Rachel Yates, who like your humble correspondent cut her teeth on the law in government service, has come over to the dark side and opened a practice concentrating (lawyers may not "specialize") in state and federal appeals. Actually, she set up her practice a while ago, but rolled it out officially with a promotional email through Virginia Lawyers Weekly. Her site includes a "Blawg" called Beyond the Verdict: A Virginia Appeals Blog.
As the Blawgosphere expands the Court of Appeals is providing fresh fodder for commentary, with six new published opinions this week (well, five opinions, one of which is for consolidated cross-appeals). First up is Citizens for Faquier County v. Town of Warrenton, Virginia, a thirty-page missive from Judge Raphael, joined by Judges Malveaux and Frucci. The appeal included three amici briefs; two NGO groups supporting open government and freedom of the press for the Citizens and that Commonwealth for the Town. The case is about an effort by the Citizens to obtain information about a datacenter project to be built in the town by a certain online retail giant that shall remain nameless -- but which shares a name with a long river in South America and a tribe of female warriors, one of whom is prominently featured on the Flag of the Commonwealth.
In response to a Freedom of Information Request, the town decided it did not have to release 3100 emails. The Citizens sought a writ of mandamus to force the Town to release the documents. As relevant to the appeal, the Town claimed that the emails were exempt for, among other reasons, Code § 2.2-3705.7(2) provide an exemption for “[w]orking papers and correspondence of . . . the mayor or chief executive officer of any political subdivision" and these 3100 emails were deemed by the Town to be working papers of the mayor and the Town Manager, who is the town's chief executive officer.
The circuit court judge decided that it would be tiresome to review 3100 emails, so he permitted the Town Attorney to select a "representative sample" of the emails for review in camera. Following that review, the court ruled that all 3100 emails were exempt.
The appeal address two issues. First, does Code § 2.2-3705.7(2) provide an exception for emails of the mayor and the chief executive office of a locality where the mayor is not also the CEO? Second, does FOIA permit a court to review a "representative sample" of the requested material and to delegate the authority to make that selection to the counsel for the locality.
The Court of Appeals answers both these questions in the negative. First, the Court concludes that the use of "or" in Code § 2.2-3705.7(2) cannot be interpreted as a conjunctive. Rather, the disjunctive is used in the statute to distinguish between "Mayor-Council" governments and "Council-Manager" governments. The intent of the General Assembly was to exempt from FOIA disclosure the correspondence of the CEO of a locality, be it a County Administrator, a City of Town Manager or a Mayor, which related to the day-to-day administration of the government's business, not the political decisions of elected officials.
There is an obvious conundrum in this construction in that it is unclear whether the disjunctive her is intended to allow the locality to choose which official the exemption applies to for a "Council-Manager" form of government. For those towns and cities that follow the "Mayor-Council" form of government, the Mayor wears two hats -- an elected executive and a corporate officer, thus the Mayor gets the exemption by default as there is no other "CEO" who could claim it. But in "Council-Manager" governments, does the Manager/CEO get the exemption automatically or can the locality opt to give it to the mayor?
The Court concludes that the Town can choose which official's correspondence to exempt, but it must, as a result, not withhold the correspondence of the other (unless another exemption applies). I must admit that I am troubled by this result, as I would have thought in those localities where the mayor was wholly a political actor -- the title is often little more than honorary and is bestowed by the other council members, not the voters -- the intent would have been for the Manager/CEO to get the exemption. Alas, the Court has to decide this issue with little guidance from the legislature on the matter, and if this decision stands, the ball will be in their court to decide whether giving towns and cities with "non-CEO mayors" the option to exempt an elected officials correspondence from FOIA is a wise idea.
The reversal of the second issue is something of a surprise, because the Court concedes that the decision of whether and how to review disputed materials in a FOIA request is "committed to the trial court's sound discretion." Abuse of discretion is a high bar for an appellant to clear, but the Citizens manage it with ease. The problem, according to the Court, is that the judge in effect ceded that discretion to the Town Attorney. "At a minimum, the court should have required the town attorney to explain how he chose the sample and why the sample was representative of the whole," says the Court.
