Virginia Marine Resources Commission v. Darrell W. Insley ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Decker
PUBLISHED
Argued at Norfolk, Virginia
VIRGINIA MARINE RESOURCES COMMISSION
v. Record No. 1643-14-1
DARRELL W. INSLEY
OPINION BY
VIRGINIA MARINE RESOURCES COMMISSION JUDGE ROBERT J. HUMPHREYS
APRIL 7, 2015
v. Record No. 1644-14-1
DENNIS W. PARKER
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
R. Bruce Long, Judge
Matthew R. Hull, Assistant Attorney General (Mark R. Herring,
Attorney General; John W. Daniel, II, Deputy Attorney General;
Lynne C. Rhode, Senior Assistant Attorney General, on briefs), for
appellant.
Ann K. Sullivan (Melissa M. Picco; Sullivan Law Group, PLC, on
brief), for appellees.1
The Virginia Marine Resources Commission (“VMRC”) appeals the September 8, 2014
decision of the Gloucester County Circuit Court (the “circuit court”). The circuit court reversed
VMRC’s decision to revoke the licenses and fishing privileges of Darrell Insley (“Insley”) and
Dennis Parker (“Parker”), and remanded the case back to VMRC to reinstate Insley’s and
Parker’s licenses and privileges. VMRC’s single assignment of error is that the circuit court
erred by setting aside VMRC’s decision because it was supported by substantial evidence.
1
Parker’s and Insley’s cases were consolidated for the purposes of briefing and
argument, and we therefore consolidate the resolution of their appeals in this opinion.
Parker and Insley (collectively “appellees”) submit a cross assignment of error asserting
that the circuit court erred in failing to award them attorney’s fees because they substantially
prevailed below and VMRC’s position was not substantially justified.
I. BACKGROUND
Parker and Insley were issued several summonses by VMRC for violating state fishing
laws.2 They were both convicted on all charges in general district court. Neither Parker nor
Insley appealed any of their convictions. On March 24, 2014, VMRC held a hearing to consider
whether to revoke Parker’s and Insley’s fishing licenses and privileges pursuant to Code
§ 28.2-232 because of their recent convictions. At the hearing, VMRC heard evidence of
Parker’s four convictions stemming from two separate incidents, and Insley’s three convictions
stemming from three separate incidents. Parker and Insley each were given an opportunity to
present evidence and argument, but neither disputed that they were in fact convicted of those
violations. VMRC unanimously decided to revoke their fishing licenses and privileges for one
year—beginning March 25, 2014 and ending March 25, 2015.
Parker and Insley appealed the VMRC’s decision to the circuit court. On August 22,
2014, the circuit court reversed the VMRC’s decision, holding that it did not “think the evidence
here substantially supports the action that the VMRC took” and that “the action is too draconian
given the nature of the violations.” Concluding that the evidence did not support a finding that
2
On February 20, 2013, Insley was issued a summons charging him with possession of
unculled oysters in violation of Code § 28.2-201. On September 4, 2013, he was issued a
summons charging him with commercially taking oysters by dredge between sunset and sunrise
in violation of Code § 28.2-530. On December 2, 2013 he was issued a summons charging him
with another violation of Code § 28.2-201. On September 4, 2013, Parker was issued a
summons charging him with three separate violations: (1) commercially taking oysters by
dredge between sunset and sunrise in violation of Code § 28.2-530; (2) dredging on private
oyster ground without the permit to dredge on the ground in violation of Code § 28.2-515; and
(3) failure to properly mark oyster ground lease and boat before commercially working in
violation of Code § 28.2-517. On December 2, 2013 he was issued a summons charging him
with possession of unculled oysters in violation of Code § 28.2-201.
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Parker’s or Insley’s convictions rose to a “course of conduct,” the circuit court found that the
evidence therefore did not support a finding that the licenses and privileges ought to have been
revoked. On September 8, 2014, the circuit court entered two orders setting aside VMRC’s
decision and remanding the matter back to VMRC to reinstate Parker’s and Insley’s licenses and
privileges.
