The Court of Appeals released three published opinions Tuesday. As I am hunkered down in the Virginia Appellate Lawyer Social Media Bunker working on a petition to the Supreme Court of Virginia, it may take a while to post summaries and analyses of all four, but I wanted to start with a case that has two things to recommend it, the first being of particular interest to the Domestic Relations Bar and the second of interest to anyone who might be thinking of taking on more appeals once the Court of Appeals begins accepting everything as a matter of right. If you don’t happen to fall into the first category, you can just skip to the penultimate paragraph but two (that’s the fourth paragraph from the bottom – or if you are really pressed for time, just take Prince Humperdinck’s advice and “skip to the end”).
Jacqueline M. Nielsen v. Alan H. Nielsen involves a domestic relations matter, as you could no doubt have guessed by the parties sharing a last name. The Nielsen’s were married in 1987, separate in 2016 and were divorced the following year. Mr. Nielsen had a pretty important job – or at least an important sounding title – as Vice President of Corporate Services at AOL. I say “had,” because shortly after his divorce was finalized, AOL was purchased by Verizon and Mr. Nielsen’s job title and duties changed pretty drastically, as did his income. You might say that the writing was on the web browser and when Verizon offered former AOL employees a buyout a few months later, he accepted a separate agreement that was worth slightly more than his highest years earning since the separation.
Now as anyone who has left a job without having another lined up can tell you, its often harder to find a job, especially one commensurate with Mr. Nielsen’s expertise and earning history. Eventually a short-term gig turned into a permanent job, but with a salary and potential bonus at below his lowest annual earnings since the separation.
Those familiar with the domestic arena will not be at all surprised by the next sentence. Mr. Nielsen petition the court for a reduction of spousal support, then $10,000 per month, asserting that he had undergone a “change in circumstances.” It will also not surprise those familiar folks that Mrs. Nielsen took exception to this, asserting that Mr. Nielsen voluntarily left his employment with Verizon and had adequate assets to continuing paying support at the then current amount. The industry term for this is “voluntary underemployment.”
The trial court did not see it that way. It found that the evidence supported Mr. Nielsen’s assertion that had he not excepted the buyout he would have been made redundant (wonderful British term – we should use it more this side of the pond). Moreover, the record supported his assertion that he had made a significant effort to find suitable employment and took the best offer he had. The court reduced spousal support to $6,000.
Now I will admit that I found this 40% cut a bit drastic – but only a bit. The Court of Appeals may have thought so too, and that explains why it went to great lengths to set out the law and standard of review for such cases. On that score alone, that makes this an opinion worth printing off and tucking in the “go-to” file for succinct statements on what constitutes a change in circumstances and when a court is justified in finding that a party is (or isn’t, in this case) voluntarily under employed.
There is another reason this appeal merits a close look by anyone about to start practicing in the “new” Court of Appeals where all appeals will be “of right” as are domestic cases now. The Court notes in its opinion that Mrs. Nielsen’s first two assignments of error challenging the failure of the circuit court to grant her motion to strike at the close of husband’s case-in-chief are procedurally barred, at least in part, because she chose to put on evidence afterwards – a standard rule of appellate procedure that was recently reaffirmed by the Supreme Court of Virginia. See Rompalo v. Commonwealth, 72 Va. App. 147, 154 (2020), aff’d, __Va. __ (May 20, 2021) (order).
The opinion goes on to note that there were nine assignments of error in total. Nine? Unless you skipped the summary and analysis of the opinion, you are probably wondering how you could have missed the seven other issues (well, five, because we know that assignments of error one and two were effectively non-starters) apart from change of circumstances and voluntary underemployment. To be fair, it would is likely that there would be an additional assignment of error saying, “And even if it was necessary to reduce spousal support, $4,000 was just too much of a cut.” Still, that leaves four other assignments of error that do not seem to get a mention in above. Is the old boy slipping?
