- John S. Koehler
- Aug 28, 2024
- 8 min read
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.
- John S. Koehler
- Aug 15, 2024
- 12 min read
Your humble correspondent took a week off from summarizing due to the press of other business and then on Sunday last to recognize the end of his 63rd journey around the sun.
Let's start with the latest appeal from the Court of Appeals to the Supreme Court. City of Emporia v. County of Greensville has been appealed. This was the lead off summary of my June 12, 2024 post. While I did not foresee the appeal to the Seven Robes, I rather think that the petition will be granted as this is just the sort of obscure statutory construction issue that seems to catch the Justices' imagination.
On August 6, 2024, the Court of Appeals released five opinions. Let's start with Karen Williams, et al. v. Rappahannock County Board of Supervisors, et al. which is all about a volunteer fire company. The Flint Hill Volunteer Fire Company was founded in 1954 to serve the town of Flint Hill and Rappahannock County. In 2018, the County sought to coordinate the operations of the Flint Hill Company with the other fire and rescue services in the County and to that end entered into an agreement with Flint Hill and other providers of first responder services. Subsequently, "Flint Hill had difficulties meeting performance goals and
certification requirements." The County Board determined that the leadership of the company was at fault and adopted a resolution to remove the current leaders and replace them.
As you can imagine, this did not sit well with the removed leadership, which brought a declaratory injunction actions against the Board. The Board filed a plea in bar asserting that the action was barred because Flint Hill was organized "pursuant to Title 27" which is all about Fire Protection and was subject to the control of the County. Flint Hill, however, was in fact organized under Title 13 as a nonstock corporation. The circuit court found that being organized as a nonstock corporation did not conflict with Flint Hill being subject to Title 27 and, thus subject to the Board. The dismissed leaders appealed.
In a scant seven pages, about half of which is footnotes, Judge Frucci, joined by Judges Malveaux and Raphael, reverse and remand. Now you would be forgiven for thinking that the reason was that having been organized under Title 13, Flint Hill was not subject to the application of Title 27. But the Court did not even reach that issue, finding a much more direct approach. Namely that Code § 27-13, the statute that allows a Board of Supervisors to appoint the leadership of a volunteer fire company does not include the power to remove the leadership. The Court concludes that the statute must be strictly construed as limiting the power of the Board to appoint leadership -- presumable when a vacancy occurs -- but not to remove the leadership.
Tori Turner, et al. v. Massie MHP, LLC takes us from putting out fires to the element most often used for that purpose -- H20. Specifically, the provision of that essential liquid by an owner of a mobile home park to the residents thereof. Code § 55.1-1243.1 provides for a cause of action against a landlord for the "willful interruption of an essential service."
It seems that Massie purchases the mobile home park in August 2022 and filed a proper application to assume the water and sewer utility obligations from the former owner, and included their correct email address but "due to confusion over the handwriting in the application, recorded Massie’s mailing address incorrectly." This resulted in the water and sewer bill not being paid for several months and eventually having the service shutoff.
Although invoices and notices were being sent to the email address as well as the incorrect mailing address and a representative of Massie communicated with an accounting clerk at the utility, it is unclear why Massie was not paying the bill because the "operations manager" did not receive the emails and was not sure that they were being read. The water was shut off around 10:00 AM on November 15, 2022, prompting Massie to pay up tout de suite. The water was restored in the early afternoon. The utility admitted that while it had advised Massie that the water could be shut off for lack of payment, it did not specifically advise Massie that it would occur on November 15.
The issue before the trial court was whether the tenants had proven a "willful interruption" of the water service. The trial was held without a jury, which meant that the trial judge was the decider of law and fact. Applying the generally accepted meaning of willfull as used in the statute, the judge concluded that the tenants had not proved that the cutting off of the water was the result of any willful act by the landlord, but merely by its negligence.
The Court of Appeals, Sr. Judge Humphrey, joined by Judges O'Biren and Ortiz, affirm. The reason is pretty clear. The circuit court correctly applied the usual meaning of willfulness in a civil context. The Court notes that in other statutes the legislature uses "willful or negligent," showing that it can distinguish between the two. Since the circuit court was the trier of fact, its determination that the tenants had not met their burden of proof was entitled to the same weight as a jury verdict.
Before moving on the the next case, a quick word about tout de suite. The phrase is obviously borrowed from French and translates literally as "all in a row," but it both languages means to do something without delay. The there are "toot sweets," for those who remember Chitty, Chitty, Bang, Bang.
When a case involves a sensitive subject and requires anonymity for a party, the Court permits the use of pseudonym. This was the case in Jane Doe v. Joseph Robert Green, Jr., a case of first impression interpreting Code § 8.01-249(6) which permits a delayed action for childhood sexual abuse. Subsection 6 establishes the accrual of an action for injuries sustained by sexual abuse of a minor to being "upon the later of the removal of the disability of infancy . . . or when the fact of the injury and its causal connection to the sexual abuse is first communicated to the person by a licensed physician, psychologist, or clinical psychologist."
