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COURT CLOSINGS AND MORE
[Posted June 29, 2009] All three of the appellate courts that sit in Virginia will be closed on Friday, July 3, in observation of Independence Day. That means that all deadlines that would expire on that day are automatically extended to Monday, July 7. (Not that you should ever use the last day to file anything, except in an emergency. But now is not the time for that lecture.)
The Supreme Court offers a rare (well, once a year, anyway) opportunity for you to see the justices in action at a site other than Richmond. The court will convene writ panels and hear oral arguments on petitions for appeal in Alexandria and Staunton on Tuesday, July 14.
One of the best ways to prepare for your own oral argument is to watch a few given by others. (It also offers a pain-free lesson in What Not to Say sometimes.) Really, if you were getting ready to try a case, and you’d never seen a trial before, would you take the opportunity to watch one first? Of course you would. Here’s a chance for my readers in the Shenandoah Valley and in the State of Northern Virginia to see several appellate oral arguments, all condensed into one day, and brought to your figurative doorstep. My best estimate is that anyone who attends and watches the whole docket can see something on the order of 20-25 writ arguments in each location. For those of you in those two regions, the court doesn’t offer a more convenient learning experience that that. (If you’re in Richmond, the court will convene a writ panel there on Monday the 13th.)
If you need more information, including times and locations, contact the Chief Staff Attorney’s Office at (804) 786-2259.
Finally, today marks the close of the US Supreme Court’s 2008-09 term. The court will hand down opinions in the remaining cases argued earlier in the term, and will mark the retirement of Justice Souter after 19 years on the court.
A BRISK WEEK OF APPELLATE DEVELOPMENTS
[Posted June 25, 2009] The appellate field has been active over the past few days. Here’s a report on several items of interest. Be sure to read all the way through, as there's a major news item at the end:
1. New symposia planned. The Virginia State Bar’s Appellate Practice Committee has scheduled the latest in its series of appellate symposia. The next one will be on Monday, July 13, from 3:00 to 5:00 pm in the courthouse in Alexandria. The symposium is entitled, "Everything You Need to Know about Oral Advocacy in Virginia's Appellate Courts." The timing, topic, and location are no accident; the Supreme Court will convene writ panels in the same building the next day, so anyone with a writ argument on July 14 can go in for a quick brush-up on oral argument techniques. The program will feature a moot argument to illustrate the principles you’ll learn. If you’re interested – and you should be, especially since it’s free and offers CLE credit – e-mail APC chair Monica Monday (Monica_Monday@gentrylocke.com). You do need to register. By the way, the APC plans to conduct a similar program in Richmond on October 20, again right before writ panels convene
2. A subtle name change. Careful readers of the note above will have discerned a new name for the former Appellate Practice Subcommittee; the Litigation Section finally agreed to change the designation to Committee, as I had requested a number of times when I was the APS chair. (If you’re interested in joining, you can contact Monica for that, too.)
3. Some familiar cases resurface. The major media have reported the return to the limelight of two cases that have received substantial recent attention. (A) On Tuesday, the Court of Appeals of Virginia releases the latest decision in the continuing saga of Lisa Miller, Janet Jenkins, and their adopted daughter, now aged seven. The former couple have been locked in a dispute over the enforceability in Virginia of a Vermont court order governing custody and visitation rights relating to the little girl. Last year, the Supreme Court affirmed a CAV ruling in favor of Ms. Jenkins, but Ms. Miller, undeterred, tried again. This time, she filed a declaratory judgment action, pretty much simultaneously with Ms. Jenkins’s motion to register the foreign order. In Miller v. Jenkins, the court finds that the latter proceeding furnishes a suitable medium for resolution of the dispute, so a DJ action isn’t available. The opinion notes, perhaps ominously, that the other proceeding is apparently headed for appellate review separately, so we haven’t seen the end of this case yet. (B) On Wednesday, a sharply divided en banc Fourth Circuit declared Virginia’s late-term abortion ban (which abortion opponents have termed “partial-birth abortion”) to be constitutional, in Richmond Medical Center for Women v. Herring. The vote was as close as they come – 6-5. This case points out the extraordinary significance of the short-staffed Fourth; no fewer than four seats on that bench remain vacant. Who knows how the case would have turned out if there were actual judges in those empty chairs? In any event, the case seems destined for certiorari review, at a minimum, in Washington.
4. And one more encore. This one didn’t make the mainstream media. Two years ago, the Supreme Court decided Settlement Funding v. Neumann-Lillie (274 Va. 76), in which we learned of the mixed fortunes of a lottery winner. Neumann-Lillie won a game that awarded her $1,000 a week for life, but her good luck turned when she entered into what I, at least, perceived as a very bad bargain with a lender who gave her a loan of $29,000 in exchange for $500 a month spread over nearly 15 years. I’ll do the math for you; it’s $89,000. When the prizewinner discovered what she thought was usury, she cut off all payments; that triggered even more astonishing penalty and interest demands, such that at trial, the lender claimed that it was owed over a quarter million dollars. It responded to the usury defense by pointing out that the loan documents specified that the agreement was to be governed by Utah law. Guess which is the only state in the Union that doesn’t cap interest rates?
Neumann-Lillie won in the trial court, getting an award of over $70,000. In 2007, the Supreme Court reversed the award in her favor and remanded for further proceedings. In those proceedings, the trial court reaffirmed its separate ruling that Neumann-Lillie was entitled to a setoff of $128K against all sums she owed the lender; since the lender was entitled to less than that amount, it collected nothing. The lender appealed again, and last Friday, June 19, the Supreme Court affirmed with a painful lesson for appellate advocates.
In its first appeal, the lender had not assigned error to the setoff finding. It figured that all it had to do was appeal the underlying finding that Neumann-Lillie was entitled to damages, and then the setoff ruling would go away of its own accord. But it doesn’t work that way, the Supreme Court now rules, by unpublished order. That setoff ruling, however erroneous it was, became the law of the case when the lender didn’t appeal it.
According to the order, the ruling was plenty erroneous. The setoff was calculated according to the Truth in Lending Act, and that act limits damages to the less-than-princely sum of $1,000. The lender pressed the justices to reverse anyway, citing authority from other jurisdictions for an exception to the law-of-the-case doctrine (which applies “when the prior decision is clearly erroneous and application of the doctrine would work a manifest injustice”).
