The last day of April saw two new published opinions for the Court of Appeals. Dawn Lewis Williams v. Commonwealth of Virginia is not, despite its name, a criminal appeal. While Williams was at some point convicted of a crime and remanded to the Custody of the Virginia Department of Corrections, this is not an appeal of that conviction, but rather an appeal of a denial of her claim under the Virginia Tort Claims Act for an injury she suffered while in the custody for that conviction. The action was brought originally while she was still in prison, but was nonsuited and refiled after she was released. The issue in the circuit court and on appeal was whether Williams was required to "exaust administrative remedies" within the VDOC system before filing her claim.
Because this case is almost certainly headed for en banc review and then to the Supreme Court, I will not keep you in suspense by going through the, frankly, superfluous nature of Williams claim. This is a meat and potatoes issue of statutory construction and the circuit court and one judge of the Court of Appeals panel read that statute to require any person claiming an injury while a prisoner to exhaust administrative in the VDOC system before filing a claim with under the VTCA. Unfortunately for the Commonwealth, two other judges, Judge Lorish, who wrote the opinion joined by Judge Ortiz, read the statute as requiring a prisoner who is in the custody of the VDOC to exhaust administrative remedies before filing under the VTCA.
When Williams filed the original suit, she was in custody and the majority would have tossed her case. But, they point out that after nonsuiting that case, she was not in custody when she filed the new action, and as a "non-prisoner" she had no administrative remedies to exhaust.
Judge AtLee, the dissenter, sees it differently. He says that the duty to assert exhaustion of remedies arises not when the suit is file, but when the notice of claim is sent to the Commonwealth. In this case, Williams' notice of claim was filed prior to the first suit, while she was still a prisoner. Since her suit filed after her release relates back to that original notice of claim, the suit is barred even though she was no longer in a position to seek administrative remedies.
My sympathies are with the majority, but logic seems to favor the dissent. I fully expect the Commonwealth to seek a rehearing en banc and regardless of the outcome of that effort, I suspect an appeal to the Supreme Court is inevitable.
Michael R. Agnew, et al. v. United Leasing Corporation is notable mostly because it shows the extreme lengths that some people will go to avoid paying a debt. In 2000, the Agnews entered into a forbearance agreement with United Leasing; the opinion tells us very little about the debt that was at issue other than it involved several leases and a promissory note. As part of the agreement the Agnews consented to a confessed judgment that included a lien against property they owned in Virginia Beach, and from the looks of it, a very nice property on Linkhorn Bay.
This Google Streetview picture really does not do the property justice. The see just how nice (and expensive) the property listing is, check out its listing on Zillow.
Here is a bonus fact not recounted in the opinion, but which you might find interesting. In 2007 the Agnews sought an injunction in the Circuit Court of Virginia Beach, which was refused as was their appeal of this decision to the Surpeme Court. This was the first of five appeals filed in the Supreme Court, the others following in 2010, 2020, 2021, and 2022. The last of these is the present case, which was transferred to the Court of Appeals because, it would seem, the Agnews and the counsel were not aware of the change in appellate jurisdiction for civil appeals. However, that puts us well ahead of the timeline.
By April 2008, the Agnews had "not paid the full amount they owed under the confessed judgment." United Leasing filed suit to enforce the lien on the property and the court order the property sold by a commissioner. In an effort to stop the sale, the Agnews tried to have the judgment set aside. It was October of 2010 before the court disposed of that effort.
For reasons not revealed in the opinion it took until 2013 for the commissioner to determine that the property should be sold at public auction. It took another year for the court to approve that. The Agnews, however, then filed for bankruptcy, which automatically stayed the sale three days prior to the auction.
In the bankruptcy proceeding, the Agnews raised "the same challenges to the confessed judgment they had raised in the circuit court in 2009. This effort was dismissed and on appeal to the 4th Circuit Court of Appeals their claims were described as "simply meritless." The bankruptcy was concluded in 2017 and the state court ordered the sale by auction to proceed.
The Agnews tried to stop the sale by filing a motion for reconsideration of the order or sale, raising the issues already rejected by the court earlier and by the federal court as "simply meritless." United Leasing responded with a plea in bar of res judicata. The court, naturally, agreed.
