The list of cases decided by the Court of Appeals this week is impressive -- seven summary paragraphs. However, the number of cases decided is only 4 total, as 4 of the seven record numbers each getting a summary are from a consolidated appeal. Before getting to the "new" decision, we first consider the rehearing en banc of Steven Wayne Shifflett v. Commonwealth of Virginia. The original unpublished decision was released September 12, 2023 with Senior Judge Haley writing the majority with the support of Judge Chaney to reverse and remand and Judge Ortiz dissenting. Judge Ortiz authors the majority for the full Court joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, Malveaux, Athey, Fulton, Friedman, Raphael, Lorish, Callins and White. Judge Chaney is the lone dissenter (as Judge Haley, as a senior, did not sit with the en banc Court), but picks up some support for Judge Causey, who concurs in part and dissents in part. Judges AtLee and Humphreys did not participate
So what's it all about? Well, it's the latest chapter in "What the heck did the legislature mean when it revised the revocation statute?" Specifically, the issue here is whether failure to complete sex offender counseling as a condition of probation is a "technical violation" rather than a violation of a "special condition." More specifically, when Shifflett failed to complete the required counseling (and some community service hours), was he only "technically" in violation of his probation because he failed to follow the directions of his probation officer or was he in violation of a special condition.
If you are not already aware, this matters because "technical violations" are subject to strict limits on the amount of "comeback" time the court can impose on the recalcitrant probationer. Most "technicals" are subject to no active time on a first violation, and no more than 12 days on a second. But if the probation commits a"non-technical" violation, it's Katy bar the door and the court can reimpose up to the full suspended sentence.
Now at first blush, this would seem to be a simple question construction. One would think that the trial court (and the appellate court in turn) would look to the wording of the statute and the terms of the probation as set out in the sentencing order and conclude that either sex offender counseling was a "technical" requirement of the probation or it wasn't. That is, the relevant statute enumerates what is a technical violation in its first paragraph in 10 clauses. I have in prior discussions of this statute pointed out that the General Assembly somewhat missed the mark here as these violations, listed as i-x in the statute, appear on the form used to report violations of probation as 2-9, but that is an issue for another day.
So, looking at the statute, there is no "technical" violation of failing to complete sex offender counsel (or any form of counseling), so the failure to do so must be "non-technical," QED. At least that is what the first paragraph of the majority opinion seems to state. However, it takes another 14 pages to justify that conclusion. This is because the order in which the requirement for Shifflett to "enroll" in the counseling and treatment did not expressly require him to "complete" it. Thus, he argues that his failure to complete the program was not a violation of the special condition to take part, but of his probation officer's direction to complete the program successfully.
The dissenters (for Judge Causey, though concurring in much of the majority's reasoning about the statute in general, would nonetheless reverse on the facts of this case) take the view that the majority is permitting a court to delegate to much authority to the probation officer in setting terms that constitute special conditions. In simplest terms, they would apply to maximum that a trial court speaks only through its orders in setting the terms of the probation and anything that goes beyond the strict letter of the order by giving discretion, overtly or implicitly, to the probation officer to "administer" those conditions can only result in a technical violation of failure to follow the probation officer's instructions.
While I am not unsympathetic to the dissent -- for example, I do not think that a court could include as a "special condition" a requirement that the probationer "follow any special conditions as determined by the probation officer" and then rule that the failure to do so was a "non-technical" violation, here I think that the majority has the better argument that the court's order to enroll in the counseling program was not merely a requirement to fill out some paperwork. Could the order have been more explicit? Yes, and that is Judge Cuasey's well taken point. However, on balance I think another rule of construction may have better application -- the one that says a court is best situated to interpret its own orders. Here the circuit court interpreted the order as requiring Shifflett to enroll and complete the counseling.
Buck Wilson Terry, Jr. v. Commonwealth of Virginia is the shortest of the Court's four opinions this week, and like the en banc, it's a revocation appeal, so we will deal with it here very briefly because it involves a claim not raised below and the Court of Appeals' determination that Rule 5A:18's ends of justice exception does not apply. Normally, such a decision would not be published and might not even rate an opinion, but this case does get the full treatment because, well, we're still asking "What the heck did the legislature mean when it revised the revocation statute?"
After this revocation hearing, Terry realized that maybe the circuit court had misunderstood the distinction between technical and more serious transgressions of probation and should not have sentenced him to serve 18 months of his suspended sentence for mere technical violations. He contends to the Court of Appeals that this means his sentence was unlawfully imposed as the circuit court lacked jurisdiction to impose it. This argument has been raised before and has been successful when it was raised and rejected in the circuit court. The Court, Chief Judge Decker, joined by Judges O'Brien and Causey, conclude that this is not a type of jurisdictional error that results in an order being void ab initio and, thus, not bared by Rule 5A:18. Moreover, the error, if there was one, was simply an error of law which is not correctable under the ends of justice. Good luck on your habeas petition, Mr. Terry.
I refrained from diverging from the summary when I used the term "Katy bar the door" a few paragraphs up. I flatter myself to think that at least of few of the regular readers (perhaps I flatter myself that there are regular readers) of this space were disappointment when I did not wax pedantic on the origin of the phrase. Well, there is good cause for that. The origin, you see, is "obscure." There is a fanciful story that it refers to the heroic action of Catherine Douglass, a lady in waiting to Joan Beaufort, Queen consort of James I of Scotland. Supposedly, a plot to assassinate the King was hatched that included the deliberate unbarring of the door to the Royal Bed Chamber. As the assassins tried to enter the room, the lady through he arm through the cross-pieces in an effort to "bar the door". The door was forced nonetheless, breaking the lady's arm. There after she was known as "Catherine Barlass."
