The Court of Appeals has issued only three opinions in the last two weeks. Perhaps the heat of the Dog Days has caused a bought of torpor on the Court.
Norfolk Department of Human Services v. Joshua Goldberg is a rare case with not brief or appearance by the appellee. While it is possible that Goldberg was supremely confident that the Court of Appeals would affirm, this was a gutsy move given that the issue is whether the Norfolk DHS could be required to provide Goldberg with documents related to an unfounded report child sexual assault. Normally, such reports are confidential in order to encourage reporting, but Code § 63.2-1514(D) provide a “bad faith disclosure exception."
This case may require a bit of exposition for those not familiar with the function of the local entities that are charged with investigating and litigating claims that a child is endangered from abuse or neglect by a person with a custodial relationship to the child. These agencies are know by different acronyms -- DHS, DSS, CPS -- but all are essentially operating under the authority of Title 63.2, the "Welfare (Social Services)" statutes. These agencies are not law enforcement agencies, though the frequently operate hand-in-glove with police. There jurisdiction, however, extends beyond investigation of potential criminal activity, typically characterized as "abuse" of the child to include "neglect" which may or may not rise to the level of a criminal act.
When a social service agency receives a report of suspected abuse of neglect of a child, an investigation is made which can be as simple as visiting the home to check on the welfare of the child to a lengthy investigation of all circumstances related to the child's situation. One major distinction between a social service investigation and a police investigation is that social services is often empowered to take action to protect the welfare of a child where the police would need to obtain a search warrant or arrest warrant by establishing probable cause to a magistrate or higher judicial officer.
Reports of suspected abuse made to a social service agency must be investigated. These reports come from two principal sources: citizen complaints and mandatory reporters. Citizen complaints are vetted for credibility, though criticism of the failure to follow through on complaints in the past has increased the likelihood that an agency will err on the side of caution. Mandatory reporter complaints, however, are presumed to be trustworthy.
In this instance, the report on Goldberg, alleging abuse of his minor daughter, came from a mandatory reporter. Goldberg is a member of the US Navy, and this meant that in addition to DHS's investigation, NCIS was also informed and launched its own investigation. Yes, that NCIS -- which gives you some idea of how fanciful the TV show is in suggesting that its all about international terrorism and intricate revenge plots.
DHS determined that the allegation was unfounded. The opinion does not say what NCIS did, but presumably whether it also concluded that Goldberg was innocent, having an NCIS investigation in your career file is probably not a good thing. Goldberg and his wife suspected that the wife's mother was the source of the complaint based on her prior interference with their parenting choice and earlier false accusations.
Goldberg filed a petition in the circuit court asserting that he believed his mother-in-law was the sources of the accusations, that the accusation was made in bad faith, and requesting that the circuit court order DHS to turn over records of its investigation and, if the mother-in-law was the source, provide him access to those records.
The circuit court directed the DHS to provide the records for the court's review and DHS said, "No thanks, judge, we're good." Well, all right, the DHS didn't exactly waltz into court and refuse to turn the documents over. Rather, the department argued that because the information had come from a mandatory reporter it could not, by definition, have been made in bad faith. Since it's actually a crime for a mandatory reporter to not make a reporter of suspected abuse or neglect, there is a certain logic to this argument. The circuit court disagreed and order the DHS to provide the records for review, but stayed the order pending the DHS's appeal.
The Court of Appeals, Judge Lorish joined by Judges Fulton and White, affirms and remands the case so that the circuit court can review the documents and determine if there is cause to believe that the mother-in-law was the ultimate source of the report. Because this is a question of statutory interpretation, the Court reviewed the issue de novo -- and this is why it was gutsy for Goldberg to not even file a brief. Granted, his counsel may have made a convincing argument in the trial court (and the court also issued a written opinion), so he may have felt that there was no more to say, but gutsy nonetheless.
The Court finds that the statute is ambiguous as to whether it is limited to direct reports made in bad faith or includes bad faith sources relied upon by mandatory reporters. The Court concludes that the purpose of the bad faith exception is to dissuade the use of false reports in domestic and other interpersonal disputes to harass a blameless person. Accordingly, the ambiguity should be resolved in favor of advancing this purpose. This is sensible, as someone willing to make bad faith report of child abuse or neglect, but fearful of the potential civil liability for doing so, might see making a report to a mandatory reporter as a convenient work around.
Stafford County Board of Zoning Appeals, et al. v. John L. Grove, II, et al. is the shortest of the three opinions covered in this post, and in your humble correspondent's humble opinion, it is deservedly so, as the result falls well inside the "Well, Duh!" category of cases. The issues is this: When a land owner is denied a special exception permit by a Board of Zoning Appeals and seeks review of that decision in the circuit court, does the BZA have the right to file a responsive pleading in the court?
