ANALYSIS OF APRIL 16, 2015 SUPREME
[Posted April 16, 2015]
Today is opinion day for the Supreme Court of Virginia’s April session. Unlike
the last opinion day back in late February, when I was snowed in at my home,
today is play-hooky weather; right now my golf clubs are sobbing to be let out
of my trunk. But no recreation for me today; we get 15 published opinions, so
let’s dig in.
After waiting for many
moons, we finally – finally! – get a ruling today in Yelp, Inc. v. Hadeed Carpet Cleaning. Hadeed suffered the indignity
of negative reviews on Yelp, and thought that a competitor might be behind all
those nastygrams. But they were posted anonymously, as I understand most Yelp
reviews are. So how do you determine whom to sue for defamation in that
Hadeed decided to sue
several John Does, and then sent a subpoena duces tecum to Yelp, asking for the
identities of those posters. Yelp resisted on First Amendment grounds (among
other reasons), saying that the right to freedom of speech includes the right
to anonymous speech. The trial court sided with Hadeed and ordered production.
Yelp refused and was held in contempt, producing this appeal.
This case is simply dripping
with First Amendment issues. For example, does Yelp have standing to assert its
posters’ First Amendment rights? But if you were looking for a broad
freedom-of-speech ruling today, you’ll be disappointed; the court rules on
jurisdictional grounds that Virginia courts
weren’t empowered to enforce the SDT against Yelp, which is a California company.
Now, in case you’re
disappointed with the absence of a fiery First Amendment holding, please allow
me to reassure the procedure geeks among you, this is a fascinating decision.
The decisive question is whether the Virginia
statutes provide for service of subpoenas against non-party foreign citizens.
It’s related to, but separate from, the issue of longarm jurisdiction, the
power to hale a foreign person or entity into a Virginia court.
Today’s majority – Justice
McClanahan writes the opinion of the court – finds that the Virginia statutes don’t provide for that
subpoena power. The discussion is complex, but the ultimate ruling is that
Hadeed has to proceed under the Uniform Interstate Depositions and Discovery
Act. That leaves the plaintiff an out, although it may have to go to California to get the
names, and hope that the courts of that state will allow a peek into the
dissent/concurrence, written by Justice Mims and joined by Justice Millette,
that takes a different route. It tracks recent SCOTUS jurisprudence on longarm
jurisdiction and notes that for constitutional – not statutory – reasons, Virginia can’t exercise
any kind of jurisdiction over Yelp on this record. Yes, the company has appointed
a registered agent here, but under that recent caselaw, that fact isn’t enough
to allow our courts to exercise power over a California resident. Companies now are
subject to suit (and concomitantly service of process) only where they’re “at
home,” and for Yelp, that home is on the west coast.
For this reason, the dissent
is really a concurrence, stating that the majority is right for the wrong
reason. I could spend hours untangling the web of Virginia statutes that generate the primary
dispute between the parties, and after doing that, I might side with the majority or the dissent; I'm not sure. But I'd like to get you this analysis today, rather than sometime next month.
In the end, I can at least say that I agree with the dissent, that
current SCOTUS caselaw compels the dismissal of this show-cause order on
due-process grounds. Keep this in mind as you consider suing out-of-state
defendants; this landscape has changed enormously in the last five years. The old longarm caselaw that you learned back in law school,
assuming you’re roughly my generation, is probably no longer good law. I think
we’re much closer now to Pennoyer v. Neff from the 1870s (no out-of-state
jurisdiction) than we are to International Shoe in 1945 (minimum-contacts
It’ll pay to keep a careful
eye on One Capitol Street
for further developments on this issue. For now, Hadeed is left with a bunch of
judgment-proof John Does.
Virginia’s condemnation statutes require that a condemnor
obtain an appraisal of property before negotiating to purchase it, and of
course before filing an eminent-domain action. The dispositive issue in Ramsey
v. Commissioner of Highways is whether that initial appraisal is admissible at
trial, where the condemnor later gets a lower appraisal.
The Commissioner appraised
the landowners’ property at $500,000, and stated that just compensation was
about $246,000 for the portion he wanted to take (including damages to the
residue). He gave the landowners an oral and written report, and then made an
offer to purchase the required rights. That didn't produce a deal, so he filed
a certificate, deposited the $246K, and “quick-took” the land.
As allowed by statutes, the
landowners withdrew the deposited funds and prepared for a just-compensation
trial. But the Commissioner hired another appraiser – the original one had
retired – who reported much lower figures: $250,000 for the full value of the
land and $92,000 for just compensation.
At trial, the Commissioner
used this second appraiser’s more-favorable testimony, and obtained a ruling
from the trial court that the landowners weren’t allowed to tell the jury about
the original appraisal. The landowners appealed that ruling, and got a writ.
Today, the justices
unanimously reverse, holding that under Virginia
law, the precondemnation statement wasn’t made during settlement negotiations.
Indeed, the statute says that the Commissioner must state the value before initiating negotiations, so the
Supreme Court holds that by definition, it isn’t part of the negotiation
process. The case is remanded for a new trial, in which the court is directed
to use ordinary rules of evidence to determine the admissibility of the
original statement, presumably as a party admission.
Code §8.01-428 provides a
remedy for a defendant who suffers a default judgment and wants to be relieved
of it. If he can show things like fraud on the court, an accord and
satisfaction, or a void judgment, a court can reopen the case, even after the
passage of the appellate deadlines.
But what about a plaintiff
who wants to canopener her own judgment? Can she use that statute to get
another crack at a defendant who didn’t appear to defend? That’s one of the
questions in Sauder v. Ferguson.