No, I am not – or at least not with respect to the summary of this case. The clue to the “missing analysis” is found in the statement two paragraphs above that Mrs. Nielsen’s were “procedurally barred, at least in part.” (Emphasis added.) Since an assignment of error challenging a failure to strike the evidence prior to putting on your own case would be barred completely, it follows that whatever the first two assignments of error were in this case, they were not succinctly crafted. Moreover, the fact that there were two addressing, at least in part, the same topic probably means that some of the other assignments of error overlapped one another.
The disadvantage of an appeal of right is that you don’t have the court weeding out your bad assignments of error for you at the petition stage. So let the professor give you a quick lesson in weeding out the chaff yourself. If you have nine assignments of error, you probably have eight too many (exceptions apply, of course, primarily to death penalty appeals – which we mercifully don’t have in the Commonwealth anymore – and ultracomplex civil litigation involving millions of dollars). The assignment of error in this case should have been, “The circuit court erred in granting husband’s petition for a change in circumstances and reducing wife’s support by 40% where the record did not support the conclusion that husband was not voluntarily underemployed.” That would have been sufficiently clear to address all the arguments that were considered by the Court of Appeals.
- tloojs
- Jul 23, 2021
- 5 min read
Overview of the October 2020 Term: A Year of Transition
The Supreme Court began hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. This term, the court heard all oral arguments in cases accepted for the term as well as several cases held over from the last term, remotely via teleconference and provided live audio streams of the argument sessions. The court made the decision in accordance with public health guidance in response to COVID-19.
The court agreed to hear 62 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic. The court issued 67 opinions during its 2020-2021 term. Two cases were decided in one consolidated opinion. Ten cases were decided without argument. Five cases were removed from the argument calendar.
The Composition of the Court: The Dog that (Almost) Didn’t Bark
The principal transition on the Court was the appointment and confirmation of Justice Amy Coney Barrett to succeed the late Ruth Bader Ginsburg; joining the Court in November. Barrett, a former clerk and protégé of the late Antonin Scalia was seen as a vote to assure that a conservative viewpoint would prevail on significant decisions of the Court going forward.
The general assessment of Justice Barrett’s first term is that while it solidified the conservative majority that already existed on the Court, it did not result in a seismic shattering of precedent. Speculation on why this particular dog did not bark ranges from the obvious – Barrett was not involved in the selection of a majority of the cases that Court heard during the term and none of the “hot button” issues of existing precedent that a conservative majority is expected to “correct” were before the Court – to the more speculative suggestion that Chief Justice Roberts, Justice Thomas, Justice Gorsuch and/or Justice Kavanaugh were not as reliably conservative as believed; no such speculation as to the political bona fides of Justice Alito.
By the Numbers
Depending on how you choose to count things, this term the Court rendered decisions in between 56 – the number of opinions issued – or 68 – the number of decisions that were from the Court’s merit docket.[1] Of course, far more cases were “decided” by the denial of petitions for writ or certiorari, but these rarely provide any insight into the Court’s view unless there is a written dissent.
Of the 68 cases decided (the number I have chosen as I have data for those cases), only three originated from state court decisions, while only two involved matters of original jurisdiction. The remainder of the cases came from the lower federal courts as follows: 9th Circuit – 16, 5th Circuit – 7, 3rd Circuit – 6, 6th Circuit – 5, 11th Circuit – 5, D.C. Circuit –4, Federal Circuit – 3, 8th Circuit – 4, 2nd Circuit – 3, 4th Circuit – 3, 10th Circuit – 3, Armed Forces Court of Appeals –1, 1st Circuit – 1, and 7th Circuit – 1. One case was from a federal District Court.
Of course, the two numbers that always interest everyone are how many cases were unanimously decided and how many were “one-vote” case. The court was unanimous in its decision (though not necessarily adhering to a single opinion) in 30 cases (44%) and split 5-4 in just 8 (11.7%).[2] We will discuss “ideological splits” later in reviewing the decisions.
The results of the cases decided broke down this way: affirmed and final judgment – 11, reversed and final judgment – 6, reversed and remanded – 24, vacated and remanded –20,[3] injunctive relief granted – 2, dismissed – 2, denied – 1, and a decision in consolidated cases that was affirmed in part, reversed in part, vacated in part, and remanded and defies easy placement.
