The Court of Appeals released three published opinions today. Two are from criminal cases and the third involves the jurisdiction of Boards of Zoning Appeals. We will get the Zoning appeal out of the way first -- it's only 7 pages -- then discuss the more serious of the criminal appeals and round off the final summary with an anecdote on the importance of statutory construction and keeping up with changes to the code that, to borrow a phrase from the US Supreme Court, has a prurient flavor.
Avonlea LLC v. Karl Moritz, Director of Planning and Zoning for the City of Alexandria, et al. is all about variances. Or, more precisely, what can a BZA grant a variance to do. Avonlea owns adjacent lots, one with a home and one "mostly vacant" in Alexandria's historic district in which its zoning ordinance requires that “access to all parking shall be provided from an alley or interior court.” Avonlea maintained that neither of its lots could be accessed from an alley or interior court and proposed building an enclosed parking area on the "mostly vacant lot" accessible from the street.
Before we get into the issues of whether this proposal can be made to happen through the granting of a variance, I would like to consider for a moment whether a lot (or any space) can be "mostly vacant." It would seem to me that either a lot is vacant or it isn't. One there is something built on the lot, it ceases to be vacant and becomes developed. There can be degrees of density of that development, but any development means that the lot is no longer vacant. Perhaps it's like being mostly dead.
Avonlea applied to the the BZA for a variance to permit the construction of the parking yard with street access and the BZA was happy to oblige. But the City and some neighbors (probably mostly the neighbors)was not so sanguine on the idea and appealed the decision to the circuit court. They maintained that the parking restriction was not subject to the granting of a variance and the circuit court agreed.
The Court of Appeal, Sr. Judge Annunziatta joined by Judges Chaney and Frucci, affirm in Avonlea's appeal. This brief opinion explains that under the Zoning Ordinance the BZA has only the power delegated to it by statutory authority. The power to grant variances is found in Code § 15.2-2201 and provides that a variance is available for "provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk or location of a building or structure." It further provides that a variance "shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning." It's pretty easy to see that the request as for a change in use, not a deviation regarding the size of the lot or the buildings on it.
Accomplice testimony is a two-edged sword for the prosecution. While it can be damning as the accomplice is knowledgeable about the details of a criminal plot, it is also true that juries are often distrustful of a "rat," especially where the witness has a already received or is hoping to get a deal from the government in return for testifying. It less common for an accomplice to testify for the defense, and when it does happen, the jury can be equally suspicious of the motives. Juhwaan Barnes v. Commonwealth of Virginia involves the testimony of not one, but three, two who testified for the Commonwealth, and the third for the defense.
Barnes was charged with the first degree murder of Vinshuan Johnson. The Commonwealth's theory was that Johnson was lured to a specific location by two women -- Stephens and Carpenter -- where Barnes and two other men -- Oliver and Bynum -- shot and killed Johnson. Stephens and Carpenter testified for the Commonwealth and gave consistent versions of the events in accord with that theory.
Bynum, who was convicted of the murder in an earlier trial, testified for Barnes. Bynum claimed that he alone shot Johnson. While this would not absolve Barnes entirely -- it is possible to be guilty of murder even if your not the "triggerman," it is more likely that if the jur believed Bynum, they would acquit Barnes. While he might have been guilty of conspiracy to commit the murder because he participated in the plot, conspiracy is not a lesser included offense of the crime which is its object. A quick check of the VCCI database showed that the Commonwealth chose not to charge Barnes with conspiracy.
While it is possible to convict based on uncorroborated accomplice testimony, the court is required to instruct the jury on the "inherent danger" of doing so. Although Stephens' and Carpenter's was mostly consistent, one accomplice cannot corroborate another. Barnes requested an uncorroborated accomplice testimony instruction, but the circuit court found that other evidence presented by the Commonwealth corroborated enough of the two women's testimony and refused the instruction.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, affirmed this decision. There was additional evidence in the form of text messages that were sent to Johnson and the physical location of shell casings which matched their testimony as to the manner of the shooting and established that three different guns were fired. These "silent witnesses" were probably enough corroboration.
