Steve Emmert, the Sage of Virginia Beach, beat me to the punch on analysis of the recent elections and the potential impact on the bench. His analysis is in accord with my views, so instead of a rehash, I will instead tread cautiously onto his turf with some observations on the Supreme Court of Virginia's Docket and some recent OJ filings in that Court.
So it wouldn't have been too long ago (say five years), that saying the Supreme Court of Virginia had 25 cases on its docket wouldn't have been big news. Twenty-five case on an argument docket was not unusual, though dramatically down from the 1990s when twice that number was the norm. However, since COVID and the change of appellate jurisdiction shifting virtually all first appellate reviews to the Court of Appeals, the number of pending cases steadily declined and only recently has begun to rebound.
Accordingly, with the argument of six cases last week and the addition of one newly granted appeal today, the presence of 25 undecided case for which full Court will sit in review is definitely worth a banner headline. One of those cases, Vlaming v. West Point School Board, et al., was argued over a year ago and is obviously giving the Justices agita. The issue is the firing of a teacher who refused to use a student's preferred pronouns, so how (or when) the case will come out is anybody's guess. I wonder if the Justices are hoping to find a consensus for DIGing the case -- Dismissing as Improvidently Granted?
There are eight other cases that have been argued but not decided. Two were argued in September and decisions should be forthcoming soon, perhaps as early as tomorrow. The other six were those argued last week and it will likely be late in the year or even in January before we see opinions for any given that we will soon enter the period of Holiday malaise which impacts the flow of legal business every year starting with Veteran's Day.
Among granted cases, there are now 16 pending briefing and argument. Only three of these were granted before the Summer hiatus (and one of these was set for argument last week, but continued). Barring a late grant from the October panel or an original jurisdiction case, the docket is likely set through the end of the year, with the January Merit Argument Docket being set sometime in early December with (and this is a guess), not more than 10 cases.
We don't always hear about OJ cases because many never make it to the argument docket because of procedural issues. Let's take a look at some recent cases that either have already fallen by the wayside or are likely to. For example, there is a SCC case that has been filed, but not yet set for briefing, Akerman v. State Corporation Commission, et al. Mr. Akerman, a pro se litigant, has an interesting history of filing litigation in the federal courts in recent years seeking damages for various alleged wrongs by the Department of Defense, his former employer, thus far without much success. I just wonder what his beef might be with the SCC and the other defendants, which include Nationwide Insurance and Starwind Insurance, which fall under the SCC's jurisdiction, and the Arlington Circuit Court, the Virginia Court of Appeals, and Attorney General Jason Miyares, who decidedly do not. I expect that Mr. Ackerman, who is a well-educated person (currently a Ph.D. candidate at George Mason University) might have the capacity to get his brief in proper order, but I doubt that even if he does his case will get any better treatment in the state courts of Virginia than his federal cases have fared.
Akerman also has an appeal pending on the civil docket in which the Arlington Circuit Court and the Court of Appeals are named as appellees. This appeal relates to a still pending appeal in the Court of Appeals that names several of the appellees from the SCC case.
There is a Virginia State Bar Disciplinary case, Vena v. Virginia State Bar, but the record was just received at the end of October, so it will not be ready by January. Vena, who is pro se, had his license suspended for 5 years -- sort of. Some interesting points from the memorandum order of the committee include the observation that "[d]uring the Prehearing Conference, the Respondent was disruptive, rude, and demonstrated a complete disrespect for the Disciplinary proceedings and the parties to the Prehearing Conference by refusing to comply with requests from the Chair to conduct himself in a professional and polite manner, to discontinue insulting other parties on the call, and stop interrupting other people while they were speaking." During the actual hearing, "Respondent displayed disruptive and disrespectful behavior toward the Board, the Bar Counsel and the Clerks. The Respondent repeatedly intenupted other parties and the Board, spoke while other parties were speaking, made rude and disrespectful comments while others were speaking, cursed at one witness, and continuously demonstrated contempt and disrespect for Bar Counsel and the Chair." This not an auspicious start to a proceeding where usually an attorney's livelihood is at stake.
Now what really makes this case interesting is that Vena was not at the time of his alleged misbehavior a member of the Virginia State Bar, nor was he ever a member and apparently has made no effort to become one, despite officially working at a law office in Northern Virginia where -- and this is based on the record from the disciplinary hearing -- it sure looks like he was offering legal advice to clients. This may lead you to question how the Virginia State Bar has the power to discipline and suspend Vena's license to practice law in the Commonwealth. Well, that's because Rule 5:5 specifically says that the Bar has jurisdiction over a lawyer who practices "in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction." Vena is a member of the Connecticut State Bar, so he is a lawyer -- and he did practice (or so the committee found -- he disputes this) in Virginia in violation of the regulation of the legal profession in this state -- that makes him both subject to and in violation of the VRPC.