The Supreme Court was having none o’ that; it assumes without deciding that the exception applies, and finds that there would be no manifest injustice here. Both parties knew of the error when the lender appealed the first time, and it simply elected not to press that error before. So in the end, Neumann-Lillie gets a resumption of her monthly lottery checks, and the lender walks away with nothing beyond the $13K it had previously received (less a whole lot of legal fees, the cynic might add).
As this order is unpublished, any of my readers who want a copy may contact me for one.
5. I’ve saved the biggest news for last. Today, the Supreme Court of the United States hands down a decision that will dramatically affect the way many criminal trials are conducted. In Melendez-Diaz v. Massachusetts, the high court holds that a certificate of analysis (which can arise, for example, in a drug case or a DUI case) is testimonial hearsay, so Crawford v. Washington requires confrontation by the analyst. This ruling effectively overrules last year’s decision by the Supreme Court of Virginia in Magruder v. Commonwealth, in which a bare majority of the court held that such certificates were admissible even over a Crawford objection. Until now, prosecutors could proceed against drug or drunk-driving defendants without hauling the analyst to court. This ruling will make it substantially more inconvenient for the government to prosecute such crimes, especially in remote locations of the Commonwealth. It will also produce challenging decisions on motions to continue trials, where the prosecution has brought a Forensic Sciences analyst to court, perhaps several hours away from her office. You can see my analysis of Magruder here (you’ll need to scroll down to the criminal law section).
APPELLATE NEWS AND NOTES
[Posted June 17, 2009] Here are a few musings on recent developments in the appellate world:
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The Fourth Circuit yesterday denied rehearing, and en banc rehearing, in an intriguing First Amendment case, US v. Whorley. The appellant was convicted of transporting obscene materials. He did so by sending e-mails containing expressions of sexual fantasies involving children. A jury determined that the material was obscene under the test enunciated in Miller v. California, 413 US 15, 24 (1973). So what’s the big deal? As Judge Gregory points out in a lonely dissent from the rehearing denial, there were no actual victims here. This wasn’t a case involving photographs of child pornography; the defendant was only communicating fantasies. In his dissent, he argues that this type of expression, whether you agree with it or not (and there would be very few takers on that proposition), merits First Amendment protection, despite the finding of obscenity. He urges the defendant to seek certiorari in Washington.
SCV: http://www.courts.state.va.us/courts/scv/home.html
CAV: http://www.courts.state.va.us/courts/cav/home.html
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The criminal writs just keep coming. Just this month, the Supreme Court has awarded appeals to six criminal appellants, to review decisions of the Court of Appeals. One of those, Krasucki v. Commonwealth, presents an interesting evidentiary issue. According to the assignments of error (which you can read on the SCV web site I referred to above), the appellant contends that the prosecution destroyed videotaped evidence of the offense. The CAV refused to consider the case, but the Supreme Court will, with an opinion coming likely early next year.
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The Virginia Bar Association has created a new section devoted to appellate practice. Anyone with an interest in appellate courts and appellate litigation is welcome to join for the trifling sum of $25 in section dues. You can join online here. If you’d like more information about it, you’re welcome to contact the chairman, a fellow I know pretty well, at (757) 965-5021.
ANALYSIS OF JUNE 16, 2009 CAV OPINIONS
[Posted June 16, 2009] The Court of Appeals of Virginia hands down two published opinions today, after last week’s lull in which all of the opinions were unpublished.
Government contracts
The proper case area for Commonwealth v. AMEC Civil, LLC should probably be administrative law; that’s the only way that construction litigation could possibly land in the Court of Appeals. But this one gives you a better idea of what’s really involved.
A couple of years ago, I drove along US 58 through Clarksville, Virginia and saw for the first time the magnificent new construction of a set of bridges, bypassing the town and leading over an arm of Kerr Reservoir. It’s both an engineering marvel and a thing of beauty, especially as it affords a wonderful view of the reservoir and the surrounding land. Little did I know as I drove along that the whole thing would wind up in court in an eight-figure dispute over cost overruns.
The whole thing was supposed to cost $72 million, but delays wound up adding two years to the project, and the contractor sought another $24 million for its additional expenses. That, you will agree, is a lot of zeroes. When VDOT wasn’t forthcoming with a munificent check, the contractor sued. At trial, it recovered 100 cents on the dollar of its claim – the trial was a complete washout for the Commonwealth Transportation Commissioner – except that the court declined to award prejudgment interest. That interest was probably no small matter; it was easily seven figures worth. But the contractor clearly won.
Both sides appealed, and since this is an appeal of right in the CAV, they went straight to the merits. Today’s published opinion is a long, meticulous trek through the several appellate claims advanced by the parties. While there’s something in this result for both sides, the Commissioner clearly comes out ahead today.
Two rulings in particular will interest my readers, especially those who primarily practice in other case areas. The first relates to the required written notice of the contractor’s claim, as mandated by statute. The contractor didn’t do what you’d call a sparkling job of submitting written claims, but there was lots of conversation going on about the problems. The trial court had held that VDOT had actual notice of the claims, so it ruled that the failure to submit written claims was immaterial. Perhaps sensing the vulnerability of that position to appellate review, the court added an alternative finding that certain memoranda did comport with the written-notice requirement.
The Court of Appeals reverses the first holding in memorable language:
To begin with, the circuit court’s pretrial ruling began its statutory analysis under the heading, “Legal Function Trumps Legal Form,” and ended on a similar note, “legal form must yield to the interests of legal function.” Our statutory analysis begins and ends with a less ambitious premise: “We can only administer the law as it is written.”
The CAV holds that when the statute says that written claims are mandatory, the trial court can’t “amend” the statute by effectively adding, “unless VDOT has actual knowledge” in an appropriate spot. The court also turns back the ruling relating to the memoranda, since it finds nothing in the record to indicate as much. (A quick practice tip: The court observes that a claim “does not require the sophistication of a legal pleading,” so if you’re representing a client who has submitted a layman’s version of the dispute, don’t despair.)
The other significant ruling relates to the contractor's cross-appeal on the denial of prejudgment interest. The Commonwealth comes out ahead in this one, too, by virtue of the doctrine of sovereign immunity. Prejudgment interest is a form of the plaintiff’s damages, and the Commonwealth is immune from damage claims, except to the extent it has waived that immunity. The court notes that the Commonwealth has never waived its immunity from this type of damages, so the contractor will go away empty on this claim.
