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When an opinion is not a decision

Bummer if you were looking for the Supreme Court of Virginia to really decide three closely watched cases: Miller-Jenkins v. Miller-Jenkins, which appeared to raise the issue of whether Virginia courts will defer to courts of another state on issues involving same sex couples, and Moreau v. Fuller and Gibson v. Commonwealth, which presented the possibility of a ruling on whether judges have the inherent authority to defer judgment in criminal cases.

The problem for the biological mother in a visitation dispute with her former lesbian partner was that her original appeal of the Virginia Court of Appeals decision was dismissed because her notice of appeal was not filed in time. She argued that a second ruling by the Court of Appeals reinstating the registration of a custody order from Vermont in a collateral proceeding gave her the opportunity to challenge the original holding that the federal Parental Kidnapping Prevention Act controlled the case.

Not so, Justice Barbara Milano Keenan wrote for the court. Under the law of the case doctrine, she could not raise the same issue that had been resolved by the dismissal of the first appeal, Keenan said. Chief Justice Leroy Hassell Sr. agreed in a concurrence that the law of the case doctrine applied but added he did not believe the COA had decided the original case correctly.

Justice Donald W. Lemons wrote the opinions in both the deferred judgment cases. In neither case was there a clear order that the trial judge would have deferred judgment. Because courts speak through their orders, the Supreme Court therefore had no reason to rule on whether they have the inherent authority to do so, Lemons wrote.

The decision produced a concurrence from Justice Lawrence L. Koontz Jr. and a counter-concurrence from Justice Cynthia D. Kinser that was joined by Justice Keenan and G. Steven Agee. “Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue,” Koontz wrote. He said he believed the court’s inherent authority extended at least to allowing deferred judgment “in appropriate cases and upon consent of the accused and the Commonwealth.”

Not so fast, said Kinser in acknowledging that lower courts sometimes do defer judgment. “The Court’s inability of to address this issue should not viewed as a tacit approval of the practice.”

The General Assembly may decide the issue. House Majority Leader H. Morgan Griffith introduced a bill in the last legislative session that would give judges the authority to defer judgment in most cases but agreed to carry it over until next year to give the Supreme Court a chance to rule in Moreau and Gibson.

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