I would have gone a bit further. I would have said that the circuit court should have tasked a neutral party with making the selection -- a special master or, for those circuits that employ them, a law clerk or staff attorney. Allowing the Town Attorney to select which emails to show the court and then, as the Court of Appeals says, having that official justify the basis for the selection, is a bit too much like putting fox in charge of the hen house for my tastes.
I mention above that the legislature may have something to say about this case "if this decision stands." I fully expect both parties to seek review by the Supreme Court.
Samuel Rolofson v. Brittany Fraser (and a consolidated cross-appeal) involves the dismissal of a defamation case on a plea in bar. Rolofson and Fraser are Army officers who dated briefly in 2017. The relationship ended badly, with Rolofson being officially reprimanded. Worse for Rolofson, it also resulted in a Board of Inquiry at which Fraser testified. Although the Board recommended Rolofson be dismissed from service, this decision was overturned upon review. However, after Fraser made new allegations against Rolofson, who had "sued her," the decision was made to "administratively separate" Rolofson from the service next year.
The nature of the action in which Rolofson "sued" Fraser is not set out in the opinion, but it was not the present suit. Rather, this resulted from Rolofson filing a defamation action asserting that Fraser have defamed him during the Board of Review testimony. The circuit court sustained a plea in bar of qualified immunity. The court also found that certain statements, even if not subject to privilege, were opinions, not facts. The court denied Rolofson leave to amend. Rolofson appealed these rulings and Fraser cross-appealed the court's failure to also apply Virginia's "anti-SLAPP suit" law to bar the action.
Judge Frucci, joined by Judge Friedman and Sr. Judge Humphreys, affirmed the sustaining of the plea in bar and also the finding that some statements were not actionable. The Court also affirms the decision that the anti-SLAPP suit law did not apply. I think these latter two rulings might be considered dicta as neither was really necessary to decide the case once the issue of privilege was affirmed. But, at least as to the anti-SLAPP issue, there is some good language that parses the law and ultimately concludes that "[t]he United States Army does not qualify as the “governing body of any locality or political subdivision,” which seems to be self-evident (unless a junta seizes power, I suppose).
Gregory Allen Marlowe v. Southwest Virginia Regional Jail Authority, et al is a suit by a prisoner for injuries sustained when he was tossed about in the back of transport van after not being properly secured. I want to be clear that this was not a case of a prisoner "falling" in a prisoner transport as in the film "Family Business," which if you have not seen, you should definitely give it a look. The plot is formulaic, but the lead actors -- Sean Connery, Dustin Hoffman, and Matthew Broderick -- on top of their game.
As to the Marlow's falling down, you would probably think that this case involves sovereign immunity and whether the guard's alleged failure to adequately secure Marlow rose to the level of gross negligence sufficient to survive a plea in bar. You would be half right. For the Jail Authority did indeed raise sovereign immunity and the circuit court sustained that plea and dismissed on that account. However, the Authority also raised the statute of limitations, and the circuit court overruled that claim. Marlow appeals the former ruling and the Authority assigns cross-error to the latter.
The Court of Appeals, Judge Friedman, joined by Judges Ortiz and White, do not reach the sovereign immunity issue because the statute of limitations is the more direct route to dismissal of the claim. Direct, however, in a roundabout way. The relevant statute of limitations according to the Authority is the one that applies to prisoners "confined in a state or local correctional facility." The circuit court concluded that the van was no part of a correctional facility, so the 1-year limitations period of the relevant statute did not apply.
The Court acknowledges that "Marlowe makes a compelling argument that a van cannot pass as a 'correctional facility,' and he reasons that Code § 8.01-243.2 therefore cannot apply." Unfortunately for Marlow's compelling argument, there is a considerable body of law that dictates a different result. You see, the statute has been interpreted as applying to prisoners in state custody more so than just those physically within the confines of a particular facility.
This makes sense when you think about it. Prisoners must get to jails and prisons and between them when the circumstances warrant. If the statute applied only once the prisoner was within the curtilage of the prison, it wouldn't apply to those on work details, visits to hospitals, courts, and other destinations outside the prison grounds.
