctions for this and for other litigation conduct. It gave the employee an award of over $200,000 – all of her lawyers’ fees for the entire case.

A divided court today affirms in part and reverses in part. Justice McCullough writes for a five-justice majority, holding that the circuit court acted within its discretion in imposing sanctions for most of the conduct cited by the employee. But it holds that at least some of the other conduct wasn’t sanctionable. It goes on to hold that awarding all of the employee’s legal fees for the entire case was excessive, so the court remands the case for a recalculation of the amount of the sanction.

Justice Chafin pens a dissent, which Justice Kelsey joins. She points to an unusual circumstance – the employee’s legal fees were being paid by a fellow defendant in the trial court, who was not involved in this appeal. The dissent accordingly concludes that the employee didn’t “incur” any fees so it would be improper to award any to the victorious employee.

Here’s the relevant language, so you can see the nature of the dispute; I’m cleaning this up to avoid a lot of distracting ellipses: “the court shall impose an appropriate sanction, which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing, including reasonable attorney fees.”

The $200,000 question is what incurred means in this context. As it appears, it’s an implied passive voice, long derided by serious writers as indicating sloppy draftsmanship; it means, “the amount of reasonable expenses that are incurred,” etc. The passive voice is the use of a past participle, preceded by a to be or to get verb.

Slight digression: One classic use of the passive voice came on May 1, 1973, when Richard Nixon’s press secretary, Ron Ziegler had to backpedal from his previous unmistakable dismissive comments to Washington Post reporters Bob Woodward and Carl Bernstein. Ziegler had denied any wrongdoing by White House staffers in the Watergate affair and described the reporters’ stories to the contrary as “shabby journalism.”

Then, after Bob Haldeman and John Erlichman resigned on April 30, 1973, Ziegler had to face the press again. On that day, he couldn’t bring himself to come right out and say, “I was wrong,” a line familiar to virtually every husband. Instead, he turned to the passive voice, which conceals the identity of the actor: “Mistakes were made in terms of comments.”

Back to today’s decision: The dissent insists that the word incurred in this context must mean, “directly incurred by the other party.” Because the record contains nothing to indicate that the employee would have to reimburse her benefactor for the payment of fees, the dissent would reverse the fee award in its entirety. The majority is satisfied that someone incurred fees. The two sides accuse each other of inserting language into the statute.

A couple of quick notes about today’s ruling: I’m pleased to note that two of my pals, Monica Monday and George Peterson, argued the appeal back in April. This was at a time when the court was down to five active justices – the legislature had yet to elevate the court’s two newest Robes – so Senior Justices Russell and Millette sat in, both voting with the majority.

Because the parties argued it in April, this was the second-oldest undecided case on the court’s docket. The only older case, Baughman v. Commonwealth, also arrives today, though this one is by unpublished order. It’s a sexually violent predator appeal that also results in a remand, and also generates a spirited dissent. At the very end of the Baughman order, dissenting Justice Kelsey writes that, despite his disagreement with the majority’s rulings, the opinion should be published.

To that, I say, “Amen, brother.” The percentage of unpubs of the court’s merits rulings has risen in recent years, to the point that perhaps 60% of all merits cases end up in Virginia Reports.  While I can see my way to consigning a few merits cases to the unpubs pile, I believe that the court should publish more, not less.

Finally, the Baughman decision comes 34 weeks after the oral argument. I haven’t confirmed this yet, but that might be the longest delay between argument and decision in the 17+ years that I’ve been covering the court. As you might expect, opinions with dissents often take longer, because the two authors are exchanging drafts and then polishing their own.

ANALYSIS OF SEPTEMBER 8, 2022 SUPREME COURT OPINION

(Posted September 8, 2022) After two “dry” Thursdays, the Supreme Court of Virginia hands down a single published opinion this morning. The dispositive issue in Fines v Rappahannock Area CSB is whether a regional community services board is entitled to immunity as a municipal corporation.

Fines received services from the board when he was a child. Years later, he filed suit against the board and the estate of one of its former employees, alleging that the employee had sexually assaulted him.

The board filed a plea in bar, asserting immunity. After an evidentiary hearing, the circuit court ruled that the board was a municipal corporation and was accordingly entitled to immunity.

Fines got a writ, and today the Supreme Court reverses and remands for trial. The court examines the six factors that determine whether a body is or is not a municipal corporation, and finds that the board doesn’t meet enough of them. Specifically, it doesn’t possess sufficient autonomy from the local governments that created it — in this case, that means the City of Fredericksburg plus Spotsylvania, Caroline, Stafford, and King George Counties — and it doesn’t possess the power of eminent domain, among others. That means that it isn’t entitled to governmental immunity.

Near the end of today’s opinion, authored for a unanimous court by Justice Powell, we get a ruling that appears to be of first impression in Virginia, though other courts have weighed in on it and are cited here. The justices rule that governmental immunity is a matter of substance, not procedure. That matters in this specific context because entities are more likely to be considered municipal corporations if the legal issue presented is one of procedure, not substance. Update: John Koehler has published some insightful analysis of today’s decision here.

ANALYSIS OF AUGUST 18, 2022 SUPREME COURT OPINIONS

(Posted August 18, 2022) Today is the 53^rd anniversary of the closing of Woodstock. It was supposed to end the previous day, Sunday, August 17, 1969; but Zeus intervened, dumping rain throughout the weekend. That rain pushed the schedule back so that the final act, Jimi Hendrix, took the stage just after sunrise on Monday the 18^th.

You can probably win a bar bet with this: Hendrix wasn’t the festival’s executive producer’s first choice to close the stage. That first choice turned down the opportunity, so those few fans left on Max Yasgur’s dairy farm that Monday morning heard Jimi perform “Hey Joe” as the last tune from the stage.

The producer’s preference was to have Roy Rogers take the stage at the very end and perform “Happy Trails.” No, really.

Declaratory judgments

I’ve mentioned here recently that most circuit court judges don’t mind so much if an appellate court reverses them. That’s part of the job. What they hate-hate-hate is a remand for further proceedings. Once they finish with a given case, they want to be done with it forever.

In that vein, a northern Virginia judge is probably kicking himself this morning after seeing the opinion in Ames Center, LC v. SOHO Arlington, LLC. It’s a declaratory-judgment action to ascertain what rights a neighbor has over adjacent hotel property in Arlington.

The hotel is run by a company that holds a ground lease on the land. The lease contains an unusual provision: If any neighboring properties plan to excavate nearby, the hotel operator has to allow that neighbor onto the hotel premises to permit the excavating activities.

The appellant here, Ames, is one such neighbor. It planned to develop its property with two 30-story buildings, and needed access to the hotel property to prepare its development plans. Ames notified the hotel’s owners of its intent to enter for this purpose. That generated this response:

After learning of Ames’s intentions, SOHO’s counsel informed Ames that “no one from your company is welcome within the hotel or on the grounds of the property, for any reason.” If any Ames representatives entered the SOHO property, counsel added, SOHO “will contact authorities to have such individuals removed for trespassing” and “will take full advantage of all actions available to it under the law, both civil and criminal.” A subsequent letter from SOHO’s counsel specifically warned Ames not to use a construction crane that may “swing” over SOHO’s airspace. SOHO further advised that it would be “vigilantly monitoring the project activities and [would] seek recompense for any trespass or damages that may occur.”

Well, now. Where I come from, we’d call that an “actual antagonistic assertion and denial of right.” The hotel warns the neighbor, “If you or your boys set one foot on our property, we’re gonna sic the law on ya.”

Hence the DJ proceeding. The neighbor sued to determine if it was indeed an intended third-party beneficiary of the lease provision and could enforce the right to enter. After a hearing, the circuit court ruled that the provision did protect the neighbor. But when the parties asked the court to declare what specific rights the neighbor enjoyed, the judge replied, “Not my job. This is just a suit to determine if you’re a 3PB, and I’ve made that decision.” The court then dismissed the suit without interpreting the contract.

I’ve telegraphed the result of the ensuing appeal: The Supreme Court sends the case back for a ruling on what rights the neighbor has. There’s no indication that the hotel owners cross-appealed the ruling that the judge did make. But the justices rule today that the circuit court stopped short of performing the function of DJ actions: to declare what the parties’ rights are.

In theory, the Supreme Court could have gone ahead and declared those rights itself instead of remanding. After all, the interpretation of a contract is a legal matter, to which a reviewing court affords no deference to the decision below. The Supreme Court often takes the initiative to enter final judgment instead of remanding for purely legal rulings. See, for example, McGinnis v. Commonwealth, 296 Va. 489, 501 (2018), and its many jurisprudential cousins.

Today’s opinion mentions the possibility of a jury trial, and if there truly are disputed fact issues, then remand is absolutely the correct course. I just don’t know what facts would be necessary to decide what rights a contract provision confers on a third-party beneficiary. At least one judge up in Arlington will find out.

Utilities

I occasionally mention here that the subject matter of a given appellate decision is bone-dry, so I have to do what I can with the prose to hold your interest through the course of  a detailed trek through the rulings. This morning, the court hands down Appalachian Power Company v. State Corporation Commission, an appeal with lots of zeroes at stake and plenty of interest among those who advocate for consumers.

I know my own limitations. Having read the opinion, there’s no way I can do it expository justice in a reasonable number of words, and no meaningful way for me to hold your interest through a detailed discussion. Want proof? Behold this one paragraph, setting out what the SCC ruled in the rate-review process:

Following the evidentiary hearing on Appalachian’s triennial-review application, the Commission found that “Appalachian has not established that it was reasonable to conclude in December 2019 that the remaining costs of these retired units were no longer probable of future recovery” for the purposes of recording them as asset impairments. J.A. at 5914-15. The Commission also rejected Appalachian’s argument that the Commission had no discretion to review Appalachian’s decision to record the asset impairments. The Commission reasoned that “[i]n every historical earnings review under [Code § 56-585.1], the Commission has necessarily been required to rule on the reasonableness of the utility’s regulatory accounting entries, along with other proposed regulatory adjustments from both the utility and case participants.” Id. at 5914. After the Commission has determined the reasonableness of these entries and adjustments, Code § 56-585.1 dictates certain outcomes.

You got all that? Unless you’re an accountant or a tax jock, the rulings in today’s 43+-page opinion (including a short partial dissent by Justices Mims and Powell) will bring glazed, watery eyes. I therefore do not choose to inflict the appeal upon you. Instead, mourn for poor Justice Kelsey, who drew the short straw and had to write the majority opinion here. If you’re feeling mean and want to give it a try, have at it; the slip opinion is just a mouse click away.

The outcome of the appeal is a partial win for APCO on its appeal, and a wholesale loss for the OAG’s Division of Consumer Counsel on its separate appeal. (The court combines the two appeals into a single opinion.) The Supreme Court remands the case – that’s two remands in one day! – to the Commission to correct one error. That correction will presumably result in an outcome that’s more to APCO’s liking.

*   *   *

These two decisions reduce the court’s list of argued-and-undecided appeals to five. There are two outstanding from the June micro-session, plus one each from April, March, and January. The September docket, which currently lists just seven appeals, will add to this. But this is the closest that I can remember to the court’s fully clearing its argued cases since it transitioned to rolling release dates in late 2015.

ANALYSIS OF AUGUST 11, 2022 SUPREME COURT OPINIONS

(Posted August 11, 2022) The printing presses at Ninth and Franklin crank out two published opinions this morning.

Criminal procedure

The issue in Hill v. Commonwealth is narrow, in my view: When a circuit court revokes a suspended sentence and extends a period of probation, does that act necessarily resuspend the original sentence?  Hill received a three-year prison term in 2015, with 2½ years of that suspended. The circuit court later revoked the suspension for a probation violation and reimposed the three-year term, suspending two years. Effectively, the court gave him six more months to ponder his misdeeds.

A year after that, Hill landed in hot water again. The court issued a bench warrant, but Hill moved to dismiss it because his original three-year suspension had expired. He claimed that the court no longer had jurisdiction to act on his original sentence.

The circuit court disagreed and imposed the entire three-year term. The Court of Appeals affirmed in a published opinion last year. Today the Supreme Court agrees, so Hill has gone 0-for-appellate in this case.

In a short opinion by Justice Kelsey, the court reasons that “a revocation order that extends a period of probation necessarily extends the period of sentence suspension.” This is true even if the sentencing order doesn’t expressly say that.

Hill argued that the courts speak only through their orders, and that the law doesn’t read into those orders matters that aren’t stated there. Justice Kelsey offers this concise riposte: “In judicial orders, as in ordinary conversation, meaning can be clearly expressed and just as clearly implied.” Count me among those who foresee that this sentence will be among the most-cited future references to this morning’s opinion.

Attorney discipline

In the 17+ years that I’ve been posting essays on Supreme Court opinions, I’ve come to recognize categories of appeals that I find truly distasteful. Grisly murders, malicious assaults, and child-abuse cases clearly fit that bill, but among nonviolent cases, legal discipline proceedings may be the most demoralizing. That’s in part because they’re comparatively rare. There are over 30,000 active lawyers licensed in Virginia, and the State Bar has active investigations open on only about 1% of them. That means that 99% of lawyers play by the rules, including those governing honesty.

The public doesn’t know that. When word hits the newspapers about attorneys’ misconduct, it feeds the false narrative that our profession is inherently dishonest. This is the stereotype of the lawyer who will say anything, no matter how false, to secure a win for his client and a fee for himself. We know it’s false, but John Q. Public doesn’t.

In the first substantive paragraph of today’s opinion in Haley v. Virginia State Bar, we learn that the respondent lawyer bounced a trust account check that he had written to one of his employees. That’s two strikes; there’s not much defense to a rubber-check allegation, and what’s he doing paying an employee from the trust account?

In the next paragraph, we discover that the lawyer “regularly deposited unearned advance fees from his clients directly into his operating account,” and that he had bounced 53 checks over a 27-month period. That’s two a month.

In the next paragraph, the opinion reveals that the lawyer made false or misleading statements to a Bar investigator. Before the short facts section ends, we’ll find out that the lawyer had been disciplined by the North Carolina Bar, and hadn’t reported that sanction to the Virginia State Bar. The North Carolina discipline was for – get this – failing to report previous discipline when he filed a pro hac vice motion in the Tar Heel State. We ultimately learn that New York was investigating him for a similar omission in a PHV application filed up there.

In fairness to the lawyer, he admitted in the disciplinary proceeding that he had blown it regarding his trust account, and the Bar stipulated that he had taken steps to clean up his account-keeping act. But a subcommittee certified charges against him, and the Bar found the charges to be substantiated. It recommended an 18-month license suspension.

The lawyer exercised his automatic right of appeal – no writ required – to the Supreme Court. Today, the justices affirm the Bar’s decision. Justice Chafin’s opinion for a unanimous court lays out the evidence in the case and finds that the Bar’s finding and its recommended disposition are both appropriate.

The recitation of facts and the procedural history of the disciplinary proceeding is fairly straightforward, but I’ll mention one aspect that caught my eye – especially as I had read the Hill criminal decision just before this one.

One of the charges lodged against the attorney related to false statements to the Bar investigator about a client named Campbell. That client had paid a fee that the lawyer had deposited directly into his operating account, before the fee was earned. The lawyer, who is licensed here and in South Carolina, told the investigator that he represented multiple people with that exact name, and he believed that this fee came from a South Carolina client.

That matters because in the Palmetto State, bar regulations permit lawyers to deposit advance fees directly into an operating account, contrary to the rule here. As it turns out, the lawyer hadn’t represented the South Carolina Campbell for several years; this check came from his Virginia namesake, whom the lawyer was representing when the Bar investigation began.

When the disciplinary subcommittee certified the charges here, it mentioned the failure to report the NC discipline but didn’t specify the Campbell misstatement. It did state that, in the words of today’s opinion, the “false and material misstatements were ‘not limited’ to the statements that were expressly referenced in the certification.” The lawyer objected at the Bar hearing and again in the Supreme Court to any mention of the two-Campbells issue.

He may have a point here. Bar discipline is civil and administrative, not criminal; it exists to protect the public, not to punish lawyers. Even so, I believe that most lawyers would perceive that it’s a matter of fundamental fairness that the charging document should identify the specific misconduct at issue in the case. The lawyer should be properly informed of what he’s being accused of.

Today’s opinion notes that the Rules require that the certification “include sufficient facts to reasonably notify Bar Counsel and Respondent of the basis for such certification and the Disciplinary Rules alleged to have been violated.” In affirming the sanction today, the Supreme Court holds that while a specific mention of the Campbells incident would have been better practice, it’s close enough in this context, particularly because the certification included the “not limited to” reference.

Because of my sense of fair play, described two paragraphs above this one, that doesn’t quite sit well with me. In both of the decisions handed down today – Hill being the other one – the Supreme Court has ruled that it’s permissible to read unstated words into critical documents. The first case is a criminal matter, involving significant incarceration; the second implicates a person’s career. We aren’t talking about a $15,000 monetary judgment here.

Considering everything, I agree with the Supreme Court’s disposition of the disciplinary appeal. This morning’s opinion states that the 18-month suspension “was an appropriate sanction.” I might have phrased it slightly differently: “… was not excessive.” The combination of trust-account malfeasance and dishonesty fully justifies a significant response, and I see 18 months as being at the lower end of the proper spectrum.

ANALYSIS OF JULY 14, 2022 SUPREME COURT OPINION

(Posted July 14, 2022) As I see it, there are several ways to make a given Supreme Court opinion sexy. The easiest is a high-profile appeal such as Taylor v. Northam, involving the fate of the statue of Gen. Lee on Monument Avenue in Richmond. That one was a media magnet from the moment the petitioner filed it in circuit court. Another is a case with a particularly interesting set of facts – things you don’t see every day, and that gather attention because of what happened. Among these, my favorites are the stupid-criminal stories that we see here from time to time.

For some appeals, the only path to that coveted sexiness is that they involve a lot of zeroes. That’s about the only thing that can light a bonfire in Coxcom, LLC v. Fairfax County. It’s a challenge to a Business and Professional Occupational License tax imposed by Fairfax on an Internet service provider located up there. To be sure, tax jocks will salivate at a new BPOL opinion. For the rest of you, I’ll have to try to make the prose sparkle.

Coxcom is, as you might expect, a subsidiary of Cox Communications. It provides subscription cable and Internet services to customers in Virginia and elsewhere. If you have an e-mail address that ends in cox.net, I suspect that you’re a customer.

In 1994, the county enacted an ordinance to create a BPOL tax. One of the categories of taxed industries is “business service occupations,” and that includes “On-line computer services.” The primary target of this tax appears to have been America Online, which was located in the county at the time. After paying a year or two of the tax, the company perceived that life would be better with a different corporate HQ, so it moved out in 1996 and stopped paying.

Ah, if only it had waited. In 1998, Congress stepped in to encourage the provision of Internet service. It passed, and President Clinton signed, the Internet Tax Freedom Act, which barred state and local taxation of Internet services. The act contained a clause that permitted preexisting taxes to continue if one of two circumstances existed: (1) an administrative agency had issued in interpretation that the BPOL tax would be assessed against such services, or (2) the locality “generally collected such charges for Internet access.”

Two more years later, in 2000, Coxcom arrived in Fairfax and set up shop. It didn’t pay the BPOL tax until 2013. In 2016, after paying four years’ worth of the tax, the company requested a refund of what it had paid, claiming that the federal act applied and neither of the preexisting conditions helped the county. The county’s tax department decided that the federal act didn’t apply because it was “a general tax on a business’s entire gross receipts” instead of a tax on Internet revenue. It further ruled that the preexisting-conditions exemption would cover this situation anyway.

Coxcom appealed to the state’s Tax Commissioner. That official dropped back 15 and punted. From today’s opinion:

The Commissioner found that ITFA generally prohibited the imposition of the BPOL tax on internet access services. The Commissioner concluded that the case turned on whether the grandfather clause applied and he declined to opine on that question.

He declined to opine? In tax appeals, I figured that was his job. That non-decision left both parties to appeal to circuit court. There, the court gave Coxcom a pyrrhic victory, ruling that the federal act does apply, and that the county had the burden to prove that the preexisting-conditions exception applied. It even ruled that the county hadn’t proved that the second exemption condition, the general collection of such taxes in the past, applied. But the court ruled that the first prong did apply, and the county had publicized the tax ordinance merely by enacting it and making it generally known. It accordingly upheld the tax on the company’s income.

Coxcom got a writ, and today the Supreme Court reverses. The court agrees that the federal act applies. In doing so, it takes definitional guidance from the act and not from Virginia caselaw. The broad language of the statute brought the county’s tax within its coverage. The court also agrees that the county bears the burden to prove that one of the exceptions applies.

Turning to the two exceptions, the court determines that the mere passage of the ordinance can’t qualify as an administrative agency’s interpretation. The county board itself isn’t an agency; it’s a governing body. And enacting an ordinance isn’t the same as a formal interpretation of it.

Turning to the second prong, the justices today accept the circuit court’s factual finding that the county didn’t prove that it generally collected taxes before 1998. The only taxpayer about which the court heard evidence of payment was AOL, and that ended years before Coxcom arrived. There was no evidence that the county collected the tax from a couple of other companies who provided services there. That means that the federal act governs and the exceptions don’t apply, so the Supreme Court remands the case for a calculation of the amount of the refund due to Coxcom.

Now, that wasn’t so bad, was it?

ANALYSIS OF JULY 7, 2022 SUPREME COURT OPINION

(Posted July 7, 2022) For the first time in four weeks, we have a new published decision from the Supreme Court of Virginia. Patterson v. City of Danville is a medical negligence action, a claim for the wrongful death of an inmate at a minimum-security corrections facility. The appeal implicates derivative sovereign immunity.

The facility employed a doctor to see and treat all inmates; detailed regulations governed his actions. Today’s opinion notes that the doctor had no discretion to refuse to treat an inmate, and inmates had no choice of another doctor.

This inmate began to receive care from the staff doctor within days of his incarceration. The facts section of today’s opinion recites several instances of such treatment for conditions ranging from confusion to hyponatremia (a dangerously low level of sodium in the blood) to gastric reflux. Each time, the doctor prescribed a course of treatment, usually including medication.

Three months after his admission the inmate suffered a heart attack. He was resuscitated “but he never regained consciousness” before dying five months later in a local hospital.

His estate filed a medical-malpractice action against several defendants including the doctor. The suit alleged simple and gross negligence. The case proceeded to a bench trial on the defendants’ immunity pleas. At that trial, the circuit court sustained the pleas and dismissed the action.

The Supreme Court awarded the estate an appeal, and today it affirms the dismissal. Today’s opinion notes that “Only the claims against [the doctor] remain in contest on appeal.” In that light, I’m a bit surprised that the caption of the case lists the City as the primary appellee; but that doesn’t affect the analysis.

The court reviews sovereign-immunity jurisprudence in medical actions and concludes that this case most resembles Lohr v. Larsen, a 1993 decision involving a doctor at a public health clinic. The court today examines the four factors in the familiar James v. Jane test: the nature of the function, the government’s involvement and interest, the degree of governmental control over the employee, and the presence (or absence) of judgment and discretion by the employee.

Justice Kelsey, writing for a unanimous court, holds that the first two tests are uncontroversial and easily satisfied. The key to today’s analysis is the interplay of the third and fourth. The government exercised significant control over the doctor’s actions, and doctors necessarily exercise inherent discretion in caring for patients. This leads the court to conclude that the doctor is, indeed, immune from ordinary negligence.

The discussion of the gross-negligence claims is swift and predictable. Because gross negligence is the want of even scant care, and the estate pleaded that this doctor cared for the patient on multiple occasions during the inmate’s incarceration, the Supreme Court agrees with the circuit court’s decision to sustain a demurrer to that count. It cites a number of past decisions that honor this boundary, including one that held, “The standard is indifference, not inadequacy.”

Today’s opinion is of particular note because Justice Kelsey takes time to observe the ongoing debate over the continuation of sovereign immunity. He cites multiple Boyd Graves Conference studies that observe sharp disagreement over whether the Commonwealth’s laws should continue to honor this old principle. After all, the original basis for immunity was the concept that “you can’t sue the King in the King’s court.” We fought a revolution to rid ourselves of a king, but this vestige of royal privilege endures.

The justices today “do not contest” the assertion that the sovereign-immunity debate is “worth having in modern times.” But the court draws the line at the proper actor for any change to this judge-made doctrine, holding that the ball is in the legislature’s court to consider and adopt any needed changes. It quotes this passage from a recent SCV opinion, citing St. George Tucker, one of the early lions of Virginia jurisprudence: “In Virginia, it would be a violation of the constitution for the courts to undertake to supply all defects of the common law not already supplied by statute. That is the exclusive province of the legislature.”

If it seems incongruous to you that the courts should shrug off the need to address their own judicially created legal doctrines, placing that responsibility on another branch of government, then you’re not alone. But for now, sovereign immunity remains “alive and well” in the Commonwealth.

ANALYSIS OF JUNE 9, 2022 SUPREME COURT DECISIONS

(Posted June 9, 2022) Today is an anniversary of one of the proudest moments for lawyers in our nation’s history. There are many such moments, but today a lawyer had the courage to take on a bully who had become a powerful demagogue. On this date in 1954, an Army lawyer named Joseph Welch dared to fight back against powerful Senator Joseph McCarthy. With the twice-stated question, “Have you no sense of decency, sir?” Welch brought down an entire movement that had been built on fear and hatred.

We lawyers occasionally suffer from a bad public image. Moments like this remind us that we can be among society’s best, especially when we act with courage.

Taxation

The primary theme of City of Charlottesville v. Regulus Books, LLC is the question whether a holding company that owns and licenses intellectual-property rights is subject to local business taxation. But the side issue of taxation of costs provides the real news, in my view.

A Charlottesville lawyer has, for some time now, enjoyed a successful career as a fiction writer. He created the holding company and assigned his intellectual property rights to it; the company in turn grants publication rights to various publishers. The lawyer filed tax returns reporting business income under Schedule C. The City picked up on that; a search revealed no business license issued to the lawyer or to the holding company.

Tax bills followed, as they are wont to do wherever there’s money. The lawyer paid one bill under protest and challenged the next one in a lawsuit. The parties filed cross-motions for summary judgment.

The circuit court ruled in favor of the lawyer, holding that the tax ordinance was unconstitutionally vague. Today the Supreme Court affirms, though on different grounds. It holds that the holding company – the entity that had filed the suit – didn’t fall within a proper local-taxation category. The company doesn’t publish and it doesn’t offer a product. Nor does it offer a service to others. It merely holds rights and licenses them to others. The justices thus affirm under the right-for-a-different-reason doctrine.

The side issue that I mentioned relates to a small amount of money: $767.20. The circuit court had awarded that amount for costs, based on an itemized list containing entries for “the cost of filing, process service fees, transcript fees, transcript shipping fees, pro hac vice admission fees, and fees for case file copy requests.”

Here, the City gets at least some relief; the Supreme Court rules that some of these entries weren’t “essential for the prosecution of the suit.” The court thus remands for recalculation of the cost award.

But this victory may prove to be short-lived. It’s true that the costs statute doesn’t allow an award in the trial court for costs that aren’t necessary for the trial. A transcript – probably the largest component of this modest award – isn’t essential if all you want to do is try the case. But it really-most-sincerely is essential for an appeal, and Code §17.1-128 authorizes taxation of transcript costs in the appellate court. Rule 5:35(c) confirms that. Thus, the holding company may get an award of some of these struck costs merely by filing a verified bill in the Supreme Court.

Parties

As an alumnus of the Virginia Beach City Attorney’s Office, I’m well aware that a locality’s governing board is a different entity from the locality itself. This distinction is case-dispositive in Marsh v. Roanoke City, a zoning appeal brought by several neighbors of a Roanoke halfway house. The neighbors sought to prohibit the operation of the house in their figurative back yard.

The zoning-appeal statute requires that any court action must name the governing body of the locality as a necessary party. But the neighbors listed only “Roanoke City,” which I take to be a shorthand reference to the City itself. The circuit court noted the difference and dismissed the case. It refused to allow correction of a misnomer, because even the correct name – the City of Roanoke – isn’t the proper party. The neighbors’ petition never even uses the word council.

Based on this reasoning, the Supreme Court affirms today in a published order. It notes the difference between misnomer and misjoinder, and finds that this is plainly a misjoinder – the neighbors simply sued the wrong party.

Standing

Let’s check next into another land-use case, where this time the petitioners sued the right governmental body. Seymour v. Roanoke County Board involves a special use permit to operate a facility dedicated to a noble purpose – caring for injured animals. The facility is at the end of a private easement that runs across several residential properties. The owners sought the permit to build a new structure to house and rehabilitate injured birds of prey.

While reviewing the application, County planning officials discovered that several structures on the site were unpermitted. They told the applicant that those structures would need to be included in the permitting process. The County Board eventually granted the permit, including retroactively for the previous structures.

This permit engendered opposition from nearby landowners – specifically, those who owned property crossed by the easement, an unimproved road not maintained by any government. The neighbors here sued in circuit court, alleging that the existing and projected use of the easement greatly increased traffic, impaired their quiet enjoyment of their properties, and required them to expend money to maintain the easement – their only means of access to public roads. Two neighbors also objected that their children, who used the lane to get to school, had nearly been struck by speeding traffic on the way to the center.

The circuit court eventually sustained the applicant’s demurrer, ruling that the neighbors had failed to establish standing under the Friends of the Rappahannock doctrine from 2013. That analysis requires two components: proximity and an individualized harm, one not shared by the public generally.

On appeal, the Supreme Court today notes that no one doubts the neighbors’ proximity to the easement; it runs across their land. On the second prong, the justices part ways with the trial judge. They rule today that the kind of harms claimed here, viewed in a light most favorable to the neighbors, can establish harms not shared by members of the public. The court thus remands the case.

One portion of this opinion gave me pause. On pages 12-13, the court takes pains to distinguish its holding from the facts of Friends of the Rappahannock. In the earlier case, the court ruled that nearby landowners didn’t have standing to object to a proposed sand-and-gravel-mining operation, despite their complaints of impaired hunting rights, noise, air particulates, and increased traffic.

The Supreme Court finds those earlier claims distinguishable from today’s circumstances, but my reading of the case didn’t convince me of the distinctions. For example, here’s one offered today:

Significantly, Friends of the Rappahannock involved more speculative allegations of harm. The property owners in Friends of the Rappahannock asserted that the operation of the sand and gravel mine may result in the alleged forms of harm. In contrast, the appellants in the present case have alleged that they have already been harmed by the traffic on the easement

Okay, I understand that. But the court today then goes on – in the very next sentences of the opinion, no less – to acknowledge that “Generally, a plaintiff is not required to allege that it has already incurred ‘particularized’ harm in order to satisfy the second prong of the Friends of the Rappahannock test. The second prong of the Friends of the Rappahannock test requires an ‘allegation of injury or potential injury not shared by the general public.’” (Emphasis original in today’s slip opinion)

Now, I’m satisfied that today’s ruling is the correct one; these landowners should have a day in court. What this unconvincing distinction does convince me is that Friends of the Rappahannock may have been incorrectly decided. Today’s opinion doesn’t come right out and say that – the justices seldom outright overrule their previous holdings – but that’s the conclusion that I reach. I hasten to add that on the seven-member Supreme Court, I have zero votes.

ANALYSIS OF JUNE 2, 2022 SUPREME COURT OPINION

(Posted June 2, 2022) The Supreme Court of Virginia decides one of its oldest undecided appeals this morning. Albemarle County v. Route 29, LLC is a land-use appeal that addresses an interesting question: Can a developer make a voluntary proffer, get a rezoning based on that proffer, and later challenge enforcement of the proffer as an unconstitutional exaction?

The property is part of the Hollymead Town Center area, near the Charlottesville airport. It’s a few miles north of Charlottesville proper, and features a shopping mall anchored by a large department store. Fifteen years ago, the property’s owner sought a rezoning to develop it into that shopping center.

To persuade the County to grant the rezoning, the developer proffered the payment of up to half a million dollars, paid $50K a year, if and when the County extended public transportation to the site. The County agreed; the result is the shopping center that you can see today.

Eight years later, the County evaluated the prospect of expanding bus service to the site. That service had run in the past but was discontinued for lack of ridership. The County accordingly settled on a slimmed-down plan: a commuter shuttle that would operate during weekday morning and evening rush hours only. The County announced that it was relying on funds from the proffer to make this service financially viable.

The shopping center’s owner rebelled; it noted that this service would do nothing for its customers. It would instead serve folks who lived in northern Albemarle and worked in the City. There would be no service during the mall’s busiest times: midday on weekdays and all day Saturdays. The owner refused to pay the demanded proffers. That eventually led to a notice of zoning violation and a trip to circuit court.

The parties proceeded to a streamlined trial, providing the judge with stipulated facts and documents. The court considered the matter and ruled in favor of the owner, holding that the monetary demand was an unconstitutional application of the proffer: “there must be some nexus roughly relatable to the thing that you want to exercise the proffer for.” Because the commuter service addressed the needs of nearby citizens and not the shopping mall, the court held that the County could not collect the demanded money.

Today the Supreme Court unanimously agrees with the circuit court. This kind of condition amounts to an exaction: an agreement to permit development only if the owner surrenders a constitutional right. Here, the money demanded arose from a situation – the growth of residential communities in that area of Albemarle – that didn’t stem from the mall’s development. The Supreme Court rules that the voluntary nature of the proffer doesn’t deprive the owner of the right to challenge this proposed application of it. The court adds today that if the County ever does start offering real public transportation to the site, then the owner will have to start paying.

Today’s opinion comes from the January argument docket. There’s one undecided appeal left from that session; eight appeals remain from the March session and eight more from April. The June session begins next Wednesday and ends the next morning, with a forlorn four appeals on the argument docket. It should be a quiet summer at Ninth and Franklin.

ANALYSIS OF MAY 26, 2022 SUPREME COURT OPINIONS

(Posted May 26, 2022) I learned this morning that today is the birthday of sportscaster Brent Musburger. I’ve long admired his work, but one phrase that he uttered has always stood out in my mind. It was several years ago, at the beginning of the broadcast of the one football game that I never miss: Army vs. Navy. (I’m not much of an NFL fan, so I don’t usually watch the Super Bowl. Yes, I’m an American citizen.) Musburger began the broadcast this way:

This game has no national championship implications. There are no conference championships or bowl bids at stake, and there are no Heisman Trophy candidates on either team.

This is MUCH more important than all that.

Standing

This morning, the Supreme Court of Virginia issues the latest in a significant recent flurry of decisions involving standing. Anders Larsen Trust v. Fairfax County involves a challenge to a land-use decision affecting residentially zoned property in McLean.

An entity named Newport Academy bought a house in an established residential neighborhood, and sought permission from the Zoning Administrator to open a residential treatment facility for girls there. The plan was to allow up to eight teenage girls to live there, though the applicant insisted that it wasn’t a drug-treatment program. The facility would employ a staff of professionals who live off-site. To minimize traffic, it planned to use shuttles and off-site parking.

The next-door neighbors of the house complained that the planned use was incompatible with current zoning, and argued that their properties would be impaired in use and in value. They “fear that drug addicts will populate the treatment center and that the center will, in fact, provide treatment for drug addiction.”

The Zoning Administrator sided with the applicant, finding that the use was a “Group Residential Facility,” a permitted use in the zoning district. The Board of Zoning Appeals agreed with the Administrator.

That led the neighbors to circuit court. They showed the court photos of 12 cars parked on the property, and of a Newport Academy van stuck in a ditch in front of another home. They argued that their homes would lose value if the court allowed the treatment center to continue operations.

The circuit court dismissed the case sua sponte by holding that the neighbors didn’t have standing to challenge the BZA’s decision. The justices granted a writ, and today they rule in favor of the neighbors. The SCV finds that they satisfy the two tests needed to show standing in zoning appeals: They own nearby property – the two petitioners here owned lots directly adjacent to this house – and they alleged a particularized harm that’s “different from that suffered by the public generally.”

This conclusion requires some fine line-drawing. Today’s opinion, from the pen of Justice McCullough, goes to some length to distinguish a 2013 ruling that seemed on all fours but reached the opposite conclusion. The property in that older case was along the Rappahannock River; the neighbors there raised comparable challenges to a proposed sand/gravel mining operation. The primary distinctions today are distance and zoning: the 2013 case’s challengers were some distance away from the large subject tract of 500 acres, and the site was already zoned industrial. Here, next-door neighbors in a residential subdivision were complaining, and the proposed use would bring “a commercial establishment [into] a residential neighborhood.”

Today’s opinion doesn’t mention the other major recent decision that went the other way: VMRC v. Clark from 2011. There, neighbors in a residential area objected to the Virginia Marine Resources Commission’s plan to insert a pipeline adjacent to their homes, running in to the Atlantic Ocean. That edition of the Supreme Court found their arguments too tenuous to establish standing, in language that stands in contrast to the court’s ruling today.

It all ends well, as far as I’m concerned, because my sentiments lie with the neighbors here, and I believe that Clark was incorrectly decided. The court today remands the Fairfax action so the circuit court can evaluate the neighbors’ objections on the merits.

Misnomer and misjoinder

Here’s another area where we’ve received a relative wealth of recent SCV decisions: In Edwards v. Omni International Services, the court takes up another case where the plaintiff misnamed the defendant in the case.

This is a personal injury action arising from a resort guest’s fall at Lake Gaston. The plaintiff’s research indicated that a corporation with the curious name of Company X – I assume that’s a real company name, and not a corporate equivalent to “John Doe” – operated the resort. That’s who she sued. During the pendency of the case, she learned that Company X only provided publicity for the resort; the real owner was Omni.

She accordingly nonsuited and refiled, this time correctly naming Omni as the defendant. But the new suit hit the clerk’s office over 2 ½ years after the injury. Omni pleaded the statute of limitations; the plaintiff claimed protection from the misnomer statute and cited Hampton v. Meyer from 2020.

The circuit court ruled that this was a case of misjoinder, not misnomer. That is, the plaintiff sued the wrong defendant; she hadn’t sued the right defendant but made a mistake in its name. The court accordingly dismissed the case, citing the expired statute of limitations. The plaintiff got a writ.

The justices today affirm, though their reasoning is a bit fractured. A majority of four justices hold that under Hampton, this was indeed a misnomer, but the plaintiff – who has the burden of proof to bring herself within the aegis of the misnomer statute – failed to establish one of the four prongs of that doctrine. Specifically, she failed to establish a lack of prejudice to the defendant from the mistake. The court finds that, unlike the proper defendant in Hampton, Omni would have no idea that an injury had occurred. (In Hampton, the proper defendant had been driving a car involved in an accident. You have to agree that a person like that wouldn’t exactly be surprised that someone would sue.)

This requires a bit of explanation. The original suit papers named Company X as the sole defendant, and called for service of process on its registered agent. You’ll never guess who the registered agent was, so I’ll go ahead and blab. It was Omni! Omni thus received an actual copy of the suit papers and passed that copy along to Company X.

Senior Justice Russell, who authors today’s opinion of the court, explains this away:

A registered agent’s sole duty is to forward to its principal, at its last known address, any process served upon it as registered agent. Code § 50-73.135(B). The registered agent has no duty to read or interpret any attached pleadings or warn or give legal advice to the principal. An inference that Omni was made aware of the plaintiff’s claim when her first action was filed would be conjecture at best.

