Monday, April 8th, 2024
I admit it. I am an appellate argument junkie. This has been a long-standing problem, but one that took on new dimensions when the Supreme Court of Virginia began releasing audio recordings of oral arguments about ten years ago. I then began listening to the Court’s arguments in earnest. Now, of course, the availability of audio recordings of appellate arguments is ubiquitous. This means that anyone can hear an appellate argument without their leaving the house, car, or office. I don’t know about anyone else, but I’m hooked.
So is this a good habit or a bad one? Because I am an appellate lawyer, I think I can claim this habit as a good one. Supreme Court of Virginia recordings provide a look at the Court as a whole, how each of the seven justices approach the decision-making process, and how the justices interact with each other. Perhaps the same is true of appellate courts that sit in panels of three for argument, but a study of those courts as a whole are limited to the infrequent times when those courts sit en banc.
My habitual listening to appellate arguments for a decade has reinforced some suspicions I have had about the Supreme Court of Virginia, and about appellate arguments in general. And, they provide some valuable insight for appellate lawyers.
First, the justices are often talking to each other when they ask questions.
This is something that is hard to follow during the heat of oral argument. After listening to the argument after the fact, though, it is clear that many questions are not really for the advocate, but are directed towards another justice, or the entire Court. The justices are really discussing the case with each other and trying to convince their colleagues on the bench of their position. This provides a view into what an individual justice is thinking or how she might approach or decide the case.
So does this mean that the advocate’s answers don’t matter? Are we just pawns on the Court’s chess board? Not at all. Our answers to those questions can influence the judicial discussion that is playing out during the argument. And, equally important, those answers could affect the outcome of the case by showing why our position is right.
Second, some questions are not what they sounded like when asked.
During the argument, it can be difficult to really listen to the Court’s questions when you are focused on delivering a prepared argument and fielding a barrage of questions. Things become clearer with the luxury of hearing the argument again without the stress of being in the middle of it. In a post-hoc review, I have noticed that some questions were not exactly what I thought they were at the time; rather, the Court was asking something slightly different.
Good listening at oral argument is hard. It requires us to focus on the Court first, and our prepared argument second. Because the Court is the decision-maker, though, we must understand its concerns and questions so we can respond meaningfully. If we haven’t answered the Court’s questions, then we have not done our jobs as advocates. So, be flexible during oral argument. Weave the important points of the argument into your answers, but make sure you are addressing the issues the Court wants to discuss. Responding effectively and fully to the Court’s questions is a necessary step on the path to victory.
Third, the Court genuinely wants to understand the argument and its ramifications.
This is why the justices ask hypothetical questions. They want to test the boundaries and effect of a ruling in your favor in future cases involving different facts. And this is why a justice may press the advocate to define the scope of the ruling that is sought and to explain the effect of that ruling. Concisely explaining the scope and limiting principles of your position will greatly assist the Court in understanding the effect of adopting your position and becoming comfortable with it.
Embrace the opportunity to help the Court do its job well. Before you arrive at the courthouse steps, know the rule you are asking the Court to adopt, the limiting principles of that rule, and how it would apply in future cases involving different facts.
Finally, audio recordings only tell you half the story.
Listening to an audio recording of an argument I heard – or delivered – is a different experience than being there live. The visual, relational, and intangible aspects of a live argument cannot be captured in a recording. Many essential ingredients to an effective oral argument, such as genuineness, credibility, enthusiasm, engagement, and rapport with the Court are not fully experienced in an audio recording. Therefore, being there in person is the only way to fully appreciate an argument, although that won’t stop me from listening to recordings.
Because an effective argument needs the intangibles that are only possible with live engagement with the Court, you should not agree to argue your case by phone unless you have to. A live appearance is better.
You may access audio recordings of the Supreme Court of Virginia’s merits arguments since January 7, 2014, at https://courts.state.va.us/courts/scv/oral_arguments/home.html. Audio recordings of the Court of Appeals of Virginia’s arguments since May 20, 2014, are available at Court of Appeals Oral Arguments (vacourts.gov). To listen to audio recordings for arguments before the United States Court of Appeals for the Fourth Circuit since May 2011, click on this link: Listen to Oral Arguments (uscourts.gov).
Contact us today if you have any questions.
Wednesday, March 27th, 2024
Article co-written by Matthew Broughton, Jared Tuck, and intern Nicholas Beck
In Virginia, a minor’s personal injury case typically has a statute of limitations of two years from the child’s 18th birthday. However, that deadline does not apply when the injury was caused by a medical provider’s negligence. If your child’s claim does not get filed before the expiration of the two-year statute of limitations, then his or her claim may be forever barred.
The statute of limitations for a minor’s medical malpractice case can often be confusing, but with the help of experienced Virginia medical malpractice attorneys, your child can hopefully receive the compensation he or she deserves.
The Rule
Virginia Code § 8.01-243.1 requires that medical malpractice lawsuits involving minors be brought “within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action.” Unlike most personal injury cases involving children, lawsuits against negligent doctors, physicians, and other medical providers generally must be filed within 2 years or by the child’s 10th birthday, whichever is longer.
For example, when a 10-year-old child is injured in a car accident, the clock does not begin ticking until his 18th birthday. He then has 2 years from the start of the clock to file a claim in Virginia general district or circuit court.
In contrast, if your 10-year-old suffers an injury from the alleged negligence of a doctor or other healthcare provider, he has 2 years from the date of injury to file the claim, with limited exceptions. These exceptions include but are not limited to, failure to diagnose cases and injuries involving medical devices. For a full overview of personal injury statutes of limitations, including the limited exceptions to the general rules regarding statutes of limitations in personal injury actions, see here.
What You Can Do
You may be asking yourself, “How is my child supposed to sue his doctor before he can vote?” That’s a great question, and we’re here to help.
Be present for all doctor appointments, ask questions, and take notes.
For a child to file a lawsuit, it must be filed by his or her “next friend,” who is usually the child’s parent or guardian. Being in the room with your child and his or her doctor helps in preventing miscommunications and misunderstandings. Medical terminology can be confusing for adults, let alone children. If you or another responsible adult aren’t in the room to get the full picture and to ask questions, then it is harder to identify if something goes wrong.
If you don’t understand the provider’s medical terminology, then ASK!
This is especially important before your child receives a new medicine or undergoes a medical procedure. Medical providers are required by law to obtain informed consent, and minors cannot legally consent on their own. When you have a better understanding of the risks of a medicine or procedure, you can more easily identify if and when an unknown risk occurs.
Consult an experienced Virginia medical malpractice attorney.
As mentioned, medicine and medical terminology can be confusing all on its own. When you throw in the legal aspects of medical malpractice, an entirely new layer of confusion gets added. Only a team of experienced and knowledgeable medical negligence lawyers with the resources to take on hospitals, health systems, and other practices can appropriately handle the complex nature of medical malpractice cases.
Unlike many personal injury cases, medical malpractice lawsuits require an in-depth review of your child’s medical records. Our team of Virginia medical malpractice attorneys has in-house medical specialists who can promptly and effectively evaluate your child’s case. Once your child’s case is evaluated by the medical specialists and Virginia medical malpractice attorneys, an expert medical provider will need to certify your claim before it can be filed in court, see here.
All of this takes time and money. Fortunately, Gentry Locke is an experienced medical malpractice law firm that has the resources to help your child receive the relief he or she deserves.
Conclusion
In sum, when you and your family are dealing with the trauma of medical malpractice to your child, it is understandably emotional and confusing. There is a lot to do within the two-year timeframe before your child’s case expires, and only a team of experienced Virginia medical malpractice attorneys with the appropriate resources can handle such a complex case. If you or your child have suffered from what may be medical malpractice, do not hesitate to contact us today!
Thursday, March 14th, 2024
In October 2021, the United States Department of Justice (DOJ) announced its Civil Cyber-Fraud Initiative. The purpose of this initiative is to combat cybersecurity vulnerabilities and cyber threats by ensuring federal contractors and grantees implement required cybersecurity standards. Whistleblowers play a critical role in the initiative. Cybersecurity fraud is often difficult for the government to detect, so the DOJ relies on insiders to report violations under the federal False Claims Act (FCA).
The FCA allows whistleblowers, known as “relators,” to bring a lawsuit regarding an entity’s false claims to the United States for payment. This is known as a qui tam lawsuit, because it is brought in the name the government. The lawsuit is filed and initially kept under seal to allow the government to investigate.
A FCA cause of action generally has four elements: (1) falsity; (2) knowledge; (3) materiality; and (4) damages. In the cybersecurity context, the falsity element requires a false or fraudulent statement concerning the entity’s cybersecurity practices or compliance, made in connection with a federal contract or grant. This false or fraudulent statement must be made knowingly, which encompasses actual knowledge, deliberate ignorance, and reckless disregard of the truth or falsity of the information. Materiality focuses on the significance of the false or fraudulent statement—it must, at minimum, have a natural tendency to influence, or be capable of influencing, the government’s payment decision. Finally, damages focus on the harm to the government. If successful, government’s actual damages may be tripled, and a court may award civil penalties. The whistleblower will receive a “relator’s share” between 15% and 30% of the government’s recovery.
Two years in, the DOJ continues to make cybersecurity enforcement a top priority, and has a string of successful recoveries, including:
Most recently, on September 1, 2023, the United States District Court for the Eastern District of Pennsylvania unsealed a FCA lawsuit brought by a qui tam relator alleging Penn State University falsely certified its compliance with various cybersecurity controls in a DOD contract.[1] While the DOJ declined to intervene—at least for now—it continues to actively investigate the case.
