Battle over Confederate Monuments takes a Macabre Turn and other Recent Decision of the Court of Appeals

Elwood Lewis Thomas v. Commonwealth of Virginia started life on March 12, 2024 as an unpublished decision, and the link on the Court’s website will take you to that opinion, which included a partial dissent by Judge Raphael disagreeing with that portion of the majority opinion (Sr. Judge Clements joined by Judge Causey) which reversed six convictions for various sexual assault crimes by Thomas against a child. On September 17, 2024, the Court released an en banc decision by Judge Raphael, joined by Chief Judge Decker, and Judges Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Friedman, Raphael, Lorish, Callins and Frucci, affirming the convictions, with Judges Causey and Chaney dissenting – Judge White did not sit. For reasons which I can but speculate, the text of the en banc decision is not available on the Court’s website. I believe the cause is likely to be that the file that is available was supposed to have been revised to include the new opinion as well as the order granting the rehearing and the original opinion, but that somewhere in the process this either was not done or the old version of the file was mistakenly used after the new one was created. The text of the en banc is available on Fast Case and I have downloaded it and made it available to my readers. Perhaps someone at the Court will see this and see that the error is corrected.

The principal issue was whether the circuit court erred in not suppressing a confession which Thomas maintained was the result of an involuntary Miranda waiver. The statement was made during a conversation between two detectives and Thomas after he had been picked up by his probation officer and was told to “answer their questions.” Thomas argued that his subsequent waiver of Miranda was not voluntary because he had been directed by his probation officer to cooperate with the police. The majority found that under the totality of the circumstances, Thomas’ waiver was not involuntary. The partial dissent would have found that the context was sufficient to call into question the voluntariness of the waiver.

Additional issues in the appeal related to evidentiary issued which the Court resolved unanimously on the standard of review.

Ryan Douglas Roberts v. Commonwealth of Virginia (09/17/2024) involves a challenge to a warrantless search. Roberts was asleep in his car in a parking lot where there had been prior overdose incidents.  As an officer approached the vehicle, he could see that Roberts was armed, with his hand resting on a pistol tucked into his waistband.  The officer tapped on the window, which roused Roberts, who appeared dazed and intoxicated. The officer advise that he was going to open the door to secure the weapon out of a concern for safety. As he did so, he observed a clear bag partially protruding from Robert’s pants pocket contain what appeared to be drugs.

Judge Raphael, joined by Chief Judge Decker and Judge White, uphold the search as legitimate under the public safety/caretaker exception. While I have no truck with the result, I think that the search was valid under more general principles of adequate probable cause, namely that Roberts was found unconscious in a known drug use area while armed.  Clearly the gun was in plain view and the drugs were immediately discovered in plain view while the weapon was being secured.

Leonard W. Cowherd, et al. v. City of Richmond (9/17/2024) is an interesting twist on the controversy surrounding the removal of monuments to Confederate soldiers. In this case, the soldier is General A.P. Hill, and the monument in question once covered the mortal remains of the General, who died seven days before Lee’s surrender, during the final days of the Siege of Petersburg. Hill was initially buried in a family plot, but his remains were subsequently moved first to Hollywood Cemetery in Richmond, then to land in Henrico County, subsequently annexed by Richmond, on what is now the Lewis-Ginter Botanical Gardens.

When the City determined to remove the monument, Hill’s descendants filed this suit claiming that they, not the City, had the superior right to determine where the monument in would be moved. The circuit ruled that the City’s maintenance of the monument for over 100 years gave it the superior claim which the Hill descendants, as the plaintiffs, had not overcome. The Court of Appeals, Judge Callins joined by Judge Beales and Sr. Judge Clement affirmed that decision.

I am informed by a reader that the remains are now in a cemetery in Culpeper (this was not made clear in the opinion and I had assumed they remained in the monument). The monument, presumably will be turned over by the City to the Black History Museum and Cultural Center as was its original plan.

Long Time no See.

There has been a significant increase in the number of opinions from the Court of Appeals of Virginia over the last month, yet nary a word about any in this quarter. There are reasons for the silence, but mainly they are poor excuses.  As in the past, I have had good intentions of catching up, but they never seem to come to pass. Until now. Rather than attempt to plow through the opinions in one go, I will instead take them one or two at a time and hope to be caught up by the end of the month.