The chart below shows the division of labor for authoring majority decisions. The selection of the author of an opinion rests with the ranking member of the majority. As its commonly the case, the more senior members of the Court therefore write more opinions, while the more junior members are given fewer. Justice Barrett, the “baby justice,” authored only two majorities, and was not assigned to write a unanimous opinion as her first majority as is sometimes thought to be customary but did author the unanimous order dismissing an original jurisdiction matter.OctoberNovemberDecemberJanuaryFebruaryMarchAprilTotalArguments108105661358Roberts11101127Thomas11110127Breyer21010116Alito20111016Sotomayor11101026Kagan11101026Gorsuch11011116Kavanaugh11110116Barrett01101104Per Cur.00200002Opinions10895661256
Finally, we look at the “agreement table” which shows how often the individual members of the Court were “on the same side” of a decision. As presented here by seniority, it may be a bit difficult to see the factional make-up of the Court.ThomasBreyerAlitoSotomayorKaganGorsuchKavanaughBarrettRoberts75%73%83%66%72%81%94%84%Thomas–63%82%55%57%88%78%85%Breyer––59%93%93%66%73%64%Alito–––53%58%88%86%87%Sotomayor––––88%53%66%58%Kagan–––––70%72%69%Gorsuch––––––87%91%Kavanaugh–––––––91%
If, however, we arrange the rows and columns and starting with the highest level of agreement, a pattern clearly emerges:KaganSotomayorRobertsKavanaughGorsuchBarrettThomasAlitoBreyer93%93%73%73%66%64%63%59%Kagan–88%72%72%70%69%57%58%Sotomayor––66%66%53%58%55%53%Roberts–––94%81%84%75%83%Kavanaugh––––87%91%78%86%Gorsuch–––––91%88%86%Barrett––––––85%87%Thomas–––––––82%
The pattern, of course, is the jurisprudential/political division of the Court. Breyer, Kagan and Sotomayor clearly form a faction, being in agreement over 90% on average. This is no surprise as they are widely accepted as the “liberal” rump of the now conservative leaning Court.
The more interesting development is the grouping of Kavanaugh, Gorsuch and Barrett, who are found in company 89% of the time and not always in the company of Alito and Thomas, perhaps representing a division between the “Old Guard” and the “Young Turks” within the conservative wing. This grouping is even more intriguing when you consider that Chief Justice Roberts and Justice Kavanaugh are in the same camp 94% of the time, suggesting that with the Chief Justice, the “Young Turks” might form a right-center block.
While no one could reasonably suggest that Justice Alito is now a “centrist,” examining his voting record suggests that he is failing to find common ground with Thomas over ideological issues of constitutional interpretation. Thus, while Justice Alito is still to be regarded as the most conservative member of the Court, Justice Thomas often finds himself alone in dissent, or at least on the outs with the other conservatives, because his judicial philosophy is no longer au courant.
One view is that the conservative viewpoint on the Court is being contested by the Chief Justice and Justice Alito, with the Chief Justice having the upper hand for now. Justice Thomas, unwilling, or perhaps unable, to make it a three-way contest, finds himself sidelined.
If we use Justices Breyer and Alito as our opposite polestars, the political alignment of the Court falls into the generally accept pattern with Sotomayor, Kagan and Breyer being the liberal wing (in descending order), Roberts and Kavanaugh being closer to the center, though still well to the conservative side, followed by Gorsuch, Barrett, Thomas and Alito, the latter two arguably representing different branches off the main line.
Finally, in the review of the cases you will see a phrase repeated several times in cases described as “unanimous” indicating that Justice Sotomayor authored a separate concurring opinion. Prior to the death of Justice Antonin Scalia, both he and Justice Ginsburg – close personal friends off the bench – would often write separate decisions in unanimous cases. This was undoubtedly an academic exercise for both, a form of private conversation between to legal titans. Justice Sotomayor’s penchant for writing separately in unanimous cases may stem form a desire to keep this debate of left and right alive – but she has found no counterpart on the conservative side.