The property was final put under the gavel on March 9, 2021. I will do the math for you. this was 11 years and 11 months since United Leasing first sought to enforce its lien. And, of course, that was the end of the story. The Agnews realized that they could not avoid paying their just debts and accepted the sale with grace.
Nah, I just fooling. The sought to challenge the confirmation of the sale. The circuit court issued a letter opinion and order which likely explained in detail just how wrong the Agnews were and approved the sale. And the Agnews . . . wait for it . . . filed a "Motions to Set Aside Sale and Dismiss." This was based on the alleged failure of the purchaser to complete the sale within 21 days after it was confirmed. The court again by a letter opinion and order -- and again we can hope that this letter contained some choice language about how wrong the Agnews were -- overruling the motion.
Which brings us to the Court of Appeals opinion written by Judge Malveaux in which she is joined by Judge Raphael and Senior Judge Petty, because the Agnews appealed. The opinion is 19 pages long, 15 pages of which are a detailed explanation of why the Agnews' arguments are, to borrow a phrase for the federal court, "simply meritless."
To be fair, the arguments were not so much meritless as merely wholly inapplicable to the facts of this particular case. The Agnews were using good laws that are intended to be a shield against unduly hasty judicial sales as a sword to attack a creditor who was fully entitled to enforce a lien of a debt that was incurred a quarter of a century ago.
I would love to be able to end this summary by telling you that, apart from the likely petition for rehearing/rehearing en banc and petition for appeal the the Supreme Court (which will be refused -- I guarantee it), the Agnews are done clogging the courts with their childish effort to avoid paying their debts and trying to regain either their bayfront house or money damages. Unfortunately, I cannot tell you that. There is already another appeal pending in the Court of Appeals and there are at least two, and I suspect more, cases still pending in the circuit court one of which appears to be a malpractice action against one of their former attorneys.
There is a final, sad coda to this tale. The attorney who represented the Agnews in much of the proceedings outlined above was suspended by the Virginia State Bar for impairment earlier this year. The attorney in question practiced law in the Commonwealth for over 30 years, during which time he enjoyed success in the trial and appellate courts of both the Commonwealth and the Federal jurisdictions. However, in recent years his involvement with increasingly controversial cases involving allegations of conspiracies in the media, and his attention to his practice became lax. This resulted in several contempt sanctions and a bar investigation which resulted in a public reprimand with terms in 2022. For over a decade, the Virginia Supreme Court's Attorney Wellness issue has stressed the need for greater attention to the mental health of members of the bench and bar. It is a lesson that still needs to be repeated and taken to heart.
The Court of Appeals issued just four published opinion over the last three weeks -- as many as were released on April 2 of this year. During that same period, the Court released 47 unpublished opinions. Taken this admittedly unscientific sample, that means the Court is published only about 8% of its opinion. Your Humble Correspondent has been remiss in collecting data on the Court's opinions, and promises to do better in the future. However, this particular statistic has a personal meaning for YHC, because one of those unpublished opinions happened to be a case in which he represented the appellant and received a positive result.
The case involved a claim that a personal injury suit had been settled because the plaintiff had entered into a settlement with a secondary insurer that had tendered policy limits. As proof of the settlement, the defendant offered a document which an "illegible document." This is the document:
I think you will agree that "illegible" is a charitable description. In fairness to the defendant, a very close examination of the physical document showed gray-ish streaks that were once text. In an effort to prove the content of the document, the defendant sought to introduce a document that was "in the same format" as the illegible document. The plaintiff objected that this was improper parol evidence. The circuit court admitted the document and used it to interpret the terms of the "settlement." In doing so, the court found that despite repeated statements made to by the plaintiff's attorney that there was no intent to release the defendant and that plaintiff would not agree to the settlement if it did so, the plaintiff either agreed to the settlement or his attorney had the apparent authority to do so.