OK, but how from that do we get to the suspension of a license that Vena does not have? Well, that's an interesting issue. You see, the Bar does not have the authority to impose sanctions not allowed by the Rules, such as monetary penalties. Indeed, in this case, the committee noted it did not even have the power to hold Vena in contempt for his disrespectful behavior (not so when the respondent opts for a three judge panel which has the full panoply of contempt sanctions available to it, including jail time -- so Vena was wise not to go that route). So the committee is forced to impose a sanction which is allowed, which means a reprimand, suspension or revocation. Does this mean that Vena is in essence getting away with violating the VRPC since the punishment has no real impact on him? No, the disciplinary sanction will be reported to Connecticut (and also to Maryland, where he has applied for admission). Whether these states take action is, of course, for their Bars to consider. Presently there is no pending action in the Connecticut. It is also possible that Vena could be prosecuted for the crime of unauthorized practice of law.
Another disciplinary action, Kennedy v. Virginia State Bar was procedurally dismissed back in September. Kennedy, whose full name is John Fitzgerald Kennedy, had his license revoked following a disbarment by the DC Bar (and also by the Pennsylvania Bar for the same reason). He also held licenses in Maryland, Colorado, Massachusetts and New Jersey. His disbarment in Colorado is pending appeal, and he is listed as "inactive/retired by the Maryland State Bar). In Massachusetts he is "suspended for an indefinite period," while in New Jersey his license was "administratively revoked."
Kennedy practiced with his wife, Kathleen Dolan, who was also disciplined in the same proceeding in DC and given a suspension of 9 months. The DC action was the result of "misconduct arising out of a litigation and settlement of a collective action and their misappropriation of the entrusted settlement fund for a matter in which they represented over 100 current and former security officers with wage claims against their employer. The settlement was $310,000, of which Kennedy and Dolan took 67% and then told the claimants that the balance of just over $100,000 was the actual amount of the settlement. The investigation of this claim resulted in the Maryland Bar finding additional problems with the firm's trust account.
Updated: Nov 11, 2023
[Editor's Note: At times, these posts will strive to balance the serious with the entertaining and sometimes even droll aspects of appellate law. This is not one of those times. Even without my personal involvement in this case, I feel very strongly about the underlying issue in the one appeal published by the Court of Appeals -- the treatment of those with significant intellectual challenges within the criminal justice system. Accordingly, this post will take on a sober tone which I reserve for those cases that should be taken more seriously than most. ]
With Election Day being an official state holiday now, the courts were closed yesterday, which means that this week Court of Appeal's opinion day was today. There was one published decision and I will disclose at the outset that I was counsel for the appellant in Anthony Tremaine Stewart v. Commonwealth of Virginia. If you listen to the oral argument of the case, you will understand that the result in this case affirming the judgment is, while not unexpected, difficult to take. Explain why will require going beyond the recitation of the facts in the Court's opinion by Judge Callins joined by Judges Raphael and Lorish. The Court correctly notes that its consideration of the facts requires them to be "'stated in the light most favorable to the Commonwealth, the prevailing party at trial.' 'Therefore, we will ‘discard the evidence of the [defendant] in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" (slip op. 1-2, citations omitted). Even in doing so, however, the Court did acknowledge in its opinion the nature of the case as "tragic" as Judge Callins observed during oral argument.
Anthony Stewart was injured when he was a teenager suffering a traumatic brain injury. In addition, Anthony has been diagnosed with multiple learning and intellectual disabilities and since the accident his IQ has never been determined to be higher than 65. Additionally, Anthony suffers from long-term renal disease, requires regular dialysis, and will likely die from kidney failure long before reaching a "normal" life span, meaning that he will almost certainly die in prison as he received a 22-year active sentence.
Like so many people with limited intellectual ability, Anthony has been taken advantage of by unscrupulous people who can manipulate him into doing their bidding in illegal drug trafficking and then conveniently use him as a scapegoat when they are caught and charged. In many prior instances, Anthony was charged and then determined to be unrestorably incompetent, resulting in his release from custody and the charges being dismissed. Although recent changes in the law provide for some level of "aftercare" in such cases, during Anthony's prior legal troubles, he was simple released with no plan for community support or treatment.
