Virginia Supreme Court rules on remand in cross-burning cases

Last April in Virginia v. Black, the U.S. Supreme held that Virginia could criminalize cross-burning with the intent to intimidate, but remanded the case for the Virginia Supreme Court to rule on the meaning of the "prima facie evidence" language in Va. Code 18.2-143, which says: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Today, the Virginia Supreme Court, in an opinion by Justice Lemons, ruled in Elliott v. Commonwealth that the prima facie evidence part of the statute is unconstitutional, but severable, and therefore affirmed the convictions of the defendants. In doing so, the Court basically had the chance to reconstrue the application of the statute (expressed in the Model Jury Instructions) in a way that would make the statute good but the jury instructions bad, but chose not to do it. This choice strikes me as somewhat at odds with the canon of construction by which "a statute will be construed in such a manner as to avoid a constitutional question wherever this is possible." Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940).

On severability, the Court applied Va. Code 1-17.1, under which invalid statutory provisions are made severable, "unless (i) the statute specifically provides that its provisions are not severable; or (ii) it is apparent that two or more statutes or provisions must operate in accord with one another."

The Court rejected the defendants' argument that the statute was unconstitutional under the free speech provisions of the Virginia Constitution, declaring that Article I, section 12 of the Constitution of Virginia "is coextensive with the free speech provisions of the federal First Amendment."

Finally, in disposing of the cases, the Court noted that the bad jury instruction on "prime facie evidence" was not given in the case that was tried, and there was no trial in the other case where the defendant entered a guilty plea, and so the defendants' convictions were valid under the remaining parts of the statute, once the unconstitutional provision was severed from them.

This case strikes me as very strange, indeed, the procedural contortions that the different courts have gone through to get to this point. In the Hicks case, I thought, the First Amendment challenge to the trespass statute was rejected at least in part because Hicks wasn't engaged in any protected expression. If the overbreadth of the prima facie evidence part of the statute does not affect these defendants, then it is as if all these appellate proceedings have been about over the legal effect of a statutory construction made only by the drafters of the Model Jury Instructions. I guess I don't understand how the litigation of overbroad criminal statutes is supposed to work.