Despite the fact that all three appellate courts in Virginia are in recess for the summer, there is still appellate news, usually in the form of opinions being handed down. The week just past was no exception. We’ll start this time in the Court of Appeals of Virginia, where the most interesting opinion of the week was released.

Court of Appeals

The court ruled last week in a turf war over the Petersburg courthouse in Epps v. Commonwealth. George Epps is the Sheriff of the City of Petersburg, and like many other constitutional officers whose budgets are within the control of the General Assembly, he has felt more than a modicum of economic pressure. In the spring of 2003, Epps decided that he could no longer afford to staff the courthouse with a deputy for security during hours in which court was not in session. He advised the Clerks of the several courts that once court concluded in a given day, he would withdraw his deputies for other duties.

There were three problems with this decision. First, the courthouse also houses the public law library and the office of the Circuit Court Administrator. With no deputy in the building after court, that left both without any form of security in a building that is normally open to the public. Second, the sheriff had agreed with the Circuit Court judges in 2002 to staff the courthouse with a deputy at all times at which the courthouse was open. That agreement had been memorialized by a court order entered by the court, which order the sheriff had obeyed for over a year. And third, the sheriff notified the Clerks, but not the judges, of his unilateral decision.

You can see what’s coming – after a series of encounters over the new policy, the court issued a rule to show cause, citing the sheriff for contempt. After a judge designate was appointed, for obvious reasons, the charges were tried and the sheriff was found guilty (one count of civil contempt and three of criminal contempt). He noted and pursued an appeal.

On Tuesday, July 26, the Court of Appeals reverses. The decision can hardly be called a smashing victory for the sheriff; the appellate court rebukes him on eight of the nine questions presented. But it reverses on one important ruling. The trial court had permitted one of the Circuit Court judges to testify as to the circumstances and events surrounding her entry of an order and her personal encounter with the sheriff thereafter. By statute, a sitting judge is incompetent to testify “as to any matter which came before him in the course of his official duties.” Code §19.2-271. There is an exception to the prohibition of this statute, where a judge is a victim of a crime. But as the appellate court notes, the “victim” of contempt is the court, not the judge, so that exception did not permit the judge to testify here.

This case is interesting on several levels. For the tabloid set, there is the spectacle of public laundry being aired in a fight that is both in and about the courthouse. The version of the facts recited above is highly condensed, and the first five pages of the opinion will come as a great surprise to those accustomed to orderly, dignified proceedings. (For what it’s worth, in the view of this writer, the judge acted with admirable restraint.) From the standpoint of legal analysis, one will find very interesting interplay between the three opinions that form the court’s ruling. Judge Frank writes the principal opinion, while Judge Elder concurs in a separate opinion. Judge Humphreys dissents, finding sua sponte that the disqualification statute did not apply to these circumstances, because they occurred “outside of a judicial proceeding.” He also points to the US Supreme Court’s recent ruling in Crawford v. Washington, 541 US 36 (2004), holding that the Confrontation Clause forbids the use of such confrontation substitutes as a certificate of material proceedings. Finally, the majority opinion is worth review for its methodical refutation of the many creative, though ultimately unavailing, issues raised by the sheriff.

The court also decides on Tuesday that a mental health provider for the children of divorcing parents cannot testify against either parent without that parent’s consent. The case is Schwartz v. Schwartz.

By statute, a mental health provider may not testify “on behalf of or against a parent” without that parent’s written consent. Code §20-124.3:1. In a contempt hearing in the trial court, the father called the children’s clinical psychologist to testify against the mother. The trial court permitted the testimony over the mother’s objection, finding that the statute addressed only the parent’s health care provider, and citing the best interests of the children.

The appellate court reverses, finding that the statute is not thus limited. It reached this conclusion despite the fact that, as recited by the opinion, virtually all of the psychologist’s testimony was factual, not diagnostic or otherwise expert. After a detailed review of the history of the statutory enactment, it concludes that the statute is plain, and applies its plain meaning to exclude the evidence. (It is worth noting that in many other cases, appellate courts have declined to address legislative history, or any other form of statutory construction, when they find the meaning to be plain.) Since the error was not harmless, the court reverses the finding of contempt and the concomitant award of $8,000 in attorney’s fees.

Supreme Court

The court announced on Tuesday, July 26, the granting of writs in six cases:

A medical malpractice claim against a psychologist who had been hired to conduct a defense medical examination under Rule 4:10 (Harris v. Kreutzer)

An appeal involving several jury instructions in a bicycle/motor vehicle collision case (Russ v. Destival)

A criminal appeal by the Commonwealth in a case involving the trial court’s jurisdiction to modify a sentence (Commonwealth v. Neely)

A mechanic’s lien case in which the appellate issues relate to the required certificate of mailing of the memoranda (Britt Construction v. Magazzine Clean, LLC)

A dispute over an express easement (Colwell v. Lenihan)

A venue appeal involving the “substantial business activity” provision of Code §8.01-262(3) (Barnett v. Kite)

Of these, the DME issue in Harris is novel, since such examiners are supposed to examine, but not treat, the patient. The question thus becomes whether such an examination constitutes “treatment” in the context of medical malpractice law, or as a factual matter, whether the psychologist crossed the line into treatment. And the issue in Barnett will be of interest to many lawyers seeking more favorable venues for trial, and those opposing those sometimes creative efforts. This subsection has received very little appellate attention since the statute was amended in 2004 to incorporate the present language.