Cybersecurity requirements may exist in any federal contract or grant; however, they are most prevalent in the defense, health care, and research sectors. These requirements could include:
- The Federal Information Security Modernization Act of 2014 (FISMA) contains the most broadly applicable cybersecurity provisions. FISMA requires federal agencies and contractors that operate federal information systems to implement the required minimum protections and practices—termed “controls”—in the National Institute of Standards and Technology (NIST) Special Publication 800-53, “Recommended Security Controls for Federal Information Systems” (SP 800-53).
- As for Department of Defense (DoD) contracts, these include specific provisions under Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012, “Safeguarding Covered Defense Information and Cyber Incident Reporting.” This regulation requires defense contractors to implement NIST Special Publication 800-171 (SP 800-171) to protect controlled unclassified information (CUI).
Both FISMA and DFARS require federal contractors to demonstrate compliance with the applicable cybersecurity controls in a number of ways, including submission of documentation (for example, a System Security Plan or “SSP”), audits (such as a third-party independent assessment), and annual security reviews. An FCA violation can occur when federal contractors make false or misleading statements concerning the status or implementation of the applicable cybersecurity requirements.
If you are concerned about cybersecurity compliance efforts, or are interested in learning more about the FCA, please contact a member of Gentry Locke’s Whistleblower Claims & Qui Tam Team.
[1] United States of America, ex rel. Decker v. Pennsylvania State University, Case No. 2:22-cv-3895 (E.D. Pa.)
Friday, March 8th, 2024
On January 10, 2024, Virginia returned to fully divided government, with the General Assembly entirely controlled by one party and the Executive Mansion controlled by the other party. While hope springs eternal for bipartisanship and compromise, this era of political brinksmanship will make the Virginia Budget the legislative tool through which the General Assembly will attempt to force its will. How far that can go implicates thorny and unanswered constitutional questions—questions that the Supreme Court of Virginia may soon be called upon to answer.
A Brief Virginia Government Lesson
First, a recap on the basics. The legislative process requires both the Virginia House of Delegates and Virginia Senate to pass the same, identical bill. The Governor may veto legislation he or she disapproves. Only if 2/3 of both houses vote to override does the bill become law notwithstanding the Governor’s veto. Otherwise, the veto stands and the bill does not become law.
With most legislation, a closely divided General Assembly means that the Governor’s veto will often be the last word, particularly on party-line issues. That’s because there is unlikely to be a 2/3 majority in both houses to override the veto. So divided government often means, in Virginia at least, that party-line bills do not become law.
The Budget is a Law, Not Just a Spending Plan
But these typical rules do not apply to the state’s budget (the “Budget”). That’s because, by constitutional requirement, there has to be a law passed to authorize state spending, and that law cannot do so for longer than 2.5 years. See Va. Const. Art. X, § 7 (“no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same”). That means that the Governor—and all of state government—needs a Budget bill to re-authorize government spending. And therein lies the General Assembly’s ultimate leverage: it can “legislate” through the Budget. And when the policy issue is tied up with the ability to operate state government, that puts the Governor in a potentially tough spot to exercise any veto authority.
Before joining the Governor’s Office as inhouse counsel, I had no idea just how expansive the budget was in enacting law and policy. But it reaches in directions far and wide. It directs state regulatory agencies to enact (or not enact) certain rules and regulations across the entire array of regulated entities—or even to approve or not approve particular projects or initiatives. Indeed, the Budget bill generally contains language saying that it applies “[n]otwithstanding any other provision of law,” and so is supreme over any conflicting law (aside from the Virginia Constitution or controlling federal law). HB 30 (Current Budget bill), § 4-13.00 Conflict with Other Laws. More recently, the Budget has legislated on topics seemingly distant from any appropriation: criminal penalties for marijuana possession, casino referenda, and skilled gaming regulation, among other topics.
Now that the Democrats control both houses of the General Assembly, the Budget bill can (and already is) being used to push policy initiatives that the Governor opposes. Indeed, based on the just-released conference report of the Budget bill, the General Assembly seems likely to require—through language in the Budget—Virginia to rejoin the Regional Greenhouse Gas Initiative (“RGGI”).[1] Withdrawing from RGGI was a signature policy goal of the Governor.[2]
So what happens? Is there any limit to using the Budget for this purpose? Two Virginia constitutional provisions come into play: (1) the single-object rule, and (2) the Governor’s item veto.
Single-Object Rule
Article IV, § 12 of the Virginia Constitution provides that “[n]o law shall embrace more than one object, which shall be expressed in its title.” This provision, which has been part of the Virginia Constitution since 1851, is designed to address two primary issues: to prevent “log-rolling, whereby two or more blocs (which might separately be minorities in the legislative body) combine forces on a bill containing several unrelated features” to pass it, and to ensure fair notice to legislators and the public regarding the content of bills before the General Assembly.[3] Thus, there is a substantive rationale for the provision (anti-log-rolling) and, procedural (fair notice).
In practice, however, the Supreme Court of Virginia has generally focused on the procedural element as dispositive, i.e. that the object of the legislation be expressed in the bill’s title. In Commonwealth v. Brown, the Supreme Court of Virginia stated that the single-object rule is satisfied if the contents of an act “are congruous, and have a natural connection with, or are germane to, the subject expressed in the title.”[4] There, the legislation related to oysters. And the legislation included numerous diverse provisions regulating the oyster industry, including taxes and fines for failing to comply and which the defendant (Brown) had been charged with violating.
Key for the Court in upholding the law was that the notice interest was satisfied. It held that the purpose of the single-object rule was preventing “the use of deceptive titles as a cover for vicious legislation, to prevent the practice of bringing together into one bill for corrupt purposes subjects diverse and dissimilar in their nature, and having no necessary connection with each other; and to prevent surprise or fraud” in legislation.[5]
Modern cases have generally blessed broad uses of single acts to address multiple topics. For instance, in Commonwealth v. Dodson, the Supreme Court of Virginia blessed certain provisions of the Budget bill that changed the structure of government, forcing more legislative control over the Governor’s budgetary process. The Court found the provisions passed muster, even though they effected a change in statutory law, finding the nothing about them “which should have misled the Legislature or the people, and certainly there is nothing about them surreptitious,” again relying on the procedural purpose of the single-object rule.[6]
And, in 2007, the Supreme Court of Virginia found a comprehensive bill addressing transportation issues to comply with the single object rule. There, the legislation “relating to transportation,” 2007 Va. Acts, Ch. 896, addressed 12 titles of the Code of Virginia, had 23 separate enactment clauses, and multiple provisions seemingly unrelated to transportation (at least not directly). But the Supreme Court of Virginia found no issue under the single-object rule, finding that the topics, while diverse, all “are congruous and have a natural connection with the subject of transportation expressed in the title.”[7]
Thus, where the issue has been litigated, the Supreme Court of Virginia has generally been extremely deferential to the General Assembly. But, it is not hard to imagine that an emboldened General Assembly might push things too far, even for the deference given to legislative acts. And if the Governor believes he is unfairly (and unconstitutionally) being asked to choose between funding the government and acceding to provisions he would veto if in a standalone bill, there very well could be a constitutional conflict.
Similar standoffs occurred during the McAuliffe Administration, regarding Medicaid expansion and environmental regulation; however, they were never litigated. Given the even stronger partisan divide today, I would bet on a case asking the Supreme Court of Virginia to revisit whether there is, substantively, any limit on what legislative topics can be included in the Budget bill.
Governor’s Item Veto Authority
The second Virginia constitutional provision that speaks to this conflict is under Va. Const. Art. V, § 6(d), creating authority for the Governor to “veto any particular item or items of an appropriation bill.” Under this authority, could the Governor simply strike out the offensive part of the Budget bill and veto that? Likely no, but the answer is unclear.
We return to Commonwealth v. Dodson, which addresses the item-veto authority. There, the case defined what is an “item” under the Virginia Constitution, and whether the item-veto authority included the ability to strike conditions or restrictions imposed by the General Assembly in appropriating funds. In short, the Court held that an item is an “indivisible sum of money dedicated to a stated purpose,” citing as an example funding for a library building and explaining that the library was an item while the various components of constructing a library were not.[8] Thus, under the Court’s example, the Governor could veto funding for the library, but could not veto the components of constructing a library.
The Court also stated that the Governor may not veto particular conditions or restrictions on appropriated funds in the Budget, as that would violate separation of powers principles to allow the Governor to excise provisions the Legislature attached to its appropriations.[9] Thus, if, as the General Assembly is now proposing, the Budget is conditioned on rejoining the Regional Greenhouse Gas Initiative, the Governor cannot simply item-veto that condition.
But here is where the item-veto authority and the single-object rule may come together. In Dodson, the Supreme Court of Virginia stated that the Governor “undoubtedly” has the power to “veto[] items or unconstitutional provisions . . . in proper cases.”[10] And this was not mere dicta. The Court upheld certain “item” vetoes of provisions that, for instance, provided funding for the Virginia Military Institute for an indefinite period, which would violate the above-cited constitutional limit on the duration of state appropriations.[11]
Thus, armed with the item-veto authority, the Governor might decide to strike certain offensive provisions, if he or she determines that they violate constitutional provisions, perhaps such as the single-object rule.
