The Loudon Opinion: Using Nelson v. Warden

The Judge in Loudon County mistakes the meaning and scope of Nelson v. Warden, SEP01, VaSC No. 002301. This is the gateway and framework for his decision to disobey the Virginia Supreme Court's holding in Commonwealth v. Morris, JAN11, VaSC No. 092163 & 092346.

To begin, let's show all the parts of Nelson which talk about stare decisis.

In Virginia, the doctrine of stare decisis is more than a mere cliche. That doctrine plays a significant role in the orderly administration of justice by assuring consistent, predictable, and balanced application of legal principles. And when a court of last resort has established a precedent, after full deliberation upon the issue by the court, the precedent will not be treated lightly or ignored, in the absence of flagrant error or mistake.

Our strong adherence to the doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an incorrect application of the law.

Under the doctrine of stare decisis, we are not obliged to uphold a decision that is itself at odds with precedent previously established by this Court after full deliberation upon the issue that fails to give proper effect to the interposition of legislative power and that has produced confusion.

Its rather clear that the Virginia Supreme Court is talking about its ability to change precedent, not laying out a means for lower courts to ignore its rulings. “When a court of last resort . . . the court . . .” and “we are not obliged . . . precedent previously established by this Court . . .” is not language which encompasses lower courts. Nothing in this language gives a general district court judge the authority to not follow clear precedent set out by the high court.

The case could be applied by analogy to the highest court to have decided a matter. For instance, if an issue has never been decided in a court higher than the Virginia Court of Appeals the Court of Appeals becomes the de facto court of last resort for that issue and could change its precedent using Nelson. The same could be true if a Circuit Court has decided an issue which has never been addressed by any appellate courts. However, this is a case where a much higher court has made the decision, so Nelson does not even apply by analogy.

Furthermore, the trial judge isn't actually following the precedent set out in Nelson. Simply put, the precedent in Nelson is as follows.

Date 1: Statute = A, Caselaw[1] = A (following current statute)

Date 2: Statute = B (changed by General Assembly) Statute DOES NOT = A

Date 3: Caselaw[2] = A (following Caselaw[1] )

Date 4: Caselaw[2] changed when Court realizes Statute = B
Statute = B, Caselaw[2] = B

This is not the pattern the trial judge argues. Basically, the trial judge's argument is:

Common Law = A
Legislature does not abrogate common law.
Common Law = A

(Post 2 of 4: Post 3 at 6 p.m. Monday)