Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
SCOTT J. MORENCY
v. Record No. 062025 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
September 14, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
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
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
2
At the time Morency was convicted the statutory
provisions governing registration as a sex offender were
located in former Code §§ 19.2-298.1 through 19.2-298.4. In
2003, the General Assembly repealed these Code sections and
enacted the Sex Offender and Crimes Against Minors Registry
Act, Code § 9.1-901 et seq., 2003 Acts ch. 584. Various
portions of that Act have been subsequently amended. For
purposes of this opinion we will refer to the current
provisions of the Act except where specifically indicated
otherwise.
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
2
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
3
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 (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
4
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 (1923); Johnston v. Cigna Corp., 14 F.3d 486,
491-92 (10th Cir. 1993), cert. denied, 514 U.S. 1082 (1995); De
Rodulfa v. United States, 461 F.2d 1240, 1246-47 (D.C. Cir.),
cert. denied, 409 U.S. 949 (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
5
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
6
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.
7
The statute provides that if the court found these facts
by clear and convincing evidence, the petition to be relieved
from the quarterly reregistration requirement "shall be
granted." Id. The statute, however, did not authorize the
court to order the State Police to remove the Registry
information as a consequence of its findings, but only to
“promptly notify the State Police” of the entry of the
September 30, 2004 order.3 The removal duty of the State
Police, upon notification of the Order, was self-executing.
Thus, regardless of the language of the September 30, 2004
order directing removal of Morency's identifying information
from the Internet registry, removal was a function of statutory
authorization, not court order.
We have previously held that statutory remedies do not
create vested rights. In Town of Danville v. Pace, the Court
considered whether a statute prohibiting a corporation from
raising the defense of usury to set aside a contract could be
applied to contracts executed before the effective date of the
statute. 66 Va. (25 Gratt.) at 11. The Court concluded that
while legislation cannot interfere with vested contractual
3
Former Code § 19.2-298.3 (2000 & Supp. 2002) allowed sex
offenders who were not convicted of sexually violent offenses
to file a petition to remove their identifying information from
the Internet registry. Morency did not and could not file a
petition under this section because he was convicted of a
8
rights, a party does not have a vested or constitutional right
in the statutory defense of usury, and therefore the statute
did operate retrospectively. Id. at 19, 23.
Similarly, in Commonwealth v. Shaffer, 263 Va. 428, 432,
559 S.E.2d 623, 626 (2002), the petitioner argued that his
right to petition for judicial review of the administrative
revocation of his driver's license was a substantive right
which had accrued prior to the enactment of a statute
eliminating such judicial review, and therefore, the statute
could not be retroactively applied. We held that the right to
judicial review was not a substantive right, but a procedural
remedy which "may be altered, curtailed, or repealed at the
will of the legislature" and therefore did not give rise to any
vested interest. Id. at 432-33, 559 S.E.2d at 626.
Accordingly, we hold that the September 30, 2004 order did
not clothe Morency with a vested or substantive right to
prevent his identifying information from being placed on the
sex offender Internet registry. Removal of such information
from the Internet registry was solely an action directed by
statute by virtue of the receipt of the September 30, 2004
order. Removal under these circumstances, like the procedural
remedy in Shaffer, could be altered "at will" by the
violation of Code § 18.2-67.3, a sexually violent offense. See
Code § 9.1-902.
9
legislature. Therefore, Morency did not have an accrued right
that was affected by the retroactive application of the 2006
amendment to Code § 9.1-909 for purposes of Code § 1-239.
On brief, Morency also argued that retroactive application
of the 2006 amendment to Code § 9.1-909 violated his due
process rights and the doctrine of separation of powers.
Although Morency stated in his petition for appeal that he had
raised a substantive due process claim in the circuit court, he
makes no argument in this Court supporting the proposition that
his claimed right is a liberty interest or fundamental right.
In the absence of any argument supporting his due process claim
on appeal, we do not address it further. Rule 5:17(c).
Finally, even applying the most liberal interpretation possible
to the pleadings filed in the circuit court, we agree with the
Commonwealth that Morency did not raise a separation of powers
argument below. Therefore, we will not consider that argument
here. Rule 5:25.
Accordingly, for these reasons we will affirm the judgment
of the circuit court.
Affirmed.
JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL joins,
dissenting.
I respectfully dissent. The issue raised by Scott J.