When she 18, Doe had reported Green to the police, but Green was subsequently acquitted of the resulting charge. The issue here was whether Doe's cause of action accrued when she reached the age of 18 in December 2008 or when she was first diagnosed with Post-Traumatic Stress Disorder attributed to the abuse 13 years later.
One complication in determining when the cause of action accrued is that Code § 8.01-249(6) has been amended several times between the incident of the abuse and the filing of the suit. Additionally, Code § 8.01-243(D) was amended on 2011 to extend the limitations period for child sexual abuse cases from two to 20 years. The circuit court accepted Green's argument that the applicable versions of these statutes meant that the cause of action accrued on Doe's 18th birthday and the statute of limitations ran in December 2010.
The Court of Appeals, Judge Chaney, joined by Judges Callins and White, affirm. The principal basis of the decision is based upon the established rule that revisions of statutes are generally not retroactive absent clear legislative intent. At the time of the alleged abuse, the Code § 8.01-249(6) included the caveat that the date of the diagnosis, if later than the 18th birthday of the victim, was applicable "if the fact of the injury and its causal connection to the sexual abuse is not then known." Finding that this is the applicable version the statute, this means that the cause of action accrued on Doe's reaching age 18 as she clearly was aware of the abuse, even if she was not aware of a specific diagnosis of PTSD resulting from the abuse.
Doe also asserted that the 20-year limitations period in Code § 8.01-243(D) applies to her claims, but she dis not explicitly raise the argument that this code section is retroactive in any assignment of error. In the absence of adequate briefing on this issue, we do not consider it. See Rule 5A:20(e). I rather suspect, however, that the Court would have found the same rule of the presumption against retroactivity would have applied had the issue been raised as the amendment took place long after Doe's ability to file a timely suit had run.
Harvey B. Hazelwood v. Lawyer Garage, LLC, et al. is about choice of law -- and while "Lawyer Garage" would be a great name for a law firm, perhaps one specializing in "Lemon Law" claims -- the Lawyer in this case is one of the appellee's last name. Lawyer repairs and customizes cars, and Hazelwood transports cars. Lawyer hired Hazelwood to transport four of his cars to Arizona. One of these vehicles was a “Chevy Blazer chassis with a Pontiac Fiero body” which had been modified with a “350ci V8 engine mated to a 3-speed TH350 automatic transmission.” I will save you the trouble of trying to imagine what that looks like:
When Hazelwood arrived in Arizona and was unloading this beauty, the breaks failed and he was injured when he fell from the trailer as the car rolled passed. He sued Lawyer and few others involved in the transaction in Virginia, but alleged that the law of Arizona should be applied as the locus of the accident. The circuit court agreed and dismissed certain of the claims which were not cognizable under Virginia law. Hazelwood filed an interlocutory appeal.
The Court of Appeals, Judge Athey, joined by Judges Ortiz and Chaney, reverse and remand. The decision rests on the interpretation of the "lex loci delicti rule." In English, that means the "law of the place where the wrong occurred." The questions is, what was the "wrong" here? Was it the negligent act in Virginia of improperly working on the breaks and transfer box, or was it the injury of Hazelwood in Arizona as a result of the "effect" of that negligence.
The answer is that the while the actions that precipitated the tort occurred in Virginia, the tort was no "complete" until an injury resulted. And that occurred in Arizona. The Court answers this important question, but in my view not the most important one: Who wants to drive a Fiero on a Blazer chasis?
The last opinion from August 6 is Antwan Deangelo Barrow, s/k/a Antwonne D. Barrow v. Commonwealth of Virginia. Barrow was found to be in violation of his probation and was sentenced to a year and six months of his comeback time. The judge reimposed the remainder of the previously suspended sentence and imposed an additional period of probation.
This was Barrow's third violation of probation on a 2007 conviction. The violation was the result of Barrow leaving the state for work, which resulted in his failing to attend a meeting with his probation officer. The PO went to Barrow's address and was told he "was not living there." Barrow was located in Texas, where he was indeed working. Barrow would subsequently claim that he was unaware that he need permission to leave the state. The circuit court concluded that Barrow was "not suitable" for probation, but imposed only half the remaining sentence, but extended the probation on his release as indicated.
On appeal, Barrow argues that the circuit court abused its discretion in imposing the active time and also that it lacked the authority to extend his probation. The Court of Appeals, Judge Fulton, joined by Judges Lorish and White, affirms the revocation, but reverse the extended probation. The former is an easy call as there record shows that the judge gave sufficient reasons for the revocation sentence. Abuse of discretion is hard to prove when the judge explains exactly why he is exercising it.
The latter, however, is even easier, however, because there is a new sheriff . . . umm . . . law in town. Code § 19.2-303.1 was amended in 2021 and limits the time of probation to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned. In this case, that period ran before the new period of probation imposed by the court would have ended.
