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

ANALYSIS OF APRIL 17, 2014 SUPREME COURT OPINIONS

 

[Posted April 17, 2014] Today is Day 2 of this month’s micro-session at the Supreme Court of Virginia; the justices heard five appeals yesterday and will hear two more today before the session concludes. In between, the court today hands down 16 published opinions from cases that were argued in the February session.

 

My usual opinion-day routine will be interrupted late this morning by that most immovable of scheduling conflicts: a doctor’s appointment. Accordingly, there will likely be a pause of as much as two hours while I’m away from the keyboard today. But I won’t abandon you, my loyal readers; I promise to bring two or three of the opinions with me, to read while I’m in the waiting room, and I’ll be back and meaner’n ever, early this afternoon.

 

One last preliminary point: I’m told that the June session will be more substantial than this one. That’s good to hear, because if this steady downward trend were to continue, those of us in the appellate bar would be looking for a new line of work soon. On the other hand, the good news about this short session is that I should be able to wrap up the analysis of the June opinion day in record time. Who says there’s no such thing as a silver lining?
 

Freedom of Information

The biggest news story of the day out of Ninth and Franklin is American Tradition Institute v. U.Va., a FOIA case involving the records belonging to former U.Va. professor Michael Mann. Mann is a climate scientist who made news a few years ago when former Attorney General Cuccinelli subpoenaed his records in an attempt to show the misuse of public funds. This appeal presents a slightly different issue – a Freedom of Information request directed to the university to produce copies of some of Dr. Mann’s records that it possessed.

 

There are two primary issues in today’s decision, which wholly affirms the trial court’s ruling. The first is whether the university properly claimed an exemption from FOIA disclosure because the materials were proprietary. That term isn’t defined in the Act, so the court turns to the word’s ordinary meaning in resolving the question.

 

The key issue on this point is whether disclosure of the records would create a competitive disadvantage for the school. The appellant argued that any such disadvantage would have to be financial – akin to a patent holder’s being subject to unfair infringement in trade. But the justices note today that this definition is too narrow; competitive disadvantage can be nonfinancial as well. The primary example is the disincentive for scholars to take public-university positions, knowing that all of their research materials, all of their working papers, would be subject to public disclosure at ant time. (The “competitive” part of that calculus is that private universities would be able to offer professors greater protection, and thus greater academic freedom.)

 

The other main issue decided today is that the university can charge to the requesting party the cost of ascertaining which of its documents are exempt from disclosure. The justices note that public entities are required to do things like redact Social Security Numbers and other personal data, so it’s only appropriate that the party who creates that cost should be required to bear it.

 

Justice Mims offers an important concurring opinion, in which he warns that the word proprietary occurs in several FOIA provisions, and not all of them will necessarily use the more expansive definition that the court adopts today. He agrees with the result, but warns that the court may have to make distinctions in other circumstances, defining proprietary differently.

  

Local governments

We get an interesting version of “buy one, get one free” today, when a single billboard generates two appellate decisions. And since one of them has a concurring opinion and a dissent, you’re really stretching your appellate dollars. The cases are both styled Lamar Co. v. Richmond, and Justice Lemons draws the straw to write for both majorities.

 

We’ll start with the divided one, which addresses the standard of review to be applied in appeals of BZA rulings denying variances. If you’ve driven through Richmond on I-95 across the James River, you’ve probably seen the billboard, which is on a very high pole that’s planted on Mayo’s Island. The pole is high enough to make the board visible from the Interstate, but that’s part of the problem; it’s too high under the local billboard ordinance. The owners and the tenant (Lamar is a major player in outdoor advertising) sought a variance to permit the use to continue; the BZA said no.

 

As allowed by statute and ordinance, the disappointed variance-seekers appealed to the circuit court. In a written opinion, the court noted that it had to apply a “fairly debatable” standard in determining whether to uphold the BZA. It added language referring to reliance on “erroneous principles of law or “plainly wrong.” Ultimately, the court concluded that “for the foregoing reasons, as the Board's decision can be said to be 'fairly debatable,' the outcome must be upheld."

 

My pal George Somerville is the ranking authority in the Commonwealth on standards of review, and he will already have spotted the problem here: The court laid out two distinct standards of review before announcing its decision. Only one of them can be right.

 

As it turns out, the “fairly debatable” standard isn’t the correct one. That applies where a governing body acts in a legislative capacity. Here, the right standard is the “plainly wrong” and “erroneous principles.” Since the trial court relied on the incorrect standard, the case is remanded for a new hearing, applying the correct one.

 

Justices McClanahan and Goodwyn dissent, believing that the error was harmless because the judge actually listed both standards in his letter opinion, and expressly held, after listing the correct standard, that “No such finding can be made under the circumstances.” The chief justice hands down a concurring opinion that responds to the dissent, analogizing this to a jury trial where the jury gets one correct instruction and one incorrect one. In those instances, the only thing for the court to do is send the case back.

 

There’s one other significant holding in this case, and from what I can tell, this part is unanimous. The landowner had appealed to the circuit court, but chose to let Lamar carry the ball in the Supreme Court. The city moved to dismiss the appeal because of the absence of a necessary party; it says right in the BZA-appeal statute that the owner is a necessary party. But the justices hold today that that’s a requirement for appeals to the trial court, not in the Supreme Court, so the court can reach the merits.

 

The unanimous opinion is simpler; it corrects an erroneous holding by the trial court that Code §15.2-2307 is “merely an enabling act,” and therefore not susceptible of supporting a declaratory-judgment action. The court finds that the statute is in fact a restriction on local governments’ powers. The restriction here is that if an owner has been paying taxes on a nonconforming structure, the locality can’t direct that it be removed because of the nonconformity. It’s a sort of parallel to the adverse-possession doctrine – once the city accepts taxes for that long, it can’t go in and compel removal.