This case arose after an
automobile collision. Before Sauder sued Ferguson
for her injuries, some insurance carriers got into a declaratory-judgment scrap
over who might be on the hook. During that DJ proceeding, in which Sauder was
present and represented by counsel, Ferguson testified to his current address,
which was different from the one listed on the accident report.
When she got around to suing
– using a different lawyer – Sauder unfortunately forgot about that testimony,
because she tried to serve Ferguson
at the address on the report. She also served an insurer called Rockingham
Mutual, as her UIM carrier, instead of its corporate cousin, Rockingham
Casualty, despite the finding that the latter was the UIM provider. (Rockingham
Mutual doesn’t insure cars.)
Ferguson got a default judgment against Ferguson and Rockingham Mutual, and a judge
awarded her the full $100K that she was seeking. But for reasons that we may
not know, she later desired to reopen the case, nonsuit it, and refile it –
presumably to seek more damages than she had recovered the first time.
A trial judge initially
rejected Sauder’s argument that the court had no discretion to refuse to reopen
– after all, the statute uses the word may – and later ruled that he would not
exercise discretion to do so, either. Today, the Supreme Court affirms both
holdings. On the abuse-of-discretion angle, the court holds that refusing to
reopen was a permissible action, given these circumstances.
There’s a short concurrence,
written by Justice Powell and joined by Justice Mims, that would use a simpler
route: estoppel. The dissent notes that Sauder made her choice of how to serve Ferguson, and later
proceeded to judgment on the assertion that she had good service. Since you
can’t take contrary positions in the course of the same litigation, the dissent
feels that she should be barred in the first place. In my view, there’s a very
small difference between this view and the majority’s conclusion that Sauder
was “the architect of [her] own misfortune.”
In a published order also
released today, the court reverses the grant of a nonsuit in Anheuser-Busch Companies v. Cantrell.
The plaintiff in an asbestos-exposure case asked for a nonsuit after fully
briefing and arguing a defense demurrer. The nonsuit came as the parties were
awaiting a written ruling from the court, which had heard the parties’
arguments and had promised them a ruling in the coming weeks.
The Supreme Court today
finds that that nonsuit came too late, since it was taken after the case had
been submitted to the court for decision. A demurrer is a dispositive pleading,
so it counts among the issues that qualify for the treatment as “submitted for
Normally you can’t appeal a
nonsuit, which isn’t a final order. But when the issue is, as here, whether the
trial court had the authority to grant the nonsuit, the justices will indeed
Subject to a few specific
exceptions, affirmative defenses have to be pleaded, or else they’re waived.
The court determines today, in Howard v.
Ball, whether adverse possession is such an affirmative defense in a
Somewhere between the crags
of Buchanan County lie two adjacent farms, one owned
by Howard and the other owned by Ball. The parties’ common grantor divided the
tract in 1905.
Ball’s predecessor had his
farm surveyed in 1957, and later built a fence along the boundary line between
the farms, as shown on that plat. Howard commissioned a survey of her farm in 1996, and it confirmed that
boundary line. In 2009, she had yet another survey done, and this one showed
the property line inside the fence line, on Ball’s side.
If this newer survey is
right, then Ball has been farming some extra acreage for quite a while. When
the survey showed the discrepancy, Howard filed a boundary-line suit. Ball,
acting pro se (cue the ominous music here), filed a response in which he
disputed Howard’s claim and relied on his 1957 survey.
At trial, the two most
recent surveyors testified. Over Howard’s objection, Ball put on a defense of
adverse possession, showing that he and his predecessors had controlled the
disputed land since the Eisenhower Administration, comfortably beyond the
15-year limitations period for land possession.
The trial judge sent out a
letter opinion, ruling in favor of Howard. He noted that the outcome would have
been different if Ball had actually pleaded adverse possession; but since he
hadn’t, he couldn’t rely on it at trial. Ball moved for reconsideration and
gave the judge a copy of a 1921 case that holds that “adverse possession is a
defense which can be made in [an ejectment] action under the general issue.”
And since boundary-line suits “are governed by the same legal principles” as
ejectment actions, it looks like Ball might not have waived anything at all.
The trial judge read the
1921 case and changed his mind. He issued a second opinion that granted
judgment in favor of Ball.
As it turns out, he should
have stuck with his first instinct. The Supreme Court points out today that in
the substantial interim between 1921 and now, pleas of the general issue have
been abolished in the Rules of Court. Nowadays, a defendant is required to set
out what his defenses are. There are still some exceptions, such as for matters
that are defined in statutes; but the court finds that none of those exceptions
apply here. That means the judgment is reversed, and Howard’s farm will remain
Freedom of Information Act
Today’s ruling in Fitzgerald v. Loudoun County Sheriff’s
Office resolves a narrow question about an exemption from FOIA’s disclosure
requirements. The act provides that criminal investigative files need not be
released. The precise question here is whether those documents are still exempt
even after the police have concluded that no crime occurred, and have closed
The investigation here
involved a death that was determined to be a suicide. During the investigation,
a deputy sheriff found “what appeared to be a suicide note” that was addressed
to the decedent’s supervisor at work.
Fitzgerald sought production
of all documents about the investigation. Today’s opinion doesn’t describe his
relationship to the decedent, if any, so I don’t know if he was, for example, a
distant relative or a newspaper reporter. The sheriff’s office resisted the
request, citing the criminal-investigation exemption. Fitzgerald went to GDC
and later circuit court, but got nowhere. The justices agreed to take this
case, to settle the question.
The court affirms today,
noting that a document doesn’t lose its character as a criminal-investigative
file merely because it’s closed, or even because the department concludes that
there was no crime at all. At the time the documents were gathered, there was
unquestionably a criminal investigation in progress, and the court holds today
that the exemption doesn’t contain a provision that ends the exemption when the
case is closed.
Fitzgerald also cited a
separate statute that requires disclosure of “noncriminal incidents records.”