There are several other instructive points in the opinion on Code § 19.2-303 and Code § 19.2-303.1. First, the Court finds that a provision for imposing up to 5 years of supervised probation in the latter is a limitation on the court, not an authorization to impose additional probation. Second, the former statute permits probation to be extended when restitution remains owing, but the Court finds that the record fails to establish that Barrow still owed restitution.
This week saw just two more published opinions. Both invovles issues of contempt of court, though it may be readily apparent by the case name of the first. Rachel Virk v. Gary L. Clements, et al. involves a lawyer, Virk, who sued the Clerk of Court, Clemens, one of his deptuies, the Sheriff and a deputy sheriff for "false imprisonment, negligence per se, gross negligence, and civil conspiracy." What was the instigating cause of these claims? Well, it seems Virk was held in contempt by the circuit court and placed in custody by the deputy sheriff, the order was processed by the deputy clerk, and theie bosses let it happen!
You will be shocked to learn I am sure that the defendants' demurred to the suit, asserting that they were acting under color of law based upon their duty to obey the orders of the court. You will be even more shocked to learn that the Judge Designate who had to travel to Loudoun County to hear the case sustained those demurrers. Finally, in the most shocking turn of all, the Court of Appeals, Judge Callins, joined by Judge Beales and Friedman had the audactiy to affirm this decision. Let Claude Raines help us express our incredulity:
What is truely surprising about this opinion is that the Court went to great pains (26 pages worth) to explain just why these dedicated civil servants were not to be hauled before the courts (except, of course they were) for doing thier jobs. Perhaps I shouldn't say this is surprising as the Court does need to take seriously the protection that the law affords to public servants when they are bound by their duty to perfom an act. More to the point, the Court wanted to make clear that, while it was not ruling of the legality of the contempt order (which in fact was the subject of another appeal, and contrary to the assertion of Virk, the dismissal of the appeal did not somehow find that the trial court erred in imposing the contempt sanction), that issue was not relevant to whether the public servants were entitled to assume the judge was acting with proper authority.
You may have wondered what the action was that caused the judge to hold Virk in contempt. Well, in summary, she wouldn't take "no" for an answer. The court was taking up some pre-trial motions and ruled against her on one. Virk then tried to get the judge to explain his ruling -- but here's the thing, other than those instances where the judge is required to put his reasons for a ruling in writing (and even then, the judge doesn't have to stop the proceeding and immediately write the order), judges are not required to give a reason for their rulings.
Now, it is generally not going to be a matter of contempt to ask thje judge for an explaination of a ruling. But, once it becomes clear that the judge is ready to move on, insisting that he should do so is, well, not a particularly good idea. Some judges will be tolerant, explaining carefully that their ruling has been made and that they wish to keep the trial or hearing moving along two or three or even four times -- but its hard to know when your reach the judges limit. In this case, I think the judge made it pretty clear that he was reaching that point, but Virk was either too absorbed or too oblivious to seek the edge of the cliff.
I do recall an instance where one attorney avoid a contempt by getting right to the edge. Having been ruled against, he insisted that the judge hear his argument again. The judge listened patiently and then ruled as he had before. The attorney repeated his assertion that the judge should let him repeat the argument, "as I don't think you really understand it." The judge fixed the attorney with a stoney stare and said, "Counsel, I understand your argument perfectly, I just don't agree with it." The attorney wisely moved on.
Raymond Charles Bell v. Commonwealth of Virginia is an appeal of an finding of summary contempt under Code § 18.2-456(A)(1) and (3) for sending a letter to members of the venire panel following conviction for brandishing. The charge of contempt was then presented to a jury for sentencing, which imposed a six month penalty. We presume Bell did not send a letter to the second venire.
This case is surprising on two counts. First, the Court of Appeals, Judge Causey, joined by Chief Judge Decker and Judge O'Brien reverse the jury verdict. What's more surprising is that it did so by applying the "manifest injustice" exception to Rule 5A:18 becaus Bell did not preserve in the trial court the issues he raised in his appeal. Reversals of criminal convictions in jury trials are rare; getting passed 5A:18 is doubly rare. But when yout get the latter, it's usualy a sure sign that the former will follow.
Here's why the Court applied the ends of justice exception -- this was summary contempt, which means that the judge effectively pronounced Bell guilty upon finding his action was contempt, just as the judge did in Virk. But there is an important distrinction between this case and Virk. The letter Bell wrote (which alleged that he had not been allowed to put on evidence that would have proved his innocense) was mailed after the trial was over.
Only "direct" contempt can be dealt with summarily. To be direct, the contemptuous action must occur in the judge's presence or so very near to a judicial proceeding as to "obstruct or interrupt the administration of justice." That just did not happen here. The trial was over, everyone had gone home, and Bell wrote and mailed the letter sometime later.
So is Bell off the hook? Probably not. The Commonwealth could decide to try him for indirect contempt, and I think it is likely that it will seek to do so.
- John S. Koehler
- Aug 1, 2024
- 10 min read
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.