virginia supreme court in resolving tacos appeal simply ignored this court decision that said no reasonable jurist could have been read lawrence conclude that a statute that is identical or identical in all relevant respect the only difference between mcdonald and the present case is the narrowing construction that has been giving to the virginia statute in the interim and i think that argument is wrong for at least two reasons one is factually wrong because the commonwealth made the exact same argument cannot be applied to anyone even if you could find somewhere some person who you can apply to it theoretically as justice scalia wrote in sweet home chapter said the problem with combos argument is that there's a fundamental difference between lawful application of an unconstitutional statute and a lot of opposition of a different stature that could have been properly written the we have no problem i have no quarrel with the proposition that the state of constitutional fit and therefore they conclude that in mcdonald not in top health they conclude that the antecedent provision properly tail improperly narrowed can be applied and this court said no which leads me to the second part of my answer and the reason the answer is no they simply cannot pass that it is so broad it cannot be legally applied to anyone the mere fact that they could have passed the better statute which we don't dispute doesn't save the statute from invalidation and therefore does not save tacos conviction  i'm still a little bit confused as to what your position is are you saying they can do it or they did do it or they had the opportunity they passed on it consequently the other effort is so i think that they tried to do it even before talk so i think i think my point is that tucker comes here and exact same procedure posture as macdonald did with the same supposedly our construction and that near confession was rejected in mcdonald and therefore under the rules of this court should be rejected here but furthermore as a general proposition even if that weren't true even if there were not an errant construction mcdonald want to statistician constitutional cannot be revived from the dead by and i think the whole point of f in order to convict mr talk how the commonwealth had to prove at trial that he proposed to a child a performance of an act constituting and offense in the act of sexual intercourse or an act and offense under section eighteen the problem for the common law says that at the time that happened through bridges legislatures were drafting that act unfortunately did not pass through and a fancy under virginia law because the statute as w a statute that has been declared unconstitutional cannot give any obligations nor any power to the state to follow it and so i don't think the statutes are different and unfortunately  our hill was convicted under this different statute the different statute dealt directly with the solicitation of children three seventy four point three may is unlawful to use a solicitation which it seems to me is exactly what this individual did and he was trying to solicit sodomy from  you know to me that's kind of the nub of it and i don't we can make it we can make it more complicated by this that everything but it was a different statute from the senate was a statute aimed at  point that you've said except for one clause in in the middle that the statute prohibited the conduct unfortunately and i'm not going to stand here with a straight face and say that mr tucker was a good guy and so didn't do any of the stuff you  what i'm saying is that true virginia is a mentions yes this kind of could be prohibited yes it's kind of his way outside of the bounds of you know the behavior we expect but at the time it occurred this conduct was not prohibited because at the time in order to convict start of conduct was to be criminally nothing lawrence changes before he was convicted he knew it was review the conduct was going to be criminal after he was convicted  conduct to remain criminal so whether you whether you look at whether you have your term limbs before the time of the affairs or after the time of house the basic back was th could be a short like did they do it now of course right could somebody in the same shoes and it struck me prosecutor undervalue next actually today absolutely but at the time even though it was more it was always morally wrong i have no quarrel with that but it simply was not statutor around reasonable application of clearly established law it seemed to me it was a very accurate africa issue of what the law was and we you know i'm i'm trying to get a is there really anything out reasonable about what the virginia supreme court it's done all along and i haven't i'm having difficulty finding a problem with what happened morning your honour's may please the court and mcguire on behalf of the director of the virginia department of corrections i want to start by kind of filing i think are two basic undisputed principles in this case the first is that lawrence versus texas absolutely protects the right of adults who engage in private sexual conduct and the second is that states can constitutionally criminalize the conduct of todd hill committed in this case which is the solicitation of oral sex from a person he believed was a thirteen year old girl on the internet the issue is just whether under oculus conviction under virginia code section eighteen point two three seventy four point three c which criminalizes that exact conduct can stand his argument in total boils down to the fact that he claims this court resolved this case  case mcdonald versus moose but that's not true macdonald is not controlling here for the for one simple fact which is that the virginia supreme court has adopted a narrowing construction of the code section that was that issue and mcdonald and so while this court in mcdonald felt constrained it says the right up front in the opinion to invalidate code section eighteen point two three sixty one a because they saw it as materially indistinguishable not from the statute at lawrence but is from the statute at issue in bowers and so under versus planned parenthood this court looked at the factors and thought that it was too broad to be narrowed the virginia supreme court is not constrained by ayotte in the same way he sinead has any constitutional underpinnings that might apply generally its purpose article three the state supreme court was entitled to adopt a narrowing construction of the statute and both parties agree that the virginia supreme court is the final arbiter of virginia law so really the first question for this court with respect