I’ll confess that I found this reasoning to be somewhat incongruous with what I know about the legal principal of notice; but that’s the ruling of the court today. Because Omni didn’t have notice of the claim until well past the limitations date, the court finds that it would be prejudiced by the delay.

Two justices would affirm on different grounds. Justice Kelsey, writing for Justice Chafin, would find that this isn’t a misnomer but a misjoinder, for which no relation-back relief is available. These two, along with former Chief Justice Lemons, dissented in Hampton, and today they stick to the views expressed back then. The concurring opinion acknowledges that today’s opinion of the court is faithful to the Hampton holding, but argues that the facts of Hampton compel the conclusion that that pleading error was a misjoinder.

To me, this appears to be setting the table for a future appeal involving similar facts. The Supreme Court is about to get two new justices – assuming the General Assembly can agree on them – and those might theoretically join today’s dissenters and overrule Hampton. We’ll see.

ANAYSIS OF MAY 19, 2022 SUPREME COURT OPINIONS

(Posted May 19, 2022) The Supreme Court of Virginia issues two published opinions this morning. Both cases come to us from the March session’s argument docket.

Public employees

An interesting procedural issue is at the heart of LaRock v. City of Norfolk. This is an employee grievance after the City terminated an employee. A grievance panel reversed the firing and ordered the employee reinstated with back pay.

Three days before the panel issued its decision, the City learned that, after the termination date, the former employee had accessed confidential computer files in a City system, using her employee ID. The City Manager decided that this new information would be enough to impose serious discipline, including termination, so he refused to reinstate her.

Can he do that? The employee decided to ask the local circuit court. She petitioned the court to compel her reinstatement. At a hearing there, she acknowledged the computer access, but argued that this information was immaterial to the grievance process. She urged the court to reinstate her and allow a future grievance panel to address the later conduct, if necessary.

The circuit judge was having none of it. The court refused the petition, holding that the reinstatement would be against public policy, and noted that reinstatement would be improper because the City was likely to go ahead and re-fire her.

The employee got a writ, and today a divided Supreme Court sides with her. Senior Justice Millette, writing for the chief justice and Justices Powell and McCullough, concludes that this judicial action short-circuited the employee’s right to a second grievance process. In such cases, the Code charges courts to implement the grievance panel’s decision; not second-guess it. The court accordingly orders reinstatement with back pay to the original firing date, now 3½ years in the rear-view mirror.

Two justices can’t stomach this relief. Justice Kelsey, writing on behalf of Justice Chafin, argues that these circumstances show that the employee sought equitable judicial relief despite her patently having unclean hands. The dissenters perceive that circuit courts in these proceedings have the power and duty to observe principles like this, just as in other legal contexts. They conclude that the circuit court was right in refusing to order relief that runs counter to equity.

This is one appeal in which only six justices participated. If the vote had been 3-3 instead of 4-2, the circuit court’s ruling would have been affirmed without an opinion.

Administrative law

The court takes up the question of harmless-error analysis in Chesapeake Hospital Authority v. State Health Comm’r, involving a certificate of public need for a new open-heart surgery and cardiac-catheterization unit in Virginia’s second most populous city.

The Authority operates what’s now called Chesapeake Regional Medical Center. That hospital is about 800 yards through the forest from the house where I grew up; I can recall selling tee-shirts back around 1970 to help raise money to build it. The facility has grown enormously since then, and it contains many state-of-the-art units and new buildings.

What it doesn’t have is an open-heart cath and surgery unit. People in that city, and in northeastern North Carolina (also part of the hospital’s service area), who need the procedure must travel past the Chesapeake hospital to get to other, more distant facilities in Norfolk or Virginia Beach. As I understand it, the Chesapeake facility is the largest holdout in Tidewater from the Sentara near-monopoly on hospital care. (Riverside has facilities across the James, but being an old-time Tidewater resident, I call that the Peninsula.)

To build the new unit, the Authority had to seek and obtain a certificate of public need from the State Health Commissioner. You can’t just build healthcare facilities like this, despite what you might think about the free-enterprise system; state law protects existing providers from the competition because of the enormous startup costs involved in hospital construction and operation.

When the Authority applied for the certificate, a hearing officer initially indicated that it should be granted. But Sentara got wind of that and obtained leave to intervene as an interested party. After receiving Sentara’s input and arguments, the officer recommended denial of the certificate. The Commissioner agreed and refused to issue one.

The Authority went to circuit court and pointed out that the Commissioner’s report included a legal error that it felt significantly affected the legal analysis. The court agreed that this was a mistake by the Commissioner, but ruled that the error was harmless, so it affirmed the no-certificate decision. The Court of Appeals agreed.

Today, in the final step of legal review, the Authority finally finds succor. The Supreme Court today unanimously reverses and remands to the Commissioner for reconsideration of the application. The key holding is one that will interest admin-law practitioners and those of us in the appellate guild.

By statute, a court reviewing an administrative agency’s case decision must abide by these principles:

The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court. Such issues of law include: (i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.

I’ve italicized the key provision there. The Authority argued that the general statutory requirement for harmless-error analysis doesn’t apply in admin-law proceedings, because this more specific provision limits that doctrine to “observance of required procedure,” not errors of substance. The justices agree and hold that the courts must reverse in the event of a substantial error.

One justice offers an aside, in the form of a short concurrence. Justice McCullough notes that this is indeed the statutory framework, and the courts aren’t free to override the process that the General Assembly established. He senses, though, that perhaps the legislature should modify the statute to provide for the broader harmless-error review that Code §8.01-678 otherwise requires. He observes that Virginia is apparently alone in requiring remand for all but procedural errors.

The legislature may or may not accept this invitation. But for these parties, it’s back to the administrative hearing stage. In the meantime, the legal landscape has improved somewhat for the Authority, as a recent change to the COPN statute makes it somewhat easier for an applicant in this position. The people in Chesapeake will now get a new chance to persuade the Commissioner that they aren’t second-class patients.

ANALYSIS OF APRIL 21, 2022 SUPREME COURT ORDER

(Posted April 25, 2022) My travel last week kept me away from the keyboard longer than I had expected, so I’m late in getting this report to you. On Thursday, the Supreme Court handed down a published order in a mandamus case, In re Bennett.

The petitioner is a judge here in Virginia Beach who found herself on the wrong end of a Judicial Inquiry and Review Commission proceeding. Last year, she filed a petition in the Supreme Court for mandamus and prohibition, seeking an order to JIRC to reinstate her to the bench. Because she filed it under the Supreme Court’s original jurisdiction, this wasn’t an appeal; it instead invoked the court’s original jurisdiction (an “OJ proceeding,” in court-insider parlance).

The Supreme Court rejected the petition the next day. But because JIRC proceedings are confidential by statute, the justices sealed the records of the mandamus case. They even sealed the sealing order, which we learn today might be unprecedented here.

A month and a half later, the publisher of the Richmond Times-Dispatch filed a motion for leave to intervene in the case because it wanted access to the records of the JIRC proceeding. The paper cited a provision in the JIRC-confidentiality statute that seems on its face to be fairly helpful: “the record of any proceeding filed with the Supreme Court shall lose its confidential character.”

Today, a slightly short-staffed Supreme Court – five active justices plus Senior Justice Millette decide the petition – affords the paper partial relief. The court unseals the records of the mandamus petition, because there’s nothing in the confidentiality statute that authorizes the sealing. But a majority of the justices stop short of ordering the unsealing of the JIRC materials in the mandamus petition. The majority holds that while mandamus petitions are traditionally open to the public, judicial-discipline proceedings aren’t.

What about that excerpt that I quoted above? Four justices find that it doesn’t apply here:

[T]he statute provides that “the record of any proceeding filed with the Supreme Court shall lose its confidential character.” Id. Any “proceeding,” in context, refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one. Code § 17.1-913(A) specifies that “[a]ll records of proceedings before the Commission which are not filed with the Supreme Court in connection with a formal complaint filed with that tribunal, shall be kept in the confidential files of the Commission.” Id. (emphasis added). The mandamus filed by Judge Bennett is not “a formal complaint filed with” this Court. Therefore, the exception does not apply, and the mandate of confidentiality does apply.

Accordingly, the newspaper gets to see what the judge put in her mandamus petition, but not the underlying JIRC record, which is probably where the juicy stuff is.

Two justices can’t abide this result. Justice Kelsey, writing on behalf of Justice Chafin, offers a partial dissent in which he argues that the quoted passage commands disclosure. He adds, “This is one of those occasions in which, despite the sometimes anfractuous lexicon of the law, simple words have simple meanings.”

Okay; the word anfractuous is a bit jarring in a sentence that extols the virtue of simplicity in language. But his point is that while language can be complex, here it ought to be simple. Here’s the remainder of his argument on this point, in full:

Any JIRC proceeding includes the one involving Judge Bennett. Filed includes the JIRC documents she filed with the Supreme Court. And shall lose its confidential character means that the JIRC record cannot (as opposed to may or may not) be hidden from the public. The plain meaning of Code § 17.1- 913(A) thus maintains the confidentiality of JIRC records in disciplinary proceedings “before the Commission” but removes any secrecy surrounding these records when they are filed in a judicial proceeding before the Supreme Court of Virginia. That conclusion should be particularly true where, as here, the party clinging to the confidentiality of these documents is the very party filing them in the most public of forums.

The backdrop for this argument is that the Constitution of Virginia once mandated secrecy in judicial-discipline proceedings, but the citizens changed the constitution a generation ago. What once read, “Proceedings before [JIRC] shall be confidential” then became permissive: “”Proceedings and documents before the Commission may be confidential as provided by the General Assembly in general law.” (I’ve added emphasis both times.) The legislature then passed the statute providing that JIRC documents lose their confidential character once they land in the SCV Clerk’s inbox.

Today, a majority of the Supreme Court effectively writes that mandated transparency right out of the Code. That’s the dissenters’ conclusion. The distinction in the unsigned majority opinion rests on the definition of a proceeding; the majority rules that, in context, it refers to judicial-discipline proceedings. This was a mandamus case, so the majority finds that the statutory exception doesn’t cover it.

After pondering this ruling over the weekend, I agree wholeheartedly with the dissenters. My view might be colored by my firm support for openness in government – I’m a big FOIA advocate, for example – but it also rests on that simplicity of language that Justice Kelsey advocates. Even though it isn’t a disciplinary action, there’s no question that the mandamus petition included the filing of the entire JIRC record. In my view, the simplest and most natural interpretation of the statutory exception is that it covers “the record of [a JIRC] proceeding” that was filed in the SCV Clerk’s Office. I believe that the majority has applied a contorted interpretation of the statute, to permit it to reach this result.

Judge J. Harvie Wilkinson III of the Fourth Circuit penned a different dissent in an election-law case a year and a half ago, just before the 2020 general election. He included this warning: “More and more it appears, political parties seem to be bringing these election law challenges in an effort to gain partisan advantage. This trend is deeply disturbing. Selective interventions by the courts in these cases will create the appearance of partisanship. They undermine our most valued asset, the public’s trust and confidence in the judiciary.” Middleton v. Andino, 990 F.3d 768, 773-74 (4^th Cir. 2020).

I agree with Judge Wilkinson’s assessment of the importance of public confidence in our court system. Today’s ruling is one of many, too many, where plain language seems to counsel one result, but a court rules the opposite way. John Q. and Jane Q. Public assuredly won’t understand the fine distinction that the majority draws today. They will instead chalk this up as one more example of verbal contortions, all too typical of our profession.

ANALYSIS OF APRIL 14, 2022 SUPREME COURT OPINIONS

(Posted April 14, 2022) Harvey Penick, the author of the celebrated collection of golf instruction entitled, Harvey Penick’s Little Red Book, once aspired to play professional golf. As he tells the tale, he entered a tournament and on the first day of competition, went to the registration table to check in. After doing so, he went over to the practice range to get ready for his round.

There, he passed by Sam Snead’s practice station. The greatest Virginia golfer of all time was already in his warmup session. Penick paused to watch as Snead launched a series of beautiful four-iron shots that soared majestically off into the distance. After a few minutes, Penick turned around, walked back to the registration table, and withdrew from the tournament, reckoning that he could never compete against a golfer of Snead’s skill.

In a separate genre, a Scottish guitarist named Ian Anderson was eager to make a name for himself in the 1960s rock genre. He practiced and played in clubs, fancying that a profitable career might await him. Then one day, he heard Eric Clapton play. That was enough to convince him that he could never thrive as a guitarist; Clapton’s genius at the instrument greatly exceeded Anderson’s.

But each story has a happy ending. After jettisoning the idea of a career as a Tour pro, Penick turned to teaching. He went on to become the most famous golf teacher of the Twentieth Century, providing gentle, effective guidance to young golfers who would become major stars on the PGA Tour. After abandoning the guitar as a primary instrument, Anderson saw a shiny object in the window as he passed a music store, and decided to give the flute a try. The result, the eventual development of Jethro Tull, changed rock history, adding a new sound that dazzled audiences around the world.

These parallel tales have nothing to do with this morning’s two published opinions from the Supreme Court of Virginia. But they teach that, no matter how frustrated you might be, you can always choose to adapt and thrive. Both Penick and Anderson achieved far more success in their altered careers than they probably would have if they had stubbornly clung to their initial plans. Keep this in mind in your life, and remember that you’re never trapped as long as you have imagination.

Insurance

We get two rulings – one procedural; the other substantive – in Erie Insurance Exchange v. Jones. This arises from a declaratory-judgment action on a homeowner’s policy. The underlying claim stems from an injury sustained by a girl who was a passenger on a four-wheel all-terrain vehicle. The girl’s mother sued the parents of the driver. Erie disavowed coverage, so the mother filed the DJ action.

Because this is a homeowner’s policy and not a vehicular policy, it contains an exclusion for claims arising from the use of motor vehicles. The issue in this appeal is whether either of two exceptions to that exclusion applies. The first is for recreational land motor vehicles “not designed for use on public roads while at the insured location.” The other provides that “lawn or farm type vehicles” get coverage.

This injury happened off the homeowners’ property, so the first exception didn’t apply. Today, the Supreme Court ponders whether an ATV is a farm-type vehicle. The circuit court found the language ambiguous, because the policy didn’t define farm-type vehicle. Resolving the ambiguity against the insurer, that court ruled that the insurer was liable to cover the claim.

The justices disagree. In a short opinion from the pen of Justice McCullough, the court rules as a matter of law that an ATV, while it may be used on a farm, still isn’t a farm-type vehicle. That clearly isn’t the ATV’s primary purpose, so there’s no coverage.

The procedural ruling stems from the mother’s request that the Supreme Court dismiss the appeal because the insurer didn’t name the homeowners – the original defendants in the tort suit – or the injured girl’s guardian ad litem as parties to the appeal. The justices reject this contention, ruling that those litigants aren’t necessary parties. They certainly knew about the appeal, and the mother adequately represented their interest in the appeal because each of them wanted to secure full insurance coverage.

Arbitration

The all-too-familiar specter of an intra-family estate dispute returns to haunt us yet again, this time in Boyle v. Anderson. A man whom we’ll call Dad created an inter vivos trust that directed distribution of the trust property into three shares for his three offspring. He built a mandatory arbitration clause into the trust: “Any dispute that is not amicably resolved, by mediation or otherwise, shall be resolved by arbitration….”

After Dad died, a dispute arose between two of the three branches of beneficiaries. The simplified version is that a son, John, sued to remove his sister, Sarah, from her position as successor trustee. Sarah sought to invoke the arbitration provision, but the circuit court refused to do so.

Arbitration law is one of those areas where certain rights run in one direction only. The Supreme Court (now, starting in 2022, it’s the Court of Appeals) has jurisdiction to hear an appeal of an order that refuses to compel arbitration, though not over an order that compels it. This situation fit, so the justices today take up the primary question whether this trust language forces John to arbitrate.

The short answer is no. The slightly longer answer is that our arbitration statutes require arbitration where there’s (1) a contract containing an arbitration clause, or (2) a written agreement to arbitrate. The court rules today that a trust isn’t a contract; it’s a conveyance. There are several differences between the two in law, and the court refuses to apply contract law to something that isn’t a contract.

As for the agreement trigger, the court finds that the very word agreement requires two parties each to consent to something. Dad may have intended arbitration, but John never agreed to it; he didn’t sign the trust agreement. In the absence of that agreement, the arbitration language isn’t enforceable against him.

The court also rules that the Federal Arbitration Act’s provisions similarly apply to contracts, so that statute doesn’t help Sarah either. The justices thus affirm the interlocutory ruling and send the case back for trial.

SCV ISSUES SHORT PUBLISHED RULING

(Posted April 7, 2022) Today is an immensely important day. In eastern Georgia, The Masters has begun; this afternoon, in ballparks across America, Major League Baseball celebrates Opening Day – a bit late; but that’s better than not at all. At Ninth and Franklin, we get one of the shortest rulings that you’re likely to see in Virginia Reports.

In Wills v. Wills, the court issues a one-page published order that adopts and affirms the ruling of the Court of Appeals in a domestic-relations appeal. The court’s write-up on its Opinions and Published Orders page contains detail that the order itself does not, including the fact that the parties “presented 18 assignments of error and cross-error” in the appeal, only to receive what amounts to a summary affirmance.

There’s an interesting quirk for those of us who read opinions for a living. In a footnote, the justices state that the circuit court erroneously calculated prejudgment interest on what I take to be a retroactive award of child support. The note concludes with this sentence: “The Court takes no position regarding whether prejudgment interest could be awarded as part of a retroactive child support award under Code § 8.01-382.”

I couldn’t help but check: At 98 words, the footnote is 18 words longer than the body of the order. You don’t see that very often. And for what it’s worth, this short essay is 237 words, excluding the headline.

ANALYSIS OF MARCH 24, 2022 SUPREME COURT OPINIONS

(Posted March 24, 2022) It’s a fine, soft day here in Tidewater – translation: it’s raining – and it’s opinion day at Ninth and Franklin in Richmond. The Supreme Court of Virginia hands down two published rulings this morning, one opinion and one order.

Standing

The sadness of an intra-family dispute gives us Kittrell v. Fowler, from Middlesex County. The facts are quite complex, a labyrinth of family trusts and large financial transactions, punctuated by the abrupt suicide of one beneficiary/trustee.

But the ruling is quite simple, so I’ll spare you the intricate details. (If you really want those details, scroll up just a tad; they’re only a mouse click away.) The Supreme Court reaffirms that only the personal representative of an estate can pursue a claim that accrued to the decedent during her lifetime. Beneficiaries to the estate cannot sue in their own names to vindicate rights belonging to the testator or settlor.

There’s one interesting procedural point in today’s published order. This is an interlocutory appeal, and it isn’t the parties’ first trip to the Supreme Court. In 2019, one set of parties sought an interlocutory appeal. Their opponents objected, and under the law that existed at the time, that prevented the appeal. Back then, all parties had to consent to interlocutory review, so either party had veto power. That led the opponents to file a prohibition/mandamus petition in the Supreme Court in early 2020, but that petition died later that year.

Meanwhile, the legislature amended Code §8.01-670.1 to remove the requirement for universal consent. Today’s appellants then moved again for certification, and the circuit court agreed, leading to today’s decision.

I don’t have a rooting interest between the parties to this appeal, but I do appreciate this first (as far as I know) use of the amended certification statute. The General Assembly acted on the recommendation of the Boyd Graves Conference to remove the veto provision. I was a strong backer of that change in the Conference, and I’m glad that it resulted in what I regard as a salutary change in the Code.

Business torts

The justices address some familiar customers in Sidya v. World Telecom Exchange Communications, LLC. This litigation, involving claims of conspiracy, interference with contract expectancies, and appropriation of trade secrets, has been to the SCV twice before.

World Telecom sued Sidya, the owner of its former vendor company, alleging that he and World Telecom’s then-CEO conspired to undercut World Telecom’s business to benefit a new company that the two men were creating. At a jury trial, the plaintiff adduced plenty of smoking-gun testimony to prove the torts, and the jury responded with a sizable verdict.

The Supreme Court today analyzes the evidence to conclude that the jury had a solid basis to impose liability. It accordingly affirms the principal damage award. In a previous appeal, the justices had directed the circuit court to allocate the unitary verdict against Sidya, one of multiple defendants. After a hearing, the circuit court determined that amount to be $1.3 million and then trebled that to about $4 million. The justices find no fault with these rulings.

The news for Sidya gets a bit better; the Supreme Court reverses a $1.6 million attorney’s fee award allocated to matters before and during trial, finding insufficient evidentiary support. It leaves intact a separate $500,000 fee award for post-trial work, because World Telecom’s lawyers offered far more billing detail on those.

Finally, the justices weigh in on a little-explicated but important statutory provision: judgment interest on a compound damage award. The justices hold that despite the five-year gap between the jury verdict and the judgment appealed here, judgment interest began to run on the date of the verdict. That’s consistent with the court’s ruling in the Upper Occoquan case 14 years ago.

But there’s more: Sidya argued that the interest should only run against the primary $1.3 million award, and not on the trebled damages or the $350,000 punitives award. Here, the justices agree with him in what looks to me to be a ruling of first impression. Henceforth, we know that only the primary compensatory award gets post-judgment interest.

I’ll do the math for you; I was always pretty good at math, though I mostly jettisoned that when I chose a legal career. As of yesterday, World Telecom was hoping to receive (in round numbers) $4 million in trebled compensatory damages, plus $350K in punitives, plus about $2.2 million in attorney’s fees, plus $1.7 million in judgment interest. That’s a bit over $8.2 million. With today’s rulings, that total expectation is down to $5.4 million or so. That’s still lot of money, but Sidya’s appellate lawyer succeeded in carving almost $3 million off his judgment liability – before considering her appellate fees, of course.

Justice Kelsey authors today’s opinion for a unanimous court. This was the last undecided appeal argued in 2021; the lawyers appeared before the court on November 9, and had to wait 19 weeks for today’s ruling. Given the complexity of the case and the legal issues, that delay is hardy unreasonable.

ANALYSIS OF MARCH 17, 2022 SUPREME COURT OPINION

(Posted March 18, 2022) I was away from the keyboard yesterday, when the Robes slipped in one short published opinion. Let’s take a look and see what they have wrought. In doing so, I’ll be careful to type quietly, for the benefit of those of you who may be suffering from too much partying yesterday. I’m referring to the Richmond Spiders’ latest upset win in the NCAA Tournament, of course; not that other holiday.

Pleas in bar

The court takes up a challenge to a collection action in California Condominium Ass’n v. Peterson, from here in Virginia Beach. It relates to some old unpaid condo assessment fees. Peterson and his wife didn’t pay the assessment back in 2006, so the association slapped liens against their properties and allowed the matter to lie fallow for an extended amount of time.

In 2015, the husband and wife reached agreement on a divorce agreement. The husband got the condo units and agreed to hold his soon-to-be-ex harmless from “any liability, costs, and expenses she may incur as a result of Husband’s failure to pay the mortgage and all other expenses related to the property.”

The condo association somehow got wind of this agreement and sued the husband for nonpayment of the old assessment. The suit sought money damages for his breach of the condo declaration. The husband filed a special plea, asserting that two statutes of limitations shielded him from liability: the three-year limit for suing to enforce condo liens, and the general five-year limitation for breach of written contracts. Both of those deadlines had long expired by the time the association went to court.

The association replied that the husband’s agreement with his wife was a fresh undertaking to pay the debt, and it filed suit well within the limitations period after he signed it. It also pointed to a provision that required payment in full of unpaid fees and assessments whenever the property was sold.

While these are interesting legal and factual issues, this case turns on the procedure used in the ensuing plea-in-bar hearing. There, the association handed up a binder with numerous documents. The husband’s lawyer agreed that the lawyers could refer to these documents while examining witnesses, but reserved objections to their admission in evidence. The judge agreed to “simply lodge” the binder and to take up later the admission of exhibits into evidence.

Except no one ever got around to moving to admit the documents – other than the lien memoranda – into evidence. In a subsequent letter opinion, the judge noted this failure and ruled that he accordingly couldn’t consider the condo declaration in making his ruling. The court accordingly ruled in favor of the husband, sustaining the plea in bar and dismissing the case.

The justices today reverse this ruling and send the case back for reevaluation. They hold that while this was calendared as an evidentiary hearing on the plea in bar, in reality it asserted that the suit was legally nonmeritorious, regardless of the evidence. The justices today elect to treat this as effectively a demurrer – the husband called no witnesses at the hearing and asserted that he should win as a matter of law.

This means that the court reads the case with the exhibits attached to the complaint, and those included the declaration, the deed, and the settlement statement. Viewing these, a circuit court can indeed evaluate whether, as the association insists, the pay-on-sale language in the condo declaration constitutes a new undertaking. The court remands the case for that hearing, declining to make the judgment call in the first instance. It includes a subtle reference to an earlier opinion – like today’s, authored by Justice Kelsey – in which it evaluated similar issues.

Alas, that hearing will occur before a different jurist of the Virginia Beach Circuit Court. The judge who originally decided this case was Glenn Croshaw, a long-time friend of mine who died late last year after an extended illness. Glenn was a true gentleman who served the Commonwealth with distinction as a citizen legislator and then as a jurist. We here in Virginia Beach are the poorer for his passing.

ANALYSIS OF MARCH 3, 2022 SUPREME COURT OPINION

(Posted March 3, 2022) I’ll confess that I was hoping that the Supreme Court wouldn’t issue any opinions this morning. That’s because I got to argue an appeal in the Supreme Court – that means inside the actual courtroom – for the first time in two years yesterday, and if there had been no opinions to analyze, I planned to post an essay about the experience. That one will have to wait; the court hands down a single opinion today in an appeal argued in January.

Yet another confession: When I learned that Stahl v. Stitt involved the midnight-deadline requirement in the banking provisions of the Uniform Commercial Code, I was excited. One of my poorly kept secrets is that in law school – a long time ago in a galaxy far, far away – I was a UCC jock. Perhaps because of my college Economics major, I took to commercial law in a manner that probably caused my pals’ eyes to roll. This morning, I looked forward to a rare discourse on this little-known provision.

Today’s opinion, penned by Justice Chafin, addresses an ancillary issue to commercial law: standing. I sense that the Supreme Court has decided a larger number of standing rulings in recent years than it handed down in years past, reflecting a greater modern emphasis on the issue if not an actual change in jurisprudence.

Here’s the setup: A lady whom we’ll call Aunt Ivory lived in Lynchburg, having moved there a few years before from her previous home in West Virginia. She held a bank account in West Virginia with about a quarter-million dollars. She also held an account here in Virginia.

In March 2016, Aunt Ivory was in rapidly failing health, so she moved in with a lady we’ll call Niece #1, who provided hospice care to her aunt. Niece #1 was the pay-on-death beneficiary of Aunt Ivory’s Virginia bank account.

Now we get to the point where individual dates matter, so I’ll lay them out here:

• Tuesday, March 15 – Niece #1 requests an electronic transfer of the entire balance of the West Virginia bank account to the Virginia bank. Today’s opinion tells us that the niece was assisting Aunt Ivory in this task.
• Friday, March 18 – The West Virginia bank issues a check for the full balance in the account, payable to the Virginia bank account.
• Monday, March 21 – The Virginia bank receives the check and provisionally credits Aunt Ivory’s account with the amount of the deposit.
• Tuesday, March 22 – The Virginia bank electronically presents the check to the West Virginia bank for payment. The West Virginia bank, having issued the check four days earlier, decides not to honor it.
• Friday, March 25 – The West Virginia bank allegedly mails the check back to the Federal Reserve.
• Saturday, March 26 – Aunt Ivory dies, leaving no will; the West Virginia bank freezes the account, which still shows a balance of almost a quarter-million dollars.

Uh-oh. We have a problem. At some point before Aunt Ivory’s death, Niece #2 contacted both banks and asserted that the transaction was fraudulent. After the death, Niece #2 qualified to administer her late aunt’s estate, and obtained the money in the West Virginia account.

Now we have an intra-family squabble over a sizeable amount of liquid assets. Niece #1 sued both banks and Niece #2 in Lynchburg Circuit Court. That court dismissed all of the claims except the one against the West Virginia bank, and that’s the issue that the Supreme Court decides today.

The first time I heard about a midnight deadline was in my Commercial Transactions class in law school. It sounded eerie when the professor mentioned it – after all, it has the words midnight and dead in it – but in practice it’s mundane. When a drawee bank – the one holding the funds to be transferred – receives a check, it has a deadline to act on it. It can accept it for payment, or dishonor it. The deadline for the bank to take one of those actions is midnight on the next business day after the bank receives the check. If the deadline passes without either of those actions, then under the UCC the bank “is accountable” for it; that is, the bank is on the hook for the payment.

A quick peek up at the timeline above will tell you that the West Virginia bank missed the midnight deadline. It received the check on a Tuesday and sent it back on a Friday, despite its need to act no later than 11:59 pm on Wednesday. Under essentially identical provisions of the Virginia and West Virginia Commercial Codes, that bank now has to pay it.

But that’s not how this case came out in the circuit court. There, a judge held that Niece #1 didn’t have standing to enforce the midnight-deadline requirement. How can that be, you ask? Because when the deadline expired very late on Wednesday night, March 23, Aunt Ivory was still alive. It was her bank account; not her niece’s. By law, a POD beneficiary has no legal rights to an account while the primary depositor is still alive.

The circuit court thus sustained the bank’s demurrer, holding that Niece #1 had no right to complain about the missed deadline, despite her later acquisition of the Virginia account under the POD provision. In so holding, the court adopted the reasoning of a federal decision from the Eastern District of Virginia, the only decision the court could find that interpreted standing in this context. The justices agree today and adopt this as the standing rule in Virginia.

Does this mean that no one can enforce the deadline requirement? Does the bank get off scot-free? Today’s opinion doesn’t mention this, but I suppose it would be possible for the decedent’s personal representative to sue, asserting a claim that the aunt had in life. I’m not sure how that would play out in the law, but in the world of fact, remember that Niece #2 was the personal rep, and she wasn’t likely to file such an action. After all, she now has the money.

We can’t know the equities of this situation, whether Niece #1 acted in good faith or, as Niece #2 asserted, committed fraud. If you developed a rooting interest in our exploration of this case, it had to arise from the mundane world of commercial transactions and not from family relationships.

ANALYSIS OF FEBRUARY 17, 2022 SUPREME COURT OPINION

(Posted February 17, 2022) The Supreme Court of Virginia hands down a single opinion today, addressing the calculation of the state’s Medicaid lien against the proceeds of a tort settlement. The case is Farah v. Commonwealth, and arises in Fairfax County.

The tort plaintiff is a taxi driver who was struck head-on by a wrong-way driver. He suffered catastrophic injuries and sued for $3 million. The at-fault driver had only $350,000 in insurance coverage; the insurer tendered its policy limits and the driver kicked in $25,000 of his own money. The plaintiff reluctantly agreed to settle for that sum, recognizing that even a full $3 million judgment would only result in the defendant’s bankruptcy.

The Commonwealth asserted a lien of $92K for Medicaid benefits it had paid for the taxi driver’s extensive care. The parties eventually appeared before a circuit court for a hearing to apportion the lien.

The court acknowledged the taxi driver’s substantial damage claim, including future lost wages of over $800,000. A tort lawyer testified at the hearing that the value of the claim if fully insured was $4 million. The plaintiff asked the court to apply a formula to apportion the Medicaid lien: The recovery, divided by the actual case value, multiplied by the amount paid for Medicaid. As I read things, that would have resulted in a Medicaid lien of around $9,000.

The circuit court declined to use that formula. It apportioned $85K to reimburse the Commonwealth and divided the remainder between the taxi driver and his lawyer. The taxi driver got a writ to review the apportionment method and calculation.

Justice McCullough writes today’s opinion for a unanimous Supreme Court. Citing two seminal decisions from the Supreme Court of the United States, he concludes that federal law imposes no specific apportionment formula, and states are free to design their apportionment methods individually within certain constraints. Virginia has done so by statute, empowering the courts to consider the equities of the situation before making subjective judgment calls.

There are two key rulings here today. First, the court rejects the Commonwealth’s contention that courts should calculate the lien by considering the total amount of the medical expenses, not merely a reduced amount actually paid by Medicaid after discounts and write-offs. This is a victory for the plaintiffs’ bar, as the amount paid is usually far lower than the “rack rate” for medical services.

The justices next rule that the circuit court acted within its discretion here in fixing the amount of the lien at $85K. The Supreme Court defers to the circuit judge’s decision on this point, noting that he explained the factors that he considered in reaching his conclusion, even though he didn’t specify an amount of the settlement that he regarded as attributable to medical expenses. Because this is an abuse-of-discretion review, the SCV affirms the judgment, even while giving future tort plaintiffs an important procedural victory.

ANALYSIS OF FEBRUARY 10, 2022 SUPREME COURT OPINION

(Posted February 10, 2022) Many years ago, when I was a brand-new baby lawyer, I touched base with one of my law-school pals. We chatted and described our respective practices. I told him that I was in a very small firm that handled a varied civil and occasional criminal docket. He replied that he was handling rate cases before the Federal Energy Commission.

I blurted out that that sounded awfully boring. I’ve never forgotten his reply: “Steve, you wouldn’t believe how many zeroes there are in these cases.” He told me that his client was negotiating fractions of a cent per cubic foot of natural gas, but the size of the order was in trillions of cf. That adds up to billions of dollars.

I humbly agreed with him that a practice like that was plenty exciting enough.

Today the Supreme Court of Virginia issues an opinion that sort of rhymes with my pal’s long-ago caseload. In Department of Taxation v. RJ Reynolds Tobacco Co., the court takes up a challenge to a corporate income tax assessment against aging tobacco leaves – lots of them.

RJR owns a warehouse in Danville where it stores tobacco leaves for 13-23 months before shipping them to North Carolina for processing into cigarettes. The Department included the value of the leaves in its calculation of the company’s income, according to a formula that considers where a multistate company earns its income.

The company challenged the assessment and sought a correction that eventually encompassed five years’ worth of taxes, running to $11 million. In circuit court, the issue was whether the company “used” the tobacco in its business while it lay peacefully in the warehouse. The company adduced evidence that it didn’t do anything at all to the tobacco during the aging process; Mother Nature did all the work, and the company just kept the product safe and relatively dry.

The court decided that RJR was right and directed a refund of the challenged taxes. On appeal, the Supreme Court unanimously agrees. In an opinion by the chief justice, the SCV holds that the statute unambiguously requires that inventory be used here in Virginia to trigger taxes, and merely allowing it to lie tranquilly in the shade doesn’t rise to that level.

The unambiguously part matters in one important respect: The Department had argued that one of its regulations compelled the opposite conclusion. But the justices today reaffirm that regulations are subordinate to statutes, and you can’t resort to the regs where – as both sides here agreed – the statute is clear.

SCV RULES ON MASK MANDATES

(Posted February 7, 2022) The Supreme Court of Virginia has issued a short, unsigned order that refuses a petition seeking prohibition or mandamus relief against the Governor’s Executive Order 2, which barred mask mandates in local schools. The order comes roughly three weeks after the petitioners filed this original-jurisdiction proceeding.

Parents of several students in the City of Chesapeake filed the petition last month, acting on the first business day after the Governor signed the order. The Attorney General filed a motion to dismiss, and today the court grants that motion. Here are the key rulings:

Prohibition isn’t available here because that lies from a higher tribunal (court) to a lower tribunal, directing the lower court to stop exceeding its jurisdiction. For an easy example, if a juvenile court were to start issuing divorce decrees, a higher court could order it to stop, because circuit courts alone have that power. The Governor isn’t a tribunal, as the justices ruled most recently 5½ years ago in Howell v. McAuliffe, so prohibition is the wrong remedy.

Mandamus is available to compel a state actor to perform a ministerial duty. The parents had asserted that a statute passed last year requires school boards to adhere, “to the maximum extent practicable,” currently applicable CD guidelines. Beyond question, the Governor’s order doesn’t do that; CD guidelines nowadays still call for masking in schools.

But the phrase maximum extent practicable indicates that local school boards will necessarily exercise some discretion in deciding what, precisely, is practicable in their jurisdictions. The need for that discretion is fatal to mandamus, which addresses only ministerial, mandatory actions.

The court goes out of its way not to sanction the executive order. In a closing footnote, it expressly declines to rule on the order’s legality. Elsewhere, it notes that mandamus isn’t available to compel discretionary acts even if they’re unlawful.

So if there’s no mandamus and no prohibition, how can parents like this protect their interest in their children’s health? The opinion offers a broad hint of that, contrasting mandamus with an injunction, which can “restrain motion and enforce inaction.”

That brings us to a separate proceeding up in Northern Virginia, where a judge last week issued a temporary injunction against the executive order. The court ruled that the Governor can’t remove the local discretion that last year’s statute grants to school boards.

What does today’s ruling portend for that injunction? Well, the Code permits the Governor to file a snap appeal – a petition for review that will now go first to the Court of Appeals. I expect the Governor to cite today’s order liberally in such a petition, but the issues are different. The justices specifically rule today that the Chesapeake petitioners’ chosen remedies of mandamus and prohibition didn’t fit this situation. The court expressly didn’t rule on the propriety of injunctive relief.

Reading between the lines, I sense that the Supreme Court may recognize a court’s right to impose an injunction to correct what it sees as unlawful act. Indeed, today’s SCV order uses the word unlawful twice. I tend to doubt that the justices will rule that an unlawful governmental act is wholly beyond the reach of the law.

Today’s order notes that “All the Justices” participated. I don’t know whether that includes Justice Lemons, whose retirement took effect between the petition’s filing date and today. And because it’s unpublished, we don’t know who wrote it. For now at least, the order doesn’t appear on the court’s website; if you’re interested and want a copy, let me know and I’ll forward it.

I offer my gratitude to Ned Oliver of Virginia Mercury, who let me know about an hour ago about this order. Ned’s story on the decision is here.

ANALYSIS OF FEBRUARY 3, 2022 SUPREME COURT OPINIONS

(Posted February 3, 2022) Brevity, the Bard assures us, is the soul of wit; Dorothy Parker adds that it’s also the soul of lingerie. Today that justices take that advice – well, Shakespeare’s, anyway – by issuing two of the shortest published opinions you’ll ever see.

Criminal law

The Constitution requires that a criminal defendant “be confronted with” the witnesses against him. In Cortez-Rivas v. Commonwealth, the court “confronts” a contention that the language translator in a police interrogation must be called as a witness at trial. A detective questioned Cortez-Rivas in connection with a sexual-abuse investigation. Because the suspect was a native Spanish-speaker, a police officer who spoke that language attended and translated the questions to the suspect and the answers to the detective. A police body camera recorded the entire interview.

At a subsequent trial, a different translator, fluent in Spanish, testified. She had viewed the video and had produced a transcript, without any input from the original translator. Cortez-Rivas objected that the prosecution hadn’t confronted him with the original translator. The trial court shrugged off that objection and a jury convicted the defendant; the Court of Appeals refused a petition for appeal.

Today, the Supreme Court affirms. The original translator wasn’t a witness against the defendant. His absence was thus immaterial to the case. The jury only heard from one translator, and she testified and was subject to cross-examination at trial.

