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And the high court punts on 2

Posture of cases produces lack of decision on important issues

The two most closely watched cases of the Supreme Court of Virginia’s most recent session – whether Virginia courts must defer to other state courts on issues related to same-sex unions and the inherent authority of judges to defer judgment in criminal cases – didn’t get decided.

The court was unanimous in holding that neither issue was before it in a posture that allowed it to make a definitive ruling. On each issue, a justice issued a concurrence expressing frustration about the court’s inability to reach the merits of the case.

“Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue,” Justice Lawrence L. Koontz Jr. grumbled in Moreau v. Fuller (VLW 008-6-058), one of two cases in which the inherent authority of judges was in question.

Chief Justice Leroy Rountree Hassell Sr. agreed that a procedural default in an earlier appeal in the civil-union case prevented the high court from reaching the merits in Miller-Jenkins v. Miller-Jenkins (VLW 008-6-061). But he said, “I have serious doubts about the Court of Appeals’ opinion in the former appeal. I do not believe that this decision was correctly decided.”

The Court of Appeals ruled that the federal Parental Kidnapping Prevention Act controlled the case, notwithstanding a law and a constitutional amendment that says Virginia will not recognize same-sex marriages or civil unions in any way.

Lisa Miller and Janet Jenkins traveled from Virginia to Vermont to enter into a civil union and returned to Virginia, where Miller had a child, now 6, by artificial insemination. The couple lived for a time in Vermont but separated and Miller filed to have the union dissolved and asked the court there to determine custody and visitation of the child.

The Vermont court granted Miller custody and awarded visitation to Jenkins, but Miller, who had moved back to Virginia, asked a court here to rule that she was the sole parent. The judge did so and set up a conflict with the Vermont court, which had found both Miller and Jenkins to be parents.

The Virginia Court of Appeals reversed the ruling in favor of Miller, and she appealed to the Supreme Court, which dismissed the appeal because Miller failed to file her notice of appeal on time.

Miller’s attorney, Mathew Staver, dean of the Liberty University law school and a founder of Liberty Counsel, used a collateral ruling to get back before the Supreme Court. The circuit court had entered an order refusing to register the visitation order of the Vermont court, and the court of appeals had reversed that ruling in an unpublished opinion based on the reversal of the first appeal.

The Supreme Court ruled on June 6 that the “law of the case” doctrine prevented it from considering the merits. The doctrine applies to issues that were actually decided and also to issues “necessarily involved in the first appeal, whether actually adjudicated or not,” Justice Barbara Milano Keenan wrote for the court.

“[W]hen two cases involve identical parties and issues, and one case has been resolved finally on appeal, we will not re-examine the merits of issues necessarily involved in the first appeal, because those issues have been resolved as part of the ‘same litigation’ and have become the ‘law of the case,’ “ she said.

The doctrine assumes “without deciding that there may be error in the court below,” but the “law of the case” applies only “in the case in which it arose and does not become binding precedent in other cases,” she concluded.

Inherent authority

With the decisions in Moreau and Gibson, prosecutors and criminal defense attorneys are also without precedent on the inherent authority of judges to defer judgment.

In some instances, most notably first time drug offenses, state law specifically grants judges the authority to defer judgment after concluding that the evidence would support a finding of guilt. The case is continued for a few months or a year, and the charge is dismissed if the defendant gets in no further trouble.

Defense attorneys contend – and prosecutors disagree vehemently – that judges have the inherent authority to take such action in cases other than those covered by state law.

The Supreme Court agreed last year to hear Moreau, in which Danville Commonwealth’s Attorney William H. Fuller III obtained a writ of mandamus from Circuit Judge Joseph W. Milam Jr. directing a juvenile and domestic relations district judge to impose a sentence in a statutory rape case. Judge Stacey W. Moreau had concluded that the evidence was sufficient for a conviction and had indicated that she would defer judgment and dismiss the charge.

The high court carried the case over for several sessions until it granted an appeal and heard arguments in Gibson, a case in which the trial judge indicated that he would defer judgment but concluded on the date for final adjudication that he could not do so. He found the defendant guilty of failing to pay sales and withholding taxes and sentenced him to 90 days in jail.

The court of appeals ruled in Gibson that judges do not have the authority to defer judgment and cited provisions for allowing such deferral in some cases as evidence that courts do not have general authority for the practice.

Writing for the Supreme Court in both cases, Justice Donald W. Lemons said the record in neither case allowed the court to reach the issue. Nothing in the Gibson record reflected a ruling by the trial court on the point, so the court of appeals should not have addressed the matter, Lemons said.

In Moreau, the juvenile court had done what it clearly had the authority to do in continuing the case for later disposition, Lemons said. There was no order dismissing the case or stating that the court would dismiss the charge, so there was no basis for the extraordinary writ of mandamus, Lemons concluded.

Koontz noted in his concurrence that judges are deferring judgment and suggested that a judge’s inherent authority should at least “permit this procedure to be used in appropriate cases and upon consent of the accused and the Commonwealth.”
That observation prompted a counter-concurrence from Justice Cynthia D. Kinser that was joined by Justices Keenan and G. Steven Agee. While some courts may be deferring judgment, “The Court’s inability to address this issue should not be viewed as tacit approval of the practice,” Kinser said.

The rulings in the two cases may result in a major battle in the General Assembly next year. House Majority Leader H. Morgan Griffith, R-Salem, in January introduced House Bill 553, which would give courts the authority to defer judgment in most cases, but asked that it be carried over until 2009 it after he learned that Moreau and Gibson were pending in the Supreme Court.

“Obviously, it’s a philosophical divide,” he said last week. “We were hoping that they would make a decision.”

Griffith said he believes that judges do have the inherent authority to defer judgment and bring equity to a disposition. “Sometimes you have to feel your way through a case,” he said.

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