On appeal, the principal argument was that the circuit court erred in permitting parol evidence to prove the content of a document that was illegible. It is perhaps important to note that while the document was obviously a copy (indeed, it was likely a copy of a fax that had been copied and then faxed or scanned and emailed as it went from carrier to plaintiff's attorney, to the plaintiff, back to the attorney, back to the carrier, and eventually to the defendant's counsel), for the purposes of this case it was an "original" document. The objection was not that the copy was not the best evidence, but rather that its content was not provable by parol evidence. Thus, while the case might be analogized to a "lost document" case, the exhibit had not been offered to prove the content of the original but as the actual release of the claim. Whether an illegible document can be proved by parol evidence was an issue of first impression in Virginia.
The Court of Appeals, Judge O'Brien joined by Judges Fulton and Callins, held that like a lost document case, proof of an illegible writing was subject to a higher standard, with that standard being based on the value of the writing to be proved. The Court concluded that despite being an issue of first impression, the case did not warrant announcing a new standard because it found that the evidence failed to establish that the appellee (the movant for dismissal on a plea in bar) had met its burden of proof by even a preponderance, so while a future case might requiring finding that the appellee had a higher burden, it was not necessary to determine what that standard would be, thus the opinion was not worthy of publication.
On April 9, the Court of Appeals released its opinion in Doris Williams v. Carl Boggess, Esquire In this Capacity as Agent for Margarett Ward. Whenever an attorney is a party to a lawsuit, especially and appeal, members of the bar take note because these cases are often instructive on issues that can arise in the practice of law (and, hopefully how to avoid them). The attorney in this case was names as agent in a durable power of attorney for Ward. Williams, Ward's niece, filed a suit alleging that the attorney had mismanaged Ward's estate and sought an accounting. The attorney opposed the accounting on the ground that Williams lacked standing and that Ward was a very private person who did not wish others to know about her dealings.
Now I will interject here that although he practices in relatively close proximity to the Virginia Appellate Lawyer's secret lair in Roanoke, I do not know the attorney in question personally. But I do know that he is a prominent figure in his community, having served as Bedford County attorney and the County Administrator for 16 years prior to his retirement in 2018. He continues to serve the community as attorney for the Board of Zoning Appeals and serves on the board of Directors of the Lynchburg Community Foundation among other civic activities. He is an attorney in good standing with the state bar and has no disciplinary record. None of these facts, of course, excludes the possibility that he might have mismanaged Ward's estate, but when such an accusation is made, the character of the attorney against whom it is made is a factor to consider before jumping to any conclusions.
The circuit court denied Williams' petition as insufficient to state a cause for granting a petition for an accounting but allowing her to amend. While the amended petition was pending, Ward died. The opinion does not state whether Williams was a legatee, intestate heir or otherwise had some role in her Aunt's estate, whereas the attorney had qualified as administrator of the estate.
The circuit court ultimately concluded that Williams had standing to seek the accounting, but ruled that her basis for doing so amounted to a "fishing expedition" as there were not allegations beyond mere assertions of mismanagement to give rise to a need for an accounting.
On Appeal, the Court of Appeals, Judge Lorish joined by Judges Friedman and Chaney, affirm. The decision to grant or deny a request for an accounting from an agent-in-fact is committed to the sound discretion of the trial court and the Court finds no abuse of that discretion.
There are two aspects of this appeal that give me pause. First, is the assumption that Williams had standing merely because of a blood relationship. I do not question that Williams was a dutiful niece, through the opinion gives no information about the nature of her relationship with Ward, but I question whether in every case a cross-lineal relationship without more would be sufficient to provide standing to seek an accounting.
Second, it is troubling in a generic sense, rather than specifically in this case, that as the Court noted, an administrator of an estate who was also the agent-in-fact of the decedent in life, is the only party with standing to demand an accounting on behalf of the estate. Certainly, this is not an unexpected situation, but it does create the specter of a conflict of interest. A check of the VCCI database revealed that (at least as of yet) Williams has not filed an action to remove the attorney as administrator of the estate.
