Martin v. Ziherl

Present: All the Justices

MUGUET S. MARTIN

v. Record No. 040804 OPINION BY JUSTICE ELIZABETH B. LACY
January 14, 2005
KRISTOPHER JOSEPH ZIHERL

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge

In this appeal we consider whether Zysk v. Zysk, 239 Va.

32, 404 S.E.2d 721 (1990), which disallows tort recovery for

injuries suffered while participating in an illegal activity,

precludes Muguet S. Martin from maintaining a tort action

against Kristopher Joseph Ziherl for injuries allegedly

inflicted during sexual intercourse, a criminal act of

fornication proscribed by Code § 18.2-344, in light of the

decision of the Supreme Court of the United States in Lawrence

v. Texas, 539 U.S. 558 (2003), holding unconstitutional a

Texas penal statute prohibiting certain sexual acts.

FACTS

Because the case was decided on demurrer, we recite the

facts contained in the pleadings and all reasonable inferences

therefrom in the light most favorable to the plaintiff.

McDermott v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903

(2000). Martin and Ziherl were unmarried adults in a sexually

active relationship from approximately October 31, 2001

through November 3, 2003. Martin experienced a vaginal
outbreak in June 2003, which her physician diagnosed as

herpes. Martin filed a motion for judgment against Ziherl

alleging that he knew he was infected with the sexually

transmitted herpes virus when he and Martin were engaged in

unprotected sexual conduct, knew that the virus was

contagious, and failed to inform Martin of his condition. In

the two-count motion for judgment, Martin asserted claims of

negligence, intentional battery and intentional infliction of

emotional distress and sought compensatory and punitive

damages.

Ziherl filed a demurrer asserting that Martin's injuries

were caused by her participation in an illegal act and

therefore, under Zysk, the motion for judgment did not state a

claim upon which relief could be granted. Following a

hearing, the trial court applied Zysk and sustained Ziherl's

demurrer holding that Lawrence did not "strike down" Code

§ 18.2-344 and that valid reasons such as the protection of

public health and encouraging marriage for the procreation of

children are "rationally related to achieve the objective of

the statute." We awarded Martin an appeal.

DISCUSSION

Before turning to the merits of Martin's appeal, we

consider Ziherl's assertion that Martin lacks "standing" to

challenge the constitutionality of Code § 18.2-344. In making

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his "standing" argument, Ziherl refers to the lack of real or

threatened prosecution of Martin under Code § 18.2-344 and

states that invalidation of the statute would not impact her

liberty interest but, instead, would only allow her to

maintain her action for damages. Regardless of the approach,

well established law precludes us from considering Ziherl's

"standing" challenge.

A basic principle of appellate review is that, with few

exceptions not relevant here, arguments made for the first

time on appeal will not be considered. Ziherl did not assert

before the trial court that Martin lacked "standing" to

challenge the constitutionality of Code § 18.2-344. We have

repeatedly held that challenges to a litigant's standing must

be raised at the trial level, and the failure to do so

precludes consideration of a litigant's standing by this Court

on appeal. In Walt Robbins, Inc. v. Damon Corp., 232 Va. 43,

348 S.E.2d 223 (1986), the Court considered whether the

appellee's mechanics' lien was unenforceable for failure to

make the trustees and the beneficiary of the antecedent deed

of trust parties to the suit to enforce the lien. Id. at 46,

348 S.E.2d at 225. On appeal, the appellee challenged the

"appellants' standing to assert the rights of the trustees and

beneficiary," but the Court refused to consider this argument,

finding that it had been waived for failure to preserve it in

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the lower court. Id. at 46 n.2, 348 S.E.2d at 226 n.2. The

Court concluded that "a standing question cannot be raised for

the first time on appeal." Id.; see also Princess Anne Hills

Civic League v. Susan Constant Real Estate Trust, 243 Va. 53,

59 n.1, 413 S.E.2d 599, 603 n.1 (1992)(refusing to consider

contention that defendant lacked standing to maintain its

cross-bill because issue not raised in pleadings or referred

to the factfinder in earlier proceedings); Shenandoah Pub.