The Code defines that term as “compilations of noncriminal occurrences of
general interest to law-enforcement agencies, such as missing persons, lost and
found property, suicides and accidental deaths.” Since suicides are
specifically listed, it looks like the suicide note – which by the time of oral
argument was the only thing Fitzgerald was really interested in – was subject
go back to the beginning of the definition: compilations.
The court finds today – and speaking as a word-nerd, I think this is the right interpretation – that a
single note isn’t a “compilation” of things, so this provision doesn’t convert
the note into something that had to be disclosed.
As you can imagine, it takes
a highly unusual set of circumstances for a name-change petition to make its
way to Ninth and Franklin.
In re Brown is such a case.
Brown is an inmate in a
federal prison in Petersburg.
He’s been diagnosed with Gender Identity Disorder, and “is transitioning from
the male gender to the female gender.” He asked a Prince George County court to
change his name from Robert Floyd Brown, Jr., to Alicia Jade Brown.
The trial court found that
no good cause existed to grant the change, so it refused. Brown appealed and in
late 2013, the justices remanded by unpublished order, directing the trial court
to apply a 2007 decision that disposed of the issue in its reconsideration of
the petition. At this point, it looks like the trial court is going to have to grant the petition.
But on remand, the trial
court wouldn’t budge. It refused again, saying that Brown’s “stated reasons for
the name change do not outweigh the potential negative impact on the community.”
At this point Brown headed
back to Richmond.
(Well, the petition did so; Brown stayed in custody in Petersburg.)
Today, the justices reverse
and remand again, this time with a specific directive to grant the name change.
The court notes that there was a 2014 amendment that added one burden in
inmate-name-change petitions, so that now they must show that the change wouldn’t
“frustrate a legitimate law-enforcement purpose.”
The first legal issue is whether
this amendment is substantive or procedural. If it’s substantive, then it won’t
apply to this proceeding, which was filed before the amendment took effect. If
it’s merely procedural, then Brown is stuck with proving another element.
The majority decides that it’s
substantive, so it applies the pre-2014 version of the statute. Justice
McClanahan, dissenting alone, thinks it’s just procedural, and the case should
be remanded for reconsideration, not merely summary issuance of the change.
Bartolomucci v. Federal Insurance Company is a declaratory-judgment proceeding to determine
whether an employee is covered by his business’s insurance policy when he’s
involved in a collision while commuting to work from home. Since the employee
is a lawyer and the company is a law firm, I will assume that I have everyone’s
The lawyer had a personal
liability policy with what look to me like unthinkably low limits: $100,000.
The injured party in the collision wasn’t willing to take that, so the lawyer
sued his law firm’s carrier, seeking a declaration that that company was on the
hook for the excess up to its $1 million limits.
The trial judge convened a
jury to decide the factual question whether the lawyer was using his car in the
law firm’s “business or personal affairs” when the accident happened. The jury
responded that he was indeed, but the judge set that aside and entered judgment
for the insurer, holding that there was no evidence to support that verdict.
The lawyer and the
injured party – both of whom earnestly wanted a ruling in favor of coverage –
appealed and got writs. Today the Supreme Court affirms. In separate holdings,
it rules that:
firm’s excess-coverage provision doesn’t apply because the law firm didn’t own
the lawyer’s car;
Named Insured was the law firm, not the lawyer (if it’s any consolation, he is
found to be an Insured; jut not a Named Insured);
“use in business or personal affairs” provision wasn’t ambiguous, even though
you may not conceive of a business as having “personal affairs”; and
“autos you do not own” provision doesn’t apply here because of other language
in the policy.
There’s an interesting issue
on which we don’t get a definitive ruling. Since the jury rendered an opinion
in a DJ action, was its finding advisory, or binding on the judge? Appellate
lawyers will tell you immediately that the answer means a great deal. That’s
because a binding jury determination is reviewed under the very tough standard of
Code §8.01-680; while an advisory ruling is much more forgiving on review. The
justices today assume without deciding that the stricter standard applies, so they leave to another day the ultimate resolution of this question.
The rapid pace of technology
change again makes its way into a Supreme Court opinion in Kelley v. Commonwealth. It’s a prosecution for distribution of
child pornography. Kelley downloaded images using a program called Ares, which
is a peer-to-peer program. When he did so, the images were automatically
available to anyone else in the file-sharing community. You can restrict access
if you want, but Kelley didn’t do that.
One key issue here is
whether the mere act of downloading the material is sufficient to prove
distribution in this context. Kelley argued that he had to do something volitional
in order to be convicted. But setting up his software without restricting
access was enough to support a conviction. I’ll add that the standard of
appellate review is a major contributing factor to this outcome, as it is to so
I got to watch the oral
arguments in the next two criminal-law decisions, so it’s interesting to
compare my impressions then with today’s opinions. Walker v. Commonwealth is a drug-distribution appeal that involved four
alleged sales of crack cocaine by the defendant to a police informant over a
13-day period. Walker
asked for separate trials on the four indictments, but the trial judge agreed
that the sales were part of a common scheme or plan, so he ordered a joint
trial. The jury got ‘im and Walker
received four 6-year sentences.
The Court of Appeals
affirmed, agreeing that there was enough commonality to justify the judge’s
decision to order a single trial. But today, a majority of the Supreme Court
reverses and sends the cases back for separate trials, if the Commonwealth
chooses to proceed.
The first difference of
opinion arises early, in the standard of review. The majority, written by
Justice Mims, notes that a ruling like this is generally reviewed with an
abuse-of-discretion standard. But he notes that in interpreting the rules –
which is really what this appeal is about – it’s de novo, which is much more
favorable for Walker.
