SCV Unpublished Orders

SCV Unpublished Orders



(Posted December 13, 2022) Today isn’t opinion day, but we have a ruling to ponder. It’s really-most-sincerely unpublished, part of the SCV’s shadow docket of unargued cases. Last week, the Supreme Court handed down a six-page order in In re Biberaj, Loudoun County Commonwealth’s Attorney. It’s an original-jurisdiction petition that resolves a fiery dispute between a local prosecutor and a circuit-court judge.


Buta Biberaj is the elected Commonwealth’s Attorney for Loudoun County. One of her assistants acquired the ire of a circuit court judge in that county, arising from a plea agreement in a burglary prosecution. At a plea hearing, the judge felt that the agreed statement of facts tendered by an ACA was sketchy, so he asked for particulars at the upcoming sentencing hearing.


A different ACA appeared for sentencing and “attempted to address [the judge’s] concerns” about the statement and the plea deal. The judge balked at the explanation and continued the hearing to a later date “to further consider whether the plea is going to be accepted or some other action is going to be taken.”


But before that hearing date, thunder struck: The judge entered an order disqualifying the entire Commonwealth’s Attorney’s Office from the case. Here’s how the Supreme Court describes that order:


In relevant part, the order characterized portions of the SOF and Burton’s defense of the plea agreement as misleading and inaccurate and stated that Judge Plowman could “only conclude” the Commonwealth either negotiated the plea agreement without a “full review of the facts” and “due diligence” or was intentionally misleading the court and the public to “sell” the plea agreement for “some reason that has yet to be explained.”

In either event, Judge Plowman determined that the SOF and Burton’s response to his concerns demonstrated Biberaj’s office could not prosecute Valle “with the detail and attention required of a criminal prosecutor and consistent with professional standards and obligations of a prosecutor.”


Well, now. No one in the case had any advance warning that the judge was even considering a broadside like this. The judge also rejected the plea agreement, recused himself, and appointed a prosecutor from a neighboring county to handle the prosecution going forward.


Five days later, Biberaj filed a petition invoking the Supreme Court’s original jurisdiction. The petition sought mandamus and prohibition. The certificate indicated that she simultaneously served copies of the petition on the original judge and the chief judge of the Loudoun court. The petition named the original judge and the court itself as respondents.


The respondents moved the SCV to dismiss the petition. The first cited ground is technical and procedural: By statute, a petitioner must file a petition after serving a copy on all respondents. Biberaj filed and served this petition at the same time. The justices reject this contention, holding that simultaneous filing and service don’t mandate dismissal.


Turning to the merits, the justices first agree with the respondents that prohibition is the wrong remedy to address a claim of this nature. The circuit court unquestionably has jurisdiction over criminal prosecutions, and prohibition can only direct a lower tribunal not to exceed its jurisdiction.


That leaves mandamus. The Supreme Court first agrees with the original judge that mandamus won’t lie against him, but the reason probably isn’t what you think. Because that judge had recused himself, he was no longer able to enter any orders. The mandamus petition sought rescission of the disqualification order, and that judge was no longer able to comply even if the justices had ordered him to do something.


But it’s a different matter with the other respondent – the circuit court. The justices note that “mandamus is available to resolve whether Judge Plowman failed to provide Biberaj with sufficient process before he divested her of her constitutional authority to prosecute” the defendant in the case. The Supreme Court finds that Biberaj was entitled to notice and an opportunity to be heard before the judge acted. The SCV accordingly awards her a writ of mandamus that annuls the disqualification order and the appointment of the replacement prosecutor.


Mandamus is one of the “extraordinary remedies” set out in the Code, and this setup is nothing if not extraordinary. I’ll mention here a few aspects of this case that have caught my eye.


The circuit court judge justified his action by citing a 2007 SCV opinion, In re Moseley. That decision had addressed the power of a given court to bar a specific lawyer from practicing before it, in response to attorney misconduct. As I see it, reliance on Moseley was destined to fail. The attorney’s misconduct there was breathtaking, an order of magnitude worse than anything the prosecutor’s office might have done here, even in a light most favorable to the judge’s perspective.


This obvious contrast may have played a significant part in the ruling here. There’s certainly room for disagreement between judge and prosecutor over sentencing; that happens daily across this fair commonwealth.

But the judge here effectively overturned the decision of the Loudoun County electorate, which had entrusted prosecutorial duties – and hence prosecutorial discretion – to Biberaj. Something in the case convinced him that the normal course of action – refusing the plea agreement and assigning a new judge – would go too easy on the prosecutors.


