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.
March 12, 2024 saw four published opinions from the Court of Appeals, and as no published opinions where handed down this week, we have reached the Final Four opinions of Operation Get Caught Up.
Douglas Leon Miner v. Commonwealth of Virginia (March 12, 2024) involves a conviction for making a materially false statement on a criminal background check when making a firearms purchase. Miner entered into a deferred disposition plea on a charge of burglary. While the deferral was in place, Miner tried to purchase a rifle and in completing the background check responded "no" to the question “Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year?” When the background check revealed the indictment for burglary, police were notified and Miner found himself back in court.
Miner maintained that he thought the deferral of the felony charge meant that it had been reduced to a misdemeanor. The Commonwealth introduced the plea agreement, which showed that the charge would not be reduced until Miner had completed the terms of the deferral. A copy of the indictment was included with the plea agreement.
Miner moved to strike the evidence on the ground that the evidence failed to prove that he was under indictment because the copy attached to the plea agreement was not certified. The circuit court overruled the motion to strike and convicted Miner.
The Court of Appeals, Judge Fulton joined by Chief Judge Decker and Judge Ortiz, affirms the conviction. Miner reasserts the "not a certified copy" argument, but the Court finds that the copy was part of an exhibit admitted without objection. In any case, I am not sure that proof that Miner was under indictment required the admission of a copy of the indictment, certified or not. People don't usually enter into plea agreements for felonies for which they have not been indicted, and Miner didn't contest the fact of his plea, only his understanding of what it meant in terms of his status.
Miner had two other arguments, both based on faulty premises. The first argued that making a false statement on a background check form with respect to being charged with a felony was not intended to be criminalized. Unfortunately, he relied on case law that distinguished between being "charged" for a felony and being "indicted." The form says indicted, so if the grand jury has not yet returned a true bill, an applicant can truthfully answer "no," but Miner had been indicted.
Miner next argued that he had obtained advice from a "government official" that he was in fact able to legally purchase a firearm. Unfortunately, that official was his lawyer, who did not work for the government. While we attorneys are often called "officers of the court," we are not government officials "charged by law with responsibility for defining the permissible conduct with respect to the offense at issue."
Christopher O. Parrish v. Mikeya Vance (March 12, 2024) is an appeal from a little known area of Landlord/Tenant Law -- a "Tenant's Assertion and Complaint." A tenant's assertion is a pleading filed in General District Court asserting that a landlord has failed in the duty of providing a habitable living space. The tenant has to give the landlord notice of the problem and 30 days to repair (which seems awfully long given that the defect must "constitute a fire hazard or serious threat to the life, health or safety of occupants"). If the landlord does not remedy the situation, the tenant's assertion is filed with the court and all rent payments normally due to the landlord are paid to the clerk of the court had held in escrow pending resolution of the suit.
The defect in this case was an infestation of fleas. If you think that this is a minor inconvenience, I suggest you study up on the Black Death. Parrish, the landlord, defended the suit on the ground that the lease made flea eradication the duty of the tenant. At the beginning of the lease, Parrish told Vance that he would pay for the initial treatment, which he apparently did, but the exterminator advised Vance that it would take several treatments to assure that the fleas would not repopulate.
Fast forward several months and the fleas are still in the house. Vance filed her tenant's assertion seeking to terminate the lease and recoup all rents paid. Parrish argued that the fleas were actually brought to the home by Vance and she was thus responsible for theior abatement. Neither the General District Court or the Circuit Court were amenable to this argument, finding that the Virginia Residential Landlord/Tenant Act makes the provision of a habitable living space a non-delegable duty.
The Court of Appeals, Judge Causey joined by Judges Raphael and Senior Judge Clements, affirm this judgment. Parrish also raised an objection to the admission of expert testimony, but this issue falls under an "opening the door" theory because Parrish introduced substantially the same evidence.
Parrish's final argument (apart for sufficiency of the evidence, which falls to the standard of review favoring Vance), was that the circuit court violated due process by not allowing him to "present his whole case." However, when he rested his case he advised the judge "That's all." He only contended that he had not been allowed to fully develop his case in a post-judgment motion for reconsideration, and the Court rules that was not timely.
Jamar Paxton v. Commonwealth of Virginia (March 12, 2024) is a 2-1-0 decision reversing a conviction for second degree murder. The Commonwealth has not yet sought a rehearing or noted an appeal to the Supreme Court, but I suspect some action will be taken before the 14 or 30 days deadlines.
The sole issue was whether the circuit court erred in not suppressing incriminating statements made by Paxton, and whether that error was rendered harmless wen Paxton chose to testify about the confession in order to rebut its implication. It is not disputed that Paxton was advised of his Miranda rights and after police accused him of the murder of his girlfriend he said, "I don't wanna talk no more." The officer then said Paxton would be charged and the following exchange took place:
Paxton: Sir.
Officer: Yes.
Paxton: What?
Officer: Mmm-hmm, unless you can come up with a reasonable explanation, . . .
Paxton: Sir, what else do you wanna know? I’m tellin[g] you everything.
