Virginia Lawyers Weekly reported December 24, 2007 on a ruling by Judge Kimberly J. Daniel of Fairfax Juvenile Court.
Judge Daniel’s ruling throwing out a motion for contempt signed by a State employee has resulted in motions for contempt containing legal arguments or legal conclusions now be signed by lawyers. Previously, Department of Child Support Enforcement non-lawyer employees signed such motions routinely.
I agree with Judge Daniel that such pleadings, to the extent they are signed by non-lawyers, constitute unauthorized practice of law and are ineffectual at bringing an issue before the court.
But what about all the orders based upon VA Code Section 8.01-271.1 that were triggered by non-lawyer, non pro-se pleadings in the past? Are those orders still valid?
I contend that they are; all court orders are presumptively valid until they expire, are reversed on appeal or are modified. The number of such orders based on faulty arrearage data is probably minuscule anyway, so it is unclear that many people suffered harm. An invalid contempt pleading may trigger a valid order if the court had subject matter jurisdiction and personal jurisdiction over the parties; the alleged contemnor had notice and an opportunity to be heard; and the order was not appealed within the required time. In effect, the order was simply sui sponte instead of being based on the request of a party. Courts enter orders on their own initiative all the time.
One might also compare this situation to the contract doctrine of mutual mistake. Until October 30th, 2007, everyone thought it was acceptable for a DCSE employee to sign in the place of a lawyer, and everyone was wrong. Despite that fact, both parties came to court and presented whatever evidence they had (or the party in arrears was personally served and defaulted); and both parties let the appeal time run on the outcome. To me, that is constitutionally a fair outcome.