Cenk Sidar v. Jane Doe, the only published opinion released on April 9, is of particular interest to appellate procedure geeks such as YHC as it involves the little used Rule 1:1A, which permits an appellee to seek attorney fees and costs if the “final appellate judgment [is] favorable to [the] appellee" provided that the "prevailing appellee . . . has recovered attorney fees, costs or both in the circuit court pursuant to a contract, statute or other applicable law." This is an exception to the American Rule that the parties are responsible for their costs on appeal as well as in the trial court, and therefore is strictly construed. The request for fees must be filed within 30 days of the appellate judgment.
The original suit was filed by Doe alleging "several egregious torts" by Sidar. In the coruse of those proceedings, Sidar sought a dismissal for lack of personal jurisdiction, which the trial court found to be lacking any "legitimate basis in either fact or law." The court imposed a significant sanction under Code § 8.01-271.1 which it characterized as an award of attorney's fees. Doe then nonsuited the case.
Sidar appealed the sanction award to the Supreme Court (the case pre-dates the shift in appellate jurisdiction for civil cases), which refused the petition. When Doe tried to file her request for attorney's fees under Rule 1:1A shortly before the 30 days for doing so would run, the clerk of the trial court refused it, asserting that because the clerk had not received the order refusing the appeal from the Supreme Court, the petition was not proper. Doe subsequently filed the request after the order was received by the clerk of the trial court, which was well outside to the 30 days. Over Sidar's objection that the request was not timely, the court awarded additional fees to Doe.
The Court of Appeals, senior Judge Haley joined by Chief Judge Decker and Judge AtLee, reverse and dismiss. This case involves the distinction between a case decided on appeal by order and one decided by an opinion. In the latter case, the court's opinion is not actually the judgment of the court, which comes later in the form of a "mandate," an order enforcing the opinion. Here, because the petition was refused by an order, there was no need for a mandate.
When a case is complete in the Supreme Court or the Court of Appeals, the record is not immediately returned because there remains the possibility of a petition for rehearing or further appeal. This does not mean that the judgment of the Court is not final. Here the order disposed of the appeal and, thus, left nothing for the Court to do, making it a final order. The returning of the record was merely an administrative function of the Clerk of the Supreme Court.
The Court recognizes that the real problem here was the clerk's refusal to accept the request for fees. The clerk, or almost certainly a deputy clerk, who did that was clearly in the wrong. The job of the clerk is to accept filings, not to determine their validity or ripeness. Doe's attorney should have insisted that the clerk accept the filing, however, as it was the attorney's duty to preserve his client's right to the potential award of attorney's fees.
This is a harsh result, and I would expect Doe to seek review by the Supreme Court.
J&R Enterprises, et al. v. Ware Creek Real Estate Corp., et al. is one of two opinions released on April 23, 2024. It's also the shortest opinion of the ones discussed in this post and starts with a very exact statement of law, "An adverse witness’s testimony may not bind a calling party if it is inherently incredible." Like Sidar, the procedural history of this case involves a prior suit that was appealed to the Supreme Court back in the days when that court was the proper place to file a civil appeal. That underlying suit involved an award of contract damages which the Supreme Court reversed and, because the contact had a fee shifting clause, the case was remanded for a determination of attorney's fees.
The circuit court awarded fees against the plaintiffs, which were corporate entities with insufficient assets to pay the award. The defendants then filed the present action in an effort to pierce the corporate veils and recover the award from the principal of the corporations. The defendants, who were now the plaintiffs in the present action, called principal as their only witness and the court permitted them treat him as adverse.
The issue was whether the principal had used corporate assets for personal expenses. The plaintiffs had credit card statements for cards issued to the corporations which showed purchases that most people would consider personal expenditure -- restaurants, medical procedures, jewelry, taxes on personal and real property of the principal, etc. In his testimony, however, the principal "struggled to recall most details about the purchases, though he often maintained that they were indeed legitimate business expenses. He insisted that—although WCRE and WCBC had not earned profits since 2017 and 2018 respectively, had no other employees, nor performed work for any customers at the time—any and all expenses were business related and not personal."
The circuit court found this testimony hard to swallow, calling it inherently incredible. Nonetheless, the court found that the plaintiffs were bound by the testimony and the documentary evidence was not sufficient to rebut the claim that the expenses were not personal.