In a footnote, Justice McCullough, who authors this three-page opinion for a unanimous court, observes that there’s a split of authority over whether a translator must testify to satisfy the constitutional requirements of the Sixth Amendment. But because of the posture of this case, the court need not confr-

Oh, I can’t say it again. The court reserves this question for another day.

Mootness

A rare procedural development is at the heart of Godlove v. Rothstein, from Shenandoah County. This was a suit to establish an easement, and specifically the right of the dominant-estate owner to build a driveway across the servient tract. The circuit court ruled that Rothstein, who owned the dominant tract, did have such a right. The servient owners got a writ.

While the case was on appeal, Rothstein sold his property. He then did what I consider an admirable thing: He moved the Supreme Court to dismiss the appeal and vacate his victory below.

The court is happy to oblige him; it agrees that the case is now moot. This decision reflects the importance of the appellate process: Until and unless the appellate court issues a final judgment, the case isn’t over yet, because appellants have a right to have their challenges heard. Otherwise, the appellee could win below and then prevent any effective review of a judgment that the losing litigants might not want to be saddled with.

But there’s more. The appellants asked the Supreme Court to tax almost $3,000 in costs against Rothstein, claiming that they had prevailed in the case. Oh, no, you didn’t, the court explains today. When an appellate court dismisses an appeal as moot, the court regards neither party as substantially prevailing. No reversal, no costs. Each side must bear its own litigation expenses here.

Justice Kelsey pens this short decision, also just three pages long. For curiosity’s sake, I counted the number of words in each opinion to see which one was more concise. (Actually, I cut and pasted them, and Microsoft Word did the counting for me.) Justice McCullough wins the brevity sweepstakes with an opinion that comes in at a bit over 800 words; Justice Kelsey manages to squeeze in over 950 in his three pages. (In fairness to him, he had to resolve two legal issues, not just one as in Cortez-Rivas.) Speaking as a consumer of the court’s opinions, I can say that this is my kind of opinion day.

ANALYSIS OF JANUARY 13, 2022 SUPREME COURT OPINION

(Posted January 13, 2022) The Supreme Court of Virginia today steps into a controversial fray with a dispassionate analysis of statutory and contract principles. The case is Smallwood v. Commonwealth, and involves the question whether a criminal defendant can be convicted of an underlying crime for failure to pay court costs.

The underlying crime here is heroin possession. Smallwood obtained court-appointed counsel due to his indigency, and from the looks of it, that lawyer did a good job. The circuit court approved a plea agreement that called for Smallwood to meet several conditions, and if he complied, the court would dismiss the charges under the first-offender statute at the end of a year. One of the conditions was the payment of court costs.

Smallwood obtained a one-year extension of the deadline, but when he appeared in court on the new date, he still hadn’t paid the costs, which topped $1,300. That, you will appreciate, is a lot of money for someone who’s indigent. He told the court, “I just haven’t had any money yet.” The judge knew about Smallwood’s limited income and his monthly expenses, but found that he hadn’t complied with the agreed terms. The court accordingly convicted him and imposed a suspended two-year prison term.

On appeal, Smallwood was unable to convince the Court of Appeals to intervene. The justices granted a writ, but today they, too, find nothing wrong with the conviction. Citing a 1983 SCOTUS ruling, the SCV today observes that in revocation proceedings, courts must “inquire into the reasons for the failure to pay.” If the defendant is doing everything that he can – in the words of the opinion, making “sufficient bona fide efforts to acquire the resources” to pay the costs – then the court has to look into alternatives to incarceration.

The reason for this is that we don’t want to incarcerate people for debt. The legislature has wrestled recently with a parallel problem, the suspension of drivers’ licenses for failure to pay fines. A system that allows the state to impose some type of adverse consequence upon someone who can’t pay, is punishing poverty, threatening to create a bifurcated system of justice, divided between rich and poor.

In a unanimous opinion written by Justice Powell, the Supreme Court rules today that the circuit court did inquire into the reasons for Smallwood’s failure to pay. It holds that in an inquiry like this, the defendant bears the burden to establish those bona fide efforts. Finding that Smallwood “did not present any evidence in support of his claims” of continuing indigency, the Supreme Court affirms the conviction. This, the court writes, “supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs.”

If that seems harsh, I invite you to consider the context. Today’s ruling may not reflect what the justices would do if they were drafting the Code. They may, individually and collectively, feel that this setup comes too close to debtor’s prison for their taste. But remember, they aren’t writing the statutes; they’re interpreting the Code (and, to be fair, applying that SCOTUS precedent).

I don’t practice in the criminal-law field, so others may have a more informed view on this. I plan to ask my appellate pal John Koehler for his thoughts on it, and I hope he’ll post those so you can read them, too. But I’m aware that there is at present a move away from adverse legal consequences for failure to pay fines and costs. This ruling might add fuel to that fire. Update January 17: John has now posted some insightful commentary on the case; you can read his analysis here.

ANALYSIS OF JANUARY 6, 2022 SUPREME COURT OPINIONS

(Posted January 6, 2022) On a day when most of America focuses on last year’s assault on our constitutional democratic republic, the Supreme Court of Virginia gives courtwatchers like us a welcome distraction in the form of two published opinions.

Taxation

I encountered an old friend in Emmanuel Worship Center v. Petersburg. The dispute here is local taxation of church property, and the old friend is Code §58.1-3984. This is the statute that allows a taxpayer to challenge a real-estate tax assessment.

The city sued the church in 2018 to collect unpaid real-estate taxes. The suit sought a decree to sell the property to pay off the taxes. At a trial the next year, the church challenged the assessment, even though it was more than three years old (the maximum extent of relief under the statute).

The circuit court rejected this defense as untimely and found the church liable for about $30,000 in back taxes plus a host of penalties and interest. The court decreed the sale of the property. To avoid that sale, the church paid the amount due – now well into six figures – under protest and filed a bill of review.

A bill of review, you ask? Why not an ordinary appeal? Because the church missed the deadline to note and perfect an ordinary appeal. For generations, the bill-of-review process has afforded certain litigants this safety valve for missed appellate deadlines. Such persons may file the bill within six months of the previous judgment.

The city replied to the bill by moving to dismiss it, contending that such bills relate only to equitable proceedings, and by the terms of my old statute pal, “all proceedings pursuant to this section shall be conducted as an action at law.” The circuit court found this persuasive and refused the bill. The church got a writ to review that decision, which brings us to today’s opinion.

The justices resolve two issues today. First, they hold that the original suit filed by the City was in equity. Code §58.1-3965 authorizes tax sales, and those are definitely equitable proceedings. That means that the bill of review is available to challenge the underlying judgment.

The Supreme Court next goes on to evaluate the circuit court’s supplemental finding that the prior judgment was legally correct. The lower court had held that the three-year limitation barred the church’s defense. Today, the SCV unanimously holds that the church’s defense – the constitutional exemption from taxation on church property – is self-executing, and the church wasn’t obligated to file suit within three years. The court remands the case to the circuit court for an initial determination of whether the subject property is “used for religious worship.” If it is, then it’s exempt.

Attorney discipline

As you can probably tell, I usually enjoy posting these analyses. There are exceptions – particularly savage crimes or cases involving cruelty to children or animals – but for the most part, I like the challenge of digesting each new decision when it comes in.

Attorney-discipline cases are one of the exceptions. These cases impugn the standing of the bar as a whole; attorney misconduct impairs our profession’s image in the eyes of the public. Today’s decision in Robol v. Virginia State Bar is such a case.

The factual backdrop is complex; the facts occupy about 60% of today’s opinion, which comes in at just over 20 pages. The short-form version of the facts is that the lawyer made a number of statements in an Ohio federal court that the Ohio Bar found to violate that state’s Rules of Professional Conduct. Specifically, he was found to have made false statements to the federal court and to have actively concealed evidence in pending litigation. The lawyer was allowed under Ohio law to retire or resign from the Ohio Bar with disciplinary charges pending.

While this was happening, the lawyer – who was originally licensed here in Virginia – had converted his VSB status to associate. That means that you can’t practice law here; you pay reduced Bar dues; and you can reinstate your active membership fairly easily.

The Virginia State Bar got wind of the Ohio action and initiated disciplinary proceedings here against the lawyer’s Virginia license. The lawyer responded that the Bar couldn’t discipline him because, as an associate member, he wasn’t subject to VSB regulation. The justices swat this argument aside, noting that by rule, “every person licensed by the Virginia Board of Bar Examiners or admitted by the Supreme Court of Virginia is a member of the Virginia State Bar.” This lawyer undeniably met this definition, so he’s subject to Bar discipline here.

The court also notes today that if the lawyer were correct, then any lawyer could convert to associate status, engage in any sort of unethical conduct elsewhere, and then reinstate his active membership, free of any Virginia consequences for his actions. The court calls that an absurdity.

The court next addresses the sufficiency of the evidence. As noted above, the facts are complex, so I won’t review them here to illustrate the court’s conclusion; a review of them will convince you that they warrant disciplinary action.

The lawyer has one final argument: He contended that the VSB couldn’t impose a sanction beyond what the Ohio Bar had found appropriate. The conduct was, after all, in Ohio. The VSB Disciplinary Board had imposed a four-year license suspension; the lawyer contended that he should have been allowed to resign or retire, just as in Ohio.

The justices find this argument to be procedurally defaulted. In arguing to the board, the lawyer had urged a suspension of no more than six months, but never urged the same-as-Ohio argument. Because Rule 5:25, the contemporaneous-objection rule, applies in attorney-discipline proceedings, too, the court refuses to consider this one.

Justice Mims writes both of today’s opinions. In the VSB appeal, he notes that the Ohio court turned aside the lawyer’s assertion that in making the false statements, he was relying in good faith on representations from his client. In doing so, that court had cited Lewis Carroll’s Through the Looking Glass, and What Alice Found There: “not even believing in ‘six impossible things before breakfast’” could the lawyer have reasonably believed what he was saying.

This passage illustrates that a lawyer can’t turn a blind eye to his client’s lies, and expect to retain a clean Bar record. This is one of the reasons why the New York Appellate Division suspended the license of former presidential legal adviser Rudy Giuliani last year, with a broad hint that the suspension would soon evolve into a permanent revocation. Today is an appropriate anniversary to reflect on the danger of following a road that’s paved with lies.

ANALYSIS OF DECEMBER 29, 2021 SUPREME COURT OPINION

(Posted December 30, 2021) My travel schedule kept me away from the keyboard for yesterday’s announcement of the final published opinion of the year from the Supreme Court of Virginia. In Commonwealth v. Richard, the justices take up a criminal-law principle known as Wharton’s Rule.

This is a prosecution for conspiracy to distribute methamphetamine. The prospective seller was a man named Harris. The prospective buyer, alas for Harris, was an undercover investigator for the local sheriff’s office. The two arranged by text messages to meet and exchange about ten grams of meth for a car.

This meant that Harris needed the meth for the trade. He called an acquaintance, Richard, and asked if he could get some from her. No dice, she replied; the police recently raided my home and cleaned me out. But she did want that car, “to leave and start a new life.”

Good for her. Unfortunately, she didn’t hang up the phone; she and Harris concocted an arrangement for him to advance the drugs for her, with her repaying him the value over time. In the interim, they agreed that Harris would own half of the car.

If you’ve thought about this, there are about a dozen ways that this could go wrong. I’ll advance the plot a bit by saying that no one gets hurt in a fiery blaze of weapons; deputies peacefully took both Harris and Richard, plus a pal they had brought along, into custody.

Richard didn’t try to cover anything up; she freely admitted to the arresting deputies what the details of the planned transaction were. That got her indicted for possession with intent to distribute and conspiracy to distribute.

This is where Wharton’s Rule comes in. For those of you who don’t swim in the waters of criminal procedure, the rule provides that when it takes two to complete a crime, you don’t add a conspiracy count. The best example is one listed in today’s opinion: dueling. Precedent establishes that in such situations, the substantive offense and the conspiracy merge when the prosecution proves the substantive offense.

For today’s purposes, involving drug distribution, “when a single buyer and a single seller agree to a drug exchange, that agreement does not constitute a conspiracy, only an illegal sale of drugs.” At trial, Richard asked the judge to give an instruction on this doctrine. The court said no and a jury convicted her. The Court of Appeals reversed, holding that there was enough evidence in the record for a jury plausibly to conclude that the rule applied.

The problem with this is that we didn’t have a single buyer and a single seller. We had one (admittedly phantom) buyer and two sellers. There was plenty of evidence, including Richard’s own candid testimony at trial, that she and Harris had arranged a complex deal for the transaction. That established “preconcert and connivance” between the two, the predicate acts for conspiracy. The justices thus reverse the CAV and reinstate the conviction.

Much of the caselaw in today’s opinion from Justice Goodwyn, writing for a unanimous bench, comes from federal courts. I ran a quick search and found only one previous SCV opinion that mentions the rule, plus five published CAV opinions (in addition to one unpub) mentioning it. This isn’t an issue of first impression in the Supreme Court, but it’s close.

ANALYSIS OF DECEMBER 22, 2021 SUPREME COURT OPINIONS

(Posted December 22, 2021) As Christmas draws nigh and the Big Guy draws a bead on your chimney, the justices give you some leisure reading to pass the time. We get two published opinions from the Supreme Court of Virginia this morning.

Criminal law

Justice McCullough pens the court’s short opinion in Carter v. Commonwealth, a prosecution for battery of a police officer. This one comes to us from Lynchburg Circuit Court, by way of the Court of Appeals.

Late one night in January 2018, a police officer answered a dispatch for a disturbance in the City of the Seven Hills. He arrived at the scene and saw “several individuals screaming at each other” in front of a home. The primary contestants appear from today’s description to be a woman named Carter and a man named Penicks. The officer learned from Penicks that he lived at the home and needed to retrieve some of his property. “Carter yelled that Penicks had put his hands on her and needed to go.”

The officer, standing in the threshold of the open front door, heard Carter scream that Penicks “is not coming in here.” The officer pointed out the obvious: “I’m standing right in front of you,” presumably an indication that Penicks couldn’t get past the officer while he was investigating.

This wasn’t good enough for Carter; she cursed at the officer and repeatedly tried to slam the door shut, each time striking the officer’s foot in the doorway. Carter then backed into the home; the officer followed her. At that point she screamed at him; he placed her in handcuffs for an investigative detention. She elbowed him thrice but evidently didn’t do much damage …

… other than earning herself a felony prosecution for assault and battery of a police officer. At a bench trial, her defense was that the officer was a trespasser and she had a right to use force to expel him from her home. The judge wasn’t having any of it; Carter was convicted, and the Court of Appeals affirmed.

The Supreme Court unanimously affirms the conviction today. The court holds that the record doesn’t indicate that Carter ever told the officer to leave before she started ramming his foot with the door. One cannot be a trespasser until and unless the possessor of property conveys instructions to leave. And under prior caselaw, Carter can’t simply retreat into her home from the admittedly public space of her open doorway, and thereby insulate her from arrest for a crime committed in public.

Tort immunity

The justices take up the statutory immunity afforded by Virginia’s Good Samaritan statute in Stoots v. Marion Life Saving Crew, Inc. This is a wrongful-death claim against three rescue workers and the rescue squad for which they worked.

This appeal turns on the meaning of an advance medical directive. When two members of the rescue squad responded to a call for help, they found a 43-year-old diabetic who was experiencing breathing difficulties. They observed that he “was still breathing with a normal resting heart rate.” The patient’s sister handed the crew the advance directive; one member scanned it quickly and noticed that it directed “no extraordinary methods.” He concluded that the patient had signed a Do Not Resuscitate document and handed it back before taking the patient to the hospital. The crew didn’t administer any lifesaving means, though they did stop on the way to pick up a paramedic who could assist if necessary.

The patient died en route to the hospital. As for the directive, it didn’t contain the “no extraordinary methods” language; the staffer’s quick scan had given him the wrong impression. Instead, it called for treatment for two days to see if his condition improved.

The sister qualified as the patient’s personal representative and sued for wrongful death. The circuit court sustained a plea in bar, finding that the rescue workers were “clearly negligent, and probably grossly negligent,” but that they were immune from liability under the statute. Because the workers were immune, the court found that the rescue squad was immune, too, so it dismissed the case.

Justice Powell’s opinion for a unanimous court notes that at common law, a person who provided emergency services could be liable for ordinary negligence. Because this was a strong disincentive to provide such care, the legislature provided for statutory immunity. The criteria for the immunity at issue here include:

• A licensed EMS provider;
• Rendering emergency care in good faith;
• Without compensation;
• To any injured or ill person.

In this situation, the care-provider isn’t liable in damages for the services rendered. The personal rep argued that the immunity didn’t apply here for three reasons.

First, she contended that the EMS providers violated statutory duties, and the Good Samaritan statute only covers violations of Health Department regulations. The justices reject this argument because most of the statutes that she cited create no affirmative duty. As for the one that arguably does, the court observes that the act’s phrasing – “including but in no way limited to” regulations – means that it can apply to statutory violations.

Second, she argued that the gross negligence of the rescue workers meant that they didn’t deliver services in good faith. In what I see as a significant precedential ruling, the Supreme Court holds today that good faith and gross negligence can coexist. Because the General Assembly treated gross negligence differently in a separate subsection of the statute than here, the court rules that merely proving gross negligence doesn’t establish a lack of good faith. It also rejects the contention that the law judges the rescue workers’ actions by a standard of objective reasonableness. Doing that, the court rules today, would essentially wipe out the statute by reinstating the common-law liability standard.

Third, the justices agree with the trial court that the rescue workers weren’t paid for this work. The squad had a program that allowed volunteers to receive pay for each shift worked beyond the first three. Each could designate at the end of the month which shifts would be volunteer and which would be for pay. Two of the three individual defendants had designated this as an unpaid shift; the third didn’t participate in the program, so this issue didn’t apply to him.

The personal rep makes a plausible argument here: By allowing the members to designate which shifts were unpaid, they could game the system by electing not to receive pay for any problematic shifts, while getting paid for others where no problems arose. The Supreme Court rejects this contention, holding that the plain language of the statute grants immunity for any work that was actually unpaid; it doesn’t turn on whether the worker could be paid.

The justices thus affirm the dismissal of the claims against the rescue workers. The personal rep wins a lesser victory, as the court remands the case to determine whether the rescue squad itself was paid. It billed the patient’s insurer, which paid “an undisclosed amount” to the squad. The justices can’t determine on this record whether the insurance payment was for the rescue services (in which case it’s compensation, and would defeat the statutory immunity) or for reimbursement of costs (which isn’t compensation).

On remand, the circuit court will need to revisit one other issue: whether this is a medical-malpractice case. The personal rep didn’t plead it as one, and didn’t get the required certification for those claims. If this qualifies as a med-mal claim and the alleged negligence doesn’t “lay within the range of a jury’s common knowledge and experience,” that could be another tough hurdle for the remainder of the case.

ANALYSIS OF DECEMBER 16, 2021 SUPREME COURT OPINION

(Posted December 16, 2021) As the year winds down, the Robes by the James give us a new published opinion. Garner v. Joseph involves the question whether the holder of an easement is an indispensable party to a boundary-line adjustment suit between fee-simple owners.

The property in issue here is in Newport News, adjacent to a body of tidal water named Deep Creek. From what I can tell by looking at satellite images, it looks like a very nice neighborhood with what I take to be expensive homes. Homeowners named Edwards own a parcel that fronts on the water. This lot separates their neighbors to the east, the Garners, from the waterfront, but an Eisenhower era deed to the Garner property creates a 6’ easement in their favor over the Edwards lot, so the Garners can reach the creek. As expressly allowed by the deed, the Garners built a pier out over the water along that 6’ strip.

In 2018, the Edwardses entered into what I perceive was a friendly lawsuit with their waterfront neighbors to the south, the Josephs. The suit was intended to fix the boundary line between the Edwards lot and the Joseph lot. As usually happens in suits like this, the circuit court entered the parties’ desired order to carry out their agreement on the boundary’s location.

This order generated a problem: The new boundary placed the Garners’ pier partly in the Josephs’ riparian area. No one had thought it necessary to name the Garners in the friendly suit, so they had no opportunity to participate and protect their easement interest.

That wouldn’t have mattered if the Josephs hadn’t then sent a no-trespassing notice to the Garners, telling them to stop using “the illegal pier construction and applicable riparian waters.” The Garners responded by filing a suit to invalidate the 2018 consent decree.

The issue in the case quickly turned to whether the Garners were proper, necessary, or indispensable parties to the boundary-line suit. Proper parties are those who may, but need not, be joined in a lawsuit. Necessary parties should be joined except in two limited situations: (1) where it’s practically impossible to join everyone, and existing parties have the same interests; or (2) the absent party’s interests “are separable from those of the parties before the court, so that the court may enter a decree without prejudice to the rights of the absent party.”

The third category, indispensable parties, comprises those without whom the court cannot adjudicate the case. The question here is whether the Garners were necessary or indispensable parties. If they were, then they can sue to canopener the 2018 judgment.

The circuit court ruled that the Garners weren’t necessary parties, so it dismissed the suit. Today the Supreme Court reverses, finding that an easement is a sufficient interest to make it necessary to include them in any adjudication of the property boundary. Because the relocation effectively deprived them of material rights, expressly including riparian rights, other parties couldn’t sue without bringing the easement holders into the suit.

Justice McCullough pens today’s opinion for a unanimous court. He distinguishes a previous decision in which the court had ruled that easement holders weren’t necessary, because their interests had been adequately represented by others in the suit whose position substantially matched theirs. Here, no one stood in the position of the Garners; no one even tried to protect their rights.

I’m grateful to the court for including a boundary survey in today’s opinion, setting out the parties’ lot lines. I tend to be visually oriented, and I greatly appreciated this visual aid. I’m also profoundly grateful to the Wolfcales and the Van Slykes and the Reeders and the Clarks and the Stoopses and the Simses and the Danos. These are my treasured neighbors adjacent to Stately Emmert Manor. I’m confident that none of them would think of doing anything so unneighborly as sending the trespassing notice that we saw here. There’s a lot to be said for treating your neighbors with kindness.

ANALYSIS OF DECEMBER 2, 2021 SUPREME COURT OPINION

(Posted December 2, 2021) The Supreme Court issues its first published opinion in five weeks today. Ehrhardt v. SustainedMED, LLC involves an indemnity provision buried in a stock-purchase agreement.

Our tale begins 12 years ago, when six individuals contracted to sell their shares in a company called Cyfluent. The sellers told the buyer, SustainedMED, that Cyfluent had contracts with 165,000 doctors and that monthly revenues exceeded $800,000 per month. The buyer was happy to acquire an asset like that for $4.9 million, comprising $2.1 million in cash and notes for the remainder.

The stock-purchase agreement contained indemnity language that obligated the sellers to make the buyer whole in the event of inaccuracies in any pre-sale representations. The provision limited total indemnity to $4.9 million, the amount of the purchase price, subject to a $25,000 deductible.

Alas, Cyfluent was nowhere near as affluent as the sellers had promised. Instead of 165,000 doctors, it had contracts with only about 100. That’s one hundred; not one hundred thousand. The buyer soon figured out that revenues were only a trickle, and the company’s worth was tiny in comparison with what the sellers had indicated.

The buyer then invoked the indemnity provision, indicating that it was using the promissory notes to set off part of its losses and demanding payment for the rest. The sellers refused, so the buyer went to court.

After a bench trial, the court ruled in favor of the buyer, awarding judgment for $2.775 million and declaring that the promissory notes were extinguished. The buyer then filed a claim for its attorney fees and costs. The sellers claimed that their maximum liability for fees was $25,000, because of the $4.9 million cap. The buyer replied that the note extinguishment didn’t count against that cap, so there was plenty of room left for a fee award.

The circuit court took the matter under advisement for what turned out to be a very long time – three years. It then issued an order that granted fees of $972,000 and a smaller costs award. The order didn’t contain any explanation for the ruling.

That brings us to Ninth and Franklin, where the justices consider only one issue: whether the fee award should be capped at $25,000. In a unanimous ruling, the Supreme Court agrees with the sellers that attorney fees are within the indemnity cap, and that the cancellation of the notes counts as compensation, too. The court accordingly reverses the million-dollar award and enters final judgment of $25,000 in fees to the buyer.

As I see it, the court’s ruling here makes perfect sense. I’ve long known that, for example, cancellation of indebtedness is a taxable event to the debtor, and it follows that that should be counted as part of the buyer’s recovery.

The only thing that surprises me about this is that the opinion is published. I have no insider knowledge as to how the court chooses which rulings to publish and which ones come down by unpubs. I’ve assumed that the court almost always publishes those holdings that have broader precedential value, and the ones that contain, say, narrow and unusual facts are decided without publication.

The language in this contract may not be unique, but I doubt that this precise setup is widespread in stock purchases and other contracts containing indemnity provisions. My best guess on this one is that the court publishes the holding that cancellation of indebtedness is indeed part of a plaintiff’s recovery; but that’s not entirely satisfying.

ANALYSIS OF OCTOBER 28, 20201 SUPREME COURT OPINION

(Posted October 28, 2021) The Supreme Court of Virginia closes out October by handing down one published opinion today. Commonwealth v. Cady is an appeal that follows a reversal of a criminal conviction. A jury found Cady guilty of reckless driving, stemming from a fatal collision in which the car that he was driving struck a motorcyclist who was stopped in the roadway, waiting to make a left turn.

The evidence at trial was damning. The skies were clear and the collision occurred on a straight stretch of roadway where Cady should have been able to see the large motorcycle from far off. There was no evidence that Cady suffered a medical emergency. All of the evidence seemed to point to inattentiveness as the cause of the collision.

A jury saw it that way and convicted Cady. But a divided panel of the Court of Appeals reversed, holding that no rational trier of fact could have found him guilty beyond a reasonable doubt. The Commonwealth sought and got review in the Supreme Court.

Justice Kelsey pens today’s short opinion for a unanimous court. He first notes that the appropriate standard of appellate review requires the court to accept the evidence in the light most favorable to the Commonwealth, because the jury resolved the facts against Cady. Through that lens, the court today finds that the trier of fact could well have concluded that the only explanation for the collision was Cady’s reckless actions:

Based upon this evidence, a rational trier of fact could reasonably infer that the accident in this case was not the result of a “split-second, momentary failure to keep a lookout,” constituting only simple negligence, but rather a “lengthy, total, and complete” failure to keep a lookout, satisfying the mens rea requirement for reckless driving in violation of Code § 46.2-852.

Today’s opinion explores the difference between simple negligence and the reckless behavior that’s necessary to convict here.

ANALYSIS OF OCTOBER 21, 2021 SUPREME COURT OPINIONS

(Posted October 21, 2021) The Supreme Court today issues two published rulings, including a decision in the court’s oldest previously undecided appeal.

Civil procedure

The justices take up seemingly contrary statutory provisions relating to confessed judgments in Ayers v. Brooke Road, LLC. Ayers was one of several borrowers on bank loans about 15 years ago. In 2009, the loans went into default. The bank utilized the notes’ confessed-judgment provisions, and got immediate judgments. Two weeks later, it tendered to the clerk of court returns from a process server, showing personal service of the judgments on Ayers at a location in Orange County.

The judgments evidently languished for nine years before the bank sold the judgments to Brooke Road, LLC. That company filed suit against Ayers in an attempt to collect the judgments. A bit over seven weeks after being served with the new complaint, Ayers filed his own action to set aside the underlying default judgments. He alleged that he was never served in 2009, and the returns of service were false. He attached copies of several criminal convictions suffered by the process server for dishonesty.

Brooke Road demurred to Ayers’s suit, citing a statute that requires a challenge to a default judgment to be filed within 21 days after the debtor is served. Ayers responded that under another statute, the failure to serve a default judgment within 60 days renders the judgment void ab initio, so the 21-day limit doesn’t apply.

The circuit court agreed that Ayers had a valid claim on the facts, because a return of service isn’t conclusive; only prima facie evidence of service, and that can be rebutted. But the court agreed that Ayers did have a 21-day window within which to challenge the judgments, and he missed that. The court thus sustained the LLC’s demurrer.

Today the justices unanimously reverse and remand the case for trial. A judgment that’s void ab initio is a legal nullity, and the plaintiff can retroactively reincarnate it by subsequent action. Once that 60 days passed, assuming (as the court must at the demurrer stage) that Yates wasn’t actually served, the judgment simply vaporized and the creditor has to start over again. Yates doesn’t get a final judgment in his favor, but he now gets to prove that he really wasn’t served. As an aside, if he succeeds in doing so, I might anticipate that the court may have something to discuss with the process server thereafter.

Fiduciaries

The other opinion issued today also takes up the interplay between related statutes. Phillips v. Rohrbaugh is a suit by one beneficiary, a decedent’s daughter, against her brother, who is a co-executor of the decedent’s estate. The daughter perceived that her brother’s handling of their late father’s affairs – before death under a power of attorney, and after death in estate administration – were suspicious or constituted self-dealing.

The daughter requested certain documents from her brother; the brother gave her some of what she sought. She decided that what he sent her was insufficient, so she filed a suit in equity seeking an equitable accounting and a statutory accounting. Her brother replied that neither option was available. The circuit court agreed with the brother and dismissed the case.

The power of attorney had some language that I found remarkable, and the Supreme Court today finds dispositive. I’ll italicize the most relevant text, but the bolding is in the original:

Pursuant to the provisions of section 11-9.6 of the Code of Virginia of 1950, as amended, it is my intention that, except as specifically provided for herein, my agent shall never be required to make disclosure or inspection of my affairs, or their actions as my agent, either under this instrument or otherwise, to any third party. I authorize my agent to refuse any request for disclosure or inspection, and they have the sole discretion to determine the scope, if any, of disclosure or inspection they may wish to permit. I authorize my agent as an expense of the agency to resist any proceeding to compel such disclosure or inspection. . . . Without limitation of the foregoing sentences in this paragraph, I specifically intend that my agent shall never be required to make disclosure of their actions or permit inspection of my affairs under this instrument, pursuant to section 11-9.1, section 11-9.6, section 37.1-134.22 of the Code of Virginia of 1950, as amended, or any other statute.

Well, that seems definitive enough to get the point across. Citing this provision, the Supreme Court today honors the decedent’s wishes. The court rules that under the power, the brother had no obligation to disclose anything to his sister, in that she wasn’t his agent. That duty runs to the principal, not a relative. An equitable accounting is thus a matter of the chancellor’s discretion.

Turning to the daughter’s claims under the will, the justices today find that she does indeed have standing to raise such a claim, but it has to come in an estate proceeding before the commissioner of accounts (and eventually the circuit court), not in this collateral action.

The court also rejects the daughter’s statutory claims for relief under the Power of Attorney Act. While a general provision of the Act permits a relative of the principal to petition a court to “construe a power of attorney or review the agent’s conduct,” other related statutes narrow the scope of such petitions. The daughter finds herself on the outside of these provisions, as the Supreme Court rules that she cannot compel a statutory review at this point, in this proceeding.

Today’s ruling disposes of this lawsuit but doesn’t close the book on this sibling dispute. It’s eminently foreseeable that the same parties may revisit the Supreme Court at some point down the line.

As I mentioned above, this appeal is the oldest on the court’s current calendar. The advocates argued the appeal to the justices in April; they had to wait six months to get today’s unanimous ruling. Waits like that are agonizing, but there’s nothing to be done but to be patient.

ANALYSIS OF OCTOBER 14, 2021 SUPREME COURT OPINIONS

(Posted October 14, 2021) For those of us who follow appellate decisions, a long drought ends today as the Supreme Court of Virginia hands down its first published opinions in six weeks.

Torts

The justices take up several dirt-law claims in Givago Growth, LLC v. iTech AG, LLC, from Fairfax County. It’s a suit by an LLC that owns land up there, filed against a lender that sued and slapped a lis pendens notice in the local land records.

When the plaintiff in that action nonsuited and withdrew the lis pendens, the property owner sued the lender for a host of claims: malicious abuse of process, slander of title, tortious interference with contract, and civil conspiracy. The lender demurred, claiming that the lis pendens was entitled to the absolute privilege that protects assertions made in the course of litigation.

The learned judge considered this argument, and agreed with the lender. He dismissed the action with prejudice. A Supreme Court writ panel decided to take up the issue.

Today’s opinion, written by Justice Mims, first addresses the propriety of a court’s deciding a defense like privilege on demurrer. The court rules that that’s improper, as affirmative defenses have to be raised by pleas or an answer. While that might have been the end of today’s decision, the court goes on to examine the merits of the defense.

If you find that unusual, I agree with you. By evaluating an affirmative defense that has yet to be properly raised, the court issues something that looks a lot like an advisory opinion. But it’s entirely foreseeable to me that the circuit court will eventually have to make this call, so the justices decided to weigh in on it in the interest of judicial economy. After all, there’s no need to make the parties try the case, only to come back to the appellate courts (it would be the CAV by then) to get a legal ruling on an issue that the parties have already framed well.

Today’s opinion analogizes this situation to the filing of a mechanic’s lien. Both that lien and a lis pendens are ancillary to the main object of the litigation. They serve to notify potential purchasers that the plaintiff has a claim against the subject property, thereby protecting the person or entity who asserts that claim. The justices note that prior caselaw has protected a mechanic’s lienor from defamation liability by the privilege defense.

At this point, it looks like the Robes are about to hand the lender a delayed-onset victory. But then we see this paragraph:

However, the circuit court went further and held that the defense of absolute privilege applies to all four causes of action alleged in the petitioners’ complaint: slander of title, malicious abuse of process, tortious interference with contractual relations, and civil conspiracy. This Court has never extended this defense to non-defamation torts, such as the latter three listed above, and we decline the invitation to do so today.

The court thus rules that while the privilege defense may bar an action for slander of title, it won’t apply to the other three, non-defamation claims.

Okay, now it looks like the slander claim is going down (eventually), and the other three will proceed at least through the pleading stage. But wait; there’s more! Justice Mims then adds that even the absolute pleading privilege is subject to a requirement of relevancy. If the allegations in the lis pendens are “palpably wanting in relation to the subject matter of the controversy” as to make them irrelevant or improper, then the property owner can fend off the privilege defense.

I learned long ago that merely having a monetary claim against John Q. Defendant isn’t enough to warrant the filing of a lis pendens against his property; that requires a claim to ownership of that specific property. That might be the reason why Justice Mims adds this ominous language at the end of today’s discussion: “we note that the facts alleged in the complaint, if proven true, are concerning and may not satisfy even this ‘liberal rule’ regarding relevancy.” The justices thus remand the case so the circuit judge can make that evaluation.

Criminal law

The court takes up a certified question from the Fourth Circuit in White v. US. The appeal arises from a criminal prosecution in which the government managed to obtain an enhanced sentence under the Armed Career Criminal Act, successfully convincing the district judge that White had three prior violent felonies. That led to a significantly stiffer sentence than White would have received otherwise.

On appeal to the Fourth, White claimed that one of his three prior convictions, a Virginia proceeding for robbery, didn’t qualify as a violent felony. That argument led the Fourth to certify this question to the SCV: “Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?”

This issue likely triggers an I-thought-I’d-seen-it-all reaction. I had never heard of a robbery conviction for threatening to out someone. Extortion, maybe; but then, I don’t handle criminal litigation.

It turns out that the highest court in the Commonwealth has decided this issue on four previous occasions – once in 1890; the other three in the 1930s – and has always said that it’s possible to base a robbery conviction on this precise threat. Who knew?

Well, White’s lawyers knew, for one. They raised the issue that physical force – the predicate act of violence for an ACCA sentence enhancement – isn’t always necessary for a robbery conviction. If White is right, he should be entitled to a new sentencing, and a shorter stay as the guest of the Attorney General of the United States.

Justice Kelsey authors today’s opinion, I found it to be one part appellate ruling and about eight parts legal history lesson. Another jurist would have cited the four SCV opinions and let it rest there; a nice, short opinion that’s beloved by working-class scribes like me. But Justice Kelsey wanted to firmly establish the precedent, so he examines English common law decisions stretching back into history. He cites numerous English opinions, all finding this precise exception to the physical-force requirement.

With this line of caselaw, the only thing that can interrupt it is legislation. The General Assembly, in its wisdom, has declined to step in and abolish this exception, so the court answers the certified question in the affirmative. That’s a victory for White.

This ruling isn’t entirely unanimous. Two members of the court – Justice Mims and Powell, can’t stomach the labyrinth of English legal history, so they file a short concurrence, based on the four SCV decisions already in Virginia Reports.

I’m of two minds about this. Like Justice Kelsey, I appreciate legal history. I’m always interested in an exposition on a subject of which I’m ill-informed. But this was a remarkable, extensive digression that, in my view, really wasn’t necessary to decide the certified question. It reminds me of another digression, this one from one of my three favorite novels, Les Misérables by Victor Hugo. The book is ponderous at roughly 1,200 pages, though I love it anyway.

In the novel, Hugo spends 100 pages describing the Battle of Waterloo. The sole story-based purpose for this overlong detour is to make the point that a really-really good guy mistakenly believes that a really-really bad guy is actually really-really good. (He isn’t. Sorry if I spoiled the novel for you.) The real purpose, I suspect, was for Hugo to express his patriotism and his admiration for Napoleon Bonaparte. The battle occurred when Hugo was 13 years old, and it must have shaped his views of what it meant to be a Frenchman.

Enough speculation; I can’t offer an informed view on why Justice Kelsey took us on this long tour into Eighteenth Century England. But the answer to the Fourth’s certified question is now chiseled deeply in the annals of our jurisprudence.

SUPREME COURT PERMITS REMOVAL OF LEE MONUMENT

(Posted September 2, 2021) In two rulings handed down this morning, the Supreme Court of Virginia affirms lower-court judgments that permit the Governor to remove the statue of Gen. Lee on Monument Avenue in Richmond.

In a short published order in Gregory v. Northam, the court affirms the denial of declaratory-judgment relief to the descendants of the Nineteenth Century donors of the land on which the monument now rests. There are no sweeping public-policy pronouncements in the order; in the end, it turns on principles of real-property law.

In 1890, the Commonwealth accepted a deed to the site containing this language:

The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the Special Statute herein before mentioned executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold said Statue and pedestal and Circle of ground perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

The modern heir to those grantors sought to enforce the rights that the Commonwealth thereby granted to his ancestors, as the language quoted above unmistakably creates a perpetual obligation on the part of the Commonwealth.

The justices rule that any rights reserved by the grantors created an easement appurtenant – that is, an easement that benefits a particular parcel of land – and not an easement in gross, which benefits one or more individuals. That’s dispositive here because the heir doesn’t allege that he owns any particular parcel of land that this language was intended to benefit. This means that the heir doesn’t have a property interest that gives him the right to enforce the language against the Governor.

*   *   *

The discussion in Taylor v. Northam is more sweeping and will be cited liberally in many future cases involving public policy. This appeal stems from litigation brought by property owners in the vicinity of the monument. They, too, sought a declaration that the Governor had no right to repudiate the promise made by the 1889 General Assembly when it adopted a joint resolution. This resolution authorized the Governor at that time to accept the gift and guarantee that the Commonwealth would hold the monument “perpetually sacred to the monumental purpose to which it has been devoted.”