All of these cases will be briefed, argued, and decided in the 2005-06 term, which will begin in September.

Fourth Circuit

The Fourth issued several published opinions last week, including the reversal of a district court’s dismissal of a defamation claim. In Hatfill v. New York Times, the court reinstates a claim made by a Defense Department research scientist who was allegedly defamed in a series of columns in the Times’ editorial section. The columns identified Hatfill as a likely suspect (or at least a suspicious character) in the anthrax mailings that shortly followed the September 2001 terrorist attacks in New York and Virginia.

Hatfill had sued the Times and the columnist, but was forced to let the latter go because the district court, sitting in Virginia, did not have personal jurisdiction over him. The Times moved to dismiss for failure to state a claim, which motion the court granted on the grounds that the columns did not come right out and say that Hatfill was the person who mailed the anthrax.

The Fourth Circuit reverses, noting that allegations in the complaint, and all reasonable inferences from them, must be viewed in a light most favorable to the plaintiff. After lengthy quotes from the columns, the court finds that “the unmistakable theme of Kristof’s columns is that the FBI should investigate Hatfill more vigorously because all the evidence (known to Kristof) pointed to him.” Thus Hatfill pleaded a claim of defamation that was sufficient to survive a motion to dismiss. The court also rejects the district court’s conclusion that the columnist did not intend to defame Hatfill, finding intent to be irrelevant in such cases. While the columns concluded with a statement that Hatfill was to be presumed innocent, the court reads a clear, “nod, nod; wink, wink” into that careful attempt at defamation prevention.

In addition to the defamation claim, the court also reinstates Hatfill’s claim of intentional infliction of emotional distress under Virginia law, giving him the benefit of the relatively lenient pleading requirements of Rule 8. There is a relatively brief discussion of the elements of such claims, citing several Supreme Court of Virginia cases.

In a short dissent, Judge Niemeyer concludes that the district court’s rulings on both claims were correct, since the columns stopped short of calling Hatfill the perpetrator, and since their overall tenor did not, in his view, amount to an accusation of Hatfill.

In other published opinions, the court affirms a decision sustaining a facial challenge to a parade ordinance enacted by the City of Travelers Rest, S.C., in Cox v. City of Charleston. The originally pro se plaintiff, a frequent abortion protestor, had brought both a facial challenge and an as-applied challenge. He prevailed on only the first claim in the district court; on July 26, the appellate court agrees with that ruling. The statute is struck down because, as required by earlier rulings, it did not have an exception for small gatherings. The district court also struck down the ordinance because it impermissibly (even in the Bible Belt) prohibited Sunday morning gatherings. The City tried to appeal that ruling, but was blocked from doing so when the appellate court found that its argument had not been raised in the district court.

The appellate court finds that the district court had properly denied the as-applied claim, and declines to disturb that ruling.

The court rules against a protestor of a different variety, in United States v. Bursey, involving a prosecution for trying to get a little bit too close to the President.

In the wake of the Kennedy assassinations in the 1960’s, Congress passed legislation empowering law enforcement officials to restrict access to areas where the President will be temporarily visiting. Bursey, knowing that President Bush would attend a rally at an airport in Columbia, S.C., made plans to attend and protest the war in Iraq. Bursey had done this before, with another President and another war (Nixon and Vietnam, respectively, in a 1971 event), and knew from that experience that the airport was public property and he couldn’t be prosecuted for trespassing there. He even had a decision of the South Carolina Supreme Court to back him up on that point.

Bursey didn’t know about the federal law, and so when he remained in the restricted area after being warned repeatedly to leave, he was arrested for trespassing. In what must now seem a hollow victory, these charges were dropped. The federal charges ensued, and this time, the South Carolina state court decision would not help him; Bursey was convicted and fined $500.

On appeal, the court rejects both of Bursey’s contentions. The first was a factual argument, that he was not, in fact, in a delineated restricted area. That objection was amply refuted by the record, which showed that the boundaries of the restricted area were marked in an unmistakable way – by the stationing of law enforcement officers around the perimeter. Second, the district court’s finding that Bursey “knowingly and willingly” remained in the area is affirmed, despite Bursey’s assertion that he did not know about the federal statute. In the words of the court, “Bursey took a calculated risk when he defied the orders of the officers to leave the restricted area, thereby intending to act unlawfully.”

The cruel irony of this, assuming I’m reading the opinion correctly, is that Bursey never did get to see the President. He did, however, get to see an Article III official, if not one from Article II.

Finally, the court affirms the dismissal of a Title VII (racial discrimination in employment, plus retaliation) claim, in Diamond v. Colonial Life. The opinion preserves the flexibility historically afforded employers within the Title VII framework to make meaningful subjective decisions on hiring, firing, and promotion (Diamond is a promotion claim).

The court also affirms the dismissal of Diamond’s retaliation claim, but on a basis other than the merits. The case was originally referred to a magistrate judge, who issued a report recommending that both of Diamond’s claims be dismissed. Diamond duly objected to that report, and the district court directed the magistrate to reevaluate the case under the new holding in Desert Palace v. Costa, 539 US 90 (2003). After this remand, the magistrate issued a new report, in which he mistakenly reported that Diamond had abandoned the retaliation claim. Diamond neglected to object to this aspect of the new report, and that foreclosed consideration of the issue on appeal. Even when a magistrate makes a patent mistake, litigants still must object at that time; it is not sufficient to present such arguments to an appellate court in the first instance.