The Supreme Court of Virginia released one published opinion this morning. White v. Llewellyn is an interesting read if you find fraudulent conveyances of real estate interesting — I do, because it one of the few areas of the law where a prima facie case gives rise to a de jure presumption benefiting the plaintiff and, thus, the burden of production and persuasion shifts to the defendant (in most cases, the burden of persuasion always remains with the plaintiff). I will not delve into the details, leaving that to the more capable prose of Steve Emmert. However, I did want to take exception with one point in the opinion, authored by Justice Goodwyn for a unanimous court, and that is the final sentence which reads, “Thus, for the reasons stated, we will reverse the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.” . . . not inconsistent? English, unlike most Romance and Oriental languages, considers a double negative to reverse, rather than emphasize, the speaker’s/writer’s meaning.
I was a bit surprised to see Justice Goodwyn employ this phrasing when “consistent with this opinion” would seem to convey the same meaning. I was even more surprised when a text search of Supreme Court of Virginia opinions revealed that “not inconsistent with this opinion” (or sometimes “not inconsistent with the views expressed” or a similar phrase) has been used 179 times by the Court. While “consistent with this opinion” or similar wording has been used 743 times, that’s still a 19.5% usage of the double negative.
While I have the inclination to delve deeper into whether there is some significance to when the Court uses the straight positive as opposed to the “double negative” positive, alas I have not the time. Instead, dear reader, I shall leave you with this old chestnut: At an academic conference of linguists, a speaker was remarking on the unusual nature of the English double negative rendering a positive when Romance Languages consistently treat a double negative as emphatic. The speaker noted further that there was no example of any language in which a double positive was treated as a negative. At which point a voice from the back of the auditorium called “Yeah, Sure!”
So I have been retired from public service for just over seven months and I spent the first several of those months resting, avoiding COVID and just generally contemplating a future that would include the occasional appellate case that caught my fancy. While I have actually taken on several appellate cases and even filed briefs in two of them, much of my dabbling in a “real law practice” has been confined to the trial courts. Specifically, I have had four cases that were concluded with favorable results for my clients. I do not say that I “won” these cases because, even if I thought of lawsuits as win/lose propositions, I am not sure that I would be justified in putting these in the “win” column. Let me explain.
Rarely does a lawsuit reach the point of a trial, or the cusp of one, in which one party is clearly in the right and the other is just as clearly in the wrong. It possible that one part is without fault, but this does not mean that the other necessarily shoulders the blame. Moreover, the justice system — civil or criminal — is often not set up to grant the relief that the party “more in the right” is entitled to. To one degree or another, every case I have had as a private practice attorney (and countless more I worked on in my prior career) was really not a “win” for anyone.
The first case was a straightforward vehicle accident property damage case. The plaintiff, who eventually became my client, started out with an attorney, who quickly realized that there was a sufficient doubt as to liability that a recovery was not likely. She informed the client and returned the retainer. The client then waited before filing the suit on his in General District Court, by which time the defendant was no longer at the address he had resided at at the time of the accident, nor was the owner of the vehicle whose liability policy was the principal coverage. The defendant driver was never located for service, but service was had upon the owner by out-of-state process through the Secretary of the Commonwealth, failed to respond and a default judgment was entered. When an attempt to enforce the judgment was made, the owner, represented by his carrier, sought to reopen the case and assert lack of longarm jurisdiction. I will spare you the details of the argument and why I believed it was not correct. Suffice to say, however, that the pro se plaintiff was not able to convince the general district court that it had proper jurisdiction. By this time, however, another attorney had become involved and asked me to consult on the issue. An appeal was noted to the Circuit Court and then things got . . . ahem . . . confused. First, the defendant made the mistake of thinking that the appeal was limited to the finding that there was no personal jurisdiction and that the circuit court would review that decision. Except that was not the issue — rather, it was whether circuit court even had jurisdiction to consider the case because the district court had improperly reopened the case — the remedy we were seeking was a remand and reinstatement of the default judgment — and frankly this was the only why the plaintiff was going to recover. While the remand was not certain, it was sufficiently in doubt that the matter would be worth pursuing in an appeal, and the insurance company that would be footing the bill the whole way was willing to settle for the actual amount that the client could have recovered (not the amount he sued for, which would not have been subject to proof at trial) had liability been found against the owner (itself a doubtful proposition). So just before the matter was to be heard, we worked out an agreement in the circuit court hallway, explained to the client that this really was the best he could hope for, and he agreed to accept the offer. But then got cold feet a few days later — and still has not signed off on the release of the claim. Honestly, this should feel like a “win” as I know that the case could have dragged on for months, even years, before any resolution could have been reached and we got the client a guaranteed payment.