A circuit court judge considered the matter in a bench trial. After receiving evidence and arguments, the court took the case under advisement before issuing a letter opinion last October. The court noted that a restrictive covenant like this can be enforced only if it’s consistent with public policy. The burden to establish a contrary public policy fell on the Governor here.

At trial, the evidence on this point was lopsided, judging from the recitation in today’s opinion. The Governor called two expert witnesses, eminent historians both, who told the court about the variance in public policy between the 1890 Commonwealth and today’s. The monument rose at a time when white Virginians, stung by the pain of what they saw as a punitive Reconstruction, sought to affirm their pre-war dominant position in society. The statue was for them a symbol of what we now refer to as the Lost Cause myth.

Modern society is, as we all know, quite different. The subjugation of one race by another is anathema to all but a few modern-day fringe groups. The decision to remove the statue is in line with other current legislative actions and public-policy statements.

As today’s opinion explains, the circuit court noticed “the lack of any evidence” from the plaintiffs on public policy other than those from the Nineteenth Century. They had claimed that these declarations survive today as modern public policy.

The circuit court disagreed with the plaintiffs, finding the covenants repugnant to modern public policy. It accordingly refused to enforce them and granted judgment in favor of the Governor. When the plaintiffs appealed, the circuit court sua sponte entered an order granting a temporary injunction against the statue’s removal, pending resolution of the appeal.

By current standards, that resolution was quite swift. Today, ten or eleven months after the final order below, the Supreme Court issues a 26-page opinion that affirms the judgment below, albeit on slightly different grounds. In contrast, what I’ll describe as garden-variety appellate litigation takes a year and a half or more from circuit-court judgment to SCV merits decision. This appeal was fast-tracked.

Justice Goodwyn pens today’s opinion. He begins his analysis by noting that the plaintiffs’ claims rest on two assumptions. The first is that they have an enforceable property right to control the use of land owned by the Commonwealth. The second is that the Constitution of Virginia bars the Governor from removing the statue because the legislature passed that joint resolution. He concludes, “Rightfully, neither premise survived the [circuit] court’s scrutiny.”

The monument is a form of government speech, and government speech “is a vital power of the Commonwealth.” The plaintiffs were claiming the right to force the government to embrace a particular message, one that Nineteenth Century white Virginians sought to perpetuate.

But as the Governor’s experts explained, times change. And one generation of Virginians – those with political power, anyway – cannot force later generations to agree with a message that is no longer widely held. This is all the more true of a public-policy statement in a joint resolution, a lesser form of legislative pronouncement than an enactment. That joint resolution is not, and never was, binding law; it was merely an expression of the post-Reconstruction legislature’s desires.

The Governor pointed to a budget amendment passed by the 2020 General Assembly, expressly repealing the 1889 resolution. The plaintiffs asserted that this action was unconstitutional. Today’s opinion finds that even without the 2020 act, it’s clear that the language in the resolution and the deeds violates modern public policy.

Justice Goodwyn also invokes a doctrine that I learned perhaps 30 years ago when I worked in City Hall: A government cannot contract away the power to govern. That includes the right to decide what form of public speech it will embrace. The Nineteenth Century legislature could no more bind the modern Commonwealth to express this view than it could contract away the right to set any speed limit for the new invention, the automobile, above ten miles per hour. Times have changed in the field of transportation, too.

The Supreme Court thus rules that the Governor in 1890 had no power to contract away future generations’ right to decide for themselves what forms of government speech could be expressed. The restrictive covenant is thus unenforceable.

In a short passage, Justice Goodwyn dispatches the plaintiffs’ claim that historic-preservation statutes also bar removal of the statue. He concludes that those statutes make the Governor the final authority on whether to remove memorials.

In a concluding paragraph, the Supreme Court affirms the judgment below and “immediately dissolve[s] all injunctions imposed by the circuit court.” So is the Governor free to schedule removal of the statue this afternoon? Technically, he has to await the issuance of a mandate, the formal order that carries out the Supreme Court’s opinion; but the word immediately suggests otherwise. It’s conceivable that the losing parties in today’s two decisions could petition the court for rehearing, but that would be a futile gesture that would only buy time, and very little time at that. Both of today’s rulings are unanimous.

Between the June session, when the Supreme Court heard oral argument in this case, and now, I’ve read a book entitled Robert E. Lee and Me by a retired brigadier general, Ty Seidule, who’s a historian on the faculty at West Point. The young Ty Seidule, four years younger than me, grew up in northern Virginia and received the same formal education that I got in southeastern Virginia. Our school teachers, in our fourth- and seventh-grade Virginia History classes, taught us that the Civil War was a noble effort by the South to preserve states’ rights to decide their own affairs, rather than having a federal government tell them what to do; it wasn’t about slavery. They taught us that Confederate generals and soldiers were better than their Northern adversaries; the Yankees only won because of great advantages in manpower and matériel. We learned that Reconstruction was as cruel and vengeful as I’ve described above, and that slaves were happy with their lots in antebellum life, preferring that to the savagery of their lives back in Africa.

Yes, we who grew up here in the 60s and 70s really did learn that in public school. We were tested on it to ensure that we had mastered what was in the official school textbooks. Ty Seidule got even more indoctrination in the Lost Cause myth when he went to college at Washington & Lee, where Gen. Lee was revered – in his words, on a par with Jesus himself. Only after he began his military career did he begin to question what he and I had been taught.

This essay is about two Supreme Court decisions, so I won’t spend too much time waxing eloquent about history. All I’ll say is that generations of Virginians, including me, received this set of myths as education. We absorbed it and accepted it – as fourth graders are wont to do; we didn’t talk back to our teachers, especially in the days when corporal punishment was still around – and carried it into adulthood. Some of us have realized over time that we were being lied to, and have cast off those lies. Today the Commonwealth may finally cast off one more prominent postwar lie.

SCV PANEL AFFIRMS INJUNCTION IN SCHOOL’S TRANSGENDER-POLICY APPEAL

(Posted August 31, 2021) The Supreme Court of Virginia yesterday issued an unpublished order in an injunction appeal. The case is Loudoun County School Board v. Cross, and stems from a schoolteacher’s First Amendment suit against his employer.

Three months ago, in late May, the school board calendared discussion of a proposed policy relating to transgender students. The proposed policy came up for discussion in what I assume was a regular school board meeting. Cross, an elementary-school gym teacher, registered to speak at the meeting. When he rose and took the lectern, he told his ultimate bosses that he didn’t agree with the proposed action. Here’s what he told the board, after introducing himself:

I am speaking out of love for those who suffer with gender dysphoria. 60 Minutes, this past Sunday, interviewed over 30 young people who transitioned. But they felt led astray because lack of pushback, or how easy it was to make physical changes to their bodies in just 3 months. They are now de-transitioning. It is not my intention to hurt anyone. But there are certain truths that we must face when ready. We condemn school policies like 8040 and 8035 because it will damage children, defile the holy image of God. I love all of my students, but I will never lie to them regardless of the consequences. I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The next day was normal; the teacher came to work and conducted an ordinary day of teaching his students. But the next morning, a supervisor told the teacher that he was being placed on administrative suspension due to his comments. As today’s order reports, he was “banned from all Loudoun County Public Schools property and events.” The division memorialized this action later that day by e-mailing all parents and staff of the elementary school to describe the suspension.

The following day, a lawyer representing the teacher contacted the assistant division superintendent to demand the teacher’s reinstatement. A school board lawyer replied that no reinstatement was forthcoming. The lawyer explained that the suspension stemmed from “significant disruption” at the school and requests by several parents that their children be shielded from the teacher.

The teacher sued the school board in Loudoun County Circuit Court, alleging two claims for deprivation of his freedom of speech and two more for a denial of his right to free exercise of his religion. He sought temporary and permanent injunctive relief, among other remedies. After what looks like a hotly contested hearing, a circuit-court judge agreed with the teacher and entered a temporarily injunction directing the school to reinstate the teacher and remove its ban on his coming to division functions. This last provision is significant because the teacher had indicated that he wished to speak publicly again should this subject arise on a future school board agenda.

The board filed a petition for review under Code §8.01-626 on June 23. That, my faithful readers will recall, permits a snap appeal from the grant or denial of injunctive relief. A week later, the teacher filed a brief in response. Yesterday, the Supreme Court issued an unpublished order that decides the appeal. A panel comprising Justices Kelsey, McCullough, and Chafin unanimously affirms the grant of injunctive relief. The panel rules that, given the wide latitude exercised by trial judges considering injunctive relief, the circuit court here didn’t abuse its discretion in ordering relief.

There are some tantalizing procedural aspects to this ruling. Because the SCV has never expressly laid out a set of factors for trial courts to consider in deciding whether to award temporary injunctions, the parties below had agreed to use the federal standard set out in Winter v. Natural Resources Defense Council from 2008. The circuit court accordingly considered the teacher’s likelihood of success on the merits, his irreparable harm if an injunction were refused, the balance of equities, and the public interest. It ruled that the complaints of a few parents (the school housed almost 400 students) didn’t outweigh the teacher’s valid First Amendment right to speak on a matter of public concern.

If you were hoping for a full-throated endorsement of the Winter approach from today’s panel, take a deep breath and get used to a little disappointment. First, this is an unpub –principally because it’s the work of a three-justice panel, and only the decisions of the full court get the published treatment. Second, the panel today cites the Supreme Court’s previous guidance on temporary injunctions. I believe I’m safe in describing that guidance as vague, at least in comparison with the robust federal decisional law on the topic: “sound judicial discretion”; “preserve the status quo”; “the court shall be satisfied of the plaintiff’s equity”; “veracity and magnitude of the asserted harm.”

The panel cites the teacher’s unquestioned right to speak on matters of public concern, and then agrees that the circuit court appropriately found that the harm claimed by the division didn’t outweigh this right. The panel accordingly affirms the award of the injunction.

While it doesn’t figure in yesterday’s ruling, I invite you to consider this hypothetical scenario: Suppose that a teacher had spoken at the school board meeting, in favor of the policy. Suppose then that a few parents who objected to it on philosophical or religious grounds had called the school to complain about that public comment, and ask that our hypothetical teacher be kept away from their children. Can those parents’ complaints become the foundation for a school-division decision to suspend the teacher? Remember, governments put themselves in a bad legal position when they enact content-based restrictions on speech: Advocating for Position A is good; advocating for Position B will get you suspended.

Back to our tale: If you’re wondering whether the school board can seek rehearing from the full Supreme Court, the answer is no. It’s right there in Rule 5:20(h), which says that you can’t file a PFR after a ruling like this. The losing party after a full trial can appeal, of course. That will foreseeably come next year, when the losing party can get plenary by-right review in the newly expanded Court of Appeals.

This order comprises part of the court’s shadow docket. You won’t find a listing for it on the court’s “Appeals Granted” web page. There was no oral argument on the petition, so you can’t listen to anything meaningful to ascertain how things went. And while yesterday’s ruling is an unpublished order, it is not – at least, not yet – posted on the court’s “Unpublished Orders” web page. All of the parties’ submissions were on metaphorical paper (we’re in the age of e-filing now); all of the court’s actions in the case were conducted behind closed doors.

I’m grateful to Virginia Lawyers Weekly and to Loudoun Now for alerting me to the order. It’s so invisible that, if not for their publications, I wouldn’t have known about it, either.

ANALYSIS OF AUGUST 26, 2021 SUPREME COURT OPINION

(Posted August 26, 2021) After the whiz-bang developments in the last two days, it’s nice to return to the placid normalcy of a relatively low-profile opinion day. This morning, the Supreme Court of Virginia hands down a single published opinion in a Workers’ Compensation case. City of Charlottesville v. Sclafani involves an award of medical benefits and temporary total disability.

The claimant is a police officer who sustained shoulder injuries during a day of training. The training called for him to play the part of an arrestee; other officers repeatedly took turns subduing him, handcuffing him while he lay prone, and raising him off the ground. Here’s how Justice Powell, the author of today’s opinion, describes what happened:

During the training, Sclafani experienced some discomfort but there was never any significant pain. However, at the end of the day he discovered that he could not straighten his left arm to reach the steering wheel of his car and go home. As the evening progressed, Sclafani found that he could no longer move his arm up or down. According to Sclafani, he did not feel any pain until the next morning.

A few days later, the officer sought medical treatment. He was eventually diagnosed with two shoulder injuries, including a torn rotator cuff, requiring surgery. He later returned to light-duty work and eventually to his regular duties.

At a hearing before a deputy commissioner, the officer acknowledged that he didn’t feel a sudden onset of pain, but noted that at one point late in the day, he “was picked up a little weird” and felt discomfort. He identified that event as the cause of his injury.

The deputy commissioner ruled that the officer had not established an injury by accident. Specifically, the deputy found no sudden precipitating event that caused the injury. The full commission reversed and awarded benefits, saying that the day’s training session “provided the necessary rigidity of temporal precision to constitute one event.”

As a big advocate of simplicity in language, the ponderousness of that phrase caused me to shudder; but I’ll let it pass.

The City appealed to the CAV, which reversed in 2019 and sent the case back to the commission. The appellate court ruled that there wasn’t enough “temporal precision” to establish an injury by accident when the relevant window was eight hours long.

On remand, the commission, duly chastened, found that the injury necessarily happened after lunch, because the officer noted no problems before then. Reasoning that a four-hour period was sufficiently exact, the commission awarded the same benefits as before.

Now we’re headed back to the CAV, where the City argued that four hours wasn’t tight enough, either. But the court had a rude shock in store: It ruled that the court’s previous findings were the law of the case because, instead of appealing the earlier CAV judgment to the Supreme Court, the City had accepted remand to the commission. The court refused to reconsider its previous holdings and affirmed the award.

That brings us to the current appeal. The justices begin by reversing the law-of-the-case ruling. In a 1998 decision, the Supreme Court had held that a party may accept remand from the CAV without waiving the right to appeal the ultimate ruling to the SCV. The justices find these circumstances to be indistinguishable from that 1998 decision.

The justices next disagree that a four-hour window is precise enough to prove an injury by accident. They do acknowledge that an injury needn’t be instantaneous, citing a 2016 decision where they approved benefits for an injury sustained during the course of a 45-minute rescue. But they can’t stomach four hours.

Just when it looks like the officer’s claim is going down in flames, the right-for-the-wrong-reason doctrine rides in and saves the day for him. The justices recount the officer’s testimony that he had been picked up once “a little weird” and that he felt discomfort after that. This evidence, they rule today, is sufficient support for an award of benefits when considering the evidence in a light most favorable to the officer, who prevailed in the commission. The City thus wins two battles but loses the war, as the Supreme Court unanimously affirms the award of benefits.

There’s a small but interesting tidbit for appellate geeks in the congregation. What’s the difference between “right for the wrong reason” and “right for a different reason”? In a footnote on page 9 of today’s slip opinion, we learn that the court employs the former name when it expressly disapproves of the reasoning below. That’s what happened in the case decided today. In other instances, the justices may express no opinion on the reasoning below, but simply choose a different route to get to the same destination. In cases like that, they note that their reasoning is different, though the lower court’s isn’t necessarily wrong.

ANALYSIS OF AUGUST 5, 2021 SUPREME COURT OPINIONS

(Posted August 5, 2021) The Supreme Court issues three published rulings this morning.

Torts

For the second time in four weeks, we get a ruling in a malicious-prosecution appeal. Last month, in Dill v. Kroger LP, the justices reinstated a struck malicious-pros claim while affirming the dismissal of a companion count for abuse of process.

Today the court takes up Eubank v. Thomas, where a couple faced a short-lived prosecution for alleged zoning violations at their home in Mathews County. When the local prosecutor dismissed or withdrew all charges, the couple filed suit against the county administrator and two planning and zoning employees. The action asserted that the county wanted to acquire the couple’s land cheaply, so the defendants field sham violation notices, hoping to force the couple to demolish their home and thereby reduce the property value. This would permit the county to condemn the land at a cheaper price.

The defendants demurred, noting that the couple hadn’t appealed the zoning administrator’s determination that their house was nonconforming. They claimed that this determination was accordingly a “thing decided” that cannot be collaterally attacked.

The circuit court sustained the demurrer and dismissed the action. Today, in what will seem eerily familiar to fans of last month’s Dill decision, the Supreme Court reinstates the malicious-pros claim, holding that the couple alleged actions by the county-employee defendants that, if proved, would support such a claim. The court affirms the dismissal of the abuse-of-process count, again holding that there was nothing irregular about the process used in the prosecution.

Because the ink on Dill is still fresh, this might have come down as an unpub if not for the “thing decided” issue. The court rules today that a zoning administrator’s decision is not a “thing decided” in a tort action like this — remember, this is no longer a land-use proceeding or even a criminal prosecution — so it isn’t a bar to maintaining this action.

Tragedy underlies today’s decision in Lopez v. Intercept Youth Services. Intercept operates something called a “YouthQuest Independent Living program for at-risk youth” in Prince William County. This case involves the murder of an Intercept employee by one of those at-risk youths, a resident at the facility. The decedent worked as an evening support counselor, which required her presence at the site. She kept her door locked, but residents were allowed to knock and ask permission to enter.

The assailant here asked for entry to the counselor’s office to get some medications. Because administering those meds was part of her job, she allowed the resident inside, where he strangled her to death.

The decedent’s personal rep sued Intercept for wrongful death, alleging that several of the employer’s actions or inactions proximately led to the death. The employer pleaded the benefit of the Workers’ Compensation bar, asserting that the personal rep’s sole remedy was a Comp claim. The circuit court agreed and dismissed the action.

Today, the Supreme Court affirms. The only disputed issue here is whether the death arose out of the employment. This morning’s meticulous opinion from Justice Kelsey, writing for a unanimous court, lays out allegations in the complaint to establish that the risks that resulted in this death related to the counselor’s employment; she didn’t endure a risk common to others in the area. In essence, she was chosen for this terrible crime because her job placed her there.

Comp bar cases cut both ways. Sometimes an employer tries to establish that the Act doesn’t cover a specific injury, so it asserts that the injury doesn’t arise out of and in the course of the employment. Other times, as here, an employer fully embraces the Act’s coverage so it can avoid exposure to enormous tort damages.

Domestic relations

There’s a very short published order in Barnes v. Berry, an adoption case from the Court of Appeals. The CAV found last year that a circuit court had erroneously ruled that a putative father hadn’t timely registered as such. The circuit court had held that the father thus had no standing to participate in adoption proceedings. The CAV sent the case back.

The case took a detour upstairs after that, as the justices agreed to take a look; but today they affirm on the same reasoning in the CAV’s opinion. Justice Mims appends a dissenting opinion in which he argues that the statute creating a deadline for fathers to register is ambiguous. He doesn’t argue in detail that the case should come out a particular way; he instead calls on the legislature to sharpen the wording to eliminate the ambiguity. This emphatically isn’t my usual swimmin’ hole, but I sense that this should be a fairly easy legislative fix — something that probably occurred immediately to the court’s only former state legislator.

ANALYSIS OF JULY 22, 2021 SUPREME COURT OPINION

(Posted July 22, 2021) The Supreme Court hands down a single published opinion this morning. Potter v. BFK, Inc. is a wrongful-death action; the primary issue is the statute of repose.

Potter is the personal representative of his late son’s estate. The son, a truck driver, was killed on the site of a stone quarry where a stone company manufactured sand from crushed stone. The company’s system employs a silo to store the sand and a product called a Buell Classifier to separate fine sand from super-fine, and convey the resulting material into the silo. The son was killed when the classifier malfunctioned, causing him to be buried in the material.

The father sued several defendants, including the manufacturer of the classifier. The manufacturer raised the bar of the statute, noting that the classifier had been installed onsite eight years before the death and ten years before the father filed suit. The circuit court conducted a hearing and ruled in favor of the manufacturer.

Today the Supreme Court reverses and remands the case for trial. The dispositive issue is whether the classifier is equipment or ordinary building materials. The statute expressly excludes equipment from its coverage; if the classifier is equipment, the suit is timely.

Justice Powell, writing for a unanimous court, surveys the court’s previous holdings on the seemingly fuzzy boundary between equipment and ordinary building materials, and finds that the classifier is indeed equipment. In her summary, she notes that the classifier “has several qualities that we have recognized as being characteristic of equipment: the manufacturer exerts some degree of control over its installation and maintenance, it is not required for the operation of the building, and it is neither fungible nor generic.” She also points out in a footnote that the manufacturer itself regularly refers to the classifier as equipment – a factor that, while not dispositive, certainly looks like a smoking gun in a dispute like this.

If you’ve litigated statute-of-repose cases before, you may have raised a mental objection that the statute excludes “equipment or machinery,” and the opinion doesn’t address the second of these key words. That’s because the father’s assignment of error didn’t assign error to the circuit court’s refusal to find that the classifier was machinery. In the end, it doesn’t matter.

Finally, if you were hoping for a new bright-line test to establish the boundary between those products that fall within and without the statute, get ready for disappointment. The justices decline to do so, meaning that you’re left with the existing patchwork quilt of caselaw to sort out on which side of the boundary your case belongs.

ANALYSIS OF JULY 15, 2021 SUPREME COURT OPINIONS

(Posted July 15, 2021) The Supreme Court of Virginia hands down three published opinions this morning. Two of those involve the Commonwealth’s dominant provider of electric power, Virginia Electric and Power Company.

Service of process

The primary issue in Evans v. Evans is service of process under Virginia’s longarm jurisdiction statute. It’s a suit challenging a final divorce decree on the grounds that the divorce court didn’t acquire personal jurisdiction over the husband.

The spouses married near the turn of the millennium and lived together here in Virginia Beach for five years before separating. The next year, they executed a property settlement agreement that obligated the husband to pay $1,000 per month in child support starting in July 2005.

The wife moved to Martinsville during their separation, and eventually sued for divorce there. Her complaint stated that she last had contact with him about a month earlier, and stated that his last known residence was in Virginia Beach. She attached an affidavit asserting that the husband couldn’t be found despite due diligence. In a later deposition, she explained the diligence that she had used: She called his family members.

The clerk of court in Henry County issued an order of publication that ran for four weeks in the newspaper there. The husband didn’t appear in response to the publication, so the Henry County Circuit Court shortly thereafter entered a final decree of divorce in which it ratified and confirmed the PSA and incorporated it into the March 2006 final decree.

Time passed; a lot of it. In 2019, the husband went to Henry County and moved the court to reopen the case. He asserted that the court hadn’t validly obtained personal jurisdiction over him, so the support order was void.

The issue here is whether this was an appropriate use of the longarm jurisdiction statute. For those of you who endured Civil Procedure in law school, your first thought must be that this procedure only governs suits against nonresidents. But a line of caselaw indicates that it can apply to Virginians, too.

The circuit court considered the matter and agreed with the husband. On appeal, the Court of Appeals agreed, but the justices decided to review the question.

The Supreme Court’s docket comprises two kinds of cases: We call them error correction and law development. The latter category includes appeals that raise previously undecided issues of significance to the field of law. In my judgment, the SCV writ panel took this case for that reason. Justice Kelsey’s opinion for a unanimous Supreme Court fully agrees with the underlying judgment, and explores why this form of substituted service won’t do in a case like this.

First, please understand that a circuit court can enter a divorce decree, one that dissolves the bonds of matrimony, without acquiring personal jurisdiction over a defendant. Dissolving a marriage is an in rem proceeding. But an award of support is in personam; for that, you have to tag the defendant somehow with process.

The court notes today that in the spectrum of process service, an order of publication is the least satisfying, the “lowest quality of notice.” The court rules today that it’s usable only as a tertiary approach. The first and best method is by personal service; the second is substituted service, such as by delivery to a family member or by posting at the defendant’s home. Here, the wife went straight to the least effective means, and didn’t even list the parties’ marital home as a last-known address for the husband.

There’s some important language in today’s opinion that challenges the efficacy of service by publication unless “all other alternatives have been diligently exhausted.”

The wife had one arrow left in her quiver. She argued that by statute, a divorce court is empowered to incorporate PSAs, including support awards, into divorce decrees, even when service is by publication. This looks promising, but the argument dies at the hands of a familiar executioner. The wife hadn’t made this argument in circuit court or in the Court of Appeals, so the justices decline to consider it.

Finally, a closing footnote refuses the husband’s request for attorney’s fees, finding that “he has no just basis for seeking an award” of them. The footnote is very short and doesn’t go into detail. The only hint that we get is that the husband’s appellate counsel shares the same name as the husband; the husband’s name includes a “Jr.” It’s possible that the Robes decided not to award fees where the representation was within the family.

Torts

A short opinion from the chief justice decides Kinsey v. VEPCO, from the April session. This is a claim by a mother and daughter in Rockingham County, alleging that they suffered a number of debilitating personal injuries when VEPCO placed an experimental smart meter on their home. The description of their symptoms is alarming: major moods swings, hair loss, insomnia, an endocrine disorder, and even epilepsy, among other things.

The two eventually figured out that the utility had installed the meters without notice to them, and contacted VEPCO to seek their removal. The utility wouldn’t budge, insisting that the meters were safe. It eventually offered to move the meters to a pole several feet away from the home, adding the condition, “but you’ll have to pay for the move.”

VEPCO eventually offered customers the opportunity to opt out of the experimental program. The mother and daughter speedily took the utility up on that, but the utility still refused. It eventually replaced the meter with another one, which had its transmitter disabled.

The mother and daughter sued for damages; VEPCO demurred and filed a special plea, claiming federal preemption. After argument, the circuit court granted the plea and dismissed both lawsuits.

The Supreme Court affirms that ruling today. The court finds that FCC regulations cover this turf. The other and daughter argued that the original smart meters were defectively installed and operated, but the Supreme Court rules that that wasn’t the basis of their complaints. They instead alleged that the ordinary radio frequency emissions from the device caused their injuries. Since those emissions are governed by the FCC regs, this state tort claim is barred.

Utilities

Have you ever wanted to compete against one of the dominant electric-power providers in Virginia, VEPCO or Appalachian Power Company? The General Assembly is looking out for you. Despite the big companies’ huge head start and protected market position, you can offer competing services to customers. You just have to satisfy one little requirement: You have to offer 100% renewable-source energy.

A company called Constellation NewEnergy, Inc. decided to do just that. To generate the energy, it used something called a pumped storage hydroelectric facility. Today’s opinion in VEPCO v. State Corporation Commission describes what this setup entails: “a configuration of two water reservoirs at different elevations that can generate power (discharge) as water moves down through a turbine” and then “draws power as it pumps water (recharge) to the upper reservoir.”

It seems complex to me; but usually in these utility cases, there are a lot of zeroes, so I have no doubt that it made good economic sense for Constellation to do it. Having received some ominous throat-clearing noises from VEPCO about its setup, the company petitioned the SCC for a declaration that its process was indeed renewable energy.

To complicate matters, the 2020 General Assembly stepped in and amended its statutory definition of renewable energy. This amendment expressly excluded pumped storage hydroelectric facilities. VEPCO’s lawyers no doubt licked their metaphorical chops as the parties drew battle lines.

The SCC conducted a hearing and ruled that the Constellation generation was “derived from falling water” and thus met the pre-2020 statutory definition. It handed Constellation an even greater victory by ruling that the new definition wouldn’t apply to Constellation’s contracts entered into before the effective date of the amendment.

VEPCO did the natural, the commendable, thing by appealing. (We here at VANA always appreciate it when someone appeals.) In doing so, it didn’t have to run the writ-stage gantlet; SCC appeals are of right in the Supreme Court of Virginia. Today we get that rare treat, a divided opinion with a compelling dissent to challenge the majority.

Justice Chafin writes for three other justices in accepting the SCC’s rulings. The court finds that the plain meaning of “falling water” is good enough to decide the first issue in the case. There’s no obligation in the statute that the water has to be part of a normal watercourse – what you might think of when you envision a waterfall or water running through turbines in a dam.

The court then finds that where Constellation had entered into contracts before the effective date of the statute, the old definition should continue to govern. Holding otherwise would impair existing contract rights. For future contracts, Constellation has to arrange for a qualifying renewable-energy source; but for its preexisting contracts, it’s good to go with this facility.

Perhaps you’ve been reading along and nodding in agreement. If so, you need to heed the admonition that trial judges administer to jurors: Wait to hear both sides before you make up your mind.

Justice Kelsey writs today’s dissent on behalf of the chief justice and Justice McCullough. The dissent agrees about the first issue: Under the old statutory definition, the pumped storage hydroelectric facility meets the definition of renewable energy. But the dissent offers a decisively different take on the second question.

The dissent concludes that the prospective-only application of the statutory change applies to services provided after the July 1, 2020 effective date of the new act. That is, the new act has no effect on past sales, but governs all sales that occur thereafter.

Under this analysis, Constellation sells electricity to its customers on a monthly basis. The contract doesn’t contemplate an advance purchase, but ongoing monthly purchases of power. This is the way you pay your electric bill, right?

Every contract is subject to the possibility of future changes in law. No one can insulate himself from a change in law by contracting for the perpetual application of prior or existing law.

Turning to the impairment-of-contract issue, the dissent notes that it can still deliver electricity to its customers; the General Assembly “simply took one renewable-energy option off the table.” And when the legislature modifies a law like this, it uses the police power to do so, and every contract is subject to the exercise of that power.

The caption of this appeal might have portended a dry discussion of arcane principles of little interest to those outside the energy-regulation field. But it turns out to contain a spirited debate about the effect of statutory change.

ANALYSIS OF JULY 8, 2021 SUPREME COURT OPINIONS

(Posted July 8, 2021) A peek at the National Hurricane Center’s website tells me that I have just enough time to sneak in analysis of this morning’s two published opinions from the SCV before we get an unwelcome visit from an intruder named Elsa.

Criminal law

The claim-of-right defense to a robbery charge is at the heart of Pena Pinedo v. Commonwealth, from Rockingham County by way of the Court of Appeals. The defendant here was a partner in crime, literally, with another man; the two went into “business” selling drugs and guns. The partner’s paramour stole over $5,000 of the proceeds of this enterprise, and the two businessmen decided to get it back.

The two used an intermediary to set up a charade drug deal with the paramour. She, her current boyfriend, and a third person showed up at the appointed location, at which point the two businessmen pointed a gun at the paramour’s boyfriend, demanding money. Pena Pinedo took “a wad” of money from the boyfriend, and then shot him. The boyfriend died a few months later of his wounds.

A grand jury indicted Pena Pinedo for murder and robbery, among other things. The defense asked the circuit court for an instruction on claim of right: “If you believe the defendant took the property he is charged with stealing under a belief that he had a good faith claim of right to take it, then, even though his belief was mistaken, you shall find the defendant not guilty of robbery.”

The trial judge refused the instruction, finding that there was no meaningful evidence that any claimed belief was in good faith, and expressing doubt “whether an individual could have a good faith claim of right to recover stolen contraband.”

The jury convicted Pena Pinedo of all charges. He appealed, but the CAV affirmed in a published opinion. The justices decided to take a look, but today they, too, unanimously affirm. Justice Chafin’s opinion notes that a claim of right can’t be a dishonest pretense. She also writes that the money was “a form of derivative contraband. Therefore, Pena Pinedo could not have possessed the money in good faith.”

Torts

In Dill v. Kroger LP I, the justices take up malicious-prosecution and false-imprisonment claims filed by a shopper who was abortively prosecuted for shoplifting. A store manager saw a woman place an unscanned package of fruit into a shopping bag. She walked over and notified the shopper that the package hadn’t been scanned; the shopper took it out, scanned, it, and replaced it in her bag before paying and leaving.

This inspires a slight digression. You’ve probably noticed that grocery stores are increasingly steering customers toward self-service checkout lanes. This cuts down on the number of cashiers on the payroll, passing onto the customer the work of checking out. Accordingly, you’ll frequently see stores with a dozen or more cash registers, only about two of which are manned (usually with a queue of shoppers waiting in them, thus leading some of them to give up and head for the self-serve lane). I’ve wondered how stores control shoplifting in such situations; they likely perceive that the payroll savings will outweigh the losses from theft. I guess that’s business.

Back to our tale: The manager believed the shopper to be one Shirley Dill. She consulted an “asset-protection specialist” with a report of what she thought was an attempted theft. The specialist looked into the transaction and learned that the shopper used a loyalty card registered to another person; not to Dill. (Side note: Who uses a loyalty card when shoplifting? Isn’t that like handing a bank teller a stickup note written on the back of your own deposit slip?) This discovery led to further evidence: Video recordings of the same shopper stealing about $40 worth of stuff.

The specialist went to the police, relating – based on the manager’s report – that the shopper was Dill. A police investigator went to a magistrate and obtained warrants charging Dill with petty larceny. He then called Dill and invited her to come in to be booked. She professed her innocence, but did as she was asked the next day.

Here’s where the lawyers ride in and save the day. Dill borrowed money to hire a defense lawyer. He looked at the video and called the prosecutor, saying, “you would have to be blind to think that that was Shirley Dill.” The prosecutor agreed and dropped the charges.

The next step in our saga is a civil suit against Kroger and the store manager, claiming malicious prosecution and false imprisonment. The circuit court overruled the defendants’ demurrers and the case proceeded to a jury trial.

That process stopped short after Dill presented her evidence and rested. The circuit court granted a motion to strike, concluding that “this is a mistake case.” The court found that neither the manager nor the store acted with malice; they were just trying to prevent crime. The court also ruled that the defendants weren’t liable for false imprisonment because they didn’t participate in the arrest. The proceedings ended there; the court dismissed the case.

Today the Supreme Court begs to differ with the judge on malicious prosecution. It rules that the questions of probable cause and malice should have gone to the jury. In ruling that the whole thing was just a mistake, the trial judge had weighed the evidence and decided the case instead of allowing the jury to do its job. The court also failed to view the evidence in a light mot favorable to Dill, the nonmoving party.

The Supreme Court affirms the dismissal of the false-imprisonment claim, because regardless of probable cause, Dill was arrested pursuant to a valid warrant. But the court sends the case back to Staunton Circuit Court for retrial on malicious prosecution.

ANALYSIS OF JULY 1, 2021 SUPREME COURT OPINIONS

(Posted July 1, 2021) The Robes by the James hand down two published rulings this morning. The first, Merid v. Commonwealth, comes down in a short order that affirms a CAV decision without any independent reasoning. It’s probably published solely because of a footnote that observes, “The Supreme Court of the United States decided Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596 (2021), after the Court heard oral argument in this case. The Court finds that the judgment of the Court of Appeals is consistent with Caniglia.”

The other decision comes in a wrongful-death appeal. Lucas v. Riverhill Poultry, Inc. generates mainly evidentiary issues and one thermonuclear waiver ruling.

This litigation relates to a single-vehicle, double-fatality crash. The two victims occupied the cab of a tractor-trailer that ran off the roadway on Interstate 81 and crashed in the median. One victim, named Hilliard, was found dead in the cab, his body between the driver’s and passenger’s seats and his left hand on the steering wheel. The other victim, Lucas, was found outside the truck.

The passenger’s personal rep filed suit, claiming that Hilliard had fallen asleep at the wheel. One of the primary issues at trial was which one of the two was driving the truck. Hilliard was employed as a truck driver by Riverhill Poultry, the truck’s owner; Lucas was Hilliard’s “friend and neighbor.” Despite this, the defense contended at trial that Lucas was driving at the time of the crash.

The State Police investigative report and the medical examiner’s report seemed helpful to the plaintiff here. The examiner reported that Hilliard had been driving the truck, and that his blood indicated the presence of drowsiness-inducing medications. But in discovery, she acknowledged that she was relying on the State Police report to tell her who was driving. She acknowledged that “she could only speculate about what occurred” and about whether the medications affected Hilliard that fateful morning.

Ah; the S-word. Where expert opinion is concerned, any acknowledgement of speculation in the opinion-formulating process is usually deadly. But the plaintiff had an answer for any such objection: By statute, medical examiner’s reports “shall be received as evidence in any court or other proceeding ….”

The trial judge didn’t bite; he excluded the medical report on hearsay grounds. He also excluded other expert testimony from the plaintiff and refused to instruct the jury on the fact that falling asleep at the wheel is negligence. That jury returned a defense verdict. The personal rep got a writ.

Today, in a unanimous opinion from the pen of Senior Justice Millette, the Supreme Court affirms. As for the statute, the court rules that it only applies to factual statements in the report, and even then, only those that were within the observation of the preparer. The purpose of the statute is to avoid having the subpoena a public official to authenticate an official document; not to throw out the hearsay rule entirely. In reaching this conclusion, the court cites decisions interpreting the criminal-procedure parallel statute, all of which had come down this way.

The court also affirms the exclusion of the plaintiff’s other two experts, finding that the trial court acted within its discretion in so ruling. For one of those experts, the plaintiff falls victim to a deadly waiver trap that looks brand-new to me. I believe that this one deserves extensive discussion.

The plaintiff offered testimony from Hilliard’s family doctor. That evidence looked pretty damning: abnormal results from a sleep study just two months before the crash. The doctor urged Hilliard to follow up with a sleep specialist to evaluate sleep apnea, but he never did that.

In a pretrial hearing, the circuit court found that this evidence was “too attenuated.” It ruled that the testimony was inadmissible at trial, “without prejudice to [the plaintiff], by counsel, moving the court to reconsider its ruling based on developments at trial.”

Now, what does that mean? Is the evidence excluded, or not? Suppose nothing does change at trial; has the plaintiff preserved the issue for review without making that motion to reconsider?

This landmine explodes today. The personal rep didn’t renew the motion at trial, and today the justices rule that that waives the issue for review.

I believe that this waiver ruling is incorrect. By definition, a trial judge makes an interlocutory ruling whenever he enters any order except one that enters final judgment. The court can’t convert an interlocutory ruling into a final one by, for example, titling it, “Final Order,” or by stating that the ruling is final. The court always has the power to revisit interlocutory rulings until 21 days after entry of final judgment. This is true no matter how loud a thunderbolt accompanied his honor’s ruling before trial.

This pretrial ruling was interlocutory, too. The judge didn’t have to add the “without prejudice” baggage train to make it so. But if he hadn’t added that, can we all agree that the exclusion of the expert before trial would be fully reviewable on appeal?

Absolutely, it would. Now, if some major development at trial makes the calculus suddenly and dispositively different, I can see a waiver. For example, if a trial court sustains a motion in limine in a criminal case to exclude certain exculpatory evidence based on a lack of foundation, and the prosecution’s evidence at trial later provides that foundation, then the defendant has to raise the issue at trial; he can’t rest on his pretrial argument.

But that’s not what happened here. Nothing changed. Today’s opinion doesn’t identify anything like that, anyway. This ruling essentially converts the trial court’s pretrial ruling into a non-ruling – the functional equivalent of declining to rule. It also means that a litigant must move at trial to reconsider every adverse pretrial ruling, on pain of losing the issue for appellate review. (Remember, all pretrial rulings are interlocutory, whether the judge describes them as such or not.) That may not have been what the Supreme Court had in mind today, but it’s unmistakable from pages 13-14 of today’s slip opinion.

In the past several minutes, as I’ve been composing this essay, I’ve heard from several of my appellate pals, thoroughly professional and highly experienced practitioners all, who are puzzled by this holding. They agree that it does more than break new ground in waiver jurisprudence, already a dangerous labyrinth. It arguably makes all pretrial rulings subject to a mandatory requirement of reasserting them at trial, on pain of waiver. That’s never been the rule here in Virginia. It looks like it is now. (My pals also had other pertinent observations. Rather than steal their ideas for my essay, I’ll let them wade in separately.) (Update July 9: My pal Jay O’Keeffe has now done just that, in this essay.)