Officer: I wanna hear the truth.
The interrogation resumed and Paxton eventually admitted shooting the victim, claiming self-defense. The issue is whether Paxton or the police "re-initiated" the interrogation.
Paxton's motion to suppress his statement was denied, and he hen testified at trial about the substance of that statement, setting up this appeal and the decision reversing and remanding by Senior Judge Petty, who is joined by Judge Malveaux, and Judge Raphael who concurs in the judgment, but writes separately. The issue that the panel has a slight disagreement on is why Paxton's testimony does not constitute a waiver of his Miranda claim. The difficulty stems from case law from the Court of Appeals that appears to conflict with precedent from the US and Virginia Supreme Courts. The debate between the majority and concurrence will be of interest to 5th Amendment scholars, but the result is the same -- if a defendant's Miranda rights are violated, the Commonwealth cannot rely on the illegally obtained evidence to argue that the defendant's testimony seeking to rebut that evidence was "voluntary" and thus waive the objection.
Shanta Orlando Hubbard, a/k/a Shawn Hubbard v. Commonwealth of Virginia (March 12, 2024) results in a reversal upon a finding that a search incident to a traffic stop. Judge Lorish, joined by Judge Ortiz and Sr. Judge Petty, finds that the Commonwealth failed to prove that exigent circumstances warranted an invasive search rather than holding the suspect and obtaining a warrant.
The facts would be comical if not for the constitutional issue of a warrantless search. Hubbard was stopped for an unspecified traffic infraction and was subjected to a patdown search after officers learned that Hubbard had agreed to be subject to random searches under a prior plea agreement. During this patdown, an officer felt a "hard object" in Hubbard's buttocks. When he reached int Hubbard shorts, they fell to the ground, leaving Hubbard standing in his underwear. The officer then attempted to remove the object, but Hubbard clenched his buttocks together and the officer could not remove the object. The officer told Hubbard he would be taken before a magistrate and searched there.
When Hubbard attempted to then release the object, the officer stated that he feared Hubbard would stomp the object in an effort to destroy it and, if the object contained fentanyl, it might become aerosolized and present a danger. The officers then resumed their efforts to remove the object, which turned out to be a plastic bag with 87 smaller bags of crack and power cocaine.
The circuit court denied Hubbard's motion to suppress, finding that the prior agreement waived Hubbard's right to object to the search, even an invasive body cavity search. The court further found that even if the waiver was not considered, exigent circumstances permitted the warrantless search.
The Court of Appeals first finds that plea agreement waivers do not extend to body cavity searches -- this is already established in prior precedent which the circuit court plainly should have known. This means that the burden was on the Commonwealth to show that exigent circumstances existed to warrant the invasive search.
The Court finds that the "theoretical possibility" that object might have been fentanyl and might have become aerosolized was not sufficient to warrant resuming the invaisive body cavity search. The Court also finds that the "buffet of hypothetical exigencies" offered by the Commonwealth did not rise to the level for warranting the search.
There was only one published decision from the Court of Appeals on March 5, 2024, but Dennis Christopher Howard v. Sheriff Roger L. Harris, et al. (March 5, 2024) had some high powered appellate advocates on brief including amici filed by the Virginia Trial Lawyers Associations, the Commonwealth and the Local Government Attorneys of Virginia. Why all the heavy artillery? Because this case involves the potential liability of the government for not adequately protecting a detained person who attempted suicide when he was able to get access to a gun while in custody; the gun was in the law enforcement vehicle within easy access by Howard, who was suicidal. The circuit court sustained the government's motion for summary judgment and the Court of Appeals, Judge Callins joined by Judges O'Brien and Fulton, reverse and remand for further proceedings. A petition for rehearing en banc has been filed and whether it is granted or not, this case is definitely destined for a petition for review by the Supreme Court (and an almost certain grant and full review).
The circuit court granted summary judgment based on two theories. First, because Howard's attempted suicide by seizing the weapon was a criminal act (he was a felon and barred from possessing a firearm), he could not recover from "other participants" in that act under the illegality defense. The Court of Appeals finds that Howard raised a legitimate issue of whether he was of sound mind when he seized the weapon, negating his criminal intent. I would have personally gone a different route and found that the deputy who was charged with securing Howard's safety was not a "participant" in Howard's seizing of the gun and attempted suicide.
The second theory was that because the deputy had made some effort to secure Howard's safety, he could not be grossly negligent and, thus, has protected by sovereign immunity. So was this effort? The deputy noticed that Howard was attempting to "jump" his handcuffs -- that is, he was trying to get his hands from band his back to the front by pulling them under this legs. The deputy told Howard not to attempt it or he would use pepper spray on him.
So, just to recap, a suicidal man is placed in handcuffs and left in a vehicle where a handgun is within easy reach if he were to move his handcuffed hands from behind his back, and the reasonable effort to secure his safety by the deputy was to say "don't do that or I will pepper spray you." I think I can go along with the Court of Appeals that threatening to pepper spray a suicidal person is not going to be much a deterrent.