Conclusion
These issues are, at this point, academic. And, it remains the case that the new majorities in the General Assembly and the Governor likely both share a strong desire not to push past the breaking point and to ensure that a budget is enacted without disruption to the operation of state government.
But, for now, things are moving in the direction of conflict. The General Assembly is using its budget power to push initiatives the Governor opposes. No signs yet of any grand bargains. And if the Governor acquiesces, what real relevance will the Governor have in the legislative process?
It’s all a recipe for a constitutional conflict that ultimately will need to be decided by the Supreme Court of Virginia. Hopefully, before the lights go out.
Noah, and this article, were quoted in a recent VPM news article by Jahd Khalil about the Virginia Budget debate and how it could touch on constitutional issues. Read more on that article here.
[1] See Joint Conference Committee Report on House Bill 30 (Mar. 7, 2024) (inserting Item 366 #1c, “[t]his amendment requires the Commonwealth to rejoin [RGGI] and directs the appropriate agencies to take the necessary actions to rejoin RGGI”), available at budget.lis.virginia.gov/get/amendmentpdf/4915/
[2] See Executive Order Number Nine (2022), Protecting Ratepayers from the Rising Cost of Living Due to the Regional Greenhouse Gas Initiative, available at EO 9- RGGI.docx (virginia.gov)
[3] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 528 (1974) (citing 1 Thomas M. Cooley, Constitutional Limitations 296 (8th ed.; Boston, 1927) and Millard H. Ruud, “No Law Shall Embrace More Than One Subject,” 42 Minn. L. Rev. 389 (1958)).
[4] Commonwealth v. Brown, 21 S.E. 357, 360 (Va. 1895).
[5] Id.
[6] Commonwealth v. Dodson, 11 S.E. 2d 120, 133 (Va. 1940).
[7] Marshall v. N. Va. Transp. Auth., 657 S.E. 2d 71, 78 (Va. 2008). The Court ultimately found another, unrelated constitutional infirmity in the law related to taxation provisions.
[8] Dodson, 11 S.E.2d at 124, 127.
[9] Id. at 127.
[10] Id. at 133.
[11] Id. at 134.
Tuesday, March 5th, 2024
Having now had the privilege (or pain) of practicing criminal law in three different states, I can safely say that not all criminal discovery rules and practices are even remotely equal.
In law school, we all read Brady and Giglio and know well that a criminal defendant is entitled to certain information, namely exculpatory and impeachment evidence. However, I am sure more than one state criminal practitioner has had a state court judge or prosecuting attorney look at them as if they are speaking Greek whenever either Brady or Giglio is mentioned, and unfortunately, more than once in this last year, I have seen Virginia prosecutors hesitate or even refuse to turn over exculpatory or impeachment evidence without direct court involvement.
Virginia’s Discovery History
Virginia’s discovery rules are historically limited and have prevented justice for citizens of the Commonwealth, and discovery reform has been a contentious topic for Virginia. Access to discovery is essential to ensure defendants receive their right to due process. By 2021, the Virginia Supreme Court expanded criminal defendant’s access to police reports, witness statements, and witness lists. Despite being years late on this reform and still behind many states on the expanse of criminal law discovery rules, it was a welcome change in Virginia.
Virginia amended Rule 3A:11, the protocol for producing discovery in criminal matters for both the defense and the Commonwealth. The Supreme Court of Virginia states the “constitutional and statutory duties of the Commonwealth’s attorney to provide exculpatory and/or impeachment evidence to an accused supersede any limitation or restriction on discovery provided pursuant to this Rule.” While Rule 3A:11 mirrors some of the ideals of Brady and Giglio, such as the requirement to disclose exculpatory evidence to the criminal defense attorneys and the extension to include impeachment material for any prosecution witness, it can be read to allow the Commonwealth’s Attorney too much discretion, which was the hallmark of the prior discovery rules.
Often criminal defense counsel is left arguing constitutional case law in a motion to compel the production of information that clearly falls within the definitions of exculpatory or impeachment material in Brady and Giglio jurisprudence, while the prosecutor remains hyper-focused on Rule 3A:11. At other times, criminal defense counsel face a prosecutor arguing they do not have to turn over any information unless it is “exculpatory.” “Proving” exculpatory or impeachment material exists in records the defendant has never seen is nearly impossible, and I have encountered many prosecutors who insist such a threshold showing is necessary to require the government to disclose their records.
Virginia Discovery Compared to Other States
In the federal system and for states like Colorado and Maryland (where I have also practiced), criminal discovery rules are much more expansive, and the failure to provide discovery can result in sanctions or even the outright dismissal of a case. In Virginia, however, there is little recourse for criminal defendants who find themselves on the wrong side of a prosecutor with a very narrow view of their discovery obligations.
Our neighbor Maryland’s hearty criminal discovery rules not only require the prosecuting attorney to produce more, but Maryland’s rules require the prosecutor to affirmatively provide discovery without a request from the defense. “Without the necessity of request, the State’s Attorney shall provide to the defense: statements, criminal records, state’s witnesses, prior conduct, exculpatory information, impeachment information, including any relationship the witness has with the prosecutor, prior convictions, medical or psychiatric conditions of the witness, etc.” (paraphrasing Md. Crim. Rule 4-263). In Virginia, a criminal defendant must move the court to order the Commonwealth to produce discovery, and even then, Rule 3A:11 does not even require the Commonwealth to turn over police reports or witness statements. The Commonwealth can satisfy its burden by allowing “inspection and review,” leaving the defendant’s right to access discovery entirely dependent on the responsiveness and personal schedule of the individual prosecutor assigned to the case. In my experience, some Virginia prosecutors simply refuse to return the calls and emails of defense counsel, making such scheduling nearly impossible.
Thousands of miles away, Colorado adopted criminal procedure rules that more closely mirror the federal rules. On more than one occasion, I watched the Court strongly chastise a District Attorney (DA) if there was even a hint of a discovery violation, and on the first day of one of my trials, a DA dismissed an entire case when we all discovered that law enforcement failed to provide dash camera footage to the DA. Colorado Rule of Criminal Procedure 16, like Maryland’s Rule 4-263, is more expansive than Virginia’s Rule 3A:11. It requires that the prosecuting attorney ensures a flow of information between investigative personnel and disclose any information and material relevant to the charges against the accused, and it requires shorter timeframes for when discovery must be turned over to the defense.
While certainly these rules are not followed perfectly in every county in Maryland and Colorado by every practitioner, the mere fact that the rules recognize these disclosure obligations to a criminal defendant puts those defendants in a very different place compared to those in Virginia.
Conclusion
While updates to Rule 3A:11 improved on its predecessor and attempted to promote justice, it fell short of doing just that. Virginia needs to either adopt by rule or in practice more explicit discovery policies and disclosure obligations, which would require the exchange of all evidence possessed by the government to the defense, an obligation for prosecutors to seek out that information from law enforcement agencies, and an obligation to produce copies to the defense. This change would remove the burden from the prosecutor to decide which evidence is exculpatory or has impeachment value, a heavy burden that they are in a poor position to determine without insight into trial strategy from the defense. Fair access to all evidence is crucial to a fair trial in the case and is the bare minimum of what is needed to promote justice in Virginia’s criminal system.
The criminal justice system should be about due process, justice, and even public safety.
Liberal pre-trial and pre-plea discovery also does not impose undue logistical burdens on prosecutors. Trial by surprise has never been a tenet of the American justice system. If a prosecutor is confident about their case, there should be no issue with handing over all discovery, whether that is in the pre-indictment or post-indictment phase. Failure to provide discovery and sometimes a straight refusal to provide discovery does not express the values enshrined in Giglio or Brady. Without full, open discovery, more criminal defendants, including white-collar investigation defendants, will feel unjustly targeted, railroaded by the process, and victimized by their prosecution. Nothing poses a greater risk to the public trust in our justice system.
If you are in need of a white collar law firm and experienced white collar defense attorneys, please don’t hesitate to Contact Us at Gentry Locke today! Even for clients or individuals not yet suspected or accused of misconduct, we provide compliance advice and proactively identify issues for corporate and individual clients to avoid violating the law, especially newly enacted legislation or regulations.
Tuesday, March 5th, 2024
A doctor’s negligence can have devastating and life-altering effects on a patient. A slip of the knife, a missed diagnosis, an unreasonable delay in treatment: All of these can lead to catastrophe. Many times, a patient’s only recourse after an encounter with a negligent healthcare provider is the Civil Justice system and a lawsuit to recover those damages caused by that provider with experienced medical malpractice attorneys.
Although a suit for medical malpractice is just a more specific and specialized claim of negligence, Virginia law places a number of guardians at the gates of the courthouse, in an attempt to weed-out all meritless claims against the Commonwealth’s providers of health care. These guardians take the form of statutory and procedural requirements with which a plaintiff must comply, in order to hold attempt to a health care provider liable for negligent actions. Should a litigant make a mistake, the consequences for their case can be dire. This is why you need a medical malpractice law firm that has knowledge in the subject and experienced lawyers for doctor negligence. One such statutory and procedural requirement is the requirement for a certifying expert.
The Requirement for a Certifying Expert in a Medical Malpractice Case
Section 8.01-20.1 of the Code of Virginia applies to personal injury claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
Similarly, Section § 8.01-50.1 of the Code of Virginia applies to wrongful death claims based upon a theory of health care malpractice and provides:
Every motion for judgment, counterclaim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.
(emphasis added).
