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Two Opinions, one Dissent, and a Wholly Unsurprising Decision on a Rehearing En Banc

by | Jul 26, 2022 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

There were two published opinions, but three published decisions from the Court of Appeals.  Because the decision was that the Court has jurisdiction over the rehearing en banc in Lundmark v. Commonwealth, now to be known as Lundmark v. Henrico County, it is the headline of the day.  To understand why a seemingly perfunctory procedural order is not only worth publishing, but is actually the lede for this blog post requires a little background.

Lundmark was originally decided back in March with a published order dismissing the appeal.  This was because the appeal was filed against the Commonwealth, but the underlying conviction was based on a local ordinance, meaning that the wrong party had been served.  As I explained by in March, this is a problem that, while not new, was going to be troublesome going forward because notices of appeal in criminal cases where the Commonwealth is the appellee now go directly to the Attorney General, bypassing the Commonwealth’s Attorney.  In days of yore (well, last year), when an appeal from a conviction under a local ordinance was filed, the notice would go to the local prosecutor, which in most cases was the Commonwealth’s Attorney who had an agreement with the City or County to prosecute these cases on behalf of the City or County Attorney.  This usually meant that the misjoinder was “no harm, no foul” because the right party was served.  I will grant that it tended to cause some confusion, but often when unnoticed, especially as the petition would most likely not be granted.

Starting in 2022, however, there were no more petitions and the appeal of right went straight to the AG’s office.  The first time this happened, sort of (it was in an appeal that got “legislatively granted” on January 1, 2022), the local government somehow got wind of the problem (I am guessing a call from the AG’s office) and moved to intervene and have the appeal restyled.  The Court granted the motion and all was right with the world.

The next time however, with Lundmark’s appeal, the AG instead moved to dismiss for misjoinder, and the Court granted that motion as well, but with Judge Causey dissenting.  At the time, I speculated that Lundmark would be satisfied with getting his delayed appeal, but he wasn’t and sought a rehearing en banc.  The Court granted that motion, but directed the parties to brief the question of jurisdiction only, not the substance of the appeal.  Meanwhile, the local government got involved and agreed to waive in defect int he notice of appeal.

It was this last bit that saved the Court from what could have been a complex debate on whether it had jurisdiction in such cases.  So today the Court simple acknowledges the graciousness of Henrico County, reinstates the case on the docket and orders a new round of briefing by the proper parties. Presumably the appellant’s brief will be filed forthwith after a few quick edits and the County’s brief will follow.  The case will be heard, unless argument is waived or dispensed with, by a three-judge panel as the grant of the en banc was only about jurisdiction.

The first published opinion today is Catherine Tyler v. Commonwealth of Virginia and it’s all about restitution.  Specifically, its about what a court can award to a victim to make them whole.  Tyler was an employed by a law firm as a real estate paralegal, and was entrusted by her employer,  Dygert, Wright, Hobbs & Hernandez, with management of the escrow funds in the firm’s trust account and its operating account.  This turned out not to be a good idea, as Ms. Tyler diverted just shy of $650,000 of those funds to her own use. This resulted in a criminal charge against Tyler and a bar complaint against one of the principals of the firm (the latter resulted in a public reprimand by agreed disposition).

The opinion does not tell us much about how Tyler was ultimately convicted of embezzlement — whether by trial or plea — but we do know that her sentencing the firm requested restitution of the embezzled amount and approximately $125,000 of consequential damages.  The latter amount was account for as follows:

  1. office expenses totaling $922.02
  2. malpractice and real estate insurance costs totaling $14,060.50
  3. legal fees totaling $14,622.50
  4. forensic accounting costs totaling $34,493.75
  5. the Virginia State Bar sanction fee and audit costs totaling $11,216.30
  6. anticipated future costs totaling $29,075, which included costs for VSB-required audits every six months and for the forensic accountant’s testimony

Tyler was ordered to pay restitution, less $275,000 already recovered, and the consequential damages.

Tyler appealed, challenging the award of consequential damages.  Today, the Court of Appeals, Judges Russell, Ortiz and Raphael, agrees that some of the consequential damages were “too attenuated from her crime” to be recoverable through restitution. The opinion is 32 pages long as the Court had to review each separate element of the claimed expenses, and if you are really interested in those rather dry details please see the link to the slip opinion above. But let’s discuss the element of the damages that immediately struck me as  . . . ahem . . . requiring a significant amount of chutzpah to ask for — the costs of the VSB Disciplinary Proceeding and the Sanction. Are you frickin’ kidding me?