The second case was even more straightforward. My client was being harassed and wanted a protective order, which requires a court appearance in the general district court after a magistrate issues a temporary protective order. The level of harassment was probably not to the level that required a protective order, which imposes certain burdens on the defendant and can lead to criminal charges for a violation. But it was also not insignificant and is the sort of thing that can escalate if not addressed. The usual way to resolve these matters is by an agreed order of no contact and a stern admonition for the judge. The defendant agreed with the former and the judge supplied the latter. This too should feel like a “win,” except that the larger situation soon turned very bad and has left all involved having to deal with a traumatic experience. I do not suggest that the result in the case had anything to do with what transpired, but it nonetheless was not the outcome I had hoped for.
The third case was my first actual “trial,” again in the district court. The plaintiff was pro se and my client was a defunct and judgment proof corporation — so there was nothing really at stake and the sit could have just been allowed to go by default. Except that the purpose of the suit was to obtain a judgment that could then be collected from a recovery fund maintained by the state for just such cases. Whether the plaintiff might have prevailed in obtaining relief with a default judgment was not a given, but the purpose of the trial was to establish whether an application for relief could even be maintained. I will spare you the dreary details, but suffice to say that the court ultimately ruled that the plaintiff had not made out a prima facie case. Again, not really a “win” as the client had nothing at stake, and I did feel bad for the plaintiff who might have had a chance, albeit slim, of obtaining relief from the recovery fund if the case had been presented by an attorney — but the potential recovery was not sufficient to warrant a contingency representation, and hourly fees would have truly been the tail wagging the do even if a recover was obtained.
Finally this morning I was in Circuit Court for the first time (recall that I dodged the bullet in the first case by way of a settlement) to argue an issue of first impression, meaning that there was no appellate case law from a Virginia appellate court I could present to support my argument. What I did have was the persuasive precedent of ten other states that had ruled on the issue and all were going my way. I also had a Commonwealth’s Attorney who was sympathetic to my argument, and a trial judge that was equally understanding. The problem was that we also all new that there was really no solution to the problem, which is this: What does the criminal justice system do with a defendant, presumable competent at the time he was tried and convicted, but who is now on probation or parole who and is no longer sufficiently competent to be judged by the court when he violates the terms of his release, but is also not sufficiently docile that he can be released to the community safely? He cannot be tried for the new offense, so he cannot be held on that charge, but can he be returned to prison for violating the terms of his release — a proceeding which is not an issue that may or may not be subject to the same standards as a criminal trial. Complicating this matter the utterly insufficient amount of resources to treat those are not competent to be tried, but are still a danger to public safety. Even if we had adequate resources to restore such persons to competency when properly medicated to function outside a treatment setting, but cannot be adequately monitored if allowed to return to the community and cannot receive the same level of treatment in the penal system. So, the issue really wasn’t whether the court was going to rule favorably in my motion — I had been called in under the assumption that if the court did not do so, the issue would be appealed so that Virginia could have a chance to clarify the law — but what would happen to the client if the circuit court or the appellate court decided to join the other states in finding that an incompetent defendant cannot simply be returned to prison every time he violates the terms of his release because, in effect, he cannot understand the process or assist his attorney in defending himself? The court did accept that Virginia almost certainly would follow the existing precedent, and ordered an evaluation for competency, but due to limited resources this could take months — even assuming that the defendant will cooperate, which is doubtful. It’s a Catch-22 — an that means its a no-win situation.
I missed getting analysis and discussion of last week’s opinions as I was busy doing other law stuff (an essay about which will be posted in this space anon), so I am playing catch-up this week. In addition to the two opinions for April 27, we have one more from today, and I shall take them in chronological order seriatim (a favorite word of the Supreme Court of Virginia of late which simply means in the order they come). In doing so, I promise that I have saved the best for last, so be sure to read to the end.
