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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions



[Posted October 31, 2014] I’ve had too long a hiatus from the keyboard, due to a hectic schedule of briefing, oral arguments, and other commitments. The Supreme Court gives me a gentle nudge this morning with a batch of 15 new published opinions and three published orders.


Today marks the final merits day in the center chair for Chief Justice Cynthia Kinser, who will retire from the court effective at the end of the year. She may continue to assist the court as a senior justice, but I’ll miss her gracious manner and her piercing questions. I’ll especially miss when she sent those questions to my adversary.


Criminal law

Today’s bounty includes a larger-than-usual batch of criminal appeals – six published opinions and one habeas-corpus ruling. We’ll start with the shorter ones; that will allow me to get more cases analyzed as quickly as possible today.


Statutory burglary is the felony of breaking and entering a dwelling house with the intent to commit larceny. It’s a felony because of the inherent danger – to both victim and perpetrator – of entering someone’s home and encountering the occupants. The decisive issue in Grimes v. Commonwealth is whether a crawlspace under a house is part of the dwelling, so as to warrant the enhanced punishment.


Grimes was seen coming out of the crawl space of a Newport News home, carrying purloined copper pipe and some cutting tools. As for the larceny part, it looks like the gendarmes have him red-handed. But the prosecutor charged him with statutory burglary. Grimes responded that the crawlspace wasn’t part of the dwelling house; no humans could live there. This argument has an air of plausibility, when you consider the purpose behind the statute; after all, you aren’t likely to encounter a homeowner in a bathrobe while you’re under the house, stealing his piping.


The trial court disagreed, finding the crawlspace to be a part of the house, and the Court of Appeals agreed. Today the Supreme Court makes it unanimous, finding that since the crawlspace was enclosed within the exterior walls of the home, it was a part of the home. The fact that it isn’t designed for humans to live there is irrelevant to the analysis. The court turns to caselaw from other states to reach this conclusion, which is apparently an issue of first impression here in Virginia.


Brown v. Commonwealth involves a Sixth Amendment claim. Brown received a court-appointed attorney for his drug-distribution trial. The day before trial, his lawyer told him that she had just accepted other employment and couldn’t continue to represent him past the guilt phase, in the event he was convicted. She offered to have another lawyer handle the sentencing in that event, but Brown wanted to have one lawyer handle the entire case.


When the case was called for trial the next morning, the lawyer conveyed Brown’s request for a continuance, so the second lawyer could handle the entire proceeding. The court noted that the first lawyer was competent and ready to handle the guilt phase, so it denied the request. It also denied a subsequent request to secure privately retained counsel, paid for by Brown’s family, to handle the entire case.


The court convicted Brown after a bench trial, and the retained lawyer entered an appearance to handle the sentencing. She renewed the request that one lawyer should have been allowed to handle the entire defense, but again the court refused to budge.


The Sixth Amendment gives every criminal defendant the right to have “the Assistance of Counsel for his defence.” The Supreme Court of the United States has interpreted this to mean not only an attorney, but an attorney of one’s choosing. This last right is constrained in cases of indigency; you can’t insist that the court appoint Clarence Darrow for you. This distinction proves crucial in today’s decision, which affirms the conviction.


The court today notes that Brown remained indigent throughout the proceeding, so he couldn’t invoke the right to choose a specific lawyer:


Brown's continuance request was deficient, as a matter of law, because, when made, he established no factual predicate for seeking substitution of other counsel in place of his court appointed counsel under the authority of the Sixth Amendment.


Today’s opinion does leave undecided one argument advanced by Brown, who had contended that he had a right to have a single lawyer represent him throughout the proceeding, instead of having to accept a series of lawyers for different phases of the case.

I have a confession to make: I particularly look forward to reading opinions from the always-clear pen of Senior Justice Russell. Today, he delivers: Hawkins v. Commonwealth is a short (7½ pages), compelling explanation of why Hawkins will continue to enjoy free room and board for a while.


Portsmouth Police received information that a specific individual, in whom they were definitely interested, might be found in a pool hall. When they arrived, they discovered Hawkins, dressed exactly as had been described.


When the officers approached Hawkins, he put his hand into his pocket. (A special note to all the criminals who might somehow wander onto this website: Don’t do that.) The lead officer told him to remove his hand from his pocket. When that didn’t work, a drawn handgun told Hawkins to do the same thing. That did the trick; Hawkins’s hand came out, clutching a wad of money, which he promptly threw to the floor.


No, really; he did. As Hawkins was being arrested, the lead officer scooped up the cash and handed it to officers who were inventorying Hawkins’s personal possessions. Hawkins, who was within earshot, denied that the money was his.


It will come as no surprise to my better-heeled readers that the bills – 18 of them in all – were counterfeit. Hawkins was indicted for the felony of possessing more than ten such counterfeit bills with intent to utter.


The prosecution is required to prove three things to get a conviction of this crime. The first is that the defendant possessed the bills. That part was easy; the police officer watched Hawkins draw them out of a pocket and fling them down. The second is knowledge that they’re counterfeit; the third is an intent to utter, or represent them to be legitimate. Now we’re necessarily entering the realm of circumstantial evidence, since few defendants will orally inculpate themselves.


The justices today agree that the circumstances are sufficient to justify an inference that Hawkins knew the bills were fake and intended to utter them. The opinion includes this compelling quote from a Fifth Circuit decision: "Probably the strongest evidence of guilty knowledge is an attempt to abandon counterfeit currency when detection is feared."


Okay, so that establishes that Hawkins knew the bills were counterfeit. How about an intent to spend them? Couldn’t he just have them in his personal collection of counterfeit money, like those fake million-dollar bills that are used as gags?


Here again, circumstantial evidence is Hawkins’s undoing. Federal caselaw, which is helpful here because the federal statutes on this topic employ the same language, indicate that this intent can be inferred from possession of a large number of bills and bringing them “to a commercial establishment, where cash transactions are likely.” Justice Russell notes that “frequent cash transactions could be anticipated” at a pool hall. I’m going to take his word on this.


The opinion doesn’t end without one more thing of analytical beauty. Since it’s only two paragraphs long, I’ll set it out in full here:


Hawkins makes the ingenious additional argument that if he brought counterfeit bills to the pool hall to pay gambling debts or to purchase drugs or other contraband, he would have lacked the intent to employ them as true, as contemplated by Code § 18.2-173. This, he contends, is a reasonable hypothesis of innocence that the Commonwealth's evidence failed to exclude. We do not agree.