So will you, if you assert any sort of permitted claim where there is a limited waiver of sovereign immunity. You will be able to get the damages provided by law, up to the limit of the specific waiver; but you won’t be able to get prejudgment interest, as most other claimants from other entities can. Keep in mind that waiver is never implied; it has to be specific.
One last bit of advice: You really should take a drive along US 58 to see that bridge complex, and to check out where all this multimillion-dollar fuss arose. I suspect things haven’t been this exciting around Clarksville since The Monkees took the last train there back in 1966.
Domestic relations
Let me get the attention of most of my readers here: Attorney’s fees. There; now all the lawyers are on board. Today’s ruling in Stroud v. Stroud might well have turned out to be a sweeping exposition on several issues, including the mandate rule (which was the subject of the memorable ruling from the Supreme Court in In re Commonwealth less than two weeks ago). But in the end, a single, narrow ruling makes all the other issues disappear.
This one has been to the Court of Appeals before. Husband and wife signed a separation agreement in their divorce proceeding, and that provided for spousal support to be paid to wife until either party died, until she cohabited with another person “in a situation analogous to marriage” for 30 days, or until February 2009, ten years after the date of the agreement. Wife didn’t last that long. No, she didn’t die; but she couldn’t stay out of “a situation analogous to marriage” for ten years. According to husband, she took up housekeeping (there’s a euphemism for you) about six years later. But here’s the rub – it was with another woman. That produced a legal dispute, resolved in the previous appeal in 2007, over whether one could have “a situation analogous to marriage” with a person of the same sex. (The CAV ruled in that one that the answer was yes.)
Fresh off the 2007 victory, husband returned to circuit court and asked for an award of his attorney’s fees for the successful handling of the first appeal. The agreement contained a provision that a party who breached the agreement had to pay the other party’s legal fees, and he must have incurred a ton of those in the appellate court. The trial court ruled against husband. Today, eschewing some juicy potential legal theories on appeal, the Court of Appeals affirms on the simple premise that wife didn’t actually breach the agreement by taking up with another lady. True, that event served to cut off her right to support (though not until a court ruled as such); but it there was no definition of breach of contract in the agreement that included such cohabitation. There’s a difference between a breach and a non-self-executing event of disqualification from a benefit. That means that the wife wins this round, as husband has to pay his own appellate legal fees.
THOUGHTS ON IN RE COMMONWEALTH
[Posted June 12, 2009] I am overdue in composing some further musings on last week’s important ruling in the Darryl Atkins case. My readers will recall that a divided Supreme Court ruled that neither mandamus nor prohibition could be used to compel the trial court to conduct a mental retardation hearing that had previously been ordered by the Supreme Court. This case presents some very interesting and difficult issues.
By way of preface, I invite you to recall that the Commonwealth doesn’t generally have a right of appeal in criminal cases. The foundation for that is in the Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”) of the Fifth Amendment. If such a right of appeal had existed, it would have been a simple matter for the Commonwealth to have appealed the trial court’s decision to impose a life sentence instead of conducting the mandated hearing. In that hypothetical appeal, I think it would have been significantly more difficult for Atkins’s lawyers to find four votes on the Supreme Court.
That’s enough speculating in the world of fantasy; back to reality, and what the majority has wrought here. I perceive two primary kinds of rulings in this decision. The first relates to the availability of these extraordinary writs; the second deals with a trial court’s powers upon remand.
In the abstract, I would have thought before reading this decision that either mandamus or prohibition would lie to compel the convening of the mental retardation hearing. Mandamus is a writ that compels the performance of a ministerial duty (and the act of convening a hearing has been held to be ministerial, as contrasted with the thoroughly discretionary question of how, ultimately, to rule). Accordingly, the issuance of the mandate to the trial court, telling it to conduct the hearing, certainly seemed to me to require a ministerial act.
Similarly, prohibition seemed to be an appropriate vehicle with which to prevent the trial court from exceeding its jurisdiction (that’s what such writs are for). The Commonwealth argued that, since this was a limited remand, the only thing the trial court had the authority to do was what was specified in the remand. (A general remand, in contrast, gives the whole case back to the trial court.) Indeed, the emergency statute, passed by the General Assembly in response to the US Supreme Court’s 2002 ruling in this case, provides for a limited remand:
“If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.” (Emphasis supplied.)
In light of this language, the Attorney General’s Office has to be scratching its figurative head right now, asking, “How could we possibly have lost this?”
It lost based on the premise that neither mandamus nor prohibition operates retroactively. That much, at least, is fairly well-established in Virginia law. The majority rules that the trial judge had already made its ruling, and the requested writs would only have served to undo that order. Thus, the Commonwealth was trying to use these writs to pursue an indirect appeal (see above) of a ruling that had already been made.
This, on its face, is a plausible basis on which to refuse the writs. But once you look below the surface of this reasoning, you start to see problems. For example, the dissent cites (starting on page 69 of the slip opinion) several cases in which the court has previously issued writs of prohibition that would undo acts already done. In one of those, a Victorian Era justice of the peace awarded a judgment, and then four months later, at the request of the plaintiff, entered an order granting a new trial (presumably the plaintiff wanted to pad his recovery a bit). The Supreme Court approved the granting of a writ of prohibition, since due to the passage of time, the justice of the peace had lost jurisdiction. The undeniable effect of that writ was to vacate the order granting a new trial. Viewed in this light, the majority’s holding (that prohibition wasn’t available because the challenged order had already been entered) looks a bit less plausible.
There’s more. As noted above, the function of a writ of prohibition is to prevent a lower tribunal from exceeding its jurisdiction. If the majority is right, then all the lower tribunal has to do in order to insulate itself from this writ is to hurry up and enter an order, thereby divesting the higher court of the power to issue the writ. Very seldom do courts announce in advance their intention to exceed their jurisdiction on a future date certain; far more often, the aggrieved party has to come to the appellate court after the order has been entered, asking it to correct things. (This, of course, is how we appellate lawyers earn a living.) The act of exceeding jurisdiction is often only revealed after the order has been entered.