The dissent (Justice Kelsey, joined by Justice McClanahan) would stop at abuse
That matters, because the
majority finds that this doesn’t fit the elements of a common plan. (Common
scheme is a different animal, and doesn’t really come into play here.) Such a
plan has to have an element that’s extrinsic to each of the offenses. The
majority gives an example of a bandit who breaks into a banker’s home, steals a
key, and then uses the key to break into the bank. The extrinsic purpose of
burglarizing the house is to steal the loot in the bank's safe.
In contrast, “[t]he object
of selling drugs for money is to make money selling drugs.” As Justice Mims
puts it, “the cultivation of return customers is intrinsic to the goal of profiting from the sale of drugs.”
The dissent agrees that
“[e]xpanding the common plan definition to this level of generality would
render the joinder test unreasonably broad.” But it would still leave
these decisions to the trial courts, which are able to see and appreciate the
minute similarities – or distinctions – in the case and make a reasonable
What it comes down to, of course,
is the question of propensity. If a jury hears that Walker is charged with a single instance of
distribution, it might well conclude, depending on the witnesses, that he isn’t
guilty. With a joint trial, the jury hears about four separate transactions, so
an innocent-mistake defense is far less likely to fly. Evidence of other bad
acts isn’t admissible if it only shows propensity.
But it can be admissible to
show something else. For the dissent, this makes a dispositive difference. Walker’s lawyer telegraphed
at trial that he wanted to challenge the proof of his client’s knowledge that
the substance was crack. The dissent finds that to be a legitimate reason to allow
joint trials, since he wouldn’t be likely to be mistaken when he did the same
thing over and over again.
The next case is another
drug-distribution appeal. Williams v.
Commonwealth started in the City of Norfolk,
and … well, that's actually the whole issue.
This is a case about whether
the prosecution proved the venue of the crime. Williams met a man on O’Keefe Street in Norfolk one evening; that
man asked about buying crack cocaine. Williams offered to help. The two got
into the man’s car – by now you’ve figured out that we’re talking about an
undercover cop – and Williams told him to drive to the 800 block of Fremont
Street. The officer testified that at that point, the two “drove over there.”
When they got to Fremont, Williams made a
small drug buy as an intermediary for the officer; a grand total of twenty bucks changed hands. The two then drove back to O’Keefe Street,
where Williams met his fate, in the form of “an arrest team.” At that point, he
had the right to remain silent.
The key component of this
appeal is that while the officer testified that O’Keefe is in Norfolk,
he never said where Fremont
was. When the Commonwealth rested, Williams moved to strike on two grounds, one
of which was venue. The prosecutor invited the judge to take judicial notice of
the location of Fremont Street,
since the officer had said it was “a relatively short drive.”
Well, actually, he never
said that. But in ruling on the motion, the judge merely denied it without
explanation. Williams rested without putting on any evidence, and again the
judge denied a motion to strike. He convicted Williams and gave him ten years
to serve. (This was a third conviction of this offense; hence the
The Court of Appeals
affirmed. It inferred that the judge had done as the prosecutor had asked and
had taken judicial notice of the location of Fremont Street, even though he didn't say
that out loud. Today, a divided Supreme Court reverses.
The chief justice writes the
majority opinion. He acknowledges that a judge doesn’t have to intone the words
judicial notice in order to accept it
in lieu of formal proof. But here, the judge didn’t do anything except issue a
plain-vanilla ruling – “I overrule the motion” – before moving on. The judicial
notice rule (2:201) allows a party to “an opportunity to be heard as to the
propriety of taking judicial notice,” and the majority rules today that this record
doesn’t reflect that Williams was ever warned that the judge was doing that.
In the absence of proof of
venue, the court reverses the conviction. But the dissent – Justices Powell and
McClanahan – see nothing wrong with the simple conclusion that the judge did
exactly what the prosecutor asked in his short argument. The dissenters think
it perfectly rational to view the record in just this way; there’s just no
other way to look at what happened and explain the ruling.
Back in the medieval period,
when I occasionally prosecuted cases in Virginia
Beach, I learned to conclude my direct examination of
my police officer with a stock question: “In what city and state did these
events occur?” Failing to prove venue is one of those often-overlooked items on
a prosecutor’s checklist, and sensible defense lawyers are eager to pounce if
the prosecutor forgets.
One last point: Williams
wins, but he probably loses. Since venue isn’t part of the crime – it’s just
something that the prosecution has to prove in order to establish that the case
is being tried in the right place – the Supreme Court doesn’t direct a
dismissal of the indictment. Instead, it directs the CAV to send the case back
to circuit court, where the Commonwealth may try Williams again, if it be so inclined.
If that prosecution does go forward, I invite you to consider how early in the
officer’s testimony my old stock question will appear.
I had to read the analysis
portion of Wagoner v. Commonwealth
twice in order to be sure I understood it. It involves a conviction of felony
abuse or neglect of an incapacitated adult. The story is heartbreaking, but the
legal analysis can be puzzling.
Wagoner is the owner of a
residential group home for men with intellectual disabilities. A resident
sustained serious scald injuries when he was left alone in a bathroom for five
or six minutes; he had evidently gone into the shower and turned on the hot
water. The home’s staff discovered him and undertook to treat his injuries
in-house instead of taking him immediately to a hospital.
When the resident’s skin
condition worsened the next day, a staff member started to take him to a
hospital, but was countermanded by Wagoner. Wagoner came to the home, looked at
the resident’s injuries, and directed his staff to continue to treat the man
in-house after consulting a pharmacist.
The resident died nine days
later; a pathologist concluded that death was a result of sepsis and pneumonia
from the untreated scalding, resulting in second-and third-degree burns that
covered 30% of the resident’s body. A grand jury indicted Wagoner for felony
abuse or neglect.