 

I suspect that this last holding will quickly make the rounds of local governments, who will scurry to find structures that have been taxed for 13 or 14 years, before it's too late.
 

Decedents’ estates

Today’s ruling in Dean v. Morris implicates contracts to make a will. The testator had married three times, sadly having to bury each of his first two wives. He had three children on his own, and when he married for a third time, he acquired three stepdaughters.

 

His third marriage lasted for a number of years, and when his third wife experienced a health setback, he had a conversation with his wife about how he would distribute his estate, including his stepdaughters. According to the testimony of one of them, her mother told her not to make a claim on the mother’s estate, should she die first, because the mother and the testator had agreed that if they waited, they would get more when the testator died.

 

This was promising, because the testator was a man of substantial means. The mother did indeed die first, and when the testator died several years later, his trust directed that the three stepsisters share $200,000. But their understanding had been different; they expected to receive 1/3 of the entire estate, which ran into the millions. They sued to recover as damages the value of a third of the estate, and a judge, sitting without a jury, gave it to them.

 

Today, the Supreme Court reverses, holding that the evidence of the testator’s and the mother’s intent was insufficient to meet the required clear-and-convincing standard. No witness testified that the testator had agreed to bequeath 1/3 of any particular part of his estate to the stepdaughters, and indeed one of the stepdaughters had confirmed that no one ever told her of such an intention. The trial court had drawn an inference based on early drafts of wills and trusts, but the justices hold today that that isn’t enough to overcome the specific provisions of the trust and the will.
 

Back in the medieval period, when I was in law school, I learned a new word (it was new to me, anyway) that I never forgot, even though I almost never got to use it. The word is moiety, and it plays an important role in Sheppard v. Junes.

 

John Warren Shepperd outlived his parents. He never married and had no children. He had no living siblings in his later years; no nieces or nephews; no close family to call his own.

 

But this appeal is triggered by something else that he didn’t have: A will. When he died owning at least some property (I infer that it was a healthy amount), the hunt began to find his nearest living relatives. He had 14 second cousins on his mother’s side, and a solitary half-uncle on his father’s side. The question in this case was, Who gets how much?

 

Normally in these cases, where there are no near relatives, the property is divided into two equal parts, each of which is a moiety. The paternal relatives split one moiety and the maternal ones split the other. There’s no dispute here that the 14 second cousins split the maternal share. But the trial court was confronted with a statute that says that a half-blood relative only gets half a share.

 

The trial court ruled that the half-uncle only got ½ of the father’s-side share, because of his half-blood status; it ordered the other ½ split among the 14 cousins. The Supreme Court reverses this ruling and awards an entire half of the estate to the half-uncle. Since he’s the only beneficiary on his side of the ledger, there’s no other share that could diminish his inheritance.

 

One final note: I learned the word moiety from the late Neill Alford, Jr., who taught my Trusts and Estates class in law school. Prof. Alford was an enormously accomplished man – among other posts, he was the official reporter of decisions for the Supreme Court of Virginia from 1977 to 1984. He spoke in a thick South Carolina drawl that seemed intended to masquerade how smart he was.

 

He was also quite funny. I recall the following explanation of a case that we covered in the class (the case name and the duration of the marriage are invented because I’ve long since forgotten those details):

 

“The marriage in Johnson v. Johnson lasted for thirty-three years. It ended when Mr. Johnson died of lead poisoning -- .38 caliber. Mrs. Johnson shot him between the eyes. This is referred to in the law as a ‘Smith & Wesson divorce.’”

 

Boy, do I miss that.

 

Real property

I’ll confess that I had never encountered real-estate cooperatives before – a kind of common property ownership arrangement whereby an association owns multi-unit property and conveys to individuals the right to occupy a particular unit. From what I can see, it’s analogous to condominiums in many regards. Today’s decision in Robinson-Huntley v. George Washington Carver Mutual Homes Assn. gives us a glimpse of some of the legal issues that can arise in such an arrangement.

 

Robinson-Huntley got the right to occupy a unit in an Arlington coop. Her contract provided that “[t]he Association shall . . . provide and pay for property including the [m]ember’s dwelling, except that the [m]ember shall make minor interior repairs and provide all interior and decorating.” Accordingly, when she encountered plumbing problems associated with deteriorating pipes under her floors and inside her walls, she called on the association to correct the problem.

 

Instead the association adopted a bylaw amendment that required the occupier of an individual unit to make his or her own repairs. Hey, if you’ve got a problem with the rules, change the rules, right?

 

In court, the trial judge agreed with Robinson-Huntley that the bylaw amendment was invalid. (So much for that simple expedient.) But the court ruled that the original contract still required the occupier of a unit to pay for plumbing repairs, so Robinson-Huntley lost by winning. Making things even tougher, the court refused to award her any attorney’s fees, since she didn’t prove that she was “adversely affected” by the association’s failure to comply with the bylaws.

 

Off to Richmond the parties headed, on a writ granted to Robinson-Huntley. The Supreme Court today affirms the holding that the original contract put the burden of plumbing repairs on individual occupants. The smoking gun here is that the contract by which Robinson-Huntley’s predecessor had occupied the unit had expressly required the association to make those repairs; that language was deleted from the newer contract. You all know what that means in terms of construction of ambiguous language.

 

That brings us to the attorney’s-fee issue, always an intriguing part of any litigation. And here, Robinson-Huntley encountered a familiar theme. The justices agree with her that the trial judge erroneously interpreted the fee-shifting statute from the Coop Act. Here’s that statutory language:

 

If a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration of bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. Punitive damages may be awarded for a willful failure to comply with this chapter. The court, in an appropriate case, may award reasonable attorney's fees.