Pegasystems Inc. v. Appian Corporation is the longest opinion of the day . . . perhaps of the year. Clocking in at just over 60 pages, it also comes from the pen of Judge Friedman, this time joined by Judges Beales and Callins. Befitting an opinion of this length, the appeal had four amici brief; two for the appellee and two for "neither party". The two latter briefs were intended to be a sort of primer for the Court on what must be conceded is a very obscure area of the law -- the theft of intellectual property by those who deal in the business of selling intellectual property in an electronic for others to use. As the Court observed, "[t]his complex trial ventured into uncharted legal waters and culminated in a multi-billion dollar damages award." You read that right, Billion with a B.
The two parties are competitors in the "business process management industry" which means they provide software solutions for other companies to automate business practices. Apparently one business process alleged to have been managed by Pegasystems was that of "researching" the trade secrets of Appian. Distilling the facts of the case and the legal issues is frankly beyond my ken (or my barbie). I was present at the oral argument of this appeal and I am not sure that any of the attorneys or judges really understood what "Pega" and Appian do or why it is so valuable.
Suffice to say that while the Court finds that Appian did prove that Pega got hold of trade secrets, the circuit court erred in not requiring more specific proof of how that misappropriate caused the massive damages alleged, especially as the evidence was clear that much of the profit Pega was being required to disgorge was from areas of its business that did not compete with Appian. The case goes back to for a new trial, but give that Appian is out multiple billions and might not get such an award on remand, expect a petition for appeal to the Supreme Court from Appian, and likely one as well from Pega seeking permanent relief from the claim.
The last opinion of July is Fredrick Hamilton Cosby, s/k/a Fredrick H. Cosby, Jr. v. Commonwealth of Virginia. At just 13 pages, it's the shortest of the day. Cosby was convicted in 1992 conviction for several felonies for which he received 40 years, but with all that time suspended. He kept his nose clean (apparently) until 2004 which he received a new conviction, and his sentence was revoked, partially re-suspended, and some of the active time to run concurrently with the new sentence.
Cosby served that time and again managed to be on good behavior (or at least didn't get caught again) until 2013 when he was again convicted of a new offense and also had a technical violation. This time he was given three more years to serve.
Cosby didn't manage to repeat his two prior feats of staying clear of the law, and once again found himself facing a revocation in 2017, this time for two technical violations. At that time, the Court was not constrained as to the active time it could impose for technical violations and Cosby got three more years to serve.
In July 2021, the new revocation law went into effect, which places limits on the active time that can be imposed for first and second technical violations. So when Cosby again committed technical violations in 2022, he naturally wanted to receive the benefit of that new law. He argued that this was his second violation for only technical violations, so he could not receive more than 12 days of active time. The Commonwealth pointed out that it was actually his third revocation involving a technical violation. "But," replied Cosby, "that first technical violation back in 2013 was adjunct to a non-technical violation, so it shouldn't count.
The circuit court disagreed and the Court of Appeals, Judge Huff joined by Judges AtLee and Callins, affirm. The Court finds that while the 2013 proceeding did indeed subject Cosby to a punishment that would have been available without the technical violation being included, it nonetheless was a finding that he had committed the technical violation. The Commonwealth could have brought separate proceedings, subjecting Cosby to two revocations.
The Court characterizes the joint proceeding as conveying a "benefit" to Cosby, and while I take the Court's meaning, it seems that Cosby has been getting even more benefit from the leniency of circuit up to and including the most recent instance when the Court again required him to serve only three years of the remaining 29 years of the original sentence. Cosby's effort to get just 12 days would have been a real benefit, but even so, three years wasn't that much worse given that I think many judges would have looked at the record and decided that Cosby had not really been all that deserving.
The Court of Appeals issues three opinions today and all, to one degree or another, deal with extraordinary powers of judges, fiduciaries, and the Commonwealth respectively. Let's start with Mohammad Hussein Abanda v. Commonwealth of Virginia, a published order from Judges O'Brien, Malveaux and Raphael. It's an order because it is a dismissal upon a finding that the Circuit Court of the City of Richmond had no jurisdiction to consider a motion to modify a sentence under Code § 19.2-303. This statute provides that a circuit court has the power to modify a felony criminal sentence "at any time before the person is transferred to the Department, or within 60 days of such transfer." Abanda filed a motion to modify his sentence 59 days after he was transferred to the DOC.