The order in this proceeding also rests on the assumption that elected prosecutors have something akin to due-process rights to continue in a case. The order cites five prior opinions for the principle. I believe that those cases may be distinguishable at a micro level, though I do embrace the Supreme Court’s judgment here.


I learned long ago to question whether a given government has rights. This issue arose once, years ago, in an appeal where my adversary was a municipal government that claimed that a lower court had deprived it of a due process right. I told the justices, “Governments don’t have rights. They have powersPeople have rights.” In that vein, the cited decisions on this point relate to the right of a lawyer to practice law, or of a judge – some of the decisions were in JIRC proceedings – to continue in office. In those situations, I can understand that we’d afford those individuals a form of due process of law.


Here, the circuit court barred the entire Commonwealth’s Attorney’s Office; not a given person alone. And the order applies to a single prosecution; not to an entire docket.


That leaves me here in the analysis: Does an elected prosecutor have a property right in continuing to handle a given case, sufficient to require due-process protections before she and her office can be removed? The answer to that question may ultimately turn out to be “Yes,” but at first blush, that conclusion isn’t obvious to me.


I mention this because other proceedings in the legal news these days might well percolate to a similar point of conflict before long. I’m speaking of announcements by a number of progressive Commonwealth’s Attorneys that they will no longer expend their offices’ resources in prosecuting low-level drug offenses. A number of judges, including some truly learned ones, have reacted strongly to such announcements, claiming that the courts have the right (okay; the power) to appoint a substitute prosecutor to press such charges. The elected officials respond that they have to work within a budget, and they’re answerable to the voters, not to judges, for their prosecutorial priorities.


This raises important questions of law – judicial impartiality and separation of powers come immediately to mind. There are good arguments on both sides of this debate. I don’t know of any such dispute in the appellate pipeline, but if I see one, I’ll be careful to follow it.

Last comment: The Supreme Court resolves this proceeding by unpublished order. The court didn’t have to do that; it could have published an opinion, just as it has done in other high-profile OJ proceedings, such as Howell v. McAuliffe in 2016. I believe that the court should have done just that here. This decision belongs in the pages of Virginia Reports.



(Posted September 15, 2020) The Supreme Court of Virginia has been issuing unpublished orders for a long, long time. The court usually disposes of most of its merits docket with published opinions, but some get rulings that will never see the inside of Virginia Reports.

A peek at the court’s unpubs page – the court has posted unpublished orders on its website since the beginning of 2014 – shows an interesting trio. The three most recent orders have all come in high-profile political disputes. I reported on the first, Park v. Northam, a couple of weeks ago. There, the justices turned aside a request by a couple of business owners who challenged the Governor’s imposition of limits on public gatherings in response to the pandemic. The court issued that order on August 24.

Two days later, the court handed down Stoney v. Anonymous, a challenge to the Richmond Mayor’s plan to remove Confederate statues in the capital city. I covered that one, too; the Supreme Court reversed an injunction that a circuit-court judge had awarded to a citizen who wanted the statues to remain.

Now there’s a third. In Goldman v. State Board of Elections, issued last Wednesday, the court takes up a challenge by a prominent Democrat to the wording of the ballot question about the redistricting amendment to the Constitution of Virginia. The court refuses the petitioner’s request for writs of mandamus or prohibition. Mandamus fails because, the court rules, the Board of Elections exercises discretion over how to phrase the question. We know from prior rulings that mandamus won’t lie to compel the performance of a discretionary act; only the ministerial stuff.

The request for a prohibition writ meets a similar fate. Those writs are issued by a higher tribunal to a lower one, telling the lower court to stop exceeding its jurisdiction. The State Board isn’t a tribunal, so that remedy doesn’t fit.

So why are these three important orders, deciding hot-button-issue proceedings, unpublished? Don’t rulings this consequential deserve a permanent mention in our published jurisprudence?

Perhaps they do, but I don’t see four votes to publish any of these decisions. I can’t say this authoritatively, but I can offer some barely informed speculation on why the court decides not to publish some of its decisions.

First and foremost, I sense that the court will mark a decision as unpublished when it perceives that the holding will be of sharply limited utility as judicial precedent. If the fact pattern is so bizarre and unlikely to recur, the court may not see the value in placing the resolution in Virginia Reports.

Second, I sense that in the past – and I mean decades ago – the court may have issued an unpublished order to protect a prominent person from unfavorable publicity. Before 2014, those orders were almost invisible; no one but the parties received them without a specific request. For years before 2014, I collected them and reported on them, because there was no other access to them. Now you can find them here, though searching them isn’t anywhere near as easy as it is with their published brethren and sistren.

