When I started this “Blawg” I indicated that I would leave the analysis of Supreme Court of Virginia Opinions to my friend Steve Emmert, and I have mostly done so. I did say, however, that I would occasionally comment on cases of particular interest or import, and I think today’s decision in City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson is just such an occasion. I have already seen more than few comments on news websites condemning the decision as judicial activism, which it is most certainly not. My commentary will be directed to those who believe that it is and, hopefully, I can explain to those who are willing to receive such explanation and stumble across my words, why.
You may have noticed that I have not said what the Court decided or how it reached that decision – and in fact, I do not intend to do so. By now you have undoubtedly read news stories reporting the result – and fumed or cheered. As my stated purpose is not to defend the decision, but to explain why it is not a case of judicial activism, the Court’s decision is, in fact, irrelevant.
The phrase judicial activism appears to have been coined by the American historian Arthur M. Schlesinger, Jr., in a 1947 article in Fortune. For Schlesinger, judicial activism was simply the willingness of a judge or multi-judge court to use constitutional review to invalidate legislative or executive action. In Schlesinger’s view, this was neither a good thing nor a bad thing, it was simple the jurisprudential method of certain judges.
As a form of jurisprudence, activism is simply the antonym of restraint. It is not pejorative, and studies suggest that it does not have a consistent political valence. Both liberal and conservative judges may be activist in this sense, though conservative judges have been more likely to invalidate federal laws and liberals more likely to strike down those of the states.
I will not, however, confine my discussion to this academic definition. Rather, it is my contention that judicial activism as used in modern discourse has taken on a broader, and decidedly pejorative, meaning and is almost always associated with the actions of judges viewed to on the left end of the political spectrum, and more frequently against judges of known conservative views when their ruling run contrary to accept conservative dogma. In a sense, the term as come to be synonymous with the accusation that a court is usurping the proper function of the elected branches by “legislating from the bench.” It is this definition that I have seen applied to Payne (though Payne is the correct short form of the case, I predict that the decision will be popular called City of Charlottesville going forward).
So, how is it that Payne is not judicial activism in this sense? That is easy to explain. To legislate from the bench, a Court must say that a statute does not say what it plainly does, but something else entirely. In Payne, the unanimous court (a point that I will come to shortly) does the exact opposite. The Court says that Code §§ 15.2-1812 and -1812.1 must be read exactly as written by the General Assembly and interpreted using the rules of construction that were and are well known to the legislature. Those rules require the courts to give the words of statutes: 1) their plain and ordinary meaning, 2) to add nothing to those words nor take any words out, and 3) to not consider anything but the statute (and related statutes, for example definitional sections. There is also one other particularly important rule: all statutes are presumed to be prospectively applied, that is only to actions that occur after their enactment, and not retrospectively unless there is express language in the statute which directs otherwise.
This last rule is what makes Payne decidedly not judicial activism. The relevant code sections were enacted in 1997. Prior to that date, there was no specific legislation that authorized the building of war monuments by local governments and likewise no statute about removing such monuments by cities (there was a different statute that applied to counties, but that statute does not apply because the locality here is a city). In drafting and passing this new legislation, the General Assembly grants the authority to erect such monuments and thereafter not to disturb them. In doing so, all the language of the statutes clearly speaks to future actions by local governments. Nowhere in the statutes is anything said about monuments existing prior to the enactment of the new law.
The principal accusation made by those asserting that this interpretation amounts to judicial activism assert that regardless of the absence of language of retrospective application in the legislation, because it was proposed and passed by a legislature control by the Republican Party and signed into law by a Republican governor, the clear intent was to have the law apply to existing monuments honoring the military heroes and fallen martyrs of all wars (but especially the War Against Northern Aggression). And therein lies the rub – even assuming – even conceding – that this was the intent of the proponents of the legislation, courts are not permitted to interpret laws based on the intention of the those who drafted them, but only on what they wrote.
While the Court concedes that the statute “could be clearer,” there is simply no question that had the legislature intended for the new code to apply to existing statutes, monuments, and the like, it could have done so by adding language that made the law apply retrospectively. Although the statute does not expressly say that it applies only to new monuments, there is language which clearly contemplates that the localities “may” do so, not that they “already have done so.”
Now let me turn to an issue alluded to earlier – that this is a unanimous decision. The opinion was authored by Justice Bernard Goodwyn, and several of the comments criticizing the opinion are directed at Justice Goodwyn’s reputation as a liberal (and not a few of these make veiled or even direct references to his race being a factor in the result of “his” opinion). But it is not “his” opinion. It is the opinion of all seven active members of the Court.
