Two Criminal Appeals from the Court of Appeals

Highland County is Virginia's least populous county, with around 2,200 residents. But even in a small community, crime is not unknown. The appeal of Robert Marshall Cornelius v. Commonwealth of Virginia (February 13, 2022) involves the tragic incident in which a 14-year-old was convicted of second-degree murder of his grandmother. Though the facts of the case suggested that the killing may have been accidental as he maintained, Cornelius agreed to enter an Alford plea to the murder charge. Unlike a "bare plea," an Alford plea preserves issues for appeal that would otherwise be waived and alos preserves the right to maintain actual innocence. As a juvenile tried as an adult, Cornelius was entitled to serve his sentence in a facility of the Department of Juvenile Justice and to have regular reviews of his status at which the court could release him without conditions, order his continued treatment at the DJJ, admit Cornelius to parole, or order his transfer to the DOC to serve the balance of his sentence as an adult.

Cornelius sought at a review hearing in 2023 to establish that his progress to rehabilitation while in the DJJ warranted a reconsideration of the transfer order and also asked the circuit court to admit him to parole. The circuit denied the requests and ordered that he be transferred to the DOC. Cornelius appealed.

On appeal, "the parties [were] sharply divided on the applicable standard of review for the trial court’s judgment made pursuant to Code § 16.1-285.2." Cornelius asserted that because the evidence received concerning his rehabilitation was uncontroverted, the Court of Appeals should apply a de novo standard. The Commonwealth contended that the issue was one committed to the circuit courts discretion and should be reviewed for abuse of discretion.

The Court of Appeals, Judge Huff joined by Judges Malveaux and Chaney, found that the abuse of discretion standard of review was the proper one. This virtually assures affirmance of the decision, and that is the case here.

As an editorial comment, I would note that Cornelius had an extraordinary team of attorneys briefing and arguing his case, and the Commonwealth had one of it most capable appellate advocates. The recording of the oral argument is available on the Court's website.

A motion for nolle prosqui is a request by the Commonwealth to dismiss a criminal indictment, in most cases without prejudice to refiling a new criminal charge for the same offense. In principle, the Commonwealth must shows "good cause" for doing so. In practice, the circuit courts almost never require the prosecution to give any reason, let alone actually testing whether the reason is a good one. What's more, an order granting a "nol pros" is not subject to appeal, but can only be challenged if (when) the new charge is brought.

Adam Marcus Griffin v. Commonwealth of Virginia (February 13, 2024) is an appeal from a case where the Commonwealth nol prossed three indictments then charged the defendant again that same day. Griffin argued that the Commonwealth had not demonstrated good cause of dismissing the indictments and, thus, the new indictments were improper.

Now, there is a wrinkle to this case that does not occur in most such cases -- immediately prior to the nol pros motion, Griffin had moved the circuit court to dismiss the indictments without prejudice, asserting that they had been improperly rendered by a mutil-jurisdictional grand jury. Although the court denied the motion, the Commonwealth, while maintaining that the indictments were proper, nonetheless sought to dismiss them "in an abundance of caution." The new indictments were entered by the regular grand jury for the jurisdiction. The Court of Appeals, Judges Beales joined by Judges Friedman and Callins, affirm the judgment of the circuit court finding that the granting of the nol pros was not without good cause.

There was an additional issue of venue raised in the appeal, which is somewhat ironic given that Griffin's original assertion that the indictments had been improperly brought by a multi-jurisdiction. The venue issue involves the solicitation of a murder of a witness against Griffin while he was in jail in neighboring jurisdiction. Griffin argued that the solicitation was complete once it was first raised in the jail, but the Court of Appeals found that the evidence in the light most favorable to the Commonwealth showed that some aspects of the solicitation occurred in the jurisdiction where the charge brought.

Local Governments are Batting 1.000 in the Court of Appeals

The Court of Appeals handed two local governments victories in the opinions handed down February 13, 2024. In the first case, the government allowed a zoning change to permit the construction of a commercial business in an agricultural zone abutting a cemetery. In the latter, the Court upholds a determination that property owned by a church as not used for a religious purpose and, thus, was subject to taxation.