Third, it’s possible that the court chooses not to publish certain difficult decisions for fear that a hard case will make bad law. Unpubs have no value as precedent (at least in the Supreme Court; you’re free to cite them in lower courts), and the justices might perceive that a given close-call ruling might be better off not establishing a troublesome precedent.

This might be the reason why the court chose not to publish this year’s first unpub, Flint Hill School v. McIntosh, which arrived January 2. There, the court found a fee-shifting provision in a contract of adhesion to be unconscionable and hence unenforceable. Publishing that decision might have induced circuit courts to uncork comparable clauses in contracts with slightly different language. Flint Hill’s language was egregious, and the court might not have wanted to start a train of precedent running down the track on such extreme facts.

Note well that this is a guess; I don’t have any inside information on why this or any other ruling comes down without a published opinion. I write to let you know that sometimes the unpubs page features sexy decisions, too, and it deserves at least some of your attention.

One last point: Historically, the court has decided (very roughly) a third of its merits cases by order. Starting about five years ago, the justices have used unpubs for a greater proportion of the docket. Last year, for what I think is the first time, there were more orders (62) than published opinions (59), though 19 of those orders were published. So far this year, there have been 27 orders (including six published ones) and 35 published opinions.



(Posted February 8, 2018) You read that headline correctly, my brethren and sistren. The Supreme Court of Virginia hasn’t released a published opinion in 2018, so we’re down to analyzing unpubs. Even so, there have been only two of those since the calendar turned.



This morning, the court hands down a short order in a sanctions appeal: Barrett v. Minor out of the Bristol Circuit Court. This appeal began as a child-custody dispute. When the trial court sustained Minor’s demurrer to Barrett’s complaint, it dismissed the complaint with prejudice and set a date for argument on Minor’s motion for sanctions against Barrett. That hearing date was nearly three months down the road.

Four months after the hearing date, and almost seven months after the demurrer order, the court entered an order imposing the requested sanctions. Barrett appealed, and today the justices reverse and enter final judgment denying the imposition of sanctions, finding that the trial court lost jurisdiction 21 days after dismissing the complaint.

This outcome was predictable for appellate practitioners. The dismissal order didn’t retain jurisdiction over the case to adjudicate the motion for sanctions; it merely calendared the motion for hearing on a later date. The Supreme Court has already ruled that merely retaining a case on the docket isn’t sufficient to postpone finality. City of Suffolk v. Lummis Gin Co., 278 Va. 270, 277 (2009). Only entry of an order that expressly “retains jurisdiction” will keep the case in the breast of the trial court indefinitely. Johnson v. Woodard, 281 Va. 403, 409-10 (2012). You should regard that two-word phrase as a set of magic words that you must include in the order; if the phrase isn’t in there, you need to get the judge to sign an order suspending the judgment.

This is the first decision from the court’s January session, which concluded four weeks ago. For those of you who follow the timing of the court’s decisions, four weeks is about the time in which I expect to start seeing unpubs arrive; the first published opinions typically start arriving around six weeks after the session. If you’re keeping score, there are still eight appeals outstanding from the November session, and two groups of poor appellate souls are still waiting for rulings in appeals argued in September.

One last point on this case: The Fourth Circuit and the Court of Appeals of Virginia each have provisions allowing for summary reversals. 4th Cir. LR 27(f); Rule 5A:27. If the Supreme Court had a similar provision in its rules, I suspect that this appeal would have ended that much sooner.

UPDATE 3:00 p.m.: My appellate pal Steve Minor has given me some additional information about the case. He represented the appellee, and has forwarded to me a couple of documents that obviously aren’t in today’s order.

Steve realized that the trial judge had lost jurisdiction long before entering the sanction order. Indeed, he notified the trial judge of that fact long before this appeal; but the court pressed on. The eventual sanction wasn’t for a monetary award; instead, the court imposed a prefiling clearance requirement before Barrett could file any more litigation against Ms. Minor.

On appeal, while Steve might have tried to tilt with windmills and ask the justices to abandon their clear line of prior rulings, he took the professional approach instead. He notified the Supreme Court of his agreement that the trial court had erred. Despite that, the justices directed him to file a merits brief. Steve then filed a concise brief of appellee that outlines why the order was improper. Today’s opinion followed what I understand is a very short oral argument last month.

In the appellate field, Steve is one of the real pros. By handling this matter the way he did, he upheld the Principles of Professionalism and, in the process, gained priceless credibility with the Supreme Court.



In contrast to the short, plain ruling in Barrett, last week’s order in Dominion Nuclear Connecticut, Inc. v. Securitas Security Services USA, Inc. is complex and produces a divided ruling.