If one were foolhardy enough to engage in the labeling of members of the Court by political persuasion, it would be fair to say that Justice Goodwyn is of a liberal mindset as is Justice Cleo Powell; if there is a centrist member of the Court, it is Justice William C. Mims; but the remaining four Justices are most decidedly conservative in background and judicial temperament. Chief Justice Donald Lemons, and Justices Kelsey, McCullough and Chafin have impeccable credentials as jurists with a restraint as their watchword. The idea that somehow all four of these Justices would join this opinion if it had any taint of activism or judicial legislating is risible. Quite the contrary, I am persuaded that they joined the opinion precisely because it used traditional, and restrained, rules of statutory interpretation to apply the law as written.
Had an opinion be drafted reversing the judgment in Payne on the ground that “removal of the statues is the right thing to do, the law be damned,” that would have been judicial activism and I seriously doubt any member of the Court would have even considered drafting such an opinion.
So, you may not like the result, but if so, do not accuse the Court of activism or “intellectual dishonesty.” If you want someone to blame, go to the archives and look up the names of the legislators who proposed the legislation (though they most certainly didn’t draft it – a mundane task that is always left to staff), review its history in the legislature. You will likely find that the legislation was not studied intently – I would be willing to wager than the majority of those who vote for and against it never bothered to read its text. Unlike the Court, they were content to “assume” the law said what its proponents intended it to, which I concede was to protect all monuments on public ground honoring the participants in America’s wars – but especially the Civil War. But the Court cannot assume, it must read the law and it must apply it as written – even when badly written.
Yesterday, the Court of Appeals issued its first published opinion in three weeks. Today, Governor Northam signed into law Senate Bill 1261, the legislation that will expand the jurisdiction of the Court of Appeals and make all appeals to the Court by right (rather than by petition for criminal cases) as well as add six new judges to the Court. While that very frightening prospect is in the distant future (January 1, 2022), let us turn our attention to the more present (if no less frightening for the typical practitioner of the legal arts) of Workers’ Compensation. In Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation we delve into one of the more arcane areas of this arcane area of the law as the Court of Appeals answers the burning question: Are Pharmacies Health Care Providers? Now this may seem an obvious question to ask when a law provides for payments to be made to “Health Care Providers” by employers (or their insurance carriers, though in this case Costco, the employer, is self-insured) on behalf of injured employees, it apparently has never come up before.
How it came up is an interesting scenario. Summit Pharmacy filled prescriptions for an employee of Costco — let’s call her Ryan Dove, because that is her name now though previously, she was Ryan Burke) — who suffered an injury by accident while an employee of Costco. This was back in 2011 and early in 2012, Dove received an order awarding her Workers’ Compensation benefits that included “reasonable, necessary and authorized medical treatment.” Summit filled a total of eight prescriptions for Dove related to her injury in 2014 at a total cost of $3,299.26.
[Editor’s note: Here is a tip to anyone who represents employers — point out that the major downside to self-insuring for workers’ compensation is the loss of access to deeply discounted medical billing rates that are negotiated by insurance carriers — a large employer like Costco might have avoid these charges by negotiating (or hiring a third party to do so) on its behalf. However, whether insured or self-insured, employers cannot require injured workers to seek “in-network” care (or use prescription discount programs like GoodRX®, so it is possible that even with insurance, the prescriptions from this pharmacy might have been “rack rate.”].
Costco paid all but $881.36 of Summit’s claims. The opinion does not say why Costco didn’t pay the remaining balance. It may be that Summit failed to submit all the bills or didn’t supply required documentation, or perhaps Costco was somehow at fault. In any case, whatever the reason, Summit waited more than four years to seek an order from the Commission for the balance due.
Four years? Perhaps that fact suggest that the hypothesis that Summit was no diligent in billing is not too far off the mark. Now here’s a little lesson in Workers’ Compensation practice — do not look to or rely on statutes of limitation in Title 8.01 to determine when a cause of action arises on a claim of unpaid Workers’ Compensation benefits. Like most actions governed by administrative law, you must look to the enabling legislation or rules and regulations of the administrative agency to determine the appropriate procedures and limitations periods. In this case, a claim on an open account from a health care provider — normally a contract matter in civil cases with up to a five-year statute of limitations — is subject to a limitation period of one year from the date of the last payment received.
But wait, says Summit, pharmacies are not health care providers (at least not as defined by the Workers’ Compensation Act). In a hearing before a deputy commissioner, this argument was rejected, but — for reasons not explained in the opinion — the commissioner nonetheless awarded Summit $522.50, which Costco did not subsequently contest, in an opinion and ordered dated March 12, 2020. The most likely reason is that this amount was the subject of a timely claim. Regardless of the reason, Summit is now out only $358.86. So, was Summit satisfied with this partial victory (the question is rhetorical, as we would not be here otherwise)?
Summit first sought a reconsideration from the commissioner, asserting that Costco was procedurally barred from seeking the protection of the statute of limitations. The commissioner rejected this argument (the nature of which is not known for reasons that will soon become clear) in an order dated March 23, 2020. Summit then sought a review of “the Opinion and findings of Deputy Commissioner Kennard, dated March 12,2020 relative to the Deputy’s Application of VA Code 65.2-605.1 to the Provider’s claims.” Now, you may be wondering at this point whether the express reference to the March 12 order will prove significant (or if you weren’t already, you are now). Hint: it will.