The trouble with this origin is that the story is virtually unknown before the late 19th century when it was recounted in a poem which included the line "Catherine bar the door." Problematically, there is no indication that Catherine was known as "Katy." Moreover, the phrase is attested to in writing prior to the publication of the poem.
It has also been suggested that the phrase and the line in the poem are both a reference to a better known Scots tale entitled "Get Up and Bar the Door," a ballad about a battle of wills between a husband and wife. But there is no extent version of the tale in which the wife is identified by name, let alone as Katy. More to the point, in the ballad, the wife wins the argument and it is she who tells the husband that he must bar the door. There is also no evidence that the phrase as anything to do with the defensive style of ice hockey called "kitty bar the door." The same strategy in soccer is called "park the bus."
And now back to our regularly scheduled programming with A.A., et al. v. J.M., et al. This is the opinion that consolidated four appeals. The case itself involves an adoption where the child being adopted is in a foreign country, and this resulted in the case have amici briefs filed by the federal government along with two NGOs. The Court of Appeals, Judge Ortiz joined by Judges Fulton and Lorish, begins by stating that "[t]his case comes before us with a lengthy procedural history, revolving primarily around four court orders. The first three of those orders awarded custody of the child, alleged to be a stateless orphan then living in Afghanistan (November 6, 2019), an interlocutory adoption order (November 10, 2019), and a final adoption order (December 3, 2020).
In 2022, relatives of the child appeared for the first time made an appearance in Virginia to contest the adoption. This was obviously more than six months after the final order, and the adoptive parents contended that the relatives' claims were thus untimely Code § 63.2-1216, which makes a final adoption not subject to challenge after six months. The circuit court denied the adoptive parents' plea in bar and ultimately ruled that the relatives were not barred from challenging the adoption because they were at the time the de facto parents of the child and had not been provided proper notice.
The child was an infant, severely wounded in an attack that also killed the child's parents. The US military alleged that the parents were "non-Afghan terrorists" killed when the mother attempted to commit a suicide bombing on US troops. The relatives asserted the parents were farmers killed in an American airstrike. The child's adoption was the result of a US service member seeking to adopt the child and have her brought to the US for medical treatment.
Shortly after the interlocutory adoption order was entered, the International Red Cross was able to successfully identify the relatives of the child and the child was turned over to the Afghan government for placement with the relatives. The adoptive parents sought to enjoin the transfer in federal court proceedings. As the child remained in Afghanistan, proceedings in the US were delayed and ultimately the matter was determined to be outside the court's jurisdiction. Nonetheless, the adoptive parents continued the proceedings in the state court and were granted the final adoption, even as physical custody of the child was given to the relatives in Afghanistan.
At this point, the case veers out of the realm of legal proceedings and into that of international politics. The adoptive parents sought assistance from political sources, including the Office of Vice President Pence.
In what will undoubtedly not be the last chapter of this story, the Court of Appeals determined that the Virginia Courts never had jurisdiction to enter any of the orders regarding the adoption, and as these orders were this "void ab initio," the court properly vacated the final adoption in 2023. This ruling, however, does not even end the case should the adoptive parents elect not to seek review in the Supreme Court, as the matter of the custody and adoption of the child remains ongoing in the circuit court as the child is now subject to the jurisdiction of the Virginia Courts by virtue of her presence in the US. The Afghan relatives are seeking custody and adoption, which the American adoptive parents are free to challenge as interested parties.
Finally we come to The Episcopal Diocese of Southern Virginia, et al. v. Robert K. Marshall, et al. As mentioned in the post's heading, this is a separation of church and state case. More specifically, it involves the application of the ecclesiastical-abstention doctrine, which basically says that the secular courts should not get involved in doctrinal squabbles. The doctrinal squabble here is of a less than saintly nature, as it involves the allegations of "sexual misconduct" by a former Episcopal priest. The priest alleged that the allegations, which were revealed to his congregations along with the assertion that he had admitted to the behavior, was defamatory per se, and sued the Bishop, the diocese and the national church.
The opinion describes the conduct which is not nearly so squalid as most folks would assume when hearing that a priest committed "sexual misconduct." But, that phrase, as you might guess, has a much broader term under canon law than under the civil law. There in lies the rub of whether the circuit court erred in ruling that the civil authority could judge whether the ecclesiastical statements on the case could be defamatory in a civil context and allowed the suit to proceed. The court, however, wisely recognized that this would be a controversial decision and permitted the matter the be brought by interlocutory appeal.
The Court of Appeals, Judge Raphael joined by Chief Judge Decker and Judge White, finds that the ecclesiastical-abstention doctrine bars the suit. The reasoning is fairly straightforward -- whether any of the priest's actions rose to the level of "sexual misconduct" that a normal person would conclude was illegal -- the requirement for defamation per se -- was not the issue. Rather, the issue was whether the civil authority could hold a church and its representatives to the civil standard when their judgment was that the priest had committed a violation of canon law. This would necessarily, and impermissibly, involve the court in matters of church doctrine.
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