Although federal counterfeiting laws have as their primary purpose the protection of the national currency, state laws on the same subject are aimed primarily at protecting their citizens from thefts and forgeries. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 707, 713 (1834); Brooks v. United States, 76 F.2d 871, 872 (1935). When counterfeit currency is put into circulation, even if originally for an illegal purpose, someone will ultimately be defrauded by its use. United States v. Hagan, 487 F.2d 897, 898 (5th Cir. 1973).


This, it would seem, is the “You can’t convict me of this offense, because I’m a crook” defense.

Here’s a criminal-law pop quiz. Capital murder is a Class 1 felony. By statute, the only available punishments for a conviction are (A) death or (B) life in prison. Is it correct, then, that the mandatory minimum punishment for capital murder is life in prison?


If you said yes, you’ll want to read Jones v. Commonwealth to find out why the justices – all of them – think you’re wrong. This case blends irony and foreboding in a gruesome context.


Jones pleaded guilty in 2001 to capital murder, arising out of the killing of a store clerk during a robbery. He had been 17 years old at the time of the offense. Under the plea agreement, he was sentenced to life in prison without possibility of parole.


Eleven years later, SCOTUS handed down Miller v. Alabama, in which it held that mandatory-life-without-parole sentences for juveniles violate the Eighth Amendment. Such juveniles have to be afforded the right to offer mitigating circumstances. Jones read Miller and decided that his sentencing order was invalid. He filed a pro se motion to vacate his sentence. He alternatively asked the circuit court to suspend his sentence under Code §19.2-303. The trial court refused, but the justices granted a writ.


So, how does the court escape the problem of Miller? By ruling, as I hinted above, that the life-without-parole option in the sentencing statute (§19.2-10) isn’t the equivalent of the Alabama and Arkansas statutes that were in issue in Miller. The distinction? In Virginia, even with capital murder, the judge has the option to suspend a criminal sentence.


To be sure, there are some statutes that contain express mandatory-minimum language. For example, aggravated involuntary manslaughter carries a mandatory minimum sentence of one year. The legislature has even taken care to define the term mandatory minimum. But somehow, that phrase doesn’t appear in the statutes that govern capital-murder proceedings.


The court thus rules that, since a trial judge has the authority to suspend a sentence of life in prison – I bet you didn't know that fact five minutes ago – Miller doesn’t apply in Virginia. The court finds further support for the premise that suspension of the life sentence is available in the language of the sentencing order, which “specifically stated that he was sentenced to life and no portion of that sentence was suspended.”


I sense that the folks in the Attorney General’s Office will regard this holding as good news and bad news. It’s good because, if this ruling withstands a likely cert petition in Washington, Virginia’s sentencing scheme is invulnerable to the Miller doctrine. But it’s bad news because suddenly, trial judges have been told that they have the authority, despite the specific nature of the enumerated punishments for capital murder, to suspend a life sentence if they so choose. Of course, few judges will be likely to risk legislative wrath at reelection time by doing something so dramatic; but today’s decision holds that a judge can, indeed, do just that. 

Education law

The court takes up a challenge to an employee suspension in Payne v. Fairfax County School Board. The employee was not a teacher but a food-service manager. She was suspended for three days for allegedly poor performance. Challenging the suspension in a declaratory-judgment action, she contended that she was entitled to a grievance hearing before the school board before she could be suspended.


In making this argument she cited a statute that governs suspensions of school-division employees. Here’s the relevant text; I’ll highlight the key provisions:


Except when a teacher or school employee is suspended because of being charged by summons, warrant, indictment or information with the commission of one of the above-listed criminal offenses, a division superintendent or appropriate central office designee shall not suspend a teacher or school employee for longer than sixty days and shall not suspend a teacher or school employee for a period in excess of five days unless such teacher or school employee is advised in writing of the reason for the suspension and afforded an opportunity for a hearing before the school board in accordance with §§ 22.1-311 and 22.1-313, if applicable. Any teacher or other school employee so suspended shall continue to receive his or her then applicable salary unless and until the school board, after a hearing, determines otherwise.


The employee contended that since she was never given a school-board hearing, the division had no right to withhold her pay, under the last sentence.


The task of unraveling this tangle falls to Justice Mims, and in my view he does a fine job. He notes that the second sentence above refers back to the first one, since it includes the phrase, “so suspended.” The second sentence actually allows an administrative suspension, without a school-board hearing, if the suspension is shorter than five days, so this suspension was permissible. And since it was, the mandatory-pay provision in the second sentence doesn’t help the employee.


There’s a particularly interesting aspect of this ruling, in that it evidently conflicts with an Opinion of the Attorney General from 1983, and a US District Court decision from the same year. The court notes that “Virginia courts do not defer to an interpretation of a statute, such as the one in the Attorney General’s opinion, that contradicts the plain language of the statute.”


The employee also raised a Dillon Rule challenge, claiming that the right to suspend non-teaching employees is not granted by statute. But today’s opinion notes that, despite the foreboding, ominous language of Judge Dillon’s pronouncement, he actually authorizes localities – including school boards – to exercise powers beyond those expressly granted, as long as those powers are “necessarily or fairly implied from expressly granted powers” or “essential and indispensable.” The division is granted the express right to supervise schools, and the justices find that the power to discipline school employees fits within both of those exceptions.

I got to watch the oral argument in Blake v. Commonwealth in September. This is a criminal case, but since the dominant issues relate to schools, I’ll put it in this section.


Blake is the mother of three school-age children. She’s divorced, and she has custody of the children on Wednesday evenings. School officials began to notice a pattern of tardiness for her children; they were repeatedly late to school on many Thursday mornings, by between five and twenty minutes. Citing the Code’s compulsory-attendance statute, a local prosecutor charged her with several counts of a misdemeanor, for failing to “send” her children to school.


The question here is whether the reference to “sending” the children to school imposes an obligation to enroll them in school, or to ensure that they’re there on time. The trial court and the Court of Appeals held that a parent can indeed be prosecuted and convicted when her children arrive late to school.


On the assumption that the parents in my readership have just swallowed hard, I’ll spill the beans here: a divided Supreme Court today reverses and vacates the convictions. Justice Millette writes for the court, noting first that the key word send is ambiguous in this context, since it plausibly can convey either of the two meanings noted above. The majority points out that the statutory scheme provides a “graduated plan for addressing multiple days of nonattendance,” including notices and parent-administrator conferences. This setup would be largely meaningless if a parent could be criminally prosecuted whenever Junior shows up after the bell. The majority concludes that the compulsory-attendance statute requires enrollment, but doesn’t make the parent an insurer of timely arrival.