[1] Even here there is some lack of certainty as some sources put the latter number at 69 – the confusion rests over what constitutes a decision on the merits. Moreover, these numbers reflect “decisions” not “cases,” as several of the decisions were rendered in consolidated cases.
[2] Unanimous cases include 8-0 opinions where a Justice did not sit and one case where the vote was not announced; 5-3 decisions were not included as “one-vote” decisions as the vote of the Justice not sitting would be speculative.
[3] Including two cases that were “GVR’ed” – that is “granted, vacated and remanded.”
- tloojs
- Jul 21, 2021
- 3 min read
Kelly Lamont Poole v. Commonwealth of Virginia involves a conviction under Code § 18.2-61(A), Virginia’s non-consensual rape statute (as opposed to “status-based rape” commonly referred to as “statutory rape”). Since 2006, Code § 18.2-61(A) has clearly stated that it applies to non-consensual “sexual intercourse with a complaining witness, whether or not his or her spouse.” If you know the history of common law rape, you know that it was not possible for a man to rape his wife, this stemming from the time — not really that long ago — when women were considered the property of their husbands and, thus, lacking in free will. The law has evolved over time and it is now clearly understood that “no means no” regardless of the status of the victim.
Well, “clearly understood” may be something of an overstatement, Poole being a case in point. Without going into the details, it is clear that Poole and the victim were married at the time of the incident in question. Poole understood the bond of matrimony to mean that he could sleep with whomever he wanted — there was “a lot of infidelity” during the six year marriage — and his wife could stay home, raise the kids and keep her d*** mouth shut if she didn’t like it.
While the wife described their relationship as “rocky” and said there had been discussions of separating, the couple were living together at the time of the incident that led to the rape charge against Poole. Although the two shared a bedroom out of necessity, as the apartment had only two bedrooms and the children occupied the other, the wife indicated that when they slept in the same bed (that is, when Poole was not sleeping somewhere lese away from the home) they were separated by a barrier of pillows and used separate blankets.
One evening when Poole was spending the night, he “suggested” the couple have intercourse. The wife refused and went to sleep. Sometime later she awoke to find Poole on top of her, pinning her down. The incident lasted about 20 minutes and let the wife sore and bruised.
As is often the case, while there was forensic evidence suggestive of forced intercourse, the Commonwealth’s case rested upon the victim’s testimony that she had not consented to engage in intercourse with Poole against his instance that she had been a least reluctantly willing to submit or had initiated the encounter. The trial court, sitting without a jury, found the wife’s version more credible.
After the trial, Poole asked for reconsideration, arguing that despite the language of the statute, the Commonwealth was still required to prove that there had been a “de facto” termination of the marriage. Poole contended that Code § 18.2-61(A) was merely a codification of the common law as it existed at the time the law was amended to include a spouse as a potential victim. Accordingly to Poole, this meant that the Commonwealth must prove that the marriage had been terminated by conduct of the victim — that that the spouse had clearly revoked the implied consent presumed to flow from the marital state.
Poole is technically correct that at when Code § 18.2-61(A) was amended in 2006 there was case law suggesting that the Commonwealth had to present evidence that the victim had affirmatively withdrawn the implied consent of marriage, though it was probably not required to be the equivalent of a “de facto” termination of the marriage. The circuit court, however, denied the motion for reconsideration without comment, so it was not clear whether the court agreed with Poole, but found that the Commonwealth had met the burden, or found that the amended statute eliminated the requirement to prove the withdrawal of consent by the spouse victim.
Today, the Court of Appeals makes clear that the amendment of Code § 18.2-61(A) abrogated any distinction between spousal and non-spousal rape. The Court holds that “the General Assembly’s intent to remove any additional elements needed for a conviction of rape when the defendant and victim are spouses . . . could not be more clear in the added language of the current statute that prohibits forcible sex with another ‘whether or not his or her spouse.’”