 

Notice how the “adversely affected” language is wholly separated from the attorney’s-fee provision? That matters, in the court’s mind, because (as the court rules today) adversity has nothing to do with the award of fees. The standard for that is whether it’s an “appropriate case” for an award.

 

Robinson-Huntley thus wins. But wait! She loses, in language that will make every appellate lawyer in my audience stare agape at the computer screen:

 

The circuit court observed that “I don’t believe under [Code § 55-492(A)] that [Robinson-Huntley] has prevailed in terms of showing adversity in this instance.” As noted above, that is not a proper factor for the court’s consideration of awarding attorneys’ fees under the statute. However, while Robinson-Huntley asserts the court erred by concluding that there was no adversity, she does not assign error to the court’s reliance on this improper factor in reaching its decision. We therefore will not reverse it.

 

They said WHAAAAT?! This paragraph brought my otherwise uneventful reading of this opinion to a slamming halt. But how could this be, I wondered; surely the appellant assigned error to the award of attorney’s fees. How else would the court even reach this issue? Have the justices become so strict about the need for hyper-specificity in assignments that they want us to list not only the errors, but also each individual component of the rulings? If so, listing 20+ assignments is going to become the norm.

 

Ah, but I dug further, and found that it’s the opposite problem: The appellant was too specific, and didn’t assign error to the broader question. Here’s the relevant assignment of error, with extraneous portions filleted out:

 

The court erred in determining petitioner was not adversely affected, as required by Code §55-492, where there was unilateral removal of contract rights through an amendment to the bylaws.

 

And now the clouds clear. Robinson-Huntley correctly pointed out that the trial court got it wrong when it decided the wrong issue. But she never assigned error that challenged the ultimate ruling on the right issue, so review of that question is foreclosed.

 

Speaking as an appellate lawyer, I have to say that this ruling still worries me, as does virtually every other ruling in the Supreme Court’s recent jurisprudence on specificity of assignments. This is one area in which the court’s recent holdings have been lamentably inconsistent; but I’ve plowed that field before, and won’t do so again here. Please allow me to offer just one item of guidance: Be damned careful in crafting your assignments of error, because as this case shows, it’s possible to plead yourself right out of court if you do a sloppy job.
 

For those of you who take a sadistic pleasure in seeing procedural defaults of appellate issues, I have more: Ferguson v. Stokes involves a time-honored method of ensuring that the justices never evaluate your best arguments on the merits.

 

I’ve lived here in Tidewater almost all my life, but despite that, I had never heard of an oyster house before. (This is proving to be a singularly educational day for my real-estate vocabulary.) Such a house is a key feature in this case, which deals with a tract of land along the Rappahannock River in Middlesex County. The appellant here, Ferguson, got a Corps of Engineers permit way back in 1955 to build a causeway from his property along the shore, leading out to an artificial island out in the river. The island was constructed by dumping oyster shells on the river bottom.

 

It was on this manmade real estate that the aforementioned oyster house was built. It’s apparently a pretty impressive structure; beyond its original purpose in Ferguson’s seafood business, he added a second floor where he could live. It even had a septic-tank hookup.

 

Over the years, Ferguson sold his shoreside lot and then reacquired it. In the interim, he got a quitclaim deed (today’s opinion doesn’t say from whom) to the island itself, fully cognizant that the river bed, including the land under the causeway and the island, belonged to Aunt Virginia.

 

In 2006, his purchaser filed suit against Ferguson, seeking apportionment of riparian rights. That ended with a settlement agreement, in which each party waived claims against the other. The purchaser eventually secured an order decreeing that Ferguson owned no shoreline property and had no riparian rights.

 

Ah, but what about that oyster house? It still sat on the island, and Ferguson apparently sat in it. The owner filed an ejectment action, claiming that the house was on her property. The trial court agreed and ordered him out. Ferguson got a writ to review this complex procedural situation, and to review an area of the law that the justices haven’t visited in a good, long while.

 

I promised you some waiver blood-and-guts, so here it comes: The trial court handed down three alternative rulings for its judgment. Ferguson appealed two of them (evidently finding them to be especially vulnerable to appellate scrutiny).

 

Appellate practitioners will already know what happens next: The Supreme Court rules that the issue is waived, because the appellant didn’t assign error to all three of the alternative grounds. In situations like these, where the trial court rules on grounds A, B, and C, but the appellant chooses to attack only A and B, the justices will assume that C was good enough to support the judgment.

 

Well, they’ll almost assume it. Before throwing out the issue entirely, the court first looks at the unappealed ground and decides whether the judgment could possibly stand upon it. They don’t rule on whether the trial court decided the issue correctly; that aspect of the case has been waived by the appellant’s decision. They just look at whether the case could possibly be decided on that basis, and here, they decide that it could, so the issue is foreclosed.

 

In a final ruling, the court finds that the oyster house is a fixture (applying the recent Taco Bell decision on what constitutes a fixture), so now it’s part of the land and it belongs to Ferguson’s adversary. Ferguson is, therefore, quite literally voted off the island.
 

There are lots of goodies in Norfolk Southern v. E.A. Breeden, Inc., which involves a private grade crossing over a railroad track in Rockingham County. This case represents our first intrepid venture into the intriguing territory of 4-3-dom.

 

In 1940, the railroad reached a comprehensive agreement with the landowner of a large parcel that straddled the track. The landowner would abandon two private crossings in exchange for the railroad’s promise to build and maintain a new one. The landowner covenanted to keep the crossing private (i.e., it agreed not to make the crossing a public thorofare) and to hold the railroad harmless for any injuries that might result from the use of the crossing.

 

My initial aside thought is why the landowner would agree to do that. The other guy has to maintain the crossing, but you hold it harmless from liability? Wouldn’t that obligation normally devolve upon the party who maintains the tract? Ah, but this is idle digression; the parties expressly covenanted otherwise, and that’s the deal we’re left with. The parties recorded the agreement in the land records, and it ran with the land.