The dissent sees this as a suitable place to draw a line, without opening up prohibition to the undoing of faits accomplis. Justice Kinser suggests that when the only thing that is to be “undone” is the entry of the order itself, then prohibition is still available. In contrast, when the order has been carried out and actual events have unfolded, it’s appropriate to back off; one example cited in both opinions is that of an allegedly void order directing the release of three inmates from prison. The two sides agree that it would be inappropriate to issue a writ of prohibition that would essentially cause the three men to be taken back into custody, since that would undo something already done.
The dissent’s suggested dichotomy makes sense to me – I think there’s a qualitative difference between just entering an order and the extrinsic effects of that order – but as of June 4, that difference doesn’t matter anymore. In re Commonwealth now provides that, henceforth, the Supreme Court won’t issue a writ to undo the entry of an order, even if the lower court exceeded its jurisdiction in entering it. Keep in mind that this ruling applies in lower courts, too, as circuit courts can enter extraordinary writs directed to the district court level.
There’s a similar dispute in the mandamus discussion. The dissent cites several prior decisions in which “the issuance of a writ of mandamus had the incidental effect of undoing an act already done although the writ itself did not directly compel such action.” The majority’s only response to those citations is that they weren’t final adjudications in criminal proceedings. Perhaps there is a new-found distinction here for mandamus cases, where criminal petitions are viewed differently from civil ones, but I doubt it. I’ll admit to feeling somewhat skeptical of this ground of distinction; why should a final order in a criminal case be viewed any differently from a civil one? And why should non-final orders, by which the lower court flatly refuses to perform a ministerial act, be immune from this kind of review and compulsion?
The second major ruling in this case deals with what a trial court may do on remand. As I mentioned above, this was a limited remand, in which the trial court was given a specific directive to conduct a hearing. When the trial judge got a motion from Atkins’s lawyers, raising the specter of prosecutorial misconduct, he foresaw this very dispute, and even went to the trouble of asking the Supreme Court for guidance on whether he could entertain any issues other than those in the limited remand. The Supreme Court didn’t give him that guidance, ruling instead that interlocutory appeals weren’t available in criminal cases.
That was obviously a correct ruling, based on the wording of the interlocutory appeal statute. But it left the trial judge to guess as to whether he had the right to do something other than what the Supreme Court had specifically and unambiguously directed him to do. He guessed that he could, and the Supreme Court has now backed him in this decision.
But what does this say for the future of limited remands? The majority seems to suggest that their day has passed: “We hold that a circuit court presiding during remand of a capital murder proceeding retains authority and discretion to resolve legal issues that the litigants raise.” While it’s true that this holding is limited by its terms to capital murder proceedings, there is no reason why a similar remand in a non-capital case, or even a civil case, should be viewed any differently. Indeed, the scope of capital remands is, by statute, even more limited than in other types of cases, based on the statute I quoted above (empowering remand “for the sole purpose of making a determination of mental retardation”). I’m not aware of any other type of remand that is constrained in this way. If these remands are now to be regarded as general, I cannot envision the survival of limited remands in any context.
At a visceral level, there is something inherently troubling about the concept that a lower court can, in effect, disobey a mandate from an appellate court. I speak here not of the outcome for Atkins; I would not venture to offer an opinion on whether the ultimate outcome (life in prison without parole) is appropriate or not, since I didn’t hear the evidence in the case. But my sense is that the concept of a mandate is supposed to be stronger than this (and the dissent agrees, forcefully, starting on page 29 of the slip opinion). The root words of mandate and mandatory are the same; they reflect the Roman custom of placing a directive or other order into the hand (from manus, “hand,” and datum, “given”) of the recipient, so there can be no mistake about his duty to obey. Command and even mandamus reflect this origin; the lower court has to obey.
Clearly, this lower court didn’t obey; it was directed by the last mandate to “proceed with this criminal case.” Even more telling, that mandate went on to constrain the scope of the proceedings, consistent with what the statute requires: “Such proceeding is confined to the terms of the mandate issued by the Court . . . remanding this case to the circuit court for a jury determination on whether Atkins is mentally retarded.” Can it get any clearer than that? This seems to be a strong hint to the trial court, even though the Supreme Court couldn’t give him a direct interlocutory answer, that he had to do exactly as he was told. (At least, that’s the way I would have read these tea leaves – incorrectly, as it turns out.)
This ruling isn't the death of the extraordinary writ, but it is quite likely to make the issuance of such writs far more extraordinary.
ANALYSIS OF JUNE 4, 2009 SUPREME COURT OPINIONS
[Posted June 4, 2009] Surprise! For those of you who have come to expect the Supreme Court of Virginia to release its opinions on the Friday of session week, the bundle of joy comes a day early, thanks to a slightly truncated argument docket this time around. The court hands down 17 published opinions today. There are plenty of criminal cases out of the Court of Appeals, and a spate of civil decisions.
The major news of the day is the court’s latest ruling in the Darryl Atkins capital murder saga. The court also hands down an opinion in a case asserting that Virginia Lottery vendors discriminated against the handicapped in terms of accessibility.
Today marks the end of the 2008-09 term; as of this afternoon, the court is in recess until the beginning of the next term with the September session. While the court will conduct writ panels during the summer, the next formal session of the full court begins on Monday, September 14.
As long as we’re marking special occasions, tomorrow marks the 20th anniversary of one of the greatest acts of personal courage ever seen in my lifetime. This week’s analysis is accordingly dedicated to the remarkable yet anonymous man (whose name is usually reported as Wang Weilin, but that’s just an assumption) who somehow summoned the guts to stand tall in a thoroughly intimidating situation.
Torts
Does this language sound just a bit familiar? “[W]e are increasingly confronted with appeals of cases in which a trial court incorrectly has short-circuited litigation pretrial and has decided the dispute without permitting the parties to reach a trial on the merits.” That’s from today’s ruling in Fultz v. Delhaize America, and it pretty much telegraphs to you how this one comes out.
Fultz is a grandmother who took her three-year-old grandson shopping one day at a Food Lion grocery store in Roanoke. After shopping, she stopped at an ATM, presumably to replenish her wallet after paying for groceries. The ATM was located outside the store, near where shopping carts were usually gathered.
No doubt to protect the dollar-bill machine from being dinged by carts, either the store or the bank had placed some metal bars along the ground, running parallel to each other. Customers had to stand between them to use the ATM, and had to step over them if approaching from the side.