At trial, in addition to the
pathologist, a medical examiner testified that a patient with second-and
third-degree burns over 30% of his body “would require automatic admission to a
burn unit.” He opined that the appropriate treatment for this injury included
debridement, or surgical removal, of the affected skin, in order to prevent
The medical examiner
concluded that the patient actually had serious burns over 18% of his skin. He
estimated that those injuries would be 100% fatal if untreated, and 75% fatal
even if treated.
That brings to the fore the
primary legal issue at trial and on appeal. The felony-neglect statute requires
proof that the defendant’s actions or inaction “resulted in” the victim’s
death. As I understand it, Wagoner wasn’t being prosecuted for the original
scalding injury; just for failing to secure appropriate and timely treatment.
Wagoner argued at trial, in
motions to strike, that this evidence didn't prove that the failure to obtain
treatment “resulted in” death; it was actually more likely that the original
scalding injury was the cause of death. The trial court, borrowing from
medical-malpractice jurisprudence, denied the motion because it felt that a 25%
chance of survival represented a substantial possibility. In doing so, it
rejected Wagoner’s contention that the prosecution had to prove not
possibility, but probability.
I think this warrants a
brief grammar-geek digression, on the difference between probability and possibility.
In the field of mathematics, there may not be much of a difference; one can say
that the possibility of an event of the probability of an event is 7%, and
either is correct.
But outside the field of math,
the words have undergone differentiation. A “possibility of survival” and a
“probability of survival” mean slightly different things. Anything with more
than a zero percent chance of happening is possible, but we wouldn’t call it
probable. The best illustration is to consider the words’ antonyms: The
opposite of possibility is impossibility, which means that zero
percent chance; while the opposite of probability
is improbability, conveying
In that sense, you can see
Wagoner’s point: it’s actually three times more likely that the original
scalding caused the death, as compared with anything he did or failed to do.
Doesn’t the Commonwealth have to prove beyond a reasonable doubt that the
patient’s death “resulted from” Wagoner’s actions? Isn’t it reasonably likely
that, no matter what Wagoner had done, the patient would have died anyway?
That brings us back to that
med-mal doctrine, the deprivation of a substantial possibility of survival. The
court is careful in today’s opinion to note that what it says in this
criminal-law decision won’t affect existing med-mal jurisprudence – see
footnote 3 on page 12 of the slip opinion – but it nevertheless accepts the
loss of a substantial possibility of survival as furnishing some proof of
The court’s decision is
almost unanimous. Justice Powell writes for the majority of six, and she
concludes that the trial court and the Court of Appeals incorrectly used “loss
of a substantial possibility of survival” as the fulcrum for deciding proximate
But the court affirms the
conviction anyway, on different grounds. It finds that the medical examiner’s
testimony established that the purpose of a debridement was to remove
potentially lethal bacteria, and the pathologist said that she had found such
bacteria had caused the decedent’s sepsis. That was enough for the jury to
infer that the death was the result of the absence of proper medical care.
Justice McClanahan concurs
in the judgment. In a footnote, she wonders what the majority’s fuss is all
about, since it essentially affirms the trial court’s decision that there was
sufficient evidence to support a finding of proximate causation. She also
points out that the standard for deciding a motion to strike the evidence is
exactly the same as that for deciding a motion to set aside the verdict, so she
expressly rejects Wagoner’s contention that the trial court should have applied
a tougher standard once the verdict came in.
When I read the first page
or two of Bailey v. Spangler, my
heart sank. It’s a certified-question proceeding from federal court over the
effect of a 1981 statute that relates to ownership rights in depleted mines.
The brain reels, just in pondering it. I’ll admit that I thought to myself,
“Poor Justice Goodwyn, who drew the short straw for a dreadful case.”
But I was wrong; it’s
actually an interesting issue that’s easy to understand, in no small part
because his honor does a good job of making it so. Here’s the setup:
Bailey owns a parcel in Dickenson County, out in coal country. In 1887,
her predecessor in title executed a severance deed, granting mineral rights in
the land to a mining company while retaining the surface rights.
In 1920, the Supreme Court
decided, as a matter of first impression, the question of which party owns
what’s called the “mine void.” As you might imagine from the name, a mine void
is the space that’s left after the minerals have been extracted and the mining
company has packed up and gone home. You might think of it as the underground
That 1920 decision held that
unless the severance deed specified otherwise, the surface owner owned the mine
void, and the mining company couldn’t continue to use it after mining
operations there ceased. Sixty years later, the General Assembly entered the
fray; it passed an act that effectively reversed that presumption, giving the
holder of the mineral estate the continuing right to use the space for
transportation, ventilation, and so forth. The statute contains a limitation:
provisions of this section shall not affect contractual obligations and
agreements entered into prior to July one, nineteen hundred eighty-one.
Let’s fast-forward to the 21st
Century, when Spangler, who’s the Director of the Department of Mines, Minerals
and Energy, issued permits to mining companies to conduct operations in the
mine voids under Bailey’s property. Bailey didn’t like that, so she filed suit.
The case got removed to federal court, and the learned judge there decided it
would be a good idea to get the justices’ views on the effect of this statute.
The certified question asks whether the old case or the newer statute governs
Spangler acknowledged the
limitation in the statute, but he argued that deeds are different from
“contractual obligations and agreements,” and so should be treated differently.
He noted that almost all severance deeds in Virginia predate the 1981 effective date of
the statute, so ruling in favor of Bailey would gut the law’s effectiveness.
Today, the justices decide
that it doesn’t matter whether a deed is the same as a contractual obligation,
because the ultimate answer is the same either way. If a deed is a contractual
obligation, then clearly the limiting sentence applies and Bailey owns the mine
void, since her deed was way, way
before 1981. And if a deed is different, Bailey still wins because of the
principle that the courts won’t apply a statute retroactively unless the
legislature clearly manifests an intention that it should be retroactive.
