Morency v. Com.

• Decision Date: 14 September 2007
• Docket Number: Record No. 062025.
• Citation: 649 S.E.2d 682
• Parties: Scott J. MORENCY v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

649 S.E.2d 682

Scott J. MORENCY v. COMMONWEALTH of Virginia.

Record No. 062025.

Supreme Court of Virginia.

September 14, 2007.

Michael C. Laurence (Gary A. Bryant; Wilcox & Savage, on briefs), Norfolk, for appellant.

Stephen R. McCullough, Deputy State Solicitor General (Robert F. McDonnell, Attorney

General; William E. Thro, State Solicitor General; William C. Mims, Chief Deputy Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and LACY, S.J.¹

OPINION BY Senior Justice ELIZABETH B. LACY.

In this appeal, we consider whether the retroactive application of a 2006 amendment to Code § 9.1-909 violated Code § 1-239 because it interfered with a right accrued in a 2004 court order obtained by Scott James Morency.

FACTS

Morency was convicted of aggravated sexual battery in violation of Code § 18.2-67.3. As a result of this conviction, he was required to register as a sex offender and to reregister with the State Police every 90 days for life.² In 2002, Morency petitioned the Circuit Court of Louisa County for relief from the quarterly reregistration requirements pursuant to Subsection A of former Code § 19.2-298.4. Following a hearing, the circuit court granted Morency's petition and entered an order on September 30, 2004, terminating his 90-day reregistration requirement and ordering the clerk to "notify the Virginia State Police promptly that the petitioner's registry information including name and pictures shall be removed from the Sex Offender and Crimes Against Minors Registry and the internet system associated therewith and maintained by the Virginia State Police." Morency remained under an obligation to reregister annually for life. Code § 9.1-909.

In 2006, the General Assembly amended Code § 9.1-909, eliminating removal of an offender's information from the Internet registry. 2006 Acts ch. 914. Following this amendment, Morency received a letter from the State Police stating that the amendment applied retroactively and, as a result, Morency's registration information would be reposted on the Internet registry.

Morency filed a petition seeking to enjoin the State Police from reposting his information on the Internet registry. Morency asserted that he should not be subject to the 2006 amendment because the General Assembly did not expressly state the amendment was to apply retroactively. Morency also claimed that by virtue of the September 30, 2004 order, he had accrued a right to have his identifying information removed from the Internet registry. Thus, he argued, retroactive application of the 2006 amendment would violate Code § 1-239, which protects accrued rights from retroactive application of legislation. The circuit court denied Morency's petition and we awarded him this appeal.

DISCUSSION

On appeal, the Commonwealth argued, and Morency conceded, that the General Assembly intended the 2006 amendment in question to be applied retroactively. Code § 9.1-901 directs that all provisions of the Act are to apply retroactively unless a specific effective date is otherwise provided. Thus the dispositive issue in this appeal is whether the provisions of Code § 1-239 preclude the retroactive application of the 2006 amendment in this case.

Code § 1-239 provides in relevant part:

No new act of the General Assembly shall be construed to repeal a former law . . . or any right accrued under . . . the former law, or in any way whatever to affect such . . . right accrued, or claim arising before the new act of the General Assembly takes effect.

We have held that Code § 1-239 applies to accrued rights categorized as "substantive" or "vested." City of Norfolk v. Kohler, 234 Va. 341, 345, 362 S.E.2d 894, 896 (1987). We have not previously considered whether a final judgment creates a vested or substantive right in the holder of that judgment qualifying it as an "accrued right" for purposes of Code § 1-239. However, in Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127 (1942), we held that the litigant's right in the trial court judgment was an "`inchoate right, which would become vested upon the happening of one of two events, viz., an affirmance of the decree of the trial court by the Supreme Court of Appeals, or by the expiration of the period allowed at the time in which to take an appeal.'" Id. at 264, 23 S.E.2d at 129 (quoting Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 45, 124 S.E. 482, 485 (1924)). The implication of Bain is that a final judgment of a court creates a vested right in the holder of that judgment which cannot be abrogated by subsequent legislation under Code § 1-239. This conclusion is consistent with cases decided in other jurisdictions based on theories of vested rights and separation of powers.