The circuit court ordered that he be transferred back to Richmond for a hearing. The order says this occurred on November 22, 2023, but from subsequent events it seems clear that this is a scrivener's error. We know this because the court denied the motion on December 8, 2022 and VCCI confirms that the hearing was in November 2022. Abanda chose to appeal this judgment and the Commonwealth, which had argued in the circuit court that Code § 19.2-303 did not give the court authority to consider the motion more than 60 days after the transfer to DOC even though the court received the motion before that deadline, moved to dismiss on that ground.
Now this raises to interesting points. The first is that the Commonwealth correctly raised this as a motion to dismiss and not as a response to the merits of the appeal. Here's why. When a trial court is alleged to have lacked jurisdiction to enter an order, the court considering an appeal of an order entered without jurisdiction is likewise lacking in jurisdiction to consider the merits of the judgment rendered. We know that "jurisdiction is a word of many, too many meanings." This case demonstrates why it is necessary to understand each of these meanings.
Both the circuit court and the Court of Appeals had subject matter jurisdiction over the Code § 19.2-303 motion and the appeal of its denial. They also had personal jurisdiction over Abanda. What the circuit court lacked, as the Court of Appeals rules in its order, was active jurisdiction over this specific case. This is so because Code § 19.2-303 sets a time limit on when the circuit court can modify a sentence, not a limit on the filing of a motion. The motion, though timely filed, was not timely ruled upon. As the circuit court had no jurisdiction to consider the motion, the Court of Appeals has not jurisdiction to consider the merits of the judgment. But it does jurisdiction to consider the question of the circuit court's jurisdiction (or, rather, the lack thereof). See? Too many meanings . . .
The second point is that Abanda might have been able to avoid this Catch-22. Code § 19.2-319 provides that any person convicted of a felony who intends to appeal that judgment may request a suspension of the execution of the sentence and "the circuit court shall postpone the execution of such sentence for such time as it may deem proper." Now many people confuse or conflate the suspension of the execution of the sentence with the right to seek a bond pending appeal, but they are very different things.
To begin with, while in most cases Code § 19.2-319 provides that there is a presumption in favor of an appeal bond, it is only mandatory for misdemeanors (sentences for which are always served in a local or regional jail). In felony cases, the presumption is rebuttable (and does not apply at all to certain violent felonies). When the court grants a bond pending appeal, the defendant may be released from custody so long as he meets and adheres to the condition of the bond.
On the other hand, the court shall suspend the execution of the sentence in all felony cases, though it retains the discretion as to for how long the suspension will last. But suspension of execution of the sentence does not permit the defendant to be released if he is not also granted a bond. So what is the purpose of the suspension then? Simply put, it keeps the defendant from being transferred to the custody of the Department of Corrections.
Why would a court or defendant want to deprive the DOC of the defendant's company? Well, there are several possibilities. The court may, for example, want the defendant to complete a rehabilitation program and then reconsider the sentence. The defendant may want to remain in a local jail near to family rather than be transferred to an unknown part of the Commonwealth. As a practical matter, however, the real reason the sentence shall be suspended is to give the court time to rule on the bond motion. In theory, the DOC could take the defendant immediately after the sentencing, and the judge would be without jurisdiction to grant bond to a person not under her direct authority. In practice, this never happens and many shorter felony sentences are served in local and regional jails.
One more point about Code § 19.2-319. While it speaks of "suspending" the execution of a felony sentence, with respect to misdemeanors and "any case of judgment for any civil or criminal contempt," the statute uses the term "postpone." This may seem a distinction without a difference, but in fact it the legislature chose the term carefully. Here, "postponing" a sentence means that the defendant will not be taken into custody immediately, but can be allowed to remain free "for such time and on such terms as [the court] deems proper." In effect, this allows the Court to allow for "delayed reporting" even if the defendant will not appeal the conviction (and thus would not be permitted an "appeal bond"). In theory, this option is not available to those convicted of felonies (but some judges will allow delayed reporting).