The Court, however, also noted that Bynum's testimony partially corresponded to that of the two women. Of course, the jury was privileged to believe some of Bynum's testimony and reject other parts. But wait, wasn't Bynum an accomplice too? Can his testimony corroborate that of another accomplice?
In this specific instance yes, but for procedurally reasons not legal ones. At trial, the requested instruction identified Stephens and Carpenter as the accomplices -- Bynum was never mentioned in the context of the requested instruction. At oral argument Barnes' counsel conceded that Bynum was not an accomplice for purposes of applying the corroboration rule. The Court accepted that concession as a "law of the case," so it does not get into the legal question of whether an accomplice testifying for the defense is capable of corroborating a prosecution witness's testimony.
This week's other criminal case is William Bradley Seat v. Commonwealth of Virginia. Your humble correspondent tries not to be too judgmental of the poor folks who wind up on the wrong side of a criminal conviction, but sometimes its hard not to pause and consider whether a particular defendant has been less than diligent in keeping up with the news and the gossip that one assumes circulates through the criminal grapevine.
Mr. Seat is a case in point. One would think that if he'd being paying attention over the last, say 20 years or so, he might have heard about the presence of police officers -- usually of the decidedly male variety -- posing as vulnerable young women on internet chatboards for gentlemen (and that term is used advisedly) who have less than chaste designs. But then again, perhaps Mr. Seat has had to deal with the lack of affordable housing by taking up residence under a convenient rock.
In this case the "young lady" indicated that she was thinking of getting into the flesh-peddling trade but needed someone to provide business management advice and a safe work environment, though the officer was clever enough to use the more direct description of "pimp." Seat responded to a phone number with a text message in which he assured the prospective associate that he was not a "pimp," but preferred to be thought of "as more a production artist and liaison to high end clientele" who would "“manage, guide, [and] advise” her. You know . . . a high class pimp. Eventually Seat and "Britt" exchanged over 175 text messages and, with the aid of a female officer, spoke on the phone. Despite going into extensive detail about the services he would provide, Seat finally got wise that he was being taken for a ride . . . though he still thought Britt was for real, he decided she was setting him up to be robbed.
Participating in a commercial sex trafficking is a crime in Virginia. At trial, Seat had a good explanation for his actions. According to him he was "trolling" the woman and never had any intention of going through with the scheme, and even if he did, the plan never rose to the level of the activities that constitute sex trafficking. In case you are wondering, here is what the law provides
§ 18.2-357.1. Commercial sex trafficking; penalties.
A. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse in violation of § 18.2-346, solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate § 18.2-346 is guilty of a Class 5 felony.
So, did Seat have the "intent" to receive money by encouraging Britt to violate Code § 18.2-346, the prostitution statute? Well, the jury seemed to think so, and so does the Court of Appeals, Chief Judge Decker joined by Judges Raphael and White. This is actually pretty much of a slam dunk for the Commonwealth as are most sufficiency of the evidence appeals. I presume this one gets published because the statute was recently amended.
Before we part, let me fulfill my promise to relate that anecdote for the prurient at heart and an all important change to Code § 18.2-346. First, the anecdote (the names have been changed to protect the innocent). Trigger warning -- the ancedote and statutory amendment deal with a subject of an adult nature. You have been warned.
Quite a few years ago (at least prior to the amendment which we will be discussed below), a police officer found an advertisement on Backpage -- the now defuct "free want ads" message board that got busted by the feds for its profiting from "personal" ads that were pretty obviously not of the SWM seeks Life Partner variety unless you measured the length of your life partner relationships by the hour. He found a likely ad, contacted the advertiser and arranged to meet her at a local motel in the seedier part of town.
I will spare you the details of the "dance" that is involved when an undercover officer has to negotiate with a suspected courtesan while avoiding a claim of entrapment. Suffice to say that he opted to arrest her when she stated that one of the services she would perform would be to assist him in placing a latex prophylactic where such implements are usually placed.
At trial, the Commonwealth presented this evidence and rested its case. Judge Stickler looked inquiringly at the prosecutor and inquired "Ms. Jones, what crime has been committed here?" Ms. Jones looked incredulous and stated "Prostitution, your honor." "How so?" replied the judge.
