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Yawn . . . Another Administrative Law Opinion . . . But what’s this? A Commonwealth’s Appeal in the Unpublished Decisions?

by | May 24, 2022 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals released a single published opinion today, and its a real snoozer.  Frequent readers of these missives will recall that my preferred bedtime reading when I have insomnia is anything to do with Administrative Law.  Virginia Department of Corrections v. Richard Bishop should fit in nicely with my collection of sleep-inducing reads. Even the salacious nature of the underlying facts are so mundanely recounted that the mind tends to wander by page 2.  Succinctly put, Bishop heard a rumor that Ms. B was in a relationship Mr. A, her supervisor (that is literally how the opinion identifies the parties).  Anyway, VDOC regulations required that any improprieties of this type be reported, but Bishop found the rumor to be not credible, so he didn’t do so.  Now, in an attempt to make this a bit more interesting for you dear reader, let me pause her to recount a story about Andy Griffith which seems apropos:

Griffith was a relatively unknown actor when he produced a comedy single called “What it was was Football.”  The promoter of the record tried to get Robert D. Raiford, an announcer (as disc jockeys were called back then) for a popular Atlanta Station to include the record in his broadcast, but Raiford declined, saying that his audience was not interested in country humor.  The record went on to be a number 1 hit.  Years later, Raiford was an occasional supporting actor on Griffith’s TV show Matlock which was set in and filmed in Atlanta.  One morning, the two men happened to be in the make-up chairs beside one another and Raiford mentioned that he had been offered the opportunity to play the record on his show, but had not done so.  Griffith replied, “Someone else did, did they?”

As you can guess, someone else did report the rumor — two someones in fact.  It also came out that Bishop had known about the rumor and had not reported it. Bishop was subsequently placed on pre-disciplinary leave for failing to report the alleged relationship.  It was subsequently determined by the VDOC that the failure to report the possible violation was a fire-able offense and Bishop was fired.  He filed a grievance to review the decision.

At the grievance hearing, Bishop asserted that he did not have knowledge of the alleged relationship, only that he knew what was “rumored” and accusing Ms. B of “sleeping her way to the top” was likely to be improper in itself. However, the hearing officer determined that Bishop was still required to file a report.  Bishop appealed this decision to the circuit court.

Now when circuit courts conduct hearings in administrative appeals, they are sitting in appellate jurisdiction.  This means that typically they shouldn’t redetermine the facts, but limit their consideration to whether the hearing officer’s decision is “contrary to law.”  But the question is, “contrary to what law?”

In this case, the circuit court decided that it should reconsider Bishop’s argument that reporting a rumor that Ms. B was in a relationship with Mr. A to further her career prospects might be discriminatory in that it would create a hostile work environment under Title VII of the Civil Rights Act of 1964.  As it so happens that there is a Fourth Circuit case that arguably might support that argument — though under much different circumstances.  The court then went own to analyze VDOC’s Standards of Ethics and Conflict of Interest Operating Procedure, determining that Bishop’s failure to report the rumor did not violate the policy, and based its decision on that alone — not on the possible conflict of the policy with Title VII.  The circuit court reversed the termination and order Bishop to be reinstated.

On appeal to the Court of Appeals, VDOC contended that the circuit court does not have the authority to reinterpret VDOC’s internal policies.  The Court of Appeals begins its opinion by noting that Bishop did not assign cross-error to the circuit court’s failure to find that the possible conflict with Title VII was an alternate grounds for reversing the hearing officer.  As Scooby Doo would say, “Rut Roh!”

“Rut Roh” is right.  The “law’ that circuit court’s review in such cases is limited “to ascertaining compliance with constitutional provisions, statutes, regulations, and judicial decisions.”  You will notice that “interpretation of internal policies” is not in that list.  In short, the circuit court went outside its appellate jurisdiction in construing the VDOC’s policies differently from the hearing officer.

Two points need to be made here.  First, the fact that the circuit court could not reinterpret policy does not mean that the hearing officer’s interpretation is not subject to review.  Rather, Bishop had the choice to seek further administrative review within the DOC, but chose to go to the circuit court instead. Now you might be wondering why Bishop was “required to exhaust his administrative remedies,” and the answer is that the Code actually gives him that choice.