Atlantic Orthopaedic Specialists v. City of Portsmouth, is a workers’ compensation case, and if you were (as I am) a regular consumer of the opinions of the Court of Appeals, you would be forgiven if you experienced “Déjà vu all over again” as Yogi Berra liked to put it. That’s because in the particulars other than the parties this case is virtually identical to Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation, decided at the end of March. Although the composition of the panels was different, Judge Beales was on each and authored the opinion. There are a few differences in the facts, of course, and the provider in this case made a slightly different argument, but the result is the same. If you are providing any kind of medical service as part of a workers’ compensation award, you need to make sure your accounting department is keeping up with the bills and seeing that they are timely paid. In both cases, the issue was that the self-insured employer was not paying the bills in full, and the provider was tardy in pursuing full payment. Tardy is a politic word – in fact, I would go so far as to say whoever was responsible for the accounts at each business was asleep at the wheel as the claims were not filed until well after the statute of limitations under Code § 65.2-605.1(F) had passed. [As an aside, I am not sure that Code § 65.2-605.1(F) is a “statute of limitations” so much as a “statute of repose” – this is usually a distinction without a difference as in either case it means that if you act after the limitations period, you are usually SOL].
Jessica Danielle Barrow v. Commonwealth of Virginia is the first case I’ve seen from the Court of Appeals where the issue involves an alleged abuse of the trail court’s discretion in revoking a suspended sentence for failure to complete a court-ordered diversion program was based in part of the unavailability of the program due to it’s being shut-down for a time as a result of COVID. Barrow was convicted a possessory drug offense and offered diversion. This was in June of 2019 when COVID-19 was not yet known t exist.
Barrow made what can at best be described as a half-hearted attempt to participate in the program but failed to comply with the requirements placed upon her by the VASAP case manager or pay any of the costs associated with the program. In a show cause hearing in January 2020, Barrow gave no indication that she was having health issues, nor did she contest the allegation that she had failed to participate in the program. The court admonished her that she would have to complete the program within the original 1-year period. And then COVID19 happened.
When Barrow returned to Court in June, her attorney asked for a 3-month extension, claiming that Barrow had suffered from health issues that had prevented her from enrolling in the program before VASAP was essentially shutdown because of the Governor’s emergency measures to limit the spread of COVID and the Supreme Court’s concurrent declaration of a judicial emergency. The circuit court denied the request and Barrow appealed.
The Court of Appeals held that the circuit court did not abuse its discretion in not granting the extension. The evidence showed that Barrow had made only a minimal effort to participate in the diversion program prior to the show cause hearing and had taking no additional steps to arrange to do so afterwards. Although guidance from the Supreme Court with respect to the judicial emergency included advice on liberally granting continuance, the Court of Appeals concluded that the record showed the trial court was aware of the impact of the COVID pandemic on Barrow’s ability to participate in the diversion program, but that given the other evidence that she had not made any effort to fulfill the requirements of the program that an extension of time was not likely to result in her compliance with the court’s order.
While I am not surprised with the Court of Appeals’ decision in this case – abuse of discretion is an extremely high standard (arguably the highest) to overcome on appeal. I am, however, a little chagrined that the circuit court was not more lenient. I really don’t suppose that Barrow would have suddenly become energetic and completed the course, but there is at least the possibility that she could give it the old college try and show the court that she wanted to continue. That’s why abuse of discretion is difficult to prove – think differently than the judge does not mean the judge is wrong.
I promised to save the best for last and here it is: A REVERSAL IN A CRIMINAL CASE WITH A DISSENT WHERE THE STANDARD OF REVIEW IS ABUSE OF DISCRETION. You can tell by the all caps (and the commentary on the prior case) that this just doesn’t happen that much in the Court of Appeals (or any appellate court) and it is almost surely a sign that a request for an en banc hearing and/or an appeal by the Commonwealth will follow. For appellate court junkies, this is the pure, uncut drug of choice. The majority opinion, Judge Huff writing for himself and Judge Russell, in Stephen James Kilpatrick v. Commonwealth of Virginia starts this way, “Among the tools available to parties in a criminal trial is the use of expert testimony to assist the jury’s understanding of the evidence and its resolution of facts at issue. To be sure, that right comes with certain limitations, many of which serve to guarantee that an expert’s testimony does not express opinions on issues entrusted exclusively to the jury for its own consideration, such as the defendant’s mental state at the time of the alleged offense and, ultimately, whether the defendant is guilty. But so long as a party’s experts do not violate these limiting principles, they have substantial latitude in terms of the relevant information they may present.” I can already feel that appellate opinion high kicking in.