Ms. Jones, a women raised in the gentile Old Dominion, did her best to be delicate. "Judge," she said, "the defendant agreed to touch him in an intimate place." "Indeed she did," replied the equally gentile judge, "but that is not a crime in Virginia." "But of course it is!" exclaimed Ms. Jones.
The judge reached for his copy of 18.2 and flipped to the relevant statute and read it aloud. At that time Code § 18.2-346 provided that prostitution involved the receiving of money or other valuable consideration in exchange for enduing someone to "commit[] adultery, fornication, or any act in violation of § 18.2-361," the "crimes against nature" statute. Turning to that code section, the judge read out the list of acts it prohibited, which decidedly did not include the "manual stimulation of the genitalia for sexual pleasure." The judge dismissed the case.
The following day, Judge Stickler met Ms. Jones in the hallway. Ms. Jones informed the Judge that she had discussed the ruling of h the previous day with her husband, also an attorney, and informed the judge, in a tone that suggest Mr. Jones may have spent the night in the guest bedroom, "He agreed with you!"
Now as to the present state of Code § 18.2-346. The Prostitution statute was amended in 2020 to include as acts which can constitute prostitution if performed as part of a commercial transaction the touching of "the unclothed genitals or anus of another person with the intent to sexually arouse or gratify." That's a more gentile way of saying, as the crime is nominated in Geogia, "masturbation for hire."
The Court of Appeals has issued only three opinions in the last two weeks. Perhaps the heat of the Dog Days has caused a bought of torpor on the Court.
Norfolk Department of Human Services v. Joshua Goldberg is a rare case with not brief or appearance by the appellee. While it is possible that Goldberg was supremely confident that the Court of Appeals would affirm, this was a gutsy move given that the issue is whether the Norfolk DHS could be required to provide Goldberg with documents related to an unfounded report child sexual assault. Normally, such reports are confidential in order to encourage reporting, but Code § 63.2-1514(D) provide a “bad faith disclosure exception."
This case may require a bit of exposition for those not familiar with the function of the local entities that are charged with investigating and litigating claims that a child is endangered from abuse or neglect by a person with a custodial relationship to the child. These agencies are know by different acronyms -- DHS, DSS, CPS -- but all are essentially operating under the authority of Title 63.2, the "Welfare (Social Services)" statutes. These agencies are not law enforcement agencies, though the frequently operate hand-in-glove with police. There jurisdiction, however, extends beyond investigation of potential criminal activity, typically characterized as "abuse" of the child to include "neglect" which may or may not rise to the level of a criminal act.
When a social service agency receives a report of suspected abuse of neglect of a child, an investigation is made which can be as simple as visiting the home to check on the welfare of the child to a lengthy investigation of all circumstances related to the child's situation. One major distinction between a social service investigation and a police investigation is that social services is often empowered to take action to protect the welfare of a child where the police would need to obtain a search warrant or arrest warrant by establishing probable cause to a magistrate or higher judicial officer.
Reports of suspected abuse made to a social service agency must be investigated. These reports come from two principal sources: citizen complaints and mandatory reporters. Citizen complaints are vetted for credibility, though criticism of the failure to follow through on complaints in the past has increased the likelihood that an agency will err on the side of caution. Mandatory reporter complaints, however, are presumed to be trustworthy.
In this instance, the report on Goldberg, alleging abuse of his minor daughter, came from a mandatory reporter. Goldberg is a member of the US Navy, and this meant that in addition to DHS's investigation, NCIS was also informed and launched its own investigation. Yes, that NCIS -- which gives you some idea of how fanciful the TV show is in suggesting that its all about international terrorism and intricate revenge plots.
DHS determined that the allegation was unfounded. The opinion does not say what NCIS did, but presumably whether it also concluded that Goldberg was innocent, having an NCIS investigation in your career file is probably not a good thing. Goldberg and his wife suspected that the wife's mother was the source of the complaint based on her prior interference with their parenting choice and earlier false accusations.
Goldberg filed a petition in the circuit court asserting that he believed his mother-in-law was the sources of the accusations, that the accusation was made in bad faith, and requesting that the circuit court order DHS to turn over records of its investigation and, if the mother-in-law was the source, provide him access to those records.