I hope you will be pleased to know that the Court had much the same reaction as I, although they were much more decorous in saying so. In a nutshell, the Court said that an attorney cannot recover through restitution because the duty to supervise Tyler and oversee her management of the firms account was independent of her criminal act. “[T]he firm was independently required to maintain certain records, reconcile its client accounts, and supervise nonlawyer employees, regardless of whether Tyler was embezzling funds.” While it’s failure to do this allowed Tyler to embezzle for years, the Rules of Professional Conduct also require an attorney to assume responsibility for the actions of a nonlawyer employee who violates the rules.

The other published opinion today is a bit of a dinosaur as it involves the application of Code § 18.2-2501(F) and a “plain smell” search.  As the Court recognizes in a footnote, “Code § 18.2-250.1 was repealed in its entirety and the language of subsection F was recodified at Code § 4.1-1302. This statute is largely identical to Code § 18.2-250.1(F) except that it also prohibits the issuance of search warrants based solely on marijuana odor.” This was all part of the (almost) decriminalization of marijuana (in small amounts) in 2020. For James Jesus Montgomery, that fact is of little comfort as this case involves a traffic stop in 2018.  Having stopped Montgomery for driving with his high beams on, the officer observed the odor of marijuana, searched the vehicle and found a quantity of marijuana sufficient to result in a charge of possession with intent to distribute.

Now at the time, there was no (former) Code § 18.2-2501(F), but Montgomery’s case dragged on and, after the next election in 2019 with a change in control of the House and Senate, and criminal law reform, especially as to marijuana use and possession, was all the rage. By the time the legislation was adopted and became law, it seemed like a gift from Heaven (though one hesitates to liken the General Assembly to the celestial realm). Montgomery moved to suppress the marijuana as the search was based solely on “plain smell,” which the new statutory provision prohibited.  The circuit court, however, took the view that the new provision was a substantive change in the law that did not apply retroactively.

Now as the Court notes, retroactive application of the law is not favored and can be demonstrated only if 1) the legislation expressly states the law is to apply retroactively, or 2) the law effects only procedural matters — in which case the application is “retroactive” only in the sense that the new procedures are applied to cases that arose before the effective date of the law and are still pending.  The first provision does not apply here as the amending act contained no express application language, but what about the second.  Is a motion to suppress “merely procedural”?

Well, in this case it depends on who you ask, because Judge Humphrey, joined by Judge Chaney, say no, at least not when you are asking the court to apply a new law to the police conduct.  Judge Lorish, on the other hand, says yes, at least when you consider the context of what the law was enacted to prevent, which was searches based on what may have be a lingering or obscure smell of an illicit substance. “Code § 18.2-250.1(F) is a rule affecting only procedure, remedy, and the admissibility of evidence, and therefore the majority errs by categorizing it as ‘substantive.’”

The majority is just over 13 pages and the dissent is 19.  Both go extensively into the history of what how the appellate courts determine whether a change in the law is substantive or procedural in these cases, and I commend the opinion to anyone who need a precis on the subject.  But for my part, especially as I expect this will not be the last word from the appellate courts on this case or this issue (and the application of the new version of the statute in Title 4.1), I would like to focus on one question only — should the statute apply retroactively to a search where the law enforcement officer could not have known that the General Assembly was going to somewhat arbitrarily decide that what has for decades been a reasonable basis for a search wasn’t anymore?

I realize this is not a “reasoned and articulated answer supported by precedent,” but once again I gotta go with “Are you frickin’ kidding me?”  Look, I am a knee-jerk liberal when it comes to due process and the 4th Amendment from way back.  But even I have to give pause before saying to an officer, “Hey, before you conduct a search, you might want to poll the current legislature to see if they are about to through your a curve.  In fact, maybe you should try to figure out who will be in the legislature after the next election and check with them too.”  Again, I know this is not a “legal” basis for finding that the new law was substantive . . . but the benefit of being a pundit is you aren’t constrained by little things like that.