Kilpatrick was caught in a sting operation in which a sheriff’s deputy posed as a female looking for a “casual encounter” on Craigslist.org. [While I had heard of Craigslist, I must confess that I did not know it was online as an “.org” domain; so, TIL this, which I recently learned means “today I learned]. The deputy used the name Jenny and told Kilpatrick that she was 13 years old, although the deputy also indicated that “Jenny” could drive, which is not legal for a person under the age of 15 ½ in Virginia. The correspondence was sexually explicit but did not involve any specific request by Kilpatrick that the two meet.
The deputy requested that Kilpatrick meet “Jenny” at a specific location. Kilpatrick went to the rendezvous location where he was confronted by law enforcement officers and agreed to e taken in for questioning. Kirkpatrick admitted that he had corresponded with “Jenny” and that the correspondence had been of a sexual nature. Kilpatrick further maintained, however, that she “was able to communicate” like someone much older than a thirteen-year-old and that “there’s no way [someone of Jenny’s purported age] speaks” in the way she did to him.
Kilpatrick was ultimately charged with multiple counts of soliciting a minor by computer. At trial, he sought to introduce an entrapment defense and to that end wished to have an expert testify as a forensic psychologist, but t assured the trial court that the expert would not offer any opinion on appellant’s mental state at the time he was alleged to have committed the offenses. The trial court sustained the Commonwealth’s objection that the expert’s testimony regarding Kilpatrick lack of predisposition to solicit a minor and his subjective belief that “Jenny” was older than 15 (the maximum age of the victim to which the offense of solicitation by computer applies) would invade the province of the jury.
Now you are probably wondering how the majority gets around the “reasonable minds can differ” part of abuse of discretion analysis, and the answer is that it doesn’t. Instead, the majority notes that before it can decide whether the trial court abused its discretion by excluding the evidence, it must first answer the legal question of whether the evidence was admissible – and that is an issue reviewed de novo. This may seem like a pointless exercise, as a judge can never abuse her discretion by refusing to admit inadmissible evidence, but in truth there is a good reason to take this approach. If Kilpatrick is correct that the expert’s testimony could be fashioned to avoid the ultimate issue of fact, then the Commonwealth’s object that it would necessarily do so was not well taken, and the sustaining of an objection on improper grounds is an abuse of discretion.
Since I have already told you that the majority has reversed the conviction, it is not difficulty to guess that it found the although the expert’s testimony “certainly comes close to the realm of opinion on ultimate issues,” it would not have invaded the province of the jury – or at least the court should have permitted the testimony to go forward and then entertained specific objections from the Commonwealth if the line were about to crossed.
The majority makes clear that such testimony is not likely to be admissible in cases where the offense involves an actual sexual assault or where the victim’s true age was known to the defendant. Here, however, the evidence was sufficiently in doubt as what Kilpatrick would have believe to be “Jenny’s” age that his psychological predisposition to solicit a minor was a relevant factor in his entrapment defense.
The majority goes on to reject the Commonwealth’s assertion that the exclusion of the evidence was harmless, and this is where Judge Malveaux parts company with her fellow panel members. Adopting the Occam’s Razor approach of assuming that the trial court erred, Judge Malveaux would have found that the presumed error was subject to non-constitutional error analysis and that there was sufficient evidence to rebut the assertion that Kilpatrick was not predisposed to soliciting a minor.
I am going to take issue with the dissent on the assertion that this case can be evaluated under the lesser standard of non-constitutional harmless error. While evidentiary issues typically are considered to be procedural, and thus not of constitutional dimension, here the alleged error prevented Kilpatrick from presenting evidence in his favor, a violation of the Sixth Amendment’s compulsory process clause, which has been expanded beyond the simple right to compel the attendance of witnesses but to also include the right to have that evidence heard.