The circuit court directed the DHS to provide the records for the court's review and DHS said, "No thanks, judge, we're good." Well, all right, the DHS didn't exactly waltz into court and refuse to turn the documents over. Rather, the department argued that because the information had come from a mandatory reporter it could not, by definition, have been made in bad faith. Since it's actually a crime for a mandatory reporter to not make a reporter of suspected abuse or neglect, there is a certain logic to this argument. The circuit court disagreed and order the DHS to provide the records for review, but stayed the order pending the DHS's appeal.
The Court of Appeals, Judge Lorish joined by Judges Fulton and White, affirms and remands the case so that the circuit court can review the documents and determine if there is cause to believe that the mother-in-law was the ultimate source of the report. Because this is a question of statutory interpretation, the Court reviewed the issue de novo -- and this is why it was gutsy for Goldberg to not even file a brief. Granted, his counsel may have made a convincing argument in the trial court (and the court also issued a written opinion), so he may have felt that there was no more to say, but gutsy nonetheless.
The Court finds that the statute is ambiguous as to whether it is limited to direct reports made in bad faith or includes bad faith sources relied upon by mandatory reporters. The Court concludes that the purpose of the bad faith exception is to dissuade the use of false reports in domestic and other interpersonal disputes to harass a blameless person. Accordingly, the ambiguity should be resolved in favor of advancing this purpose. This is sensible, as someone willing to make bad faith report of child abuse or neglect, but fearful of the potential civil liability for doing so, might see making a report to a mandatory reporter as a convenient work around.
Stafford County Board of Zoning Appeals, et al. v. John L. Grove, II, et al. is the shortest of the three opinions covered in this post, and in your humble correspondent's humble opinion, it is deservedly so, as the result falls well inside the "Well, Duh!" category of cases. The issues is this: When a land owner is denied a special exception permit by a Board of Zoning Appeals and seeks review of that decision in the circuit court, does the BZA have the right to file a responsive pleading in the court?
I really, really hope that you, dear reader, said, "Well, duh! Of course they have a right to file a responsive pleading in a legal action in which they are the defendant!" Well, technically, it turns out this is not true -- but there is more to it than that.
In this case, the BZA and the Board of Supervisors filed a demurrer to Groves petition for review in the circuit court. Grove did not oppose the filing of the responsive pleading. In fact, he responded to it. Then the circuit court did something extraordinary. It sua sponte ruled that the BZA could not file a response. Oddly enough, this is not the first time a court has ruled this way, as the circuit court relied upon a decision in another circuit from a few years back. Unlike in that case, however, the BZA asked the court to permit an interlocutory appeal to test this rather novel ideas that it could not defend its own decision.
In case you are wondering how two circuit courts could make such an astonishing ruling, the answer is that the statute in question Code § 15.2-2314 contains some peculiar language, viz.: "Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required." Rather, it is the locality in which the BZA presides that is the proper responding party.
Now, you can sort see how the circuit court's might have read this to mean that the BZA, not being a "party" to the suit, could not file a responsive pleading. However, the statute also provides that the BZA is to respond to the writ of certiorari, which the court interpreted as meaning that it was to supply the records, not file a "response" to the suit. Moreover, in this case at least, the demurrer was file by both the BZA and the Board of Supervisors, the latter of which is a party under the statute. The court, here, however, found that the statute did not provide for the filing of a response even by a proper defending party. Rather, the court concluded that the statute required the BZA to supply the record to the court and then the Board of Supervisors was to defend the BZA's action on its merits.
The Court of Appeals, Judge AtLee joined by Judges Huff and Ortiz, in reversing the judgment of the circuit court does not wade into the swamp of whether the BZA's "response" is limited to supplying the record or includes a challenge to the action itself. Rather, the Court simply points out that an action under Code § 15.2-2314 is an "action under law" and, pursuant to Code § 8.01-273 a demurrer may be filed in any “action at law.” Similarly, Rule 3.1 permits a demurrer to be filed in any case "unless otherwise provided by law." The love exception, as set out in the rule, is that a demurrer cannot be filed against a petition for writ of habeas corpus.