Justice Powell dissents; she’s joined by Justice Mims. She argues that even if there is an ambiguity, the alternative meaning that is embraced by the majority represents a strained interpretation. She points to other instances where the statutes specifically use the term enroll, and argues that if the compulsory-attendance statute were similarly limited, the legislature could have used that word here, too.


There’s one aspect of the dissent that warrants particular mention here. It’s where Justice Powell responds to the objection that an affirmance would authorize criminal prosecutions for de minimis absence or tardiness. The dissent’s response is that we can rely on prosecutorial discretion to prevent that. After all, how many prosecutors are going to go after a parent when his son is late by three minutes once?


I’m not convinced by this part of the dissent’s argument. I’m all in favor of prosecutorial discretion, but the idea of authorizing a prosecutor to get an indictment for this level of “offense” is quite troublesome to me. In my view, holding that certain de minimis conduct is a crime, but most prosecutors would be unlikely to enforce it, doesn’t justify authorizing prosecutions.


Today’s decision does lead to one problem: what tools are available to school divisions when a student, with his parent’s knowledge and consent, really does abuse the system?


A decade ago, the Supreme Court held in Wright v. Kaye that risks-of-surgery discussions between a doctor and patient are inadmissible at trial, where the patient claimed that the doctor performed surgery negligently. As the court held then, consent to surgery is not consent to negligence. In Fiorucci v. Chinn, the court today applies that doctrine to claims of negligence in diagnosis, not merely the performance of the surgery itself.


This is a dental-malpractice case involving extraction of impacted wisdom teeth. The surgery left the patient with permanent numbness in his jaw. His standard-of-care expert opined that the surgery was unnecessary, because the condition in this patient’s case was benign. The trial court granted a motion in limine to exclude the information given to the patient in advance about the risks of the extraction.


The Supreme Court holds that this ruling was correct. This analysis, involving misdiagnosis instead of negligent performance of the operation, is no different from Wright, since the patient hadn’t consented to a misdiagnosis.

In Lasley v. Hylton, a divided court delivers a first-impression ruling, or an unnecessary advisory opinion, depending on whom you listen to. Maybe both. Let’s walk through it together and see.


Here’s the setup: Host decides to have a cookout at his home in Botetourt County. He invites a pal, whom we’ll call Dad; Dad brings his two daughters, age 12 and 8.


Host owns a couple of all-terrain vehicles. The sisters see a boy riding one of them and decide that it looks like fun; the younger one accepted a ride on one of them.


You know how little sisters are; the older one wanted to try it, too. Host said she could operate the smaller of the two vehicles as long as Dad consented. The consent was given, and after substantial preparation, the older girl enjoyed her first experience of piloting a motorized vehicle. It was a wobbly affair, and when bringing the ATV to a halt, she actually bumped into Host. Happily, no damage.


Now the younger girl wants more. After all, she only got the equivalent of a piggyback ride, while her sister actually got to drive one. She asked to be able to try it, and asked Host to give it a spin. Host said, “Okay, but only if you get your Dad’s permission.” Dad said okay, too, and supervised by Host and Dad, the little girl got on the ATV.


That would be the ATV with the prominent warning labels that contain language like this: “NEVER permit children under age 12 to operate this ATV.”


You already know what happens next; the little girl took off and promptly lost control. Fortunately, she was only going between five and ten miles per hour when the vehicle tipped over, so she wasn’t killed or crippled. But she did sustain several injuries, including a broken shoulder.


(In case it isn’t obvious, I have a soft spot in my heart for this little girl, since I raised one myself. This injury happened six years ago, and I hope and trust that she’s a happy, healthy 14-year-old by now.)


Enter Mom, who sues Host in her own behalf and on behalf of the little girl. Her initial and first-amended pleading stated claims based on the girl’s status as a social guest on the premises. But she amended her pleading again, and the final version omitted that claim. It relied instead on a general duty, allegedly owed by Host to the world, to refrain from injuring others. In essence, this isn’t a premises-liability claim anymore; it’s based on Host’s failure to supervise the girl.


The case thus presents the first-impression issue that I referred to at the outset of this essay: What duty does Host have to the girl when she’s also being actively supervised by a parent?


A majority of the court answers this question, holding that when the parent is actively supervising the child, the parent’s duty supersedes that of Host. The court rules that if Dad couldn’t see anything wrong with this situation, despite the fact that the risks were open and obvious, it wouldn’t be right to thrust a greater duty upon Host.


Three justices file a concurring opinion. Justice McClanahan, writing for Justices Lemons and Goodwyn, agree with the outcome but prefer not to wade into this first-impression issue because, as they see it, Mom abandoned it when she amended her pleading. Her lawyer expressly disavowed such a claim in oral argument. The dissent thinks there’s no reason for the court to issue what is in effect an advisory opinion on a question that shouldn't be decided here.


You know what? I think they’re right. To me, this looks like a careful explanation of a difficult legal issue that wasn't really before the court. Of course, my vote counts for exactly as much here as it does back at home whenever I disagree with The Boss.


The court takes up an appeal involving one of the coolest automobiles of all time, a 1960 Thunderbird. The case is Owens v. DRS Automotive Fantomworks, and arises under the Consumer Protection Act.


Owens and his wife traveled to New England one fine day in 2012 and bought the precious vehicle for $11,500. They got such a good price because the car needed a lot of work. They engaged DRS and its principal, named Short, to conduct the extensive restoration. Despite the fact that the work would be complex and would cost tens of thousands of dollars, the parties never got around to signing a written contract.


Short told Owens that the project would probably cost in the neighborhood of $40,000. That was fine with Owens, so DRS went about the process of acquiring parts to do the work. Short told Owens that the best way to get those parts was to buy a “donor car,” from which used parts could be scavenged at a fraction of the cost of new parts. Go for it, Owens told him.


DRS found a suitable donor, a crashed police interceptor that nevertheless had perfectly intact parts that would be needed for the T-bird. Short testified that he agreed with the seller, a Navy lieutenant, to buy the car for $6,000. That was more than what Owens had originally been told that such a car would cost, but in the ensuing weeks, he expressed no concern about the excess. Owens timely made two $15,000 payments to DRS as the work progressed.


All remained peaceful until Mrs. Owens, who’s a lawyer, wrote what I might term a nastygram to DRS, essentially demanding an accounting for the funds that had been expended. I’m not really sure it was a bona fide nastygram, of course; but I’ve seen more than a few of those from lawyers in my day. DRS answered that the car would be available for inspection by anyone the Owenses chose, and offered to deliver both vehicles to them if that was their preference. Instead, the Owenses went to court, suing under the CPA.