The Court of Appeals, Judge Ortiz joined by Chief Judge Decker and Judge Fulton. reverses and remands the case for a reexamination of the evidence. The Court holds that while a party who calls an adverse witness is bound by that witness' testimony, a court cannot rely on inherently incredible testimony to reach its judgment in favor of that evidence. However, because the court also should not reject testimony "globally," the court on remand will need to specify what elements of the testimony are incredible and, assuming any testimony remains to be considered, determine whether there is sufficient ground to find that the corporate veil can be pierced.
One notable point of this opinion is that when testimony is rejected as incredible, it cannot be used discredit other evidence. In effect, the rule is that such testimony is struck from the record as if it had never been received by the court. The court must base its judgment on whatever remains. This being the case, it is by no means certain that on remand the trial court will determine that the plaintiffs have met their burden, as the court already found that the documentary evidence was not sufficient.
The other case decided April 23, 2024 is Arturo Barnes v. Commonwealth of Virginia, a criminal case that involves the unusual circumstance of a jury returning verdicts that seem at odds with the evidence in that they acquitted Barnes of two serious felonies by convicted him of four lesser crimes based on the same evidence. If you familiar with the assertion on inconsistent jury verdicts being grounds for reversal, you know that the usual response from the appellate court is, "we don't piece the veil of the jury room to determine how the jury reached its verdict."
The fact is that a jury can nullify in a case where there are multiple charges arising from the same conduct. It can do so for many reasons including wanting to show mercy to the defendant, seeking a compromise to get a unanimous verdict, or, yes, sheer incompetence of not understanding the judge's instructions as to the elements of the offense or the burden of proof.
Before reaching the merits of the case, the Court of Appeals, Judge Callins joined by Judges Athey and Causey, must first explain why Barnes' first assignment of error is barred. Barnes assigned error to the "jury" reaching inconsistent verdicts. Jury's do not issue the orders in the trial courts, that's the judge's job. Thus, on appeal, where the assignment of error must be directed to an action of the court -- in this case the court's confirming of the jury's verdict -- an assignment of error alleging that the jury erred is not cognizable.
If this seems picayune, consider whether the Court would be able to consider an assignment of error in a direct appeal that alleged error by a bailiff for failing to provide copies of the jury instructions to the jury or answering a jury inquiry rather than bringing it to the judge. If the discovered during the deliberations, the defendant would need to ask the court to rule on whether this was grounds for a mistrial, rather than waiting until the appeal.
In any case, Barnes did assign error to the trial court's failure to set aside the verdict, so the merits can be reached. And then the Court naturally said that inconsistency in jury verdicts is not grounds for reversal.
The Court of Appeals issued its first opinions of Spring over the last two weeks. The first case we summarize will possibly have you feeling a sneeze coming on as the pollen and grass mold fills the air. Several of these opinions also provide lessons in procedural default, which continues to be an issue despite countless CLEs on how to avoid it.
City of Richmond v. Property Ventures, Inc. (April 2, 2024) involves the power of a local government to seek abatement of a nuisance and charge the property owner for the cost of the abatement. In this case, the property owner failed to keep undeveloped property neatly mowed including a publicly owned right-of-way adjoining the property. When the assessments were unpaid, Richmond sought to force a judicial sale of the land.
In the circuit court, the property owner alleged that the City had no power to require it to maintain the adjoining publicly owned property and further that it had not proved that the property's condition was actually in violation of the relevant ordinance. The court agreed on both counts and dismissed the suit.
On appeal, Richmond wins a partial victory, but loses the battle nonetheless. The Court of Appeals, Judge Ortiz joined by Chief Judge Decker and Judge Fulton, agree with the city that it can require maintenance of private property under Code § 15.2-901(A)(3), but not public property adjoining it. However, the city's charter includes a specific provision that it can "compel the removal of weeds from private and public property" and this authority is supported by Code § 15.2-1115.
Now we pause here to consider a footnote in the opinion which your humble correspondent was heartened to see because, prior to looking at the footnote, he was thinking "WTF? A local government can compel a private land owner to maintain public property? Just how far does that power extend? Can the government make me mow a park that happend to adjoing my backyard?"