While Fultz was at the machine, her grandson darted away. Fultz went after him, and tripped over one of the bars, shattering her wrist when she fell. In subsequent litigation, the defendants predictably asserted a defense of contributory negligence, claiming that the bars were open and obvious – as no doubt they were, to someone looking down. But Fultz claimed that she was distracted by the actions of her grandson, and that that distraction created a jury issue on whether she was negligent or not.
The trial court disagreed. It found Fultz contributorily negligent as a matter of law, and granted the defendants’ motions for summary judgment. Today, the Supreme Court reverses and remands the case for trial. It holds that this situation is one in which reasonable people could disagree (assuming they’re not all defendants, of course) on whether Fultz’s “excuse for inattention was reasonable.” That makes it a jury question, and it was incorrect to take the case away from that jury.
My sense is that trial judges are going to react to this ruling by denying motions for summary judgment unless it’s not even a close call that one should be granted. That’s consistent with the Supreme Court’s caselaw, in which summary judgment is a disfavored remedy (unlike federal court, where it’s a favored procedural tool).
One last point – this case was brought in Albemarle County, nowhere near Roanoke, presumably because one of the defendants (Food Lion) regularly conducts substantial business activity there. The defendants didn’t question venue, and the court doesn’t express an opinion on that question.
The next case presents two issues that are seemingly slam-dunks: A rear-end collision and a suit against an attorney for missing the statute of limitations. In both kinds of cases, negligence is usually fairly easy to show. But in Williams v. Joynes, a wrinkle in the statute of limitations presents a novel question.
Williams was injured in a double rear-ender; Truck A hit Car B, driving that car into Williams’s Car C. Williams was stopped in traffic, and sustained injuries in the collision, so somebody’s almost certainly going to wind up owing him some money.
He hired an attorney five months later, but by the time the attorney got around to suing the two drivers (and the company that owned the truck), 24 ½ months had passed since the incident. That, as Virginia practitioners know, is just a tad late. The attorney did the right thing and notified Williams of his error. He also pointed out that there might be a way out of this jam: The truck driver (and maybe the company, too) was a resident of Maryland. Maryland has a three-year statute for personal injury actions, so Williams could go ahead and sue those two defendants across the Potomac.
Understandably, Williams was going to need a new lawyer for this venture. But none of the lawyers he contacted up there were willing to take the case. “Too tough to get witnesses up from Virginia.” “Too far from the events.” “Too expensive to try it here.” So Williams punted and tried a different tack: He sued his Virginia lawyer for missing the statute.
The lawyer defended by asserting that Williams brought this on himself by his own decision to give up the effort in Maryland. He contended that that decision was the real proximate cause of Williams’s loss of the right to recover against the two primary defendants. The trial court agreed, finding this decision to be, as a matter of law, a superseding cause of Williams’s loss. The court dismissed the case.
Just as in Fultz, the Supreme Court today reverses and remands the case for trial. It points out that in its previous decisions, it has sharply limited the availability of a superseding cause defense to those circumstances where the original defendant’s actions don’t contribute to the loss “in the slightest degree.” Here, the opposite situation occurred – Williams’s difficulties in getting a Maryland lawyer, and his ultimate decision to give up looking, were direct products of the lawyer’s negligence. In addition, the court observes that Williams would necessarily lose one defendant by suing in Maryland, as the driver of the car was a citizen of Virginia, and the Maryland courts wouldn’t have jurisdiction over him. Accordingly, Williams gets to press his malpractice claim in Virginia.
This case is noteworthy in one additional respect. Readers of this site will recall my alarming essay last summer, relating to the Supreme Court’s crackdown on assignments of error. Originally, the Supreme Court dismissed this appeal because it found the assignment too vanilla. But as I noted in a supplement to that essay, the court later reinstated the appeal, eventually deciding it on the merits today.
Estates
Another lawyer finds himself on the wrong end of a pleading in Bell v. Saunders. The lawyer prepared a will for Dad, in which will Dad named the lawyer as executor. The will also provided for the creation of a trust for the benefit of his two sons; in essence, the executor was supposed to pay half of the net income of the trust to each of the two sons for as long as they lived. If either of those sons left a widow, then the executor was to pay the deceased son’s share to her, for as long as she lived.
I read long ago that we all know that all men are destined to die, although we’re each secretly hoping the Almighty will make an exception in our case. But the Grim Reaper got Dad back in 1999. His son Edward died five years later, leaving a widow. Inexplicably, the lawyer who had drawn the will seemed determined not to carry it out; he told the widow that he wasn’t going to pay her a dime. He asserted that he didn’t have to pay anything until her death. The widow and her son David filed a declaratory judgment action seeking entry of an order declaring the rights of the parties. They also asked for related relief, including an accounting. But the lawyer focused on the overall DJ action, claiming in a demurrer that this wasn’t an appropriate case for a DJ proceeding.
The grandson, David, also sued the lawyer in the same proceeding, claiming that the lawyer had dragged his feet in qualifying as personal rep of his late father’s estate. He asked the trial court to require the lawyer to get on with the process of qualifying, and then to wrap up his father’s estate.
The trial court sided with the lawyer; it sustained the demurrer and dismissed the entire case. The Supreme Court granted a writ and today it reverses in part. The court holds that the widow’s claim is indeed perfectly suitable for a declaratory proceeding, since it involves the assertion of a right and the denial of that assertion. But the grandson’s suit is different; he pleaded that the lawyer hadn’t qualified to manage the second estate, so there is nothing the court can do in a declaratory proceeding. The court thus sends the case back for a trial on the widow’s claim only.
I suspect the grandson has some other form of relief available; I strongly doubt that Virginia law will allow a named personal rep to hold an estate hostage by the simple expedient of refusing to qualify. But this isn’t the right proceeding, the court notes today.
Insurance
Intrapolicy stacking is a phrase that may well draw shrugs from lawyers who don’t handle tort cases, but for the tort lawyers, it’s a big deal. The Supreme Court gives us its latest view on the practice today in Virginia Farm Bureau Mutual v. Williams.