Because one of my goals on this site is to protect you, my dear reader, from falling into hidden traps, I here offer you the following advice: At trial, you must formally move the circuit court to reconsider any adverse pretrial rulings, and ask the court to change those to rulings in your favor.

I note that this advice can have impractical consequences. This case provides an easy example. Let’s suppose that the plaintiff here had moved the trial court to reconsider the exclusion of the primary-care doctor. Suppose that the court thinks better of its pretrial ruling and decides to allow the testimony after all. That means that the plaintiff now has to get the doctor into court on a few hours’ notice (unless the plaintiff had gone to the expense of subpoenaing him and holding him on a very expensive standby pending a ruling on the reconsideration motion). Now the defense lawyer is hollering, complaining that she hadn’t prepared a cross-examination for this witness. She also insists that if she’d known that the family doctor would testify, she’d have brought in a counter-expert. Now it’s too late to do that; she wants a continuance of the trial. You see where this is going?

This ruling is wrong. It will lead to confusion and mischief in the future. The Supreme Court should at least have evaluated the issue on the merits instead of interposing an inadvisable waiver holding that will dramatically affect an enormous number of future lawsuits and appeals.

One other ruling sticks out in my mind from today’s opinion. The justices find that the trial court acted within its discretion in refusing an asleep-at-the-wheel instruction: “A person who falls asleep at the wheel is negligent.” The court first rules that there’s insufficient evidence to make out a jury issue on whether Hilliard fell asleep while driving. At least in the absence of the excluded expert testimony on this issue, that’s a reasonably close call and I won’t fuss.

But the court unfortunately adds a belt to the suspenders by ruling that another jury instruction adequately covered the issue – the familiar duty-of-lookout instruction. The court then cites a 1943 SCV holding that “To fall asleep at the steering wheel is a clear violation of the duty to keep a proper lookout.”

I wholeheartedly agree; but the point is that the jury doesn’t read SCV opinions from 1943, or any other year. The plaintiff’s proposed instruction would have told the jury what the law is. That’s an instruction’s job. This isn’t as glaring an issue as the waiver ruling discussed above, but I believe that today’s opinion would have been better without the second line of reasoning on the instruction.

ANALYSIS OF JUNE 24, 2021 SUPREME COURT OPINION

(Posted June 24, 2021) The Supreme Court of Virginia clears out the oldest undecided appeals on its docket by handing down a consolidated opinion styled Grayson v. Westwood Buildings, LP. It’s a debtor-creditor dispute on steroids, and arises in Fairfax.

The facts of this case are uncommonly complex. Justice Kelsey’s meticulous opinion takes ten pages to describe the facts and another 4½ to lay out the procedural posture. He notes that the trial record runs to almost 6,000 pages. The opinion of the court is a full 46 pages long.

With a case like this, if I were to describe the facts in detail, I’d lose half of you before getting to any of the holdings. The Reader’s Digest version of the case is that it’s a claim by a landlord that one of its tenants, a law firm, had made several voluntary and fraudulent conveyances that deprived the landlord of the opportunity to collect six figures in rent. The trial court agreed and entered personal judgments against several defendants, including the two lawyers in the firm, some entities associated with one of them, and even the firm’s bookkeeper.

I’ll summarize the significant holdings here, safe in the knowledge that if you really want the Encyclopedia Britannica version of the case, the slip opinion is just a mouse click away.

The Supreme Court begins its rulings by observing that the fraudulent and voluntary conveyance statutes specify a particular remedy, and it isn’t a money judgment against those persons or entities who received the property or money. That remedy is a declaration that the transfer shall be void. That remedy legally puts the transferred goods or money back into the debtor’s possession so priority creditors can execute on it.

Justice Kelsey observes that courts have “supplemented these statutory remedies” by allowing, in certain circumstances, “an in personam judgment directly against the transferee of an unlawful conveyance.” Today’s opinion states that “truly exceptional circumstances” are necessary to justify such a remedy.

The court then goes on to indicate that, under well-established law, there’s no prohibition against a debtor’s preferring one creditor over others, even when the debtor is insolvent. This factor unravels most of the circuit court’s judgment, because a creditor without a perfected lien can’t insist on a priority or even pro rata payment. The debtor can even make a payment to a company insider – a form of self-dealing – as long as the payee’s claim is valid. (I hasten to add that this isn’t a bankruptcy case, where a trustee can void certain transfers that prefer one or more creditors over others.)

There’s an interesting holding about the burden of proof and the standard for reviewing that burden. Last month, in White v. Llewellyn, the court specified that when a plaintiff in a fraudulent-conveyance case establishes certain badges of fraud, the burden of persuasion in the case shifts to the defendant, and stays there for the duration of the case.

The parties tried this case in 2018 or 2019, long before White v. Llewellyn came down. Both parties and the circuit court assumed that the shifted burden was of the “bursting bubble” variety, so the ultimate burden remained on the landlord to prove that the transfers were improper.

White v. Llewellyn was a decision of first impression, so you can’t fault the parties and the trial judge for getting this wrong. Importantly, the Supreme Court today goes ahead and decides the appeal under what we now know to be the wrong burden. Here’s Justice Kelsey’s explanation of that decision:

We will not ex post facto change on appeal the burden of proof applied in a civil case when no party asks us to do so and when the trial court adopted it as the governing standard with both parties’ apparent agreement. This situation is the bench-trial equivalent of a civil case tried to a jury on burden-of-proof jury instructions that the successful party does not challenge on appeal.

At the end of the opinion, the court takes up each of the five challenged transfers and finds that none was improper. The court accordingly reverses and enters final judgment in favor of the defendants.

I noted at the outset that these consolidated appeals were the oldest undecided cases on the Supreme Court’s docket. The SCV Clerk got the record in the case in October 2019; a panel granted the petitions for appeal last June (one year ago yesterday), and the lawyers argued the merits to the full court on November 5, 2020. The 7½ month span between oral argument and decision is the longest I’ve ever seen since I started covering the court in 2005. In most instances, the likeliest explanation for a significant delay is that someone is polishing a dissent. Not so today; this ruling is unanimous. Here, the explanation is simpler: This is a very, very complicated case that results in a highly detailed opinion. Given what I’ve just read over 46 pages, the delay doesn’t surprise me.

ANALYSIS OF JUNE 17, 2021 SUPREME COURT OPINION

(Posted June 17, 2021) Some appellate decisions are hair-on-fire occurrences. “Alert the major media!” Today’s ruling in Nicholson v. Commonwealth will trigger a more modest response: “Alert the appellate geeks!”

This is an appeal of a conviction for driving on a suspended license, fifth offense. (Side note from a former prosecutor: At what point does a frequent flier like that get the message?)  Nicholson received a summons for the offense in Albemarle County, and the GDC and then circuit court both got ‘er on the charge. In circuit, various orders referred to the proceeding as “Commonwealth v. Nicholson,” and when she noted an appeal to the CAV, she did so with that as the style of the case.

Alas; the proper prosecuting authority looks to have been the county, although the local Commonwealth’s Attorney evidently handled the case at trial. The sentencing order – for those civil lawyers among you, that’s the final order in any criminal prosecution – listed the case as “Albemarle v. Nicholson.”

The Court of Appeals noted the discrepancy and remanded the case to circuit court to determine what the proper prosecuting entity was. “The County,” came back the answer, though the circuit court’s nunc pro tunc order also modified the reference to the law violated, noting both the state Code and its parallel in the County Code.

Now what? Back upstairs, the Court of Appeals directed supplemental briefing on the issue. Nicholson and the Commonwealth filed briefs, but this time the County filed one, too, acknowledging that it had received notice of the appeal and consenting to Nicholson’s request for leave to amend. (I commend the County Attorneys for doing the right thing.) Nicholson’s prospects brightened accordingly.

No dice, the CAV ruled. It dismissed the appeal by finding that the notice of appeal was “fatally defective” for misidentifying the offense being appealed. Today the justices unanimously reverse and send the appeal back to the CAV for a decision on the merits. Prior caselaw indicates that a notice of appeal doesn’t have to be perfect; just sufficient. The Supreme Court rules that this notice did its job despite the inconsistency in the identity of the appellee.

There’s a significant paragraph on page 6 of this short opinion from the efficient pen of Justice McCullough. In Roberson v. Commonwealth from 2009, the Supreme Court had belittled – maybe that’s too strong a word, but you get the message – the importance of the trial court’s docket number in identifying the judgment that’s being appealed. The court reconsiders that and holds today that that number can be an important factor in identifying the exact case that’s being appealed. As Justice McCullough points out in a footnote, it’s still important for counsel to list the correct docket number.

Today’s opinion cites two seminal decisions on this issue, Roberson and Ghameshlouy v. Commonwealth decided the following year. This opinion may join them as the decisionmaking triad on questions like this.

ANALYSIS OF JUNE 3, 2021 SUPREME COURT OPINION

(Posted June 3, 2021) After last week’s deluge of decisions, the Robes by the James return to a more sedate pace this morning, issuing a single published opinion in an appeal argued in the March session. Galiotos v. Galiotos is, as the caption suggests, a dispute between family members, and involves estate administration.

Two brothers, named as co-executors of their late mother’s will, developed differences of opinion on numerous aspects of estate administration. Brother A accused Brother B of self-dealing regarding one of the estate’s numerous valuable properties; B made parallel allegations against A about other matters. The matter inevitably wound up in circuit court, with each brother asking the court to remove the other from office.

When the parties appeared for a bench trial, Brother C was in the courtroom. Brother B moved to separate witnesses, including Brother C, since he wasn’t a co-executor and wasn’t a party to the litigation. Brother C claimed that he was indeed a party; Brother A shrugged and said he didn’t care. The court allowed him to remain.

Each party presented evidence of differences that the court eventually found were irreconcilable. Brother C, who testified early in the case, merely authenticated a batch of e-mails and explained his efforts to pour oil on his warring brothers’ troubled waters.

At the conclusion of the evidence, the learned judge decided that the only workable approach was to remove both brothers and appoint a neutral fiduciary in their place. The court denied both brothers’ requests for attorneys’ fees.

The brothers filed cross-appeals, and today the Supreme Court unanimously affirms the judgment. I’ll insert an editorial comment here: I can’t figure out why this opinion is published. The justices’ rulings all turn on whether the circuit court abused its discretion in various rulings, and each time the court finds no abuse.

 The one ruling that may have made this proper material for Virginia Reports is the court’s affirmance of the decision to allow Brother C to remain in the courtroom. Statutorily, he should have been excluded. Code section 8.01-375 mandates exclusion of nonparty witnesses on motion of any party, and Brother C unquestionably wasn’t a party.

The justices nevertheless affirm the judgment despite this mandate, finding that any error was harmless. The purpose of the statute is to prevent the nonparty witness from conforming his testimony to that of a supposed collaborator. But Brother C testified before his ostensible collaborator, Brother A, and even then offered noncontroversial evidence, such as document authentication. That isn’t enough to warrant a reversal.

ANALYSIS OF MAY 27, 2021 SUPREME COURT OPINIONS

(Posted May 27, 2021) We get six published rulings today – four opinions and two orders – from the Supreme Court of Virginia.

Standing

On average, the SCV issues decisions that turn on standing to sue perhaps once every year or two. Today we get three. Added to the two standing decisions earlier this year, Plofchan v. Plofchan in April and Platt v. Griffith in January – that makes five in the first five months of 2021. That probably isn’t coincidence; it likely reflects the justices’ greater focus on the right of parties to sue.

Our first decision is a published order in Historic Alexandria Foundation v. City of Alexandria. This is the litigation relating to the last home of the late SCOTUS Justice Hugo Black, in the Old Town section of that city. An open-space easement covers the property, preventing most types of development.

The foundation was established to advocate for preservation of historic sites and structures in the city. It appeared at public hearings to oppose planned renovations of the Black homesite. The local board of architectural review and then the city council both approved the plans over the foundation’s objections.

Citing a City Code provision that allows aggrieved persons to appeal adverse decisions, the foundation took its grievance to circuit court. There, a judge ruled that while the foundation had standing to appear before the city council, it didn’t meet the definition of an aggrieved party, so as to allow it to appeal in court. The circuit court dismissed the case for lack of standing.

Today the Supreme Court unanimously agrees. While the foundation may, due to its purpose, be interested in the outcome of the application process, it didn’t suffer a discrete, particularized harm. This is so even though the foundation owns property 1,500 feet away, and has itself given and received comparable preservation easements.

This has to be regarded as a major blow to the foundation, and to similar organizations elsewhere. It retains the right to urge specific courses of preservation in the city, but it now has no teeth; no right to seek court action to block development that it opposes.

The next standing decision is a whopper. In Bonanno v. Quinn, we get a landmark ruling as the court backs away from some memorable language in several past published opinions.

This is a step-parent adoption case. In 2013, a woman with a daughter married a husband who thus became the girl’s stepfather. The next year, a JDR court awarded the woman and her mother – this would be the girl’s grandmother – joint custody of the girl. The grandmother received scheduled visitation rights. Reading between the lines of today’s opinion, it appears that the grandmother wasn’t diligent in exercising those rights.

Four years later, the girl’s mother died. The stepfather filed a petition in circuit court to adopt the girl. The trial judge referred the matter to the local DSS for an investigation.

The task proved difficult when it came to the grandmother. The social worker tried several times to make contact, but the best she achieved was an exchange of voice mails. Being favorably impressed with the girl’s relationship with her stepfather, the worker recommended that the court approve the adoption.

Shortly after this, the grandmother contacted the social worker; they spoke on the phone after the worker’s report but before any action on it. In a supplemental report two days after this call, the worker reported that the grandmother “denied knowledge of [the stepfather’s] petition to adopt the child and denied consent to the adoption.”

This account would prove fateful in the appeal. On April 30, 2019, the circuit court entered a final adoption order as the stepfather had requested. The stepfather waited 21 days before e-mailing a copy of the order to the grandmother. She responded by doing two things, both on May 30: She noted an appeal of the adoption order, and she moved the circuit court to unseal the record and vacate the final order.

How can she do that, you ask? After all, the circuit court loses jurisdiction 21 days after final judgment. It can no longer vacate or modify its order at that point. The grandmother addressed this concern by observing that, by statute, a circuit court retains jurisdiction over an adoption for six months.

Two months later, the grandmother filed another motion, this one asserting that the adoption order was void ab initio because the stepfather hadn’t filed the right procedures.

Law professors and procedure geeks will immediately recognize that this situation is simply pregnant with many legal issues. Does the circuit court really have continuing jurisdiction? Did the grandmother’s noting of an appeal deprive the circuit court of any power to act on her motion to vacate and unseal? Was the adoption order really void ab initio?

Okay; I’ve asked enough questions for now. Here’s what happened with the case: The circuit court issued an order refusing the motion to vacate because the Court of Appeals had exclusive jurisdiction. The Court of Appeals later granted the stepfather’s motion to dismiss the appeal, holding that the grandmother didn’t have standing to appeal. This was because she wasn’t a party in the circuit-court proceeding. The court granted the stepfather’s request for appellate attorney’s fees, and remanded the case so the circuit court could calculate those.

A writ panel of the Supreme Court evidently couldn’t resist all of the goodies in this case, so it awarded the grandmother an appeal. The fundamental ruling today is that while some rights inure to persons, only an aggrieved party may appeal a judgment. Those two words aren’t synonymous (and the SCV expressly rejects a Black’s Law Dictionary definition that says that they are), and so only a person who was actually a party below can take the case up.

As a side note, todays’ opinion observes that an unsuccessful intervenor can appeal the denial of the intervention motion. That person is obviously a party to his own motion. But the appeal of that denial only brings the intervention motion to the appellate court; not the merits of the case.

Back to our tale: The justices agree that the circuit court got it right when it ruled that the filing of the notice of appeal had divested it of power over the case. This litigation preceded the 2019 amendment of Rule 1:1B, which now governs situations like this.

The court then turns to the void ab initio issue. It’s here that a time-tested phrase from many previous opinions dies an ignoble death. In prior holdings, the court has ruled that a void order is a nullity, and may be challenged “directly or collaterally by all persons, anywhere, at any time, or in any manner,” “before any court, or by the court itself.”

Let us begin by noting that this language is categorical and unconditional. It’s an open invitation to collateral attack on an order, without time limitation. The theory is that a nullity can’t be enforced.

The court started to back away from this broad language two years ago, in Watson v. Commonwealth. There, the court held that a challenge to a criminal sentence as void must come from a person with standing to raise it. Thus, a nosy busybody couldn’t comb through courts’ records in search of invalid sentencing orders, and then bring suit to declare them void.

The Watson court watered down the previous absolute rule – in effect, “We may have said any person, but we really meant any person with standing” – but today the justices drive a stake through the phrase’s heart:

We go still further today, declaring that the language in Barnes that orders void even for lack of subject-matter jurisdiction may be challenged “by all persons, anywhere, at any time, or in any manner,” 144 Va. at 705, is a rhetorical flourish that does not accurately state the law, now or at the time Barnes was decided.

The discussion section of this part of the opinion concludes, “we strongly discourage litigants from invoking that language in future proceedings.”

There it is; you have been warned. It won’t do you any good to complain that you only cited the language because that’s what the court had said before. This is an emphatic closing of that door.

The justices finally remand the case for calculation of appellate attorney’s fees. The grandmother had objected to the CAV’s award, arguing that her appeal wasn’t frivolous or interposed for an improper purpose. The riposte is simple: Rule 5A:30 fee awards don’t require a frivolous proceeding. That’s the standard for sanctions under Code §8.01-271.1. The rule, in contrast, expressly provides that the court isn’t limited to considering whether the appeal was frivolous or meritless.

This may be one of the cases where troublesome facts help to drive the decision in directions other than those first intended. Specifically, the grandmother argued that, because the proceeding was sealed, she didn’t know about the adoption until she received the final order, coincidentally 21 days after final judgment. You have to admit that she has a point: Interested persons can’t be held to this tough standard when the entire proceeding is conducted in secret.

But the social worker’s report indicated that the grandmother knew about the case dispositively earlier; the phone call between the two women preceded entry of the order by about three weeks. The grandmother didn’t move to intervene in that time. A helpful hint: Don’t make demonstrably inaccurate claims of fact. That won’t help you in any court.

As I promised, this is a whopper of a case. Its tendrils will reach far beyond the realm of adoption cases. This is an important holding in several regards, and will reward careful study.

The third standing decision is another published order: Machen v. Williams involves a challenge to a will on the grounds of fraud and undue influence. The testator, aged 93 at death, had never married and had no children. What she did have was an investment account worth $1.3 million.

The testator had befriended an attorney who “had helped her in the past.” He held her power of attorney. When he learned of the account in 2018, he urged her to make a will. She agreed.

The lawyer then drew the will to give almost all of the money to himself. He arranged for individual bequests of $10,000 each to several nieces and nephews, related by blood or marriage, and included an in terrorem clause that would cut them out of the will if they contested it. The lawyer came to the rehab center where the testator spent her final weeks and had her execute three copies of the will, using strangers as witnesses. No one knew then that she had but ten days left to live.

A week after the testator died, the lawyer presented the will for probate. He qualified as executor. Another lawyer, acting as his counsel, sent letters to the several nieces and nephews, telling them about their modest bequests. The letter promised them “that he would expedite their payments if all of them signed and promptly returned a release form enclosed in his letter.”

All of them signed the releases; all but one. That one, joined by his wife, sued to impeach the will, claiming fraud, undue influence, and lack of testamentary capacity. The lawyer filed a plea in bar against the wife, because she had signed a release. The court took that plea under advisement and convened a jury trial.

The jury found that there was no will. Based on his comments, the judge was probably only too happy to enter judgment on the verdict. He denied the plea in bar, holding that the release was a product of the lawyer’s fraud.

On appeal, the lawyer claimed that the husband who had sued had no standing to bring the action, because he wasn’t a blood relative of the testator. His wife was, the lawyer pointed out, and she had signed a release in exchange for valuable consideration.

Alas for the lawyer, the justices had awarded him an appeal on only one of his eight assignments of error, that relating to the husband. That meant that the circuit court’s ruling setting aside the wife’s release was final, and the law of the case. Prior caselaw establishes that as long as one party has standing, another party’s lack of standing won’t defeat the action. This means that any claimed error regarding the husband was harmless.

This ruling comes in an order. In another context, or perhaps at another time, that order might have been unpublished. But today’s order ends with a directive that it be published in Virginia Reports. I sense that the justices were offended by the lawyer’s actions, and decided to impose publication as a form of sanction.

Criminal law

Had enough of standing? Let’s go to another hotbed of controversy: returns on service of process. The case is Logan v. Commonwealth, and it’s sexier than that introduction would make it seem. Because the dates matter here, I’ll set them out exactly.

July 24: A GDC judge enters an order extending a previous preliminary protective order against Logan. The complainant is the mother of Logan’s girlfriend. The order extends the provisions until the following January, and sets a hearing date on whether to make the order permanent.

July 25: A deputy sheriff files a signed return of service with the court, certifying service of the order on both Logan and the complainant. The form indicates that the deputy personally served both persons at the same time, one minute before the deputy filed the return.

July 27: Logan goes into a pawn shop and tries to buy a gun. He fills out a form that asks if he’s under a protective order; he answers no. The pawn shop owner sends the form to the Stat Police.

August 1: The State Police rejects the application, presumably after checking a database of persons subject to protective orders.

An officer met with Logan sometime thereafter and showed him the GDC’s extension order. Logan answered that he knew that he had previously been under a protective order, but believed that it had expired by the time he entered the pawn shop. He denied any knowledge of the extension order.

I infer that the original order was one of very limited duration, designed to freeze the status quo until the court can consider making it more permanent. Nevertheless, the Commonwealth prosecuted Logan for a felony (the false statement) and a misdemeanor (the attempted purchase).

The case proceeded to a bench trial. The complainant testified that the deputy never served her with the extension order. That seems to matter a lot to the case, because the deputy’s return indicated service on both her and Logan at the same minute. This testimony called into question the accuracy of the return of service.

The real fireworks arrived when the prosecution offered the return of service into evidence. Logan objected that the return was an out-of-court statement offered against him to prove the truth of the matter asserted. He raised both hearsay and Confrontation Clause objections (good for his lawyer; you have to raise those separately).

The circuit court overruled the objection and admitted the extension order and the return of service into evidence. The court eventually shook Logan loose on the felony charge, but convicted him of the misdemeanor.

On appeal, a CAV panel affirmed, holding that the primary purpose of the return was administrative, not testimonial. The full court took up the case after granting en banc rehearing; a plurality of the court agreed with the panel, holding that signing the return was a ministerial duty performed by the deputy that “was functionally different from live testimony.”

Today, in a short opinion by Justice Mims, the Supreme Court agrees with the CAV and affirms. The court turns to the primary-purpose test and concurs that, at the time the deputy signed the document, there was no reasonable expectation that there would be litigation over the return. Citing decisions from elsewhere, the Supreme Court concludes that the return “performs a record-keeping function, documenting that the ministerial duty of service of process was executed.”

I don’t handle criminal work, so I don’t have a fully informed view on this. But speaking as a quasi-outsider, this ruling makes me uneasy. I follow the court’s reasoning, and the caselaw is unmistakably there. But one of my tests for a given ruling is whether you can explain it to a nonlawyers in a way that makes that person nod and say, “Okay, I understand.”

In this case, the information on the return was an essential part of the case against Logan. If he had never been served with the order, then he would have entirely innocently tried to buy the gun. That means that what appears on that paper is crucial to the prosecution.

There’s more. On its face, the paper seems incongruous: The deputy asserted in the return that he had served both the complainant – the person who asked for the protective order – and the respondent – the person whom she was ostensibly afraid of – at the same minute. If her object was to keep Logan away from her, why would she be so close to him that they were both served at the same moment?

Finally, the complainant testified that, contrary to what it says on the return, she was not, in fact, served. That calls into question the accuracy of the return on Logan. Yet the courts have ruled that he can’t ask questions of the person who signed the statement that gets Logan convicted.

To a layman, that can’t sound right. To a civil lawyer like me, it seems … well, I’ll say uncomfortable. The law is supposed to give a criminal defendant a fair shot, and this ruling seems to deprive Logan of one.

Workers’ Compensation

In Merck & Co. v. Vincent, the court takes up the compensable-consequence doctrine. That holds that where an employee sustains a compensable work-related injury, and later sustains another injury that’s traceable to the first one, the second one may be compensable, too.

Vincent sustained injuries while on the job and received an award of temporary total benefits. Sometime later, he fell down a flight of stairs. Doctors attributed the fall to the effect of medications to treat his initial injury. He got an award for that, too.

Eight years after the first incident, the employee applied for permanent total disability benefits, citing a change in condition. A deputy commissioner awarded the benefits, rejecting the employer’s contention that the injuries hadn’t occurred in the same accident. The full commission and the Court of Appeals affirmed.

The Supreme Court today reverses and remands the case. It holds that under current law, “in the same accident” means just what it says, and an employee can’t rely on the compensable-consequence doctrine to stretch his claim. The opinion explains in detail the court’s conclusion that an earlier decision in 1945 hadn’t meant quite what the Court of Appeals had thought. And the statutory underpinning for the doctrine didn’t survive the recodification of Workers’ Comp statutes.

Land use

From Fairfax we get a hot-topic issue, the taxation of short-term home rentals. The growth of Airbnb and related sites has led some jurisdictions to take a closer look at their zoning laws. In Norton v. Fairfax County, we see where the county acted, and the homeowners howled.

In 2018, the county adopted a resolution noting the proliferation of these rentals. To address these, it passed two amendments to its zoning ordinance. The first redefined a dwelling in a way that excluded short-term rentals from the definition. The second imposed a 2% tax on such rentals.

Several homeowners rebelled and filed a declaratory-judgment action, seeking a ruling that the amendments were arbitrary and capricious, or that they violated the Dillon rule. The case went to a bench trial, where the circuit court dismissed the claims with prejudice. The court noted that before the amendments, short-term rental wasn’t a by-right use in the residential zoning classifications. It further found that the county’s decision was anything but arbitrary, and ruled that a statute gave the county the right to impose the tax.

The homeowners got a writ, but today the Supreme Court agrees with the circuit court and affirms the judgment. This is the second decision of which I’m aware in which the Robes have weighed in on rentals like those facilitated by Airbnb. The first, Haynes-Garrett v. Dunn in 2018, held that rentals like these don’t create a landlord-tenant situation, so the owner doesn’t owe that level of duty of care to the renter.

ANALYSIS OF MAY 20, 2021 SUPREME COURT OPINION

(Posted May 20, 2021) The Supreme Court of Virginia issues one published opinion today. It’s concise – just 4 ½ pages – and my sense is that experienced appellate lawyers would see the ruling coming from a mile away.

Kosko v. Ramser is a medical-malpractice action. At trial, the circuit court sustained the doctor’s motion to strike the testimony of a key expert witness for the patient. The patient’s lawyer knew what to do in the event of a full-blown legal emergency like that: “We nonsuit.” The judge has no real discretion to refuse that, so the parties and the jury packed up and went home.

Two days after the court entered the nonsuit order, the doctor filed a motion for costs under Code §8.01-380(C). The court scheduled a hearing on that motion for twenty days after entry of the nonsuit order. At that hearing, the court announced that it was granting the motion and awarding $20,000 in costs to the doctor.

So far, so good; but the doctor’s lawyer made one key mistake. At hearings like this, I’ve always found it wisest to bring a draft order in case the court rules in your favor. That way, if you get a favorable ruling, you can hand up the order for entry immediately.

I believe that that’s good advice generally, but it’s absolutely crucial when the hearing is on the twentieth day after final judgment. Alas, there was no such order in the courtroom, so the judge asked the doctor’s lawyer to prepare and circulate one. By the time the court got around to entering the costs order, five more weeks had expired.

The issue in this appeal is whether the circuit court retained jurisdiction to enter the order more than 21 days after final judgment. A long line of cases stretching back at least to Lyle v. Ekleberry in 1968 – a decision that I discussed in detail here – holds that the trial court retains jurisdiction for only 21 days after final judgment, as Rule 1:1 provides, and only entry of an order that suspends, modifies, or vacates that order can interrupt the running of the 21- days. The circuit court had entered no such order, so its power over the case ended on the 22^nd dawn.

The justices today – unsurprisingly, in my view – unanimously reverse the costs award, holding that there’s nothing in the costs-award provisions of the nonsuit statute that extends the time for entry of the order.

The easy lesson is to bring an order to every hearing, as I advise above. The hard lesson is that you never, ever play around with finality.

I’ll add two quick notes here. First, the court also hands down a published order in a criminal appeal, Rompalo v. Commonwealth. It’s a prosecution for destroying public records, and the Supreme Court, in a one-page order, affirms the Court of Appeals on that court’s reasoning.

Second, in my May 6 essay, I noted that a few appeals remained undecided from earlier sessions in 2021. I had failed to recall that there are still a couple of unresolved appeals argued in the November 2020 session, now more than six months ago. Those folks have had an agonizing wait. But there’s no way for them to hasten this process (unless they want to settle the case); they just have to be patient. Today’s two published decisions both came from the April session, just four weeks ago.

  *   *   *

After I posted the essay above, the Supreme Court posted two unpubs to its website. One is a land-use appeal that hurt my head to try to read, so I’ll just give you the link here and invite you to review it if you wish; it’s Dulles Professional Center Condominium Unit Owners Ass’n v. Fairfax County. Be ready for a mind-numbing alphabet soup of initials and defined terms.

The other unpub is a short affirmance in a habeas appeal, Fair v. Director. Fair, a long-term guest of the Director of the Department of Corrections, filed a petition in Stafford County Circuit, alleging ineffective assistance of counsel. He contended that his lawyer failed to advise him of his right to appeal his convictions, founded on a guilty plea, of second-degree murder, attempted robbery, and companion firearm charges.

The trial court received some unusual evidence: an affidavit from the trial lawyer, setting out his private conversations with Fair in jail after sentencing. The lawyer reported that he did, in fact, inform Fair about this right, but that Fair’s reply stopped him short: “This is God’s will and it’s in his hands now. I’m good.”

The lawyer presumably closed his file, but a call from Fair’s father a few weeks later prompted the lawyer to visit his client again, this time in prison. Fair replied that he would handle his father, and indicated no interest in an appeal. Based in large part on this report, the circuit court dismissed the habeas petition.

Fair then did something that hundreds of folks do: He filed a pro se petition for appeal. But this was that rare case where a panel of the Supreme Court decided to grant the writ. The court then appointed counsel to represent the lucky appellant on the merits.

In today’s order, the court sets out a number of interesting arguments that the appointed lawyer – my appellate pal John Jones – raised. But the court rules today that those arguments don’t fall within the parameters of the single assignment of error crafted by the erstwhile pro se appellant. The justices accordingly decline to address these significant arguments, and summarily affirm the dismissal.

Normally I’d just let a ruling like this pass; it creates no new precedent, breaks no new ground, and really applies only to the immediate litigants. But something about the court’s rationale warrants mention here.

We know from oodles of experience that the Supreme Court regards assignments of error as inflexible, once granted. The court has often taken pains to criticize appellants for filing opening briefs that purport to change the wording of the assignments. Sometimes those changes are benign – correcting an unmistakable and unambiguous typographical error, for example. Those are no big deal. Rarely, a litigant will redraft the assignments after the grant, to try to beef them up or make them more persuasive. That’s always a mistake. In my briefs, I never allow myself to even think of modifying assignments after a grant.

Here’s the problem: My pal John identified some interesting arguments that might conceivably have justified a reversal and remand. But the client, a nonlawyer, wasn’t skilled in legal writing and didn’t know how to phrase assignments of error optimally. John was stuck with the cards he was dealt, making the outcome of the appeal almost a foregone conclusion.

What can be done about this, assuming you don’t like the status quo? Well, first of all, you’re dealing with the Virginia judiciary, where the status quo is usually revered; they don’t usually like changing things up. But if you could change something about the procedure to give these appellants a fighting chance, what would you do?

I can envision two approaches to this. The first is to permit an appointed advocate to rewrite the assignments after a writ grant, to formulate issues that fairly represent the appellant’s best case. In theory, newly appointed counsel could even now move for leave of court to do that, though I believe that the court would almost never grant such relief, citing fairness to the appellee.

The only alternative I can think of is one that’s likely to find even less favor at Ninth and Franklin: a civil Gideon right of counsel in civil appeals. Perhaps you could restrict it to habeas cases, if you aren’t comfortable with giving free lawyers to garden-variety civil litigants who are squabbling over dollars or silverware or the family dog. But where a person’s liberty is at stake, there’s a more compelling reason to consider this approach.

No, I don’t think that a change like that is imminent. Nor will I see it in my lifetime.

ANALYSIS OF MAY 13, 2021 SUPREME COURT OPINION

(Posted May 13, 2021) Today VANA marks the birth of the greatest living musical genius of our age. Stevie Wonder turns 71 today. (If Jimi Hendrix had lived this long, I might have had a different candidate for that honor.) As the wise saying goes, “Talent hits a target that others can’t hit. Genius hits a target that others can’t see.” It’s ironic that a blind man has seen so much that we sighted folks haven’t.

Criminal law

The Supreme Court decides a single appeal by published opinion today. In Myers v. Commonwealth, the justices take up a conviction for carrying a concealed weapon. The weapon, a handgun, was contained inside a fully-zipped backpack on the passenger floorboard of a car. Myers sat in the driver’s seat when law enforcement confronted him. When they conducted a search and found the weapon, he eventually admitted that it belonged to him.

Indicted for carrying a concealed weapon, Myers insisted at trial that a statutory exception applied to him. Specifically, he cited Code §18.2-308(C)(8), which excludes convictions of a person “who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”

The judge wasn’t having any of it; the circuit court convicted Myers after a bench trial, and a panel of the Court of Appeals affirmed. But the justices granted a writ to consider the statute and decide whether it applies in this situation.

Justice Kelsey writes a short opinion for a unanimous Supreme Court. The court reviews its prior decision on carrying concealed weapons, starting with the famous saddlebags case, Sutherland v. Commonwealth from 1909. There, the court had held that a weapon contained in a saddlebag with a closed flap wasn’t being “carried about the person” as contemplated in the statute because it wasn’t “readily accessible for use or surprise” by the owner.

More recently the court peeled back that holding a bit in Schaaf v. Commonwealth, from 1979. There, the court upheld a conviction for carrying a handgun into a courthouse, contained in a woman’s purse. Justice Kelsey’s unease with this distinction is obvious; he describes the Schaaf ruling as an attempt to distinguish the earlier holding, adding that the 1979 court may have been “wincing a bit from this scant distinction.”

Today the court sides with its Taft-era judicial ancestors, holding as a matter of law that a gun in a zipped-up backpack is secured within the meaning of the statutory exception. The court holds that this is akin to the situation in Sutherland: A modern backpack is analogous to a set of saddlebags. It’s unnecessary to overrule Schaaf because of at least one glaring distinction: Ms. Schaaf wasn’t in a private vehicle or vessel. The court accordingly reverses the conviction and dismisses the indictment.

In case you’re wondering, the answer is yes: Reversals in criminal appeals are rare birds indeed. One possible explanation for the court’s comparative leniency here may be the subtext of the Second Amendment. Justice Kelsey doesn’t mention the amendment in today’s opinion, but I think I see its tincture in the holding.

ANALYSIS OF MAY 6, 2021 SUPREME COURT OPINION

(Posted May 6, 2021) Evidence geeks will appreciate today’s ruling from the Supreme Court of Virginia in White v. Llewellyn, a fraudulent-conveyance suit that turns on the durability of a presumption.

The procedural posture here involves two lawsuits. Mr. and Mrs. Homeowner owned Blackacre, presumably as tenants by the entireties. One day Mrs. Homeowner drove out of the driveway and clobbered another vehicle. The driver of the other car sued both Mr. and Mrs. Homeowner, asserting what I see as a creative premises-liability claim against the husband. The injured party eventually got a jury verdict and a final judgment against Mrs. Homeowner only, for $1.5 million.

If the spouses did indeed hold title as tenants by the entireties, then a judgment against the wife only wouldn’t impair the title. But all was not blissful in the halls of Blackacre; the spouses executed separation agreements as a precursor to an eventual divorce. A final divorce decree would sever the entireties and entitle the tort plaintiff to execute on the wife’s half of the property.

The separation agreement helpfully provided that the husband would receive Blackacre as part of the equitable distribution of the spouses’ marital property. That would thwart any collection efforts against the home. Pursuant to the agreement, the parties executed a deed of gift, conveying title to Mr. Homeowner. Mrs. Homeowner and the couple’s school-age children continued to live in the property.

The tort creditor smelled a rat. She filed a second suit, seeking to set aside the deed of gift as a fraudulent conveyance. At a bench trial, she established to the judge’s satisfaction multiple badges of fraud. Under established Virginia law, that triggered a presumption that the conveyance was fraudulent. The unhappy couple testified as to non-fraudulent reasons for the transfer, noting among other things that they negotiated the settlement at a time when Mr. Homeowner was still a defendant in the tort suit. They explained that the wife and children still lived in the home “to help them deal with any anxiety and depression brought about by the divorce.”

Hearing this, the judge concluded that the couple had met their burden of production by adducing competent evidence that the transfer was not fraudulent. The court concluded that once they did that, the presumption burst, as the plaintiff in the suit always retained the ultimate burden of persuasion. The court entered judgment for the Homeowners, finding that the plaintiff hadn’t met that ultimate burden.

This case implicates the distinction between the two types of presumptions. The first, which I alluded to above, is formally known as the Thayer theory, and informally called “bursting bubble.” It’s called that because of the dynamic that the trial judge employed here: Once the opponent meets the burden of going forward with evidence to refute the presumption, is “bursts” and disappears from the legal analysis.

The other approach is formally the Morgan theory; I regard it as a durable presumption. That is, the presumption endures even after the opponent introduces evidence. In this form, the opponent of the presumption bears the twin burdens of going forward with the evidence and of persuasion.

This litigation turns on whether the presumption of fraudulent conveyance is bursting or durable. Today’s opinion from Justice Goodwyn assures us that this is a question of first impression in the Commonwealth. The court rules today that it’s durable, so the circuit-court judge erred when he ruled that the tort creditor hadn’t overcome the burden of proof. The court unanimously sends the case back so the trial court can decide whether the Homeowners established the good faith of the deed of gift.

My pal John Koehler has posted an interesting essay about this decision on his blog, The Soap Box.

The justices received oral argument on this appeal in the January session. That leaves one appeal still pending from that session, a criminal case styled Myers v. Commonwealth. There are seven undecided appeals from the March session, including a pair of reciprocal appeals that the court will likely decide together.

ANALYSIS OF APRIL 29, 2021 SUPREME COURT OPINION

(Posted April 29, 2021) The Supreme Court announces one published ruling today. In Doe v. Baker, the court takes up claims arising from alleged sexual misconduct of a retired church pastor.

The plaintiff was a minor in 2016 when, she alleges, the retired pastor committed acts of sexual battery upon her. The pastor had remained with the Waynesboro church after his 2011 retirement; the complaint alleged that he stayed on as a spiritual advisor to congregants.

