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.
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