[Editor’s note: the final case summarized today is probably the one that will be most relevant to the general practice of law as it involves the application of Virginia’s “longarm statute” for purposes of establishing personal jurisdiction over out-of-state medical providers in a wrongful death suit – it’s just not as much fun as the first three, but if you prefer to get to it fast, feel free to skip to the end.]
The Court of Appeals released four published opinions this week, one of which should have attorneys generally, and Commonwealth’s Attorneys especially, saying “that was a close one.”
Or rather, not really a close one at all. Nickolas G. Spanos v. Shannon L. Taylor is an appeal by a pro se appellant with a colorful history in a misspent youth and more recently a crusader for truth as “President of Exposing Corruption in Virginia's Justice System” according to his Linked-In page. Since 2020, Spanos has filed 13 appeals in the Court of Appeals against various persons including Sr. Judge John Gibney of the Eastern District, 15th Circuit Court Judge Joseph Ellis, Assistant Attorney General Brittany McGill, and Richmond attorney Howard Vick who about 35 years ago had a run in with Senator (and disbarred attorney) Joseph Morrissey in a case with strikingly similar facts to the present one involving Shannon L. Taylor, the Commonwealth’s Attorney of Henrico County – there were two other cases filed concurrently against attorney Michael Feinmel, who is the Henrico County Deputy Manager for Public Safety, the appeal of which was dealt with by an unpublished opinion, and Henrico Circuit Court Judge Lee Harris, the appeal of which seems to have gone astray (but never fear, because Judge Harris, along with Taylor and Feinmel and others, is the appellant in three other cases filed by Spanos).
So, the first thing you need to know about this case is that Spanos filed his action against Taylor in the Circuit Court of Louisa County. While the opinion does not go into the reasons for this, one can speculate that Spanos did not want the case being heard in the same circuit in which Taylor regularly appeared, and where Spanos has filed 8 of his suits, so far all without success.
The next thing you need to know is what Spanos wanted the circuit court to do, which was to consider a legal ethics complaint against Taylor and “to revoke [Taylor’s] license(s) [to] practice law in the Commonwealth of Virginia, or discipline [Taylor] consistent with the laws of the Commonwealth of Virginia.” Taylor demurred to the complaint, asserting that matters of attorney ethics and licensure was an exclusive province of the Virginia State Bar, and the circuit court could not grant the relief requested. The circuit court granted the demurrer and the Court of Appeals, Judge Friedman joined by Judges Beales and Callins, affirm.
I am not going to get into the weeds of Spanos’ contention that any person has standing to seek discipline of any attorney in any court of the Commonwealth in an original action – that is not as part of a case already before the court. Suffice to say that the 14 pages the Court devotes to painstakingly explain why this is not so was probably necessary, but still more space than Spanos should have been entitled to.
So the good news is that attorneys will not have to defend against citizen-initiated suits in the circuit courts seeking their disbarment. The bad news is that Spanos is not done yet, as he has cases pending in at least three jurisdictions against Taylor, Harris, and many others.
Moving on to something only slightly less tiresome, KSS One, LLC v. Henrico County, Virginia, Board of Supervisors of Henrico County, et al. also involves a demurrer. In this case, the action brought by KSS One, LLC was an attempt to overturn a circuit court order finding that KSS failed to state a cause of against the County, its governing body, and several others, in seeking to stop the construction of a childcare center on an undeveloped parcel that was part of an office condominium park. Although originally approved back in 2004, the project was slow to be developed, but by 2020, six of the eight parcels in the park had been developed, with a seventh underway. The original development plan had included a childcare center as a possible use, but none of the parcels had been developed for that purpose. KSS was the owner on one of the developed parcels.
What happened next has an interesting twist thanks to the COVID pandemic. In 2020, the county manager for Henrico County also declared—and the Board of Supervisors confirmed—that a local emergency existed “because of the COVID-19 pandemic.” On April 15, referencing the continuing emergency, the Board of Supervisors adopted a ordinance delegating to the planning director the authority to “approve plans of development during the Emergency.”
While the planning director was vested with this power, the owner on the last remaining parcel sought approval to build a childcare center – a use approved back in 2004. After some negotiation with the planning staff and some adjustments for parking and the like, the director approved the plan.
This did not sit well with KSS and some of the other condominium tenants. The opinion does not go into why, but presumably it had to do with the increased traffic, noise, and safety issues, and not merely out of an intense hatred of toddlers. Or at least one hope not.
The most interesting of the reasons KSS advanced for the approval of the childcare center being improper was that the delegation of the power to approve development plans to the director was improper because he was thus vested with the power to decide issues in which he was also acting as an “advocate.” The theory was that since his department was responsible for negotiating with the developers, the Board of Supervisors’ ceding to him the power to approve the development plans was not kosher in terms of due process. KSS also alleged that it was being deprived of a vested right, though I was somewhat baffled by exactly what those rights were supposed to be, since the childcare center had been part of the original plan.