In other words, if a plaintiff asserts a claim for medical negligence against a health care provider, whether that claim is a claim for personal injury or a claim for wrongful death, that plaintiff must have a qualified expert review the case in advance, and that expert must conclude that the defendant’s health care provider did something wrong which caused the injuries or death at issue. Furthermore, the plaintiff must have obtained a positive review from a qualified expert before serving the lawsuit on the target health care provider. This raises the important question: What is required for a witness to “qualify” as an “expert witness?” The Code of Virginia has a lot to say about this, as well.
The Expert’s Qualifications
Both of these statutes—personal injury and wrongful death malpractice—require the Plaintiff to receive certification from an expert he or she “reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20.” Va. Code §§ 8.01-20.1, 50.1.
Va. Code §8.01-581.20(A) states:
A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
(emphasis added).
In sum, two things are required:
- The certifying expert must have knowledge of the standards applicable to the defendant’s health care area of practice. The various areas of practice in the health care industry are nearly infinite: nursing, in all its various forms; surgery, from orthopedic to neuro; family medicine; OB/GYN. The list is nearly endless. The plaintiff must, however, find the right expert for the case.
- The certifying expert must have had an active clinical practice in the defendant’s specialty or a related field within one year of the defendant’s negligent act or omission.
These two prerequisites for qualification require a potential medical malpractice plaintiff to evaluate their potential expert witnesses. Do they know what they claim to know? Have they had the right education and training? Do they practice the right area of medicine? Is their experience recent enough to qualify under the statute? If the answer is “no” to any of these questions, then the plaintiff must keep looking for the right fit.
The consequences of having no expert witness, or even having the wrong kind of expert witness, can be dire. If the plaintiff fails to have a qualified certifying expert before serving the lawsuit on the defendant, or if the expert that they have certified the case is deficient in some way, it could cost the plaintiff the case. The stakes couldn’t be higher.
Consequences for Failing to Get Proper Certification
Both Va. Code § 8.01-20.1 and § 8.01-50.1 carry with them significant penalties for failing to comply with this expert certification requirement:
If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.
(emphasis added).
The plaintiff’s case truly is on the line. If the plaintiff did not obtain the necessary certification prior to service on the defendant, the court is required (“shall”) to impose sanctions. Pursuant to Va. Code § 8.01-271.1, cross-referenced in the statutes, these sanctions run the gamut from simply reimbursing the defendant for the expenses—including legal fees—incurred in responding to the un-certified Complaint all the way to the dismissal of the case, without permission to refile and re-serve the case, after complying with these statutes. This is truly a worst-case scenario: The injured plaintiff who seeks compensation for healthcare-related injuries loses his or her opportunity to take legal action against the negligent healthcare provider.
Talk to An Attorney
If you have been wrongfully injured by a healthcare provider, this is not a process that you should be expected to deal with alone. The stakes are just too high to attempt to navigate this process by yourself. The requirement of expert certification is just one of many traps for the unwary that lie hidden in Virginia’s medical malpractice law. Experienced medical negligence lawyers who specialize in medical malpractice litigation can walk you through the process and guide you past these guardians of the courthouse gates.
Please contact us or call 866.983.0866. Our initial consultation is always free and confidential. We have a team of experienced Virginia medical malpractice attorneys who would be more than happy to assist you.
Tuesday, February 27th, 2024
Plaintiff personal injury clients are different than other types of clients because their Virginia personal injury case is generally their first interaction with the civil legal system. Clients sometimes have an expectation that the process moves fast. Television shows, like Suits and Law & Order, may be to blame for such an expectation. Unfortunately, this expectation is mistaken—the legal process is quite slow. It can take anywhere from weeks to several years to resolve a Virginia personal injury case. This can be especially difficult for a plaintiff who is the victim of a trucking collision, motor vehicle collision, slip-and-fall accident, defective product, or medical malpractice. These accidents can be life-altering, and plaintiffs not only feel the physical effects but also the emotional and financial effects. Virginia lawyers who understand and care about these effects on their clients tend to move cases to resolution more quickly.
This article is intended to walk you through the basic legal process of a Virginia personal injury case. Generally, a Virginia personal injury case consists of the following steps: (1) hiring counsel, (2) investigation, (3) pleading, (4) discovery, (5) motions, (6) trial, and (7) appeals. Settlement may occur during any of these stages.
Hiring Counsel
If you believe that you have a Virginia personal injury case, and you have not already done so, it is imperative that you immediately contact a Virginia personal injury attorney. At-fault parties and companies often act rapidly in response to an accident. For example, some trucking companies have “rapid response teams” that may arrive at the scene of a crash while first responders are still there. The sooner you contact a Virginia personal injury attorney, the sooner your attorney will be able to help you preserve all potentially relevant evidence to obtain the most amount of compensation possible. A skilled Virginia personal injury lawyer will begin working on your case as fast as possible by proceeding with the investigation phase.
Investigation
Once you have hired a Virginia personal injury lawyer, he or she will begin investigating and collecting the facts and circumstances of the trucking collision, motor vehicle collision, slip-and-fall accident, medical malpractice, product defect, etc. Gentry Locke personal injury lawyers will utilize their team, which consists of an in-house investigator, in-house nurses, paralegals, and legal assistants. The investigation phase often includes determining the potential at-fault parties, researching potential legal claims and the statute of limitations for your lawsuit, sending a preservation letter to the at-fault parties, sending Freedom of Information Act requests to governmental entities, and interviewing potential witnesses. If you have been involved in a motor vehicle or trucking collision, this phase also generally includes inspecting and photographing the scene of the crash and the vehicles involved in the crash. During the investigation phase, your Virginia personal injury lawyer should request, obtain, and review all of your relevant medical records and bills to determine the nature and severity of your accident-related injuries. Your lawyer should also request, obtain, and review all of your relevant employment records if you have missed work or lost wages due to the accident.
Pleading
After the investigation phase is complete, which may be only weeks after hiring counsel, but could take a year or more depending on the specific circumstances of your case, your lawyer will likely file a lawsuit on your behalf. Lawyers use the fancy legal term “pleading” to describe the stage when each side files their initial documents in the lawsuit. The first document filed in a case is called a “complaint,” which is filed by the plaintiff, and it details the facts and legal claims against the defendant. After filing the complaint, the plaintiff’s lawyer will have a time period to serve the complaint on the defendant, which may be up to a year in state court. After service, the defendant will then have 21 days to file a responsive pleading. Responsive pleadings can take many forms, but most often the defendant files what is called an “answer,” which admits or denies the allegations in the complaint and asserts any affirmative defenses. The pleading stage may consist of hearings if the defendant files a responsive pleading asking the case to be dismissed or asking for additional information.
Discovery
“Discovery” denotes the process in which the parties exchange information that may be related to the lawsuit. Discovery occurs during and after the pleading stage. Like responsive pleadings, discovery can take many forms: depositions, interrogatories, requests for the production of documents, requests for admission, inspections, mental or physical examinations, etc.
A deposition is where a potential witness answers questions under oath before a court reporter, who produces a transcript that can be used for certain purposes at trial. Your lawyer will meet with you and prepare you for your deposition, and your lawyer may take depositions of eyewitnesses, law enforcement officers, the defendant, your health care providers, and any experts designated by the defendant. Interrogatories are specific written questions asking the other side to answer such questions in writing and under oath. Requests for the production of documents ask the other side to produce documents that may be potentially relevant to the lawsuit, while requests for admission ask the other side to admit to certain propositions.
The discovery process is aptly named because it is a process whereby parties “discover” much more about the case. Discovery can reveal additional misconduct by the defendant or reveal additional parties that may be at fault. If done correctly, discovery shows the parties the strengths and weaknesses of their positions.
Motions
“Motion” is a broad term that describes a request by a party’s lawyer that the court take some specific action. Motions may be an oral request, but they are often in writing and filed with the court. Motions are filed throughout the litigation process, and they may be filed during the pleading and discovery stages. Motions ask the court to take actions such as: dismiss the case, exclude certain evidence from trial, strike expert testimony, give a party additional time to do something, continue the trial, etc. Contested motions generally result in briefing and a hearing. “Briefing” is a process where both sides research the facts and law and file detailed documents (briefs) with the court that describe why they should win the motion. The court may hold a virtual or in-person hearing to hear oral arguments from the attorneys before making its decision. Once the court reaches its decision on the motion, the court will issue an order that announces the decision.
Trial
Trial is the process that you likely know the most. This is the part of a Virginia personal injury case that you have likely seen on television. This is where the parties, lawyers, and witnesses appear in court so that a judge or jury can decide the case. In Virginia circuit court and in federal court, the parties generally request a jury to decide the case. In Virginia general district court, which is a court for smaller personal injury claims, a judge will decide the case.
A Virginia jury trial generally consists of the following steps: (1) a pre-trial motions hearing, (2) jury selection, (3) opening statements, (4) the plaintiff presents his or her witnesses and evidence, (5) the defendant presents his or her witnesses and evidence, (6) closing arguments, and (7) jury deliberation. During the presentation of evidence, each side will have an opportunity to cross-examine or ask questions of the other side’s witnesses. The trial will end by the judge announcing the verdict and entering an order for the prevailing party. After the trial, the losing party may make post-trial motions to reduce or set aside the jury’s verdict.