The plaintiff alleged that the pastor had a history of inappropriate conduct before and during his active tenure at the church. She claimed that the church and its Overseers – members of its governing body – knew about the pastor’s history but hired and retained him anyway.

A circuit court dismissed the complaint on demurrer – sort of. Today’s opinion notes that the trial court effectively treated a motion for summary judgment as a demurrer. That means that the justices take the same approach.

Today’s ruling represents a mixed result. The appellees win most of the battles, as the Supreme Court affirms the dismissal of most of the counts. But it reverses and remands on three claims. First, it holds that the complaint fails to state a claim for negligent hiring at the time of the pastor’s original hiring in 1996. But to the extent that the complaint alleges negligent hiring or retention after 2011, that claim can go forward. By that point, numerous reports had reached the church to put it on notice of the danger of keeping the pastor on.

Second, the court agrees that the plaintiff stated a claim for vicarious liability. When you read today’s ruling, you’ll read plain skepticism between the lines of Justice McCullough’s opinion for a unanimous court. The court feels constrained by precedent to allow the vicarious-liability claim to go forward. Today’s opinion repeats the musing from the 2019 decision in Our Lady of Peace v. Morgan that it’s hard to see how an employer can be vicariously liable for conduct like rape, because that’s plainly outside the bounds of any reasonable delegation of authority to an employee or agent.

Third, the court sends a claim of negligent infliction of emotional distress back for trial. The court affirms the dismissal of a host of other claims: “willful and wanton negligence, intentional infliction of emotional distress, fraud, and for failure to warn and failure to protect.” It importantly also affirms the dismissal of all claims against individual defendants, ruling that the proper defendant is the church.

Of these claims, the idea of a fraud count struck me as unusual. The plaintiff alleged that the defendants breached a duty to warn congregants, including the plaintiff, about what the defendants knew of the pastor’s misconduct. The basis for this claim is that the plaintiff relied on the church’s silence to her detriment. The justices reject this claim for two reasons. First, there’s nothing in the complaint alleging that the individual defendants intentionally withheld the information. It accordingly can’t be actual fraud.

The second reason will raise some eyebrows: “the defendants did not owe a duty to warn Jane or the other congregants about the complaints against King, so their silence cannot constitute concealment.” For this holding, the court cites a Fourth Circuit decision from 1999 in a breach-of-contract case between two banks. There, the Fourth had held that “Silence does not constitute concealment in the absence of a duty to disclose.”

Applying this ruling in the context of sexual molestation of a juvenile is enough to cause me to squirm just a bit. The Supreme Court today holds that church defendants who know about a pastor’s propensity to commit acts of sexual misconduct owe no duty of disclosure to persons who may be endangered by the pastor. My best guess is that John Q. and Jane Q. Citizen would be surprised by this, even if lawyers understand that there’s judicial precedent for the holding. Those laymen will likely regard this ruling as a way to protect sexual predators.

ANALYSIS OF APRIL 22, 2021 SUPREME COURT ORDER

(Posted April 22, 2021) There are no published opinions or orders from the Supreme Court today, but we do get an interesting unpub. On the likely chance that some of you will find it worthwhile, here’s a report.

McMurtrie v. McMurtrie comes to us from Chesterfield County. There, a settlor created a revocable trust. The declaration contained an in terrorem clause, stating that any beneficiary of the trust who sought to impair or invalidate it would thereby forfeit any interest in it. The declaration named three co-trustees, two of whom I infer are the settlor’s sons.

In 2019, the settlor asked the trustees to distribute the trust principal to him. Hey, he’s the only beneficiary, so he should be allowed to do that, right? But one of the three trustees balked, claiming that he, the co-trustee, had “absolute discretion as to distribution.”

The settlor then sued, asking for a declaratory judgment that the no-contest clause didn’t apply to him because, well, it was his trust. The trustees answered, and then the settlor sought summary judgment. He specifically requested a declaration that (1) the no-contest clause didn’t apply to him at all, or (2) if it did apply to him, it didn’t impair his ability to terminate the trust as allowed by statute, or to sue the trustees for breach of fiduciary duty.

The circuit court was obliging; it gave the settlor about as complete a victory as he could wish for. The court ruled that the clause didn’t apply to the settlor, and that the settlor could terminate the trust and sue for breach of fiduciary duty.

After a clobbering like that, the trustees were relieved to get a writ. Today, the Supreme Court reverses on the only appealed issue. It rules that under the plain language of the trust declaration, the no-contest clause does apply to the settlor, even though it’s his own trust, because he’s plainly a beneficiary. During his lifetime, he’s the beneficiary; the only others are contingent upon his death. The courts don’t get to rewrite unambiguous trust language.

This looks like a complete win for the trustees. Ah, but note the way I phrased that line above: The justices reverse on the only appealed issue. The trustees hadn’t appealed the findings that the settlor could terminate the trust and sue them for breach of duty.

Uh-oh. That means that the settlor has an easy way to get his way: He just files a petition under the statute to terminate the trust. That statute provides that the circuit court shall enter an order modifying the trust, and the circuit court here has already ruled, in an unappealed finding, that the settlor has the right to do that. Whether the settlor chooses to go ahead and sue for breach of fiduciary duty is up to him, though it might in theory be a way for him to recoup his attorney’s fees for this case and appeal.

This ruling is a second-cousin of the Manchester Oaks doctrine, which refers to a 2012 SCV decision. There, the Robes held that if a judgment rests upon two or more independent grounds, and the appellant appeals only one of those, the Supreme Court will summarily affirm on the unappealed ground. McMurtrie is a cousin and not an identical twin because the relief requested isn’t identical for the three claims. Today’s order gives the settlor an easy roadmap to a victory, despite his technical loss today.

ANALYSIS OF APRIL 15, 2021 SUPREME COURT OPINIONS

(Posted April 15, 2021) Today is the traditional deadline for filing federal income tax returns. It’s different this year, as so many other things are different this year; the government has given taxpayers another month. But in my childhood, this was an important day because my late father was an accountant. This meant that for the last half of March and the first half of April, he usually worked 100-hour weeks, coming home well after midnight six days a week, and at dinnertime on Sundays. I only dimly appreciated back then how grueling that was.

The day after the tax deadline was important, too. On that morning, my family was careful to make as little noise as possible, “so Daddy can sleep.”

Damages

The Supreme Court today provides guidance on what a plaintiff must establish to prove damages. The case is Northern Virginia Kitchen, Bath & Basement, Inc. v. Ellis, and comes to us from the Loudoun County Circuit Court. The appellant is a company that specializes in remodeling homes. It employed the appellee, Ellis, as an independent contractor to perform that kind of work.

Shortly after Ellis started work, the company assigned him to install a bathroom for a homeowner. The relationship between the homeowner and the company soured, and she canceled the contract. But she seemed to like Ellis, so she asked him to continue to perform the work. He agreed to do so.

When the company’s owner found out about this, he angrily left voice mails on Ellis’s phone. It wasn’t pretty:

He left two angry voicemails on Ellis’s cellular telephone stating, among other things, that Ellis had made “a ni***er move” that would not work out well for him; that “we don’t play that s**t down here in Virginia, boy;” that he had “better not see [Ellis] over there [at Ms. C’s house];” and he had “motorcycle clubs and gangs around” and that Ellis was in “the wrong part of town to be playing that dirty s**t . . . .” Powell also said that he had hired Ellis “for his color;” because he is “black” and “a minority,” but that Ellis had “pulled the same s**t that f***ing black people around here do” and had “ruined it for the next black man.”

Ellis told the president to stop calling him, but the calls continued.

The company eventually sued the homeowner because she had posted online copies of the president’s messages to Ellis. Perceiving that suing the homeowner alone wasn’t enough, he added a claim against Ellis for defamation and conspiracy. Ellis countersued for racial harassment and stalking.

The circuit court dismissed the company’s suit, leaving the counterclaim for adjudication. The company eventually admitted liability, leaving only the issue of damages for trial. A jury awarded Ellis $100,000 in compensatory damages and $150,000 in punitives. The trial judge denied a motion to set the verdict aside and entered judgment on the verdict.

On appeal, the Supreme Court evaluates the company’s argument that Ellis’s testimony wasn’t sufficient to support a compensatory award, and that without a valid compensatory award, punitives were impermissible. The justices note that while Ellis didn’t call the police or incur any medical expenses. Citing a string of earlier decisions, they hold that mental anguish alone is enough to create a jury issue on damages.

The court specifically rejects the company’s argument that a single line of testimony by Ellis should scuttle his case. He testified on cross-examination that the company involved him in a lawsuit that he had nothing to do with, so he filed a counterclaim.

The company argued that under Massie v. Firmstone – the venerable decision holding that a plaintiff can’t rise above his own testimony – the motive for the suit wasn’t to redress emotional distress, but as retribution for getting sued. The justices don’t buy into this, noting that a person’s motive for filing suit is immaterial to whether he has sustained compensable damages.

I caution my readers about reading too much into this ruling. It’s important, of course – published opinions generally are – but please remember that Ellis stated statutory causes of action that expressly provide for damages for violation. The court might not be as expansive in its views of some common-law claims.

Real estate

It all started in 1875. In that year, 15 horses ran the first Kentucky Derby; Henry Morton Stanley, having found Dr. Livingstone four years earlier, continued a grueling transect of central Africa; and a couple named Edna and Levi Lynn took $5 in exchange for an acre of land, conveying it to a church in Prince William County. While the first two items made all the news that year, it took 145 years for the Lynns’ deed to become controversial.

Canova Land and Investment Co. v. Lynn relates the tale of the deed, in which the couple gave the land to the church “to use it for the worship of God,” expressly noting that the property would “revert to the grantors or their heirs if it ceases to be used for the purposes expressed in the deed.” For over a century, that use continued without incident.

In the 21^st Century, the corporate successor to the original unincorporated church took out a $1.37 million loan, giving the one-acre tract plus another four acres as collateral. Alas, the timing was poor; the loan occurred in 2007, just before the great recession humbled the American economy. The modern church did what it could, but default followed in 2011. The bank foreclosed.

At the sale, Canova Land, a subsidiary company of the bank, bought the five acres. At that point, someone did what the bank should have done back at the loan-processing stage: a full title examination. That exam showed the conditions set forth in the 1875 deed.

As a former title examiner myself – baby lawyers used to do that kind of stuff back in the medieval period, when I started practicing – I’ll offer this defense of the examiner: He or she traced the title all the way back to 1900. Most title exams go back about 60 years, so this was arguably diligent. But missing the deed into the mortgagor’s grantor was a vital oversight here.

Canova Land did the sensible thing: It filed a suit to quiet title, asking for a judicial declaration that it had fee simple title. The Lynns’ heirs replied that the limiting language in the old deed was perfectly permissible and entirely enforceable. They cited the Commonwealth’s strong preference for charitable donations, and asked the court to rule that if Canova Land were to use the land for a purpose other than “the worship of God,” then title to the acre would revert to them.

The circuit court held that the deed created the complicated beast known as a fee simple determinable subject to a possibility of reverter. This passage will no doubt stir dim, nauseating memories for my readers who hated taking Property in law school. Bear with me, folks; I’ll sandpaper the rough edges for you.

The judge ruled that the restrictions on the use of the land were permissible, so the Lynn family still could claim the land if the use changed. On appeal, the Supreme Court unanimously agrees. This isn’t a restraint on alienation, which is disfavored; it’s a restraint on use, which can be upheld if it’s reasonable. The court sees nothing unreasonable about this limitation.

Justice Mims’s opinion contains this wonderful passage: “Canova claims that upholding the restraint would significantly limit its ability to develop the land for arguably more efficient purposes, and would, to quote Minor [on Real Property], ‘put the lands of the living in the cold grip of the hands of the dead.’” The court sympathizes, but rules that the interest in promoting charitable giving outweighs the company’s interest in developing the property.

So what happens now? Presumably the company can offer the Lynn family enough money to purchase their interest in the reversion. If it can do that inexpensively enough to go on with its unspecified development plans, then the project will be a go. In the meantime, the property is still used for religious purposes, and will continue to be so used until and unless such a deal blooms.

Unreasonable refusal

The water, not the roads, is the tableau for today’s ruling in Green v. Commonwealth, a civil conviction for unreasonable refusal to take a breath or blood test after an arrest for boating under the influence of alcohol. The principles are the same, though, so this decision will apply to DUI refusals, too.

A VMRC patrol tried to stop Green while he was boating one evening. He tried to bolt, but as so often happens, he was caught and charged with boating under the influence. He refused to take a breath or blood test after failing a preliminary test.

At the ensuing trial, Green tried to cross-examine the arresting officer about the claimed probable cause for the arrest. The circuit court sustained an objection to this testimony because Green hadn’t brought a suppression motion before trial, as required by statute. Green – no doubt a faithful reader of VANA, and up on his preservation requirements – sensibly proffered the evidence that he would have adduced to show that the arrest was without probable cause. At the close of the case, the trial judge got ‘im, so Green appealed.

Because this is a civil charge, the appeal went straight to the Supreme Court. (This path will be overtaken by events starting in January 2022.) Today a bare majority of the court reverses and sends the case back for a retrial. We don’t know the identity of the author of today’s order, but it must have been one among Justices Goodwyn, Mims, Powell, and McCullough.

The majority rules that the statute only requires a pretrial motion when the defendant seeks to suppress evidence. Green, the opinion points out, wasn’t trying to suppress anything and wasn’t making a constitutional challenge. He was offering evidence against one of the elements of the charge, a valid arrest. Because the trial court prohibited him from introducing that evidence, the court remands so the circuit court can consider that evidence in the first instance.

Justice Kelsey, joined by the chief justice and Justice Chafin, pens a dissent in which he argues that the name of the motion isn’t the issue; its substance was identical to the argument that would be made on an ordinary suppression motion. The dissent scoffs at the suggestion that there was no constitutional issue here, because the validity of an arrest is measured by Fourth Amendment standards.

I’m a little surprised that this is a published order instead of an opinion. It still carries precedential weight; that’s what publishing something gives you. But the court, as usual, offers no explanation for the distinction.

ANALYSIS OF APRIL 8, 2021 SUPREME COURT OPINION AND ORDERS

(Posted April 8, 2021) The Supreme Court of Virginia decides one appeal by published opinion this morning. Bryant-Shannon v. Hampton Roads Community Action Program, Inc. rises from a defamation suit filed by a former executive-level employee of an organization that addresses poverty-related problems in the southeastern corner of the state.

The employee sued the organization based on statements placed in her personnel file and on statements made in a Virginia Employment Commission proceeding after her termination. The circuit court sustained a demurrer and dismissed the suit.

Today the Supreme Court unanimously affirms the dismissal. The court reviews the statements in the personnel record and agrees with the trial court that they don’t contain the requisite sting to maintain a defamation action. Here’s one example:

[O]n September 9, 2015, you . . . engaged in several email messages concerning the minutes of one of our board meetings. You also emailed Mrs. Ben Shalom about the status of one of the agency vans. You were engaging in these activities while you were on vacation. I am requesting that when you are on vacation, please refrain from any communication with staff unless it is an emergency.

The justices today hold that this isn’t defamatory; it’s a request for future actions.

The issue that probably gets this opinion published relates to the second class of claimed defamation, the statements in the VEC proceeding. A statute bars the use of information provided to the VEC in judicial or administrative proceeding. In a ruling of first impression at this level, the court holds that this statute confers absolute privilege to those statements.

*   *   *

In an unpublished order, the Supreme Court also dismisses Sheehy v. Williams, an appeal that I discussed here back in November. There, a plaintiff got a money judgment for about $50,000. The defendant noted an appeal and got a writ. During the pendency of the appeal, the defendant sold her home. To enable her to convey good title, the settlement agent paid off the judgment, which would otherwise have impaired the buyer’s title.

The judgment creditor then moved the Supreme Court to dismiss the appeal as moot, because the appellant had paid the judgment voluntarily. Because these facts occurred after the record was finalized, the justices remanded the case to the circuit court for factfinding on what had happened.

The learned judge duly answered the justices’ questions. That told the Supreme Court that the appellant had known about the judgment payoff and hadn’t objected to it. The Supreme Court today rules that this indeed moots the appeal.

In another unpublished order, the justices address an unusual procedural quirk arising from a Batson challenge. In Bryant v. Commonwealth, the defendant demanded a jury trial on a charge of unreasonable refusal to take a breath test.

After voir dire and just before the jury was seated, Bryant’s lawyer noticed that the only black member of the venire had been struck by the prosecution, and requested the opportunity to make a motion outside the jury’s presence. The court accordingly directed the selected jurors to wait in the jury room and the other veniremen to wait in another area.

Bryant’s lawyer noted that his client was black, and the Commonwealth had removed the only black venireman with a peremptory strike. After argument, the court ruled that the strike was impermissible, but doubted that enough veniremen was present to start the selection process anew. Bryant’s lawyer told the court that the only remedy he sought was to restore the struck black venireman, expressly adding that the request didn’t include empaneling a new jury.

The court decided to fashion what it thought was an appropriate remedy: It added new veniremen and gave each party one more strike. The ensuing jury convicted Bryant.

After trial, Bryant’s lawyer renewed the motion to reseat the struck juror, this time arguing that the only legitimate option was to empanel a new jury. In oral argument, though, the lawyer only argued for reinstatement of the black venireman.

On appeal, Bryant urged the Supreme Court to hold that the circuit court should have either reinstated the struck venireman or empaneled a new jury. But because the lawyer had disavowed the new-jury alternative when it mattered – at the time of the Batson challenge – the justices refuse to consider it.

That means that the only issue on appeal is whether the court abused its discretion in using the approach described above. The justices today agree with the trial judge that merely reseating that venireman would be problematic because it was clear that she had initially been struck – remember, she was part of the group that had been set apart from the initially selected jury – and might foreseeably hold that against the Commonwealth in the trial.

In a footnote at the end of today’s order, the justices note that the question of whether the circuit court’s approach was proper or not isn’t before them, because no one assigned error to it. Today’s ruling is limited to the question whether the circuit court acted within the bounds of its discretion in not reseating the struck venireman.

ANALYSIS OF APRIL 1, 2021 SUPREME COURT OPINIONS

(Posted April 1, 2021) On this national holiday – it is a holiday for baseball fans, anyway – the Supreme Court of Virginia hands down rulings in seven argued appeals. Five of those are published opinions.

Local government

Cue the battalions! Line up the partisans on both sides! Today the Supreme Court decides City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson, of Civil War fame. In such litigation, we may justifiably expect stirring discussions of political and military history and a highly charged discussion of the place of such monuments in modern society.

Well, actually, this ruling is about grammar. That’s all. No fireworks; no cannon; no stirring speeches.

After Charlottesville decided, in the wake of the August 2017 civil disturbance in the City, to remove the Lee and Jackson statues, several local citizens sued to enjoin the removal. They cited a 1997 statute that allows localities to erect war memorials, and bars anyone, including the locality itself, from disturbing or interfering with them thereafter. (Do you realize how hard it is to distinguish between statue and statute while typing? Gives me yet another round of respect for my capable legal assistant, the estimable Cathryn Chitty, who types my briefs and pleadings.)

The circuit court agreed with the plaintiffs; it declared the removal resolution to be in contravention of the 1997 statute, enjoined any removal or disturbance, and awarded the plaintiffs attorneys’ fees. The justices agreed to take a look at the case.

Justice Goodwyn pens today’s unanimous opinion. As noted above, the decision comes down to parsing the language of the statue – I mean, statute – and the court finds that all of the provisions therein are in the present tense. That means that the statute only applies prospectively: It only governs monuments erected pursuant to the statutory grant of authority.

The Jackson statue first rose in 1921; the monument to Lee came three years later. That means that the City isn’t bound by the 1997 act, at least for the purposes of these pre-1997 monuments. The court thus reverses and enters final judgment for the City.

You were expecting fireworks?

Attorneys’ fees

We’re all familiar with the American rule on fees. That rule states that each party generally must bear its own legal expenses. There are few exceptions: fee-shifting statutes or contract provisions, plus the occasional fraud award. Today the court considers whether to add another exception. The case is Bolton v. McKinney, and comes from Rockingham County.

The warring parties here are former business partners. When the relationship soured and they partners separated, McKinney filed lawsuits against Bolton. These actions led to the collapse of the business and Bolton’s bankruptcy.

In bankruptcy court, the two entered into an agreement. In exchange for $25,000, McKinney gave Bolton a covenant not to sue for any matters within the scope of the agreement.

That didn’t end well; McKinney sued Bolton anyway; three times, in fact. The courts dismissed those suits, citing the covenant. Bolton then sued McKinney for breach-of-contract damages. The damages that he claimed were his attorneys’ fees in defending the three actions.

A judge designate heard the matter and ruled that McKinney had indeed breached the covenant. But after pondering the matter, he ruled that the American rule barred an award of fees as damages. Bolton got a writ.

Justice Mims turns his efficient pen to the task of drafting today’s unanimous opinion. (Careful courtwatchers know that Justice Mims is one of the two most concise writers on the court, along with Senior Justice Russell.) The justices acknowledge that the question presented here – whether attorneys’ fees are recoverable as damages in a suit for breach of a covenant not to sue – is one of first impression in Virginia.

Courts elsewhere have come down on both sides of this question. Some rigorously apply the American rule, while others have held that in suits like this, fees are the damages; they’re the only thing that will make the wronged plaintiff whole. The Supreme Court today agrees with the latter approach, holding that attorneys’ fees may be awarded in suits like this. The court remands to circuit court for calculation of those damages – and, presumably, appellate attorneys’ fees.

Expert-witness disclosures

One of the happiest aspects of an all-appellate practice is that I don’t have to fill out disclosures under pretrial scheduling orders. I’ve never prepared one in my entire career; nor have I ever litigated a John Crane motion. The disclosures of two experts form the backdrop for Galloway v. Northampton County, involving a challenge to real-estate tax assessments by a county and town.

Galloway owns property near the Town of Cape Charles, a beautiful spot off the shores of the Chesapeake Bay on Virginia’s Eastern Shore. The property spans the town/county line. Galloway sued both jurisdictions, claiming that they had overvalued his property in the wake of the 2008 recession and its concomitant depression of land values.

I tried a number of these challenges in my previous life in the City Attorney’s Office here in Virginia Beach, so I can tell you that you absolutely, positively need expert witnesses – specifically, real-estate appraisers – to prove your case. Galloway identified two, and the circuit court struck them both, leaving him powerless to prove his case. The court accordingly dismissed the lawsuit. Here’s what happened to prompt those rulings.

Galloway identified Expert #1 back in 2015, just before an unexplained three-year pause in the proceedings. He did so in interrogatory answers, specifying the expert’s name, credentials, opinions, and the basis for those views. This document was a unified response: It began with interrogatory answers, then set out responses to document requests. The client signed the interrogatory answers under oath, as required; the lawyer signed the RPD answers but not the interrogatories. He also signed the certificate of service at the very end.

Years later, just before trial, Galloway’s lawyer noticed that he hadn’t signed the interrogatory answers. Without prompting, he signed them and filed that. The circuit court ruled that his eleventh-hour signature made the disclosure of Expert #1 effective on that date, well beyond the 90-day disclosure deadline. The court accordingly excluded that expert.

The problem with Expert #2 was far simpler; Galloway first identified him roughly 100 days before trial, saying only that he would provide testimony details later. But he didn’t provide those details for two months, well after the 90-day cutoff. The court struck this expert, too.

On appeal, the Supreme Court analyzes the two exclusions separately. For Expert #2, the court has little trouble in affirming. The localities didn’t receive any details about the expert’s opinions until about a month before trial. Under circumstances like these, circuit courts have the discretion to exclude the witness, to avoid surprises just before trial.

Expert #1 is different. The localities knew four years before trial what he would say. The signature omission was a minor matter in circumstances like this. The justices note that the lawyer signed the discovery-response document elsewhere. This brings to mind the Supreme Court’s 2008 ruling in Hampton Roads Seventh Day Adventist Church v. Stevens, where the court ruled that a testator who forgot to sign the signature line on a will, but had signed the self-proving affidavit on the next age, had “subscribed” the will.

Today’s opinion also notes that the remedy for an unsigned document like this is that it must be corrected “promptly after the omission is called to the attention” of the party. Galloway’s lawyer corrected it before anyone else noticed.

This is a no-harm-no-foul situation, and the Supreme Court today reverses the exclusion of Expert #1, holding that the exclusion was an abuse of discretion. And because Galloway asserted that he could make out his case with either expert, that means the suit goes back to circuit court for trial.

Trusts

As I’ve noted before, I always find it dismaying when you find the same surname on both sides of the v. in litigation. Plofchan v. Plofchan is a contest over the trust of a family matriarch. It’s a complex factual and procedural setup, so I’ll just focus on the key rulings. If you want more detail on the facts and posture, click on the link; Justice Goodwyn does a good job of spelling everything out in understandable, though necessarily lengthy, terms.

There are two primary issues here. First, the court addresses a collateral-estoppel challenge to the lawsuit. Similar legal proceedings had made their way through the New York court system, leading to a final judgment. Today, the justices rule that collateral estoppel doesn’t bar this action because the issues aren’t the same, and the issue in the Virginia case wasn’t specifically decided in the New York trial.

Second, the justices take up the always-touchy issue of standing. The plaintiffs in the suit were the named trustees of the trust. The settlor – that would be the matriarch – had terminated the trust and “fired” the trustees (two of her children). When they sued to enforce the trust, the matriarch filed a plea in bar asserting that since they had been fired and the trust terminated, they had no standing to sue. After a non-evidentiary hearing, the circuit court agreed and dismissed the suit.

The justices reverse this ruling, too. They turn to elementary pleading concepts to do so. Because the circuit court decided the plea without evidence, the Supreme Court accepts the facts as pleaded in the complaint. That pleading asserted that the plaintiffs were in “office” and had the right to enforce the terms of the trust. The trial court had to accept that in deciding the plea.

The justices accordingly return the matter to circuit court for further proceedings. Note that that’s not necessarily a trial; I suspect that the matriarch can employ other procedural tools to defend this case short of a trial.

The court announces one other published opinion and two unpublished orders today. Each of these appears to me to be highly fact-specific, with little in the way of general application. As such, I’ll list them here so you can review them if you want.

Stafford County v. D.R. Horton, Inc. is a land-use decision where the court rules that a county can require new planning commission approval for a revised cluster development.

Bustos v. Commonwealth addresses a criminal defendant’s request to instruct the jury that Virginia’s geriatric-release statute is so little used as to be essentially ineffective. Predictably, the justices refuse to require an instruction like that.

Jung v. Park leads to reinstatement of a jury verdict in a fraud case. The circuit court had set aside most of a jury’s award of damages. In my experience, setting aside a jury verdict is the surest way for a judge to draw appellate scrutiny.

ANALYSIS OF MARCH 25, 2021 SUPREME COURT OPINION

(Posted March 25, 2021) It’s a notable day in the appellate field. On a day when SCOTUS turns back a major challenge to the venerable International Shoe doctrine (see Ford Motor Co. v. Montana 8^th Judicial Dist. Ct.), the Supreme Court of Virginia hands down a long-awaited decision in a significant tort case.

Today’s decision in Shoemaker v. Funkhouser addresses a form of vicarious liability. This is a tragic wrongful-death action in which the defendants gave their adult grandson permission to engage in target shooting on their 8-acre property in Shenandoah County. The shooter’s angle of firing was such that a stray shot hit a neighboring house, striking and killing a person inside.

The estate sued the grandparents alleging that they gave their grandson that permission knowing that he’d be shooting toward a house. The suit claimed that they had a duty to others to prevent this dangerous use of their property. A circuit court sustained the grandparents’ demurrer, citing lack of a duty and Virginia’s Recreational Use statute, Code §29.1-509.

The justices entertained oral argument in this appeal back in November. The reason for the delayed release of the ruling is apparent from the 43-page opinion, comprising Justice McCullough’s majority and Justice Kelsey’s dissent. (The dissent is roughly twice as long as the majority; Justice Kelsey likes to write expansively.)

The majority today reverses and sends the case back for trial, by a 4-3 margin. The majority rules that Virginia law required the grandparents in this situation to exercise care to prevent the shooter from lining up toward a nearby house. The court specifically rules that the grandparents were, as alleged in the complaint, in the shooter’s vicinity, as they were in their house within sight of their grandson’s position. The decision rests on the Restatement (Second) of Torts, which the court has approved often.

The court also rejects the circuit court’s ruling on the Recreational Use statute. It holds that while the statute protects landowners from liability to those who use their property for certain recreational purposes, a parallel immunity from liability to third persons injured by their invitee doesn’t extend as far, leaving the grandparents subject to potential liability here.

Justice Kelsey files his dissent on behalf of the chief justice and Justice Chafin. The dissenters chide the majority for applying, not the Restatement itself, but a Reporter’s note and a separate caveat. Those additions, the dissent argues, don’t represent the consensus view of the American Law Institute, which publishes the Restatements, but of the Reporter alone.

The dissent also believes that the Recreational Use statute’s immunity provisions are best read to be coextensive. That would mean that the grandparents are just as protected from liability to a third person as they are from liability to their grandson.

If you’re a fan of statutory interpretation, this opinion is for you. Both authors dive into legal history, and both write with vigor today.

This decision will likely form one of a triad of rulings involving duties to third parties. The previous two were RGR v. Settle in 2014 and Quisenberry v. Huntington Ingalls in 2018. Both of those decisions were 4-3, too, so any change in the makeup of the court – specifically including the participation of a senior justice in a given appeal – could affect the durability of this doctrine.

ANALYSIS OF FEBRUARY 25, 2021 SUPREME COURT OPINIONS

(Posted February 25, 2021) Today brings a bountiful harvest of opinions from the Supreme Court of Virginia.

Consumer law

In NC Financial Solutions of Utah, LLC v. Commonwealth, the court takes up a challenge by the Attorney General to the practices of an online lender. The AG alleged that the lender made loans to Virginians at exorbitant interest rates, in violation of the Virginia Consumer Protection Act. The suit sought injunctive relief, civil penalties, attorneys’ fees, and “all sums necessary to restore to any consumers the money or property which may have been acquired from them” in violation of the Act.

A note about the caption of the appeal: I infer that the NC in the name refers to North Carolina. So what’s the State of Utah doing in there? Simple: Utahns, alone in our republic, have no usury laws. Lenders operating under the laws of that state can charge any interest rate that the borrower is willing to pay. That’s why you see loan agreements’ reciting that the loan is governed by the laws of the state of Utah.

Back to our story: The lender fired off a motion to dismiss or to compel arbitration. Each of its loans contained a binding-arbitration provision, to which the borrowers had agreed in taking out the loan. Citing paramount federal law, the Federal Arbitration Act, the lender asserted that an enforcement action like this would violate the federal law.

In circuit court, the learned judge was unmoved; he denied the motion to dismiss and refused to compel arbitration. The lender then used a little-known wild card available in arbitration cases: It exercised a statutory right to an immediate appeal of the order refusing to compel arbitration. Note that this wild card runs in one direction only: You can’t appeal an order compelling arbitration; just one refusing to compel.

Today, the Supreme Court unanimously affirms. Justice Chafin, writing for the court, notes that while individual consumers may have “signed” an agreement to arbitrate, the Attorney General never did; nor did the Commonwealth. Under SCOTUS precedent, that means that enforcement actions like this are permissible and the arbitration agreement doesn’t apply. The court goes on to note that under applicable law, the AG has the right to seek relief for individual consumers, even within the contours of a public-enforcement suit like this.

Today’s opinion isn’t technically the end of the game; the affirmance means that the case goes back to the circuit court for trial on the AG’s claims. But you don’t have to read tea leaves as well as Madame Mysterio to know that things will go rapidly downhill from here for the lender.

Attorneys’ fees

The header above is, as I’ve described it, the sweetest two-word phrase known to the law (or at least to lawyers). Today the justices address an exception to the American Rule, which generally provides that each litigant pays his or her own lawyer. The case is St. John v. Thompson, arising from an action for fraud.

According to the underlying complaint, St. John fraudulently manipulated his elderly and feeble neighbor into giving him control over his affairs, including possession of his gun collection (valued at about $100K). The suit alleged that St. John engaged in self-dealing, and the trial court agreed. It ordered St. John to return the guns or pay their value. It further awarded the plaintiffs $100,000 in attorneys’ fees.

On appeal, St. John asserted that the trial court had misapplied the seminal Virginia case on fees in fraud cases, Prospect Development v. Bershader in 1999. The justices today reject this challenge, holding that a fee award based on fraud need not rest on particularly egregious fraud; it’s up to the good judgment of the chancellor, and the Supreme Court finds today that he didn’t abuse his discretion.

The concluding paragraph implicates the sweetest three-word phrase in the law, as the justices remand the case to the circuit court to consider whether to award appellate attorneys’ fees.

Sexually violent predators

Gamesmanship is the theme of Ferrara v. Commonwealth. Ferrara served 15 years in prison, and before his release, a doctor named Hastings evaluated him. Dr. Hastings concluded that Ferrara wasn’t a sexually violent predator, so the Director of Prisons released him.

Ferrara bounced in an out of custody for a couple of offenses after that – petit larceny and, later, indecent exposure – and Dr. Hastings again evaluated him as a possible SVP. The result was the same, and Ferrara left custody on probation.

The last straw was, in the cosmic scheme of things, a seemingly mild violation: He “attended Jehovah’s Witness meetings where children were present, despite warnings from his probation officer not to do so without an approved chaperone.” That put him back in jail. Before his release this time, a different doctor evaluated his record – Ferrara refused to cooperate in person – and found that Ferrara met the criteria for an SVP.

That finding triggered a probable-cause hearing. But when the Commonwealth insisted that Ferrara cooperate with its doctor, he continued to refuse. He was informed that, by statute, his continued refusal could result in his being barred from calling an expert of his own, but still didn’t budge.

The trial court found probable cause and scheduled a jury trial. Ferrara continued to refuse to meet with the new doctor, but at trial, sought to introduce the two sets of findings by Dr. Hastings. The circuit court cited the statute and forbade the evidence. The jury found that Ferrara was indeed an SVP.

Justice McCullough pens the opinion of the court. He first agrees with Ferrara that the circuit court erred in applying the statutory bar at trial. That statute applies in the probable-cause hearing. A different statute, one more favorable to the defendant, applies at trial.

But the court affirms anyway, calling this error harmless. It finds Ferrara’s actions to be gamesmanship, an attempt to play the system. Trial courts have inherent authority to deal with litigants who do that, including by excluding proffered evidence. The justices conclude that if the judge hadn’t made the mistake that he did, he’d still be entitled to exclude the evidence under that inherent authority.

A part of me complains, in a feeble voice, that this conclusion is technically a non sequitur. That is, it doesn’t necessarily follow from the availability of this judicial remedy that the judge would have taken that route. Perhaps he wanted to rule in favor of Ferrara but mistakenly felt bound by the statute that he misinterpreted.

In the end, though, I’ll go along with Justice McCullough’s conclusion. The parties had a fair trial, and this was non-constitutional error.

I’d be remiss if I didn’t mention this delightful turn of phrase in today’s opinion: “The predictable consequences of his refusal to cooperate neither deprived him of a fair trial nor violated due process. Ferrara held the key to unlock the evidence from Dr. Hastings. He chose to keep it in his pocket.”

Criminal law

The final published opinion of the day is Kenner v. Commonwealth, a prosecution for animate object sexual penetration of a child. There are two issues on appeal – one relating to the admissibility of certain computer evidence, and the other relating to the timing of a request to poll the jury.

I will confess that I found the evidentiary issue to be fairly straightforward; the justices affirm a finding that certain pornographic images on the defendant’s computer were relevant to the charges against him. The polling issue was far more interesting, though it occupies only 2½ pages of this 14-page opinion.

At the conclusion of the guilt phase of trial, the jury returned a guilty verdict. The clerk read the verdict and added the familiar query, “So say you all?” Today’s opinion indicated that the jurors “responded affirmatively.”

The court then sent the jury out while it took up sentencing-phase instructions with counsel. The jury then returned and received the court’s instructions, after which the lawyers gave their closing arguments.

At the conclusion of the defense argument, the defense lawyer asked the court to poll the jury to ensure unanimity on guilt. The court denied this request, finding that it came too late; once the guilt phase was over and the sentencing phase underway, a polling request was untimely.

The jury handed the defendant a predictably long prison term. He appealed, and a divided panel of the Court of Appeals affirmed. Today the Supreme Court unanimously affirms the conviction and sentence. In a matter of first impression at this level, the justices weave together a statute, a Rule of Court, and (surprise!) some CAV jurisprudence to conclude that the right to poll the jury on guilt expires when the sentencing phase begins.

The statute describes sentencing as “a separate proceeding.” Rule 3A:17(d) states that “When a verdict is returned, the jury shall be polled individually at the request of a party or upon the court’s own motion.” And the CAV has knitted these two provisions together to conclude that a guilty verdict is final once the court ascertains that it’s unanimous. After that, it can’t be changed in a later phase of the case.

The Supreme Court approves this view of the process in bifurcated trials. Once the sentencing phase begins – and here, it was well underway – it’s too late to poll the jury.

ANALYSIS OF FEBRUARY 4, 2021 SUPREME COURT OPINION

(Posted February 4, 2021) On what I am reliably assured is National Homemade Soup Day, the Supreme Court of Virginia hands down a single published opinion. AlBritton v. Commonwealth is a Tort Claims Act action filed by a prison inmate who fell on a stairwell and sustained significant injuries.

The inmate filed a grievance, but the warden denied it. The prison’s grievance procedure provides for two more levels of review, each with a five-day deadline for appeal. Only after exhausting this process may the claimant file suit under the Act.

AlBritton executed an appeal notice on the third day after receiving the warden’s denial, and a corrections officer notarized it. But the appropriate official, a regional administrator, didn’t receive it within the five-day window. (Indeed, the Commonwealth asserted here that the administrator never received it.)

In the ensuing circuit-court litigation, the court agreed with the Commonwealth that an appeal must be received by the appropriate official within the five-day period to be timely. The court accordingly dismissed the suit for failure to exhaust administrative remedies. The judgment order added two more grounds for dismissal: summary judgment for lack of an actionable defect and for contributory negligence as a matter of law.

Today the Supreme Court reverses and remands the case for further proceedings. It first holds that an inmate satisfies the five-day rule when he sends an appeal within the five-day window. That is, the court applies a mailbox rule rather than a receipt rule. This makes perfect sense, because an inmate can’t control the mail system after he deposits his notice. The court remands the case so the circuit court can adjudicate whether the inmate did, in fact, send the appeal notice within five days.

The justices go on to analyze the two grounds of summary judgment. For each, the court discerns disputed material facts that preclude early disposition. The inmate makes out a triable claim of actionable negligence for unrepaired defects in the staircase. And because he steadfastly denies the allegations of contrib, the trial court wasn’t at liberty to take that issue away from the jury.

Today’s opinion contains several interesting tidbits. The court comes close to deciding a matter of first impression: whether summary judgment may be based on affidavits. There’s plenty of authority on that from circuit-court decisions and treatises, but the SCV has apparently never decided the matter. The question will have to await another day and another appeal, because the Prisoner Litigation Reform Act expressly allows affidavits when pro se inmates make claims.