House, Inc. v. Fanning, 235 Va. 253, 258 n.1, 368 S.E.2d 253,

255 n.1 (1988) (refusing to notice standing argument on brief

because it was neither raised in trial court nor assigned as

error); Andrews v. Cahoon, 196 Va. 790, 805, 86 S.E.2d 173,

181 (1955) (declining to consider the capacity of an executrix

to maintain a wrongful death action because the issue was

raised for first time on appeal); Crawley v. Glaze, 117 Va.

274, 277, 84 S.E. 671, 673 (1915) (finding that a demurrer

cannot be sustained upon an allegation of lack of standing

when the record from the circuit court fails to indicate

whether such an argument was presented below and consequently

is an insufficient record for an appellate court to consider

the argument on appeal).

While we will not entertain a standing challenge made for

the first time on appeal, the Court will consider, sua sponte,

whether a decision would be an advisory opinion because the

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Court does not have the power to render a judgment that is

only advisory. See Commonwealth v. Harley, 256 Va. 216, 219-

20, 504 S.E.2d 852, 854 (1998). In the case at bar, the

Court's decision on the constitutionality of Code § 18.2-344

will determine Martin's right to pursue her tort claim for

damages. Thus, we find that this case presents a justiciable

issue and a decision by this Court will not be an advisory

opinion.

Martin asserts that the reasoning of the Supreme Court of

the United States in Lawrence renders Virginia's statute

criminalizing the sexual intercourse between two unmarried

persons, Code § 18.2-344, unconstitutional. The issue in

Lawrence, as stated by the Court, was "whether the petitioners

were free as adults to engage in the private conduct in the

exercise of their liberty under the Due Process Clause of the

Fourteenth Amendment to the Constitution." Id. at 564.

Lawrence had been convicted of violating a Texas statute that

made it a crime for two persons of the same sex to engage in

certain intimate sexual conduct described as the act of

sodomy. Tex. Penal Code Ann. § 21.06(a) (2003). Lawrence

challenged his conviction in the Texas courts, asserting that

the Texas statute was unconstitutional, but the Texas court

rejected that challenge, relying on Bowers v. Hardwick, 478

U.S. 186 (1986). Lawrence, 539 U.S. at 363. In Bowers, the

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Supreme Court had held that a Georgia statute making it a

crime to engage in sodomy, regardless of the sex of the

participants, was constitutional. 478 U.S. at 189.

Acknowledging that the Texas court properly considered

Bowers as "then being authoritative," Lawrence, 539 U.S. at

563, the Supreme Court reexamined its prior decision and

concluded that "Bowers was not correct when it was decided,

and is not correct today." Id. at 578. The Court explained

that the liberty interest at issue was not a fundamental right

to engage in certain conduct but was the right to enter and

maintain a personal relationship without governmental

interference. Id. at 567. The Court determined that the

statutes proscribing certain acts between persons of the same

sex sought to control a personal relationship that is "within

the liberty of persons to choose without being punished as

criminals." Id. The Court explained that the constitution

protects the liberty interests of persons to maintain a

personal relationship "in the confines of their homes and

their own private lives" and that an element of that

relationship is its "overt expression in intimate conduct."

Id. at 567.

In overruling Bowers, the Court also stated that the

analysis of Justice Stevens in his dissenting opinion in

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Bowers should have been applied in that case and "should

control" in Lawrence. Id. at 578. That analysis is:

Our prior cases make two propositions abundantly
clear. First, the fact that the governing
majority in a State has traditionally viewed a
particular practice as immoral is not a
sufficient reason for upholding a law
prohibiting the practice; neither history nor
tradition could save a law prohibiting
miscegenation from constitutional attack.
Second, individual decisions by married persons,
concerning the intimacies of their physical
relationship, even when not intended to produce
offspring, are a form of "liberty" protected by
the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to
intimate choices by unmarried as well as married
persons.

Id. at 577-78. Applying Justice Stevens' analysis, the Court

stated, "The State cannot demean their existence or control

their destiny by making their private sexual conduct a crime.

Their right to liberty under the Due Process Clause gives them

the full right to engage in their conduct without intervention

of the government." Id. at 578.

