- John S. Koehler
- Oct 19, 2024
- 4 min read
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.
- John S. Koehler
- Sep 12, 2024
- 5 min read
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.
The Court of Appeals released three published opinions today. Two are from criminal cases and the third involves the jurisdiction of Boards of Zoning Appeals. We will get the Zoning appeal out of the way first -- it's only 7 pages -- then discuss the more serious of the criminal appeals and round off the final summary with an anecdote on the importance of statutory construction and keeping up with changes to the code that, to borrow a phrase from the US Supreme Court, has a prurient flavor.
Avonlea LLC v. Karl Moritz, Director of Planning and Zoning for the City of Alexandria, et al. is all about variances. Or, more precisely, what can a BZA grant a variance to do. Avonlea owns adjacent lots, one with a home and one "mostly vacant" in Alexandria's historic district in which its zoning ordinance requires that “access to all parking shall be provided from an alley or interior court.” Avonlea maintained that neither of its lots could be accessed from an alley or interior court and proposed building an enclosed parking area on the "mostly vacant lot" accessible from the street.
Before we get into the issues of whether this proposal can be made to happen through the granting of a variance, I would like to consider for a moment whether a lot (or any space) can be "mostly vacant." It would seem to me that either a lot is vacant or it isn't. One there is something built on the lot, it ceases to be vacant and becomes developed. There can be degrees of density of that development, but any development means that the lot is no longer vacant. Perhaps it's like being mostly dead.
Avonlea applied to the the BZA for a variance to permit the construction of the parking yard with street access and the BZA was happy to oblige. But the City and some neighbors (probably mostly the neighbors)was not so sanguine on the idea and appealed the decision to the circuit court. They maintained that the parking restriction was not subject to the granting of a variance and the circuit court agreed.
The Court of Appeal, Sr. Judge Annunziatta joined by Judges Chaney and Frucci, affirm in Avonlea's appeal. This brief opinion explains that under the Zoning Ordinance the BZA has only the power delegated to it by statutory authority. The power to grant variances is found in Code § 15.2-2201 and provides that a variance is available for "provisions regulating the shape, size, or area of a lot or parcel of land or the size, height, area, bulk or location of a building or structure." It further provides that a variance "shall not include a change in use, which change shall be accomplished by a rezoning or by a conditional zoning." It's pretty easy to see that the request as for a change in use, not a deviation regarding the size of the lot or the buildings on it.
Accomplice testimony is a two-edged sword for the prosecution. While it can be damning as the accomplice is knowledgeable about the details of a criminal plot, it is also true that juries are often distrustful of a "rat," especially where the witness has a already received or is hoping to get a deal from the government in return for testifying. It less common for an accomplice to testify for the defense, and when it does happen, the jury can be equally suspicious of the motives. Juhwaan Barnes v. Commonwealth of Virginia involves the testimony of not one, but three, two who testified for the Commonwealth, and the third for the defense.
Barnes was charged with the first degree murder of Vinshuan Johnson. The Commonwealth's theory was that Johnson was lured to a specific location by two women -- Stephens and Carpenter -- where Barnes and two other men -- Oliver and Bynum -- shot and killed Johnson. Stephens and Carpenter testified for the Commonwealth and gave consistent versions of the events in accord with that theory.
Bynum, who was convicted of the murder in an earlier trial, testified for Barnes. Bynum claimed that he alone shot Johnson. While this would not absolve Barnes entirely -- it is possible to be guilty of murder even if your not the "triggerman," it is more likely that if the jur believed Bynum, they would acquit Barnes. While he might have been guilty of conspiracy to commit the murder because he participated in the plot, conspiracy is not a lesser included offense of the crime which is its object. A quick check of the VCCI database showed that the Commonwealth chose not to charge Barnes with conspiracy.
While it is possible to convict based on uncorroborated accomplice testimony, the court is required to instruct the jury on the "inherent danger" of doing so. Although Stephens' and Carpenter's was mostly consistent, one accomplice cannot corroborate another. Barnes requested an uncorroborated accomplice testimony instruction, but the circuit court found that other evidence presented by the Commonwealth corroborated enough of the two women's testimony and refused the instruction.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, affirmed this decision. There was additional evidence in the form of text messages that were sent to Johnson and the physical location of shell casings which matched their testimony as to the manner of the shooting and established that three different guns were fired. These "silent witnesses" were probably enough corroboration.
The Court, however, also noted that Bynum's testimony partially corresponded to that of the two women. Of course, the jury was privileged to believe some of Bynum's testimony and reject other parts. But wait, wasn't Bynum an accomplice too? Can his testimony corroborate that of another accomplice?
In this specific instance yes, but for procedurally reasons not legal ones. At trial, the requested instruction identified Stephens and Carpenter as the accomplices -- Bynum was never mentioned in the context of the requested instruction. At oral argument Barnes' counsel conceded that Bynum was not an accomplice for purposes of applying the corroboration rule. The Court accepted that concession as a "law of the case," so it does not get into the legal question of whether an accomplice testifying for the defense is capable of corroborating a prosecution witness's testimony.