It is true that on two occasions experts offered the opinion that Anthony was minimally competent. In the present case, the experts opined that he had attained competence as a result of a period of abstinence from drug use, a stable diet, stable schedule and housing (due to incarceration), consistency in treatment-adherence for his medical conditions (i.e., dialysis, medications), and recovery from an exacerbation of his [end-stage renal disease] in 2018.” This opinion, however, was made nearly concurrently with one offered a separate case in the same circuit court finding that Anthony was not competent to stand trial and dismissing the charges against him.
I have met with Anthony and reviewed his medical records. I seriously doubt that anyone who was familiar with him and his history would have any difficulty in believing that Anthony truly does not appreciate the intricacies of trial. Indeed, the experts that found Anthony to be competent conceded that they frequently had to repeat questions and coach him with explanations of the trial process during their examination -- and even then his answers were often suggestive that he really did not comprehend simple concepts. For example, Anthony was asked to explain the role of the trial judge and he responded, "He wants to put me in jail." That is not the judge's role -- nor is it the prosecutor's role, though arguably it would show some understanding of the prosecution's goal.
Nonetheless, the issue before the Court of Appeals was whether the experts' opinion was sufficient in this case to permit the circuit court to find that Anthony was competent at that time (although the finding and its subsequent challenge at trial were separated by more than a year). The Court of Appeals concludes that the finding was "was not plainly wrong or without evidence to support it."
Am I surprised at this result? No. I had advised Anthony's family from the outset that this was almost certainly going to be the result as the standard of review is well known and intractable. Am I satisfied with this result? Also no. It is possible to recognize the legal correctness of a decision and be unsatisfied with the result, and this is one case where I believe that dissatisfaction is justified. First, I do not believe that the content of the experts' opinion justifies their conclusion that Anthony was competent and I believe that the appellate court could, under the prevailing standard of review, find this to be the case. It is certainly not beyond belief that an expert's conclusion must be accept as unassailable when the evidence relied on clearly is open to interpretation and has previously resulted in a opposite view -- in fact, in a prior case one of these experts had opined that Anthony was unrestorably incompetent, but changed his mind.
The second reason I am dissatisfied is because Anthony Stewart never should have been in the position to be charged with these serious offenses. In a moral society, those who are vulnerable to abuse, neglect, and manipulation should be protected. The evidence is clear that that a large percentage -- possibly even a majority -- of long-term "criminals" presently imprisoned in this country are not well-adjusted, high functioning adults who chose to pursue a life of crime. They have intellectual disabilities, organic mental illness, and/or substance abuse addictions that often arise from efforts to self-medicate. The documented history of childhood and adolescent abuse of people who become "incorrigible" offenders is well known.
Yet unlike all other civilized, advanced societies, the US prefers to warehouse its intellectually challenged in prisons rather than provide them with appropriate care and support before circumstances lead them to become just a statistic in the criminal justice bureaucracy. As the parent of an adult child with significant intellectual challenges I know that even with proper love and care, it is difficult to assure that such persons will remain outside the reach of the police and the courts. I single incident when the individual is not watched over can lead to a misunderstanding and can result in significant harm that will draw that individual into a criminal justice system that more often than note follows a "one size fits all" approach. Even when the system does recognize the limited culpability of an intellectually challenged defendant, the result more often than not is to simply stop the process and hope that someone else will assume responsibility.
This is not how a civilized society should treat is vulnerable citizens. We can do better. We must do better. It may yet be that we can find a way to help Anthony Stewart, and we must try to help prevent the next case like Anthony's.
The Court of Appeals issues 4 published opinions in the last weeks of October. You humble correspondent was busy presenting CLEs for the VMVLA as October is also the deadline month for attorneys to get their education credits, so this post is a bit late.
Gloria Neal v. Secretary of the Department of Veterans Affairs is, despite its name, a garden variety unlawful detainer action (what most folks call an eviction) its just the the DVA is the owner of the property in question. Well, perhaps not so garden variety in that in involved a reversal of a judgment granting possession to the owner.