Our next discussion of "power" is in Connie A. Kosmann, Putative Trustee of the Brown Living Trust v. Edith Brown, by her Agent Nadine Seamans. In Abanda we were discussion the power of the court; here we are interested in the power given to fiduciaries in written documents. The two documents are, as the name of the case implies, a trust and a power-of-attorney. The settlor of the trust was Edith Brown and she and her daughter, Kimberly Monroe, were to serves as co-trustees; Seamans, Brown's niece, was named as a successor trustee and also was made an agent under a power-of-attorney executed at the same time as the trust, which also named Monroe as her agent. What you may have noticed that thus far, Kosmann does not appear to be in the picture, but stay tuned...
Four years after the trust was created, Monroe, acting in her capacity as agent, amended the trust to 1) make it irrevocable, 2) to name herself and Kosmann as co-trustees, 3) provide Seamans with a specific fixed distribution, and 3) provide that if Monroe were to predecease her mother, her share (essentially the balance of the trust less a small specific distribution) was to go to the then "acting" trustee, presumably meaning Kosmann.
At the time these changes were made, Brown was in a memory care unit of a nursing home and the bills were being paid from the trust and Monroe had been diagnosed with terminal brain cancer. Monroe died about six months later, leaving Kosmann as the sole trustee. Kosmann by her counsel instructed the nursing home to stop billing the trust, indicating that Seamans would thereafter be responsible for the cost of her aunt's care.
Seamans, acting as agent under the power-of-attorney, brought the present action to challenge the changes made to the trust by Monroe, asserting that they were in violation of a provision in the trust as originally executed. She sought removal of Kosmann as trustee, an accounting and control of the trust as the successor trustee under the original form of the trust.
The circuit court found that Monroe's actions violated a provision of the trust prohibiting alteration of the trust by an exercise of a "general power of appointment." As defined by Code § 64.2-701 a “[g]eneral power of appointment” to “mean[] a power of appointment exercisable in favor of a powerholder, the powerholder’s estate, a creditor of the powerholder, or a creditor of the powerholder’s estate.” Kosmann appealed.
The Court of Appeals, Judge Callins, joined by Judges Athey and Causey, affirm the judgment. The opinion has an excellent discussion of the concept of a general power of appointment, but it is not really necessary to expound up that. It will likely be cited in any future cases involving that concept. What should be expounded on is what is not discussed in the opinion. At no point does the Court express any view, even obliquely, as to which of the parties was "in the right."
Undoubtedly, in reading this summary, you may have formed an opinion as to what the "real story" was here and decided that either Kosmann or Seamans was acting noblely and the other with some ulterior motive. That may be true -- or it simply could be that both women were acting in what they eached viewed to be the proper way with respect to their relationship to Brown and Monroe respectivelty. We don't know and we don't need to know. As the judges of the Court of Appeals and justices of the Supreme Court often have to remind counsel during oral argument, the appellate court "is not a jury" and is not really interested in the pathos of the case. Appeals are about applying the law, and in this case where the relevant facts are contained in writtend documents, the court can apply that law dispassionately without reference to the circumstances.
Roger E. McMillion, a/k/a Roger E. McMillian v. Commonwealth of Virginia involves a power that is given to the Commonwealth by Code § 19.2-386.1 et seq. The "forfietures act" permits the Commonwealtht of seek "any property is forfeited to the Commonwealth by reason of the violation of any law." Forfeiture is intended to deprive a criminal of the benefits of his crime. Of late, this process have become highly controversial in some states (including one that proudly displays a Lone Star on its flag, but will otherwise remain nameless) where forfieture has been used to enrich local governments by requiring defendants to agree not to contest the seizing of their property in exhange for having the criminal charges dismissed.
McMillian was charged with possession of a controlled substance and the Commonwealth moved to seek forfieture of "items used in substantial connection to a felonious
event involving a Schedule I/II controlled substance." Specifically the "items" were currency totaling $35,293. McMillian, who owned a legitimate business, alleged in an answer to the petition for forfieture that the funds represented proceeds of that business. In fact, he filed six answers, some going into exacting detail as to the source of the funds. But according to the Commonwealth, McMillian was in default.