Before doing so, however, I must take a moment to complaint about the new design of the Virginia Court’s website. If you have not visited the site recently, you will see that the new layout does away with the sidebar menu with its multiple layers which defied easy navigation and that there are snazzy new graphics.  That’s all well and good. The complaint it that you can no longer copy the links for the opinions of the Court of Appeals (and Supreme Court) using the tried and true cut-n-paste method. Now you must “right click, copy, insert.” Ah well, I am nothing if not adaptable,

Northern Neck Insurance Company v. Virginia Farm Bureau Mutual Insurance Company, et al. is the only published opinion from September 17, 2024 that does not involve a government party as it involves a coverage dispute between two insurers.  More specifically it involves whether the Farm Bureau policy was in force at the time of the loss. The policy in question was purchased by a married couple for their jointly owned home. Subsequently, the couple separated and the wife, who remained in the home, acquired a new policy from Northern Neck, contacting Farm Bureau to cancel the original policy. The husband did not join in the cancellation, but as a named insured the company “tried to obtain [his] written consent.”

You can guess what happened next. There was a fire which damaged the home, and a claim was filed through Northern Neck. Northern Neck then learned that on the date of the loss, husband still had not consented to the cancellation. When he did so, approximately 1 month after the fire, his consent gave its effective date as the date wife had first advised Farm Bureau that she wished to cancel the policy. Farm Bureau returned the unearned premium as of that date.

The circuit court found that Farm Bureau was not providing coverage on the date of the loss. Northern Neck appealed and the Court of Appeals, Judge AtLee joined by Judges Friedman and Callins, reverse and remand. This case is primarily about interpreting the language of the Farm Bureau policy, which provide for prospective cancellation, but not retroactive cancellation and also requires that the “insured,” defines as the named insured(s) on the policy, must confirm the cancellation in writing. Farm Bureau also argued that because husband was required to cooperate in the cancellation of the policy under a settlement agreement, that somehow imputed a third-party benefit to it.  The Court disagrees, holding that “[t]he terms of the property settlement agreement have no bearing on the terms of the insurance policy.”

Town of Iron Gate, Virginia v. Jennifer Lynn Simpson sees the municipality appeal a decision that its “allowing” a stormwater drainage pipe to flood the property of Simpson was an inverse condemnation. The circuit court awarded Simpson $37,586 in damages and, wait for it, $206,785.74 in attorney’s fees under Code § 25.1-420. The opinion, Judge O’Brien joined by Judge Ortiz and Sr. Judge Humphreys, is something over 17 pages, but for my money the most interesting statement comes in the second sentence of the analysis, which begins:

n its first assignment of error, the Town argues the trial judge erred by “refusing to recuse himself from the proceedings, even after explicitly stating his bias against the Town.”

The Town did not provide a transcript from the hearing on its motion for recusal, which occurred on March 27, 2023—almost one and a half years after the liability bench trial.

(Emphasis added.) As Scooby says, Rut Roh Raggy!

As you can guess, the Court quickly notes that the absence of a transcript means the Town will not get this issue reviewed. The Court says, “Without the March 27 transcript, however, we have no way of knowing precisely the issues raised, waived, or rejected below.” (Emphasis added.) Why does this deserve notice? Because the Court is following a rubric which had fallen into disuse by saying that the absence of a transcript prevents the appellate court from knowing whether an argument may have been waived at the hearing where the issue was raised. Justice Henry Whiting quite fond of this assertion. Invariably, when it would be raised (usually at a writ panel in which the petitioner was headed straight for a “no reversible error” order), counsel would assure the Court that he or she would not have been so foolish as to waive the very issue that had been brought in the motion.  Justice Whiting would respond, “I would hope that you wouldn’t be so foolish, but without the transcript, how do we know that you weren’t?”

The remainder of the opinion deals with the overruling of the Town’s demurrer, the exclusion of evidence of failure to mitigate, and the reasonableness of the award of attorney’s fees. These are dealt with applying the appropriate standards of review and the case is affirmed and remanded.

Remand? For what? Why, “for determination and award of the appropriate amount of appellate attorney fees” of course. Iron Gate is a town of 324 souls according to the most recent census. That means that before the circuit court awards the appeal attorney’s fees, the cost per resident of this little escapade is just over $754 apiece.

When the Happiest Duty is instead the Most Difficult Decision

The judicial department comes home in its effects to every man's fireside. It passes on his property, his reputation, his life, his all.

Chief Justice John Marshall, 1829

When the judicial department "comes home to the fireside" it is rarely a welcome visitor. Courts are more often than not the arenas in which the sorrows and tragedies of the world are played out. The judge must pass judgment on the criminal or tortfeasor, but must also at times tell the victim that there is no recourse to succor their injury. The role of the judge is rarely one to bestow joy. But there are a few notable exceptions -- the power to bind in marriage, the power to affirm citizenship, and the power to place in office a servant of the people are among these happy duties. Without exception, every judge to whom I have had the opportunity to ask, however, has cited the power to finalize an adoption and give a child to a loving set of parents is the happiest of these.