Second, while the Court of Appeals does not specifically say that the Title VII issue would have been a sufficient basis to set aside the termination, it does note that the circuit court was “sympathetic” to this view.  However, because the issue was not raised by cross-error and “the record here is not sufficiently developed that a determination can be made that VDOC’s policy as applied here necessarily conflicts with Title VII,” the Court expresses no opinion on that issue.

Now, the headline promised something more exciting from the unpublished decisions today, at least by comparison to administrative law.  There were 15 unpublished opinions released today (well, 13 really, as one opinion decided three appeals), and all were affirmances, including a Commonwealth’s appeal.  Commonwealth’s appeals in the Court of Appeals are fairly rare, as they can only occur where a circuit court makes a ruling based on the denial of a constitutional due process right which prohibits a criminal prosecution.

Commonwealth of Virginia v. Christopher Francis Martinez is an appeal from the sustaining of a motion to suppress evidence.  The incident involves a call for medical assistance by a ride share driver whose passenger was passed out in the back seat of his car.  By the time police arrived, however, Martinez, the passenger, was conscious and responsive.  Martinez had two driver’s licenses, one for Colorado and one for Virginia.  He provided the first to the officer who had initially responded, who returned it.  A second officer also arrived, but as this was a community caretaker situation, he went on to another call as only one officer is required in such cases according to local policy.

Then, two additional on the scene, and recognized Martinez from their “experience in ‘special investigations’ and believed that the situation ‘may have been narcotics related.’” They decided to question Martinez and had the ride share driver (who was losing out on fare opportunities, but that’s beside the point) move to a safer location then had Martinez exit the vehicle and move to under the awning of a nearby building to “get out of the rain.”

Upon being questioned “why he was not in Colorado,” Martinez provided the officers with his Virginia license.  While one of the officers took this license to run a check for outstanding warrants, another officer asked to search Martinez’s pockets, testifying later that “guns and drugs go together” and he wanted to “keep everybody safe at that point.”  However, the officer did not conduct a “pat-down,” but simply reached inside the pockets of Martinez’s jacket, and found marijuana and Xanax inside.  The officer then asked Martinez if he “had anything else one him”  and said  “this is one of those moments where, if you be honest man, and work with us now . . . we obviously know who you are, let’s make some smart decisions now.”  Martinez admitted that he had several “rocks” of cocaine in one of this socks.  He was then handcuffed, and the cocaine was removed from the sock. Martinez was arrested and charged with various drug offenses.

Martinez moved to suppress the evidence seized from his person.  At the suppression hearing, the Commonwealth argued that there had been “no police misconduct,” and the circuit court agreed, saying that the initial search was “consensual.”  However, Martinez filed a motion to reconsider, asserting that when he was required to exit the vehicle and surrender his driver’s license, he had been seized and was not free to leave. The officers’ familiarity with Martinez was not, without more, a sufficient cause to detain him.

The circuit reviewed the body cam footage of the stop and concluded that under the totality of the circumstances Martinez had been seized and would not have felt free to leave, thus his consent to the search was not voluntary.  The court accordingly applied the exclusionary rule and suppressed the evidence. The Commonwealth did not expressly argue that the exclusionary rule was not the appropriate remedy, although it did reassert that their had been no “misconduct.” Of course, without the evidence, the case was dead in the water.

The Commonwealth appealed the suppression of the evidence, asserting both that the encounter and search were consensual and that even if not, suppression of the evidence was not warranted.  Addressing the first issue, the Court agrees with the circuit court that a person in Martinez’s position would not have felt that he was free to leave or to refuse to be searched.

The Commonwealth’s second issue was that even if the search were improper, “exclusion of the evidence was not the appropriate remedy.”  Although the Court of Appeals notes that this issue was not expressly asserted in the circuit court, the Court nonetheless states that ” the exclusionary rule is necessary to deter such police misconduct in the future” so implicitly it finds that the Commonwealth’s assertion that there was no “misconduct” was incorrect.  The question that comes to mind is whether the Commonwealth is, under the new Attorney General, going to press the idea that the exclusionary rule is not “appropriate” in all cases — for example where the officers make an “innocent mistake” or where there is “confusion over whether the consent was voluntary.”  This is the position of at least two members of the United States Supreme Court, and as that Court now has a clear conservative majority, it may be that the Attorney General is looking to test the boundaries of exclusion of improperly obtained evidence.