Morency in this appeal is not one that flows from facts which
10
provoke a sympathetic judicial response. Morency was
previously convicted of aggravated sexual battery in violation
of Code § 18.2-67.3. As a result of the majority’s decision in
this appeal, Morency will have personal information, including
his name, address, and picture, posted on the Internet system
associated with the Sex Offender and Crimes Against Minors
Registry maintained by the Virginia State Police. See
generally Code §§ 9.1-901 et seq. In the abstract, I am not
troubled with that result. However, I cannot join a decision
that, as a consequence of an unduly narrow statutory
interpretation, necessarily labors to reject the well-
established principle that a final judgment order vests a
litigant with an accrued right for purposes of applying Code
§ 1-239 and, thus, renders the judgment immune to subsequent
changes in the law by the legislature. The majority rightfully
acknowledges this principle and cites the supporting
authorities at some length. Consequently, repetition of those
authorities is unnecessary here.
The initial focus of the analysis in this appeal is upon
the provisions of former Code § 19.2-298.4(A), now Code § 9.1-
909(A) as amended, which were applicable when Morency filed his
petition in the Circuit Court of Louisa County in 2002. At
that time, the statute, in pertinent part, provided that:
11
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
ninety days. The court shall hold a hearing on the
petition . . . 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 . . . . 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 . . . the petition shall be
granted and the duty to register every 90 days shall
be terminated. The State Police shall be notified
promptly upon entry of an order granting the petition
and Registry information on the offender shall be
removed from the Internet system . . . . The person
shall, however, be under a continuing duty to
register annually . . . .
Former Code § 19.2-298.4 (2000). (Emphasis added).
After conducting a hearing on Morency’s petition, by order
entered on September 30, 2004, the circuit court held that
Morency “possesses no mental abnormality or personality
disorder that makes him a menace to the health and safety of
others or significantly impairs his ability to control his
sexual behavior.” Consequently, the court ordered that
Morency’s statutory requirement to reregister every 90 days
with the Registry be “terminated,” and that Morency be required
thereafter only to reregister annually for life. Additionally,
and significantly in terms of the present appeal, the court
ordered that the Clerk of the Court promptly notify the
12
Virginia State Police “that [Morency’s] registry information
including name and picture shall be removed from the [Registry]
and the Internet system associated therewith and maintained by
the Virginia State Police.”
The thrust of the majority’s decision that this judgment
did not provide Morency an accrued right immune from the
subsequent legislative amendment to former Code § 19.2-298.4(A)
rests upon the conclusion that “regardless of the language of
the September 30, 2004 order directing the removal of Morency’s
identifying information from the Internet Registry, removal was
a function of statutory authorization, not court order.” This
follows from the majority’s statutory interpretation that
former Code § 19.2-298.4(A) required the circuit court to
promptly notify the State Police of the entry of its order,
thereby rendering the removal duty of the State Police to be
“self-executing.” This narrow interpretation of the statute
elevates form over substance, and we have generally disavowed
such an analytical approach. See, e.g., Judicial Inquiry &
Review Comm’n v. Elliott, 272 Va. 97, 120, 630 S.E.2d 485, 497
(2006).
There is no patent ambiguity in the language used by the
legislature in former Code § 19.2-298.4(A). The statute
provides in clear terms the conditions under which a petition
“may” be filed, as well as the evidentiary requirements under
13
which the court “shall” grant the petition. Likewise, the
statute clearly mandates that the duty to reregister every
ninety days “shall be terminated” upon the court’s grant of the
petition. The statute further mandates, in equally unambiguous
language, that “[t]he State Police shall be notified promptly
upon entry of an order granting the petition and Registry
information on the offender shall be removed from the Internet
system.”
Thus, removal of Registry information from the Internet
system is a mandated, nondiscretionary consequence of the
court’s finding that the petitioner is entitled to have the
petition granted. It is only upon the court’s granting of the
petition that the State Police are directed to remove the
petitioner’s information from the Internet Registry. Therefore,
the petitioner’s right to removal of this information is a
corollary, nonseverable right included in the right to
reregistration relief specified by the statute. It is not the
statute, but rather, the judgment of the court that establishes
the successful petitioner’s right to both relief from the 90
day reregistration requirement, and removal of Registry
information from the Internet system. Consequently, it does
not follow that the language of the statute supports a narrow
interpretation that, upon entry of the court order granting the
petition, the duty of removal by the State Police was “self-
14
executing.” That duty flowed directly from, and in compliance
with, the court order entered in accord with the statute.
Because the September 30, 2004 court order granted Morency
the right to removal of his identifying information from the
Internet Registry and in all other respects was completely in
accord with the provisions of former Code § 19.2-298.4(A), I
would reverse the circuit court’s judgment denying Morency’s
subsequent petition to enjoin the State Police from reposting
his information on the Internet Registry. As the 2004 judgment
of the court granted Morency a vested right immune from
subsequent changes in the law by the legislature, the
retroactive application of the 2006 amendment to former Code
§ 19.2-298.4(A), now Code § 9.1-909(A), violated Code § 1-239.
15