Now, normally, a party is in default when they fail to file any response to an offensive pleading. But McMillian filed six responses. "Sure," said the Commowealth, "but none of those responses 'clearly set forth (i) the nature of the defendant's claim; (ii) the exact right, title or character of the ownership or interest in the property and the evidence thereof; and (iii) the reason, cause, exemption or defense he may have against the forfeiture of the property' as required by Code § 19.2-386.9, so he really hadn't answered, had he?"
The circuit court agreed that none of McMillan's answers were sufficient to meet the criteria of the statute and entered judgment for the Commonwealth. CHA-CHING! But McMillian appealed and the Court of Appeals, Judge Beales, joined by Chief Judge Decker and Judge Lorish, has snatched back the Commonwealth's payday, at least for now.
The Court notes that the circuit court's ruling raises form over substance. The trial court was, in essence, saying that a party seeking to challenge of forfeiture (which can include creditors, lienholders, coparencers and anyone else asserting a claim in the property in addition to the owner) the answer had to provide evidence of the claim, not merely notice. In making its ruling, the court had noted that McMillan had not provided any exhibits to support his allegations, but in what will undoubtedly be a frequently cited statement for this context and others, the Court of Appeals notes that "[w]hile the use of an exhibit at trial may
assist the finder of fact to determine whether [party] actually has the ownership interest that
he alleges, [the party is] not required to provide everything that he could put on at trial in his
pleadings at this stage of the litigation. Instead, [the party] needed only to provide his own
allegations in response to the . . . pleading – which would then lead to a trial."
The case will be remanded for that trial. I am curious has to how the Commonwealth that $35,293 in cash was related to a charge of simple possession. There is no indication that McMillan was a major dealer of recreational pharmaceuticals, or even a dealer at all. This case is, for me, a little to close to some of those cases in the Lone Star flagged jurisdiction where defendants carrying any amount of cash (often no more than a few hundred dollars) were "given a break" by local cops who wouldn't charge them with some offense (often unspecified) if they would agree to immeditate forfieture.
The list of cases decided by the Court of Appeals this week is impressive -- seven summary paragraphs. However, the number of cases decided is only 4 total, as 4 of the seven record numbers each getting a summary are from a consolidated appeal. Before getting to the "new" decision, we first consider the rehearing en banc of Steven Wayne Shifflett v. Commonwealth of Virginia. The original unpublished decision was released September 12, 2023 with Senior Judge Haley writing the majority with the support of Judge Chaney to reverse and remand and Judge Ortiz dissenting. Judge Ortiz authors the majority for the full Court joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, Malveaux, Athey, Fulton, Friedman, Raphael, Lorish, Callins and White. Judge Chaney is the lone dissenter (as Judge Haley, as a senior, did not sit with the en banc Court), but picks up some support for Judge Causey, who concurs in part and dissents in part. Judges AtLee and Humphreys did not participate
So what's it all about? Well, it's the latest chapter in "What the heck did the legislature mean when it revised the revocation statute?" Specifically, the issue here is whether failure to complete sex offender counseling as a condition of probation is a "technical violation" rather than a violation of a "special condition." More specifically, when Shifflett failed to complete the required counseling (and some community service hours), was he only "technically" in violation of his probation because he failed to follow the directions of his probation officer or was he in violation of a special condition.
If you are not already aware, this matters because "technical violations" are subject to strict limits on the amount of "comeback" time the court can impose on the recalcitrant probationer. Most "technicals" are subject to no active time on a first violation, and no more than 12 days on a second. But if the probation commits a"non-technical" violation, it's Katy bar the door and the court can reimpose up to the full suspended sentence.
Now at first blush, this would seem to be a simple question construction. One would think that the trial court (and the appellate court in turn) would look to the wording of the statute and the terms of the probation as set out in the sentencing order and conclude that either sex offender counseling was a "technical" requirement of the probation or it wasn't. That is, the relevant statute enumerates what is a technical violation in its first paragraph in 10 clauses. I have in prior discussions of this statute pointed out that the General Assembly somewhat missed the mark here as these violations, listed as i-x in the statute, appear on the form used to report violations of probation as 2-9, but that is an issue for another day.
