There’s something for everyone this month: Eminent domain colleagues, criminal practitioners, and anyone who cares about contract law.

Three recent opinions—all worth reading—but I’m happy to keep us on track (buckle up for the railroad jokes).

If you’re running behind, here are some takeaways:

• Questions of law are reviewed de novo and offer a helpful standard of review for someone considering an appeal.
• Are you on board* with fiber optics and broadband internet? The SCV just held that application of a new statute that aims to facilitate this was unconstitutional (more detail below!).
• Ever heard of the doctrine of adequate assurance? You won’t see it in a model jury instruction anytime soon.
• Everyone: Don’t sleep on harmless error analysis. A lot of cases get swept away with this so be prepared!

First case: Norfolk Southern Railway v. S.C.C.

First up is Norfolk Southern Railway Co. v. S.C.C. from Justice Chafin, who admirably abstained from inserting any railroad puns in her opinion. In 2023, the legislature passed a statute authorizing a framework that allows a broadband service provider to install fiber optic cables across railroad property. See Va. Code § 56-16.3.

Here, Norfolk Southern didn’t mind the cables, but they wanted more compensation (word on the street is that they play an excellent game of monopoly). When the provider declined, Norfolk Southern filed suit—alleging that this amounted to a taking for non-public use and thus violated Article 1, Section 11 of the Virginia Constitution. On track* with that argument, Norfolk Southern further argued that the challenged statutory framework eliminated the condemnor’s burden to establish public use entirely. The SCV agreed with both arguments. The SCV acknowledged that broadband networks may benefit members of the public, but the public use must “predominate[].” 

This is another win in the appellant’s column, which is never easy to accomplish, but questions of law have a favorable standard of review. Note that the railroad properly laid the groundwork* for its arguments by following the proper procedure—first raising their arguments before the Commission and then directly to the SCV. Also note that challenging the constitutionality of a statute is generally hard . . . except for statutes conferring the power of eminent domain, as the SCV reminds us!

Fun fact: the Virginia Constitution provides more protections than the federal constitution in this arena, because SCOTUS has determined that economic development can sometimes satisfy the “public use” requirement of the 5^th Amendment (in case you were wondering). 

Chugging along, we also have Under Wild Skies (“UWS”) v. NRA by Justice Powell.

This is not a 2^ndAmendment case, but instead a breach of contract case between the NRA and its long-time advertising partner. The NRA asked for information from UWS about its viewership, etc. and UWS didn’t want to provide it. UWS let off some steam* but ultimately complied. The NRA then didn’t pay its bill and UWS sued for both breach of contract and anticipatory breach.

UWS offered a proposed jury instruction on the doctrine of adequate assurance in support of its anticipatory breach claims, pulled from the Restatement (2d) of Contracts. This is based on the idea that where one side reasonably believes the other would commit certain breaches, they could demand “adequate assurance” of performance. The trial court agreed with the NRA’s argument that the principle isn’t consistent with Virginia law and would cause the trial court to comment on the evidence. UWS moved to set aside the verdicts in the NRA’s favor because of this refused instruction.

UWS argued that the doctrine of reasonable assurance is rooted in Virginia’s common law…and our SCV loves a novel legal argument and anything that harkens back to the common law is icing on the cake. But getting your case granted and winning are two different things. The SCV instead determined that the refused instruction was not an accurate statement of Virginia law. The doctrine of adequate assurance actually originated from the UCC, not the common law. Although included in the Restatement and adopted by some other states as part of their common law, it hasn’t yet been adopted by this one. Whether to adopt the doctrine is a decision best left up to the legislature. Affirmed!

Last but not least:

Moving full steam ahead* to our final opinion, we also have Commonwealth v. Paxton. Paxton was arrested and interrogated when he said, “I don’t wanna talk no more” before a back-and-forth continued. The trial court denied Paxton’s motion to suppress, reasoning that although Paxton properly invoked his right to remain silent, Paxton reinitiated the interrogation voluntarily. Paxton was later tried and found guilty (it feels too mean to say he went directly to jail*). The CAV later disagreed that Paxton voluntarily reinitiated questioning, held that any error was not harmless, and further determined that Paxton did not derail* his challenge to his confession when he testified (reasoning that the improper confession impelled Paxton’s testimony). The Commonwealth appealed.

The SCV determined the best and narrowest ground to decide the case was using the CAV’s harmless error analysis. The SCV sidestepped the merits of the interrogation issues and determined that any error in denying Paxton’s motion to suppress was harmless. It thus reversed the CAV and affirmed Paxton’s conviction.

Note: The SCV cited the Welsh opinion from a few months back (which provides a great overview of harmless error analysis) but nevertheless determined that Paxton still loses, even under a harder/constitutional harmless error standard. Unanimous opinions all around today.

*it’s always the sign of a great pun when you have to point it out to your readers.  

Questions or comments? Feel free to give me a call.