Appeals
Appeals commonly occur after a trial has taken place, but generally speaking, they may occur at any point where the court enters a final order disposing of the case. This means that if the court sustains (grants) a motion to dismiss in its entirety, then there may be an appeal before trial. In narrow circumstances, an appeal may occur before the court enters a final order. Either party may appeal a court’s final decision. Sometimes there is an automatic right to appeal to the higher court, and sometimes the higher court has discretion to accept or deny the appeal. It is important to note that except for an appeal from the Virginia General District Court to the Virginia Circuit Court, an appeal does not consist of repeating the initial trial. Appeals are limited to very specific legal issues, such as whether the trial judge incorrectly admitted or excluded certain evidence at trial.
The Virginia appellate process is complicated and it requires specific expertise. If you have a case that you think should be appealed or has been appealed by the other side, contact our Virginia appellate attorneys today.
Settlement
Although Gentry Locke lawyers prepare for trial from day one, the reality of today’s world is that many cases settle before trial. Settlement can occur during any one of the steps outlined above. A case may settle through negotiations between counsel or it may settle through a process called mediation. Settlement negotiations are usually initiated by the plaintiff’s attorney, who will send a demand package containing supporting evidence to the defendant or insurance company. Mediation is where a third-party neutral (a mediator), usually a judge or retired judge, facilitates settlement discussions between the parties. During mediation, the mediator advises both sides of the risks of their positions and assists the parties in reaching a voluntary resolution.
Cases settle for three main reasons: (1) risk, (2) cost, and (3) delay. A jury trial can be risky to both sides, especially given that a random selection of citizens has the power to decide the merits of the case. A jury may award a verdict far in excess of what the defendant expects, but a jury may also find that defendant was not liable (responsible), which leaves the injured plaintiff with nothing. Additionally, jury trials are expensive. In personal injury cases, expert medical testimony is generally required, and doctors can costs hundreds or even thousands of dollars per hour to prepare their reports and give their testimony. Finally, Virginia courts have busy dockets, meaning a jury trial may be scheduled for a year or more after the lawsuit is filed. Defendants frequently try to avoid or delay trial by filing a motion to continue, hoping to wear down the plaintiff to settle. These factors, and others, lead clients to settlement. This is another reason why hiring the right attorney is a crucial decision—our Virginia personal injury attorneys are trial lawyers who can advise you as to the specific risks associated with your case and assess whether negotiation, mediation, or trial is appropriate for your case.
Please note that every case is different and the specific steps of your case may differ depending on the status of your health, and the approach adopted by your Virginia personal injury lawyer. Some cases demand speedy resolution, while other cases may call for a wait-and-see approach, especially if the plaintiff is still treating for their accident-related injuries. Contact Us today so one of our Virginia personal injury attorneys can advise you as to the approach that is suitable for your case.
Tuesday, February 20th, 2024
The long-awaited amendments to Federal Rule of Evidence 702 took effect across federal courts on December 1, 2023. Companies and individuals whose trial and settlement outcomes come down to expert witness testimony should pay close attention to the growing body of caselaw defining the import of these amendments.
Rule 702 provides a key tool for litigants to keep “junk science” out of trial, and imposes on courts an important “gatekeeping” responsibility to exclude any expert opinions that lack sufficiently reliable methodologies. Although “[n]othing in the amendment[s] imposes any new, specific procedures” to the rule, the Advisory Committee’s comments strengthen the rule in a number of ways.
The amendments therefore require litigants to take special care in selecting their expert witnesses and preparing them for trial. They also create more promising opportunities for litigants to challenge baseless or weak expert opinions offered by adversaries.
Rule 702 Amendments “Clarify” and “Emphasize” Courts’ Gatekeeping Responsibilities
With the new amendments, Federal Rule of Evidence 702 now reads as follows (amendments are italicized and underlined):
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
As noted in its comments, the Advisory Committee intended for its amendments to “clarify” and “emphasize” courts’ gatekeeping responsibilities under the rule. Consequently, courts have treated the amendments as clarifications or reminders of the standard, rather than changes to it. The United States Court of Appeals for the Fourth Circuit, for instance, cited the amendments before their effective date in reversing a $4.8 million wrongful death verdict obtained in part through unreliable expert witness testimony.[1] Other courts have similarly noted that the admissibility analysis often “remain[s] the same” under the new and previous versions of the rule.[2]
Practice Pointers
Nevertheless, the Advisory Committee’s comments strengthen the rule and bring to light a number of focus areas for parties—both in preparing their own experts, and challenging expert opinions offered by the opposing party.
- Prepare Your Experts for Increased Scrutiny, and Take Advantage of Opportunities to Challenge Questionable Expert Opinions Offered by Adversaries.
The 2023 amendments make clear that proponents of expert testimony have the burden, “by a preponderance of the evidence,” to establish that the testimony satisfies Rule 702 requirements. This standard comes from Federal Rule of Evidence 104(a), and squarely places the threshold assessment of an expert’s factual basis and methodologies with the district court.
In recent years, some courts had taken lax approaches to the rule and punted questions surrounding “shaky” expert opinions to the jury.[3] The 2023 comments explain that Rule 702 does not allow for such approaches: although an expert’s opinion can be admitted notwithstanding relatively insignificant reliability concerns, it is “incorrect” for courts to treat “critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology” as “questions of weight and not admissibility.” Courts must instead address such “critical questions” head on at the admissibility stage, before the expert opinion reaches the jury, and exclude any expert evidence that is not sufficiently reliable.
As a result, litigants seeking to introduce expert witness testimony should prepare their experts for increased scrutiny, including of the expert’s qualifications and methodologies. Conversely, a litigant seeking to exclude an expert’s testimony should fully embrace this standard and, where appliable, note the proponent’s inability to demonstrate the sufficiency of its expert’s qualifications and methodologies by a preponderance of the evidence.
- Ensure Consistency Between the Certainty of Your Own Expert’s Opinions and Known Error Rates of Their Methodologies, and Note Any Mismatches Present in Your Opponent’s Expert Evidence.
The comments expressly warn that “forensic experts” should “avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology [utilized in forming their opinions] is subjective and thus potentially subject to error.” The comments also instruct courts to “(where possible) receive an estimate of the known or potential rate of error of the methodology employed, based (where appropriate) on studies that reflect how often the method produces accurate results.”
Although focused on forensic experts, the import of this guidance applies to expert methodologies in a wide range of industries—such as forensic fingerprint matching analyses with certain error rates; medical diagnostic methods known to have certain false positive rates; or certain statistical analyses with known confidence intervals. Litigants should ensure a match between their own experts’ methodologies and the degree of certainty with which they offer their opinions, and those lodging expert challenges should highlight mismatches between the two.
- Take Note of Subjectivity Involved in an Expert’s Opinions.
Relatedly, parties should take note of the comments’ indication that “subject[ivity]” can make expert opinions “potentially subject to error.” Expert opinions may involve some level of subjectivity in certain types of cases—for instance, medical experts often must choose between two possible, but conflicting diagnoses; auto accident reconstruction experts must sort between competing theories and possible causes of accidents; and financial and accounting experts often form working assumptions in calculating an individual’s lost income or a company’s lost profits. While some subjectivity can be tolerated under the rule, expert conclusions that involve more subjective than objective factual analysis run the risk of exclusion under the new Rule 702.
- Ensure Your Experts Comply with Basic Principles of the Scientific Method, and Challenge Expert Opinions That Do Not.
The amendments require that the expert’s opinion reflect a reliable application of scientific methods and principles to the facts of the case. These methods and principles often come from industry-specific standard and guidance, such as American Society for Testing and Materials (“ASTM”) standards, and Occupational Safety and Health Administration (“OSHA”) or other workplace health and safety standards.
Importantly, however, Rule 702 also requires compliance with basic principles of the “scientific method”—including assessment of hypotheses through replicable tests and investigation and consideration of all relevant facts (both “good” and “bad”).[4] The Rule 702 amendments provide more opportunities to challenge experts who fail to do so, whether through “cherry pick[ing]” from relevant data or resorting to “result-driven” reasoning.[5] Conversely, parties preparing their experts should put their experts to the test and correct any shortcomings in their investigation and analysis prior to offering their opinions.
Conclusion
Although the December 2023 amendments ostensibly “clarify” what Rule 702 has required of experts all along, parties can expect courts, and each other, to treat expert testimony with increased scrutiny. Litigants should carefully review the amendments and comments as a checklist for ensuring their experts’ opinions are admissible. And those faced with “shaky” expert opinions from opponents should treat the amendments and comments as a playbook for planning their modes of attack.
Gentry Locke lawyers frequently prepare litigation experts for trial and handle admissibility challenges under Rule 702 and its state law counterparts. Call us for more information or assistance in navigating the new amendments.
[1] Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).
[2] E.g., Brown v. Saint-Gobain Performance Plastics Corp., No. 22-cv-018-LM, 2023 U.S. Dist. LEXIS 230628, at *4 n.1 (D.N.H. Dec. 29, 2023).
[3] See, e.g., Hardeman v. Monsanto Co., 997 F.3d 941, 962 (9th Cir. 2021) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)) (finding no error in trial court’s “slight deference” to experts with “borderline opinions” on the ground that “[t]he interests of justice favor leaving difficult issues in the hands of the jury” and relying on the trial process to “attack shaky but admissible evidence”).
[4] In Re Lipitor (Atorvastatin Calcium) Mktg. v. Pfizer, Inc., 892 F.3d 624, 634, (4th Cir. 2018) (noting that courts “consistently” exclude expert opinions formed through “result-driven analysis, or cherry picking” of data because “such an approach does not reflect scientific knowledge, is not derived by the scientific method, and is not good science”) (internal citations and quotations omitted).