II. ANALYSIS
The Virginia Administrative Process Act (“VAPA”) authorizes judicial review of agency
decisions. Code § 2.2-4026. Specifically, “under the VAPA, the circuit court’s role in an appeal
from an agency decision is equivalent to an appellate court’s role in an appeal from a trial court.”
Sch. Bd. of Cnty. of York v. Nicely, 12 Va. App. 1051, 1062, 408 S.E.2d 545, 551 (1991).
Code § 2.2-4027 provides that “[t]he duty of the court with respect to the issues of law
shall be to review the agency decision de novo.” However, “[w]hen the decision on review is to
be made on the agency record, the duty of the court with respect to issues of fact shall be to
determine whether there was substantial evidence in the agency record to support the agency
decision.” Code § 2.2-4027. This Court has held that “the phrase ‘substantial evidence’ refers to
‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hedleston v. Va. Retirement Sys., 62 Va. App. 592, 599, 751 S.E.2d 1, 4 (2013) (emphasis
added) (quoting Va. Real Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123, 125
(1983)). “‘[I]n the context of factual issues, the reviewing court shall take due account of the
presumption of official regularity, the experience and specialized competence of the agency, and
the purposes of the basic law under which the agency has acted.’” Doe v. Va. Bd. of Dentistry,
52 Va. App. 166, 175, 662 S.E.2d 99, 103 (2008) (en banc) (quoting Johnston-Willis, Ltd. v.
Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1988)). “The reviewing court may reject the
agency’s findings of fact only if, considering the record as a whole, a reasonable mind would
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necessarily come to a different conclusion.” Johnston-Willis, Ltd., 6 Va. App. at 242, 369
S.E.2d at 7.
A. There Was Substantial Evidence in the Record to Support VMRC’s Decision
Code § 28.2-232 provides that:
[VMRC] may revoke the fishing privileges within the
Commonwealth’s tidal waters and revoke, prohibit the issuance,
reissuance, or renewal of any licenses if, after a hearing held after
10 days’ notice to the applicant or licensee, it finds that the person
has violated any provision of this subtitle.
The duration of the revocation and prohibition shall be fixed by
[VMRC] up to a maximum of two years with the withdrawal of all
fishing privileges conferred by this title during that period, taking
into account (i) evidence of repeated or habitual disregard for
conservation, health and safety laws and regulations; (ii) abusive
conduct and behavior toward officers; and (iii) the severity of any
damage that has occurred, or might have occurred, to the natural
resources, the public health, or the seafood industry.
In other words, all that Code § 28.2-232 requires for VMRC to revoke a person’s fishing license
and privileges is a finding that “the person has violated any provision of this subtitle.” The
second paragraph of the statute relates only to VMRC’s decision regarding the appropriate
duration of the revocation period. Id.
In this case, there plainly was substantial evidence in the record to support VMRC’s
finding that both Parker and Insley had violated a provision within the “Tidal Fisheries”
subtitle—specifically, Code § 28.2-201; Code § 28.2-530; Code § 28.2-515; or Code § 28.2-517.
Evidence of their convictions was presented to VMRC at the hearing. Neither Parker nor Insley
disputed that they had been convicted. As explained above, the circuit court “may reject the
agency’s findings of fact only if, considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion.” Johnston-Willis, Ltd., 6 Va. App. at 242, 369
S.E.2d at 7 (emphasis added). Here, there is no support for the proposition that a reasonable
mind would come to a conclusion other than that Parker and Insley had violated one of the
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provisions of the subtitle. Consequently, the circuit court erred in finding that VMRC’s decision
to revoke Parker’s and Insley’s fishing licenses and privileges was not supported by substantial
evidence.
The second paragraph of Code § 28.2-232 dictates which factors VMRC must consider in
determining the appropriate duration of any revocation of fishing licenses or privileges and sets
the statutory maximum revocation period. However, “[a] statutory command to consider certain
decision making factors does not mean the factfinder must assign ‘measurable weight in the
decisional process’ to each factor or somehow quantify its impact on the final decision.”