It must have been some collision; a child was injured, apparently quite significantly, while riding in a car. Both that car and the car that hit hers were underinsured. But the child’s parents had a policy that provided separate policy limits for the family’s three vehicles, and the child was emphatically an insured under that policy. The question in this case is whether the three policy limits can be stacked to provide $850,000 of coverage, or whether (as the insurer argued) she was stuck with a single policy limit of $300,000. (Under Virginia law, stacking of coverages of multiple vehicles is permitted. But the insurer can contractually eliminate such stacking. The big problem is usually finding the right language to do that unambiguously.)
The trial court took a middle ground, declaring that $550,000 was available. That seemingly Solomonic decision satisfied nobody; both parties sought Supreme Court review, and both parties got it.
Today, the Supreme Court sides wholly with the child and against the insurer. Comparing the policy’s anti-stacking language with that of a policy in an earlier decision, the court finds that there is still at least one ambiguity in this one. And as required in the interpretation of insurance policies, any ambiguity is resolved against the insurer and in favor of coverage. The court rules that the anti-stacking language doesn’t exclude the stacking sought here, so it enters judgment for the child, who thus gets to tap nearly a million dollars of coverage for her evidently quite substantial claim.
How long will this doctrine last? Perhaps only as long as it takes some very smart insurance company lawyers to rewrite the policy language and then send out amendment notices to its policyholders. But this isn’t one of those opinions where the court gives the parties, or a lower court, easy guidance on how to remedy the problem, so we may yet see another such case in the future in which stacking is permitted.
Administrative law
What’s the difference between construction waste and recycling material? Enough to warrant a multi-level appeal, judging from the long course of Frederick County Business Park v. Virginia DEQ. That course finally ends today, as the Supreme Court decides whether DEQ acted arbitrarily and capriciously in deciding that the business park was subject to state permitting requirements.
The business park collected waste from construction sites, preparatory to sorting al the stuff out and recycling the valuable parts of it (usually concrete, wood, cardboard, etc.). It planned to dispose of the remainder, which it estimated as 30% of the total. It argued that it thus qualified as a “recycling center,” which it contended was not subject to DEQ regulation and permitting.
The DEQ didn’t budge; it ruled that, because the materials were intermingled when collected, and because a good chunk (pun intended) of the materials was not going to be recycled, this didn’t qualify as a recycling facility. The trouble is, recycling facility isn’t defined, either in the state Code or in DEQ regulations. DEQ determined that what the business park was operating was a materials recovery facility, and that is defined, and is regulated.
The business park appealed DEQ’s decision to the circuit court and to the Court of Appeals, but the ruling was affirmed both times. Today is the third strike, as the Supreme Court affirms yet again. It notes the substantial deference the courts pay to interpretive decisions of regulatory agencies with special expertise, and determines that DEQ had a legitimate basis to conclude that this wasn’t a recycling facility. Note that the ruling technically is not that this is, or is not, a materials recycling facility; the court merely rules today that DEQ didn’t act arbitrarily and capriciously in saying that it was. Admin law decisions frequently involve this kind of hands-off approach from the courts, and today is no exception.
Department of Health v. NRV Real Estate returns for another appellate bout today. In April of last year, the Court of Appeals had reversed a trial court’s decision that had denied NRV’s request for certification of 21 relocated nursing-facility beds. My analysis of that decision is here (you’ll need to scroll down to the last case discussed).
Today, the Supreme Court reverses and reinstates the trial court’s ruling. It finds that based on a clear statutory provision, the Department of Health had no discretion to approve the application.
The most interesting part of today’s opinion is the court's discussion of whether the Department was bound by a dozen prior cases in which it had applied an exception to approve requests similar to NRV’s. The Court of Appeals had held that a departure from that well-established line of precedent required an explanation, and if no such explanation was forthcoming, that made the departure arbitrary and capricious. The Supreme Court notes that this departure was based on a correct ruling of the statute, and in that event, no explanation is necessary. The court finds that it’s better to correct a mistake than to embalm it for posterity.
Criminal law
First things first: The court today hands down the latest in a string of rulings involving convicted capital murdered Daryl Atkins. The most famous step in Atkins’s long waltz through the legal system came in 2002, when the US Supreme Court ruled that mentally retarded persons cannot be executed, thereby reversing the Supreme Court of Virginia’s affirmance of the death sentence.
Today, in In re Commonwealth, the Supreme Court considers two petitions filed by the Commonwealth for the extraordinary writs of mandamus and prohibition. The court in 2006 had remanded the case back to circuit court for a separate trial to determine whether Atkins was mentally retarded. But during those proceedings, Atkins raised a couple of significant objections, including an asserting that the prosecutors had engaged in misconduct and had withheld Brady materials. Instead of proceeding straight to the retardation trial as the Supreme Court’s mandate had directed, the trial judge conducted a hearing on Atkins’s complaints against the prosecutors.
The judge found those complaints to be meritorious. He accordingly reduced the sentence of death to one of life without parole, thus sparing Atkins’s life and saving himself the time and cost of a separate retardation trial.
But the Commonwealth really, really wanted the death penalty for Atkins. It accordingly filed these extraordinary-writ motions, both invoking the Supreme Court’s original jurisdiction (note that these are not appeals at all, but cases originating in the appellate court) and asking the court to direct the trial court to conduct the hearing, as the most recent mandate had directed.
I am going to give my readers the abbreviated result here, in the interest of time; today’s opinion, including a lengthy dissent, runs 74 pages. Accordingly, I’ll write separately once I analyze the dissent. For now, you should know that the court rejects the Commonwealth’s requests and dismisses both petitions. It rules that mandamus is not an appropriate remedy here, for two primary reasons. First, the writ is intended to require that a person perform an act in the future; not that he undo something he has done in the past. Second, what the Commonwealth is doing here is, in essence, appealing the trial court’s decision to go ahead and impose the life sentence. The Commonwealth has a limited right of appeal in criminal cases, but this, the court rules today, isn’t among those permissible classes of cases. It also notes that prohibition operates only prospectively, not retroactively, so that isn’t available in this situation.
The dissent is written by Justice Kinser, joined by Justice Lemons. It’s fully 54 pages long, almost three times as long as the majority, which was authored by the chief justice. As I say, I’ll get more detailed analysis to you once I post commentary on the day’s other cases.
The court decides two cases today involving a suspect’s right to counsel during a custodial interrogation. I have written about both of these cases before, back when they were decided in the Court of Appeals, so I’ll keep the discussion brief here.