Neal owned a home in Haymarket, Virginia subject to a deed of trust. That deed of trust secured a loan from Wells Fargo. The loan was guaranteed by the VA, and the deed of trust contained a “rider” requiring, per Neal’s answer, “compliance will [sic] all VA regulations in effect at the time of the execution of the deed of trust.” In 2016, Neal obtained what she understood to be a loan modification. What she understood being the key language here
At some unspecified point after this modification, Neal fell into default and the substitute trustee on the deed of trust initiated a non-judicial foreclosure sale in July 2019 at which the VA was the highest bidder. The VA subsequently obtained a foreclosure deed that was duly recorded. The VA sent Neal a notice to quit and vacate, and upon her refusal to do so filed an unlawful detainer action in the Prince William County Circuit Court.
Neal answered the unlawful detainer complaint and admitted that she was in default. However, Neal asserted an affirmative averment that when she obtained her modification, she was told by a representative of the VA she no longer had a “VA loan” that required compliance with all of the VA regulations. Neal asserted that this statement was a material misrepresentation and that had she known that the VA representative was incorrect in his assertion that she no longer had a VA loan, she would have availed herself of certain protections contained in the VA regulations and guaranteed to her in her deed of trust.
The VA moved for summary judgment and the circuit court granted the motion. The Court of Appeals, Judge Humprheys joined by Judge Ortiz and Sr. Judge Annunziata, reverse, finding that the allegation of the affirmative defense, which must be taken as true for purposes of summary judgment, are sufficient to create a disputed issue of fact. The case is remanded for further proceedings.
Tanya Rashae Holland v. Commonwealth of Virginia involves the issue of whether a defendant should be allowed to withdraw a plea of no contest where her former attorney has been suspended by the state bar and her new counsel provides information about the nature of the offense and a possible defense that the prior attorney did not advise her. The opinion of the Court, Judge Lorish, joined by Judges Raphael and Callins, is 23-pages long, but for me this was a no-brainer because the first sentence reads, "Consistently maintaining that she gave her child the wrong medication by accident, Tanya Holland entered a no contest plea to felony child neglect resulting in serious injury."
Felony child neglect requires a willful act. If Holland consistently maintained that she had not acted willfully, in my view the circuit court should not have accepted her plea, even as a no contest. At the very least, the court should have made d*** sure that she understood that a no contest plea meant that the she was conceding the Commonwealth had evidence that was sufficient to prove she acted willfully.
Because the motion to withdraw the plea was made prior to sentencing, Holland was only required to show that she had a reasonable defense to the charge and was not interposing the motion to withdraw merely to delay the proceedings. The Court of Appeals reserves and remands.
Marco Antonio Martinez Ayala v. Commonwealth of Virginia involves a motion to suppress post-arrest statements by the defendant. Ayala, a native Spanish speaker, said that he spoke English "pretty good" and that while the charges had been explained to him earlier, he "did not understand a lot" of what he had been told. Before reading the Miranda warning in English and providing Ayala with a written Spanish translation, the officer advised Ayala that the charges were "serious" and involved the rape and sexual assault of a minor. Ayala then signed the Spanish language version of the form.
The officer did not verify that Ayala understood the nature of the offenses better than he had previously, but when told of the statements of the victim, Alaya replied "That's what she's saying? Wow!" Alaya denied any improper contact with the victim and said that he wanted an attorney. At this, the interview ended.
Now, you may be wondering, as I was at this point, what exactly Alaya want to suppress. Well, apparently he wanted his denials to be suppressed because in Henrico County, where this case comes from, the prosecution plays interviews where a defendant denies allegations against him and then argues to the jury that he was sincere is his denials. This is, of course, not exactly improper -- but in my view it creates a dam**d if you do, dam**d if you don't prospect for suspects that defeats the purpose of the 5th Amendment.
The Court of Appeals, Chief Judge Decker joined by Judges Athey and White, doesn't see it that way, however, and agrees with the circuit court that Alaya was adequately advised of (and exercised) his rights. So file this one under the "Keep you d*** mouth shut except for the words "I want a lawyer."
Debra K. Clutteur v. Nancy C. Rosier involves the dismissal of a nonsuited and recommenced personal injury action on a plea-in-bar of the statute of limitations where the defendant was deceased and plaintiff moved to substitute her estate as the defendant. Now, you would be forgiven in thinking that the nonsuit was taken because the defendant had died and the recommenced action was mistakenly brought against her rather than the estate.
But no, Rosier had been dead all along. Indeed, she had died nearly a year before the original suit was filed . . . in 2017. It seems the first action was filed and remained in her name until after the time time for substituting the personal representative (or filing a separate action against the estate) had passed. The non-suit was an effort to get around that bar, and the circuit court found that it was not a proper one. The Court of Appeals, Judge Chaney, joined by Judges Humphreys and O'Brien, agree.