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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Six opinions from May 7, 2024

The Court of Appeals started the month of May off strong with six published opinions, on of which was a rehearing en banc.


The rehearing was Pamela Kay Humphries v. Robert Brian Buchanan, et al. which was originally decided by an unpublished opinion in August of 2023 with a split decision in which Judge Chaney, joined by Senior Judge Haley, declined to review the appeal for lack of a necessary transcript, while Judge Ortiz dissented, finding that one issue was a pure question of law that could be decided without a transcript. The en banc was granted limited to this issue and results in a 10-6 which reverses the judgment of the trial court, with judge Ortiz writing for the majority joined by Chief Judge Decker and Judges Beales, Huff, O’Brien, AtLee, Malveaux, Fulton, Ortiz, Raphael, and White with Judge Callins, joined by Judges Athey, Causey, Friedman, Chaney and Lorish, dissenting. The argument took place after Judge Humphrey's retirement and prior to Judge Frucci taking office, so the Court was one shy for the en banc.


The issue is whether a circuit court should consider supplemental security income (SSI) received by a dependent child as an "independent financial resource" when calculating child support. The majority concludes that SSI benefits are a dependent resource which are not to be used in the support obligation.


SSI benefits are available to individuals with disabilities who have no source of income and assets that fall below a specific threshold. If the individual has income, the payments are reduced in ratio to the income received. Humphries and Buchanan have an adult disabled child who receives SSI. The Social Security Administration treats child support payments as income of the individual, calculating the income at 2/3's of the payment for purposes.


The majority reasons that because the receipt of child support reduced the SSI payments, SSI is not independent of child support, but is in fact determined by the amount of the support payments. Thus, SSI is not independent income of the child and cannot be used to calculate the non-custodial parent's support obligation.


The dissent views SSI has plainly income of the child from a source other than a parent, and thus, in that sense, independent income for purposes of calculating child support. Although SSI is a public assistance program, the dissent notes that such benefits are excluded from child support payments when received by the parent, not the child.


This case is almost certainly going to be appealed to the Supreme Court and I would be very surprised if the Court did not grant review.


Jamie Allen Harless v. Kenneth E. Nicely, et al. involves a complaint against four employees of a school division alleging defamation. The circuit court sustained a demurrer finding that the complaint failed to state a claim for defamation per se and further finding that statements made by three of the four defendants were subject to a qualified privilege.


The incident in question that resulted in the alleged defamation was a high school football game. Harless was the coach for the visiting team. When one of his players was injured during the game, Harless was alleged to have shouted obscenities at one or more players on the opposing team. The principal of the high school where the game took place, filed a report in which she repeated the alleged statements and further stated that "Harless acted in a racist manner unfit to coach when he intentionally targeted two WBHS players because they were Black," and that they had acted "like thugs" and were "big time drug dealers." SHe alleged that Harless had made this statements intentionally to bait the player and disrupt play.


Harless further alleged that at the game students and/or parents mocked him based on allegations that he had illegally recruited players to his team. He further alleged that a school board member had posted similar allegations on a social media page, while another made the allegation to the school superintendent, who then defamed Harless in a letter to the Virginia High School League.


The Court of Appeals, Judge Beales joined by Judges O'Brien and Raphael, affirm the dismissal of the complaint on demurrer. The Court finds that three of the four defendants were clearly within a qualified privilege as their communications were related to their involvement in the extramural sports program and were directed toward assuring its integrity, were not communicated outside the privileged group, and the allegation of malice in the complaint was not support by the facts asserted.


As to the fourth defendant, the Court assumed that the allegation of actual malice was sufficient to remove the privilege. However, the circuit court had also found that the statements alleged to made by this defendant were not sufficiently specific, and not objection was made to the alternate ruling. Similarly, the appeal failed to challenge the ruling on several of the statements generally in the appeal, so any objection to those statements was waived.


I will refrain from speculating on whether a high school football coach is a public figure -- though certainly the argument could be made in many communities that they are -- and thus the New York Times v. Sullivan standard might have applied here even if qualified privilege had not. I will, however, comment on the continuing trend of the Court to apply procedural bars where the appellant does not argue against every ruling of the circuit court on every issue challenged. Attorney's drafting their briefs need to take the blinders off when they are hyper-focused on a particular issue to make sure they are not leaving themselves open to a dismissal for failure to assign error to an alternate basis for the ruling.


The term NIMBY has gain a pejorative connotation over the years, but this is undeserved in many cases. Changes in zoning can significantly impact property value and quality of life, and local governments are often more focused on economic development and the attendant increase in tax revenues than on the impact of rezoning on surrounding properties. Richard Rebh, et al. v. The County of Arlington County, Virginia involves a challenge to various amendments to the comprehensive plan for development conducted by Arlington County as part of the Amazon HQ project. The plaintiffs/appellants are residents of two condominiums adjoining rezoned property.