In Commonwealth v. Ferguson, the court affirms the decision of the CAV, which ruled in December 2007 that the defendant had made an unequivocal request for counsel before giving an inculpatory statement. A police officer continued his interrogation despite this request, and the Supreme Court today agrees that the subsequent statements should have been suppressed. In Zektaw v. Commonwealth, the defendant also asked to consult a lawyer, but then kept right on talking before police could do anything about it. In his case, the Court of Appeals had affirmed the trial court’s denial of the motion to suppress, but today the Supreme Court reverses, again ruling in favor of the suspect.
Here are the statements that the court today finds were sufficiently unambiguous assertions of the right to counsel:
Ferguson: “Nah, I want a lawyer, you know what I’m saying?”
Zektaw: “Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?”
You’ll see right away that Ferguson’s invocation of the right is clearer than is Zektaw’s, but the court today decides that both of them are good enough. The lesson to take out of this is that while some “invocations” are indeed ambiguous or unclear, the Supreme Court of Virginia jealously guards the guarantees of the Fifth Amendment and Miranda v. Arizona. The US Supreme Court uses categorical language in this regard: “Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease.” Smith v. Illinois, 461 US 91, 98 (1984) (emphasis supplied). The police didn’t do that in these two situations, so the court orders the suppression of all subsequent statements.
Back in the 90’s, when I worked in City Hall in Virginia Beach, one of my office’s duties was the prosecution of traffic and misdemeanor appeals in circuit court. I recall well the great risk that my city’s Bad Guys took whenever they drove on the streets of our fair city; our men and women in blue caught many such Bad Guys by the simple but unassailable probable cause of a burned-out tail light. When the officer stops the car and approaches the driver, he smells the odor of marijuana or alcohol, or he sees the open container or the handgun on the floorboard, hastily and ineffectually hidden. When you’re committing a crime on the road, you have to be perfect. Today we see an appeal in which the ol’ brake light gets another victim – Williams v. Commonwealth, involving possession of various drugs with intent to distribute. You want to know the biggest irony of all? Williams wasn’t even driving; he was a passenger.
As the Portsmouth police officer approached the car in which Williams was riding, he observed Williams toss something into the back seat. (Nice hiding place.) The officer retrieved three plastic bags, one containing heroin, one with cocaine, and one with 38 tablets. Forensic scientists tested one of the tablets, and it came up as methadone.
Now, you need to know that Williams had frequent-flier miles for all three of these substances; he was charged with possession with intent to distribute, third offense, for each. He was convicted of all three charges, and the Court of Appeals affirmed. The Supreme Court granted a writ to review only the methadone conviction.
At trial, a police detective testified that the drugs, taken as a whole, were inconsistent with personal use. He noted that he had never seen a user possess all three drugs at once (evidently users typically focus on one substance at a time). As for the methadone, he told the trial court that a heavy user would consume perhaps seven capsules in a day, and would not go carrying 38 of them around.
Interestingly, Williams himself gave the police one key tidbit. At the initial stop, the police officer asked him where he worked; he said he was unemployed. What does that have to do with the case, you wonder? (So did I.) The detective testified that the whole quantum of drugs had a street value of almost $600. He noted that it would be very unusual for an unemployed person to be carrying around $600 worth of drugs for personal use. (Ah-ha. Now I see.) Finally, the detective observed that the 38 capsules were stored in the corner of a plastic bag; not in the pill bottles that prescription methadone is dispensed in.
The court today finds all of these circumstances to be quite sufficient to enable the trier of fact to find Williams guilty of possession with intent. It notes that intent to distribute must usually be proved by circumstantial evidence, but that the prosecution produced ample such evidence.
I suspect that one lingering effect of today’s decision will be that police officers will start asking suspects about their job status. That was a pretty neat trick of evidence-gathering, in my view.
Okay, here’s the situation. Boyfriend is a thief who steals property as the next best alternative to honest labor. He brings his loot back to his apartment, where Girlfriend and their child also live. Girlfriend knows he’s stealing, and tells him not to bring the stuff back to the apartment; but really, where else is there? Boyfriend fences the property from time to time and uses the proceeds to pay the couple’s bills, including the rent; Girlfriend is fully aware that he’s doing that.
The question is, Is Girlfriend guilty of receiving stolen property? The answer comes today in Whitehead v. Commonwealth. The trial court had convicted Girlfriend based on the prosecution’s contention that she had constructively received them. She didn’t actually receive them, but she received the benefits of the thefts in the form of the payment of her bills and living expenses. The Court of Appeals, in an unpublished opinion last year, accepted this position. The prosecution based this argument on an old (1919) New York case.
But the Supreme Court takes a careful look at the former New York statute at issue in that case, and finds a key, and dispositive, difference in the wording, as compared with Virginia’s stolen-property statute. It rejects the notion of constructive receipt on these facts.
That isn’t the end of the match; that was only the first set. The second consists of the Commonwealth’s alternative argument that Girlfriend constructively possessed the goods. (This was the basis of the CAV’s eventual ruling.) The trouble here is that the prosecution had never advanced this theory at trial; the first time it appeared in the case was in the CAV’s opinion (which theory the Commonwealth cheerfully adopted in the further appeal to the Supreme Court). As you must know by now, having visited this site more than a couple of times, you can’t raise an argument in an appellate court if you didn’t present it to the trial court. The trial court has to have “an opportunity to rule” on the argument.
That omission trips up the Commonwealth here, as the Supreme Court refuses to consider this new and alternative ground for conviction. It declines to utilize the “right for the wrong reason” rule because a litigant must at least try to get the trial court to accept the alternate ground, and that didn’t happen here. At this point, Girlfriend is up, two sets to love, as the court today reverses her convictions.
The third set deals with her companion adjudication for a probation violation, based on prior convictions. Since that proceeding was founded on her convictions here, and since (based on the transcript of the probation proceeding) these convictions played an important role in the court’s decision to revoke her probation, that ruling is remanded for reconsideration in light of today’s reversal. And that, fans, is game, set, and match.
As long as all these criminal defendants are not guilty, let’s talk about expungement, shall we? Virginia law recognizes that an arrest record can provide a significant impediment to a person who, it turns out, was innocent after all. It accordingly includes a provision for expungement of criminal records, assuming certain conditions are met.