 

As it turns out, peace reigned for several decades before Breeden bought 2 ½ acres of the property. It then leased part of the property, including a house, to Mr. and Mrs. Tenant. Two years later, Mr. Tenant was injured when a train struck his car as he was crossing the track.

 

My next idle thought here is that Mr. Tenant should give thanks to every god in the pantheon that he’s still alive after getting hit by a train. Instead, he sued the railroad and collected a sum pursuant to a settlement. The railroad then sued Breeden based on the indemnification provision in the original agreement, seeking to recover the amount it had paid Mr. Tenant, plus the attorney’s fees it had incurred in defending the tort suit.

 

The trial court ruled in favor of Breeden, holding that since the covenant ran with the land, the Tenants had the right to use the crossing. (There had to be more to it than this; I read this passage three times and still couldn’t figure out why that meant that the covenant was unenforceable.) The railroad appealed to the Supreme Court, which refused to issue a writ in 2008.

 

Believe it or not, we’re only now getting around to the basis of the instant litigation. The railroad stared hard at the refusal order, and decided to do something about it. Since the now-final judgment meant that Breeden was no longer obligated to indemnify, the railroad dug up the grade crossing, reasoning that Breeden had committed the first breach of the covenant. That led directly to injunction litigation, in which Breeden asked the court to compel the railroad to rebuild the crossing. The suit also sought monetary damages under various theories.

 

The trial court scheduled a jury trial on the legal issues in the case, but at Breeden’s request, it convened an ore tenus hearing on the equitable issues a week earlier. The railroad showed up without witnesses, ready to argue that Breeden couldn’t show irreparable harm, and that restoring the crossing would be more burden than benefit. When the railroad conceded at that hearing that it wasn’t standing on its previous allegations of laches and acquiescence, the trial judge felt that he’d heard enough; he ordered the injunction. With that out of the way, Breeden abandoned its claim for monetary damages.

 

On appeal, the justices first confront the question whether Breeden committed a first material breach. The court rules that it did not; Breeden acquired the right to use the crossing for its own benefit, and Mr. and Mrs. Tenant got the same right when they rented the property. This wasn’t an instance where literally everyone could use the crossing.

 

Next the court turns to the propriety of awarding an injunction. A majority of the justices rule that an injunction is proper where, as here, the holder of a property right seeks to enforce it. Otherwise, a well-heeled obligor could destroy the property right by simply ignoring the right and paying damages. The court rules that while it’s still necessary to establish irreparable harm, real property damage is regarded as irreparable (the venerable land-is-unique approach), and no particular quantum of damages need be proved.

 

The court then turns aside the railroad’s objection that it was deprived of its right to a jury trial. The court notes that in general, one has no right to a jury in proceedings in equity, so the injunction issue would never have been a jury question anyway.

 

The case won’t end without at least one small victory for the railroad; the justices affirm the trial judge’s decision not to award Breeden sanctions in the form of attorney’s fees. The trial court found no need for sanctions, and the justices find no abuse of discretion there. (Really, it’s hard for me to imagine a circumstance where the justices will reverse a trial court's refusal to order sanctions.)

 

And that brings us to the dissent, where Senior Justice Russell writes for Justices Lemons and Millette. The dissent rebels at the notion that the trial court effectively cut off the railroad’s evidence in the equity trial, and foreclosed its right to trial by jury. It notes that early caselaw indicated that one could get injunctive relief virtually as a matter of course in cases involving deprivation of a property right; but more recent caselaw has demanded that as plaintiff prove more. Specifically, the railroad should have been permitted to prove that restoration of the crossing would be disproportionately costly.

 

Sexually violent predators

The court resolves an important burden-of-proof issue today in Gibson v. Commonwealth. The dispositive question is this: After the Commonwealth proves that the defendant is a sexually violent predator, who has the burden of proving whether alternatives to confinement are (or are not) appropriate?

 

The opposing sides each had legal ammunition here: The Commonwealth pointed to the recent case of Commonwealth v. Bell from 2011, in which the justices specifically agreed with the parties’ joint concession that the burden shifted to the defendant to show a suitable alternative to confinement for inpatient treatment. After all, if it were otherwise, the Commonwealth would have to set up and then knock down an entire universe of possible alternatives. If the defendant wants the court to consider an alternative, shouldn’t he have the burden of convincing the court?

 

But Gibson had a parry to this thrust: Bell applied to annual reviews of SVPA commitment order, after the defendant had already been committed. This was an original proceeding. The first time through the procedure, the Commonwealth should meet the full burden. And besides, where in the statutes does it call for a shifting burden? Isn’t it always the Commonwealth’s burden of proof in SVPA cases?

 

The trial court placed the burden on Gibson, and his attempt promptly fell flat, resulting in his continued confinement. Today, the justices reverse that, and lay down some new law in the process. The unanimous opinion notes the Bell holding and points out that the precise issue hadn’t been litigated in that case. That makes the court's acceptance of the parties’ agreement as to the burden less compelling, and the court describes it as dicta today. (Special hint: When an opinion refers to a previous ruling as dicta, that previous ruling’s shelf life is about to expire.) Just when you think the court is going to agree with Gibson’s first-time-through argument, the court has a surprise: It rules that the burden never shifts, either in an initial proceeding or in an annual review. Any contrary language in Bell is thus overruled.

 

In a closing footnote, the court observes that the burden of proof is different from the burden of going forward with the production of evidence. This last footnote is important in non-SVPA contexts (especially but not exclusively criminal cases), where the moving party may make out a prima facie case and thus shift the burden of going forward to the opposite party. If you’re not sure of the difference, read footnote 3 of the chief justice’s opinion carefully.
 