Campbell v. Dep’t of Forestry, 46 Va. App. 91, 103, 616 S.E.2d 33, 38-39 (2005) (quoting
Owens v. Owens, 41 Va. App. 844, 860, 589 S.E.2d 488, 496 (2003)). “It means merely the
factfinder ‘cannot deem legally insignificant’ what the statute ‘declares to be significant.’” Id. at
103, 616 S.E.2d at 39 (quoting Owens, 41 Va. App. at 860, 589 S.E.2d at 496). An opposite
principle applies when a statute requires a specific finding as a precondition to agency action.
Id.Code § 28.2-232 does not require that VMRC must affirmatively find evidence of any of
the factors listed as a precondition to revoke an individual’s fishing license and privileges. The
precondition to VMRC’s action to revoking licenses and fishing privileges is listed in the first
paragraph of Code § 28.2-232—a finding that a person has “violated any provision” within the
subtitle. Moreover, Code § 28.2-232 also does not require that VMRC must affirmatively find
evidence of one or any of the factors listed in fixing the duration of any revocation period. All
that is required in fixing the duration of the revocation period is that VMRC must consider
evidence of those factors in making its determination and cannot exclude any of the factors as
insignificant. See, e.g., Owens, 41 Va. App. at 859-60, 589 S.E.2d at 496 (holding that Code
§ 20-107.3(E) required the trial court only to consider the enumerated statutory factors in fixing
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an equitable distribution award, and the court was only prohibited from failing to consider a
factor altogether). Therefore, as long as VMRC considered the three factors listed in the statute
in fixing the duration of the revocation period, VMRC’s actions were not beyond its statutory
discretion.
In this case, the circuit court held that it did not “think the evidence here substantially
supports the action that the VMRC took” and that “the action is too draconian given the nature of
the violations.” The circuit court held that as to factor (i) the term repeatedly “means again and
again,” and “in legal terms, it means a course of conduct.” Concluding that the evidence did not
support a finding that Parker’s or Insley’s convictions rose to a “course of conduct,” the circuit
court held that the evidence did not support a finding that the licenses ought to have been
revoked. However, the circuit court erred by ordering the reinstatement of appellees’ fishing
licenses and privileges because, as explained above, substantial evidence supported VMRC’s
finding that they had violated a provision of the subtitle given their undisputed convictions in
general district court. Furthermore, the circuit court’s observation that it thought the sanction
“too draconian” was not an appropriate consideration in its review of the commission’s
judgment. Because the presumption of regularity is not rebutted by the evidence in the record
and because there is affirmative evidence in the record that VMRC considered all three factors in
fixing the duration of their punishment, the circuit court erred in finding that the sanction
imposed by the VMRC was not substantially supported by the evidence.
Moreover, appellees’ revocation period did not exceed the statutory maximum of two
years. Absent extraordinary circumstances not present in this record, reviewing courts will not
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judicially supersede an agency’s decision to impose a penalty within the statutory limits. See
Campbell, 46 Va. App. at 102, 616 S.E.2d at 38.3
In sum, we hold that the circuit court erred in finding that there was not substantial
evidence in the record to support VMRC’s decision to revoke Parker’s and Insley’s fishing
licenses and privileges for the period of one year.
B. VMRC Did Not Retroactively Apply Code § 28.2-232 to Insley
Effective July 1, 2013, Code § 28.2-232 was amended to additionally allow VMRC to
revoke “fishing privileges within the Commonwealth” as well as revoke fishing licenses. Insley
argues that because VMRC’s March 24, 2014 decision to revoke his fishing privileges and
license pursuant to Code § 28.2-232 was based in part on a conviction that occurred before the
July 1, 2013 effective date of the amendment—his February 20, 2013 violation—VMRC erred
by “retroactively” applying the amendment to Insley.
The United States Constitution and the Virginia Constitution prohibit the Commonwealth
from enacting ex post facto laws. That prohibition only extends to statutes that retroactively
impose penalties or where a change in the law retroactively alters the definition of the penal
conduct. See Kitze v. Commonwealth, 23 Va. App. 213, 216, 475 S.E.2d 830, 832 (1996).
“[T]he ex post facto inquiry focuses on ‘the quantum of punishment attached to the crime’ of
which the defendant had notice at the time of the offense.” Evans v. Commonwealth, 228 Va.