The Commission first address the “are pharmacies health care providers,” by noting that it had always considered them to be so. While this fact alone is not sufficient to bind the Commission or the courts, it certainly falls within the prerogative of an agency to interpret its own rules and procedures. The rub is that nothing in the legislation or the Commission’s rules and regulations expressly excludes pharmacies from the category. Moreover, one could make a good argument that the mere fact that drugs can only be dispensed by a licensed pharmacist and that the pharmacist must be present and available for consultation that the pharmacy is not merely a dispenser of drugs.
Now we turn to the next issue — whether Costco was required to jump through those procedural hoops to claim protection of the statute of limitation. The answer is — we don’t care because the specific issue raised by Summit was the ruling in the March 12, 2020 order, not the subsequent March 23, 2020 order on the motion for reconsideration, where the claim was first addressed.
Summit appealed to the Court of Appeals, which affirms the Commission on all counts. The opinion itself goes into to significant detail on why a pharmacy is a health care provider, and if you are genuinely curious, feel free to read all about it. Likewise, the Court of Appeals finds that the specificity of the issue raised by Summit before the Commission constituted a wavier for the issue raised on reconsideration before the deputy commissioner.
Now, many may be wondering why Summit was so intent on collecting that $358.86? Clearly, the expense of collecting that amount (or even the $881.36) was far more than the potential recovery. When someone is willing to spend so much to gain so little, you can almost assuredly guess that it is not “about the principle.” Yes, I have known litigants who will spend thousands in a sincere belief that the light was green, not red, but here we are talking about a business decision — and no one stays in business long fighting for “principle” at $400 an hour (there are much cheaper ways to act on principle). So why? This is just an educated guess — but I think this was likely a test case to see whether pharmacies would be able to bypass not just the statute of limitations on claims by health care providers, but other requirements of the Workers’ Compensation Act and the Commissions regulations.
So, will Summit seek a writ in the Supreme Court? Possibly, if the issue really is about more than just $358.86. In case you are wondering how Summit would get around the jurisdictional limit of the Supreme Court of Virginia, which is $500, the answer is again that when dealing with administrative law, you don’t look to Title 8.01 — the jurisdictional limit applies only to appeals from the circuit courts.
Dear readers, it had to happen someday. After avoiding darkening the door of the Roanoke City Circuit Court in January, by reaching a settlement ten minutes before the hearing, in what would have been my first courtroom appearance since retiring from government service, yesterday, I made an appearance in the Roanoke City General District Court for a hearing on extending a Preliminary Protective Order. If you are not familiar with the process in Virginia, there are three basic types of protective orders — Emergency, Preliminary, and Permanent — although this latter term is inaccurate as such orders are still for a limited time, though subject to renewal. While an Emergency or Preliminary Protective Order can be obtained ex parte (that is, with only the person seeking the order appearing before the magistrate or judge), they last for only a brief period before the court is required to conduct a hearing at which the person against whom the order was entered will have an opportunity to oppose the issuing of the Permanent Order.
What is not commonly known is that the parties can agree to a settlement of the issue and have the court enter an order which, while not a “protective order,” functions in much the same way. Called a “mutually agreed order of no contact,” the order sets out conditions for the parties to, for lack of a better expression, “leave each other the Hell alone.” The good thing about such settlements is that they do not carry the stigma and legal consequences of a protective order but are still enforceable under the contempt power of the court — albeit as a civil contempt, not a criminal contempt as with a protective order.
Such orders are not appropriate in many protective order cases if there is a real concern for the safety of the party seeking the order. However, many protective orders are sought when emotions are running high. By the time of the court hearing, sometimes even just a few days later, passions have subsided and the parties have reconciled. In other cases, however, the issue is not so readily resolved, and yet a protective order is not really the best solution, as it puts all the onus on one party. You would be hard pressed to find a judge or experienced domestic attorney who could not recount at least several tales of the party who obtained the protective order calling the police to complain that the defendant was in violation, only for the explanation from the defendant to be “but she invited me over.”
As you have probably already discerned, a MAOONC was the solution that I thought was best for all parties. I represented the plaintiff and, as she was amenable, I proposed it to the other party through her counsel. While I think it took some effort on his part to explain to the defendant the benefit of agreeing to the MAOONC, eventually everyone agreed, the order was signed, and the wise judge (after first double-checking the statute to confirm he had the authority) entered the order.
There are no losses in the legal world — just victories and moral victories. I would maintain that an agreed settlement should count as a “victory,” but I can equally understand how it could be considered a “draw.” In those sports that still have the possibility of a tie, I suppose this means my record is 0-0-2. Perhaps the better sports analogy is to the scoring convention in baseball that a walk does not count as an at bat, but still counts toward the player’s on-base percentage. So, while I am still batting .000 with no at bats, my OBP is 1.000.