The next tidbit relates to the nature of the prison’s duty. Today’s opinion notes the incongruity of applying invitee caselaw to prisoners, since they weren’t exactly invited to prison. But the parties didn’t address that issue on brief, so the court doesn’t take it up sua sponte.

The court also declines to extend to the prison context the holdings relating to actionable defects in sidewalks. In my former life as a City Attorney, I learned the narrow window of opportunity available to plaintiffs who claimed injuries due to defects in city sidewalks. Anything under about an inch and a half was too small to be an actionable defect, and anything above about 3” was open and obvious. The justices today cite with approval an earlier holding that a city’s duty to its citizens doesn’t fit in the owner-invitee context.

On remand, AlBritton still doesn’t have a lay-down tort claim. The Supreme Court points out today that the “Commonwealth’s motion for summary judgment did not assert that the alleged defect was open and obvious, thus obviating any duty to make it safe.” The court accordingly declines to address the issue. Expect that to be a major defense at trial, since the nature of the stairway defect may well have been acutely visible.

Three of these four tidbits appear not in the main body of today’s 18-page slip opinion, but in footnotes. Always read the footnotes! That’s where the goblins usually hang out.

ANALYSIS OF JANUARY 21, 2021 SUPREME COURT ORDER

(Posted January 21, 2021) After four weeks’ worth of dry wells, we strike at least some water today as the Supreme Court of Virginia issues a published order in a suit over a decedent’s estate. The case is Platt v. Griffith and comes to us from Henrico County Circuit Court.

The testator was a doctor on the Northern Neck who cared for patients for over 50 years before retiring. He made a will in 2008 that left his 700-acre family farm to a trust for the benefit of his second wife, with a ten-acre parcel going to each of his two daughters from a first marriage.

Two years later, the doctor revised his estate plan with a new will. This one gave the two daughters 20 acres each from the farm, and gave the rest of the estate to the second wife and the doctor’s son. It also gave the second wife all of the doctor’s other real and personal property.

Four years after that, the doctor executed a deed of gift, conveying all personalty on the farm and in a Richmond home to his second wife. And shortly before his death in 2016, he executed a second deed of gift. This one was a whopper; it conveyed the entire 700-acre farm to his son, reserving a life estate to his second wife. There was no mention of the two 20-acre bequests to the son’s sisters.

The sisters filed suit against their brother and stepmother, alleging “a breach of fiduciary duty, waste of the estate, constructive fraud, conversion, conspiracy to commit conversion, business conspiracy, and undue influence.” The suit alleged undue influence and conversion of $13 million in assets, and sought rescission of the deeds of gift, a money judgment, and an accounting.

The circuit court dismissed the suit, finding that any claims such as those asserted by the sisters belonged to the estate, not to them as jilted potential beneficiaries. Today the Supreme Court unanimously affirms, finding that the sisters’ claims “are inherently on behalf of the estate as they would have belonged to [the doctor] during his lifetime.” In such situations, only the personal representative has standing to sue.

But wait; doesn’t that mean that the doctor’s son, who qualified as personal rep, would be suing himself? The sisters argued that no personal rep would undertake such a suit. To this understandable question, the justices have a simple reply: “the appellants have failed to file a petition to remove and replace [the son] as personal representative of the estate.”

In a footnote, the court observes that the sisters’ claims to the 20-acre parcels never vested because the farm wasn’t part of the doctor’s estate at his death. This is called “ademption by extinction”: A specific bequest in a will is extinguished if the testator no longer owns the property at his death. I will gently suggest that you can use this information to win some bar bets. Never let it be said that reading VANA is an unproductive expenditure of time.

ANALYSIS OF DECEMBER 17, 2020 SUPREME COURT OPINION

(Posted December 18, 2020) I’m a day late in getting to analysis of yesterday’s Supreme Court opinion in Palmyra Associates v. Commissioner of Highways. I have a decent excuse: I spent all day in an actual courtroom with an actual judge hearing actual witnesses. No, really; I did.

Palmyra Associates is an eminent-domain appeal involving an intersection project in Downtown Palmyra, in Fluvanna County. The Commissioner decided to convert the previous conventional intersection into a roundabout. (I always thought that roundabout was a British term for what we Yanks call a traffic circle. But I suppose its appearance in a published SCV opinion means it’s arguably mainstream here now.) Palmyra Associates owned a large tract at the intersection, and the project claimed about a third of an acre from it for the take and two easements.

The landowner designated one of its owners as a trial witness, indicating that he would testify to a figure of $545K for damage to the residue. The Commissioner convinced the trial court to exclude any such testimony in limine, because it was based on the loss of a one-acre pad site for future development.

The owner still got to testify at trial; he opined that the residue was damaged by the coincidental figure of $545K due to a 25% damage to the front 5.5 acres of the land. He valued that land at $2.2 million, and when you do the math, sure enough, that comes out to $545K.

The condemnation commissioners returned a split report. Three of them, those who had been nominated by the landowner, reported take compensation of about $107,000 plus $350,000 in damage to the residue. The two commissioners nominated by the condemnor reported the identical figure for the take, but residue damages of only $125K.

At this point, my mind is screaming at these folks to resolve the $225K difference peacefully. Perhaps they tried, but they failed. The Commissioner filed exceptions, arguing that the property owner’s testimony should have been struck, since it obviously matched his opinion that the trial court had excluded before trial. The court then invited the parties to suggest an appropriate course of action: “confirm the award of the take only, or grant a new trial.” The parties agreed to a final order on the undisputed figure for the take, so the court did so. It then set aside the residue-damage award in its entirety, and entered final judgment. The landowner got a writ.

The justices consider three issues in yesterday’s opinion. First, they rule that the circuit court acted within its discretion in excluding evidence of loss of development of a pad site. The court notes that the plans to develop the property were ten years old and contained several unaddressed conditions, including site-plan approval. Under prior caselaw, site-plan approval is ministerial and development is by right. Site-plan approval thus ordinarily isn’t a roadblock to consideration of development plans. Here, the court nods to that prior caselaw but finds that the lack of a site plan is relevant, though not dispositive.

Second, the Supreme Court affirms the trial court’s decision to strike the owner’s valuation testimony. The court holds that the trial testimony “was necessarily rooted in a lost ‘pad site.’” This was the evidence that the court had excluded before trial; merely dressing it up as an alternative theory didn’t make it admissible.

Finally, the court takes up the landowner’s challenge to the circuit court’s post-trial decision to put the parties on terms to confirm the take compensation only, or order a new trial. The justices find this issue waived for appellate review, because the landowner consented to the procedure. That’s invited error, and appellate courts decline to address assignments like that.

The opinion is noteworthy for a couple of observations in footnotes. The first deals with preservation: The Commissioner argued that the landowner had defaulted the first issue, relating to the exclusion of pad-site evidence, by not including it in post-trial exceptions. The court rejects that contention because this was a pre-trial ruling, and the condemnation commissioners never heard the evidence. The purpose of exceptions is to ask the judge to revisit trial issues; not pretrial rulings.

Next, the court points to a particular dispute among its judicial ancestors in a split 1972 decision. There, one justice had urged that a landowner may not treat land “as divided into lots when in fact it is undeveloped acreage.” More recent opinions have held that the property should be valued considering its current development potential, considering reasonable adaptations to achieve its highest and best use. The approach that the court takes here means that the court need not resolve, and expressly reserves for another day, the question “whether and if so, to what extent, a landowner may offer evidence that the property’s fair market value would be affected by a reasonable probability that land would be divided into lots.”

Yesterday’s decision continues a long dry spell for landowners in condemnation appeals. My quick scan just now indicated that in the past three years, only one landowner in an eminent-domain or inverse-condemnation appeal has prevailed in the Supreme Court: Helmick Family Farm v. Commissioner of Highways from 2019. In every other such appeal decided in that span, the court has ruled in favor of the condemnor.

ANALYSIS OF DECEMBER 10, 2020 SUPREME COURT OPINIONS

(Posted December 10, 2020) The Supreme Court of Virginia today issues three published opinions. All three are real eye-openers.

Torts

Back in 2001, the Supreme Court ruled that a litigant could impeach the testimony of a defense medical expert by pointing to financial records showing how much the expert received from the insurance company for consultations and testimony. The case was Lombard v. Rohrbaugh, and coined the name “Lombard materials” to indicate the relevant financial records.

Today’s decision in Graves v. Shoemaker sands a rough edge in the Lombard doctrine. In this case, a defense lawyer hired the doctor, who prepared a report favorable to the defense. The doctor billed the lawyer; the insurance company paid the bill.

The plaintiff got the doctor’s Lombard materials and sought to introduce them at trial, because they indicated over $800,000 in fees over a seven-year period. The trial judge balked, accepting the defense argument that the lawyer, not the insurer, had hired the doctor. The court allowed questioning about how many times the doctor had testified for this lawyer, but that sexy $800,000 figure wasn’t coming in.

The jury evidently liked what the doctor had to say, because in an admitted-liability case, it awarded the plaintiff a small fraction of her medical bills in damages. On appeal, the Supreme Court today reverses and orders a new trial, ruling that the court should have allowed the Lombard cross-examination. The court rules that the nature of the relationship between an expert and an insurer is the important factor; not the identity of who originally hired the expert. That identity is a relevant factor, but not determinative, as the circuit court had held.

Because a witness’s credibility is always a matter for the jury, the court finds that this error matters. On retrial, the plaintiff will get to wave the years’ worth of bills to try to convince the jury that the expert is a professional witness. (Indeed, today’s opinion describes him as a “medicolegal specialist,” a term that will no doubt come up in future cross-examinations.)

This case is noteworthy because the court finds an abuse of discretion. That’s one of the more lenient standards of appellate review, but under these circumstances, the justices couldn’t stomach the idea of keeping this long-term relationship from the jury.

Wills

The term “fair market value” is a familiar one to lawyers. It operates in many contexts, including taxation, eminent domain, and domestic relations. The law usually defines the term as “the price that a willing, non-compelled buyer would pay to a willing seller who is under no compulsion to sell.”

In many of those contexts, the courts have presided over litigation about the fair market value of a particular real parcel. In Wilburn v. Mangano, the Supreme Court today explores its use in the context of a contract stemming from a provision in a will.

A woman we’ll call Mom signed a will that left her home to her three daughters, and gave her son an option to purchase it from them within a year after the probate of Mom’s will. The will stated that the purchase price would be equal to the County tax assessment of the property. Three years later, Mom executed a codicil, changing the purchase price to “the fair market value at the time of [Mom’s] death.”

After Mom died, her son notified his sisters that he was executing the option to purchase. He also sued to invalidate the codicil, apparently believing that the assessment was much lower. The case went to trial, and the court ruled that the codicil was valid; fair market value it is.

But the son balked at paying the full fair market value. The sisters forked over an appraisal if $311,000 and demanded payment: “You want it, fine; you pay for it.” That price was too step for the prospective purchaser’s blood, so he declined to follow through with the sale.

That generated a second suit, as the sisters sued for specific performance. The brother demurred, claiming that the term “fair market value” was too vague to ensure a meeting of minds on the sale price. The sisters answered that it wasn’t too vague for all those other contexts – taxation, eminent domain – and it should serve just as well here.

The circuit court agreed with the brother. Despite the earlier final judgment that the codicil was valid, it found that the description of the purchase price was too indefinite to make a binding contract. The court dismissed the suit. Today, the justices affirm.

The Supreme Court observes that “there is no single, fixed approach to determine fair market value, as applied by appraisers or Virginia courts.” It rules that the purchase price here “cannot be known with certainty absent a more specific means for determining it being provided in the codicil.” Because there’s no precise purchase price, the son’s “strike” of his option didn’t create a binding contract, so the circuit court correctly refused to compel him to buy.

This morning I received a note from Kyle McNew, an appellate pal who perceives that this ruling may have unintended consequences in many areas. He points out that agreements to purchase at fair market value – a figure that courts have been calculating for generations in other contexts – are now void. My pal is right. If you advise clients in matters of contract, wills, employment, securities law, corporate operating agreements, and a host of other fields, you now have a lot of work to do. You need to comb through any documents that you crafted to see if you inserted the term fair market value. If it’s there, there’s a good chance that the Supreme Court just invalidated your document.

Kyle finally observes that the subtext of the court’s view during oral argument was a desire to ensure certainty in contracts. Assuming that to be a correct read, the court has just created the opposite, at least for now. In reliance on an extensive body of caselaw interpreting fair market value over the years, lawyers have for decades been building that term into agreements of various natures. All those lawyers just fainted, realizing the chaos that this ruling creates for their files. Get to work, folks!

Environmental law

Anybody with a pulse knows that environmental law has undergone massive changes in the past century. The question is whether Virginia property-rights law has kept up. We find out today, in Johnson v. City of Suffolk.

The plaintiffs in this litigation hold oyster leases in the Nansemond River, down here in Tidewater. Those leases give the oystermen the right to plant and harvest oysters in designated areas. They filed an inverse-condemnation suit, alleging that the City of Suffolk and Hampton Roads Sanitation District operated sanitary sewer and stormwater systems that were knowingly inadequate.

The result, the oystermen pleaded, was a calamity: On occasions, the systems would fail, releasing immense volumes of either stormwater or raw, untreated sewage into the river and over their oyster beds. Both types of discharges damaged the beds, and from time to time, the State Department of Health would close the river to harvesting, basically putting the oystermen out of business.

The City and the District both demurred, relying on a century-old ruling from the SCV, later affirmed by SCOTUS, Darling v. Newport News, 123 Va. 14 (1919). There, the Robes had noted that the rivers are the natural sewer for communities, and people who live on the water, and particularly those who farm oysters under it, must live with the occasional inconvenience of periodic pollution. The 21^st Century trial judge agreed with this argument, perhaps feeling that a circuit court had no right to overturn Supreme Court precedent, no matter how hoary. The court dismissed the action.

The Darling decision held that the General Assembly had not restricted the “ancient and undoubted right” of localities to pollute, and its intent to do so cannot be presumed “in the absence of a clear and explicit statute indicating such purpose.” The oystermen argued on appeal that the generations of Virginia environmental law since the 1930s had done just that, prohibiting localities from polluting and stating an express public policy in favor of clean water. They also noted that the City and the District had endorsed consent orders that acknowledged the problems with their systems, in which the entities promised to, shall we say, clean up their acts.

In this context, you might expect to see a landmark decision today that embraces modern pollution-control law and technology and salutes the now-unmistakable public policy, while reversing and ordering the case back to circuit court for trial. If you expected that, you would be mistaken.

Today the Supreme Court turns its collective back on all that environmental law, all but ignores the express public policy – the policy manages only to elbow its way into a footnote on page 8 of the slip opinion, and is never seen again – and takes us back to the pollution tableau of 1919. It does so by ruling that the oystermen have only a leasehold interest; not fee simple title. That means that the City and the District are not answerable to the oystermen for the loss of their livelihoods.

The leasehold-only distinction will come as a cruel blow to the oystermen, for two reasons. First, by statute, property for eminent-domain purposes is defined expansively; it includes “any right, title, interest, estate, or claim in and to” land or personalty. The court has today placed leasehold interests on a lower tier than the statute would indicate. I can’t say whether this ruling indicates lesser eminent-domain protection for tenants going forward.

Second, during the Eisenhower Administration, the Supreme Court ruled that the taking or damaging of leased oyster beds – essentially, the very claim raised here – was compensable in an inverse condemnation proceeding. Town of Cape Charles v. Ballard Bros. Fish Co., 200 Va. 667 (1959). The court today brushes that holding aside, noting that the Ballard Bros. oyster beds were destroyed by a dredging project, an act that “differs from an asserted right to raise them in favorable environmental conditions.” This passage contains no mention of the oystermen’s original claim of a physical-invasion taking.

How you view this decision depends on your point of view. I suspect that you can discern mine quite easily. I regard threats to the environment to be among the most crucial issues of our time, and it’s dismaying to see the Supreme Court of my state treat this kind of threat so dismissively. A publication covering property rights might well describe this ruling with the headline, “Court Narrows Oyster Lease Rights.” That headline would be correct. Environmental advocates might describe it as, “Court Sides with Polluters.” That headline would be correct, too. As I see it, the court has to adopt a strained view of environmental and eminent-domain law to enable it to rule as it does.

ANALYSIS OF DECEMBER 3, 2020 SUPREME COURT OPINIONS

(Posted December 3, 2020) Here’s a novelty: The Supreme Court of Virginia this morning hands down two 4-3 decisions. Ah, dissents! That wonderful spice in an otherwise drab diet of unanimous opinions! Let’s dig in.

Criminal law

Virginia has a statute that parallels the federal Double Jeopardy prohibition. But a careful look at the two provisions reveals that they’re slightly different. That difference is the battleground for today’s decision in Evans v. Commonwealth.

This decision combines two separate appeals, each of which has essentially the same facts. Both defendants received summonses for carrying concealed weapons; both were convicted of the misdemeanor charge. Prosecutors then obtained felony indictments for possession of a firearm by a convicted felon.

Both defendants moved to dismiss, citing this language:

If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others.

Both trial judges looked at a 2002 CAV decision and held that the prosecutions were for different offenses, since each required evidence than the other. The courts accordingly convicted the defendants, and a panel of the CAV affirmed.

Justice McCullough pens today’s majority opinion, joined by the chief justice and Justices Mims and Kelsey. He notes that difference that I mentioned above, and then explores the court’s jurisprudence on it. Federal law, relying primarily on the 1932 Blockburger decision, turns on the elements of each offense. The statute, as you can see, doesn’t work that way; it prohibits subsequent prosecutions for “the same act.”

The court observes today that on occasion, its prior rulings (and those of the Court of Appeals) have strayed into Blockburger’s neighborhood. The court today corrects that error, expressly overruling one of its own decisions and two from the CAV in favor of this approach:

whether an act at issue is the “same act” under Code § 19.2-294 turns on a common sense assessment of whether (1) the act in question is a separate volitional act, (2) the acts are separated in time and place, and (3) the act differs in its nature.

This is looking promising for today’s appellants. While the elements of the two charges may be different, you have to agree that both prosecutions stemmed from single acts: possessing a concealed weapon by a felon. These convictions are headed for reversal.

Except they aren’t. A bare majority of the court applies this test to these facts and comes up with two separate acts. The court concludes that possessing a weapon is a different act from concealing one, in the same way that brandishing a weapon is different from concealing it. Four justices – the magic number at Ninth and Franklin – thus vote to affirm the convictions.

Senior Justice Millette – sitting in for Justice Chafin, who was on the Court of Appeals when these cases came through – writes a dissent on behalf of Justices Goodwyn and Powell. The dissent agrees that the statute is different from the Double Jeopardy Clause of the U.S. Constitution. They agree that Virginia caselaw has strayed into the wrong analysis in the past, and they agree that it’s a good idea to right that wrong.

But the dissenters draw the line at the majority’s analysis of the correct standard. Specifically, where did the “differs in its nature” factor come in? It isn’t in the statute, and the dissent perceives that the majority has just stepped into the same mud puddle that it just claimed to walk away from. The dissent views “the act” in each case to be the same, and would hold that the felony prosecutions are barred. The majority’s approach, they believe, substitutes inference for evidence, as no one in either case testified that the defendants separately possessed the concealed weapon.

I won’t hide my sentiment here: I believe that the dissenters are right. In my view, the majority strains to find a way to avoid a straightforward application of the statute. Suppose the original prosecution were for firing an arrow from a bow within a town’s limits, and the town secured a conviction for that misdemeanor. Could the local prosecutor later indict the same defendant for a homicide offense if that very arrow struck and killed someone? After all, under what I see as the majority’s approach, the firing of the arrow is a discrete act from its impact with the victim’s chest.

I perceive both offenses – possession of a concealed weapon by a felon, and homicide by firing a bow-and-arrow in town – as a single act.

There’s a short unpub today in Goldberg v. Commonwealth, an appeal of a DUI conviction from Virginia Beach. The issue on appeal is whether the learned trial judge erroneously admitted evidence of a horizontal gaze nystagmus test. A jury clobbered the defendant. The Court of Appeals assumed without deciding that the test was improper, but affirmed anyway because of the overwhelming evidence of guilt. (Exhibit A: The defendant’s statement to the officer, “the higher alcohol content of the malt liquor got me.” What use is a right to remain silent if the suspect won’t use it?)

Today the Supreme Court rules that the CAV got it right, including evaluating the admission of the evidence under the standard for non-constitutional harmless error. (Constitutional analysis would have required a presumption that the error wasn’t harmless.) The court thus affirms in a breezy two-page per curiam order.

Property

The court disposes of the oldest undecided appeal on its docket today. It entertained argument in Jones v. Phillips during the April session, seven and a half months ago. The complexity of the opinion tells you why it took this long.

I intentionally used the word disposes in the paragraph above because this decision comprises 42 pages about the meaning of the word disposition in a statute. It’s a garnishment dispute that follows a judgment – we don’t know how large – by a former employee against the CEO of her former company.

The CEO and his wife owned a home that I assume was in Powhatan County. They took title as tenants by the entireties, as most spouses do. But in 2010, they conveyed the property into their individual revocable trusts, with 99% going to the wife’s trust and 1% to her husband’s. Perhaps the litigation by the former employee played a part in that decision; the opinion doesn’t say.

Years ago, a conveyance like that would have severed the tenancy by the entireties, leaving the property vulnerable to a judgment creditor like the employee. But the General Assembly amended the Code a while back, providing that spouses can make this kind of conveyance and reserve the entireties protection.

Alas, Hephaestus had other plans; he destroyed the home by fire in 2018. The home was insured, of course, and the insurer started making payments to the unfortunate homeowners. The employee got wind of this; she obtained a garnishment summons and slapped it on the insurer.

What happens now? Well, to answer that, let’s check the language of that tenants-by-the-entireties statute: It continues entireties protection for “any proceeds of the sale or disposition of such property …” The property owners claimed the benefit of this protection, and moved to quash (I’ve secretly always preferred to say, “moved to squash,” because that sounds more satisfying) the garnishment.

The creditor replied that the exemption didn’t apply because there had been no “sale or disposition” of the home. Destruction, yes; but the statute doesn’t say that. A circuit-court judge agreed with the homeowners and quashed the summons. The Robes granted a writ to review the matter.

At this point, you’re probably expecting a sedate, even dry discussion of debtor-creditor law that might interest only grammar geeks like me. But no; the jurisprudential fur flies in competing opinions by Justice Kelsey, who writes for the majority, and Justice Goodwyn, who pens a dissent for Justices Mims and Powell.

The bare majority of the court votes to reverse and send the case back for enforcement of the garnishment summons. Citing Black’s Law Dictionary, it notes that disposition involves “the act of transferring” something. The court rules that there has been no disposition of the property when title hasn’t transferred to anyone. The two trusts still hold title, and the spouses are still entitled to possession and enjoyment of what’s left of the property. This, the majority rules in meticulous detail, isn’t a disposition.

The dissent chides the majority for adopting a narrow, legalistic definition of the word disposition. It points out that an earlier edition (from 1957) of Black’s had reported a definition that included the term “destruction of property.” Well, you have to admit that that seems to fit. Justice Kelsey’s riposte in the opinion of the court is that the 1957 definition was based on a single outlier decision from the Eighth Circuit in 1931 that no one had ever seen fit to cite (other than the editors of Black’s, of course). Plus, the editors of the dictionary’s seven ensuing editions saw fit to toss it out of the book.

That’s just one round of the 15-round heavyweight fight here; there are plenty of other jabs and counterpunches on each side. As with the Evans case above, I’ll mention my view of the matter: I agree with the majority. I believe that interpreting the word disposition to include a situation like this requires a strained reading.

If you’re not a grammar geek, you may want to skip this next part – but that would mean that you’re not one of the cool people. You may as well read on. The word dispose comes from Latin roots, dis-, meaning apart, and ponere, to put. Thus, to dispose of something is to put it apart from something else – in this case, its former owner. Its cousins include interpose, to put between; suppose, to put under; impose, to put upon; and depose, to put down. (Insert deposition joke here.)

In my opinion, the word that the homeowners are searching for is conversion, from roots meaning “to turn around.” That’s the process of changing one asset into a different form. But that word isn’t in the statute.

ANALYSIS OF NOVEMBER 25, 2020 SUPREME COURT OPINION

(Posted November 25, 2020) In the spirit of the holidays, the Robes by the banks of the James give us a gift in the form of a published opinion this morning. Today’s ruling in Sheehy v. Williams will fascinate appellate lawyers; the rest of you may want to stick to planning tomorrow’s menu. Even so, I’ll try to make the prose sparkle.

The facts underlying the judgment are largely immaterial to today’s dispute. Williams got a judgment against Sheehy in circuit court for about $51,000. The clerk duly docketed the judgment, creating a lien in favor of the creditor against any real estate that the debtor owned in the city.

The debtor did indeed own a home there. She noted an appeal and eventually got a writ. But while the appeal was pending, after the writ grant, the debtor contracted to sell her home.

Dirt lawyers know well that, to convey good title to the buyer, that lien has to be addressed. The home buyer’s lawyer, who served as the closing attorney for the sale, picked up the judgment in a title examination, since it’s within the chain of title. He wrote to the judgment creditor’s attorney, asking for a payoff figure for the judgment.

The creditor’s lawyer wrote back, specifying an exact payoff figure of about $54K. The closing attorney prepared the usual collection of checks, including a payoff for the judgment. He sent the creditor’s attorney a check for the full payoff amount, along with a copy of the letter in which he had provided the figure. Next to the circled payoff figure on that letter appeared a set of initials that correspond to the judgment debtor’s name.

Uh-oh. The creditor’s appellate lawyer is no schnook; he immediately recognized that the debtor had evidently authorized a voluntary payment of the judgment. Under well-established Virginia caselaw, doing that moots the appeal. The debtor can still pursue the appeal if the payment is involuntary – for example, the creditor has obtained a garnishment summons or has initiated a creditor’s bill to sell real estate. But here, no one had forced the debtor to act; she just wanted to sell her home.

The creditor moved the Supreme Court to dismiss the appeal as moot. A month later, the parties presented oral argument on the merits to the full court. As you can imagine, the judgment payoff was the primary topic of discussion. At one point, Justice Kelsey directly asked the debtor’s lawyer if the debtor authorized the payoff. The lawyer said he didn’t know.

This puts the appeal in a perplexing posture. The potentially fatal event occurred well outside the trial-court record. The justices have only the appellate lawyers’ representations about what had happened a month before. Finding that that’s not enough to go on, the court takes the rare step of holding the appeal in abeyance and temporarily remanding the case to circuit court for factfinding on the circumstances of the payoff. Today’s opinion posits eight specific questions for the court to address. But the language of the opinion telegraphs clearly that if the facts come out as one would expect, the justices will eventually dismiss this appeal under the voluntary-payment doctrine.

What could the debtor have done to preserve her appeal here? Again, for dirt lawyers, there’s an easy answer: an escrow agreement. The debtor could have approached the creditor and asked for an arrangement whereby someone – possibly the closing attorney, who didn’t represent either party to this appeal – would hold the money in trust, awaiting the outcome of an appeal. For the creditor, that’s the functional equivalent of a supersedeas bond, making collection easy in the event of an appellate win. For the debtor, it allows her to sell her house without punting the appeal. But that’s not what happened.

This circumstance isn’t likely to occur often. But for appellate lawyers, this is an important refinement of the voluntary-payment doctrine.

ANALYSIS OF OCTOBER 22, 2020 SUPREME COURT OPINIONS

(Posted October 22, 2020) Let’s divert our attention from the most important nationwide event these days – I’m referring to the World Series, of course – to peer into today’s crop of four published opinions from the Supreme Court.

Government data collection

The same dance partners return to the court today, after a two-year absence, in Neal v. Fairfax County Police Department. This is a challenge to the department’s passive use of automated license-plate recognition readers, usually mounted on police cars. The readers record every license plate that comes close enough, and stores that information in a database.

I mentioned passive use, and the distinction is worth noting here. Police can use the system actively, by checking to see if a given license plate has been reported as stolen or involved in an abduction. That’s hunting actively for a Bad Guy. Passive use merely records the information and stores it away in a metaphorical dungeon for 364 days. After that, the custodian has to purge it. This passive use is what’s in issue today.

Two years ago, The Robes sent the case back after ruling that the photos of a given plate and a given car can constitute “personal information.” The justices directed the circuit court to determine whether the license-plate-reader system met the statutory definition of an information system. The trial court held that it did, and enjoined the passive use. The delighted citizen submitted a $600,000 attorneys’-fee petition; the judge awarded only $75K.

Both parties appealed – the citizen wanted all those fees, while the department wanted to avoid being probably the only agency in America to suffer a loss on this issue – and the justices granted both petitions. Today the court reverses again, this time entering final judgment for the police department. They reach this conclusion because the challenged system only stores the license plate information. It doesn’t list who the plate is registered to; to find that, an officer must log out of the reader system and log into some other database managed by a separate entity – for example, the Department of Motor Vehicles or the State Police. Because the plate-reader system alone doesn’t contain that information, it doesn’t meet the statutory definition.

The bad news doesn’t end there for the citizen; this ruling means that he loses his entire fee claim, because he wasn’t a prevailing party. As for the circuit court, it might feel whipsawed in this case. It first ruled in favor of the department, only to have the Supreme Court reverse; it then ruled for the citizen, only to be reversed again.

Justice McCullough, writing for a unanimous court, achieves something special today. I’m a strong proponent of personal-privacy rights. I wholly dislike these automated readers, which I see as a form of Big Brother surveillance. But as Justice McCullough notes, the court’s task here “is not to reach the right public policy balance by weighing competing demands for efficiency and security against considerations of privacy. Our duty is more modest: we must determine from the text and structure of the Data Act where the legislature has drawn the line.” He’s absolutely right, and I (perhaps grudgingly) find no fault with the analysis in his opinion today.

Taxpayer suits

The right-for-a-different-reason doctrine gets a workout in McCrary v. Jenkins. This appeal challenges a local sheriff’s agreement with federal Immigrations and Customs Enforcement agents to ask immigration-status questions of arrestees, and take related actions. Two citizens challenged the agreement, suing the sheriff and the county board on the basis that local funds were being improperly used for this work.

The sheriff demurred, asserting federal preemption, lack of standing, and the sheriff’s right to enter into the agreement. The board also demurred, raising standing and the contention that the sheriff acted within his authority. The citizens field responsive briefs that included a request for leave to amend should the court find that their allegations were in any way insufficient.

The circuit court sustained the demurrers and dismissed without leave to amend. It ruled that the sheriff’s action was lawful, and evidently didn’t address the standing issue.

But the Supreme Court does. Standing is a jurisdictional issue; today’s opinion points to caselaw holding that a suit filed without standing is “a legal nullity.” The court accordingly takes up that issue first.

Despite what you might think, there is such a thing as taxpayer standing in Virginia. The justices have handed down several decisions recognizing the right of taxpayers to sue localities where they challenge public expenditures. The taxpayers here cite one of those rulings, noting that it imposes a “minimal requirement” to allege the expenditure of public funds. They specifically asserted that the sheriff acted outside his authority, and because the county board allotted funds to run his office, that satisfied the minimal requirement.

Not enough, the Supreme Court rules today. Calling this a “vague, speculative, and conclusory” allegation, the court finds that the taxpayers don’t identify any specific local funds that went to this project. That means that they haven’t established taxpayer standing.

Normally, this holding would call for remand for the taxpayers to pursue that amended pleading, so they could make more specific allegations. But there’s a bomb in footnote 3 on the last page of today’s opinion:

Given our ruling regarding standing, the action filed by McClary and Stockton is a legal nullity, and the appellants’ assignment of error concerning the circuit court’s failure to grant them leave to amend that action is moot.

Appellate lawyers will likely read this twice or more to make sure they get it. The Supreme Court rules that because the suit is a nullity, it can’t be amended to correct the pleading deficiency that makes it so. This holding is comparable to those in suits filed by an estate, which isn’t a legal entity. But really, in this context the taxpayers should have had at least one chance to clean up their pleading, and I’m quite surprised that the justices have barred them from doing so.

Is there a way around this? Can the taxpayers seize on this nullity ruling and file a new suit on the same cause of action, where they beef up their fiscal allegations by including descriptions of specific expenditures and sums? Maybe, though I’d hate to have to tangle with the fire-eating dragon that is Rule 1:6 on claim preclusion.

Local governments

We find several interesting tidbits in Dumfries-Triangle Rescue Squad, Inc. v. Prince William County. This is a proceeding by the county to dissolve the squad’s corporate existence. The squad’s primary asset is a parcel of land with a rescue-squad station on it, valued at $1.6 million. That’s enough to get most people’s attention.

The squad incorporated during the Eisenhower Administration with stated purposes to “assist in the saving of life, administer first aid and teach methods of safety.” (Because of the squad’s salutary purpose, I’m going to forgive the absence of the Oxford comma there. Also, the lawyer who drafted it back then has probably gone on to that great appellate court in the sky. Let’s be gracious.) It provided rescue services in the county for decades, in return for financial support.

Three years ago, the county decided to get in on the action. It created its own Fire and Rescue System and terminated its contract with the squad. But the county didn’t stop there: Citing a statute giving it authority over rescue squads, the county filed an action to dissolve the squad’s corporate existence and to force a sale of its assets, including the valuable land.

The squad filed a demurrer and special plea, challenging the county’s authority to impose the corporate death sentence upon it. The circuit court overruled the demurrer and plea and entered summary judgment for the county, directing a receiver to wind up the squad’s affairs and distribute its assets to organizations providing similar services. Pouring salt in the wound, the court refused a motion to stay the judgment pending appeal.

The justices were moved by this haste; they granted the requested stay and took up the case on the merits.

To see how we got to this point, let’s look at the language of the statute that the county cited so lovingly. To clarify one of the points I’m going to make, I’m going to insert bracketed numbers to indicate parallel provisions:

An emergency medical services agency established pursuant to this section may be dissolved [1] when the local governing body of the county, city, or town in which the emergency medical services agency is located determines that the emergency medical services agency has failed, for three months successively, to have or keep in good and serviceable condition emergency medical services vehicles and equipment and other proper implements, or [2] when the governing body of the county, city, or town for any reason deems it advisable.

My first thought upon reading this was who on Earth wrote that statute? Translated, it says that a locality can dissolve an EMS agency (1) when the agency doesn’t keep up its equipment for three straight years, or (2) whenever the locality feels like it. Why is the first option in there, when the second one is so comprehensive? Hmmm?

Well, it turns out that the patron of the bill that created this statute comes from my fair city of Virginia Beach, so maybe I’d better keep my head down after posting this. Let’s get back to our appellate story.

The decisive language for today’s ruling is “established pursuant to this section.” The justices observe that there’s no way the squad could have been established pursuant to this statute, because the act dates only to 2015, while the squad is over 60 years old. This means that the county can’t rely on these provisions to snuff out the squad’s corporate existence and liquidate its assets. It can, of course, decline to continue its contract for provision of rescue services; that doesn’t seem to be in issue in this appeal.

Readers of today’s opinion, authored by Justice Powell for a unanimous court, will see a passage on page 9 noting that the county cited three circuit-court opinions in support of one of its contentions. Don’t try this at home, folks; like water, decisional authority flows downhill. You can’t cite a trial-court opinion as authoritative in an appellate court. I can think of only three uses for citing a circuit-court decision in the Supreme Court: First, to establish res judicata in the event of subsequent litigation between the same parties; second, for its persuasive value, if the learned judge has set out a particularly scholarly opinion; and third, to establish a split between two or more circuits.

The result of today’s ruling, reversing and entering final judgment for the squad, is that the squad gets to keep its corporate existence and, more important, its land. One wonders what can be done with that property now. Today’s opinion notes that the squad has commendably allowed the county to use the station for free during the pendency of this case.

Equity

An assignment of life-insurance benefits forms the heart of the dispute in Wood v. Martin. A man we’ll call Husband obtained a seven-figure life-insurance policy while married to Wife. The marriage soured a few years later, and the spouses entered into a settlement agreement that a circuit court eventually ratified and incorporated into a divorce decree.

The relevant provision of the agreement provided that Husband would maintain Wife as a 50% beneficiary on the policy even after the divorce. The obligation was to endure as long as Husband owed spousal support, or until the couple’s youngest child finished college or turned 23.

A few years later, Husband found himself on the wrong end of a contempt citation for sloughing off his obligations to Wife. The court tossed him in jail, allowing himself to purge the contempt by satisfying various support obligations, including telling Wife about the named beneficiaries on the policy.

The story then takes a tragic turn: Husband changed the beneficiaries on the policy, cutting Wife out entirely, and two days later took his own life.

Because the divorce-related obligation hadn’t expired yet, Wife filed a suit for declaratory judgment, naming the new beneficiaries and the insurance company. The company paid the disputed proceeds into court and was dismissed from the litigation. Wife also dismissed her request for an injunction and the parties settled down to litigate their in rem claims against the money.

The circuit court ruled in favor of Wife, awarding her the principal and accumulated interest. The other beneficiaries appealed, and today the Supreme Court affirms. The court rejects the argument that Wife’s claim was barred by a statute governing legal claims. This is an equitable claim, the court holds, and Wife is entitled to enforce her chose in action in a court of equity. As there are no plausible equitable defenses to the circuit court’s relief, the circuit court correctly allocated the disputed amount to Wife.

ANALYSIS OF OCTOBER 15, 2020 SUPREME COURT OPINIONS

(Posted October 15, 2020) After three barren Thursdays, we have opinions today from The Robes by the James. The Supreme Court of Virginia issues two published opinions today, plus one unpublished order.

Workers’ Compensation

An employer wins what may be a temporary victory in an injury-by-accident case today. The appeal is Alexandria Public Schools v. Handel. The claimant is a school teacher who was injured when she slipped and fell after stepping in a puddle of water in her classroom.

Her injuries were bad enough to warrant an ambulance ride to a hospital. She eventually filed a comp claim for “injuries to her right ankle, knee, hip, shoulder, neck, and back,” as today’s opinion reports.

Visits with two orthopedists revealed a nerve injury to the shoulder, which is the only injury at issue in today’s opinion. A deputy commissioner concluded that there was a causal connection between the undisputed accident and the shoulder injury, so the teacher got an award of benefits. The full commission and the Court of Appeals agreed.

But the Supreme Court unanimously vacates the award and remands the case today. The Court of Appeals had approved the finding based on the conclusion that

any injury causally connected to the accident—even if not connected to the sudden or mechanical change—is compensable. In other words, a claimant does not need to prove a structural or mechanical change in every part affected by an obvious accident as long as there is at least one sudden or mechanical change and each injury is caused by the accident.

It’s this analysis that leads to today’s remand. The Supreme Court holds that an “any injury suffices” approach is incorrect; the claimant must prove a connection between the accident and the specific injury. It remands to the CAV to address the claim in this light. It’s possible that that court will send it back down, since this calls for a factual determination. At that hearing, the employee may or may not be able to furnish the required proof of a causal connection.

Corporate stock

Today’s opinion in Day v. MCC Acquisition addresses the interplay between a statutory interpleader proceeding and the old equitable doctrines that preceded that statute. At issue are uncertificated shares of stock in Trigon Healthcare, the successor to Blue Cross/Blue Shield.