468, 476-77, 323 S.E.2d 114, 118 (1984) (quoting Dobbert v. Florida, 432 U.S. 282, 294 (1977)).
“‘Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment,
but the lack of fair notice and governmental restraint when the legislature increases punishment
3
Parker and Insley base a large portion of their argument on the fact that the penalty
imposed was inconsistent with VMRC’s recommended penalty guidelines. However, as the
Commonwealth points out, these guidelines are not mandatory and do not carry with them the
force of the law. Such documents are not intended to be a substitute for the statute. See Jackson
v. W., 14 Va. App. 391, 399, 419 S.E.2d 385, 389 (1992).
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beyond what was prescribed when the crime was consummated.’” Id. (quoting Weaver v.
Graham, 450 U.S. 24, 30 (1981)).
Assuming without deciding that a statute whose purpose is to revoke an individual’s
fishing license and privileges is sufficiently penal in nature to trigger the application of the Ex
Post Facto Clause, Insley’s argument still fails. See Smith v. Doe, 538 U.S. 84, 92 (2003)
(holding that in an ex post facto inquiry, the Court must first “ascertain whether the legislature
meant the statute to establish ‘civil’ proceedings,” but “[i]f the intention of the legislature was to
impose punishment, that ends the inquiry” and ex post facto concerns are applicable; “[i]f
however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is so punitive either in purpose or effect as to
negate [the State’s] intention to deem it civil” (citations omitted)). In this case, no ex post facto
concerns are implicated because Insley’s license and fishing privileges were revoked pursuant to
Code § 28.2-232 based on conduct that occurred after the amendments. He had two violations of
the subtitle that occurred after the amendments on September 4, 2013 and December 2, 2013.
Accordingly, Insley was being punished for conduct that occurred after the change in the statute
and he was therefore on notice of the potential “quantum of punishment” attached to the
violation at the time it occurred.
In fixing the duration of the revocation period, VMRC was statutorily required to take
into consideration “evidence of repeated or habitual disregard for conservation, health and safety
laws and regulations.” Insley’s pre-amendment conduct, the February 20, 2013 violation, was
only considered in determining the appropriate length of his penalty. That conduct was illegal at
the time it occurred. Consideration of violations of other fishing laws that occurred before the
amendments to Code § 28.2-232 but were still illegal at the time of the offender’s conduct do not
raise any more ex post facto concerns when considered only for fixing the duration of the penalty
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than the consideration of a prior criminal record would in sentencing in a criminal case. See,
e.g., United States v. Rodriquez, 553 U.S. 377, 385-86 (2008) (“When a defendant is given a
higher sentence under a recidivism statute—or for that matter, when a sentencing judge, under a
guidelines regime or a discretionary sentencing system, increases a sentence based on the
defendant’s criminal history—100% of the punishment is for the offense of conviction. None is
for the prior convictions or the defendant’s ‘status as a recidivist.’ The sentence ‘is a stiffened
penalty for the latest crime, which is considered to be an aggravated offense because [it is] a
repetitive one.’” (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948))).
In sum, because VMRC’s decision to revoke Insley’s fishing license and privileges
pursuant to Code § 28.2-232 was based on a violation of the subtitle that occurred after the
amendments became effective, VMRC did not retroactively apply Code § 28.2-232 to Insley.
C. The Circuit Court Did Not Err in Denying an Award of Attorney’s Fees
Parker and Insley assign cross-error asserting that the circuit court erred by failed to
award them attorney’s fees. Specifically, they argue that an award of attorney’s fees was
mandatory under the law because they substantially prevailed and VMRC’s position was not
substantially justified. For the reasons explained above, VMRC’s position is not only
substantially justified, but also adequately supported by the law and the facts. Therefore, we
hold that the circuit court did not err in declining to award Parker and Insley attorney’s fees.
III. CONCLUSION
For the reasons stated above, we reverse the circuit court’s September 8, 2014 judgment
and order in part. We affirm that portion of the judgment and orders of the circuit court denying
attorney’s fees to Parker and Insley and remand these cases to the circuit court and direct that it
enter orders consistent with our decision.
Affirmed in part, reversed in part, and remanded.
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