At trial, Owens called Short to testify as an adverse witness. He –


Okay, I have to interrupt this discussion to comment on this tactic. In my view, calling your Bad Guy as an adverse witness is fraught with danger. When you put his testimony in your case in chief, you’re bound by so much of it as is clear, reasonable, and uncontradicted. You also have the problem that the defense lawyer now has the opportunity to interrupt your case’s cohesive presentation by cross-examining his own client, getting him to adduce evidence that can cause untold damage to your case. And he gets to do it before he makes a motion to strike!


Perhaps it’s acceptable to do this with an adverse-party deposition under Rule 4:7(a)(3); at least that way you have containment of the subject matter, and your opponent can’t wade in with damaging cross-examination before you rest. But putting a live, unfavorable witness in a position where he can do you harm is too risky for my blood, unless there really is no alternative.


On the theory that the trial lawyer here may have had no alternative, I’ll end this rant now and return you to your regularly scheduled appellate analysis.


Short testified that he had indeed paid the lieutenant $6,000 for the donor car. Given the agreed 25% markup for parts, he charged Owens $7,500. The lieutenant also testified – in the plaintiff’s case in chief! – and confirmed that the sale was for $6,000. He did offer at least one damaging admission: he had originally offered it for sale on Craigslist for $2,000 before selling it to DRS. This was a major part of the basis for the CPA claim; Owens alleged that DRS had inflated the acquisition cost of the interceptor, and had passed that phony price along to Owens.


When Owens rested, the defense moved to strike. The judge noted that the $6K price was uncontested by any positive evidence. In unfortunate phrasing, the judge described the witnesses (Short and the lieutenant”) as “believable” and “credible.” Based on that, he struck the CPA claims, leaving only a breach-of-contract claim for resolution by the jury. At the close of the trial, the jury sided with the defendants.


The primary issue in this appeal is whether the court correctly struck the evidence. You have to admit, any time a judge takes an issue away from a jury by observing that a witness was credible, there are already red flags waving and sirens going off. Judges don’t get to make credibility determinations in jury trials. And yet a bare majority of the Supreme Court votes to affirm anyway.


Senior Justice Russell writes on behalf of Justices Lemons, Millette, and McClanahan. The majority rules that, despite the unfortunate choice of words, the trial court was really only applying the adverse-witness rule, as noted above. The majority also notes that literally all of the documentary evidence, including the bill of sale, was consistent with a $6,000 purchase. The court holds that while the plaintiffs may have generated a suspicion that another price had been paid, there was no actual proof of it. Hence the court affirms the decision to strike the CPA counts.


Justice Powell again dissents, and she’s joined by the chief justice and Justice Mims. She believes that there was circumstantial evidence that the sale price was only $2,000, and whether to accept the $6K testimony was a matter that should have been left to the jury. For example, the lieutenant had asked for $2,000 for the car, and DRS gave him a check in that amount – plus $4,000 that was to be paid in cash. These suspicious circumstances, in the dissent’s view, should have been jury questions.


One last point about this decision, and it will be important for those of you who handle consumer litigation. The court rules that the Consumer Protection Act is broader than the law of fraud. Proof of fraud can, of course, support an action under the CPA, but if fraud is always required, then the act is simply declarative of existing law. The majority opinion includes this important passage: “[W]e agree with the plaintiffs' argument that the VCPA's proscription of conduct by suppliers in consumer transactions extends considerably beyond fraud.”



[Posted September 12, 2014] Okay, summer’s over, at least for the appellate crowd. Today is the Supreme Court’s opinion day, and the court hands down eight published opinions in cases that were argued in June. The coffee’s on and it’s raining outside, so let’s dig into today’s batch.



Kohn v. Marquis has made plenty of news down here in Tidewater. It’s a wrongful-death action brought by the widow of a police recruit who was literally beaten to death during his training to become a police officer. The widow sued the police chief and several others, including the trainers and the administrator who designed the training program.


The defendants asserted the bar of the Workers’ Comp Act, since the recruit was a City employee at the time of his death and the injury unquestionably arose out of and in the course of his employment. The sole disputed issue on the plea was whether the death was due to an “injury by accident.”


The widow had pleaded that the death was the result of a series of head traumas over a period of several weeks; she pointed to caselaw holding that repetitive-trauma injuries are not within the act. A medical examiner’s report noted that the decedent suffered several blows to the head on the day he collapsed in training, and that those blows “may have played a significant role in Mr. Kohn’s terminal event but other blows to the head prior to this event cannot be excluded as contributing to his terminal head injury.” The widow cited this language in arguing that summary judgment was inappropriate, since the question whether death was due to those blows, or due to earlier traumas, had to be presented to a jury.


The defendants responded that the decedent had suffered at least some injury on the date of his collapse, and that fact meant this was indeed an injury by accident. The trial court granted summary judgment to the defendants, and the Supreme Court agreed to review the case.


If you follow Supreme Court jurisprudence, you know that summary judgment is a disfavored procedure – unlike in federal court, where courts prefer to use SJ whenever they can. It may therefore come as some surprise to you that the justices today affirm the trial court’s decision to end the litigation in this way. The court finds that these facts


significantly [differ] from the gradually incurred injury and repetitive trauma cases referenced by Kohn in that John suffered an obvious mechanical or structural change in his body while engaged in a work activity which exposed him to an employment-related hazard that injured him and contributed to his death.


In explaining its ruling, the court describes the injury that the recruit sustained on his final day of training as “a proximate cause of his death.” Note that proximate causation was the precise disputed issue in the litigation, and the defendants bore the burden of proof on it (Hilton v. Martin from 2008 decided that issue). The Supreme Court has made this causation decision even though a medical examiner could not. (Go back and read that short excerpt from the autopsy report and you'll see what I mean.) I’ve never seen the justices do that before, and I don’t know whether this portends a shift in the court’s view of summary judgment, toward the federal model.


I’ve noted before the erosion of the demurrer in recent Supreme Court caselaw – Assurance Data v. Malyevac comes immediately to mind – but a more open receptiveness to summary judgment is a significantly bigger departure from the court’s previous approach. Keep that in mind as you approach your next summary-judgment hearing.

Real property

Sometimes a new appellate opinion breaks new ground, and sometimes it just polished the edges of a previous decision. Swords Creek Land Partnership v. Belcher is of the latter variety. The fundamental issue is one that the justices tackled ten years ago: a severance deed that conveys the right to mine coal doesn’t include the right to extract coal-bed methane gas.


The justices don’t retreat from that holding today, but they take up two of the coal-owner’s attempts to distinguish the 2004 decision. First, the court rejects the contention that the granting clause is ambiguous. It finds that it is not; even though it occasionally contains potentially vague language such as “other things” and “rights and privileges,” those are always specifically related back to the grant of the right to coal only.