Well, the Court apparently had the same reaction, and in a footnote indicates that, well, not to put to fine a point on it . . . Yes. Now that probably does not still well with you, and it apparently raised some concern for the Court, which noted that the property owner here did not "raise any constitutional concerns with this broad power, and thus we do not consider the constitutional implications here." In appellate practice we call this a BIG HINT that the Court would have considered those implications had they been raised . . . and may be the next time this issue comes up, the appellant will raise them.
Getting back to the opinion now, it seems that maybe Richmond was cruising to a reversal, but wait. The circuit court also ruled that, to the extent the city could require the owner to maintain the property in a weed-free (or at least neatly trimmed if weedy) condition, the City had not proved that the owner had in fact not done so.
The city apparently got a bit clever and invited the Court of Appeals to "get into the weeds" quite literally by reviewing the evidence and finding that there were sufficient grounds to find that the property had been improperly maintained. However, the Court declines to step into the role of factfinder, and gives deference to the trial court's finding that the evidence was insufficient.
The city had one last argument that the dismissal was improper. It seems that the judicial sale was based on non-payment of taxes and other assessments, not just the nuisance abatement charges. Unfortunately, the city failed to raised this as a basis for not dismissing the case in the trial court and is barred from doing so on appeal.
Jeremie Davis v. Wal-Mart Associates, Inc., et al (April 2, 2024) is a Workers' Compensation appeal which involves two issues of causation. First, Davis asserts that the Commission erred in finding that that he did not sustain an injury by accident in that he did not prove a structural or mechanical change in his body and further that his injury was a ‘predictable consequence of his voluntary defiance’ of medical restrictions.
The first issue is one that comes up quite often when an employee has an existing condition that is not work related and experiences an episode while working. In this case, Davis had a history of back trouble and three prior surgeries. While working as a stocker at Wal-Mart, Davis "felt a sharp pain in the middle of his back." Medical examination, however, did not reveal any noticeable change in his existing condition. Subsequent medical opinion confirmed that his condition was essentially unchanged. The second issue was whether Davis was working in a contrary medical restrictions -- in fact, it appears he was not to be working at all.
Because there was no contrary expert testimony that Davis suffered a structural or mechanical change as a result of his work, the Commission found that there was no basis for making an award. Because there was no award to be made, the Commission didn't reach the issue of whether Davies was working outside of medical restrictions.
The Court of Appeals, Judge Beales joined by Judges O'Brien and Raphael, have no difficulty with the first issue -- there simply was no evidence to establish that Davis had suffered a work related injury. His back hurt because he had a bad back, not because something "snapped" while he was bending and stooping for his job.
The second issue is even less problematic, but not because the Commission didn't reach it. Rather, the problem is that Davis' assignment of error was worded as is the Commission had reached the issue and decided it against him. That's not what happened, and thus both the assignment of error and the argument are procedurally barred.
Mark Kyle Chaphe v. William Carson Skeens, et al (April 2, 2024) involves a close-relative adoption. The Skeenses as the maternal grandparents of Chaphe's three children. Their mother, the Skeenses' daughter, separately appealed the order permitting her parents to adopt the children, and that appeal was decided by a per curiam unpublished decision released with this case.
This is, as almost all such cases are, a tragic result arising from tragic circumstances. In 2015, Chaphe was driving under the influence when he caused an accident. The mother and two of the children were in the car at the time. The two children were subsequently placed by Social Services with a family friend, but were sexually abused while in that person's care.
The children were returned to the parents' custody and the third child was born in 2016. Late in 2017, Chaphe was incarcerated after failing to complete a drug court program and the mother voluntarily gave custody the oldest child to her parents. Subsequently, the other two children were left in the care of another family friend for several months and Social Services intervened again, with these children also going into the custody of the grandparents. Mother was experiencing criminal legal issue of her own during this time.
Over the next several years, the grandparents cared for the children, two of whom had special needs. Chaphe sought to obtain custody when released from jail, but failed to attend the hearing on his petition and subsequently was re-incarcerated when he again violated probation.
The grandparents petitioned for adoption, and both parents opposed. The law concerning adoption of abandoned children requires parental consent in the parent had made an effort to maintain contact with the children during the six-months prior to the petition being filed. However, the court can find that the consent is unreasonably withheld if the adoption is in the child's best interest.