[5] See n. 4. Although the 2023 Advisory Committee comments do not specifically address the scientific method, the emphasis of courts’ gatekeeping responsibilities will likely result in an increased focus on this topic at the admissibility stage. The comments note that “[j]udicial gatekeeping is essential because . . . jurors may . . . lack the specialized knowledge to determine whether the conclusions of an expert go beyond what the expert’s basis and methodology may reliably support.”
Wednesday, February 14th, 2024
Published with the permission of the Virginia State Bar. Originally published in the Virginia Lawyer, Vol. 67/No. 3.
The Supreme Court of Virginia has approved a pilot program for limited appellate mediation in the Court of Appeals of Virginia and Supreme Court of Virginia beginning January 1, 2019. The Court’s announcement recognizes the importance of expanding the availability of alternative dispute resolution to all levels of Virginia’s court system.
The pilot program will run for two years. It is designed to support mediation in Virginia’s appellate courts so litigants may make informed decisions about resolution of their disputes and fashion creative solutions, even after entry of a final or appealable order.
Appellate mediation will be available in certain civil cases where both parties are represented by counsel. Appeals where one or both parties are pro se are not eligible for appellate mediation through the pilot program. In the Court of Appeals, mediation will be available in equitable distribution and/or related attorney fee disputes. In the Supreme Court, mediation will be available only where a petition for appeal has been granted; motions to vacate criminal convictions and petitions for actual innocence are not be eligible for appellate mediation.
How appellate mediation will work
Appellate mediation is entirely voluntary. In the Supreme Court of Virginia, the parties will be informed of the availability of appellate mediation when a writ is granted. At that time, the clerk of the Supreme Court will send a letter to the parties describing mediation and explaining that if all parties agree to mediation and notify the clerk in writing of their agreement within 14 days, any further appellate deadlines (except the statutorily-required bond deadline) will be stayed for a period of 30 days to allow the parties an opportunity to mediate. The clerk’s letter will attach a list of certified appellate mediators but will explain that the parties may choose any mediator, whether or not the mediator is on the list.
In the Court of Appeals, appellate mediation is not available until the Court receives the record in a domestic relations case. At that time, the clerk of the Court of Appeals will send the parties a letter similar to that sent by the Supreme Court clerk. As in the Supreme Court, if the parties agree to mediate, there will be an automatic stay of the proceedings for 30 days to provide an opportunity to mediate. If the Court of Appeals issues a stay, the clerk will notify the parties of the deadline for filing the next document.
Appellate mediation will promote access to justice
Chief Justice Donald W. Lemons initiated the study of mediation in the appellate courts last year when he asked the Joint Alternative Dispute Resolution Committee to appoint a group to consider the issue. The Joint ADR Committee appointed the Special Committee to Study Appellate Mediation, which includes members of the appellate bench, appellate litigators from the Virginia Bar Association and VSB, and members of the Joint ADR Committee.
Following months of study, the special committee issued a report in June 2018, recommending that the Supreme Court and Court of Appeals undertake the pilot program. According to the special committee’s report, appellate mediation is “a vehicle” to provide “viable appellate mediation for economically disadvantaged litigants” in an effort to promote access to justice at the appellate level of the commonwealth’s court system.
Training and certification of appellate mediators
The special committee also recommended that the Judicial Council of Virginia approve specific training and certification for appellate mediators during the pilot projects. To date, there is no special training in Virginia for mediators regarding the unique aspects of appeals in Virginia’s courts. The special committee hopes to close this gap by offering a new two-hour course focusing exclusively on appellate litigation in Virginia. This course will be required for individuals (except those who have served on the Supreme Court and Court of Appeals) who seek to be certified as appellate mediators.
To become a certified appellate mediator in Virginia, one must be certified as a mediator in Virginia or complete the 20-hour basic mediation course. The special committee has also recommended additional minimum qualifications for certification of appellate mediators in each appellate court to ensure that mediators have the skills necessary to effectively mediate disputes at the appellate level.
The Joint ADR Committee is holding a training program for interested appellate mediators on November 14-16, 2018, in Richmond. For information about the training course, go to the events section of the VSB website. The report of the special committee can be found at: https://cdn.ymaws.com/www.vba.org/resource/resmgr/adr/report-special_cmte_to_study.pdf.
Monday, February 12th, 2024
I. Introduction and Executive Summary
On December 14, 2023, a legal earthquake hit Virginia when the Supreme Court of Virginia issued its decision in Vlaming v. West Point School Board, 895 S.E.2d 705 (Va. 2023). But, to the extent there is a “legal” Richter scale, that earthquake has yet to register. Headlines covering the decision noted the result dealing with a hot-button social issue: a teacher fired for refusing to use a student’s preferred pronouns on religious grounds could continue to pursue his case against the school board for alleged violations of constitutionally protected religious rights. But that context has left under-appreciated the dramatic change that occurred to Virginia law, and the potential implications.
The upshot is that Virginia is likely now the most protective state for religious liberty and expression, protecting it more strongly than any other constitutional right. To do so, Virginia will now apply a “super” strict scrutiny to any burdens on religious practice, in what will be a novel framework.
Under this heightened test, the state cannot justify burdening religious expression or practices based on any legitimate or even compelling state interest. Virginia state and local governments may burden religious expression or practice (even if not the aim of the law or policy) only if it is for the purpose of public safety. And, that burdening law or policy must be narrowly tailored to advance that narrow public-safety objective. Otherwise, a religious accommodation or exception must be made, even for generally applicable laws.
This article is not aimed at evaluating the merits of the Vlaming decision. Instead, we address what its implications may be for Virginia law—and Virginia citizens, businesses, and organizations—going forward. Among those implications, described in more detail below:
1.) The strong protection of religious liberty in Vlaming may influence how the Virginia Human Rights Act’s religious discrimination protections are interpreted, creating even more demands on employers than exist under federal law. It is not hard to see—as the Vlaming case itself demonstrates—how an employer’s legal requirement to prevent sex or gender-based discrimination could conflict with its obligations to other employees to accommodate their religious beliefs regarding, for instance, use of preferred pronouns.
2.) More laws and policies will be subject to challenge or a defense based on religious objection than ever before, and with uncertain outcomes. The Vlaming decision throws into question whether Virginia may soon have to recognize plural marriage, excuse certain religiously based practices from criminal prosecution, or how zoning and environmental laws may apply to businesses or organizations claiming a religious objection or burden. If the standard is as strict as Vlaming indicates, governments may have a hard time defending against such religiously based claims or defenses.
3.) By departing from federal precedent on religious liberty protections and embracing a more protective interpretation under the Virginia Constitution, Virginia may find itself in intractable conflict with federal law. There could no doubt be tensions (as the Vlaming case demonstrates) between protecting religious practices and protecting against other types of discrimination, including based on sex, sexual orientation, or gender identity. The Vlaming decision offers few options for entities trying to navigate those tensions that may run headlong into what, for instance, the U.S. Department of Education may contend is required under Title IX to protect LGBTQ students from discrimination.
Because of these significant legal implications, among others, all must consider how the Vlaming decision will impact them.
For citizens, businesses, and other organizations, Vlaming may provide additional protections that should not be ignored. Today, you have a much stronger constitutional right to religious liberty than you had on December 13, 2023—so use it in appropriate cases.
For employers, get ready for these religious-discrimination issues to be front and center in your HR compliance discussions and decisions.
For state and local governments, be prepared to defend even long-standing laws, ordinances, permitting decisions, etc. against challenges or defenses based on religious beliefs and practices.
The change in Virginia law signaled by Vlaming opens an entirely new chapter of rights-based litigation in Virginia, with almost all of it yet to be written. The decision is important, and it’s here to stay for the foreseeable future—and, given the recent trends at the U.S. Supreme Court, may presage a major change coming in U.S. Constitutional law before too long.
II. The Decision Itself
First, what did the Court actually decide in Vlaming?
A. The Alleged Facts
The School Board moved to dismiss Mr. Vlaming’s lawsuit. This is important because the trial court decided the case without hearing any evidence. Under well-settled legal standards, the Supreme Court of Virginia was required to assume that the factual allegations in Mr. Vlaming’s Complaint were true.
According to his complaint, Peter Vlaming was a public high school French teacher, employed by the West Point School Board. During the end of the 2017-2018 school year, Mr. Vlaming became aware that a student he had previously taught and who was biologically female, intended to transition to a male identity and wished to be referred to using male pronouns. Mr. Vlaming alleged that, for him, “this request asked him to violate his conscience. He holds religious and philosophical convictions that reject the idea that ‘gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans’ and instead accept as verity that ‘sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.’” Vlaming v. West Point School Board, No. 211061, slip. op. at 2-3 (Va. Dec. 14, 2023) (quoting Mr. Vlaming’s complaint) (hereinafter, the “Decision”).[1] Mr. Vlaming further alleged that his conscience and religious practice “‘prohibits him from intentionally lying, and he sincerely believes that referring to a female as a male by using an objectively male pronoun is telling a lie.”’ Id. at 3 (quoting Mr. Vlaming’s complaint).
Mr. Vlaming alleged that the student, referred to as “John Doe” in the litigation, enrolled in Mr. Vlaming’s French II class for the 2018-2019 schoolyear. To avoid issues, Mr. Vlaming asked all the students to pick new French-language names to be used in the class. He then would use Doe’s chosen French name, and limit use of any pronouns in class discussions. This seemed to Mr. Vlaming to accommodate Doe while maintaining his religious belief and practice. Id. at 2-3.