Dominion operates a power plant up in New England. It hired Securitas to provide site security at the plant. The contract contains a provision requiring Securitas to indemnify Dominion from liability arising from “any and all claims” brought by any party. The indemnity provision applies “to the extent arising from the negligence” of Securitas or its employees.

While apparently on patrol one day, a Securitas employee slipped and fell, injuring herself. She sued Dominion in a Connecticut court, alleging that the company was negligent. Dominion answered and asserted that the employee was at fault. It then asked Securitas to indemnify Dominion against the claim.

No dice, Securitas answered; neither we nor our employee did anything wrong. Dominion pointed to its answer, raising the comparative negligence defense, and contended that that assertion triggered the indemnity requirement. Dominion decided to sue Securitas here in Virginia – that’s what the parties’ forum-selection clause required – for breach of its obligation to provide coverage and a defense.

Analyzing cross motions for summary judgment, the trial court agreed with Securitas. Last week, a bare majority of the Supreme Court reversed and remanded the case.

We don’t know which justice wrote the opinion, except that it wasn’t one of the three dissenters, identified below. The majority finds that Dominion’s assertion of the employee’s negligence satisfies the “to the extent” provision, finding that her PI lawsuit “implicates her negligence as a Securitas employee and thus triggers Securitas’ duty to defend and, depending on the outcome of the suit, to indemnify Dominion.”

Justice Kelsey files a dissent, and he’s joined by the chief justice and Justice Goodwyn. He points out that the indemnity provision covers claims based on Securitas’s negligence. The employee’s lawsuit – the document that sets out her claim – never asserts that she was at all negligent; in fact, it says that she was blameless. The dissent would thus find that there’s no duty to indemnify, since Dominion’s defensive pleading isn’t part of the employee’s claim against the company.

How did Dominion manage to persuade a majority of the court that the word claim means “the claim and any defenses that may be raised in opposition to it”? Justice Kelsey asserts that it’s by a sort of legerdemain on the part of the lawyers:

In a creative interpretation, Dominion defines the relevant claim under the indemnity provision not as Brandenburg’s complaint, which is predicated solely on Dominion’s negligence, but rather as Dominion’s answer, which includes a comparative-fault defense predicated solely on Brandenburg’s negligence. I am content to dismiss this argument with the observation that the claim referred to in the indemnity provision means a claim – not an affirmative defense to a claim. Dominion sees no difference between the two because it substitutes the word “accident” for the word “claim” in the indemnity provision. Dominion’s briefs on appeal lay bare this substitution with the repetitive, but erroneous, assertion that the indemnity provision applies if Dominion shows that the “accident was caused, at least in part, by [Brandenburg’s] own comparative negligence” and that, as a result, “the accident could have arisen from Securitas’s negligence.”

(Emphases original in dissenting opinion) The dissent points out that Securitas will thus have to pay 100% of the costs to defend the Connecticut lawsuit, even if it turns out that the employee really wasn’t at fault.

I know better than to make sweeping pronouncements about cases where I haven’t seen the briefs. I can, however, say that after reading these two passages, my sentiment lies with the dissent. I do see a difference between a claim and the defenses to that claim. If the indemnity language had been phrased differently – for example, if it had covered all litigation in which a claim of negligence by Securitas or its employees was a triable issue – then I might feel otherwise.

The reason why this decision is unpublished is assuredly because of the unique language used in the indemnity agreement, making the decision of limited utility as precedent. It’s worth noting that even Justice Kelsey acknowledges that the indemnity language was “awkwardly worded,” the result of “poor craftsmanship.” Right now, some transactional lawyer is reading that passage, and cringing.



Moore v. Fuller (5/11/2017)
I’ve had a couple of requests for comment on last week’s unpub in Moore v. Fuller, involving competing family trusts. The primary holding is that a court has no authority to adjudicate a claim that hasn’t been properly pleaded. The appellees filed a petition for aid and direction, and in a brief supporting a motion to show cause, they asserted that the appellants had defrauded them. The trial court  took that as a fraud claim and adjudicated it, but the Supreme Court reversed, holding that since a brief isn’t a pleading — see Rule 3:18(a) — there was no valid fraud claim before the court.

In a second ruling, the justices also reverse the too-late entry of an order that had modified the final judgment. The original order compelled the parties to comply with a settlement agreement, and one of the terms of that agreement was reciprocal global releases of all claims. Five weeks after entering that order, the trial court modified it to exclude from the releases any potential right of action for fraud. The court justified its act as correction of a scrivener’s error, but the justices find that this is a substantive change. Scrivener’s errors are more like typos — for example, entering an order that uses the word there where the context clearly indicates that three was intended. This signals that the Supreme Court takes a very narrow view of technical corrections under Code §8.01-428, a holding that’s in line with previous caselaw.


