30 June 2011

Virginia Court of Appeals Invalidates 221 Years of Common Law

In its neverending quest to take the power of judges to reduce a conviction to a lesser offense or dismiss it (when the trial judge deems that circumstances are appropriate), the Virginia Court of Appeals has this week invalidated every single alteration to the common law of Virginia that appellate courts have done, in the entire history of recorded decisions (since 1790). Judges are now entirely limited to (1) what the Virginia constitution specifies they can do, (2) what the English common law, as frozen in time in 1607 and writ in stone in the Tome of the Almighty and All-Encompassing Blackstone, allowed, and (3) what statutes allow.

In one fell swoop, the Virginia Court of Appeals has changed Virginia from a Common Law State to Civil Code State. It's a tripartite civil code with one corner in the Virginia constitution, one corner in Blackstone, and one in the Virginia Code. Be advised, trial judges, that anything outside of that is not allowed per Taylor v. Commonwealth.

This, of course, is ridiculous. The Appellate Court's assertion that the common law in its entirety came to a screeching halt in 1607, is just plain unsupportable. Anyone with even a modicum of legal history under their belt knows the common law was long seen as a developing thing. If the Virginia Court of Appeals decision is taken seriously, every post 1607 court developed rule dealing with evidence is out the window (remember Virginia's evidentiary rules are in large majority common law). All those hearsay rules and exceptions better be found somewhere in Blackstone, because they aren't all in the statutes and they definitely aren't in the constitution. And I'm sure there a litany of other evidentiary practices and legal doctrines which have developed since 1607 which are not written into a statute.

UNDERSTAND, for goodness sake UNDERSTAND, that the common law and constitutional interpretation are different things. Yes, I agree that constitutions freeze in place when they are written. Interpret them per the language and history of that time. A constitution is meant to set outer limits and in order to understand them you must interpret that document the way it was originally meant to be interpreted. ON THE OTHER HAND, it shows an appalling lack of understanding to close off developed and developing common law because it did not exist in 1607. The common law is meant to adapt and then be snipped back by the legislature if it goes too far.

The Virginia General Assembly has declined to adopt a Model Penal Code; it has declined to adopt comprehensive Evidentiary Rules; it has NEVER spoken as a whole on the subject of a judge's ability to show mercy through reduction or dismissal of charges except in that it has specified how these things can be done in regards to certain offenses. In fact, the last is a tacit recognition that this practice is ongoing and a shaping of it rather than a rejection of it. The General Assembly is acting in a manner which encourages the common law.

By stepping into the gap which has been left by the lack of legislation addressing this, the Virginia Court of Appeals has set itself up a legislature. This is not appropriate and the opinion should be overruled and no further action taken by the courts until such time as the General Assembly speaks on this subject. Judicial fiat should not replace the legislative process' ability to deal with developed common law procedures.  The Virginia Supreme Court has twice rejected the Court of Appeals' overreaching in this area; I'm sure it will at least address this issue. So now we wait.

In the meantime, we get to challenge everything a judge can't justify with a direct citation to Blackstone, a statute, or the constitution.  Commence au festival!


Anonymous said...

I read this section of the opinion slightly differently than you. I read it as simply saying that English common law, as a source of American jurisprudence, ends in 1607. The common law continues to develop thereafter, but Virginia courts, not English courts, are the source.

So it would be okay for a modern-day Virginia court to rely upon a 1606 opinion from the King's Court, but not upon a 2011 opinion from that court.

Ken Lammers said...

I must respectfully disagree. The way that section reads, Virginia courts cannot add anything to the common law. Under this opinion, their only power is to trim or excise that part of the common law which is incompatible with the constitution or statutes.

Southside prosecutor said...

I think this post misses something.

The way I’ve understood it, we still have the Common Law here in Virginia developing all those gaps you find when facts are applied to law. When the law doesn’t speak to a specific set of issues, the courts fill those gaps by construing new doctrine to settle disputes. But there is (at least) one area the Common Law would not reach because we’ve firmly settled it: the separation of government’s powers between three branches of government.

The core reason that the Common Law provides no authority to reduce charges is that the Virginia Declaration of Rights in 1776, and later the Constitution of Virginia (Article 1, Section 5), affirmatively removed from the judiciary’s purview any authority over the charging decision. That’s an executive function (which the panel recounted it as being as seen in English constitutional history). (By way of counterexample, in the Civil Law system in the Netherlands can compel the state’s prosecutors to file charges against someone when the prosecutors decline to do so on their own. Geert Wilders, who was recently acquitted for allegedly defamatory remarks about Islam, would be the most prominent recent example.)

Therefore, once the Constitution settled the roles the three branches play, the only Common Law that might have mattered in Taylor was that which existed in 1776. Anything afterwards, and the Constitution of Virginia controls the outcome. From there, it was an easy question to plug into Blackstone, and the opinion wrote itself.

To me, the only debatable point in the Common Law section of Taylor might be page 9 where St. George Tucker’s authoritative restatement of Blackstone in Virginia talks about how the Common Law was incorporated here. The question that arises is whether jurists reducing charges is the kind of “excis[ion] and trim[ming]” that was necessary to adapt the Common Law to the “different and varied circumstances of” America. I don’t see how that would be the case as maintaining the separation of powers was something the Founding Fathers were willing to go to war over.

None of this is to say that the Common Law could never have something to say about other areas of the law that aren’t constitutionally settled. The illustrative cases in the annotations for Va. Code § 1-200 are all good examples of both civil and criminal applications of the Common Law to our always-evolving body of law.

But I think it’s going too far to say that the panel decision here is invalidating the Common Law and turning Virginia into a Civil Law state.

Anonymous said...

I haven't read the decision yet, but isn't it relevant that Blackstone wrote in the 1770's, well after 1607?

I was looking at Indiana's enabling statute recently and wondering about the issue of whether it was the common law of 1607 or of 1776 that applied. Much, perhaps more of the recorded common law we have is from the 1607-1776 period.

The other big question is whether the common law must have been recorded in a judicial decision during that period, instead of just existing during that period. (Eric Rasmusen)