Second, the court rejects the coal owner’s attempt to secure a constructive trust, claiming that it conferred a benefit on the land owner. After all, if not for the mining activity, the gas never would have been released. But the court today rules that “the CBM was at all times the property of the Surface Owners, and the Coal Owner conferred no benefit upon the Surface Owners.”

Domestic relations

We get a ruling today in a rare area for appellate decisions – a name-change petition involving a juvenile. McMahon v. Wirick paradoxically involves a child who is named neither McMahon or Wirick. Here’s how that shakes out.


Father (McMahon) and mother (Wirick) were never married, but they produced a daughter. Mother’s name was White; she subsequently married a Mr. Wirick and took his name. But at the time of birth, Mother still bore her maiden name, so the little girl’s surname is White.


Today’s opinion doesn’t go into this detail, but I wonder about the family dynamic at the time of birth. I also wonder about what Father said when he found out that the birth certificate read “White.” I have some idle speculation about both topics, but I should probably keep those to myself and stick to today’s holdings.


The parents shared physical and legal custody for a time, but when the little girl reached school age, they decided to give Father primary legal custody during the school year, because of the school division where he lived. This started to generate problems when he was misidentified at school as “Mr. White” or received medical bills naming the girl as Wirick. Father accordingly filed a petition to change the little girl’s surname to match his.


The trial court consulted Spero v. Heath, 267 Va. 477 (2004) for guidance. That case held that a name-change petition like this can be granted only upon a showing that the change is in the child’s best interest. The Spero decision listed four factors that could justify such a finding. I’ll lay them out here:


1) The parent sharing his or her surname with the minor has “abandoned the natural ties ordinarily existing between parent and child,”

2) The parent sharing his or her surname with the minor “has engaged in misconduct sufficient to embarrass the [minor] in the continued use” of the parent's name,

3) The minor “otherwise will suffer substantial detriment” by bearing the

surname he or she currently bears, or

4) The minor “is of sufficient age and discretion to make an intelligent choice and . . . desires that [his or her] name be changed.”


Now, if you read those carefully, you’ll have observed that the first two don’t match up with these facts, because there is no “parent sharing his or her surname with the minor.” All three people here have different surnames. Despite this, the trial court evaluated the petition under the four-factor analysis of Spero and ruled against the father.


In a slightly split decision, the justices today affirm that ruling. The majority notes – correctly, I think – that these four are examples, not a four-part test. The real issue, as always, is the best-interest test. Because of uncertainty about what to do where the surnames are all different, the trial court had made alternative findings; it rules that none of the four factors are met, and, separately, that the father had shown only “minor inconvenience or embarrassment,” which definitely is not enough to justify a change. Six of the justices agree with the trial court’s Spero analysis, and today’s decision establishes that the Spero analysis applies even where there is no “parent sharing his or her surname with the minor.”


Justice McClanahan files a concurring opinion that focuses on the problem I mentioned above. She would not apply the Spero factors to a case like this, because of that very problem. That being said, she agrees with the alternative finding, and all seven justices agree that the father hasn’t met the best-interest test.


Incidentally, I think Justice McClanahan is right. I don’t think it makes sense to apply the Spero factors where they clearly don’t apply to the facts of the case. In the end, it doesn’t matter for these litigants. It might matter for you, though, if you have a comparable name-change proceeding in the future.


Let’s start the discussion of Temple v. Mary Washington Hospital with a philosophical question. Do you regard discovery, as laid out in Part 4 of the Rules of Court, to comprise only questions and answers? Or is it a process that includes objections and motions and hearings and orders? The justices give us an answer to that question in the context of a wrongful-death case involving allegations of medical malpractice.


Temple is the widow of a patient who died at Mary Washington Hospital. She sued the hospital and other health-care providers in 2010. As the case progressed, several discovery disputes arose over whether the widow was entitled to certain classes of information. After considering the matters, the trial judge agreed with the hospital and refused to order production of the requested information. It entered two orders carrying out those rulings.


The widow later nonsuited the case and refiled it timely in 2012. Because the parties figured it would save time, they prepared a consent order that incorporated “[a]ll discovery conducted and taken in the previous action.” The case then proceeded to trial, and a jury found for the defendants.


The widow got a writ to review the trial court’s decision to limit her discovery. Her cause was probably bolstered by the fact that some of the information that she had sought in discovery was actually adduced from defense witnesses during the trial; she claimed that this was essentially trial by ambush.


On appeal, the defendants argued that the Supreme Court could not reach the discovery rulings, because they had come in the prior, nonsuited action, which obviously had not been appealed. The widow responded that the discovery order took care of that problem. The defendants shot back that the order didn't incorporate the prior case’s rulings; only the information that had been exchanged.


And that brings us back to our philosophical question. In order to determine whether this issue is currently appealable, the justices must first decide whether discovery is a process, in which case the prior ruling has been incorporated and can be appealed; or if it’s just the questions and answers, in which case the widow is stuck without an appealable issue.


The court unanimously finds today that discovery refers only to the information that is exchanged, and not to the proceedings that lead up to and include rulings:


Although parties may file motions to compel and raise objections while they are engaged in the discovery process, the motions, objections, and trial court orders do not constitute discovery.


Accordingly, here’s a waiver trap that you must address now if you want to preserve issues for appellate review in a refiled action. In order to achieve that, your incorporation order must not only refer to the discovery, but also the parties’ legal arguments, the court’s rulings and orders resolving those arguments, and probably the transcripts of those hearings as well. Perhaps you think this is a belt-and-suspenders approach; whether it is or not, this is the procedure that you must follow from now on.

There’s one more angle to this case that’s worth a brief discussion here. In response to the argument that the incorporation order didn’t carry forward the rulings from the previous case, the widow cited numerous transcript citations from the second suit. In those passages, the defense lawyers and the trial court clearly indicated that they regarded the rulings from the previous case to have binding effect in the refiled action. The widow argued that the court and the litigants clearly understood that the incorporation order related to the rulings as well as the questions and answers.


The justices deflect this argument by noting that courts of record speak only through their orders, “and that such orders are presumed to reflect accurately what transpired.” Accordingly, the judge’s oral statements in colloquy are of no help to the widow’s cause.

Criminal law and procedure

Virginia courts are empowered by statute to issue protective orders to protect persons from violence or threats of violence at the hands of others. The grounds for issuance of such orders include instances of stalking. That procedure is at the heart of today’s unanimous decision in Stephens v. Rose.


