Virginia Lawyers Weekly VA Lawyers Weekly
Where a school principal was indicted for allegedly failing to report suspected child abuse, the charge is criminal in nature. The commonwealth may prosecute the charge and insist on a jury trial.
Overview
A grand jury indicted defendant, a school principal, for allegedly violating Code § 63.2-1509. For a first offense, the statute provides a $500 penalty for “any mandatory reporter,” such as defendant, “who fails to make a report of suspected child abuse within twenty-four hours of suspecting the same.”
Due to the COVID-19 pandemic jury trial scheduling orders, defendant’s earliest date for a jury trial would be fall of 2021. Defendant waived his right to a jury trial “to obtain a more proximate trial date, seeking to clear his name at trial in contemplation of a pending administrative hearing referencing his employment with the Fairfax County Public Schools.”
The commonwealth withheld consent to defendant’s jury waiver. He responded with a motion to dismiss or, in the alternative, to have the court order a bench trial.
“The motion is based on the following arguments: (1) the charge is averred not to be criminal in nature and merely subject to a civil penalty, and (2) that even if the charge were to be determined to be criminal in character, the Commonwealth’s Attorney lacks the authority to prosecute this case as it is asserted to be outside the scope of the statutory power granted to the prosecution by the General Assembly.”
Defendant “maintains the charge must be dropped as it encompasses a mere civil penalty not proper for criminal indictment, or in the alternative, that the jury be struck as the Commonwealth’s Attorney is without authority to assert the right to withhold consent to” a jury trial waiver.
Ruling
“The Court finds the following: 1) a first offense of Virginia Code § 63.2-1509 is a criminal violation inasmuch as the General Assembly has manifested such intent in contrast to numerous other provisions, by failing to specify the fine imposed is a ‘civil’ penalty; and 2) the Commonwealth’s Attorney has the authority to prosecute a first offense under Virginia Code § 63.2-1509 since (a) the Virginia Constitution provides the Commonwealth’s Attorney with plenary authority to prosecute any criminal offense for which a jury may be demanded by the defendant, and (b) a violation of this statute carries a penalty of $500.00, and Virginia Code § 15.2-1627 grants the Commonwealth’s Attorney the discretion to prosecute cases ‘carrying’ a penalty of $500 or more.”
In addition, “As the Commonwealth’s Attorney possesses the authority and discretion to prosecute the offense … and the constitutional right to require a jury, this Court is without authority to interfere with the Commonwealth’s Attorney’s current election to prosecute this cause and to do so with resort to a jury.”
The motion to dismiss or to order a bench trial is denied.
Commonwealth v. Bloom, Case No. MI-2019-1600, Nov. 24, 2020, Fairfax County Cir. Ct. (Bernhard). Ashleigh Landers Sutton, Bridget A. Corridon for the commonwealth, Peter D. Greenspun for defendant. VLW 020-8-136, 14 pp.