There’s no such language in the 1981 act, so the court rules that this
situation is governed by the 1920 decision, not the statute; Bailey wins and
the director loses.
There; that wasn’t so hard,
One of the most eagerly
anticipated rulings of the day is BASF
Corporation v. SCC, consolidated
with an appeal by James
also against the SCC. This is the appeal over the siting of transmission lines
across the James River, in the area of Jamestown.
Dominion Virginia Power
finds itself in need of more electrical capacity on the Peninsula
and beyond. EPA regulators will require the utility to shut down six coal-fired
generation units in the near future, and doing that without replacing the
electricity thus generated would subject customers to rolling blackouts.
The utility studied the
problem and decided that the easiest and most cost-effective way to do address
it would be to string transmission lines from the Surry nuclear power plant
across the James to an area near Fort
Eustis, and thence to the
areas that need more electricity.
This proposal met with
opposition from a company (BASF) that owned property where the lines would be
located, plus James
and some historical/environmental associations. They expressed concern that the
new system would create adverse environmental impact and would destroy pristine
vistas from some of Virginia’s most treasured
historic sites: Jamestown
Island, Carter’s Grove,
the Colonial Parkway,
As part of my evaluation of
this case, I zoomed in on the area on Google Earth, one of my favorite
cyber-toys. I had originally envisioned that the line would run north from Hog Island,
where the nuclear plant is located, across the James and right by the eastern
end of Jamestown Island. I was slightly surprised to find
that it wouldn’t run north at all; it’s eastbound, away from the Historic
Triangle. It would pass just north of yet another of our hidden treasures, the
Ghost Fleet on the river.
But the amateur historian in
me digresses; I need to stay on-topic. Because the new lines would require
approval and a certificate (of public convenience and necessity) from the State
Corporation Commission, Dominion applied for that approval. The Commission
conducted a very detailed evaluation, including a multi-day evidentiary
hearing, before deciding to approve the project and issue the CPCN.
The opponents, including the
County, appealed, and since SCC appeals are of-right, they didn’t even have to
go through the writ process.
The opinion is easily the
longest of the day; 43 pages of majority, written by Justice Millette, and a 5½
page partial dissent by Justice Mims, who writes on behalf of the chief justice
and Justice McClanahan.
The bottom line on this is
that the court affirms the placement of the lines on the route approved by the
SCC. It reverses on only one issue – and this is where the dissenters part
company – holding that while Dominion doesn’t need local zoning approval for
the lines themselves, it still needs that approval for a switching station that
would be built in the County.
There’s an interesting
appellate nuance of today's appeal. Originally, the SCC approved a different
route for the lines. Dominion noted an appeal of that under Rule 5:21(a), and
the adverse parties filed appropriate notices certifying that they’d be
participating in the appeal, too. But then Dominion went back to the Commission
and obtained an amended order that approved a different location. Now Dominion
is satisfied, but the opponents feel aggrieved.
Dominion moved to dismiss
the appeal because the opponents had never filed an original notice of appeal
of their own; they had merely piggybacked on an appeal that was no longer being
Note that in non-SCC cases,
Dominion would be right and the opponents would be out of luck. If you want
relief from the trial court’s judgment and the other side notes an appeal, you
can assign cross-error; but if the court refuses that petition, or the
appellant withdraws its appeal, then you’re out of court. But Rule 5:21 is a
different animal. And the justices rule today that once the opponents were
properly in, Dominion’s subsequent abandonment of its appeal didn’t end the
matter; the court proceeds to decide the issue on the merits.
Much of today’s lengthy
opinion is fairly standard evaluation, using a very deferential standard, of
the sufficiency of the evidence before the Commission. The court rules that the
SCC adequately considered the relevant factors, including economic,
environmental, and historic, before concluding that Dominion’s route was the
best approach to solving a very real electricity-distribution problem.
As I mention above, the only
disagreement is in the majority’s decision to reverse on the zoning issue. The
statute on CPCNs states that when the SCC grants you a certificate, that “shall
be deemed to satisfy the requirements of … local zoning ordinances with respect
to such transmission line.” In order to apply to the switching station, you
have to define a station as part of the transmission lines, and this the
majority cannot stomach. If the legislature had wanted stations to be included,
it could have included them in that provision.
The dissenters would instead
defer to the Commission’s interpretation of the term transmission lines, noting that it isn’t defined in the Code. Since
it forms an integral part of the lines and isn’t involved in either electricity
generation or distribution (those are the first and third steps, respectively,
of the process) the court should accept the Commission’s informed views on
matters within its particular expertise. The majority finds that this is a
matter of statutory interpretation, something that’s expressly left to the
I’ll mention one last aspect
of the case, and this is one issue on which all seven justices agree. BASF
pointed out that the land it owned was in the process of environmental
remediation; it was a former industrial site that the company is in the process
of cleaning up. The company noted that the lines would interfere with its
remediation efforts, and would thereafter damage the property’s economic value.
The justices note that
Dominion has agreed to adjust its project in such a way as to allow the
remediation to be completed. They also agree that the Commission properly
evaluated the overall economic impact of the entire situation, balancing the
effect on BASF with the risk to consumers, businesses, and governments on the Peninsula. The court concludes that “the Commission did
not err by considering the impact of economic development on residents of the
entire region and not simply to BASF.”
IT’S RAINING RULE CHANGES
[Posted April 13, 2015] For
appellate rule geeks, Christmas comes in April, as the Supreme Court of
Virginia showers us with a host of new and revised rules. The court announces
the changes, all of which will take effect July 1, in four separate orders,
each dated April 10. I’ll discuss the changes order-by-order.