Stephens and Rose had dated for four years and were engaged to be married when, in 2007, they broke off the engagement. Rose had become concerned about Stephens because of his moodiness and problems with anger. They continued to communicate infrequently into 2008, but eventually Rose asked him not to contact her anymore.


Over the next three years, Stephens didn’t give up hope. He continued to try to contact Rose in several different ways, offering apologies and asking to rekindle the relationship. She ignored the messages.


So far, what we have is a common but unremarkable story of unrequited love. But early in 2013, Stephens’s approach changed. He showed up at Rose’s father’s home in Ohio at 6:20 am and asked the father where Rose was. The father told him to forget her and not to contact her anymore.


Undeterred, Stephens began an incessant string of efforts to contact his former love. He called her home 40 times in one week. He called her at work and even sent her flowers there. (She sent the flowers back.) He called several times in the wee hours of one evening (trust me, a string of unwanted phone calls at 2:30 am is not the path to a girl’s heart) and showed up at her home at 7:00 am that day with more flowers.


All of this understandably upset and worried Rose, who knew not what to expect from the persistent suitor. Her boyfriend stayed at her home at her request; he even spoke with Stephens once and represented himself as Rose’s husband. On that morning, the boyfriend called police, who arrested Stephens in a nearby parking lot. Rose later moved her residence.


At a subsequent hearing, Rose acknowledged that she had never directly told Stephens not to contact her, and that Stephens had never abused her or threatened to do so.


The question in this appeal is whether all of this can support the issuance of a protective order that essentially tells Stephens to stay the hell away from Rose. The justices today agree that it does, despite the absence of an express threat or act of violence.


In a decision of first impression in the Supreme Court, the court – adopting the analysis used by the Court of Appeals in the 1997 case of Parker v. Commonwealth, 24 Va.App. 681 – identifies three elements that must exist:


(1) the defendant directed his or her conduct toward the victim on at least two occasions; (2) the defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and (3) the defendant’s conduct caused the victim “to experience reasonable fear of death, criminal sexual assault, or bodily injury.”


The justices note that this list doesn’t require actual harm or even an actual threat. Nor is it a specific-intent statute; the existence of that “should have known” language means that the time-honored “pure heart, empty head” defense will be unavailing.


With that in mind, the court walks through the three factors and finds each of them to be met under the deferential plainly-wrong standard of review. First, beyond question, Stephens directed far more than two acts toward Rose. Second, the justices agree that the evidence, in a light most favorable to Rose, establishes that Stephens should have known that his incessant attempts would cause fear in Rose. They specifically point to repeated requests from Rose not to call, and to the father’s and boyfriend’s directives to the same end.


Third, under the same evidentiary standard, the trial court wasn’t plainly wrong in finding that, on an objective basis, Rose would have experienced reasonable fear of criminal sexual assault or bodily injury. The trial court accordingly was warranted in issuing the protective order.

The next case, Murry v. Commonwealth, caught my eye a few days ago. Before opinion days, I usually go back to the list of cases argued in the previous session, and then check the Supreme Court’s website to review the assignments of error in those cases. This gives me an idea of which significant issues are likely to be decided when the opinions come down.


In this appeal, I saw that the justices had granted Murry an appeal limited to two issues. He evidently tried several angles of attack, because these two granted assignments were numbered 9 and 10. But #9 brought my casual perusal to a slamming halt. After convicting him of sexual assault and rape of a minor, the trial court had imposed a probation condition that required Murry to submit to any and all law-enforcement searches at any time. In effect, the Fourth Amendment did not exist anymore for this defendant upon his release from confinement.


Because I don’t handle many criminal cases, I don’t see many probation conditions and I didn't know whether this condition was unusual or not. But it was eye-catching, so I looked forward to getting the justices’ decision and analysis.


Murry was convicted of the offenses listed above; the victim was his step-daughter. Starting when she was five years old, Murry began to acclimate her to sexual contact; by the time she was 13, he had sexual intercourse with her. He contended at trial that the act was consensual on her part, but the trial judge, hearing the case without a jury, found that explanation to be incredible. He sentenced Murry to 156 years in prison, but suspended 140 years. The court imposed the search-consent condition as one of the terms of probation for three express reasons: because of Murry’s concealed and predatory behavior, because of his lack of acceptance of responsibility, and to protect the community.


Murry challenged this condition in the Court of Appeals, asserting that throwing out the Fourth Amendment was improper. The CAV limited its review to the reasonableness of the condition, and didn’t reach the constitutional angle of attack. That court felt that Murry’s argument in the trial court had not extended to a Fourth Amendment challenge. The justices disagree, finding the issue to have been adequately preserved in the trial court.


Today the justices find the probation term to be unreasonable, so they remand the case for a new sentencing hearing. The court cites numerous cases from other state and federal courts, each of which holds that while a probationer’s privacy rights are limited, they aren’t nonexistent. The trial court’s order would legitimize a search based on a whim or on a desire to harass, wholly unrelated to any law-enforcement or rehabilitative purpose. The cited decisions indicate that if a police or probation officer has a reasonable suspicion, then that might be a legitimate ground for a search of Murry’s person.


Justice McClanahan files a short dissent that incorporates the reasoning of the Court of Appeals' opinion. Justice Mims files a concurring opinion that agrees that the probation condition is too broad. He suggests that the several conditions of probation be considered together, rather than in isolation. He notes, for example, the unappealed condition of no unsupervised contact with minors. He argues that on occasion, probation officers must be free to make unannounced visits, particularly where, as with Murry, a probationer has succeeded in concealing his crimes for many years.


And then we come to what I perceive – perhaps correctly; perhaps wrongly – is the real thrust of the concurrence:


Finally, I emphasize that a criminal defendant has no right to suspension of any part of the sentence imposed by the trial court. . . .

[W]hile a defendant may appeal a probation condition on the grounds that it is unreasonable, . . . nothing prevents a trial court from declining to suspend any part of a valid sentence in the first place (thereby requiring the defendant to serve the entire term in confinement) if it determines that no reasonable conditions would make suspension “compatible with the public interest.”


Considering that the case is remanded for a new sentencing hearing, not merely for removal of the offending probation condition, I believe the message here is as follows: “Dear trial judge – Since you’re starting from Square One in sentencing, you are within your rights to sentence this guy to serve the full 156 years. That’ll achieve your stated desire to keep society safe. Best wishes; Justice Mims.”

Employment law

Back in the 1990s, when I worked in a municipal law office, I got to deal with a lot of police officers. In my view, they are one of the segments of our society that are underpaid; anybody who goes into harm’s way to keep my family safe has my respect. In order to supplement their salaries, many officers work overtime, which as we all know, has to be paid at least at 1½ times the base pay rate.