Mr. Vlaming alleged that the student—Doe—seemed comfortable with his approach, but that when he explained his reasons (his religious beliefs) to Doe’s parents, they complained to school administration. This led to escalating conflict with the school’s principal, who insisted that Mr. Vlaming use the student’s preferred pronouns or face discipline.
Mr. Vlaming alleges that during one class, when it appeared that Doe was at risk of injury during a class exercise, Mr. Vlaming inadvertently referred to Doe as “her” rather than “him,” for which he later apologized. Doe withdrew from the class that day. Id. at 5. Mr. Vlaming reported the incident to a school administrator. Mr. Vlaming was placed on administrative leave pending an official review, and ultimately—after refusing to use Doe’s preferred masculine pronoun due to his religious beliefs—Doe was fired by the West Point School Board for violating its policies against discrimination and harassment based on gender identity. Id. at 6.
Mr. Vlaming filed suit asserting free-exercise, free-speech, due-process, and breach-of-contract claims exclusively under Virginia law, including the Virginia Constitution. The trial court dismissed the case on purely legal grounds, finding that Mr. Vlaming had not stated valid legal claims under Virginia law. Mr. Vlaming appealed.
B. The Majority Opinion
The heart of the Vlaming decision is the Court’s interpretation of Article I, § 16 of the Virginia Constitution, which is Virginia’s enshrinement of religious liberty in its constitution. The Decision has three opinions—the majority opinion (Justice Kelsey, joined by Justices McCullough, Chafin, and Russell); a concurring opinion (Justice Powell, joined by Chief Justice Goodwyn); and a dissenting and concurring opinion (Justice Mann, joined in part by Justice Powell and Chief Justice Goodwyn). But all of the Justices agreed that Mr. Vlaming had validly pled a case for violation of Article I, § 16—based on his allegations—but would use very different tests for evaluating the case on the merits.
Free Exercise of Religion Claim
The Court begins by plainly declaring that the Decision interprets the scope of the Virginia Constitution, not the First Amendment of the U.S. Constitution. This furthers the development of Virginia’s own constitutional law which is informed, but not necessarily coterminous with the U.S. Constitution. Decision at 8-9.
Indeed, the text of Article I, § 16 is markedly different from the much shorter Free Exercise Clause of the First Amendment.[2] Because of this difference, the Majority held that federal authorities on the Free Exercise Clause could “inform but do not necessarily govern the construction” of Article I, § 16. Decision at 11.
Indeed, the Decision criticized sharply the controlling U.S. Supreme Court precedent on the scope of the Free Exercise Clause, Employment Division v. Smith, 494 U.S. 872, 878-79 (1990). See Decision at 11. Understanding that case helps explain how Vlaming departs from it.[3]
In Smith, Justice Scalia wrote for a 5-4 majority holding that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that this law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879 (quotation omitted). There, the petitioners had been denied unemployment benefits because they were fired for violating Oregon’s criminal prohibition against use of peyote. The petitioners claimed—and it was undisputed—that their religious beliefs required sacramental use of peyote, and so claimed that the Free Exercise Clause prohibited Oregon from penalizing them for abiding by their religious beliefs. Id. at 874-75. The Court found that strict scrutiny did not apply in the case because the criminal law was religiously neutral and of general applicability. Id. at 878-80.
Thus, if Virginia law applied Smith, Mr. Vlaming likely would have no legal cause of action, as the West Point School Board was enforcing a neutral and generally applicable policy for all teachers. But the Decision explicitly departs from Smith, stating that “[i]n our opinion, the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” Decision at 13 (citing recent federal precedent questioning but abiding by Smith) (emphasis added).
The Decision then applies a doctrinally originalist approach to interpret Article I, § 16, looking first to the text, historical developments, and the original intent of the framers of the 1776 Virginia Constitution. Decision at 13-20. Based on that, the Court concludes that Article I, § 16 explicitly does contemplate religious exemption from generally applicable laws, and that such exemption applies unless there is some heightened societal interest. The question, then, is what types of state interests can justify the burden on religious freedom.
Filling in some gaps based on Jefferson’s Virginia Statute for Religious Freedom and other founding-father writings on the subject, the Court embraces a broadly protective view of religious liberty under the Virginia Constitution. The Court concludes that, in the Vlaming case, the question for his free exercise claim is:
[W]hether Vlaming’s sincerely held religious beliefs caused him to commit overt acts that invariably posed some substantial threat to public safety, peace or order . . . and if so, whether the government’s compelling state interest in protecting the public from that threat, when examined under the rigors of strict scrutiny, could be satisfied by less restrictive means.
Decision at 23 (quotations omitted).
The Court declined to go into detail to extrapolate what this limitation means in terms of other hypothetical applications. But the Court did make clear that the limitation of “public safety, peace or order” had teeth, creating an even stricter test from what typically applies in applying judicial scrutiny. See Decision at 20.
Applying that rule, the Court concluded that Mr. Vlaming had alleged a valid claim, and therefore the court would proceed to a trial on the merits – to apply the new test under Article I, § 16.
Free Speech Claims
The Decision also broke notable ground in applying Virginia’s free-speech protections, under Article 1, § 12 of the Virginia Constitution.[4] The Court concluded that Mr. Vlaming had alleged a valid compelled-speech claim. He alleged that the use of preferred pronouns was not related to his curricular topic, French, and argued that it was simply a “compelled-speech mandate seeking to use him as an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Decision at 55 (quotation omitted).
The Court found that speech regarding gender identity received the highest protection under Article I, § 12 because it involved ideological disagreement about which the state cannot compel speech without ample justification. Id. at 56. It distinguished “official-duty” or “government-speech” exceptions (which allow the government to punish employees for unapproved speech) because, here, it involved forcing Mr. Vlaming to express ideological views with which he disagreed. Id. at 58-60.
C. The Concurring and Dissenting Opinions
As noted above, both the concurring and dissenting opinions in Vlaming would have held that Mr. Vlaming pled a valid free-exercise claim under the Virginia Constitution.
The concurrence noted that it would apply a traditional strict scrutiny test—such that the state could justify a burden on religious practice if it could show any “compelling state interest.” Decision at 74. The dissenting opinion took a very different view that would have applied a more Smith-like approach to free exercise claims under the Virginia Constitution, but thought the allegations were sufficient to raise issues as to whether the policies were neutral on religion. Id. at 80.
The opinions are worthy of review; however, this article focuses on the practical impact of the majority decision.
III. Legal Implications
So what does this all mean?
Vlaming Decision is Not Just for Government Lawyers – It Will Impact Private Organizations and Businesses
Constitutional rights are generally enforceable against the Government, not private actors. But this decision will affect private actors as well.
First, private businesses or organizations may well consider whether the new protections under Vlaming allow them to be exempt from certain disfavored requirements. It appears clear that, while religious beliefs are personal, organizations also are protected and can have religious beliefs or practices. See, e.g. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (holding that corporations can exercise religion). Thus, and as suggested further below, there could be opportunities to use the expansion of religious liberty protections in Virginia to the benefit of multiple private persons (from individuals to corporations).
Second, it is likely Vlaming will influence interpretation of the Virginia Human Rights Act (VHRA) and how employers must accommodate religious beliefs and practice.
Under the VHRA, it is unlawful for a business to discriminate, either in employment or public accommodation, based on an individual’s “race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, military status, disability, or national origin.” Va. Code § 2.2-3905(B)(1) (banning employment discrimination); see also 2.2-3904(B) (similar protected classes for public accommodation).
As you may recall, Virginia enacted the Virginia Values Act in July 2020. This law provided new remedies and claims that did not previously exist under Virginia law.[5] Because these laws are relatively new, the reality is that there is little settled law or jurisprudence in the Virginia state courts interpreting the VHRA.
Vlaming’s expansive view of religious practice—including performance of work duties according to the dictates of religious conscience—begs whether that same understanding applies in the VHRA context? While the history and text of Article I, § 16 and the VHRA are quite different, there will no doubt be litigation to define whether there is a practical difference in discrimination based on religion (under VHRA) and burdening religious practice (under the Virginia Constitution).
If the same interpretation applies, private businesses may find themselves between a rock and a hard place in complying with state and federal anti-discrimination laws. If, for instance, a conflict arises between an employee’s desire to be referred to by certain pronouns and another employee’s refusal to do so based on sincerely held religious beliefs, what is an employer to do? If some informal resolution is not possible, the employer could conceivably face liability under the VHRA no matter what it does.
Moreover, the broad nature of the religious-rights protection provided under the Virginia Constitution may influence how the VHRA is applied. Bear in mind that in the summer of 2023, the U.S. Supreme Court modified the test regarding when an employer could deny an employee’s request for a reasonable religious accommodation, making it more difficult for an employer to deny such a request. See Groff v. DeJoy, 143 S. Ct. 2279 (2023) (to deny request for religious accommodation under Title VII, employer must show burden of granting request would result in “substantial increased costs” in relation to the “conduct of its particular business.”)[6] But it remains the case that, under federal law, businesses do not have an inflexible obligation to accommodate religiously based practices. Given Vlaming’s strong requirement that governments yield to religious practices unless there is a narrow, compelling interest, Virginia courts may be persuaded that, under the VHRA, employers also must provide more robust protection for religiously based practices and beliefs.
