Two Opinions and Two Published Orders – plus ça change, plus c’est la même chose

The last two weeks have seen the Court of Appeals release four published decisions – two by opinion and two by order – that perhaps give a hint of things to come as the Court enters into its new era of hearing criminal appeals of right.  All four cases were criminal matter and decided “against” the appealing defendant . . . sort of.

Let’s begin with the two opinions, which were decidedly in favor of the Commonwealth.  Lucas Edward Ritchie v. Commonwealth of Virginia deals with a juvenile adjudication of delinquency.  Ritchie entered an Alford plea to a charge of forcible sodomy in the juvenile court.  (Readers not familiar with the term Alford plea can get the full details at the link – suffice to say it is the equivalent of a guilty plea without an admission of guilt).  As a juvenile, Ritchie would only be required to register as a sex offender if the court ordered him to do so, and in this case it did.  Ritchie filed a motion asking that the court reconsider its ruling regarding registration and on the 21st day following the adjudication, the court entered an order that said Ritchie did not have to register “at this time” and that the court would take the motion “under advisement.” Ritchie failed to complete the terms of his probation and, accordingly, the juvenile court entered an order about 6 months later requiring the Ritchie register as a sex offender.

Students of civil procedure have already guessed that this case is going to be about Rule 1:1 and the finality of judgments.  There is no question that the order entered 21-days after the adjudication order, which was a final order, was a valid modification of that order.  But was it a new “final order”?  Ritchie maintained that it was, and that juvenile court could not modify the order 6 months later to require him to register.  Ritchie appealed to the circuit court, which would normally be an appeal de novo, but as Ritchie specifically challenged the judgment as being from a void order, the circuit court was first required to determine whether it had jurisdiction to consider the appeal.

The circuit court determined that the order that removed the requirement to register as a sex offender at “this time” and took the motion under advisement was not a final, appealable order because it left something for the juvenile court to do – namely consider the motion it had taken under advisement.  The court then reviewed de novo the decision requiring Ritchie to register and found that he should be required to do so.

Ritchie appealed only the determination that the circuit court had jurisdiction to consider the appeal.  The Court of Appeals affirms, noting that the juvenile court was within its discretion to retain jurisdiction over the case while it considered the motion to revise its judgment.

Rodney Massie v. Commonwealth of Virginia is, at first blush, a standard sufficiency of the evidence appeal.  However, a standard sufficiency appeal rarely rates a published opinion.  When the court decides to publish in such cases, it is usually because there is a new, or at least rarely raised, issue.  Massie falls into this category because the issue with whether Massie could have been found guilty of rape and several related offenses where he did not engage in any sexual activity with the victim.

The facts establish that the victim was homeless and worked as a day laborer.  Massie offered employment to the victim and supplied her with drugs.  Although the victim performed the work Massie offered, he refused to pay her and also took property and money she had earned away from her.  By means of drugs, depriving her of her property, and implied and overt threats, Massie effectively made the victim his captive.  Massie then forced the victim to engage in sexual acts with another man, which led to the rape charge.

At trial, Massie moved to strike the evidence on the ground that he had not engaged in any sexual activity with the victim and, thus, could not be guilty of rape and the associated offenses as a matter of law.  The circuit court overruled to motion to strike and submitted the case to the jury which convicted Massie on all counts.

The Court of Appeals affirmed the convictions, finding that as worded, the relevant statutes focus on the force or coercion of the victim to participate in the sexual activity, not whether the defendant is the individual participating in the acts with the victim.  This construction is entirely consistent with the intent of the law, which is to prohibit the use of force, threat, or intimidation to compel a person to engage in sexual activity against their will.  If the statute was limited only to circumstances where the defendant engaged in the actions, that would create a significant gap in the law as this case amply demonstrates.

Now to the published orders. Jerrod Max Palmer v. Commonwealth of Virginia is an appeal of a denial of bond pending trial that was granted back in 2021, briefed and argued.  But, by the time of argument, Palmer had already been indicted and accepted a plea agreement, rendering the question of whether he was improperly denied bond moot.  The appellate courts will not address moot issues (except in the rare case of an issue capable of evading review – which this is not), so the appeal is dismissed.

Eugene N. Johnson v. Commonwealth of Virginia is a simple procedural matter involving the distinction between a conviction under a local ordinance and a state statute.  It is not often that a locality will seek to prosecute a defendant under a local ordinance where there is an equivalent state penal statute.  Some local ordinances do not have state statute equivalents, as the offense is merely “authorized” by statute, but the decision to actual make the offense the subject of an ordinance is up to the locality.  Many jurisdictions, however, adopt ordinances that are “authorized” by virtue of there being a state penal statute on the same subject matter.  There are some reasons why a locality would decide to prosecute under its ordinance rather than the state code – and when it does such cases should be prosecuted by the city or country attorney rather than the Commonwealth’s Attorney (or by the CA under an agreement to represent the locality, usually in return for some supplemental funding of salaries for deputy CAs). When this happens, there can be some confusion as to which polity is the prosecuting authority, and thus, who should respond to an appeal – the Attorney General cannot represent a locality in an appeal that is from a conviction under a local ordinance.

This is what happened in Johnson, where the City Attorney of Norfolk prosecuted Johnson on several traffic offenses.  Some of the court documents recited the relevant Code sections and others the city ordinances.  When Johnson appealed, he styled the notice of appeal as “Commonwealth of Virginia v. Eugene N. Johnson,” but named the City Attorney as the appellee in the certificate.  The City filed a motion to substituted as the named appellee in the style of the case, and the Court of Appeals grants the motion, restyling the appeal as Johnson v. City of Norfolk.