Recently, Loudoun County started to feel a budgetary pinch, and cast about to find ways to save money. It directed the sheriff of that county to adjust his overtime-pay structure in order to cut back significantly on the amount of overtime pay for deputies working at a detention center or walking a beat. The sheriff implemented those changes, and some of the deputies rebelled.


In this litigation, styled Bailey v. Loudoun County Sheriff’s Office, the deputies argued that the sheriff’s arrangement violated Virginia’s Gap Pay Act, which addresses an area that isn’t covered by the federal Fair Labor Standards Act. I could go into a detailed explanation of the statutory scheme and its interplay with federal law; but since I love you and don’t wish to inflict agony upon you, I’ll just jump to the Supreme Court’s holdings in the case. If you practice in this field, you probably already know about this setup. If you don’t, and you’re still reading this part of the analysis, it’s probably just because you don’t want to miss the jokes that I customarily throw in.


The justices rule that two of the three adjustments made by the sheriff were improper under the Gap Pay Act. First, when an employee worked overtime but took sick leave during a given work period, the sheriff would account for the time off as being attributable to the normal work shift. In other words, the employee’s sick-leave balance wouldn’t go down, even though the deputy had taken it. This procedure meant that the gap pay wasn’t being paid at the mandated time-and-a-half rate.


Similarly, the court overturns the practice of offering what the sheriff called “exchange hours” – I would call it “comp time,” where the employee gets extra annual leave instead of extra pay – because the Loudoun setup allowed that comp time to accrue on a 1-for-1 basis. It’s perfectly legal under the act to award comp time instead of money, but you still have to do so at a 1.5-to-1 rate, and the sheriff hadn’t done that.


The third challenged practice, however, survives judicial scrutiny today. The folks up in Loudoun call it “force flexing.” Here’s how it works:


Sergeant: Hey, L-T; I’ve been looking at the pay records, and I saw something you might wanna know about.

Lieutenant: What is it this time?

Sergeant: I just saw that Deputy Pastafalooza is only two hours away from maxing out his hours before he starts accruing overtime. You know how insistent the sheriff is.

Lieutenant: No problem, Sarge; just make his next shift no more than two hours.

Sergeant: But his next shift starts in fifteen minutes; he’s probably already in the parking lot right now.

Lieutenant: Not my problem. When he comes in, tell him he’s only working two hours today, and then he goes straight home.

Sergeant: Oh, great, I always have to be the one to bear the bad tidings . . .

Lieutenant: Wait’ll you’re a lieutenant; then you can dump on your sergeant.


If this sounds farfetched – the idea of sending a guy home after two hours’ notice, please know that I didn't make up anything other than the dialogue. This scenario is set out on page 23 of today’s slip opinion; it actually happened to one of the Loudoun deputies.


The court rules that an employer can take steps to minimize employee overtime in this way without violating the act. Nor does it violate the terms of the deputies’ employment, as specified in the Human Resources Handbook. That manual states that “Flexible scheduling of work hours is arranged between an employee and supervisor with the Department Head's approval.”


The court holds that this procedure was followed, albeit only in the most technical sense. The deputy probably didn't think that it was much of an “arrangement,” since he got no say in the matter. But the court finds that the literal language of the manual was satisfied:


Although such scheduling was mandatory, whereby a Patrol Deputy could not opt out of the altered work hours, the flexed schedule was nonetheless "arranged" between the Patrol Deputy and his supervisor and done with the "approval" of the Sheriff.


I will confess that I cringed just a tad when I read this razor-thin justification for the court’s holding. I would conceive of “arranging” a schedule to be more of a two-way street. But I don’t recall being given a vote on this . . .


The court remands the case to the trial court for further proceedings, including a determination of whether the employees are entitled to an award of damages and attorney’s fees. The opinion also includes a specific directive that the trial court may decide for itself whether it needs additional evidence to make those judgment calls.


Before 2013, state law created an incentive for a utility like Dominion Virginia Power to build power-generation plants. The issue in OAG, Division of Consumer Counsel v. SCC is how much of an incentive that law created.


This case centers on VEPCO’s plan to build a new generation facility in Brunswick County, presumably to serve customers in Southside Virginia. The entire project will cost $1.27 billion. Almost $90 million of that is for the construction of transmission infrastructure – things like new power lines and substations. The incentive is tied in with the utility’s guaranteed return on its investment in capital projects. The normal rate of return for the relevant time frame was 10.4%. But the incentive clause would allow up to an additional 1% (for a total rate of return of 11.4%) if the SCC approved VEPCO’s request for that.


Here’s the issue: does the extra 1% apply to the cost of the generation facility only, or does it also apply to the transmission infrastructure? Out of this nearly $1.3 billion project, the parties are arguing over a measly 1% of $90 million – just $900,000 a year for ten years.


Well, okay; maybe it isn’t so measly after all. One of the sexiest features of these rate cases is the number of zeroes that they generate.


The SCC had ruled, after a public hearing, that VEPCO was entitled to the extra 1% on the transmission facilities, too. The justices affirm that holding today. Poor Justice McClanahan is given the awful task of going through some fairly dry statutes and applying some fairly straightforward statutory analysis; and I have to say, she does a good job of explaining things without sending the reader straight into a coma. The court evaluates the relevant statute and finds it to be unambiguous. Here’s the key provision:


A utility that constructs [one or more other generation facilities] shall have the right to recover the costs of the facility . . .through its rates, including projected construction work in progress, and any associated allowance for funds used during construction, planning, development and construction costs, life-cycle costs . . . and costs of infrastructure associated therewith.


[Emphasis added by Justice McClanahan] Under this language, and filleting out the extraneous words, the utility can “recover the costs of the facility, including costs of infrastructure associated therewith.” That includes transmission lines, the court rules today, so VEPCO gets its ten-year rate adjustment.


Justice Mims files a short dissent in which he agrees with the reasoning of a State Corporation Commissioner who had dissented below. He adds that if the General Assembly believes that the court’s ruling is an incorrect interpretation, it can remedy the problem during the legislative session.




[Posted August 18, 2014] The justices of the Supreme Court this morning elected Justice Donald Lemons to serve as the next chief justice, beginning January 1, 2015. Justice Lemons will take over the center chair effective with the retirement of Chief Justice Cynthia Kinser on December 31.


Justice Lemons is second in seniority on the court, so he also would have been the next chief if the court had not changed its method of selection from tenure to election, back in 2002. Given his demonstrated commitment to professionalism, and its critical component, civility, I expect the court to emphasize those qualities to bench and bar over the next four years.