Wholesale change to petitions for review (order 1)
The Supreme Court has always
had a procedure for immediate review of injunctions, in Rule 5:17A, based on
Code §8.01-626. The rule contains a procedure for very prompt review of
injunctions by a Supreme Court justice. While the statute isn’t limited to
review of temporary injunctions, the Supreme Court has heretofore taken the
position that injunctions contained in final orders aren’t entitled to the
That limitation vanishes as
of July 1, at which point you’ll be able to obtain expedited review of all
forms of injunctions. The new version of Rule 5:17A also comports with the
court’s established practice of review by a three-justice panel, instead of a
single justice as the existing rule provides.
There’s a wholly new Rule
5A:38 for comparable review of injunctions in the Court of Appeals. The statute
has always empowered that court to consider such petitions, but before now,
there was never a rule to explain the process.
This order carries out a
recommendation of the Boyd Graves Conference.
Digital appellate record (order 2)
There’ll be a new Rule 5:13A
(and a companion new Rule 5A:10A in the CAV) that recognizes the emerging use
of case imaging systems in trial courts that have arranged for e-filing of
pleadings and other documents. Those courts will now be able to prepare a
digital appellate record, instead of a paper one, for transmission to the SCV or
CAV Clerk when a litigant notes an appeal. The order that carries this out also
contains a few minor alterations, such as replacing the word papers with documents in appropriate contexts.
Proposals from the Virginia Bar Association (order 3)
Early last year, the VBA’s
Appellate Practice Section proposed to the Supreme Court a number of rule
changes, ranging across the rulebook. The court has made most of those changes,
though it – alas! – declined to adopt one that I had pushed, to allow briefs
to be printed on both sides of the page, to save paper. There are no
tree-huggers on the court – or at least not enough to make a majority.
But still, this order makes
a number of sensible changes to streamline procedures. Here are the highlights:
Citation of supplemental
authorities. New Rules 5:6A and
5A:4A now permit the parties to bring to the court’s attention “pertinent and
significant authorities” that they discover after briefing or oral argument.
The process is purloined from FRAP 28(j), and provides for very limited
discussion of the new authority. Either court may reject the filing if it
“unfairly expand[s] the scope of the arguments on brief.” In addition, if you
should have previously briefed it, the courts might disregard the new material.
The best use of this provision is a newly published treatise or a new judicial
decision that was handed down after your briefing or argument.
Transcript notices. Current Rules 5:9(b) and 5A:6(d)(4) require that
you state whether you’ve already filed a transcript, or have ordered one. A new
tweak adds a third possibility, where you already have such a transcript in
or reversal. The current Rules
5:17(c)(1) and 5A:12(c)(1) require that in your assignments of error, you have to
identify the specific lower-court error you’re raising. What if the lower
court’s ruling comports perfectly with existing law, but you’re arguing for a
reversal of that law? The new provision expressly permits you to do that.
Oral-argument notices. Before last year, the Chief Staff Attorney notified
counsel for the appellant of the date for oral argument before a writ panel.
Counsel for the appellee had to ask to be notified. The new Rule 5:17(j)(4)
makes that second notification automatic. Interestingly, the CSA anticipated
this change last year; when it began to send out oral-argument notices
electronically, she started adding the appellee’s counsel. When I asked about
that procedure change last year, I was told, “It’s just easier this way.” The
new rule provision brings the rulebook into line with existing practice.
Brief in opp signatures. An anomaly in the current rules requires an
appellant to sign the petition for appeal, but doesn’t require the appellee to
sign the brief in opposition. A new sentence at the end of Rule 5:18(b) now
makes both signatures required.
Petition-stage reply briefs. A minor amendment to Rule 5:19(b) addresses what
I’ve always felt was an unfair provision in the current rules. Most appellants
don’t file reply briefs, because they waive an extremely valuable oral
argument. But if the appellee assigns cross-error, the appellant may file a
reply directed only to the cross-error, and still get the right to be heard
Right now, the deadline for
filing that reply is seven days. That’s calendar days, not business days; and
you don’t get an extension for service by mailing. This can result in a sudden
emergency for appellants: The appellee files a brief in opp on a Friday that
contains an enormous cross-error issue. She mails the BIO on Friday; Monday is
a holiday; and the poor appellant’s lawyer gets to read the brief for the first
time on Tuesday, with a Friday filing deadline.
Now, I often solve this
problem by agreeing with my opponents to exchange electronic versions of brief
on the date of filing. This eliminates the omigod factor of the previous
paragraph. But absent such an arrangement, the VBA Appellate folks felt it was
only fair to extend the reply deadline from 7 to 14 days; this new order makes
just that change.
Petitions for rehearing. The current rules contain two separate entries for
petitions for rehearing after the denial of a writ – Rules 5:20 and 5:20A.
Those two rules result in a great deal of confusion; I get plenty of phone
calls from lawyers who have trouble with them, and I’m confident that the
Clerk’s Office gets more than I do. After July 1, there’ll only be one rule –
Rule 5:20A is rescinded – and the process should be a lot more uniform. The
Readers Digest version of the most confusing element now: You get 15 pages and
can file a paper brief if you’re an inmate, or if you’ve obtained special
dispensation from the court. (I’ve never heard of anyone getting that.) You get
ten pages and have to e-file if you’re anyone else.
Amicus briefs in OJ
proceedings. Right now, an amicus
curiae can only file a brief in the course of an appeal. But both appellate
courts entertain some proceedings that invoke original jurisdiction, such as
habeas corpus or actual-innocence petitions. New provisions in Rules 5:30(a)
and 5A:23(a) will now permit the filing of amicus briefs in those OJ actions.