Of course, a Court cannot (or at least should not -- never say to a judge, "you can't do that") say "well, duh" in an opinion, but the Court comes pretty close here, noting that "o interpret Code § 15.2-2314 as the circuit court does here would lead to absurd results . . . [as] it would mean that a respondent would be unable to challenge any pleading prior to the issuance of a writ of certiorari, no matter how facially deficient the petition may be, and therefore there could be no summary disposition."
Moving from the shortest to the longest of the three opinions, Matthew Keil v. Jim O'Sullivan, etc. deals with the Freedom of Information of Act. Despite its length, I feel like this opinion also falls close, if not directly into, the "Well, duh!" category. The only reason it probably does not do so is that FOIA issues always require a good deal of explanation as to why the government is not required to turn over everything in every case. FOIA is a valuable tool for providing citizen oversight of the government, but it is too often employed for motives that have less to do with assuring good government and more about personal concerns or simply to be a thorn in the side of public servants. Striking a balance between the public's right to know, the privacy of those whose data the government collects, perhaps especially public servants, and the burden upon government to meet excessive demands is the difficult task of the courts.
Kiel was a member of the Chesapeake Sheriff's Department and the subject of an internal investigation. Kiel sought to obtain the documents from this investigation under the FIOA and a related act, the Government Data Collection and Dissemination Practices Act. The Sheriff, perhaps unwisely, failed to respond to the request under the Data Act and was less that expedient in responding to the FOIA request by asserting that the information was not subject to disclosure. Nonetheless, the circuit court upheld the decision to not disclose the information.
The Court of Appeals, Judge Lorish, joined by Judges Fulton and White, affirm. The principal holding of this case for future cases is the exhaustive discussion of who is a "data subject" under the Data Act. To access government records under the act, the requestor must be a "data subject" and Kiel did not qualify. I think the obvious reason for this is that the internal investigation was not collecting "data" within the sense of the act. If this were the case, then just about any government record stored on a computer would be discoverable. The act, however, is limited to databases that are designed to isolate personal information of the data subject.
With respect to FOIA, Keil mostly argued that the Sheriff's lackadaisical responses entitled him to relief. The problem with this argument is that records do not become subject to disclosure just because the responding agency is slow to assert that they are not.
Your humble correspondent took a week off from summarizing due to the press of other business and then on Sunday last to recognize the end of his 63rd journey around the sun.
Let's start with the latest appeal from the Court of Appeals to the Supreme Court. City of Emporia v. County of Greensville has been appealed. This was the lead off summary of my June 12, 2024 post. While I did not foresee the appeal to the Seven Robes, I rather think that the petition will be granted as this is just the sort of obscure statutory construction issue that seems to catch the Justices' imagination.
On August 6, 2024, the Court of Appeals released five opinions. Let's start with Karen Williams, et al. v. Rappahannock County Board of Supervisors, et al. which is all about a volunteer fire company. The Flint Hill Volunteer Fire Company was founded in 1954 to serve the town of Flint Hill and Rappahannock County. In 2018, the County sought to coordinate the operations of the Flint Hill Company with the other fire and rescue services in the County and to that end entered into an agreement with Flint Hill and other providers of first responder services. Subsequently, "Flint Hill had difficulties meeting performance goals and
certification requirements." The County Board determined that the leadership of the company was at fault and adopted a resolution to remove the current leaders and replace them.
As you can imagine, this did not sit well with the removed leadership, which brought a declaratory injunction actions against the Board. The Board filed a plea in bar asserting that the action was barred because Flint Hill was organized "pursuant to Title 27" which is all about Fire Protection and was subject to the control of the County. Flint Hill, however, was in fact organized under Title 13 as a nonstock corporation. The circuit court found that being organized as a nonstock corporation did not conflict with Flint Hill being subject to Title 27 and, thus subject to the Board. The dismissed leaders appealed.
In a scant seven pages, about half of which is footnotes, Judge Frucci, joined by Judges Malveaux and Raphael, reverse and remand. Now you would be forgiven for thinking that the reason was that having been organized under Title 13, Flint Hill was not subject to the application of Title 27. But the Court did not even reach that issue, finding a much more direct approach. Namely that Code § 27-13, the statute that allows a Board of Supervisors to appoint the leadership of a volunteer fire company does not include the power to remove the leadership. The Court concludes that the statute must be strictly construed as limiting the power of the Board to appoint leadership -- presumable when a vacancy occurs -- but not to remove the leadership.