We find no relevant distinction between the circumstances

in Lawrence and the circumstances in the present case.* As

described in Justice Stevens' rationale adopted by the Court

in Lawrence, decisions by married or unmarried persons

regarding their intimate physical relationship are elements of

*
Indeed, but for the nature of the sexual act, the
provisions of Code § 18.2-344 are identical to those of the

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their personal relationships that are entitled to due process

protection. Using this rationale, the Supreme Court found

that the Texas statute criminalizing a specific sexual act

between two persons of the same sex violated the Due Process

Clause of the Fourteenth Amendment because such statute

improperly abridged a personal relationship that was within

the liberty interest of persons to choose. Id. at 578-79. We

find no principled way to conclude that the specific act of

intercourse is not an element of a personal relationship

between two unmarried persons or that the Virginia statute

criminalizing intercourse between unmarried persons does not

improperly abridge a personal relationship that is within the

liberty interest of persons to choose. Because Code § 18.2-

334, like the Texas statute at issue in Lawrence, is an

attempt by the state to control the liberty interest which is

exercised in making these personal decisions, it violates the

Due Process Clause of the Fourteenth Amendment.

Ziherl argues, and the trial court held, that Code

§ 18.2-344 withstands constitutional scrutiny because "[v]alid

public reasons for the law exist," including protection of

public health and "encouraging that children be born into a

family consisting of a married couple." Regardless of the

Texas statute which Lawrence determined to be
unconstitutional.

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merit of the policies referred to by the trial court, the

Supreme Court in Lawrence indicated that such policies are

insufficient to sustain the statute's constitutionality. Id.

at 578.

The Supreme Court did not consider the liberty right

vindicated in Lawrence as a fundamental constitutional right

which could be infringed only if the statute in question

satisfied the strict scrutiny test. Rather, the Court applied

a rational basis test, but held that "[t]he Texas statute

furthers no legitimate state interest which can justify its

intrusion into the personal and private life of the

individual." Id. This statement is not limited to state

interests offered by the state of Texas in support of its

statute, but sweeps within it all manner of states' interests

and finds them insufficient when measured against the

intrusion upon a person's liberty interest when that interest

is exercised in the form of private, consensual sexual conduct

between adults. As we have said, this same liberty interest

is invoked in this case when two unmarried adults make the

choice to engage in the intimate sexual conduct proscribed by

Code § 18.2-344. Thus, as in Lawrence, the Commonwealth's

interests do not warrant such encroachment on personal

liberty.

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 Therefore, applying the reasoning of Lawrence as Martin

asks us to do, leads us to conclude that Code § 18.2-344 is

unconstitutional because by subjecting certain private sexual

conduct between two consenting adults to criminal penalties it

infringes on the rights of adults to "engage in the private

conduct in the exercise of their liberty under the Due Process

Clause of the Fourteenth Amendment to the Constitution." Id.

at 564.

It is important to note that this case does not involve

minors, non-consensual activity, prostitution, or public

activity. The Lawrence court indicated that state regulation

of that type of activity might support a different result.

Our holding, like that of the Supreme Court in Lawrence,

addresses only private, consensual conduct between adults and

the respective statutes' impact on such conduct. Our holding

does not affect the Commonwealth's police power regarding

regulation of public fornication, prostitution, or other such

crimes.

We now turn to the application of Zysk to this case. The

rule applied in Zysk was that "a party who consents to and

participates in an immoral and illegal act cannot recover

damages from other participants for the consequence of that

act." 239 Va. at 34, 404 S.E.2d at 722 (quoting Miller v.

Bennett, 190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949)). We

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adhere to that rule. However, in light of our determination

regarding the constitutionality of Code § 18.2-344, the sexual

activity between Martin and Ziherl was not illegal and "the

fact that the governing majority in a State has traditionally

viewed a particular practice as immoral is not a sufficient

reason for upholding a law prohibiting the practice."

Lawrence, 539 U.S. at 577. Therefore, Zysk is no longer

controlling precedent to the extent that its holding applies

to private, consensual sexual intercourse.

For the reasons stated above, we will reverse the

judgment of the trial court and remand the case for further

proceedings consistent with this opinion.

Reversed and remanded.

CHIEF JUSTICE HASSELL, concurring.

I concur in the judgment of the majority.

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