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!