Tori Turner, et al. v. Massie MHP, LLC takes us from putting out fires to the element most often used for that purpose -- H20. Specifically, the provision of that essential liquid by an owner of a mobile home park to the residents thereof. Code § 55.1-1243.1 provides for a cause of action against a landlord for the "willful interruption of an essential service."
It seems that Massie purchases the mobile home park in August 2022 and filed a proper application to assume the water and sewer utility obligations from the former owner, and included their correct email address but "due to confusion over the handwriting in the application, recorded Massie’s mailing address incorrectly." This resulted in the water and sewer bill not being paid for several months and eventually having the service shutoff.
Although invoices and notices were being sent to the email address as well as the incorrect mailing address and a representative of Massie communicated with an accounting clerk at the utility, it is unclear why Massie was not paying the bill because the "operations manager" did not receive the emails and was not sure that they were being read. The water was shut off around 10:00 AM on November 15, 2022, prompting Massie to pay up tout de suite. The water was restored in the early afternoon. The utility admitted that while it had advised Massie that the water could be shut off for lack of payment, it did not specifically advise Massie that it would occur on November 15.
The issue before the trial court was whether the tenants had proven a "willful interruption" of the water service. The trial was held without a jury, which meant that the trial judge was the decider of law and fact. Applying the generally accepted meaning of willfull as used in the statute, the judge concluded that the tenants had not proved that the cutting off of the water was the result of any willful act by the landlord, but merely by its negligence.
The Court of Appeals, Sr. Judge Humphrey, joined by Judges O'Biren and Ortiz, affirm. The reason is pretty clear. The circuit court correctly applied the usual meaning of willfulness in a civil context. The Court notes that in other statutes the legislature uses "willful or negligent," showing that it can distinguish between the two. Since the circuit court was the trier of fact, its determination that the tenants had not met their burden of proof was entitled to the same weight as a jury verdict.
Before moving on the the next case, a quick word about tout de suite. The phrase is obviously borrowed from French and translates literally as "all in a row," but it both languages means to do something without delay. The there are "toot sweets," for those who remember Chitty, Chitty, Bang, Bang.
When a case involves a sensitive subject and requires anonymity for a party, the Court permits the use of pseudonym. This was the case in Jane Doe v. Joseph Robert Green, Jr., a case of first impression interpreting Code § 8.01-249(6) which permits a delayed action for childhood sexual abuse. Subsection 6 establishes the accrual of an action for injuries sustained by sexual abuse of a minor to being "upon the later of the removal of the disability of infancy . . . or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist."
When she 18, Doe had reported Green to the police, but Green was subsequently acquitted of the resulting charge. The issue here was whether Doe's cause of action accrued when she reached the age of 18 in December 2008 or when she was first diagnosed with Post-Traumatic Stress Disorder attributed to the abuse 13 years later.
One complication in determining when the cause of action accrued is that Code § 8.01-249(6) has been amended several times between the incident of the abuse and the filing of the suit. Additionally, Code § 8.01-243(D) was amended on 2011 to extend the limitations period for child sexual abuse cases from two to 20 years. The circuit court accepted Green's argument that the applicable versions of these statutes meant that the cause of action accrued on Doe's 18th birthday and the statute of limitations ran in December 2010.
The Court of Appeals, Judge Chaney, joined by Judges Callins and White, affirm. The principal basis of the decision is based upon the established rule that revisions of statutes are generally not retroactive absent clear legislative intent. At the time of the alleged abuse, the Code § 8.01-249(6) included the caveat that the date of the diagnosis, if later than the 18th birthday of the victim, was applicable "if the fact of the injury and its causal connection to the sexual abuse is not then known." Finding that this is the applicable version the statute, this means that the cause of action accrued on Doe's reaching age 18 as she clearly was aware of the abuse, even if she was not aware of a specific diagnosis of PTSD resulting from the abuse.