Cawley v. Spickermann (12/29/2010)
Jury returned Bowers verdict in case of uncontested liability. When sent back to deliberate further, jury returned note asking if it had to award more than specials; it eventually returned verdict for $0. Case remanded as inadequate as a matter of law; to be retried.

Bailey v. Keith Irwin Installations (12/29/2010)
Contractor built catwalk for Aramark, a company that rents linens and uniforms. Aramark helped with construction, but not as normal part of its business. Statutory-employee doctrine does not apply to bar tort claim against contractor under Workers’ Comp Act.

Appellate Procedure

Landrum v. Chippenham and Johnston-Willis Medical Center (11/10/2010)
Assignments of error struck where appellant changed wording of assignments after writ was granted.

Criminal Law

Newby v. Commonwealth (8/13/10)
In this case, a conviction for distribution of obscene materials is reversed where the defendant was charged with preparation of obscene materials, and the warrant was never amended.

Pettaway v. Commonwealth (10/8/2010)
Denial of motion to suppress affirmed. Defendant struggled to prevent officer from conducting a patdown search of his pocket; this constituted a separate offense (obstruction of justice), so subsequent search of pocket was incident to lawful arrest.

Riddick v. Commonwealth (10/8/2010)
Simultaneous prosecutions for (1) use of firearm in commission of felony and (2) wounding during commission of felony are permissible because each requires proof of an element the other does not.

Bennett v. Commonwealth (10/8/2010)
Simultaneous convictions for two counts of use of firearm in commission of felonies can support “second or subsequent offense” component of five-year minimum sentence.  Sentence of eight years on two firearms charges affirmed.

Sexually Violent Predators

Graves v. Commonwealth (10/8/2010)
Civil commitment of sexually violent predator affirmed over Crawford and hearsay challenges. Crawford does not apply to SVPA proceedings, because they’re civil, not criminal. Hearsay objection should have been sustained, but error was harmless in light of overwhelming weight of other evidence.

Civil Procedure

Pittkin v. Loddon (U.S.) Ltd.


[Posted June 3, 2011] There were 23 cases argued in the Supreme Court’s April session, and the court has already announced decisions in four of them. The fourth comes today (as usual, by unpublished order) in Pittkin v. Loddon (U.S.) Ltd. It involves the seldom-used remedy of attachment, and explains the measure of damages when an attachment is released.

In 1996, Pittkin attached (wrongfully, it turns out) certain building materials that were being held by Loddon for the construction of stalls for horses. The materials were metal poles (for framing) and lumber (used to construct walls). They were held for eight years, and evidently were left out in the elements for a good chunk of that time.

Wood, my loyal readers, rots when it’s left out for that long. And even steel corrodes. The owner sought damages for the loss of value of its property. The trial court awarded it $83,000, representing the original amount of the attachment bond less the salvage value of the materials.

There are a couple of interesting points here. The primary issue in the trial court was Pittkin’s argument that Loddon didn’t adduce satisfactory evidence of the value of the goods. First, the trial court ruled that the fair market value of the goods at the time of the attachment was $100,000, which was the amount the attaching party (Pittkin) certified the goods were worth when he seized them. The court noted that no one had taken issue with the amount of the bond, so he felt that was a fair “starting point.” Today’s order doesn’t give us an extensive review of the evidence, but I wonder whether the owner of the materials tried to offer evidence that the value back in 1996 was higher than $100K.

The Supreme Court affirms the award of damages, noting that the measure of the owner’s recovery is the difference between the value on the date of seizure and the value on the date the attachment is released. That’s fine as far as it goes, but the owner had tried a different tack: It argued that the materials, if they had not been damaged by the weather, would actually have been worth over $300,000 on the release date. (Must have been quite a rising market for this kind of lumber in the intervening eight years.) It accordingly sought a much higher recovery in an assignment of cross-error. But the Supreme Court rejects that claim today, reaffirming the previous calculus for this kind of damage: Original value minus release-date value.

I was in court in April when this case was argued; I represented the appellant in the argument immediately following it. When I was called to the lectern, the devil within me could not be restrained, based on what I had just heard. I began my argument (after introducing myself, of course) with, “Unfortunately, I don’t have the beautiful irony of arguing a case about lumber that was decided by a judge named Wood . . . .”

Davis v. Davis (10/1/2010)
Error for court to grant summary judgment where no motion for SJ is pending.  Ruling based on procedural due process.