This all sounds nice, but the reality is that the Supreme Court’s recent opinions on this topic have all pointed out the limitations of this mechanism. If your charges were dismissed based on a first offender statute, you’re not really innocent, so you can’t get that record expunged. Ditto for those defendants who got a deferred finding after the trial court found the evidence sufficient, but decided to give them a chance to redeem themselves by things like good behavior and community service. And forget about the idea of entering a nolo contendere plea; ever since Spiro Agnew, everybody knows that’s the functional equivalent of pleading guilty. In all, it’s proving difficult for many applicants to take advantage of the provisions.
Today the tide starts to turn, in two separate cases that are consolidated for a single opinion under the name Brown v. Commonwealth. The facts and procedural postures of the cases are slightly different, but the key similarity is that in both, the defendant hadn’t entered a plea and the trial court hadn’t made a finding of sufficiency. In these cases, therefore, no court had made a finding that the defendants had done the acts they were accused of committing. That means these defendants had a legitimate claim to being innocent (not merely not guilty), so they could take advantage of the statute.
This finding alone doesn’t get the defendants all the way to the Promised Land; there still has to be a finding by the trial court that the continued existence of the records might wreak a manifest injustice to the petitioner. In one of the appealed cases, the trial court had made a specific finding of such manifest injustice, and the Commonwealth hadn’t appealed that finding. That ends that issue; the petitioner wins. In the other one, the Commonwealth asserted that while the trial court had made such a finding, there was no evidence to back that up.
This might be a problem for the petitioner; even a favorable finding has to rest upon some evidentiary basis, and if there really was none, then she might be out of luck.
Her luck supply holds out just fine. The Supreme Court today notes that nothing in the record established what evidence, exactly, the trial court had considered in making this ruling. In this case, there was no transcript; the appeal proceeded on a written statement under Rule 5:11(c). That rule is a useful safety valve but a dangerous insurance policy. The statement didn’t say one way or the other what the evidentiary basis for the finding was, and the appellant always bears the burden of presenting an adequate record to permit appellate review. In this case, the Commonwealth was the appellant, so the Supreme Court finds for the petitioner on this issue.
This case has two useful lessons. First, criminal defense lawyers will want to review it to be certain they leave the expungement option open for their clients. That will require asking the trial court to defer a finding without a plea or evidence; entering a plea of guilty and then stipulating to the evidence won’t work. The second lesson has to do with written statements. If there’s no testimony at trial on a certain issue, and the appellant wants to challenge it, then he’d better insert a paragraph that recites that there was no such evidence. Mere silence on the point won’t suffice. (Of course, the sensible thing to do is to always hire a court reporter and never rely on a written statement. But that’s another rant, for another day.)
Civil rights
In a case that was argued in February and held over from the April opinion day, the court today decides whether the Virginia Lottery discriminates against disabled persons if some ticket retailers don’t have accessible sites for the sale of those tickets. The case is Winborne v. Virginia Lottery, and is brought under companion provisions of the Virginians with Disabilities Act and the Americans with Disabilities Act.
It’s virtually impossible to wander the Commonwealth without encountering a lottery retailer; they seem to be in every gas station and grocery store from here to Cumberland Gap. The petitioners in this case are persons with qualifying disabilities, and they identified 16 licensed ticket retailers who don’t have handicapped access. They filed suit seeking declaratory and injunctive relief.
The trial court considered the parties’ reciprocal motions for summary judgment, and ruled in favor of the Lottery. It based its holding on two premises. First, it found that the Lottery doesn’t offer “a program, service, or activity” as defined in the acts (presumably, the court found that it offered a product instead, but the opinion doesn’t mention that). Second, it ruled pursuant to a recent Fourth Circuit case that the Lottery isn’t “charged by law with the operation and maintenance of the retailers”; they’re essentially independent sales contractors.
In reviewing the case, the Supreme Court first takes what appears to me to be a very expansive view of the words program and activity. It finds that the lottery engages in a “program” of selling lottery tickets for money, thus making that “activity” a part of its “normal function and operation.” In my view, if this is the kind of definition the court will use, then the reach of the acts will be virtually unlimited from here on out.
That may not be a bad thing, depending on your view of these acts. Some critics describe the ADA as a massive unfunded mandate imposed by Congress on the states and localities; its backers describe its salutary purpose of ensuring that people with disabilities are not marginalized in our society.
The court next turns its attention to the Fourth Circuit case, Bacon v. Richmond, 475 F.3d 633 (4th Cir. 2007). The trial court had relied on that case for the proposition that if the defendant doesn’t control the premises, then it can’t be held responsible for violations. But the Supreme Court today correctly notes the fundamental difference between the cases. In Bacon, the plaintiff had sued the City of Richmond for alleged ADA violations at city schools. But the City doesn’t run the schools; the school board does. Bacon sued the wrong defendant. Here, Virginia Lottery, Inc. could theoretically decide which retailers to license based in part on accessibility considerations.
That isn’t the specific reason offered in today’s opinion – that’s much more akin to respondeat superior liability. Judge for yourself; here’s the key language of the opinion on this point: “Because the Virginia Lottery is responsible for the operation of the lottery, it is responsible for any VDA or ADA violations involving the Virginia Lottery’s duties under Code § 51.5-40 and 42 U.S.C. § 12132.” And here: “In short, although the Virginia Lottery is not responsible for the violations of the lottery retailers concerning their individual retail sites, the Virginia Lottery is responsible for its own violations in failing to provide disabled persons access to the Virginia Lottery’s programs and activities.” If we were talking about access to Virginia Lottery’s home office in Richmond, I’d buy that; but it’s clear to me that the import of this ruling is to make the Lottery responsible for ensuring that every retailer operates fully within the acts. This reasoning comes perilously close to making Virginia Lottery an insurer for any civil rights violations committed by any of its retailers, which would be even more of an expansion of the acts than the previous one I identified above.
Again, that may well be a good idea; but I am skeptical that that’s what the language of the statutes require. (Of course, as of this morning, that’s exactly what they do require in Virginia.)
But the case isn’t over; remember I said that the trial court decided reciprocal MSJ’s? The petitioners also appealed the denial of their own motion. But today the court rejects their entreaty, finding that genuine issues of fact prevent summary judgment for anyone at this point. So everyone loses (in a sense); the case is sent back for further proceedings, which will probably mean a trial on the merits.
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