Before that succession, a company named M.C. Construction owned a membership interest in Blue Cross. When that insurer converted from a mutual company to a stock company in 1997, M.C. Construction owned shares in the new company. From what I can tell from today’s opinion, no one ever issued stock certificates in that new company.

Two years later, a new company, MCC Acquisition, bought all of the assets of M.C. Construction. (Because of the similarity of the company names, I’m going to call this company “the buyer,” to make this analysis easier to read.) The purchase agreement gave the buyer title to all tangible and intangible property of the old company.

As you may recall, Trigon evolved through mergers and acquisitions into Anthem and then to WellPoint. At this point, WellPoint issued stock in itself in the name of M.C. Construction, and since the company was by that point defunct, sent the shares to the Unclaimed Property office within the Virginia Department of the Treasury. The Treasurer sold the stock and plunked the money into the Richmond Circuit Court during an interpleader action.

This led to competing claims to the money. The buyer asserted that it had a right to receive the funds, because it had bought all of M.C. Construction’s assets, including intangible ones like claims to corporate stock. M.C. Construction replied that the buyer’s claim was for breach of contract – the failure to turn over the stock – and the five-year statute of limitations for a contract claim had long expired.

A circuit court judge ruled in favor of the buyer, holding that there was no evidence of any stock certificates in existence before 2008, when the Treasurer got WellPoint shares. What the buyer got was a chose in action, and since this is an interpleader proceeding, the breach-of-contract limitation period didn’t apply.

The Supreme Court agrees today. This is an in rem proceeding, not an in personam contract action. The circuit court’s task was to ascertain who the rightful owner was; not to adjudicate a claim that X owed money to Y. As today’s opinion notes, “no party currently maintains a claim against the other for anything.” The court’s discussion contains a detailed examination of the nature of stock ownership and of in rem actions. Because this isn’t a contract claim, the circuit court correctly declined to apply a breach-of-contract statute of limitations, and correctly awarded the funds to the buyer.

ANALYSIS OF SEPTEMBER 17, 2020 SUPREME COURT OPINION

(Posted September 17, 2020) Today we honor the most important document in American history. Two hundred thirty-three years ago today, 39 of the 55 delegates to the Constitutional Convention approved a document to replace an unworkable Articles of Confederation. They gave us the Constitution, the document that assures Americans of a democratic republic under the rule of law. For all of our past and current problems, there still is no better place on Earth to be, because of this document.

Taxation

Today’s lone published opinion involves a local-tax challenge with a lot of zeroes. International Paper Co. v. Isle of Wight County involves machinery and tools taxes levied against International Paper, which has a production facility in the county.

From 2012 to 2015, the county assessed the tax against the company’s facility, using 100% of its original total capitalized cost. The company hired its own appraiser, who concluded that the fair market value of the equipment, by then used, was only 60% of that. Having paid the taxes, the company sued for correction and a refund.

It won; a circuit-court judge agreed with the company and directed a reduction in the assessment and a two-million-dollar refund. The County appealed, but in 2017 The Robes declined to take the case. The County paid the directed refund.

So how are we here, with a three-year-old writ refusal? Here’s where it gets complicated (and I’ll simplify this description for the benefit of my dear readers). The County decided to refund taxes to all of its M&T taxpayers, to be uniform. That led to a $5 million hit on the County treasury.

If you know much about the mostly rural Isle of Wight County, that’s a huge chunk of the available funds. To make up for the shortfall, the County Board decided to increase the tax rate for future years, so the reduction in the assessed value would turn out to be revenue-neutral. That is, the County used a significantly lower assessed value for the equipment across the county, but taxed it at a much higher tax rate.

By the 2017 tax year, the tax rate had risen from 70 cents per $100 in value to over four dollars. By doing this, the County hoped to claw back the money that it had refunded to the various businesses for the earlier over-assessment. Because this would foreseeably hit some businesses with a ruinous new bill, the County decided to limit the new bill for affected businesses to the amount of the earlier refund. If the new tax came out a bit higher, the County offered a grant to offset that increase.

When you think about it, that’s a neat trick. A court orders you to give money back to taxpayers; you do so, but then hit ‘em with the same amount in sharply increased taxes for the next year. International Paper revolted at this idea, and sued again.

It didn’t go as well this time. The circuit court sustained a motion to strike the case at the conclusion of International Paper’s evidence. The court ruled that the 2017 levy was a new tax, so it didn’t impair the company’s right to receive the refund for the previous years. The County can do that, the court ruled, adding that the Board was answerable to the voters if it did anything wrong.

The court also rejected the company’ argument that the practice of offering varying grants to different companies, to ease the pain of the new tax, meant that properties across the area weren’t taxed uniformly. The court ruled that the grant program was separate from the assessment and collection of the tax. Because the applicable statute authorizes legal challenges to tax assessments, not grant programs, it rejected this argument.

On appeal, the Supreme Court agrees mostly with the trial judge. It holds today that the County can indeed impose a tax in subsequent years to make up for its judicially imposed refunds, and that doing so doesn’t violate the separation of powers. But it reverses and remands on the circuit court’s final ruling, finding that the grant program was integrated with the tax assessment and collection. This results in a varying effective tax rate, and that could support relief. Because the trial court had struck the company’s evidence, the justices remand the case for trial on that aspect of the claim.

Note that the procedural posture matters here. The Supreme Court doesn’t rule as a matter of law that the grant program, in conjunction with the taxation model, produced a lack of uniformity. Instead, it holds that the company made out a prima facie case, so the trial should have continued. My best guess is that on remand, the circuit court will accept the previously submitted evidence from the company, and start with the County’s case in chief. Starting from square one would waste resources, including judicial time.

One last point: One seemingly innocuous line in today’s opinion caught my eye. “On January 29, 2019, the circuit court entered a final order consistent with its ruling from the bench.” From what I can tell, there were no further proceedings in the circuit court, so that January 2019 date started the appellate clock ticking. What’s significant about that? I’d say the fact that this case took almost twenty full months to proceed from circuit-court judgment to Supreme Court opinion.

I’ve written about this before, including relatively recently. In the years of the Carrico Court, before he took senior status in 2003, an 18-month delay was routine. When Justice Leroy Hassell took the center chair, he was determined to speed things up; during his tenure, the court cut back the time for a merits decision to a little under a year. But pace hasn’t been a priority for Hassell’s successors, Chief Justices Kinser and Lemons, so the time slipped back over a year, and probably stands now at 15-16 (or so) months.

The pandemic hasn’t helped. Neither has the fact that this appeal was complicated – as noted above, I’ve streamlined this complex fact pattern to make the message easier to absorb – thus leading to a detailed analysis of the case and the law. Justice Goodwyn’s opinion for a unanimous court occupies almost 38 pages.

I don’t think that twenty months is the new norm. But if you’re advising a client about the appellate process, you need to be able to estimate the time involved. I think that you have to tell him or her that it could reasonably take a year and a half, assuming the justices grant a writ and decide the case on the merits. And that assumes you don’t have one of the common extenders of appellate time, such as a denied writ followed by a granted petition for rehearing. That can add another couple of months, or even more if it’s filed just before the winter or summer recesses. Appeals in Virginia now take a great deal of time, and there’s nothing to be done about that on our end.

Update September 18: We have yet another high-profile unpub. The court has now posted to its website a short order that refuses a request by Kanye West to appear on the November presidential-election ballot. The ruling in West v. Wilson rejects an appeal of the Richmond Circuit Court’s writ of mandamus, finding that the Supreme Court doesn’t have jurisdiction over this interlocutory order. The court then declines to alter the temporary injunction, finding it “not appropriate” to do so. That’s a polite way of rejecting the petition on the merits without giving extensive reasons.

These hot-button unpubs are starting to feel normal nowadays.

ANALYSIS OF AUGUST 27, 2020 SUPREME COURT OPINION

AND RICHMOND STATUE APPEAL

(Posted August 27, 2020) The Supreme Court has issued two significant decisions in the past 24 hours. This morning, it hands down a published opinion in an appeal involving the always tricky boundary between misnomer and misjoinder. Yesterday, the court issued an unpublished order in an injunction appeal over the Richmond mayor’s decision to remove Confederate statues in the capital city. We’ll take them up in that order.

Pleading

In a decision that conjures the recent case of Richmond v. Volk from 2016, a sharply divided court reverses the dismissal of a vehicular-tort suit in the Richmond Circuit Court. Today’s ruling is Hampton v. Meyer.

The problem arose in understandable fashion. Three persons were injured in three separate cars in a collision on Christmas Eve in 2016. Rescue personnel transported all three to a hospital. Police officers presumably came to the hospital to investigate.

An officer generated an accident report that contained an error. It identified the driver of one of the vehicles as a man we’ll call Dad. Dad was one of the owners of the vehicle (along with Mom), but Son was actually the driver. The police officer mistakenly slotted the owner’s name where the driver’s name should have been.

When an injured party filed a lawsuit just under two years later, that suit was styled Victim v. Dad. A month later, after service of process – and, of course, after the two-year anniversary of the collision – Dad’s insurer told Victim’s lawyer, “You’ve got the wrong defendant. Dad wasn’t driving.” Victim’s lawyer then nonsuited and refiled the action as Victim v. Son; the allegations in the two complaints were functionally identical. The refiled complaint specifically referenced Richmond v. Volk as authority for the change of name, with relation back.

Son raised a statute of limitations, arguing that this wasn’t like the Volk case. There, the plaintiff had mistakenly sued by using the defendant’s correct given name and an incorrect surname. Here, the complaint identified a real person – Dad – and that, he argued, is a classic case of misjoinder. The circuit court agreed and dismissed the case.

As I noted above, the court reverses today and sends the case back for trial. A bare majority of the court finds that this is indeed a misnomer, as the body of the complaint specifically describes a person – the driver of a given vehicle at a specific date, time, and place – but names that person incorrectly. Applying the holding of Volk, the majority holds that this was sufficient to identify the party sued, so the circuit court should have permitted the second suit to go forward.

Three justices dissent. They acknowledge the Volk ruling and the importance of stare decisis, but insist that a deeper dive into the court’s misnomer rulings compels a different result. The dissent collects cases where the court found misnomer and those where it found misjoinder, before concluding that a situation like this fits better into the latter category. The discussion also includes a passage with the irresistible title, “The Defendant-Got-Lucky Factor.”

A word about the lineup: Justice Mims writes the majority opinion, joined by Justices Goodwyn, Powell, and McCullough. All of those but McCullough had been in the Volk majority. Justice Kelsey writes the dissent – I wonder how many times I’ve written that phrase recently – as he did in Volk, and the newest Justice, Chafin, joins him. One justice effectively shifts sides: The chief justice had voted with the Volk majority, but joins the dissent here.

Justice Kelsey goes out of his way to acknowledge Volk and the importance of stare decisis. He concludes his argument by noting that “the majority’s reasoning … is defeated by, not justified by, stare decisis.” Reading his opinion carefully, I believe that you’ll conclude that what he’s saying is that adhering to pre-Volk rulings compels affirmance. I sense that he continues to regard Volk as wrongly decided, and I suspect – but it’s only a suspicion – that if he had three accompanying votes, he’d overturn it in favor of earlier misnomer/misjoinder rulings.

Injunctions

While Hampton v. Meyer will be of interest to lawyers, Stoney v. Anonymous will make headlines across Virginia. The court today rules on a petition for review filed by the Mayor of Richmond to address an injunction issued by the circuit court of that city. For those who haven’t been following the uproar, here’s what happened:

If you’ve driven along Monument Avenue anywhere in the past century or so, you’ve seen the statutes honoring several prominent people. All but one – Arthur Ashe, whom I revered in my youth even though I didn’t play tennis – depicted someone associated with the Confederate States of America.

I attended college in Richmond, a long time ago in a galaxy far, far away, and I remember seeing those statues without thinking much about the historical context. I learned that Generals Jackson and Stuart’s equestrian depictions faced north, because they perished while fighting the northern enemy; while General Lee, who survived the war, is shown facing his beloved South. Beyond that, I really didn’t think about the statues much, if at all.

Being young and stupid – those were my dual majors in college – it never occurred to me back then to look at the statues through anyone else’s eyes. All that changed, of course, in the past several years. The statues, I learned, were erected not merely as memorials to admired southern heroes, but as a means of showing the minorities of 130 or so years ago what their place was. I learned about the timing of the statues and their connection with Jim Crow. I learned that Virginia history wasn’t quite what I had learned in the fourth grade.

You know what happened. Eric Garner happened. Breonna Taylor happened. George Floyd happened. In the spring and early summer of this year, Richmonders had had enough. Protests erupted at and around the statues, with calls for their removal. The General Assembly, newly in Democratic hands, had passed a law permitting localities to remove statues using certain procedures.

On July 1, the day the new law took effect, Mayor Stoney introduced in the City Council a proposal to authorize him to remove the statues on an emergency basis. The proposal was set down for one day, to July 2, but that follow-up meeting never materialized. Instead, the Mayor directed the immediate removal of the statues, one at a time beginning with Stonewall Jackson and continuing onto Matthew Maury and eventually J.E.B. Stuart. Gen. Lee, who stands watch from state property, remains, though I believe that the tide will eventually wash him away, too.

Six days after the first statue came down, a citizen identifying himself only as Anonymous filed a petition in Richmond Circuit Court seeking an injunction to prevent further removals. He (that’s a guess; today’s order doesn’t specify a gender) claimed to be an “interested person” who wanted to voice his opposition to the removals, only to be thwarted by what he saw as the Mayor’s extralegal emergency action. He cited the new state statute and a companion local ordinance, both of which specified more detailed procedures than the Mayor’s summary actions.

Two days later, the circuit court convened a hearing, at the conclusion of which it granted the injunction barring the Mayor from further removals. The Mayor filed a petition for review five days later under Code §8.01-626, which authorizes a snap appeal of an order granting or refusing an injunction. Anonymous responded six days after that, on July 20. The parties then settled down and waited.

Today, the court hands down an unpublished order – sort of; more on that later – that reverses and dissolves the injunction. While there are several intriguing angles to this case, such as whether you can file suit without identifying yourself at all, the court today resolves only one legal issue. It holds that neither the Code of Virginia nor the Richmond ordinance creates a private right of action permitting anyone to sue to enforce the obligations. Okay, the City Attorney can file suit under the new Code provision; but not a private citizen. Because Anonymous didn’t have the right to sue to enforce the statute or ordinance, the court doesn’t have to address the other issues.

This case is part of the Supreme Court of Virginia’s shadow docket, a term coined by a University of Chicago law professor in referring to SCOTUS cases decided summarily, without argument. There’s no public proceeding; there’s no published opinion; just an order that resolves the issues in the case without creating precedent. It’s even less visible than your garden-variety unpub because the SCV doesn’t even post it on its web page of unpublished orders. Unless you know to look for it, you won’t find it. If any of you, my beloved readers, want to read the order and can’t get it elsewhere, send me an e-mail and I’ll shoot you a copy. (UPDATE August 28 — The court notified the public this morning that it has posted the order on its unpubs page, so you can access it there now.)

Continuing a trend that I’ve seen in recent years, the full court – minus Justice Goodwyn, who didn’t take part because a first-rate appellate lawyer from his wife’s law firm joined as counsel in the Mayor’s pleading – decides this petition. That isn’t exactly the way the statute and Rule 5:17A specify that the court handles these petitions. The statute authorizes a single justice to act; the rule permits action by a single justice or a panel.

In recent high-profile proceedings like this – for a recent example, consider the Capitol Square gun-ban case back in January – the full court considers and decides the matter. This, I sense, is the court’s way of lending heft to its rulings, and to convey to the losing litigant that he didn’t lose merely by an unlucky draw of three justices. It’s a singularly wise way to handle these hot-button issues, though it does consume more judicial resources.

One last point: Yesterday’s order vacates the temporary injunction only. The case technically remains pending in the circuit court for proceedings for a permanent injunction. But analytically, this is the end of the line; a finding that there’s no private right of action effectively kills the entire case. I expect a swift dismissal order as soon as the SCV Clerk issues the mandate.

ANALYSIS OF AUGUST 20, 2020 SUPREME COURT OPINION

(Posted August 20, 2020) The Robes in Richmond hand down a single opinion today in a case that invokes the sweetest two-word phrase in the legal system: attorneys’ fees. Berry v. Fitzhugh is a partition proceeding that comes to us from Fairfax County.

The subject of this litigation is the family homestead. When a woman died in 2012, her five children inherited the place. Her will directed an immediate sale followed by distribution of the proceeds to the siblings, but they got their heads together and decided that, in a challenging real-estate market, it would be better to hold onto it for a while. Two of the siblings moved in to keep the place up.

In 2018, one of the siblings, Marsha, brought a partition suit. Two of her siblings hired a lawyer; the other two went it alone, but barely participated in the proceedings.

At trial, Marsha asked the circuit court to decree a sale. She also asked that the shares of the two siblings who had lived in the house be reduced, to account for the rental value during their occupation; she finally sought contribution from the two unrepresented siblings pursuant to a statute.

The judge agreed that a sale of the home was in everyone’s interest, but declined to impose implied rent or charge the unrepresented siblings with a share of Marsha’s legal fees. The court ordered that all five siblings share in the costs of the sale.

Marsha appealed the court’s refusal to impose implied rent and legal fees. Today the justices unanimously affirm. On fees, the Supreme Court notes that such an award is discretionary with the circuit court, despite the presence of the troubling word shall in this statute:

In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.

The circuit court had found that while Marsha had indeed incurred fees, she didn’t render services to the unrepresented siblings. They were listed as defendants in the suit, and never formally joined in the partition request. Here’s the death knell to this claim: “As this is a question of fact, we give deference to the trial court’s findings.” The justices find that the trial judge wasn’t clearly mistaken in this ruling.

The rent issue also dies an unpleasant death, on grounds that we’ve seen repeatedly in recent years. The circuit court made three separate rulings to justify refusing the requested adjustment. Marsha, in appealing, argued only one of them. As I’ve preached here before, you can’t do that. This is because the other grounds provide independent support for the judgment. Thus, even if you blow away the weakest ground, the judgment still stands on a solid foundation, so any error is harmless.

JUSTICES ORDER NEW EVICTION MORATORIUM

(Posted August 7, 2020) Stop the presses! Actually, there are no presses here at VANA, so … Stop the electrons! The placidity of this week has given way to a volcanic eruption, in the form of an amendment to the Supreme Court’s most recent judicial-emergency declaration.

The eighth emergency order, issued on Wednesday of last week, was the shortest in the series. It merely continued the prior declaration in force for another 21 days, the maximum period permitted by statute. Under that order, legal proceedings other than jury trials could continue, and deadlines (other than under the Speedy Trial Act) had resumed ticking.

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above.

That order is followed by a two-paragraph dissent from the chief justice, with whom Justices Kelsey and Chafin join. The chief acknowledges the severity of the “national crisis” at hand, but argues that the proper place to address it is across Ninth Street, in the General Assembly:

The courts should not create a preference for one set of litigants over another. The government should not expect one group of property owners who lease their property to tenants to finance their unfortunate circumstances. If there is to be a subsidy, it is properly the responsibility of the legislative and executive branches. The judicial branch should not put a heavy thumb on the scales of justice and deny property owners access to the courts and enforcement of their long-established rights under the law.

That was the peaceful dissent. Justice Kelsey goes next, and he doesn’t spare the majority, not even by an ounce, in laying out the reasons why the court is overstepping judicial bounds.

Justice Kelsey finds the following faults with the majority’s approach:

• The judicial-emergency statute exists to help folks who can’t avail themselves of the courts, or to meet schedules or time deadlines. He concludes that “Exactly the opposite will be true under this ex parte order” (italics his). This order impedes a landlord’s access to the courts, even while the courts are capable of adjudicating their claims. The majority cited tenants who might suffer from health conditions that prevent them from coming to court. This dissent calls that an unwarranted generalization, one that landlords are powerless to contest on a factual basis in each case.
• The legislature passed in April a bill that provides relief to tenants facing evictions, giving them an of-right 60-day continuance. That provision lasts as long as the Governor’s declaration of emergency does, so as Justice Kelsey points out, it’s still in effect. By entering this order, the court has stepped into the legislative and executive arena. He concludes, “Whether this legislative response to the housing crisis is adequate or not, we have no authority under separation-of-powers principles to issue an ex parte judicial order expanding the statutory remedy.”
• Next, the dissent points out that this order singles out and targets one type of litigant: landlords. And it deprives those landlords of a remedy while doing nothing to prevent a tenant, even one who hasn’t paid rent since March, from suing the landlord for breach of some lease provision. Justice Kelsey argues that the order “rests on a wholly untested factual assumption,” namely, that tenants would have paid their rent but for the pandemic. What about those tenants who didn’t lose their streams of income? What about those who received alternative income streams, such as CARES Act payments? They get relief, too, and landlords have to sit on their hands and fume.
• The dissent next notes three “constitutional concerns” that the order ignores. First, no one has the power to suspend the execution of generally applicable laws. But this one does that, hampering landlords to the benefit of tenants, in a specific class of cases. It matters not to Justice Kelsey that the judiciary, rather than the executive, is doing the suspending. Next, he posits something that I’ve mused about: This deprivation of a remedy may be a taking of private property for a public purpose, triggering a landlord’s right under Art. I, section 11 for just compensation. And third, this order at least appears to impair the obligation of contracts.

In this last section, Justice Kelsey doesn’t insist that the order definitely violates those provisions; but he correctly notes that the majority grants this relief without even considering them, without a word of explanation or even mention. More to the point, since this order is ex parte, the court never gave landlords an opportunity to flesh those concerns out in briefs or perhaps oral arguments.

The dissent concludes with this passage:

The COVID-19 pandemic and its resulting economic fallout are crises of monumental proportions. I do not question my colleagues’ motives in issuing this ex parte order. But we must do the right thing, the right way, for the right reason. One out of the three is not enough.

I respectfully dissent.

The chief justice and Justice Chafin join this fiery argument in full.

This order today becomes part of our legal history, in large part because it will be published. None of the other orders so specified, and they probably will be available only online or in the Clerk’s Office. Not this one.

In hotly disputed rulings like this, I often lay out what happened and then step back, without revealing where my sentiments lie. It’s a nice literary tool that keeps me out of hot controversies, and since this is my bloody website, no one can tell me to do otherwise.

I’ll step out of that warm, comfortable cave on this one. Like all seven of the justices, I regard the pandemic as a great tragedy for all Virginians, hitting the economically disadvantaged harder than the rest of us. I recognize that a great many tenants find themselves in dire economic straits, and staring down a writ of possession would be catastrophic for them.

But the courts are the wrong place to address this problem. Legally, analytically – and we’re supposed to decide legal matters on an analytical basis – I believe firmly that Justice Kelsey is right: This isn’t a problem that the judicial branch of government has any business intruding into, especially on an ex parte basis. The General Assembly, which meets again in a couple of weeks, can and probably will take some action. But the courts are supposed to be neutral arbiters, dispensing “equal justice under law” without venturing into partisanship, without putting a thumb on the scale. That’s not what the court has done today.

No, there won’t be further proceedings. There probably won’t be a SCOTUS appeal because this implicates Virginia law, though landlords might make a plausible Fifth Amendment taking claim now that Knick v. Town of Scott opens the federal courthouse doors without requiring exhaustion of state-court remedies. The legislature may take action this month that will obviate the need to extend this order beyond its September 7 expiration date. Failing that, we might see another order early next month that extends this moratorium. There won’t even be a challenge to the 28-day duration of the order, seven days longer than the court’s statutory authority. To whom would a prospective petitioner present such a challenge?

One last point: Also unique among the several judicial-emergency orders, Justices Mims and Kelsey sign their opinions. I mean in handwriting; not a mere typewritten indication of authorship. My best guess is that the Reporter of Decisions will include those signatures on the pages of Virginia Reports.

ANALYSIS OF JULY 30, 2020 SUPREME COURT OPINION

(Posted July 30, 2020) Today’s lone published opinion from the Supreme Court of Virginia comes straight out of the Crying Shame Department. Baumann v. Virginia State Bar presents what I view as an entirely avoidable outcome.

The appellant here is a 40+ year veteran of law practice here in Virginia. He’s a general practitioner, a dying breed in an era of specialization.

In 2015, a widow consulted the GP for guidance. She and her late husband had created a family trust. Upon his death, her stepchildren consulted a lawyer who wrote to the widow, asking for a copy of the trust agreement, an accounting, and some items of personalty that their father had promised them. The widow didn’t want to give up the document, regarding it as private, but was apparently okay with giving up the personalty.

The GP proposed a $7,500 nonrefundable fee for handling the matter. He added that if the matter went to litigation, he’d require another $15,000 as a retainer, against which he’d bill $325 an hour for his work. The widow agreed and gave him a check for $7,500.

According to today’s opinion, the lawyer stated that he performed 10-12 hours of legal research over the ensuing weekend, though he didn’t keep time records or make any notes. The next week, he called the stepchildren’s lawyer, and faxed her a copy of the trust agreement. The two lawyers coordinated a date and time for the stepchildren to pick up the items they wanted.

Nothing more happened for a year. In 2016, the widow e-mailed the GP, telling him that the heirs had picked up their items. She terminated the representation and asked the lawyer for an itemized statement of his fees and costs advanced. Two weeks later, the GP sent her a statement asserting that “he had: (1) read a 179-page trust document, performed legal research, and advised Wright ‘concerning the same,’ (2) contacted various parties ‘as needed’; (3) guaranteed his availability to Wright instead of the opposing party, (4) prepared the matter for litigation, and (5) closed Wright’s file. The statement claimed that Baumann earned the entire $7,500 fee.”

Sound reasonable to you? Before you answer, let’s consider a few small details. First, the trust agreement was only 38 pages, not 179. Do you think the widow would have known that? Second, while the lawyer facilitated a stress-free swap of personalty, he never resolved – indeed, never even addressed – the biggest item in the case, the demand for an accounting. And third, while not directly related to the quantum of fees, the GP gave away a document that the widow had wanted to keep private.

Around this time, the stepchildren’s lawyer wrote to the GP and asked, “Now, how about that accounting?” The GP, regarding that he had been terminated, simply forwarded that to the widow. Up to this point, she didn’t know that that issue hadn’t been addressed.

The widow then did what she should have done the first time: She consulted a specialist in trusts and estates law. That lawyer looked at the trust agreement and told the widow that she didn’t have to give up the document to her stepchildren; indeed, she could end any claim that they had by unilaterally terminating the trust. She had that authority, spelled out right in the document. The lawyer picked up the phone, spoke with the stepchildren’s lawyer. And resolved the accounting issue on the spot.

The T&E lawyer then wrote to the GP and asked for a copy of his file. The GP replied with the opening lines of The Adventures of Tom Sawyer (“Tom!” No answer.). A second request produced copies of e-mails and “four pages of sparse, handwritten notes.”

The T&E lawyer asked the GP to refund part of the $7,500 fee. That generated a refusal. And that, in turn, generated a Bar complaint, filed by the widow.

Now you know why this is a crying shame. For maybe three or four thousand dollars, the GP could have bought himself peace and quiet, and a lot of good nights of sleep. Instead, he fought the complaint, even when the Bar offered him private discipline.

The district committee found that the GP had violated the Rules of Professional Conduct by not finishing the job he was hired for, not communicating with the widow, and charging an excess fee. It imposed a public admonition with terms, including refunding $5,000 to the widow. The GP appealed on to the State Bar’s Disciplinary Board, which affirmed.

Today, the justices affirm, too. They turn aside challenges to the Board’s standard of review, the constitutionality of the private-discipline setup, and the sufficiency of the evidence. Justice Chafin’s exploration of these issues is thorough and the result is thoroughly predictable. Now the GP is out $5,000, and his name will be in Virginia Reports for all time, in a way that none of us wants to achieve that lasting fame.

ANALYSIS OF JULY 9, 2020 SUPREME COURT OPINION

(Posted July 9, 2020) It’s a double opinion day here at VANA, as the Robes in Richmond hand down a decision on the same day when their brethren across the Potomac wrap up October Term 2019. For coverage of the US Supreme Court’s decisions, you should go to SCOTUSblog. For coverage of the SCV, well, (heh, heh) I’m the only game in town; you may as well read on.

Regulated utilities

Lest you perceive that that last line was unbounded egotism, please be assured that I meant it only as a lead-in for today’s ruling in Wal-Mart Stores East, LP v. SCC. The question here is whether Wal-Mart can shed the shackles of buying electricity from the dominant utility around, a regulated monopoly that you know as VEPCO or APCO, depending on where in Virginia you are.

Some time ago, the 140 Troublemakers created a framework for some semblance of competition in electric utilities. Nonresidential customers whose demand exceeds 5 megawatts have the right to buy electricity from a competitor to VEPCO and APCO. Any customer, including a plain-old homeowner, has the same right if they want 100% renewable energy and their “host” utility doesn’t offer that.

There’s a third category for nonresidential customers. If separately they demand less than 5 MW, but they can aggregate different locations to exceed that threshold, they may ask the State Corporation Commission to permit them to bolt and get their electricity elsewhere. The commission has the discretion to approve that request if there are no adverse effects to other customers and the request is consistent with the public interest.

Wal-Mart, as you know well, operates a lot of stores in Virginia. The individual locations don’t use 5 MW, but when you add up all of them, they greatly exceed that figure. Wal-Mart accordingly filed an application seeking to enter the wholesale energy market, to save a few dollars.

An SCC hearing examiner convened a hearing to consider the matter. That hearing established that the electric companies would sustain losses if all the Wal-Marts across our fair land left the grid, and those costs would be passed along to “captive” consumers, those unable to leave the monopoly, in the form of higher rates. “Yes, but,” Wal-Mart replied, “the average customer’s bill would go up only fractionally, not enough to harm anyone.” The evidence showed a monthly increase of 13 cents for VEPCO customers using 1,000 KW, and five cents for those in APCO’s territory. A footnote in today’s opinion recites Wal-Mart’s contention that such a customer could offset that tiny increase by replacing a single incandescent lightbulb with an LED. (As evidence of my environmental bona fides, I hereby certify that all of my old lightbulbs are long gone, replaced by LEDs some time ago.)

I’ll reframe this setup slightly, in a way that will telegraph the outcome of today’s decision: Would you be willing to pay a few extra cents each month so one of the world’s largest retailers can save a lot, maybe millions, on its electric bills? The SCC looked at that proposed transfer of wealth, a few pennies at a time, and balked. It found that other customers would indeed be affected, and that the retailer’s request was thus contrary to the public interest.

Wal-Mart then moved for reconsideration, asking the SCC to allow it a more limited extent of relief – not all its stores, but something less than that, in a manner that would make it palatable. The commission denied that motion and Wal-Mart headed to the courthouse.

In this case, that means the Supreme Court itself. Under Virginia law, the SCC is a tribunal of equal dignity with circuit courts, and proceedings there offer the priceless opportunity for a by-right appeal. No petition stage; you just go straight to the merits.

Today a unanimous Supreme Court affirms the SCC’s decision. It affords the commission substantial deference where, as here, the statutory framework provides that the commission “may” grant requested relief. Despite the de minimis nature of the individual effects on each residential customer, the overall effect is to transfer millions of dollars from individual customers to a corporate giant, without those customers’ consent. The SCC thus had the discretion to rule as it did.

The court also affirms the denial of Wal-Mart’s reconsideration motion. The justices agree with the SCC that this wasn’t a request to reconsider anything; it was a request to grant relief other than what the application sought. That would require amending the pleading, something that Wal-Mart never sought. Instead, the initial “request” was a passing reference during testimony by a Wal-Mart representative.

ANALYSIS OF JUNE 18, 2020 SUPREME COURT OPINIONS

(Posted June 18, 2020) This date has always held special significance for me, given my love of history. It’s the anniversary of one of the signal events of the Nineteenth Century, the Battle of Waterloo; and of one of the great speeches of any era, Winston Churchill’s “Finest Hour” masterpiece in 1940, right after the Fall of France four days earlier. June 18, 2020 will be significant in its own right, as SCOTUS has just handed down a fractured ruling in the DACA appeal.

But our eyes are on the banks of the James, where today the Supreme Court of Virginia hands down a published opinion and a published order. We’ll start with the opinion.

Public officials

For understandable reasons, there aren’t many judicial opinions interpreting the Code provisions for removing public officials. The justices take up such a case in Townes v. State Board of Elections, involving the removal of two members of the Hopewell Electoral Board. The State Board petitioned the local circuit court to remove two of the Electoral Board’s three members for various acts of mis- or malfeasance, including FOIA violations and irregularities in the forms of local ballots.

Because there’s so little caselaw, the circuit court had to feel its way around in the dark on certain procedural matters. Those rulings are the basis of today’s decision, as follows:

• The burden of proof in removal proceedings is on the Commonwealth, as the moving party, and that burden requires proof by clear and convincing evidence. This is because these proceedings are quasi-criminal.
• But since they’re technically civil proceedings, discovery is available under Part 4 of the Rules of Court.
• The complaint for removal is subject to normal notice-pleading requirements. The petition need not specify each alleged violation as long as it encompasses a class of them and gives the respondents reasonable notice of what’s alleged.
• Specific to this case, the Supreme Court rules that the respondents should be permitted to adduce evidence of what training they received from the State Board, as that meets the test of relevance to their defense.
• Finally, the Supreme Court rules that evidence of the political party affiliation of witnesses is not admissible, as its high prejudicial effect clearly outweighs any possible probative value.

The circuit court, after receiving a jury verdict on the facts, had removed the Election Board members. The Supreme Court today reverses that and remands the case to circuit court, where the Commonwealth may retry the matter if it chooses.

Sanctions

On Tuesday, the court issued a published order in Barrett v. Minor. This domestic-relations litigation has frequent-flyer miles in the appellate system. Barrett, who is a disbarred former attorney, has pursued repeated appeals to the CAV and on to the Supreme Court against his former wife.

On two prior occasions, the justices have dismissed his appeals for Rule 5:17(c)(2) violations. Specifically, he didn’t set out how his case presented a matter of significant precedential value, and that’s mandated by the rule. Today, the justices issue a three-strikes order, dismissing this appeal for the same reason and imposing sanctions against Barrett, citing “a long series of habitually frivolous litigation.”

The sanctions imposed are noteworthy. There’s a modest award of attorney’s fees in favor of Minor, but the real sanction is a pre-filing injunction. The court prohibits Barrett from filing “any petition for appeal, motion, pleading, or other paper against Minor” unless he either hires a licensed Virginia attorney to do so, or obtains leave of court.

ANALYSIS OF JUNE 11, 2020 SUPREME COURT OPINION

(Posted June 11, 2020) The Supreme Court of Virginia today hands a victory to homeschooling parents in Sosebee v. Franklin County School Board. As provided by statute, the parents gave timely notice to the division superintendent of their plan to homeschool their children. But the school board had implemented a regulation that also required that parents furnish a birth certificate and proof of residence as a condition of home-schooling approval. This notice had neither of those two components.

The parents filed a complaint for declaratory and injunctive relief. The circuit court ruled in favor of the school board, holding that the new policy wasn’t contrary to the statutory requirements for homeschooling. The court also pointed to another statute that authorizes school divisions to promulgate policies to manage schools.

Today the Supreme Court unanimously reverses and directs entry of an injunction against the school board. The chief justice’s opinion notes that school boards, as creatures of statute, must adhere to the powers enumerated in the Code. This is an application of the Dillon Rule. Because nothing in the Code provides that homeschooling parents must provide birth certificates or proof of residence, the school board exceeded its statutory grant of authority in requiring them.

There may be a subtext to this litigation. Most parents wouldn’t think twice about providing a certificate and some form of proof of residence. This case might be a part of the national discussion of immigration, or it might simply involve independent-minded parents who esteem their (and their children’s) privacy or rankle at assertions of governmental authority. There’s no hint in the short opinion about any such subtext; and the justices strongly prefer to stay out of political issues anyway.

ANALYSIS OF JUNE 4, 2020 SUPREME COURT OPINION

(Posted June 4, 2020) After last week’s bumper crop of opinions, the Supreme Court of Virginia today hands down a single decision. Green v. Diagnostic Imaging Associates is a wrongful-death claim involving medical malpractice. The decedent’s personal representative filed separate suits in Virginia and Kentucky, as the decedent had received medical care in both states from separate providers.

The Kentucky defendants settled, leaving the Virginia lawsuit pending. The Virginia defendants moved the court to dismiss the case, asserting that a plaintiff can only get one recovery for a given set of injuries, and the personal rep had received that recovery in Kentucky. The circuit court judge agreed and dismissed the case. The court ruled that a Virginia statute requires an election of remedies, and the plaintiff had made that election by settling in Kentucky. It went on to hold that judicial estoppel barred any recovery in the Virginia case.

This morning, the Supreme Court unanimously reverses and sends the case back for trial. Unlike in Virginia, Kentucky law permits a plaintiff to recover for both personal injuries and wrongful death, even if the injuries lead to the death. The Virginia statute isn’t an election of remedies; the law makes the choice for the plaintiff once the evidence establishes whether those injuries caused the death.

The justices go on to rule that this isn’t a case of claim-splitting, because the defendants in the two lawsuits were different. If the circuit court perceives that an award in Virginia compensates the personal rep for some of the same injuries as the Kentucky settlement did, it can reduce the Virginia judgment by that amount. And the doctrine of judicial estoppel doesn’t apply here, again because the parties in the two suits are different.

I noticed one detail in today’s opinion that reflects the modern reality of appellate practice in Virginia. The circuit court entered final judgment in November 2018. That means that this case took over 18 months to reach final decision on appeal. It took just over ten months to get to the writ grant, and another 8½ from that point to today.

Twenty or so years ago, 15-18 months was roughly the norm for a fully matured appeal (one where the full court decided the case by opinion or order). When Justice Hassell became chief justice in 2003, that time lag rankled him. He made it a priority to accelerate the pace at which the court processed its caseload.

I’m not sure how Chief Justice Hassell did it, but he lit a fire under the court and the pace picked up noticeably. I don’t have firm statistics on this, by my clear sense back then was that he had reduced the average lifespan of an appeal – the time from final circuit court judgment to Supreme Court merits decision – to about 11 months.

I infer that that need for speed hasn’t carried over to his successors. To be sure, Green is a bit of an outlier at 18 months. But in my experience, 15 months is close to the average these days; 13 is a lightning decision. The time factor isn’t related to caseload; the 2005 court, for example, received almost 2,700 new filings and granted 182 writs. Last year, in comparison, the court received 1,740 and accepted just 98. Today’s court is taking noticeably longer to process a much smaller docket.

I’m not writing this to be critical. I have enormous respect for the justices and for their highly professional support crew, both the Clerk of Court and the Chief Staff Attorney and their very capable staffs. I write this because you may need to know this if you’re advising your client on the prospect of an appeal. A client who’s mulling whether to appeal generally wants to know three things: What are our chances? How long will it take? And how much will it cost?

I’ve written elsewhere about the odds of securing a reversal on appeal (Reader’s Digest version: not very good). The cost is a matter for each appellate lawyer to shape for individual cases; there’s no standard appellate attorney’s fee. The “pace of play” considerations I’ve discussed here answer the remaining question.