Doe also asserted that the 20-year limitations period in Code § 8.01-243(D) applies to her claims, but she dis not explicitly raise the argument that this code section is retroactive in any assignment of error. In the absence of adequate briefing on this issue, we do not consider it. See Rule 5A:20(e). I rather suspect, however, that the Court would have found the same rule of the presumption against retroactivity would have applied had the issue been raised as the amendment took place long after Doe's ability to file a timely suit had run.
Harvey B. Hazelwood v. Lawyer Garage, LLC, et al. is about choice of law -- and while "Lawyer Garage" would be a great name for a law firm, perhaps one specializing in "Lemon Law" claims -- the Lawyer in this case is one of the appellee's last name. Lawyer repairs and customizes cars, and Hazelwood transports cars. Lawyer hired Hazelwood to transport four of his cars to Arizona. One of these vehicles was a “Chevy Blazer chassis with a Pontiac Fiero body” which had been modified with a “350ci V8 engine mated to a 3-speed TH350 automatic transmission.” I will save you the trouble of trying to imagine what that looks like:
When Hazelwood arrived in Arizona and was unloading this beauty, the breaks failed and he was injured when he fell from the trailer as the car rolled passed. He sued Lawyer and few others involved in the transaction in Virginia, but alleged that the law of Arizona should be applied as the locus of the accident. The circuit court agreed and dismissed certain of the claims which were not cognizable under Virginia law. Hazelwood filed an interlocutory appeal.
The Court of Appeals, Judge Athey, joined by Judges Ortiz and Chaney, reverse and remand. The decision rests on the interpretation of the "lex loci delicti rule." In English, that means the "law of the place where the wrong occurred." The questions is, what was the "wrong" here? Was it the negligent act in Virginia of improperly working on the breaks and transfer box, or was it the injury of Hazelwood in Arizona as a result of the "effect" of that negligence.
The answer is that the while the actions that precipitated the tort occurred in Virginia, the tort was no "complete" until an injury resulted. And that occurred in Arizona. The Court answers this important question, but in my view not the most important one: Who wants to drive a Fiero on a Blazer chasis?
The last opinion from August 6 is Antwan Deangelo Barrow, s/k/a Antwonne D. Barrow v. Commonwealth of Virginia. Barrow was found to be in violation of his probation and was sentenced to a year and six months of his comeback time. The judge reimposed the remainder of the previously suspended sentence and imposed an additional period of probation.
This was Barrow's third violation of probation on a 2007 conviction. The violation was the result of Barrow leaving the state for work, which resulted in his failing to attend a meeting with his probation officer. The PO went to Barrow's address and was told he "was not living there." Barrow was located in Texas, where he was indeed working. Barrow would subsequently claim that he was unaware that he need permission to leave the state. The circuit court concluded that Barrow was "not suitable" for probation, but imposed only half the remaining sentence, but extended the probation on his release as indicated.
On appeal, Barrow argues that the circuit court abused its discretion in imposing the active time and also that it lacked the authority to extend his probation. The Court of Appeals, Judge Fulton, joined by Judges Lorish and White, affirms the revocation, but reverse the extended probation. The former is an easy call as there record shows that the judge gave sufficient reasons for the revocation sentence. Abuse of discretion is hard to prove when the judge explains exactly why he is exercising it.
The latter, however, is even easier, however, because there is a new sheriff . . . umm . . . law in town. Code § 19.2-303.1 was amended in 2021 and limits the time of probation to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned. In this case, that period ran before the new period of probation imposed by the court would have ended.
There are several other instructive points in the opinion on Code § 19.2-303 and Code § 19.2-303.1. First, the Court finds that a provision for imposing up to 5 years of supervised probation in the latter is a limitation on the court, not an authorization to impose additional probation. Second, the former statute permits probation to be extended when restitution remains owing, but the Court finds that the record fails to establish that Barrow still owed restitution.
This week saw just two more published opinions. Both invovles issues of contempt of court, though it may be readily apparent by the case name of the first. Rachel Virk v. Gary L. Clements, et al. involves a lawyer, Virk, who sued the Clerk of Court, Clemens, one of his deptuies, the Sheriff and a deputy sheriff for "false imprisonment, negligence per se, gross negligence, and civil conspiracy." What was the instigating cause of these claims? Well, it seems Virk was held in contempt by the circuit court and placed in custody by the deputy sheriff, the order was processed by the deputy clerk, and theie bosses let it happen!