Limitation of actions

Hi, my name is Steve, and I’m a procedure geek. (“Hi, Steve.”) I find arcane procedural principles to be irresistible, even when they affect only a very few cases. I love a good jurisprudential scrap over the meaning of ambiguous statutory terms, or even whether an ambiguity exists at all. That’s why I was fascinated by Lucas v. Woody and the conundrum in it over which statute of limitation applies. Practically speaking, this decision will affect very few future cases; I don’t care. I loved reading it anyway.

 

Lucas is an alumna of the Richmond City Jail. She was a guest there in early 2008, before she was released on March 11 of that year. In August 2009, she filed suit against several defendants, claiming that she was injured by their conduct while she was in jail; the time frame of the offending conduct matched the final eight weeks of her tenure there.

 

Virginia has a special statute of limitations (8.01-243.2) for claims arising out of the conditions of confinement in a correctional institution. Here it is:

 

No person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted. Such action shall be brought by or on behalf of such person within one year after cause of action accrues or within six months after all administrative remedies are exhausted, whichever occurs later.

 

The defendants seized on that statute and argued that the claim was barred by the one-year provision. The trial court agreed and dismissed the action, shrugging off Lucas’s protest that she was entitled to the general two-year limitations period because the statute didn’t apply to her. Lucas got a writ, and the fireworks began.

 

Here’s the issue: Does this statute apply to all claims relating to the conditions of confinement, regardless of whether the plaintiff is incarcerated when suit is filed? Or does it relate only to conditions-of-confinement claims that are brought by plaintiffs who are confined at the time they file suit?

 

Hmmm?

 

This case is a return to 4-3-ville, and a majority of the court votes for the former interpretation. As a result, the Supreme Court narrowly affirms the dismissal of the case on limitations grounds.

 

If that’s all there was, you’d be justified in feeling that I fully belong at those PGA meetings (Procedure Geeks Anonymous; I’m not a good enough golfer to be in that other PGA). But the sparks fly between Justice Goodwyn’s majority opinion and Justice Millette’s dissent. I’ll describe the action here, and I’ll be sure to set out where my sympathies lie.

 

The majority finds that interpreting the statute as Lucas urges would lead to “anomalous” and “bizarre” results. Specifically, the majority wonders whey the legislature would create a limitations period that fluctuates based on factors that have nothing to do with the claim. It turns to the accrual statute (8.01-230) and notes that a claim accrues when the injury occurs. Thus, Lucas’s right of action accrued when she was injured, and her limitations period was of necessity one year. Why, the majority muses, should the limitations period change just because the plaintiff is released.

 

The majority refers to an interesting conundrum here. Suppose the one-year period expires, without suit being filed, while the plaintiff is continually incarcerated. The claim is now barred. Can it be revived when she gets out? If it can, what happens if she’s rearrested – is it now barred again?

 

I will confess that as I read through this opinion, these arguments in the majority opinion had me convinced. And then I read the dissent, where Justice Millette meticulously shreds those arguments beyond recognition by a simple, thorough approach. In my professional opinion, the value of which is zero votes, this case is wrongly decided; the judgment should have been reversed.

 

The dissent begins with the contention that the majority assumes ambiguity where there is none, and applies the absurdity doctrine (without calling it that) where it cannot be applied.

 

Ultimately, the fatal point for me in this analysis is this: The second sentence in the statute refers to “such action” and “such person.” That has to relate back to the first sentence; there’s no other way to figure out what such means in this context. Thus, in the second sentence, “such action” refers to a suit over conditions of confinement. No rhubarb there. And “such person” has to mean a confined person. Right?

 

Accordingly, using the translation that this necessary approach requires, here’s the second sentence:

 

An action relating to conditions of confinement shall be brought by or on behalf of a person confined in a correctional facility within one year after cause of action accrues, etc.

 

This sentence is the limitations provision. This sentence is the only thing that could bar this action. And this sentence can have no application to a person who is not confined at the time he or she brings (i.e., files) the suit; the operative verb in the sentence is brought. This provision, read the only way it can be read, isn’t ambiguous at all.

 

How about the anomalous or bizarre results that Justice Goodwyn pointed out? Don’t they militate in favor of applying the statute to all condition-of-confinement claims? Justice Millette says that the real name of this approach is the absurdity doctrine. He points out that the majority never calls it by that name, and openly suggests that the majority took that approach because calling it absurdity would expose it to a crushing riposte.

 

He provides the riposte anyway: The court is generally loath to apply this rule of construction because it intrudes upon the separation of powers. The justices can’t just substitute their best judgment for clear legislative pronouncements without becoming legislators themselves. The court has therefore applied the absurdity doctrine

 

in only two narrowly defined situations: when "the law would be internally inconsistent," and when the law would be "otherwise incapable of operation."

 

Neither of those circumstances apply here, so Justice Millette suggests that the majority has created a third category here, which could be loosely termed, “When we want to.”

 

Okay, he doesn’t really come out and say that, and I won’t attribute such an intention, either. You may regard the above as rhetorical hyperbole, designed to illustrate the direction of the dissent’s argument. But reading these opinions and thinking about the dispute here leads me inexorably to the conclusion that the dissent is right. Despite the fact that this doctrine will affect a tiny number of claims, in my view the court has made a demonstrable misstep here, and should reconsider this ruling.
 

Executions

A commercial lease furnishes the foundation for PS Business Parks v. Deutsch & Gilden, Inc. PS Business Parks is the landlord; it rented space to a furniture store, and Deutsch & Gilden guaranteed the lease for the tenant. When the store owner defaulted, the landlord got a $700K judgment against the tenant and the guarantor.

