One of my favorite recent SCV cases is Landrum v. Chippenham & Johnston-Willis Hospitals, Inc., 282 Va. 346, 717 S.E.2d 134 (2011).
I love Landrum, in part, because it gave me an excuse to write this:
This brings us to one of O’Keeffe’s Immutable Rules of Legal Practice: if you have somehow managed to irritate Justice Lemons to the point that he (politely) goes out of his way to make you look like a fool on page one of a published opinion, you should probably just turn in your bar card.
It’s the judicial equivalent of getting kicked in the nuts by Gandhi.
The whole post is here.
And a funny thing about that post: After I wrote it, I went to the Virginia State Bar’s Harry L. Carrico Professionalism Course. (Before you leap to the obvious conclusion that I was ordered to attend the class as a sanction, please understand that I am somehow, inexplicably, on the faculty.)
At lunch, the keynote speaker was the Honorable Donald W. Lemons. Guess who was seated at his table?
Although, in fairness, it was not nearly as awkward as it could have been, because Justice Lemons is a delightful guy, and he’s blessed with a very good sense of humor. He would never intentionally humiliate me outside of a courtroom.
But Landrum‘s enduring legacy isn’t my personal discomfort at lunch with its author, however exquisite that might have been.
Instead, the opinion adopted a three-part test for finding an abuse of discretion. Under that test, an abuse of discretion principally occurs when (1) a trial court fails to consider a factor that should have been given significant weight; (2) the trial court considers an irrelevant or immaterial factor and gives it substantial weight; or (3) the trial court weighs the right factors but commits a clear error of judgment. Landrum, 282 Va. at 352, 717 S.E.2d at 352 (quoting Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984)).
One of Landrum‘s oddities is that it was decided by five justices, and two of them concurred–leaving only a three-justice majority. The two concurring justices noted that, under prior case law, a trial court abused its discretion by definition when it makes a mistake of law. Id. at 357, 717 S.E.2d at 139 (Millette, J. concurring).
But again, only two justices felt strongly enough about that point to write separately, and only three signed the majority opinion. This left the treatment of a trial court’s mistake of law in an area governed by abuse-of-discretion review somewhat unsettled.
It stayed that way until the Court revisited the issue earlier this year in Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847 (2013), a loooong opinion in a capital-murder case that the Court handed down in January, and which I’ve just finished reading. All seven current justices signed on to the Lawlor opinions. Justice Mims, a member of the Landrum triumvirate–err, majority?–wrote for the Court.
The Lawlor Court explained that the abuse-of-discretion standard requires the reviewing court to defer to the trial court’s judgment, to the extent that it won’t reverse just because it would have come to a different result. Id. at 212, 738 S.E.2d at 861 (quoting Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008)). When a decision is discretionary, the trial court enjoys a range of options. An appellate court will not disturb its decision so long as it remains within the range of acceptable options and is not influenced by a mistake of law. Id. at 212-13, 738 S.E.2d at 861 (quoting Landrum, 282 Va. at 352, 717 S.E.2d at 137).
The Court explained that it had recently focused the abuse-of-discretion standard in Landrum by identifying the three main ways in which a court abuses its discretion. Id. (quoting Landrum, 282 Va. at 352, 717 S.E.2d at 137). It noted that the law often circumscribes the range of a trial court’s available choices. In such cases, the abuse-of-discretion standard includes review to determine that the trial court’s discretion wasn’t guided by erroneous legal conclusions, “because a court also abuses its discretion if it inaccurately ascertains its outermost limits.” Id. Those errors can occur when the court believes that it lacks authority that it in fact possesses, when it believes that the law requires something that it does not, or when it fails to meet a condition precedent that the law requires. Id. at 213, 738 S.E.2d at 861-62.
Whether a court possesses certain authority, and whether it has correctly identified and fulfilled the legal prerequisites to exercising that authority, are themselves significant factors in its consideration. Id. at 213, 738 S.E.2d at 861.Thus, the Court held, “while our abuse of discretion standard of review necessarily must include a review of any legal conclusions made concomitant and with a lower court’s exercise of discretion, that does not mean abuse of discretion review is partially de novo.” Id. at 214, 738 S.E.2d at 861 (citing Koon v. United States, 518 U.S. 81, 100 (1996)).
Finally, in a footnote, the Lawlor court acknowledged its earlier statements to the effect that a court abuses its discretion by definition when it makes a mistake of law. it explained that it had not intended those statements “to be a back door through which an appellant may convert abuse of discretion review into de novo review.” Id. at 214 n.5, 738 S.E.2d at 862 n.5.