The Court of Appeals, Judge Raphael joined by Judges Chaney and Callins, affirms the circuit court’s sustaining of the County’s demurrer. This opinion is only slightly longer than the opinion in Spanos v. Taylor, but somewhat more deserving of that space.
We finally get something with some real law in Shaquawn Demonte Warren v. Commonwealth of Virginia. There are two issues in this appeal, and the first involves a topic of interest of late – the restoration of civil liberties after conviction of a felony. In this instance, the issue arises with respect to whether a venireman was eligible to serve on the jury in this DUI trial. The prospective jury told the court that he had been convicted of felony DUI, but that his civil liberties had been restored and he had voted in several elections since then. However, the Virginia Criminal Information Network did not show that his rights had been restored.
The Commonwealth moved to strike the juror for cause, contending that the evidence was equivocal as to whether he was eligible to serve as a juror. The defense objected, arguing that the juror’s name was on the voting rolls, indicating that his rights had been restored. After checking another database and not finding evidence that the juror’s rights had been restored, the court struck the juror for cause.
After the jury was seated, but before the trial began, the Commonwealth moved to exclude evidence from Warren to support a defense of necessity. According to Warren, when he was stopped by police for going 96 in a 60 and erratic driving, he was “frantic” because he had learned that his cousin had been shot and was rushing to get to him and take him to a hospital. The circuit court granted to motion to exclude the evidence.
We pause now to address the “defense of necessity” with respect to speeding. It is indeed true that Virginia does recognize a defense of necessity to speeding – but contrary to the dozens of attorney websites that come up when you Google® “defense of necessity speeding Virginia” it is rarely successful. The reason is simple – if you have a legitimate emergency that warranted driving at an excessive speed (but otherwise safely), most officers will give you a lights and sirens escort to your destination, not a ticket.
Warren was duly convicted and appealed these two issues. The Court of Appeals, Judge Humphreys joined by Judges Atlee and Raphael, affirmed. The juror qualification issue was committed to the sound discretion of the trial court, which observed and heard the venireman’s statements. While the court affirmatively stated that it believed the venireman was being truthful with respect to his belief that his rights had been restored, the equivocal evidence was sufficient to give the court a valid reason to exercise its discretion and excuse the juror for cause.
The discussion of the necessity defense issue was more nuanced. While acknowledging that the court is typically given deference on questions of the admissibility of the evidence, in this case the evidence was being proffered as an affirmative defense, and the accused is entitled to bring evidence in his favor. Thus, the Court had to consider whether Warren’s proffered evidence supported a necessity defense.
Necessity as a defense asserts, in essence, that the defendant was forced to choose between the lesser of two evils where obeying the law would result in some greater harm than if the law were broken. A classic example is breaking into a burning house to rescue a child trapped inside. Technically, breaking and entering is a crime regardless of your reason for doing so, but the harm of letting a child burn to death exceeds the injury of unauthorized entry to an occupied dwelling.
Without specifically ruling that necessity can be a defense to DUI, the Court concludes that Warren’s proffered evidence did not meet the standard for a necessity defense in that there were “other adequate means to avoid” the anticipated harm – for example calling 911. Warren had testified that he feared it would take an ambulance too long to reach his cousin. However, as he was traveling from Newport News to Chesapeake, a 37-mile drive, this was not credible according to the circuit court, and the Court of Appeals agreed.
Finally we reach the opinion that was hinted at in the leading editorial note: Katherine Louise Carter, Exec. etc. v. Wake Forest University Baptist Medical Center, et al is a tragic story of the failure to detect a cancer until it was too late. The decedent was treated in both Virginia and North Carolina, and at times he or his daughter conducted “virtual” visits with the North Carolina Providers. Following her father’s death, Carter qualified as executrix and brought a wrongful death action against both the Virginia and North Carolina providers. The latter argued that there were not sufficient “minimum contacts” to allow Virginia to exercise jurisdiction over them. The circuit court agreed and dismissed those defendant’s from the suit.
The Court of Appeals, Judge White joined in her first published opinion by Judges Huff and Athey, affirm. I think that a lot of people will take issue with this result, but after reading the opinion I came away with some serious doubt as to whether it would be wise to allow one state to reach across its borders to haul medical providers into its courts, at least where, as here, the doctor-patient relationship originated in the foreign jurisdiction. Judge White’s opinion is also commendable for its brevity and succinctness. Student’s of CivPro should definitely give this opinion a careful read.
[Editor's note: After speaking to one of the attorney's involved in Carter, I am again leaning in favor of the appellant -- I think this case may be destined for a review in Supreme Court of Virginia. I think we need to acknowledge that technology generally, and COVID specifically, has altered the practice of medicine and other businesses and professions and our jurisprudence has to recognize this may mean changes in how we consider long-arm jurisdiction. It has also been suggested that the brevity of the opinion may not be entirely appropriate if the statement of facts was not fairly recounted . . . time will tell.]
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