More Laws and Government Actions are Subject to Religious Objection Now than Before
Immediate implications also come on the operation of general state and local laws, regulations, and ordinances. Under Vlaming , it is now a potential defense to any enforcement of those laws that they burden religious belief and practice. That can mean any criminal law, any civil regulation, or even a zoning ordinance—really any government action taken.
Here are just a few hypotheticals for consideration:
- If, like in Smith, a defendant claims that use of heroin is necessitated by religious practice, can the defendant be legally prosecuted in Virginia or denied certain benefits due to violating the criminal law?
- If a person’s religious faith requires plural marriage, must Virginia law recognize the marriages?
- If a person’s religion requires ritualistic sacrifice of animals, can that be prosecuted as animal cruelty?
- If the state is considering a major infrastructure project and the areas affected by it are worshiped by some as sacred, can the state proceed? Does it matter if public safety is the justification for the project? Or if the state is approving a private project versus building it, itself?
- If a religiously affiliated school wants to use property in a non-conforming use under the zoning code, can the locality deny the special use permit on grounds other than public safety?
- If a person’s religion forbids support of government social welfare programs, can they be forced to pay Virginia taxes in support of them?
Under Smith, those and other hypotheticals were settled, and the answer was clear: religious belief or practice would not impact how religiously neutral, general laws apply. Under Vlaming, the door is swung open in Virginia, and these and similar issues may well need to be decided under the new “super” strict scrutiny test.
Vlaming’s “Super” Strict Scrutiny will be Difficult to Satisfy
One facet of Vlaming that garnered strong disagreement from the concurring and dissenting justices is its narrowing of the types of justifications that can pass judicial scrutiny. The state must show both that its interest is in protecting against some threat to public safety and that it is narrowly tailored to meet that objective. By erecting a “super” strict scrutiny standard, Vlaming makes it difficult for the government to overcome a valid religious objection by a particular individual or organization.
First, what is necessary for public safety, and how is that to be measured? Are health and environmental laws necessary for public safety? Taxation laws? Educational laws? Zoning ordinances? Noise ordinances? Consumer protection laws? Anti-discrimination laws? Property laws? Domestic relations laws?
Second, how are the courts to assess whether something is narrowly tailored when the object is “public safety”? For instance, is public safety implicated by exempting a handful of adherents to use sacramental-heroin? What evidence would the government need to show that its broad, general prohibition could not allow for some exception without impacting public safety?
Thus, cases where there are religious objections will no doubt put state and local government attorneys to the test. This, in itself, may force governments to think long and hard before picking an enforcement fight with someone claiming a burden on religious belief or practice.
Virginia May Find Itself in Intractable Conflict with Federal Law
By extending the right to free exercise of religion under the Virginia Constitution beyond the First Amendment’s bounds, the Vlaming decision may also create imbalance with federal laws.
For instance, much funding for Virginia schools, transportation, other infrastructure, and health care comes from the federal government. The vast majority of that funding is not through federally-mandated laws, in which federal law would preempt Virginia law, but through Congress’s general spending power, which states abide by consensually in order to obtain the federal largesse. The underlying facts of Vlaming itself provide a not unlikely example of how an intractable conflict might arise.
Suppose the federal Department of Education determines that the School Board in Vlaming needs to maintain its policy in order to comply with Title IX, which requires certain non-discrimination standards for the receipt of federal funding. But the School Board cannot, under Vlaming, agree to enforce the policy without violating Mr. Vlaming’s rights under the Virginia Constitution. And, moreover, because mere compliance with federal law is not a valid basis under Vlaming to burden religious practice in Virginia, the School Board would be unable to comply with federal law. And that could jeopardize federal funding.
Other examples could also arise, particularly if the federal government is willing to push states to adhere to its standards—under the Medicaid program, in building federally-funded transportation projects, and so on.
The potential conflict with federal law could also impact not just government entities, but also private employers. As another example, it is now settled law under Title VII that discrimination “because of sex” encompasses claims of discrimination based on a person’s “sexual orientation or gender identity.” Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). This past fall, the Equal Employment Opportunity Commission (“EEOC”) published proposed Enforcement Guidance on Harassment in the Workplace. In its guidance, the EEOC cites cases for the proposition that the alleged failure by a supervisor to use an employee’s preferred name or pronoun is a form of sexual harassment that could subject the employer to liability under Title VII.[7] What is an employer in Virginia to do when a supervisor refuses to refer to an employee by a preferred pronoun on religious grounds, and the employee contends this constitutes sexual harassment under Title VII or the VHRA? And what if, under Virginia law and as informed by Vlaming, the employer has different obligations with respect to religious accommodation?
Religious Beliefs and Practices will Need to be Litigated
A further implication of Vlaming will be the need for Virginia courts to adjudicate whether a litigant sincerely holds the allegedly burdened religious beliefs and practices—and even whether they are religious beliefs and practices in the first place.
While all can hope that only the most sincerely-held beliefs will form the basis of any legal defense based on the free exercise of religion, it is not hard to imagine that creative litigants may attempt to fashion any number of things into a religious practice dictated by conscience. Those issues would likely be incapable of resolution except through litigation.
The U.S. Supreme Court, in the Hobby Lobby decision, reiterated that “it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’” whether the belief “reflects ‘an honest conviction”’ held. Hobby Lobby, 573 U.S. at 725 (quoting Thomas v. Review Bd. of Ind. Employment Security Div., 450 U.S. 707, 716 (1981)). But litigating that question, because of the prevailing Free-Exercise standard under Smith, was rarely necessary because many cases could be handled at the pleading stage. But under Vlaming, the credibility of the religious claim by the litigant will become more closely scrutinized, and this issue will be fodder for discovery and trial.
Recently, the EEOC, driven in large part due to religious objections to COVID-19 vaccine requirements by employers, issued updated guidance that suggested employers should generally accept the sincerity of employees’ claimed religious beliefs.[8] Indeed, inconsistent practices or newly adopted beliefs are not necessarily disqualifying, nor is there any requirement that the religious belief be held by a traditionally recognized religion—or even by anyone else at all. This guidance may well become persuasive authority for Virginia courts, though the question remains unclear under the VHRA or for free-exercise claims under the Virginia Constitution.
IV. Conclusion
Vlaming is the law in Virginia for the foreseeable future. Because it is of constitutional dimension and interpreting the Virginia and not U.S. Constitution, it will not be modified unless there is (1) a decisional change by the Supreme Court of Virginia, or (2) a constitutional amendment.
As discussed above, for citizens, businesses, organizations, and government entities, this decision has significant implications.
Fundamentally, the Supreme Court of Virginia established a super strong and protective right for religious belief and practice—in a way largely untested in Virginia—and so it opens a new chapter for Virginia rights-based litigation.
For employers, look closely at your policies for handling religious accommodation requests and make sure they are updated (this is also true as a result the U.S. Supreme Court’s decision in Groff). Having updated written procedures whereby an employee documents a particular religious-based request will be important to evaluate requests and to protect against potential claims of religious-based discrimination.
Businesses, organizations, and individuals should also consider whether there are opportunities to use Vlaming to their advantage. Few may want to go out and test the waters themselves, but a big tool to limit government authority in Virginia has been provided—it is worth considering how to use it to best advantage.
For state and local government entities, get ready for this issue to be at your doorstep soon. Consider now your process for religious-accommodation requests.
Finally, Vlaming may indicate a Supreme Court of Virginia that is less deferential to the elected branches and embracing a more active role in deciding cases with policy implications. Vlaming is a bold decision that pulls no punches. The ideological split on the Court is exposed in this decision, and there could be more 4-3(ish) decisions ahead on other issues implicating the Virginia Constitution. And if the decision signals a larger willingness to wade into the culture wars, the Court may find itself as counter-weight to the elected branches that are becoming more liberal politically. That is not a role the Supreme Court of Virginia has typically played, but is one it may find itself in, in applying the Vlaming test to numerous laws and policies by state and local governments.
Those cases are on the way, no doubt.
[1] The exact pagination of the case in the Southeast Reporter was not available at the time of publication; therefore, citations to the case are to the slip opinion available here.
[2] Compare:
| Va. Const. art. I, § 16 |
U.S. Const., amend. I |
| That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please. |
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(Free Exercise Clause in bold). |
[3] As the Decision points out, Smith was an incredibly controversial decision, prompting rebuke from Left and Right, at the time, and leading to the Religious Freedom Restoration Act. Decision at 11-12.
[4] The focus of this article is on the implications of the free-exercise part of the Decision. While the free-speech analysis is also important to the case, it will likely not have as broad an impact since “free speech” is generally only applied as against government actors and not private businesses or organizations. As explained below, there are more implications where religious practice is involved given the protections of various antidiscrimination laws against religious-based discrimination.
[5] See https://www.gentrylocke.com/article/virginia-values-act-poses-significant-legal-risks-to-virginia-employers/.
[6] An interesting case to watch is Kluge v. Brownsburg Community School Corporation, a case in Federal Court in Indiana with similar factual allegations as the Vlaming case. The Seventh Circuit has sent the case back to the Southern District Court in Indiana to evaluate following the new test announced by the Court in Groff.
[7] See FN 33 of proposed Guidance.
[8] See What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, EEOC (Updated May 15, 2023), available at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov). (Answer to Question L.2. provides guidance on evaluating whether a particularly belief qualifies as a sincerely held religious belief).
Comments Off on Supreme Court of Virginia’s Vlaming Decision is a Legal Earthquake with Major Implications for Virginia Businesses, Organizations, and Government Entities
Category | Tags:
Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.
