Virginia Marine Resources Commission v. Dennis W. Parker
64 Va. App. 569
| Va. Ct. App. | 2015Background
- Parker and Insley were convicted in general district court of multiple violations of Virginia tidal fisheries laws; neither appealed those convictions.
- VMRC held a hearing (Mar. 24, 2014) and revoked each men’s fishing license and privileges for one year under Code § 28.2-232, relying on their convictions.
- The Gloucester County Circuit Court reversed, finding VMRC’s action not supported by substantial evidence and the one-year revocation too draconian, concluding convictions did not show a “course of conduct.”
- VMRC appealed, arguing the circuit court should have deferred to its factual findings and that the revocations were supported by substantial evidence and within statutory discretion.
- Insley also argued VMRC impermissibly applied the July 1, 2013 amendment to Code § 28.2-232 retroactively with respect to one pre-amendment conviction.
- Parker and Insley cross-appealed the circuit court’s denial of attorney’s fees, arguing they substantially prevailed and VMRC’s position was not substantially justified.
Issues
| Issue | Parker/Insley Argument | VMRC Argument | Held |
|---|---|---|---|
| Whether VMRC’s revocation was supported by substantial evidence | Convictions did not show repeated/course of conduct; revocation too draconian | Convictions establish violations of the tidal-fisheries subtitle; revocation permitted and within statutory limits | Reversed circuit court: substantial evidence supports VMRC’s finding of violations and one-year revocation |
| Whether VMRC was required to make an affirmative finding of statutory factors (e.g., "repeated" conduct) before revoking | Circuit court: statutory factor "repeated" requires a course of conduct; lack thereof defeats revocation | Statute requires only that VMRC consider listed factors when setting duration; the precondition is any violation of the subtitle | VMRC need only find a violation to revoke; it must consider listed factors in setting length but need not make separate threshold findings |
| Whether applying amended § 28.2-232 to Insley was an unconstitutional ex post facto application | Insley: revocation relied in part on pre-amendment conviction (Feb. 20, 2013), so amendment was applied retroactively | VMRC: revocation based on post-amendment violations; pre-amendment conduct only considered for duration (like prior record) | No ex post facto violation: revocation based on post-amendment offenses; consideration of pre-amendment offenses for duration is permissible |
| Whether appellees were entitled to attorney’s fees | Appellees: they substantially prevailed below; VMRC’s position not substantially justified | VMRC: its position was substantially justified and supported by law and record | Affirmed: circuit court did not err in denying attorney’s fees because VMRC’s position was substantially justified |
Key Cases Cited
- Hedleston v. Va. Retirement Sys., 62 Va. App. 592 (2013) (definition of substantial evidence standard)
- Va. Real Estate Comm’n v. Bias, 226 Va. 264 (1983) (substantial evidence definition authority)
- Doe v. Va. Bd. of Dentistry, 52 Va. App. 166 (2008) (deference and presumption of regularity in agency factual findings)
- Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231 (1988) (reviewing court may reject agency factual findings only when reasonable mind would necessarily differ)
- Campbell v. Dep’t of Forestry, 46 Va. App. 91 (2005) (statutory requirement to consider factors does not demand quantification or specific weight)
- Owens v. Owens, 41 Va. App. 844 (2003) (statutory factors must be considered but need not be given measured weight)
- Sch. Bd. of Cnty. of York v. Nicely, 12 Va. App. 1051 (1991) (circuit court’s role on administrative appeal)
- Smith v. Doe, 538 U.S. 84 (2003) (framework for determining whether a statute is punitive for ex post facto analysis)
- Evans v. Commonwealth, 228 Va. 468 (1984) (ex post facto analysis focuses on quantum of punishment)
- Dobbert v. Florida, 432 U.S. 282 (1977) (ex post facto precedent)
- Weaver v. Graham, 450 U.S. 24 (1981) (ex post facto purpose and notice principles)
- United States v. Rodriquez, 553 U.S. 377 (2008) (consideration of prior convictions in sentencing/penalty context)
- Gryger v. Burke, 334 U.S. 728 (1948) (recidivism rationale for enhanced penalties)
- Jackson v. W., 14 Va. App. 391 (1992) (agency guidelines are nonbinding and subordinate to statute)