As early as 1898, in McCullough v. Virginia, 172 U.S. 102, 123-24, 19 S.Ct. 134, 43 L.Ed. 382 (1898), the Supreme Court observed that a plaintiff obtained a vested right in a judgment which was rightfully entered under the authority of an existing act. As the Court explained:

It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.

Id. at 123-24.

Accordingly, once a plaintiff acquires such a vested right, it cannot be disturbed by the subsequent repeal of the statute under which it was obtained. Id. The Supreme Court and various other courts have repeated the principle underlying McCullough's statement of a vested right. These cases have refined the principle by applying it to final judgments enforcing private rights. See, e.g., Hodges v. Snyder, 261 U.S. 600, 603-04, 43 S.Ct. 435, 67 L.Ed. 819 (1923); Johnston v. Cigna Corp., 14 F.3d 486, 491-92 (10th Cir.1993), cert. denied, 514 U.S. 1082, 115 S.Ct. 1792, 131 L.Ed.2d 720 (1995); De Rodulfa v. United States, 461 F.2d 1240, 1246-47 (D.C.Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972); Hospital Assoc. of New York State, Inc. v. Toia, 435 F.Supp. 819, 828-29 (S.D.N.Y.1977).

More recently, the United States Court of Appeals for the Fourth Circuit, in a case raising a due process challenge to the termination of a consent decree based on the application of a subsequently enacted statute, reiterated that "a judgment at law is immune to subsequent changes in the law," and explained, "[t]he vested-rights doctrine is analogous to the separation-of-powers rule that Congress may not mandate the reopening of final judgments; importantly, both rules apply . . . when a final judgment has been rendered." Plyler v. Moore, 100 F.3d 365, 371, 374 (4th Cir.1996).

Applying these principles, we conclude that a final judgment order may vest a litigant with an accrued right for purposes of Code § 1-239. This conclusion, however, does not end our inquiry. The nature of the specific "right" embodied in the judgment order must be determined. See Town of Danville v. Pace, 66 Va. (25 Gratt.) 1, 11 (1874) ("[I]t is not competent for the legislature by retroactive laws to interfere with vested rights. But the inquiry still recurs, what are these vested rights that are secured against legislative invasion.").

In 2002, when Morency filed his petition pursuant to former Code § 19.2-298.4, and in 2004 when the order granting the petition was rendered pursuant to Code § 9.1-909, the applicable statutory provision provided in relevant part:

Upon expiration of three years from the date upon which the duty to register as a sexually violent offender is imposed, the person required to register may petition the court in which he was convicted for relief from the requirement to reregister every 90 days. The court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether the person suffers from a mental abnormality or a personality disorder that makes the person a menace to the health and safety of others or significantly impairs his ability to control his sexual behavior. Prior to the hearing the court shall order a comprehensive assessment of the applicant by a panel of three certified sex offender treatment providers as defined in § 54.1-3600. A report of the assessment shall be filed with the court prior to the hearing. The costs of the assessment shall be taxed as costs of the proceeding.

If, after consideration of the report and such other evidence as may be presented at the hearing, the court finds by clear and convincing evidence that the person does not suffer from a mental abnormality or a personality disorder that makes the person a menace to the health and safety of others or significantly impairs his ability to control his sexual behavior, the petition shall be granted and the duty to reregister every 90 days shall be terminated. The court shall promptly notify the State Police upon entry of an order granting the petition and the State Police shall remove Registry information on the offender from the Internet system. The person shall, however, be under a continuing duty to register annually for life.

Code § 9.1-909(A) (1998 & Supp.2004).

By the plain terms of the statute, a petition filed pursuant to this Code section was a petition only for relief from the quarterly reregistration requirement. The statute did not authorize a petition to require the removal of Registry information from the Internet and a court was thus without authority to order such action based on a petition. Furthermore, the consideration before the court was whether the petitioner suffered "from a mental abnormality or a personality disorder that makes the person a menace to the health and safety of others or significantly impairs his ability to control his sexual behavior." Id.

The statute provides that if the court found these facts by clear and convincing evidence, the petition to be relieved from the...