 

As most nonlawyers fail to appreciate, now comes the tough part. Collecting on a judgment can be vastly harder than just getting a judge to confirm that the Bad Guys owe you the money. The landlord evidently knew where the guarantor banked, and since even Willie Sutton knew that bank accounts are good places to find money, the landlord fired off a garnishment summons.

 

The summons turned up a hit, sort of. The bank reported that it held a bit over $100,000 for the guarantor, though eventually it said that figure was mistaken. Rather than get bogged down in a very detailed set of facts, I’ll go right to the primary legal issue in the case.

 

Over the course of the month in which the garnishment summons was pending, well over a million dollars had gone through the guarantor’s account. But the balance at any one time was zero. That’s because the checking account was funded by a master account, held by a related but separate corporate entity. The two companies had worked out a deal with the bank whereby when checks were drawn by the guarantor, the bank would transfer just enough money from the master account to cover the draft. Thus, the bank was never a debtor of the guarantor, so there was nothing to garnish.

 

Is that slick, or what? The guarantor told the trial court that the purpose was to keep money working instead of lying unused overnight, and that may well be true; but the net effect is that the guarantor could carry on business as usual without fear of having its money seized in a garnishment. A long time ago, in a galaxy far, far away, I took a course in Banking Law during law school. (I had this idea that I might become a banking lawyer. You see how far that went. I use that knowledge about as often as I use all that calculus I learned in college.) Even so, I had never seen or even heard of such an arrangement.

 

The trial judge agreed with the guarantor and dismissed the garnishment, except for about $15,000. But the Supreme Court reverses and remands the case today, finding that the money passing through the account was indeed subject to execution by a garnishment summons. The trial court is directed on remand to take additional evidence in order to make findings sufficient to enable the court to determine how much of those funds could be seized.

 

Justice McClanahan dissents in part, and it’s easy to see what irks her about the remand:

 

PS Business has never argued, however, that the circuit court erred by failing to consider additional evidence, nor does it seek remand for that purpose. To the contrary, PS Business' arguments have consistently been … that it was entitled to receive a larger payment order based on the evidence introduced during the hearing ... Indeed, PS Business requests that we hold it is entitled to such payment in the amount of $726,049.43 upon the record before us.

 

Well, now. Here’s a novelty: The justices are granting relief that evidently wasn’t requested by the appellant. The opinion doesn’t set out the appellant’s brief’s conclusion, listing the “precise relief sought,” but I think I’m willing to take Justice McClanahan’s word for it.

 

In case you’re wondering, the answer is no: No, the justices are not about to start routinely granting relief that the appellant doesn’t seek. Asking for the wrong relief has nabbed more than one appellant, and her Honor thinks it should have ended the inquiry in this appeal; she would affirm the trial court and end the case here.
 

Equitable relief

We get a first-impression ruling today in Lewis v. City of Alexandria. The appeal stems from a successful claim under the Fraud Against Taxpayers Act. There’s no challenge to the primary award of damages, costs, and attorney’s fees to the former employee; the issues in this appeal are whether the former employee should also have recovered future damages.

 

The underlying facts aren’t in issue in this case, with few exceptions that I’ll mention below. The employee was fired from his position with the city as a project manager for the construction of an emergency-communications facility. He persuaded a jury that he was fired in retaliation for blowing the whistle on his supervisor, alleging that the supervisor was submitting false invoices.

 

The jury awarded the employee $100,000 in back pay, which the judge doubled, per the statute. The case then turned to the equitable claim for reinstatement or front pay.

 

As with most situations where an employment relation has become toxic, the judge was reluctant to send the employee back onto the job. The employee helpfully suggested that an award of $57K in front pay would fill that void; he also asked for $175K in prospective retirement pay, since the employee was fired just 18 months before he would have vested in the City’s retirement plan. At these requests, the judge balked. The employee got a writ. [Note to my readers: It’s quite likely that the City assigned cross-error, or perhaps filed a petition for appeal of its own, and the justices refused that relief. I don’t know for sure.]

 

The justices today affirm the judgment, noting that the employee abandoned his request for reinstatement, and the judge acted within his discretion in refusing the equitable remedy of front pay. The court finds that front pay isn’t mandatory where the plaintiff receives a substantial back-pay award. In making this finding, the justices turn to federal caselaw, since the Virginia statute is modeled after the federal False Claims Act. The court also reviews other retaliatory-discharge provisions in other federal statutes, giving the court quite a bit of caselaw to draw upon when deciding a first-impression issue.

 

There’s a key fact that’s buried deep in the majority opinion – the employee worked for 3 ½ years for the city, and spent all that time on this single construction project. The project ended two months after his firing. This additional information pays a prominent role in Justice Mims’s concurrence.

 

The concurrence would affirm the denial of future benefits for the much simpler reason that the employee had no legitimate expectation of being retained on the payroll after his one-and-only project ended. Any front pay, accordingly, would be speculative at best, and that view would fully justify a refusal to award front pay – especially where the standard of review is for abuse of discretion (as the parties agreed).

 

From that simple point, the rest of the concurrence looks an awful lot like a dissent. Justice Mims notes that once the trial court found a violation, the employee “shall be entitled to all relief necessary to make him whole.” That’s the language of the previously untouched Virginia statute that the court is charged to interpret today. What’s more, the statute goes on to say, “Relief shall include reinstatement . . .” Shall? Uh-oh; maybe this relief isn’t quite so discretionary as we had thought.

 

Justice Mims next cites federal cases that hold that sometimes reinstatement is impractical, and this sure looks like one of those circumstances. One such case held that where animosity makes reinstatement unrealistic, the statute requires front pay as an alternate remedy. That looks an awful lot like the case we have here.

 

Keep in mind that this is indeed a concurrence, as Justice Mims agrees with the rest of the court that the chancellor got the front-pay decision right; just for a different reason.

