Advisement Lives!

In one fell swoop, Chief Justice Kinser has swept away all the bad law which has come out of the Virginia Court of Appeals concerning the taking of a case under advisement. This doesn't mean the fight is completely over. Certain quarters will continue to press for the General Assembly to eliminate advisement and there is still some room to argue when exactly the Supreme Court has agreed that advisement exists and what exactly a trial judge can do after he has taken a case under advisement.

Case: Starrs v. Commonwealth, JAN14, VaSC No. 122028

The background: Taking a case under advisement has been around for a long time in Virginia jurisprudence. However, it was a judicial practice, neither specifically approved nor disapproved by any law which has passed the General Assembly. It is the practice of a judge taking evidence, but not immediately finding guilt and imposing a sentence. Instead, the judge sets the case aside for a period of time, sometimes requiring the defendant to just keep the peace and other times requiring some act from the defendant. After the period of time has passed, the judge - if everything went as he required during the set aside time - reduces the charge to a lesser offense, gives a lesser sentence than would otherwise have been given, or dismisses the charge.  Usually, the judge does this with the agreement of both parties. Nevertheless, it is something the judge can do himself, without either party's acquiescence.

Whether the solely judicial advisement process is a good thing or a bad thing probably depends on your perspective and the facts of the particular cases to which it is applied. Personally, I think it is an equitable release valve which allows a judge to bring some sanity to situations wherein a young prosecutor might be a little too eager to crucify every jaywalker or situations wherein public opinion is such that elected officials might be forced into taking an overly-draconian stance. Of course, this can also lead to a great amount of frustration or out and out acrimony as a prosecutor proves his case, but sees his entire purpose in prosecuting the case frustrated by a judge who basically says, "Yes, he's guilty, but I shall not find him so because . . ."

The first arguments I heard against advisement seemed to appear about ten years back. A small, but vocal, group started claiming that because the General Assembly had passed laws specifying how advisement could be applied in particular situations advisement was not authorized in any others. It was a weak argument¹ and pretty clearly a minority position, but where it gained resonance it found true believers. One of those places was the Virginia Court of Appeals.

This is the third time the Virginia Supreme Court has bounced attempts to get advisement declared illegal. First, back in 2008, came Moreau, which came directly to the Supreme Court from a circuit court and shot down a writ of mandamus requiring a judge to not use advisement, but to find guilt and sentence immediately. Next came Hernandez, in which the court specifically found a trial court could take a case under advisement, but left open-ended what the judge could do at the end of the advisement.

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Hernandezv. Commonwealth, JAN11, VaSC No. 092524:  (1) Until the court enters a written order finding the defendant guilty of a crime, the court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date. (2) Once a judge has found someone guilty of a crime the punishment must be as laid out by the General Assembly. (3) A judge's statement that there is enough evidence to support a conviction is not a finding of guilt. (3) The VaSC makes no finding as to whether a case can be deferred/continued/taken under advisement with a promise of a particular disposition at a later date.

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Then Court of Appeals came back with Taylor and Starrs.

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Taylor v. Commonwealth, JUN11, VaApp No.2236-09-1: Upon a finding of facts sufficient for guilt, a trial judge does not have the power to reduce a conviction to a lesser offense or to dismiss it.

Starrs v. Commonwealth, OCT12, VaApp No. 2516-11-4: After a finding of facts sufficient to find guilt, a judge cannot take a case under advisement for a period of time and dismiss the case upon completion of terms (unless a statute states she can).

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You may recall that I vociferously decried Taylor.²  However, for whatever reason, the Supreme Court did not address Taylor and by the time Starrs came out of the Court of Appeals I was convinced that advisement was gone and didn't even mutter much under my breath. After all, if the Supreme Court didn't bounce Taylor, which had all sorts of hooks which could have allowed it to be trashed, why would it go after Starrs, which basically said "we already decided this issue in Taylor."

And then the Supreme Court heard Starrs and proved that I am terrible at precognition in the matters of appellate courts.

TOMORROW: Starrs as Seen by the Virginia Supreme Court
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^1. It was a corrupt form of inclusio unius est exculsio alterius. The argument was that the General Assembly by passing these statutes had excluded any other use of advisement. This argument fails on two levels. First, this doctrine of textual interpretation requires a list and there is no list stating that "Cases may be taken under advisement in the following situations . . ." The second is that it violates the rule of interpretation that requires statutes to be interpreted in harmony with existing common law unless the common law is clearly expurgated by a statutory law.


^2. Virginia Court of Appeals Invalidates 221 Years of Common Law
    Advisement: Let's Look at the Court of Appeals Rationale: VIRGINIA CONSTITUTION
    Advisement: Let's Look at the Court of Appeals' Rationale: STATUTORY
    Advisement: Theory Behind It