I really, really hope that you, dear reader, said, "Well, duh! Of course they have a right to file a responsive pleading in a legal action in which they are the defendant!" Well, technically, it turns out this is not true -- but there is more to it than that.
In this case, the BZA and the Board of Supervisors filed a demurrer to Groves petition for review in the circuit court. Grove did not oppose the filing of the responsive pleading. In fact, he responded to it. Then the circuit court did something extraordinary. It sua sponte ruled that the BZA could not file a response. Oddly enough, this is not the first time a court has ruled this way, as the circuit court relied upon a decision in another circuit from a few years back. Unlike in that case, however, the BZA asked the court to permit an interlocutory appeal to test this rather novel ideas that it could not defend its own decision.
In case you are wondering how two circuit courts could make such an astonishing ruling, the answer is that the statute in question Code § 15.2-2314 contains some peculiar language, viz.: "Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required." Rather, it is the locality in which the BZA presides that is the proper responding party.
Now, you can sort see how the circuit court's might have read this to mean that the BZA, not being a "party" to the suit, could not file a responsive pleading. However, the statute also provides that the BZA is to respond to the writ of certiorari, which the court interpreted as meaning that it was to supply the records, not file a "response" to the suit. Moreover, in this case at least, the demurrer was file by both the BZA and the Board of Supervisors, the latter of which is a party under the statute. The court, here, however, found that the statute did not provide for the filing of a response even by a proper defending party. Rather, the court concluded that the statute required the BZA to supply the record to the court and then the Board of Supervisors was to defend the BZA's action on its merits.
The Court of Appeals, Judge AtLee joined by Judges Huff and Ortiz, in reversing the judgment of the circuit court does not wade into the swamp of whether the BZA's "response" is limited to supplying the record or includes a challenge to the action itself. Rather, the Court simply points out that an action under Code § 15.2-2314 is an "action under law" and, pursuant to Code § 8.01-273 a demurrer may be filed in any “action at law.” Similarly, Rule 3.1 permits a demurrer to be filed in any case "unless otherwise provided by law." The love exception, as set out in the rule, is that a demurrer cannot be filed against a petition for writ of habeas corpus.
Of course, a Court cannot (or at least should not -- never say to a judge, "you can't do that") say "well, duh" in an opinion, but the Court comes pretty close here, noting that "o interpret Code § 15.2-2314 as the circuit court does here would lead to absurd results . . . [as] it would mean that a respondent would be unable to challenge any pleading prior to the issuance of a writ of certiorari, no matter how facially deficient the petition may be, and therefore there could be no summary disposition."
Moving from the shortest to the longest of the three opinions, Matthew Keil v. Jim O'Sullivan, etc. deals with the Freedom of Information of Act. Despite its length, I feel like this opinion also falls close, if not directly into, the "Well, duh!" category. The only reason it probably does not do so is that FOIA issues always require a good deal of explanation as to why the government is not required to turn over everything in every case. FOIA is a valuable tool for providing citizen oversight of the government, but it is too often employed for motives that have less to do with assuring good government and more about personal concerns or simply to be a thorn in the side of public servants. Striking a balance between the public's right to know, the privacy of those whose data the government collects, perhaps especially public servants, and the burden upon government to meet excessive demands is the difficult task of the courts.
Kiel was a member of the Chesapeake Sheriff's Department and the subject of an internal investigation. Kiel sought to obtain the documents from this investigation under the FIOA and a related act, the Government Data Collection and Dissemination Practices Act. The Sheriff, perhaps unwisely, failed to respond to the request under the Data Act and was less that expedient in responding to the FOIA request by asserting that the information was not subject to disclosure. Nonetheless, the circuit court upheld the decision to not disclose the information.
The Court of Appeals, Judge Lorish, joined by Judges Fulton and White, affirm. The principal holding of this case for future cases is the exhaustive discussion of who is a "data subject" under the Data Act. To access government records under the act, the requestor must be a "data subject" and Kiel did not qualify. I think the obvious reason for this is that the internal investigation was not collecting "data" within the sense of the act. If this were the case, then just about any government record stored on a computer would be discoverable. The act, however, is limited to databases that are designed to isolate personal information of the data subject.
With respect to FOIA, Keil mostly argued that the Sheriff's lackadaisical responses entitled him to relief. The problem with this argument is that records do not become subject to disclosure just because the responding agency is slow to assert that they are not.
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