 

 
SIGN OF THE TIMES

[Posted March 28, 2014] My readers have seen my recent alarmist ramblings about the falling number of writs granted by the Supreme Court of Virginia. I'm still waiting for the current State of the Judiciary report, which will give me statistical details to back up (or disprove) my description of this situation as the "collapse of the writ market."

Today I got word of the newest sign of the appellate apocalypse. The April argument docket is out, and it's the shortest one I've ever seen: Just nine appeals, spread over two days; opinion day will be Thursday, April 17. Arguably it's only eight cases, as two of the appeals are companion cases under the ironic name of Herring v. Commonwealth and Commonwealth v. Herring. (For those of you who have been stashed away in the Maldive Islands for half a year, the Commonwealth will be represented in both cases by a lawyer who's employed by the Attorney General, whose name is Herring. No relation, I'm confident.) 

You could even make a case for its being 7 1/2 appeals, as in one case (Harman v. Honeywell International), the court won't allow the appellee to argue, since the company evidently didn't file a rules-compliant brief by the filing deadline. I infer this because under Rule 5:26(i), if a party doesn't file a brief that complies with the rules, that party "will not be heard orally, except for good cause shown."

I've warned before that if these shadows remain unaltered by the future (forgive me for purloining a phrase from Dickens's shortest masterpiece), those of us who make a living at Ninth and Franklin are in for a hard time. We count on a steady stream of disgruntled litigants, emerging from trial courts vowing to appeal; but we also earn the rent money by getting writs when we seek them. These days, there are far fewer of those to go around. To be sure, the court has always handed out writs with tweezers; but in the past two years, the pace has slowed dramatically.



NEWS AND NOTES FROM THE APPELLATE WORLD

 

[Posted March 10, 2014] Here are a few items that have caught my attention lately:

 

End of the line for Episcopal Church litigation

The Supreme Court of the United States has refused a cert petition in Falls Church v. Protestant Episcopal Church. The Supreme Court of Virginia decided the appeal last April, ruling in favor of the national organization; today’s action means that the Nine Robes won’t disturb that decision.

 

Upcoming phone/live seminar on preservation and waiver

Watch here for news about an upcoming program to address the several new decisions from the Supreme Court of Virginia that affect preservation and waiver issues. The program will be given live here in eastern Virginia in two locations, but there will be a live phone presentation on a different date, in which you can dial in, listen to the commentary, and ask questions. I’ll post details as soon as I have them.

 

Another look at “operation” of a vehicle

On two relatively recent occasions, the justices have decided drunk-driving appeals that have taken an expansive view of what constitutes “operating” a motor vehicle. In Nelson v. Commonwealth and Enriquez v. Commonwealth, the justices separately decided appeals in which the appellant was found inside a car, with the engine turned off, but with the radio playing. In Nelson, the key was turned to the “ON/ACC” position, and in Enriquez, the officer didn’t recall what position it was in. Both defendants were under the influence at the time.

 

On both occasions, the justices affirmed the convictions, holding that one can “operate” a vehicle with the engine off, merely by listening to the radio. (Actually, Enriquez wasn’t even listening; he was asleep.) I found myself unable to agree with the justices’ conclusion, noting that these were, to my knowledge, the only rulings since the invention of the automobile to hold that you can “operate” a car when the engine is turned off.

 

The court’s website notes that the justices have granted a writ to review a similar case, Sarafin v. Commonwealth. There are three assignments of error; here’s the most germane one: “The Virginia Court of Appeals erred by permitting the trial court to find that Justin Sarafin was in physical control of his vehicle and thereby that he was its ‘operator’ while asleep with only his car radio playing while parked on his private property.”

 

From what I can tell, the only fact that’s new to this discussion in Sarafin is the fact that the “stop” (assuming you can stop a vehicle that isn't moving) occurred on private property. Normally that doesn’t matter in DUI cases; you can be convicted of DUI if you never leave your own driveway. My hope is that the justices have taken this case in order to reexamine the wisdom of the Nelson and Enriquez holdings.

 

New appellate statistics on the horizon

It’s March, which means that I’ve begun my annual ritual of waiting impatiently for the 2013 State of the Judiciary report from the chief justice. That report contains a statistical analysis of the appellate courts’ caseloads; it also outlines what the judges and justices did with the cases that landed in their courts. For a statistics geek like me, this is like getting the key to the candy store (I head straight for the butterscotch).

 

One thing I’ll be particularly looking for is the latest set of numbers on incoming petitions, writ grants, and procedural dismissals in the Supreme Court. My sense has been that the first of these figures has been falling slowly; the second has fallen abruptly; and the third has exploded in the past few years. From the standpoint of someone who makes his living by filing appellate briefs and who wants to do a good job, those are bad news, bad news, and horrible news, respectively. I’ll let you know what I find once the report comes out; I’ll plow through the columns of numbers so you won’t have to.

 

A shameful episode

This item isn’t truly appellate in nature, but I was mortified when I read about it over the weekend, and I don’t want to contribute to the patent injustice by remaining silent.

 

I missed the news when it happened: Last Wednesday, March 5, the Senate voted 52-47 against cloture in a filibuster of a nomination for a Justice Department position. Debo Adegbile had been nominated as Assistant Attorney General for the Civil Rights Division. Senate Republicans sought to block his confirmation, as they've done with virtually every nominee submitted by the President. In the past, they’ve voted against candidates who were admittedly qualified; the only knock against those men and women has been that President Obama’s fingerprints were on the nominating letters.

 

Late last year, Senate Democrats had had enough. Citing an abuse of the filibuster privilege, they finally invoked what was widely termed “the nuclear option,” allowing confirmation by a simple majority instead of by a supermajority of 60. The first judge to be confirmed after that was Judge Patricia Millett, who was formally enrobed as a member of the federal DC Circuit on February 28. (I got to attend; it was a truly cool ceremony.)

