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When in doubt, look at the Code

When I was a newbie lawyer years ago, I got one of those nuggets of advice you hang on to.

I was discussing case files with one of the partners, describing the legal research I’d done and what the case law seemed to be. He asked, “What does the Code say?” He added, only half in jest, “When in doubt, always look at the Code.”

A week or so later, different partner and different set of files. Same question after I delivered my spiel: “What does the Code say?”

It took hearing this question about three times until I realized it was a good idea to check the Virginia Code before meeting to discuss files.

And, after changing careers and moving to this newspaper, I myself have asked that question of every reporter I’ve worked with when we’ve reviewed stories before publication. Different venue, same important point.

The Code of Virginia controls. The Code is complicated, with clauses that have to be harmonized with other pieces and parts. In numerous sections, it looks like what it is: a patchwork put together over a number of years, sometimes haphazardly. But it’s the law, so you always look at the Code.

A lawyer named Eric Clingan in Fairfax looked at the Code and won a big victory for a traffic client a few weeks ago, in a case that drew national attention.

The guy was charged with passing a stopped school bus, which is a reckless driving offense.

The General Assembly amended the law in 1970, but it inadvertently wiped out a two-letter word, “at,” in the statute. Haphazardness at work, no doubt.

Virginia Code § 46.2-859 states, “A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped…for the purpose of taking on or discharging children.”

Clingan argued to a general district judge that the “at” was missing. Thus, the statute applies, he argued, to the driver of the bus, not another motorist. Take out the clause that starts “when approaching” and you’ll see: “A person is guilty of reckless driving who fails to stop…any school bus.”

Clingan said the general district judge told him, essentially, “Very interesting argument, Mr. Clingan. Guilty.”

Reckless driving is a six-point traffic offense. The client, whose name was Mendez, wanted to appeal, Clingan said.

In circuit court, Clingan argued again the word “at” had been dropped when the statute was amended 40 years ago. And he repeated the theory that the statute as worded now is pointed at the bus driver. He consulted a composition professor at George Mason who concurred.

Fairfax Circuit Judge Marcus Williams listened to the argument, Clingan said, then dismissed the charges.

You know you have an important case when a legislator immediately jumps on your case and promises a legislative fix. Del. Scott Surovell, D-Fairfax, already has introduced House Bill 1469 for the 2011 General Assembly session; the bill will restore the word “at” to the law.

You know you have a really important case when it’s turned into a hypothetical for legislators interviewing judges seeking another term.

On Dec. 10, a couple of legislators asked a general district judge about the school bus case, and what he would do if he had the matter on his docket.

In so many words, he said the Assembly obviously intended to protect children when it passed the statute, and he would convict the defendant.

Along with the Fairfax general district judge, that makes two judges who read a statute, knew or should have known the law had a mistake, but convicted, or would convict, despite that error.

When in doubt, look at the Code.

Doesn’t that apply to judges too?

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