I titled this post with the quote from Jean-Baptiste Alphonse Karr that is usually translated into English as “the more things change, the more they remain the same,” but which is perhaps more properly understood as “a thing may change superficially; but, underneath, its essence is always the same.”  The opinions and orders discussed herein show that the Court of Appeals is not likely to approach “appeals of right” in criminal cases any differently than it did discretionary appeals in such cases.  Nor should it.  I suspect that issues of little merit (or no merit) will be decided by orders (published or otherwise) and only issues of moment – that is ones that are novel, allow for clarification or refinement of existing rules, or that simply serve as a reminder of the law where it appears to have faded from memory will be published.

Why Defunding NASA would be Bad for the Economy

Time for another rant.  Yesterday, NASA announced that it was having to delay its first test mission for the planned return to the moon.  On social media and news comment threads, the comments were mostly negative, with many calling for NASA to be defunded as a “waste of taxpayer money.”  I particular liked the comments that focused how projects like this were “what you get when you elect democrats” and “we need Trump back to kill” wasteful programs.  (Editor’s note: these are approximate quotes — the actual ones were, shall we say, more colorful in describing the current administration and its politics).  In case, like those posters, you have forgotten, the pledge to return to the moon was a centerpiece of Trump’s Space Force initiative.

These sentiments are hardly new or merely a product of the current “everything is about politics” divide in the nation. Many people want to completely privatize the space industry, claiming that NASA’s $23.3 billion annual budget is an example of unnecessary government spending that has no real benefit for the taxpayer. They maintain that private industry can “do a better job” of launching satellites and universities should pay for “luxury” projects like space telescopes.

NASA’s budget is 0.6% of the federal budget, about $70 per citizen. Admittedly, that’s not chump change. Those funds could be used to provide a tax rebate of several hundred dollars to families (more if limited to middle and lower incomes) or fund 11 days of the military budget. But what would we lose if we privatized NASA’s mission?

Well, first, the cost of just about everything would go up, because every consumer product either directly or indirectly benefits from space-based technology. Even with nascent private space launch companies trying to pick up the slack, their costs would skyrocket (pun intended), and these costs would eventually be passed along to the consumer.  Although NASA is an independent agency, it works closely with the Commerce Department and NOAA to make certain that we have state-of-the-art weather forecasting technology.  The Department of Agricultural depends on NASA data for crop forecasts.  The Department of the Interior depends on NASA data to track forest and aquiculture resources.  All of these benefits would have to be supplied by private industry going forward at profitable rates for the suppliers.

And then there is the military.  Yes, the various service branches all have their own suborbital missile technology and perhaps the capability of launching low orbit satellites (along with the NSA and CIA), but the expertise for these missions comes primarily from NASA.  So we would still need to have our own space program (unless we are willing to trust our military and intelligence resources to for-profit, likely multinational corporations).

However, all of these contributions are dwarfed by one small office within the NASA administration.  NASA has a “technology transfer program” which provides industry and individuals with innovative products developed by its engineers and scientists at no cost or for very low cost licenses (a portion of the license fee goes to the employee(s) who developed the product as a bonus). While no one keeps track of the actual benefit of this program, even conservative estimates show that the benefit to the American economy far exceeds the cost of NASA’s budget.  Since the program was begun in the late 70s (before that, technology was made available, but with greater restrictions because of the Cold War), it’s impact has contributed trillions of dollars the the US’s GDP.

Finally, there is the “WOW factor” of space exploration.  Many of the technology innovations that have proved financial boons for the economy were developed from space exploration programs, but even discounting those benefits, the scientific data gathered from these missions has significant impact on the advancement of our understanding of the Universe.  And, yes, pretty pictures of planets and nebulae and comets and gaseous clouds.  I am not suggesting that these benefits alone would justify NASA’s continued funding, but they are definitively a very nice extra benefit.

End of Rant.

Will the Virginia Supreme Court be Idle for Most of this Year?

In hopefully what is not a sign of things to come, the first month of the New Year passed without a single granted appeal from the Supreme Court of Virginia. This is not unusual.  Last year the court did not grant an appeal until February 9, and that was the only grant that month. But the Court only granted 6 cases in December following the last writ panel of 2021.

The Court will already be facing a dwindling supply of potential cases while the Court of Appeals grows accustomed to its new role as the primary court for all appeals. Civil cases that just a month ago would have gone directly to the Supreme Court by petition, now must first make a stop in the Court of Appeals as appeals of right.  One has to assume that some, perhaps a majority, of these cases will not be appealed to the Supreme Court because 1) having a written opinion to contest with tends to limit the flexibility of the appeal, and 2) having already spent money on the appeal in the Court of Appeals, many litigants will not want to “chase good money after bad.”

The Supreme Court has for several years now been granting fewer appeals and publishing even fewer decisions in those cases that have been granted. With no new cases in the pipeline for January 2022, one has to wonder if the Justices will be idle even before the summer recess. It’s a bit difficult to judge the current number of appeals waiting for merit argument because the Court’s webmaster has not been removing “appeals granted” from the website after they are decided as was irregularly done in the past.  The Court granted just 59 appeals in 2021, and more than a few of those have already been briefed, argued and decided. The cases argued in the first merit session at the beginning of January had been granted as recently as July 2021, and only 29 cases were granted later in 2021.

Of late, the Court has been hearing fewer than 20 cases in a merit session, and in January it was just 10. So its possibly they could here roughly the same number of cases in February, April and June and then have more cases ready for September if they grant some more in the upcoming February writ session. Cases granted after the April or May sessions likely would not be ready for argument before October — and these session are likely to very sparse in any case because they will be the first ones without new civil cases appealed from the circuit courts.