This week's other criminal case is William Bradley Seat v. Commonwealth of Virginia. Your humble correspondent tries not to be too judgmental of the poor folks who wind up on the wrong side of a criminal conviction, but sometimes its hard not to pause and consider whether a particular defendant has been less than diligent in keeping up with the news and the gossip that one assumes circulates through the criminal grapevine.
Mr. Seat is a case in point. One would think that if he'd being paying attention over the last, say 20 years or so, he might have heard about the presence of police officers -- usually of the decidedly male variety -- posing as vulnerable young women on internet chatboards for gentlemen (and that term is used advisedly) who have less than chaste designs. But then again, perhaps Mr. Seat has had to deal with the lack of affordable housing by taking up residence under a convenient rock.
In this case the "young lady" indicated that she was thinking of getting into the flesh-peddling trade but needed someone to provide business management advice and a safe work environment, though the officer was clever enough to use the more direct description of "pimp." Seat responded to a phone number with a text message in which he assured the prospective associate that he was not a "pimp," but preferred to be thought of "as more a production artist and liaison to high end clientele" who would "“manage, guide, [and] advise” her. You know . . . a high class pimp. Eventually Seat and "Britt" exchanged over 175 text messages and, with the aid of a female officer, spoke on the phone. Despite going into extensive detail about the services he would provide, Seat finally got wise that he was being taken for a ride . . . though he still thought Britt was for real, he decided she was setting him up to be robbed.
Participating in a commercial sex trafficking is a crime in Virginia. At trial, Seat had a good explanation for his actions. According to him he was "trolling" the woman and never had any intention of going through with the scheme, and even if he did, the plan never rose to the level of the activities that constitute sex trafficking. In case you are wondering, here is what the law provides
§ 18.2-357.1. Commercial sex trafficking; penalties.
A. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse in violation of § 18.2-346, solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate § 18.2-346 is guilty of a Class 5 felony.
So, did Seat have the "intent" to receive money by encouraging Britt to violate Code § 18.2-346, the prostitution statute? Well, the jury seemed to think so, and so does the Court of Appeals, Chief Judge Decker joined by Judges Raphael and White. This is actually pretty much of a slam dunk for the Commonwealth as are most sufficiency of the evidence appeals. I presume this one gets published because the statute was recently amended.
Before we part, let me fulfill my promise to relate that anecdote for the prurient at heart and an all important change to Code § 18.2-346. First, the anecdote (the names have been changed to protect the innocent). Trigger warning -- the ancedote and statutory amendment deal with a subject of an adult nature. You have been warned.
Quite a few years ago (at least prior to the amendment which we will be discussed below), a police officer found an advertisement on Backpage -- the now defuct "free want ads" message board that got busted by the feds for its profiting from "personal" ads that were pretty obviously not of the SWM seeks Life Partner variety unless you measured the length of your life partner relationships by the hour. He found a likely ad, contacted the advertiser and arranged to meet her at a local motel in the seedier part of town.
I will spare you the details of the "dance" that is involved when an undercover officer has to negotiate with a suspected courtesan while avoiding a claim of entrapment. Suffice to say that he opted to arrest her when she stated that one of the services she would perform would be to assist him in placing a latex prophylactic where such implements are usually placed.
At trial, the Commonwealth presented this evidence and rested its case. Judge Stickler looked inquiringly at the prosecutor and inquired "Ms. Jones, what crime has been committed here?" Ms. Jones looked incredulous and stated "Prostitution, your honor." "How so?" replied the judge.
Ms. Jones, a women raised in the gentile Old Dominion, did her best to be delicate. "Judge," she said, "the defendant agreed to touch him in an intimate place." "Indeed she did," replied the equally gentile judge, "but that is not a crime in Virginia." "But of course it is!" exclaimed Ms. Jones.
The judge reached for his copy of 18.2 and flipped to the relevant statute and read it aloud. At that time Code § 18.2-346 provided that prostitution involved the receiving of money or other valuable consideration in exchange for enduing someone to "commit[] adultery, fornication, or any act in violation of § 18.2-361," the "crimes against nature" statute. Turning to that code section, the judge read out the list of acts it prohibited, which decidedly did not include the "manual stimulation of the genitalia for sexual pleasure." The judge dismissed the case.
The following day, Judge Stickler met Ms. Jones in the hallway. Ms. Jones informed the Judge that she had discussed the ruling of h the previous day with her husband, also an attorney, and informed the judge, in a tone that suggest Mr. Jones may have spent the night in the guest bedroom, "He agreed with you!"
Now as to the present state of Code § 18.2-346. The Prostitution statute was amended in 2020 to include as acts which can constitute prostitution if performed as part of a commercial transaction the touching of "the unclothed genitals or anus of another person with the intent to sexually arouse or gratify." That's a more gentile way of saying, as the crime is nominated in Geogia, "masturbation for hire."