JUSTICE KELSEY, with whom JUSTICE McCLANAHAN joins, dissenting.
I agree with the circuit court and the Court of Appeals. Both courts held that Code § 16.1-106.1(F) does not, by operation of law, automatically remand a case to the JDR court upon the withdrawal of an appeal. See Spear v. Omary , Record No. 0064-17-4, 2018 WL 414222, at *3, 6 (Va. Ct. App. Jan. 16, 2018) (unpublished). The statute provides that, unless the circuit court expressly retains jurisdiction, the case shall be remanded to the [JDR] court. Code § 16.1-106.1(F). In this case, the circuit court did not comply with the shall command because the circuit courts order - which Spears counsel drafted and submitted to the court - did not remand the case. Spear solves this problem by postulating that the court did not need to expressly remand the case. The remand happened automatically. In other words, because the remand was supposed to happen, it did happen.
It seems unlikely that the use of the passive-voice verb shall be remanded renders the remand self-executing and thus requires no action whatsoever by the remanding court. At best, this interpretation would be an uncommon usage of that expression and, at worst, it would be an unheard-of usage. Consider, for example, Code § 19.2-324.1, which states that a criminal case shall be remanded for a new trial if a reviewing court determines that evidence was erroneously admitted at trial and that such error was not harmless. No one has ever suggested that the mere issuance of an appellate opinion reversing an evidentiary ruling need not be accompanied by a remand order. To be sure, the reason that appellate courts expressly order remands is because remands do not happen automatically. The very word remanded presupposes a remanding court ordering the remand.
Good grammar, as well as common usage, should play a role in our interpretation of shall be remanded in Code § 16.1-106.1(F). Because courts presume in the first instance, that the legislature understood the rules of grammar and the use of language, Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws § 55, at 148 (2d ed. 1911), [w]ords are to be given the meaning that proper grammar and usage would assign them, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012).
Shall be remanded is a passive-voice verb, which means that the subject of the sentence, case, is receiving the action of the verb. Shall be remanded is also a transitive verb that requires an object upon which the action of the verb is exerted in order to express a complete thought. This grammatical structure in Code § 16.1-106.1(F) requires an actor (the circuit court) to perform the action (remanding) upon the subject of the sentence (the case). The actor of a passive-voice verb may be omitted entirely from the sentence, see, e.g. , The Chicago Manual of Style, supra note 1, § 5.115, at 235 (giving his tires were slashed as an example of omitting the actor entirely from the sentence), or can be the object of a prepositional phrase at the end of the sentence, see, e.g. , id. (giving the trees branch was broken by the storm as an example of naming an actor by the object of a prepositional phrase and noting that the subject branch does not break itself - it is acted on by the object storm ).
Here, Code § 16.1-106.1(F) omits entirely the actor of the action shall be remanded. However, this omission does not mean that the remand occurs automatically. Rather, the omission means only that the actor of the remand is understood from the context of the sentence. The case cannot remand itself. An actor - the remanding authority - must perform the remanding. In this case, however, the circuit court, as the remanding authority, did not remand the case to the JDR court.
Even if common usage and grammar both fail us, the last phrase of Code § 16.1-106.1(F) finishes the interpretative task. That phrase adds that the case ... shall be subject to all the requirements of § 16.1-297. Code § 16.1-297 requires the circuit court to file a copy of its judgment with the JDR court within 21 days after the entry of a final judgment upon an appeal from the [JDR] court. And where, as here, an appellant files an uncontested withdrawal request in the circuit court, Code § 16.1-106.1(C) directs the circuit court to enter an order disposing of the case in accordance with the judgment or order entered in the district court. That circuit court order disposing of the case under Code § 16.1-106.1(C) is the final judgment to which Code § 16.1-297 applies under Code § 16.1-106.1(F). See, e.g. , Fairfax Cir. Ct. R. 2:28 (stating that if the circuit court approves of the withdrawal of an appeal, the Circuit Court will enter an order reaffirming the judgment entered in the General District Court but that [t]he case remains in the Circuit Court).
In this case, the circuit court did not reaffirm the JDR courts judgment after the withdrawal of the appeal, did not file its reaffirmation order with the JDR court, and did not remand the case to the JDR court. The circuit court thus completed none of the requirements listed in the governing statutes. I cannot agree with Spear that one of those three requirements - a remand of the case to the JDR court - simply happened automatically, Appellants Br. at 11, 20; see also Reply Br. at 1, while the other two did not need to happen at all.
I respectfully dissent.
Voice shows whether the subject acts (active voice) or is acted on (passive voice) - that is, whether the subject performs or receives the action of the verb. Only transitive verbs are said to have voice. The Chicago Manual of Style § 5.115, at 235 (16th ed. 2010).
See id. § 5.96, at 229 (defining transitive verb).
See Bryan A. Garner et al., The Redbook: A Manual on Legal Style § 10.27, at 198 (3d ed. 2013) (A by -prepositional phrase often accompanies the construction; when it does not appear, it can be understood from the context.).
Code § 16.1-133 codifies a parallel process for the withdrawal of criminal appeals from the JDR court when the withdrawal occurs more than ten days after conviction. Model orders in this context recite that the circuit court affirms the [JDR court] judgment previously on appeal and that [t]his case and the [juvenile or adult] are remanded to the JDR court. See Office of the Exec. Secy, Supreme Court of Virginia, A Handbook of Standard Procedures and Model Orders for Virginia Circuit Court Judges and Clerks § IV, at 51-52 (2013 ed.).
See also Dept of Judicial Servs., Office of the Exec. Secy, Circuit Court Clerks Manual - Civil 6-55 (Jan. 2019 rev.) (stating that, absent a timely objection, the appeal shall be deemed to be withdrawn and that [t]he court shall order disposing of the case in accordance with the judgment or order entered in the district court); Dept of Judicial Servs., Office of the Exec. Secy, Circuit Court Clerks Manual - Criminal 2-10 (July 2018 rev.) (If the appeal is withdrawn more than ten days after the district court conviction date, the circuit court must enter an order affirming the district court judgment ....); id. at 6-4 (Jan. 2019 rev.) (If an appeal is withdrawn more than ten days from the date of conviction in the district court, the judgment is affirmed in the circuit court as a circuit court judgment.).