 

With a lower threshold for approval, Adegbile should have been speedily confirmed. Republicans still opposed him, but they didn’t have enough party-line voters to stop the nomination.

 

And then a strange and dangerous thing happened. The Republicans got an ally in the Fraternal Order of Police. The FOP lobbied Democratic senators to vote against Adegbile because long ago, when he was a young lawyer, he had filed an amicus brief on behalf of a death-row inmate who had murdered a police officer. The brief didn’t assert innocence; just a constitutional violation in the composition of the jury. Later, Adegbile signed on to defend the inmate in an appeal. Ultimately, the federal appellate court agreed with Adegbile’s argument; the inmate is now serving life in prison instead of facing the death penalty.

 

Every lawyer who has ever stepped inside a courtroom has probably faced a situation comparable to this, though perhaps not in degree: You’re asked to take a controversial stand on behalf of an unsympathetic client. Lawyers have been doing that for centuries, including (famously) John Adams’s successful defense of the Redcoat defendants in the aftermath of the Boston Massacre. And presumably, they’ve been doing so for all that time without suffering civil disabilities as a result; a lawyer isn’t an accessory to murder merely because he defends a client who’s facing capital punishment.

 

The FOP didn't see things that way. Perhaps sensing the opportunity to punish a lawyer who had the guts to take on an unpopular client, and a cop-killer at that, they pressed Democratic senators – especially those from states near Philadelphia, where the murder occurred – to vote against Adegbile on philosophical grounds. Amazingly, eight Democratic senators did so, in a shameful act of political cowardice.

 

Adegbile’s nomination may or may not be finished; I’m not sure what will happen at this point, although he’s certainly through unless some of the senators who voted against him change their minds. The Republicans aren’t likely to change, as they appear to have discarded the ancient political principle that elections have consequences. They’ve shown a willingness to vote politically, 100% of the time, rather than on merit. The Democrats might be subject to change, though I have no idea whether that’s likely to happen.

 

Why does this matter? It matters because in America, everyone is entitled to a lawyer, preferably a good one. Charles Manson got a lawyer. Here in Virginia, John Muhammad, the infamous DC sniper, got a lawyer. For those of us in the legal profession, it’s expected that, as a part of your job, you’ll take on an unpopular case from time to time. Otherwise, the popular side of a lawsuit is destined to win, instead of the right side.

 

Not convinced? Then consider the case of Ernesto Miranda, who was prosecuted for rape in Arizona back in the 1960s. The prosecution relied on an uncounseled confession to get a conviction, which the Supreme Court later famously reversed; that’s why we all have the right to remain silent. Do you know what happened to Ernesto after that?

 

Why, he was returned to court, where he was retried and convicted of the same offense – rape – as before. That’s because he was guilty of rape; the evidence against him, even without the tainted confession, was overwhelming. Straight back to prison he went.

 

Now, then – do we excoriate the late John Flynn of Phoenix, the lawyer who secured the original reversal? After all, he dared to represent a rapist. Worse (in some minds), he did so effectively, securing a reversal and a retrial. In the process, Flynn cemented one of our most prized constitutional rights – the right to remain silent during a custodial interrogation. Just by taking the case, and by doing the same quality job that Adegbile did for his very-guilty client, he helped to ensure that the Bill of Rights has teeth.

 

Adegbile decided to do that early in his legal career, and last week, 52 senators decided to punish him for it. That narrow-mindedness is what incenses me – not Adegbile’s politics, about which I care little. As my readers know, I’m neither a Republican nor a Democrat; I’d be just as infuriated if the Democrats had done this to a Republican nominee.

 

If you read this website regularly, then you’re probably a lawyer. (I know better than to expect droves of readers of my commentary by nonlawyers.) If you’re a lawyer, you should be one of the citizens of this Republic who speak out against this shameful display of political expediency, in which the 52 senators allowed their own reelection prospects to trump the rule of law. If unchallenged, this action will warn our younger generation of lawyers that they’d better turn down the opportunity to represent the next Ernesto Miranda. Making law in that way – even something as vitally American as the right to remain silent – will be punishable by political ostracism. Just for doing our jobs.
 

And to end with a note of humor . . .

An appellate jurist with a well-developed sense of humor passed along this link to an amicus brief that was filed in SCOTUS recently. He knows quite well that I love to laugh, and upon reading this entry, laugh I did. His Honor described it to me as “Best. Amicus brief. Ever!” Having read it, I concur. I’m also wondering what the respondent can possibly say in response.

 

 

AGAIN?! WEATHER CLOSES APPELLATE COURTS

 

[Posted March 3, 2014] If you’re hurrying to make today’s filing deadline in the Fourth Circuit or Virginia’s appellate courts, you’ve got a reprieve due to our old pal Aeolus. Today’s winter storm, which The Weather Channel has dubbed Titan, has closed all three courts today. This closure triggers an automatic extension of appellate-court filing deadlines.

 

I’ve given this warning twice in recent weeks, but it’s important enough to warrant a reiteration: This extension only applies to documents that must be filed in the appellate court's clerk’s office. A good example is a petition for appeal or a merits brief. But if you have to file something in a trial court clerk’s office (the usual ones are a notice of appeal, transcript, or appeal bond) and your deadline is today, you must ascertain whether your local court is open today. If it is, then your deadline is unaffected by the decisions made in Richmond this morning.

 

It was only about 16-17 hours ago that I was driving in my Mustang with the air conditioner on. Now even balmy Tidewater is bracing for a huge drop in temperatures and icy roads. I suppose I need to go back and make a sacrificial offering to Aeolus, to appease his wrath.

 


 

 
         
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