Advisement: Let's Look at the Court of Appeals Rationale: VIRGINIA CONSTITUTION

To date, judges in the Virginia Court of Appeals have thrice struck down the common law procedure which has developed in Virginia trial courts of taking a case under advisement for a period of time to be dismissed/reduced if the defendant fulfills certain conditions. Twice, the Virginia Supreme Court struck down the Court of Appeals' decision on narrow grounds. Not to be deterred, the Court of Appeals has tried again in Taylor v. Commonwealth.

Let's look at the three rationales given by the Virginia Court of Appeals on this subject.

CONSTITUTIONAL:

First is a claim that under the Virginia Constitution, the trial courts are barred from doing this because of the separation of powers. Somewhat strangely, the court does this by quoting the Virginia Declaration of Rights, but it doesn't matter much because Virginia Constitution Article I Section 5 has basically the same language:

That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct;

I'll refer to this because it is the law extant in Virginia. As well, the court cites Virginia Constitution Article III:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others

These are wonderful statements of rather amorphous generalities, but not really very helpful. You would think the court's next step would be to dive into the actual specific language of the sections of the Virginia constitution dealing with the powers of the "departments of the Commonwealth." Instead, the court moves in the opposite direction, basing its opinion primarily on the federal supreme court's interpretation of the federal constitution (a not particularly relevant or helpful analysis).

Why did it do this? Well, the answer is pretty easy to figure out: the Virginia constitution does not support the court's opinion or would cause great difficulties if applied strictly.

The first place the court should have gone is Article IV Section 11:

No law shall be enacted except by bill.

The enacted language seems to have come into Virginia jurisprudence with the 1901 constitution. Earlier constitutions referred to "All laws." In the Virginia constitution of 1776, Section 8 states:

All laws shall originate in the House of Delegates . . .

In the 1830 version, Article III Section 10 states:

All laws shall originate in the house of delegates . . .

However, the 1869 constitution does not state whence laws shall originate; it simply talks about where bills can originate.

So, a plain, historical reading of the Virginia constitution would be that nothing that originated outside of the House of Delegates prior to 1869 has the force of law. These constitutions trump the statute the General Assembly passed adopting British common law; none of the British common law originated in the Virginia House of Delegates. Of course, any common law developed completely between 1869 and 1901 would be valid, but anything thereafter that was created by the courts would not be "enacted by bill" and would be right out the window.

That, of course, while entirely logical, is a nightmare. No sane court is going to go down that path into a chaos wherein there would be valid challenges to the very concepts of larceny, robbery, burglary, etc. because the General Assembly has never passed a law defining them. It left the British common law in place and allowed the courts to develop their own common law on top of it.

In any event, the one place where all this is trumped is under the current constitution's Article VI Section 5:

The Supreme Court shall have the authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth, but such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly.

To be clear here, taking a charge under advisement is not substantive. It has nothing to do with the elements of the crime. It has to do with sentencing and mitigation. These are procedural matters. The Supreme Court has to make rules dealing with procedure unless the General Assembly has passed a law dealing with it.

So, the General Assembly could solve this all if it chose to pass the following statute:

1-200.01 Limitations on Judicial Sentencing

Except as provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.

The problem is that the General Assembly has never chosen to do this. It has tacitly admitted the judicial practice of taking cases under advisement by limiting the practice specifically in certain cases such as misdemeanor property crimes, domestic A&B, and drug crimes. So, it's a judicially controlled procedural practice (part of the sentencing  or post sentencing process) which has been recognized, but not forbidden, by the General Assembly.

Thus, the Court of Appeals' decision banishing advisement is rewriting the law contrary to the expressed will of the General Assembly and it is the Court of the Appeals assuming the constitutional rule making powers of the Virginia Supreme Court. Neither of those strike me as particularly constitutionally valid.

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Tomorrow: Statutes