 Anne Edwards Hartley, et al. v. Board of Supervisors of Brunswick County, Virginia (February 13, 2024) involves the challenge to a zoning change to allow the construction of a an outlet seemingly ubiquitous general store chain in an a agricultural zone. The Court of Appeals, Judge Ortiz joined by Judges AtLee and Lorish, does something quite extraordinary in it 20 page opinion -- the Court expresses sympathy for the neighboring landowners objections to having yet another Dollar General pop up, but ultimately conclude that "the Board meets these arguments with several reasonable bases for the upzoning decision—including economic development prospects, support from some members of the community, and the location of other businesses—albeit of a smaller scale—near the property." Because the Board produced “some evidence of reasonableness" as to its actions, the courts may not interfere with the decision.

Emmanuel Worship Center, et al. v. The City of Petersburg (February 13, 2024) is on its first trip to the Court of Appeals, but not its first appeal in this case challenging an assessment of taxes by the City of Petersburg. The case was previously decided in the Supreme Court before the shake-up in appellate court jurisdiction, and is now back following a remand from that Court.

As a rule, property used for religious purposes is exempt from taxation. However, the relevant statutory language is that the use must be "exclusively" for such purposes. Here, the property in question was partially rented to a commercial tenant. Based on this evidence, the circuit court ruled that the property was not used exclusively for religious purposes and, therefore, was not tax exempt.

The Court of Appeals, Judge Raphael joined by Judges Athey and Friedman, affirmed the decision of the circuit court. The term "exclusively" was conclusively construed by the Supreme Court in Westminster-Canterbury of Hampton Roads, Inc. v. City of Virginia Beach, 238 Va. 493 (1989), requiring that the taxpayer has the burden of proving that the use is exclusive of any other purpose. The Court also rejected the church's argument that because the rent collected was used to support its religious activities, the "use" was derivatively for religious purposes.

Electric "Un-cooperative" might be a better name for it . . .

Virginia has quite a few electric cooperatives. Electric cooperatives are not-for-profit electric transmission providers which are owned by their customers, who are members of the cooperative. Like most cooperative companies, there can often be disputes between the leadership and the members. That was the case in Seth G. Heald, et al. v. Rappahannock Electric Cooperative (February 13, 2024), an appeal from a granting of summary judgment for the Rappahannock Electric Cooperative which satisfied neither the company nor the members.

The dispute was over the adoption of new bylaws to provide greater access to information by the members about board meetings, compensation to directors and proxy voting. The leadership resisted the effort, asserting that it would interfere with their ability to operate the cooperative effectively. Naturally, the members were not satisfied and sought a declaratory judgment which ultimately lead to the cross motions for summary judgement.

As already mentioned, neither side was particularly happy with the resulting judgment, which mostly went the directors' way. The members appealed and the board assigned cross-error. The result in the Court of Appeals will likely be equally unsatisfying as the members prevail on one issue, but lose on two others under a "right result, wrong reason" theory.

The opinion of the Court, Judge Malveaux joined by Judges O'Brien and Fulton, is 26 pages and deals mostly with the arcane world of the Virginia Utility Consumer Services Cooperatives Act. Frequent readers of this space will know that I loathe administrative law, and this case demonstrates why. So unless you are a glutton for punishment (and my sympathies go to the panel and their staffs who had to slog through the Act), let me try to give you the Court's rulings in plain terms.

First, the members prevail on their challenge to the granting of summary judgment for the directors' use of a super-majority requirement for a member-led attempt to alter the bylaws because the Act does not provide for a super-majority requirement and non-stock corporations, which the cooperative is, require only a simply majority.

The members do not prevail on a challenge to the circuit court's finding that their proposed changes to the bylaws would interfere with the directors' administrative powers. Specifically, the Act gives the directors the power to adopt and amend bylaws, while the members have the power to alter or repeal by laws adopted by the directors. The Court held that the circuit court overlooked this distinction on deciding which of the members proposed by laws could be considered, but the court nonetheless reached the correct decision in finding that some of the proposals were proper for the members to assert while others were not.