15 February 2011

The Loudon Opinion: Failing the Nelson Test

Judge Worcester incorrectly adopts the framework of his opinion from Nelson. It is in three parts. (1) The opinion is at odds with precedent previously established, and (2) The opinion infringes on the interposition of legislative power, and (3) The opinion causes confusion.

Part 1 - Precedent: The judge lists a number of Virginia cases in which writs of coram vobis were denied because they were sought for errors of judgment or upon facts known during the trial. He therefore claims that the limitation set by the Virginia Supreme Court is at odds with precedent when it limits the facts which can be addressed under the writ to only those affecting jurisdiction.

The strongest support Judge Worcester can find is a 57 year old US Supreme Court case interpreting federal procedure on an appeal from a federal trial court. U.S. v. Morgan, 346 U.S. 502 (1954) would certainly be helpful if it had any precedental value in Virginia or if it addressed Virginia procedure and law. Unfortunately, it does not. The writ of coram vobis is a common law procedure ruled entirely by the common law of each individual state within that state's borders. A US Supreme Court ruling on the federal common law in its own courts only applies to federal courts.

The problem Judge Worcester is trying to get around here is that the Virginia Supreme Court did not abruptly limit the writ to scrivener's errors and facts affecting jurisdiction at the beginning of 2011 in Morris. This has been a longstanding theme in Virginia's case law on coram vorbis. As far back as Richardson's Ex'x v. Jones, 12 Gratt. (53 Va.) in 1855. The language is not as precise as one might wish, but it seems to hold to the same standard as the Supreme court stated in Morris:
This writ lies where some defect is alleged in the process or the execution thereof [jurisdiction], or some misprision of the clerk [scrivener's or purposeful error], or some error in the proceedings arising from a fact not appearing upon their face, as where judgment is rendered against a party after his death, or who is an infant or feme covert [jurisdictional].
Even worse for Judge Worcester's position is the fact that the language which led to the opinion in Morris was not original to that opinion. Instead, it came from Dobie v. Commonwealth, MAR57, VaSC No. 4643:
It lies for an error of fact not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment.
Thus, the judge's opinion is actually the one swimming upstream against precedent.

Part 2 - Interposition: In this section the judge's problem is that, unlike in Nelson, there is no interposition of legislative action here. As discussed previously, in Nelson the interposition of legislative action between two sets of case law required the Virginia Supreme Court to overrule its own precedent when the second set of case law contradicted the interposed statutory changes. This is not the current situation.

Judge Worcester approaches this in a clever fashion. He claims that the lack of legislative action freezes all case law exactly where it was in 1776. Thus, any decision by the Virginia Supreme Court which does not follow exactly the common law of England or follow exactly the statutory law infringes upon the legislature's possible interposition of a statute affecting the common law.

Of course, if that interpretation was generally adopted it would have the effect of making all Virginia appellate opinions meaningless. There would only be two sources of law: English legal publications prior to 1777 and statutes passed by the General Assembly. If that's the case we don't have to worry much about stare decisis anymore. However, we might have to pay our General Assembly members to be permanently in Richmond so that they can get some sort of Napoleonic Code written and constantly be available to write the constant corrections and expansions which have, until now, been handled by the evolving common law.

Part 3 – Confusion: Here the judge claims that, because the Virginia Supreme Court did not overrule the cases wherein the writ was denied because they were sought for errors of judgment or upon facts known during the trial, there will be confusion. However, the Morris case didn't overrule the prior cases. At worst it can be said that it narrowed them. In any event, the ruling in Morris could not be any clearer. No writ of coram vobis will lie except where there is a scrivener's error or a fact not known at time of trial which would have made it impossible for the court to render judgment. That's a very simple holding which everyone can understand.

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