So, looking at the statute, there is no "technical" violation of failing to complete sex offender counsel (or any form of counseling), so the failure to do so must be "non-technical," QED. At least that is what the first paragraph of the majority opinion seems to state. However, it takes another 14 pages to justify that conclusion. This is because the order in which the requirement for Shifflett to "enroll" in the counseling and treatment did not expressly require him to "complete" it. Thus, he argues that his failure to complete the program was not a violation of the special condition to take part, but of his probation officer's direction to complete the program successfully.
The dissenters (for Judge Causey, though concurring in much of the majority's reasoning about the statute in general, would nonetheless reverse on the facts of this case) take the view that the majority is permitting a court to delegate to much authority to the probation officer in setting terms that constitute special conditions. In simplest terms, they would apply to maximum that a trial court speaks only through its orders in setting the terms of the probation and anything that goes beyond the strict letter of the order by giving discretion, overtly or implicitly, to the probation officer to "administer" those conditions can only result in a technical violation of failure to follow the probation officer's instructions.
While I am not unsympathetic to the dissent -- for example, I do not think that a court could include as a "special condition" a requirement that the probationer "follow any special conditions as determined by the probation officer" and then rule that the failure to do so was a "non-technical" violation, here I think that the majority has the better argument that the court's order to enroll in the counseling program was not merely a requirement to fill out some paperwork. Could the order have been more explicit? Yes, and that is Judge Cuasey's well taken point. However, on balance I think another rule of construction may have better application -- the one that says a court is best situated to interpret its own orders. Here the circuit court interpreted the order as requiring Shifflett to enroll and complete the counseling.
Buck Wilson Terry, Jr. v. Commonwealth of Virginia is the shortest of the Court's four opinions this week, and like the en banc, it's a revocation appeal, so we will deal with it here very briefly because it involves a claim not raised below and the Court of Appeals' determination that Rule 5A:18's ends of justice exception does not apply. Normally, such a decision would not be published and might not even rate an opinion, but this case does get the full treatment because, well, we're still asking "What the heck did the legislature mean when it revised the revocation statute?"
After this revocation hearing, Terry realized that maybe the circuit court had misunderstood the distinction between technical and more serious transgressions of probation and should not have sentenced him to serve 18 months of his suspended sentence for mere technical violations. He contends to the Court of Appeals that this means his sentence was unlawfully imposed as the circuit court lacked jurisdiction to impose it. This argument has been raised before and has been successful when it was raised and rejected in the circuit court. The Court, Chief Judge Decker, joined by Judges O'Brien and Causey, conclude that this is not a type of jurisdictional error that results in an order being void ab initio and, thus, not bared by Rule 5A:18. Moreover, the error, if there was one, was simply an error of law which is not correctable under the ends of justice. Good luck on your habeas petition, Mr. Terry.
I refrained from diverging from the summary when I used the term "Katy bar the door" a few paragraphs up. I flatter myself to think that at least of few of the regular readers (perhaps I flatter myself that there are regular readers) of this space were disappointment when I did not wax pedantic on the origin of the phrase. Well, there is good cause for that. The origin, you see, is "obscure." There is a fanciful story that it refers to the heroic action of Catherine Douglass, a lady in waiting to Joan Beaufort, Queen consort of James I of Scotland. Supposedly, a plot to assassinate the King was hatched that included the deliberate unbarring of the door to the Royal Bed Chamber. As the assassins tried to enter the room, the lady through he arm through the cross-pieces in an effort to "bar the door". The door was forced nonetheless, breaking the lady's arm. There after she was known as "Catherine Barlass."
The trouble with this origin is that the story is virtually unknown before the late 19th century when it was recounted in a poem which included the line "Catherine bar the door." Problematically, there is no indication that Catherine was known as "Katy." Moreover, the phrase is attested to in writing prior to the publication of the poem.
It has also been suggested that the phrase and the line in the poem are both a reference to a better known Scots tale entitled "Get Up and Bar the Door," a ballad about a battle of wills between a husband and wife. But there is no extent version of the tale in which the wife is identified by name, let alone as Katy. More to the point, in the ballad, the wife wins the argument and it is she who tells the husband that he must bar the door. There is also no evidence that the phrase as anything to do with the defensive style of ice hockey called "kitty bar the door." The same strategy in soccer is called "park the bus."