You will be shocked to learn I am sure that the defendants' demurred to the suit, asserting that they were acting under color of law based upon their duty to obey the orders of the court. You will be even more shocked to learn that the Judge Designate who had to travel to Loudoun County to hear the case sustained those demurrers. Finally, in the most shocking turn of all, the Court of Appeals, Judge Callins, joined by Judge Beales and Friedman had the audactiy to affirm this decision. Let Claude Raines help us express our incredulity:
What is truely surprising about this opinion is that the Court went to great pains (26 pages worth) to explain just why these dedicated civil servants were not to be hauled before the courts (except, of course they were) for doing thier jobs. Perhaps I shouldn't say this is surprising as the Court does need to take seriously the protection that the law affords to public servants when they are bound by their duty to perfom an act. More to the point, the Court wanted to make clear that, while it was not ruling of the legality of the contempt order (which in fact was the subject of another appeal, and contrary to the assertion of Virk, the dismissal of the appeal did not somehow find that the trial court erred in imposing the contempt sanction), that issue was not relevant to whether the public servants were entitled to assume the judge was acting with proper authority.
You may have wondered what the action was that caused the judge to hold Virk in contempt. Well, in summary, she wouldn't take "no" for an answer. The court was taking up some pre-trial motions and ruled against her on one. Virk then tried to get the judge to explain his ruling -- but here's the thing, other than those instances where the judge is required to put his reasons for a ruling in writing (and even then, the judge doesn't have to stop the proceeding and immediately write the order), judges are not required to give a reason for their rulings.
Now, it is generally not going to be a matter of contempt to ask thje judge for an explaination of a ruling. But, once it becomes clear that the judge is ready to move on, insisting that he should do so is, well, not a particularly good idea. Some judges will be tolerant, explaining carefully that their ruling has been made and that they wish to keep the trial or hearing moving along two or three or even four times -- but its hard to know when your reach the judges limit. In this case, I think the judge made it pretty clear that he was reaching that point, but Virk was either too absorbed or too oblivious to seek the edge of the cliff.
I do recall an instance where one attorney avoid a contempt by getting right to the edge. Having been ruled against, he insisted that the judge hear his argument again. The judge listened patiently and then ruled as he had before. The attorney repeated his assertion that the judge should let him repeat the argument, "as I don't think you really understand it." The judge fixed the attorney with a stoney stare and said, "Counsel, I understand your argument perfectly, I just don't agree with it." The attorney wisely moved on.
Raymond Charles Bell v. Commonwealth of Virginia is an appeal of an finding of summary contempt under Code § 18.2-456(A)(1) and (3) for sending a letter to members of the venire panel following conviction for brandishing. The charge of contempt was then presented to a jury for sentencing, which imposed a six month penalty. We presume Bell did not send a letter to the second venire.
This case is surprising on two counts. First, the Court of Appeals, Judge Causey, joined by Chief Judge Decker and Judge O'Brien reverse the jury verdict. What's more surprising is that it did so by applying the "manifest injustice" exception to Rule 5A:18 becaus Bell did not preserve in the trial court the issues he raised in his appeal. Reversals of criminal convictions in jury trials are rare; getting passed 5A:18 is doubly rare. But when yout get the latter, it's usualy a sure sign that the former will follow.
Here's why the Court applied the ends of justice exception -- this was summary contempt, which means that the judge effectively pronounced Bell guilty upon finding his action was contempt, just as the judge did in Virk. But there is an important distrinction between this case and Virk. The letter Bell wrote (which alleged that he had not been allowed to put on evidence that would have proved his innocense) was mailed after the trial was over.
Only "direct" contempt can be dealt with summarily. To be direct, the contemptuous action must occur in the judge's presence or so very near to a judicial proceeding as to "obstruct or interrupt the administration of justice." That just did not happen here. The trial was over, everyone had gone home, and Bell wrote and mailed the letter sometime later.
So is Bell off the hook? Probably not. The Commonwealth could decide to try him for indirect contempt, and I think it is likely that it will seek to do so.