Here, the Court found that the grandparents had provided a stable, appropriate home for the children, while neither parent had been able to do so and likely would not be able to do so in the foreseeable future. The grandparents agreed that even if his parental rights were terminated, Chaphe could maintain a relationship with the children. The circuit court concluded that the adoption was in the children's best interest.
The Court of Appeals, Judge O'Brien joined by Judges Beales and Raphael, affirm. Five of the assignments of error address factual findings of the circuit court and are dealt with under the standard of review deferring to the court as factfinder. The last assignment of error asserts that the statute permitting adoption of a child over the parent's objection violates due process because it fails to consider whether the parent, though having surrendered physical custody of the child was nonetheless sufficiently involved in the child's upbringing to negate the claim of abandonment. The Court concludes that the statutory factors, which take into consideration both the needs of the child and the actions of the parent, satisfy due process in this regard.
Lawrence McNally v. Virginia Department of Motor Vehicles (March 26, 2024) is a state employee grievance appeal. When a public employee is terminated from employment, they can pursue an administrative process to challenge the firing and eventually take their case into the circuit court. However, the administrative process is given deference with respect to factual findings and interpretation of the agency's employment rules. The circuit court is thus acting in a appellate jurisdiction. McNally challenged his dismissal after two incidents -- one job-related and one related to his having lied to a fire marshal about an incident involving a controlled burn on his own property.
There are a few additional facts including that McNally was hired by a supervisor with the DMV after the two had meet at a civic club and the two later became close friends. The supervisor thus knew more about McNally than he would about a typical employee, and this became a factor in whether the incidents were legitimate bases for the dismissal. Ultimately, the hearing officer concluded that notwithstanding (and perhaps despite) the personal relationship, McNally's termination was justified.
As mention, when the circuit court takes on a review of grievance case, it does so in an appellate capacity. To get around the deferential review standard, McNally couched his argument in the guise of a denial of due process. The circuit court, however, did not see it that way, and found the hearing officer's judgment was correct.
The Court of Appeals, Judge Raphael joined by Judges Beales and O'Brien, agree with the circuit court that McNally failed to show hearing officer violated constitutionally protected guarantees and that the substance of his alleged due process claims were challenges to factual, procedural, and policy elements of hearing officer’s decision. While this is a fairly straightforward result, it takes the Court 31 pages to work through the analysis . . . which is just further proof that I am justified in my loathing of administrative law.
We round out the cases in the post with the only published criminal appeal, Christopher Pompell v. Commonwealth of Virginia (March 26, 2024). Pompell involves the amendment of an indictment from a felony to a misdemeanor. Now normally a defendant would be thrilled to have a misdemeanor, rather than a felony. But in this case, Pompell wanted more (or rather less).
The original charge was felony breaking and entering with the intent to commit assault and battery, which the Commonwealth sought to reduce to unlawful entry. Pompell's attorney was quick to not that unlawful entry is not a lesser included offense of B&E and, as the amendment had been proffered more than a year from the offense date, was outside the statute of limitations for commencing a misdemeanor prosecution. The Commonwealth argued and the circuit court agreed that while not a lesser included offense, the amendment was proper because the amendment did not change the “nature and circumstances of the acts charged” in the original indictment. Pompell entered an Alford plea preserving his right to appeal this issue.
The Court of Appeals, Judge O'Brien joined by Judges Beales and Raphael, affrrm. Unlike the 31 page administrative law appeal released the same day, this lovely single-issue criminal appeals clocks in at just over 7 pages. In doing so, the Court clarifies that a prior case which involved the amendment of a felony to a lesser included misdemeanor offense held that the amendment would violate the misdemeanor statute of limitations if the original indictment had been brought after the one year statute of limitations. This decision, however, did not alter the law concerning amendments of indictments, which are permitted so long as the change does not alter the character to the offense such that the defendant would not have been given notice of the new charge from the prior allegations. Here, although unlawful entry is not a lesser offense of breaking and entering, it is of the same character in that it is an offense against habitation.