Changes in briefs and appendices (order 4)
I’ve known for years that
this day was coming. If you own stock in a brief-printing company, you may need
to take a hard look at how you bill for your services. The court is
significantly changing the means of filing and serving briefs and appendices
in cases that it hears on the merits.
Right now, once the justices
grant a writ, an appellant has to file 15 copies of his brief and either 10 or
15 copies of the appendix. He also has to serve on the Bad Guys three copies of
the brief and two of the appendix. Those figures drop under new provisions in
Rule 5:26(e) and 5:32(a)(3). Beginning in July, an appellant still files 10
paper copies of the brief, but now serves zero; service will be all-electronic.
That goes for appendices, too, with a sharper drop-off; instead of filing ten
and serving two, now the appellant files three and serves none.
This matters a great deal
for those printing companies whose billing model is built on a per-page basis. They
make a lot of money when chicken-hearted lawyers grossly over-designate, in an
effort to get everything that’s even arguably helpful into the appendix. Those
folks often wind up with a 2,000 page appendix, of which perhaps 175 pages are
truly relevant. The sharp reduction in the number of appendix pages that will
be printed, bound, and filed is the significant news in this rule change.
The news is even darker in
the Court of Appeals: the new Rule 5A:19(f) reduces paper filings of
briefs to just four copies. You also file and serve one electronic copy. You also have to file four paper copies of the appendix – down from the current seven –
but service of that document will be all-electronic, too.
Both courts get a new
provision that states that if the Clerk directs you to correct an erroneous
filing, but you don’t do that in time, your appeal can be dismissed. The new
provisions are in Rules 5:6(c) and 5A:4(c).
There’s a notable change in
Rule 5:26(b) that eliminates another anomaly in the current rules. Those rules
permit amicus briefs at any stage of the case, including rehearing, but contain
an unchanging page limit of 50 pages – even if the amicus brief supports a
ten-page petition for rehearing. Starting in July, the rule will limit the
amicus to the number of pages that its supported party gets. (This was another
of the changes recommended by the VBA Appellate folks.)
There’s a minor change –
again, in both courts – that reflects changes in technology over the past 25
years. The rules now require a signature block that contains your signature,
plus your State Bar number, “address, telephone number, facsimile number (if
any), and email address (if any).” The new changes will delete the second “(if
any),” reflecting the fact that nowadays just about everyone has an e-mail
address. Indeed, I believe that after July 1, if you don’t already have an
e-address, you’ll need to get one in order to file anything.
Relax; if you’re a
technophobe, you can use your secretary’s email account.
I do wonder how long the
requirement for a fax number will stick around. I know that many folks still
use fax machines, but I suspect this technology will be going the way of the
telegram before long. We’ll know for sure when the court deletes the fax number
entirely from the signature block.
Finally, the new rules
contain technical information for e-filing, including what to do if there’s a
technical problem at the receiving end. (If the problem is at your end, you’re probably out of luck;
the new rules provide no succor for such situations.) The court also will also
set up a website that lists e-filing guidelines. Those will, I’m sure, be
enormously useful to those persons, smarter than me at such things, who actually
work the magic of filing my petitions and briefs. I’ll list the URL for the
website here, although as I type this, the site isn’t live yet:
SOMETIMES, EVEN AN EXONERATION CAN BE
[Posted March 25, 2015] For
the first time in the 21st Century, the Supreme Court of the United States
has issued a show-cause order to a lawyer, threatening to sanction him for
conduct in the course of appellate litigation. The Court directed a lawyer at
the megafirm Foley & Lardner to explain why some of the language in his
cert petition was – get this – hard to understand.
That may sound benign to
you. And indeed, I suspect that the justices at Ninth and Franklin get that kind of brief all the time;
they’re rolling their eyes now at the concept.
Here’s the lowdown: SCOTUS’s
rules require that cert petitions be written “briefly and in plain terms.” Rule
14.3. But this was a highly technical case involving intellectual-property
claims and artificial intelligence.
If that were all, we might
not have an issue. After all, one of the requirements of appellate advocacy is
to be able to express complicated subject matter in terms that legal
generalists (that would be the justices) can understand without having to spend
a lot of time looking up terms. Using English instead of technology-ese (or
even legalese) helps a lot.
But this case was different
because of the client, a German inventor who insisted upon retaining control
over the content of the brief. The client sculpted the problematic portions of
the brief himself – probably to ensure that the lawyer wouldn’t screw things up
in a technical subject – and the lawyer signed and filed the petition. Now we
have a problem.
I’ll let you know that it
all ends happily; the Court dismissed the show-cause on Monday, so the lawyer
can breathe more easily. He does, however, now have to pay Paul Clement’s bill
for representing him in the show-cause proceeding.
I have a couple of
observations about this highly unusual proceeding. First, I earnestly hope that
the SCV justices and the CAV judges don’t derive any inspiration from this,
that they can threaten to sanction lawyers for filing 35 pages of mush. In
truth, I really doubt they’ll follow suit; but don’t think that it hasn’t
crossed their minds by now.
Second, I deal with this
situation in a way that probably wasn’t available to the Foley & Lardner
lawyer: In all of my appeals, I insist that I’ll have the final say in all briefs
that I file. That isn’t negotiable; if my signature is going on the brief, I
won’t let anyone else compel me to say anything a particular way. I solicit
input and comments from my clients and customers all the time, of course; but
in the end, a ship can have only one captain.
Reading between the lines, I
suspect that the lawyer in this IP case was put on terms to agree to the
client’s authorship. Major clients can and sometimes do exert that kind of
pressure on lawyers – do it my way, or I’ll take my business to another law
firm. In such situations, it falls to the lawyer to use a bit of diplomacy –
backed by a fair dose of professional courage – in advising the client that
it’s not in the client’s interest to do things that way.
I can guarantee you that
Foley & Lardner has that policy firmly in place by now.