But the granting of an adoption is not always a happy duty. Too frequently it requires the judge to determine that a parent is not fit and that the child is better off with another. That decision is most difficult when the contest for not merely custody, but legal control, is between the child's natural parents. In the lone published opinion from the Court of Appeals this week, Lindsey Nicole Perkins v. Rebecca Lynn (Hicks) Howington, et al., the Court must review just such a case.

Perkins is the mother of J.H., Justin Lee Howington is the child's father, and Rebecca Howington is the child's step-mother. Mother and father were never married and shared joint legal custody of J.H. Following father's marriage to step-mother in 2020, they were granted temporary legal and physical custody. Mother was given restricted visitation under the supervision of the Department of Social Services.

As you can probably guess, mother was deemed to be neglecting the child due to substance abuse issues. DSS advised the court that she had been uncooperative with efforts to remedy her situation. Mother continued to be uncooperative and ceased having contact with the child after July 3, 2020.

In 2021, mother sought to restore her visitation, but failed to prosecute the petition. The DSS subsequently reported that it had lost contact with her. Contact was eventually reestablished through mother's probation officer. The court restored her visitation and had periodic contact with the child. When she missed a court date, the court again withdrew her visitation.

Father and step-mother had filed for adoption during this period and the matter was brought to trial in June 2023. The circuit court ruled that mother had not contacted the child for more than six months before the filing of the petition for the adoption without just cause, so her consent was not required under Code § 63.2-1202(H). Mother countered that her inability to have contact with the child was for reasons beyond her control. The court, however, found that her reasons either were not sufficient or did not impact her ability to seek contact. The court granted the petition for adoption, effectively terminating the mother's residual parental rights.

It should be noted that while DSS was involved in the case, it is not a party to the appeal and this is not a termination of parental rights based upon the failure to remedy the conditions of abuse or neglect. While this may seem a distinction without a difference given that the outcome is essentially the same, there is one significant factor that separates this type of case from one brought by DSS. When the DSS brings a petition for termination and adoption, the judge is passing judgment on a legal standard that required another branch of government to prove its case. In this case, however, the judge is the government. While the judge is still guided by the applicable law and the burden of proof remains with the petitioning party, it cannot be denied that the judge is the only authority which will pass on whether a parent should have their legal connection to their child severed.

The Court of Appeals, Judge Ortiz joined by Judge O'Brien and Sr. Judge Humphreys, recognize that this is an awesome and unenviable responsibility. What's more, the Court found that there has been no prior interpretation of Code § 63.2-1202(H)'s "just cause" requirement for terminating the parent's rights, and more specifically whether the specific provision of that statute that six-months of no contact is sufficient to support that standard.

Mother maintained that father's burden was to show that her lack of contact was not excused by clear and convincing evidence and, thus, could not constitute just cause to terminate her rights. She alleged, inter alia, that DSS "thwarted" her efforts to maintain contact with the child.

The Court rejects this argument, finding that DSS's intervention, which led to the court's removal of visitation, was "because of mother's own actions," and her failure to abide by the directive of the court's order to cooperated with DSS and her subsequent failure to pursue a review or otherwise have the court restore her visitation was chargeable to her, not the DSS. The Court further noted that the circuit court nonetheless gave mother the opportunity to argue that, even without the requirement to seek her consent, it was not in the child's best interest to terminate her rights and permit the adoption, but was not persuaded by her arguments.

A further issue was whether the circuit court improperly considered the mother's probation records. However, the Court found that in the context of the court's statements referencing these records, it was clear that it was not basing its decision on any content of those records, but only referring to the probation officer's role in locating the mother after DSS lost contact.

I do not think the circuit courts or the Court of Appeals take any pleasure in affirming judgments terminating parental rights. In the first instance, parents who do not want to maintain a connection to their children do not bother to show up for court, let alone to take the case to the appellate courts.

I have yet to encounter a case where I did not believe that the parent who was taking the last full measure to retain their rights was not sincere in wanting to be a good parent to their child. Unfortunately, in most cases I am also forced to concede that whatever the reason, the parent cannot overcome the demons of their own soul in order to give the child the focus that it deserves. The state does not lightly step in to sever the bond of parent and child, but when it does so, it does so for the best interests of the child.