Here's the text of the court's announcement:

PRESS RELEASE - August 18, 2014

The Supreme Court of Virginia Announces the Election of the Honorable Donald W. Lemons as Chief Justice-Elect

Today, the Justices of the Supreme Court of Virginia elected Justice Donald W. Lemons as Chief Justice-elect. Chief Justice-elect Lemons will succeed Chief Justice Cynthia D. Kinser, who has served one term as Chief Justice and will retire from the Court on December 31, 2014.

Chief Justice-elect Lemons will assume office on January 1, 2015. He was elected by the General Assembly to the Supreme Court ofVirginia in 2000 and again in 2012. Previously, Chief Justice-elect Lemons served as a judge of the Court of Appeals of Virginia and the Circuit Court for the City of Richmond.

He received both his undergraduate and law degrees from the University of Virginia. After receiving his law degree, he served as Assistant Dean and Assistant Professor of Law at the University of Virginia School of Law. Thereafter, he has served on the faculties of the University of Richmond School of Law and Washington and Lee University School of Law.

Chief Justice-elect Lemons has held leadership roles in numerous legal and civic organizations, including serving as the President of the American Inns of Court. Current Chief Justice Kinser remarked that "Chief Justice-elect Lemons is a dedicated jurist who exemplifies integrity, civility, and professionalism. He will lead the judiciary with distinction during the next four years. I look forward to working with him to effect a smooth transition."



[Posted August 13, 2014] While I’ve been busy crafting and filing brief after brief, the appellate world has been moving apace. Here are some recent significant developments that you may have missed.


Bostic stay denied

When a panel of the Fourth Circuit decided Bostic v. Rainey on a 2-1 vote recently, it affirmed a district court’s finding that Virginia’s ban on same-sex marriage was unconstitutional. This portended a swift appeal to the Supreme Court – in fact, one party has already done that – but in the interim, the question arose, what effect will the ruling have pending the appeal?


One of the likely appellants sought a stay of the effect of the ruling, and Virginia’s Attorney General joined that request, although he had urged affirmance. I’ve seen the AG’s brief on this, and it’s very well-written.


But it wasn’t enough. Today, the same panel that decided the appeal refuses to stay the mandate, by the same 2-1 vote. This means that the mandate will issue, and same-sex marriage will be immediately available, on Thursday, August 21, unless a justice of the Supreme Court decides to stay the matter pending the appeal.


Regardless of your position on the merits of these issues, please be assured that today’s order is very consequential. At least, it will be in the event the justices overturn the Fourth’s judgment. Couples who wed the next day will bring several complex issues into play. For example, if a couple marries and take title to land as tenants by the entireties, and the Supreme Court later upholds Virginia’s ban, how do the two then hold title?


In case you’re wondering, the order gives no detail as to the judges’ thinking on why the stay was denied. Here’s the “guts” of the order, in full: “Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion. Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.”


Local Rule 41 makes it clear that the court disfavors stays, and the panel majority simply didn't find the reasons offered to be compelling. The same rule doesn't apply across the Potomac; in my opinion, it's likely that the Chief Justice will stay the enforcement while the Supreme Court decides the case.


The Fourth gets a new jurist

On July 28, the Senate confirmed the nomination of Pamela Harris to bring the court up to full strength. Judge Harris will replace Judge Andre Davis, who took senior status after serving for less than five years.


A get-with-it rule change

I saw today in Virginia Lawyers Weekly a notice that the State Bar is seeking comment on rule changes that will exile the Luddite defense in attorney-discipline proceedings. According to Peter Vieth’s story, the new rule would require lawyers to stay up-to-date on “the benefits and risks associated with technology relevant to the lawyer’s practice…” The Bar also wants comment on an amendment to RPC 1.6, to deal with unauthorized disclosure of, or access to, confidential information.


A full discussion of tech-age confidentiality is beyond the scope of this limited note. I’m not qualified to comment, for example, on whether maintaining records in the cloud satisfies the new rule (or even the old one). But on the assumption that these changes, or something like them, will be approved, you can no longer avoid being an e-lawyer. Of course, if you can mass enough opposition and send a flood of adverse comments to VSB Executive Director Karen Gould, then maybe – just maybe – you can get the rule changes postponed until your retirement date. Good luck with that, by the way.


A look way ahead

For those of you who are ABA members, there’s an article in the just-issued Judges Journal entitled, “Appellate Practice: The Next 50 Years.” Unless you’re a very young attorney, you aren’t likely to still be in the trenches at the end of that stretch; but the piece is still worth reading in order to see what’s on and over the horizon.

A published en banc denial

Lots of unsuccessful appellate litigants ask the courts of appeal for rehearing. The refusal of such a petition is rarely newsworthy, but the Fourth Circuit recently published an order that was accompanied by competing opinions – one dissent, once concurrence – on the refusal. In US v. Umana, originally published yesterday, and amended today, the full court refused to take up an appellant’s contention that he was denied his Sixth Amendment rights. Umana was convicted in a double murder. At a sentencing hearing, the court allowed out-of-court statements from police informants that he had been involved in several other murders.


Isn’t the Sixth Amendment supposed to prevent that, by requiring confrontation? In the guilt phase, yes; but way back in the Truman Administration, the Big Supremes held that you don’t have the right to be confronted by your accusers in sentencing proceedings. Today’s dissenters recognize that 1949 ruling, but argue that it’s been overtaken by a sea change of more recent SCOTUS jurisprudence. The dissent urged the full court to take the case, if only to create a circuit split that would make cert more likely.


Judge Wilkinson writes the concurrence in order to refute the dissent. His opinion stretches over several pages, but here’s the real bottom line, in a quote from a 1989 Supreme Court decision:


If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.


Judge Wilkinson describes this directive as “pure ice,” and I agree. Even so, one of the express purposes of the dissenting opinion is to plow the appellant’s road to Washington, and I think it does that. At issue is the simple question whether that 1949 decision is now dead law. For now, it’s still among the breathing.



[Posted July 28, 2014] The Fourth Circuit has affirmed the district court’s ruling in Bostic v. Rainey, the challenge to Virginia’s prohibition of same-sex marriages. This ruling strikes down Virginia’s constitutional and statutory ban of such marriages. Here is a link to the slip opinion, which I’m reading now; I may add some comments after I finish. The decision is 2-1, with Judge Niemeyer dissenting from the majority, which was written by Judge Floyd, joined by Judge Gregory.


In answer to your question, the answer is yes: This case will indeed be appealed across the Potomac.

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