And now back to our regularly scheduled programming with A.A., et al. v. J.M., et al. This is the opinion that consolidated four appeals. The case itself involves an adoption where the child being adopted is in a foreign country, and this resulted in the case have amici briefs filed by the federal government along with two NGOs. The Court of Appeals, Judge Ortiz joined by Judges Fulton and Lorish, begins by stating that "[t]his case comes before us with a lengthy procedural history, revolving primarily around four court orders. The first three of those orders awarded custody of the child, alleged to be a stateless orphan then living in Afghanistan (November 6, 2019), an interlocutory adoption order (November 10, 2019), and a final adoption order (December 3, 2020).
In 2022, relatives of the child appeared for the first time made an appearance in Virginia to contest the adoption. This was obviously more than six months after the final order, and the adoptive parents contended that the relatives' claims were thus untimely Code § 63.2-1216, which makes a final adoption not subject to challenge after six months. The circuit court denied the adoptive parents' plea in bar and ultimately ruled that the relatives were not barred from challenging the adoption because they were at the time the de facto parents of the child and had not been provided proper notice.
The child was an infant, severely wounded in an attack that also killed the child's parents. The US military alleged that the parents were "non-Afghan terrorists" killed when the mother attempted to commit a suicide bombing on US troops. The relatives asserted the parents were farmers killed in an American airstrike. The child's adoption was the result of a US service member seeking to adopt the child and have her brought to the US for medical treatment.
Shortly after the interlocutory adoption order was entered, the International Red Cross was able to successfully identify the relatives of the child and the child was turned over to the Afghan government for placement with the relatives. The adoptive parents sought to enjoin the transfer in federal court proceedings. As the child remained in Afghanistan, proceedings in the US were delayed and ultimately the matter was determined to be outside the court's jurisdiction. Nonetheless, the adoptive parents continued the proceedings in the state court and were granted the final adoption, even as physical custody of the child was given to the relatives in Afghanistan.
At this point, the case veers out of the realm of legal proceedings and into that of international politics. The adoptive parents sought assistance from political sources, including the Office of Vice President Pence.
In what will undoubtedly not be the last chapter of this story, the Court of Appeals determined that the Virginia Courts never had jurisdiction to enter any of the orders regarding the adoption, and as these orders were this "void ab initio," the court properly vacated the final adoption in 2023. This ruling, however, does not even end the case should the adoptive parents elect not to seek review in the Supreme Court, as the matter of the custody and adoption of the child remains ongoing in the circuit court as the child is now subject to the jurisdiction of the Virginia Courts by virtue of her presence in the US. The Afghan relatives are seeking custody and adoption, which the American adoptive parents are free to challenge as interested parties.
Finally we come to The Episcopal Diocese of Southern Virginia, et al. v. Robert K. Marshall, et al. As mentioned in the post's heading, this is a separation of church and state case. More specifically, it involves the application of the ecclesiastical-abstention doctrine, which basically says that the secular courts should not get involved in doctrinal squabbles. The doctrinal squabble here is of a less than saintly nature, as it involves the allegations of "sexual misconduct" by a former Episcopal priest. The priest alleged that the allegations, which were revealed to his congregations along with the assertion that he had admitted to the behavior, was defamatory per se, and sued the Bishop, the diocese and the national church.
The opinion describes the conduct which is not nearly so squalid as most folks would assume when hearing that a priest committed "sexual misconduct." But, that phrase, as you might guess, has a much broader term under canon law than under the civil law. There in lies the rub of whether the circuit court erred in ruling that the civil authority could judge whether the ecclesiastical statements on the case could be defamatory in a civil context and allowed the suit to proceed. The court, however, wisely recognized that this would be a controversial decision and permitted the matter the be brought by interlocutory appeal.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, finds that the ecclesiastical-abstention doctrine bars the suit. The reasoning is fairly straightforward -- whether any of the priest's actions rose to the level of "sexual misconduct" that a normal person would conclude was illegal -- the requirement for defamation per se -- was not the issue. Rather, the issue was whether the civil authority could hold a church and its representatives to the civil standard when their judgment was that the priest had committed a violation of canon law. This would necessarily, and impermissibly, involve the court in matters of church doctrine.