Rebh and the other neighbors filed a four count complaint against the County alleging that, among other errors, it had failed to provide adequate public notice of the rezoning hearing. The County demurred and the circuit court sustained that demurrer. The Court of Appeals, Judge Callins joined by Judges Causey and Athey, does something a bit unusual in that they not only reverse the dismissal of the complaint, they find that as a matter of law the record establishes that the County did fail to provide adequate notice and enter judgment for Rahb.

Normally, when the appellate court reverses a decision sustaining a demurrer, the case is remanded to the circuit court for further proceedings beginning with an answer from the defendant. In this case, however, the County craved oyer of the complete record of the process which adopted the changes, and this apparently gave the Court sufficient grounds for finding that the record established the failure of the County to abide by the notice requirements.


Specifically, the notice, while quite extensive, failed to include specific elements and descriptions of the proposed changes that directly impacted the neighboring property. while the notice need not be comprehensive, it must be sufficient to either (1) notify the public as to what specific geographic area would be affected, or (2) notify the public as to the manner in which this geographic area would be affected. Finding that the notice did neither, the Court concludes that the notice was inadequate and the subsequent adoption of the changes was void ab initio.


This may prove a hollow victory for the neighbors, as the County will likely simply provide an adequate notice and adopt the changes. Of course, it is possible that in the interim, with the down-scaling of the Amazon project, the changes may not even be needed.


The Court also decided three criminal appeal on May 7, 2023. Hunter Lee, III v. Commonwealth of Virginia arises from an Alford plea entered after the circuit court denied a motion to suppress the search of Lee's backpack. The search took place after law enforcement encountered Lee in a convenience store while responding to an anonymous phone call stating that an individual matching Lee's description was involved in a domestic altercation and was seen walking toward the convenience store. The caller was very specific and gave detailed information about the suspect including that he was armed and carrying a backpack with drug paraphernalia in it.


When asked by officers if he had been involved in a domestic incident, Lee admitted that he had. He denied being armed, volunteering that he was a convicted felon. Lee submitted to a pat-down and no weapon was found. The officers then asked to search the backpack. Lee handed it over, stating that he "had his pills" inside. Officers found plastic bags and a set of scales in one pocket of the backpack. The officers noticed that Lee also had plastic a bags protruding from his pants pocket.


Inside the backpack there were also dietary supplements and medication which Lee indicated was "for his heart." Finally, there were also five plastic bags with "a white power rocklike substance" inside a prescription bottle.




Rut Ro, indeed. Lee argued at trial that the search exceeded the scope of the permission given. The problem is that Lee did not give any limiting statement when handing over the backpack. While the officers had initially asked about weapons, after the pat-down, they then asked about any other contraband, specifically asking if there was anything that they "needed to know about." File this case under "Remind your clients to 'Just say No' whenever the police ask to conduct a search.


Michael Jason Drexel v. Commonwealth of Virginia arises from a conviction for "threatening to damage a building." This is an unusual charge in that it requires the Commonwealth to prove there was a true threat, that is that whether the defendant had an actual intent to carry through with the threat, there must also be a real potential for the threat to be carried out.


Drexel was undergoing therapy and regularly telephoned his therapist in an agitated state. During these calls he would express homicidal thoughts and threatened to "bomb city hall," referring to the City of Alexandria government building. He told the therapist that he intended to carry out this threat. The therapist was sufficiently concerned that she sought to have Drexel evaluated for an emergency mental health commitment and also contacted Alexandria police.


Police interviewed Drexel by phone. During the conversation, Drexel told the officers he would "burn down city hall," saying that he "wanted to send a message" and that "he was going to be the next Timothy McVeigh." Based on these comments, police obtained an emergency custody order. A subsequent search of Drexel's vehicle found an ice pick, pother tools and a bottle of gasoline.


Drexel was convicted of making a threat to bomb, burn, or damage a place of assembly or building in violation of Code § 18.2-83. He was convicted in a jury trial and appealed the conviction assigning six errors. Chief Judge Decker, joined by Judges O'Brien and AtLee, affirm.


While the 23 page opinion addresses the six assignments of error, the principal issue of not in the case is whether Code § 18.2-83 includes a "true threat" requirement in addition to the mens rea element. The Court concludes that it does, but further concludes that there was sufficient evidence to show that Drexel not only had the requisite mes rea to carry out the threat, but had the actual capacity to do so. Admittedly, this determination is often based on circumstantial evidence and the subjective perception of the individuals to whom the threat is communicated.


My principal concern with this case is what is not mentioned in the opinion. The opinion makes no mention of whether Drexel was evaluated for competency to stand trial or whether any mental health/diminished capacity defense was offered. Drexel was upset about his wages being garnished to pay a tax debt, and this alone does not suggest that he was irrational -- almost everyone whose wages and assets are garnished is upset by the loss of resources this entails. But the opinion certainly implies that Drexel's agitation was more than usual.


The final decision of May 7, 2023 is Brian Edward Sheets v. Commonwealth of Virginia, which requires the disclaimer that you humble correspondent was counsel on appeal to the defendant. Because at this time the appeal remains subject to potential further appellate process, I will refrain from summarizing the case or making editorial comment, but merely refer the reader to the opinion.


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