to mcdonald is just do we have the same statute at issue here to the extent three to extend the meaning of eighteen point two three sixty one is relevant and the answer is no after the supreme court decision in this case eighteen point two three sixty one a criminalizes explicitly sodomy involving children forcible sodomy prostitution involving sodomy and sodomy in public where you are you able ever able to find a case where the supreme court put a narrowing construction almost state statute after the federal court one hundred percent clear exactly how it worked but the basic principle is that the federal courts well they step back that the state courts are the final arbiter of what their law is and so there could be a good faith disagreement between the federal court in the state virginia general assembly intended with this statute and we know that there are constitutional applications so although mcdonnell basically invalidated eighteen point two three sixty one alan overbred theory a sensually that the conduct with a criminal is more  constitutionally could after lawrence restrict or just excised what may have been an taht what it might not be able to constitutionally criminalize and allow the rest to go forward and that's perfectly fine as a matter of course for the virginia supreme court's without that construction it looked at consider is well those are you aware of any case that says a state court cannot adopt a narrowing construction of a state statute after a federal court has ruled on place of validity of it no your honor i interpretation and it's this court's duty to apply state law as it has been construed by the state's high order what was specifically is the difference between the way the virginia supreme court construed the statute him and the way the virginia supreme taco says that the commonwealth press this argument mcdonald to this court that's not exactly true and if you look at this court's opinion in mcdonald versus moose you will find nothing suggesting that this court was aware or considered whether the virginia supreme court had adopted a narrowin construction so there's no holding of this court no consideration no actual rejection of this argument and tug hill to be sure the virginia supreme court said that it had already said this once and was going to make it clear again the tug hill goes way way much much further than mcdonald when there's mcdonald wasn't as applied challenge was a facial challenge in the courts that we're going to preserve the statute for the specific categories of conduct that lawrence contemplated that states could continue to criminalize well virginia supreme court to adopt a narrowing construction of state law and so this court then just looks at what it what is the statute that now exists is that of want to do that would be sure to bring state law into conformity with the latest pronouncements of the united states make make sure that state and federal law run along parallel lines yes your honor in the virginia good thing i absolutely agree your honor we're going to supreme court was trying to be responsive to lawrence and also be responsive the virginia general assembly and acted assembly thought were the supreme court it just doesn't have the same a at hang up in it applied to factors here and explain why they were consistent with what the court did but they are not speaks explicitly in terms of federal courts and what federal courts are able to do in the case his reply brief it was what the power federal courts are to narrow congressional enactments virginia supreme court has a body of case law that says they go out of their way to try to preserve virginia statutes to the extent they can find a construction that's consistent with what the legislature would have  d and that's exactly what they did here let me ask your question of curiosity are you running in any challenges regarding the anti sodomy statute in public based on our decision of mcdonnell i am not aware of any judge tracks or i believe there has been one case i can't remember the name of it off top of my head involving a sodomy and public issue and it was kind of there are three cases that were sort of taken as a companion case with todd hill and they all kind of got resolved just on the opinion and t so on the ex post facto side of this so if you take virginia supreme court's narrow construction and ask ok can this be applied to mr todd hill the answer is absolutely yes the judge will consent as pointed out the the the basic body of case law on this issue comes from versus ohio and you see it in younger versus harris the idea is did the defendant have fair notice that his conduct was criminal even if that conduct occurred prior to the narrowing statute and so here absolutely there is no serious argument th kill was deprived of notice that attempting to prey on a person he thought was a thirteen year old girl was criminal in virginia code section eighteen point two three seventy four point three c which is the statute he was convicted under laid out the elements of the offense that he committed he used the internet via e mail to communicate with a person he thought was a thirteen year old girls lascivious and sent to a list to solicit an illicit sexual act and so that's exactly what he did and that's exactly what he was convicted of the way he tries to get around this individuals in that case or in part and future cases osbourne makes that point sexually clear as those maloney versus wilbur in fact almost all talk his arguments are addressed and ozma versus ohio on pages one fifteen to one seventeen and are dismissed by the court for a construction food essentially extends so far as to rewrite to all intents and purposes the statute itself if you have that type of limiting instruction then you would i think things that makes you wonder you know since the initial statute in the hobbit that's exactly right your honor you can actually compare the first case you set up where they adopt eliminate construction that maybe has no real basis in the statute vs one where they do like this case and the cases are cited in the briefs actual cites the case of believe vs colombia which gets much closer to the potentially problematic scenario you raised in buoy the south carolina supreme court adopt the interpretation of the criminal trespass statute in south carolina and as written the criminal trespass statute applied in a way where if you were told you were allowed on somebody's property and you went anyway you were liable for criminal trespass the flip side of that and what happened in  it was a person was at a restaurant dining it was told to leave and then they refused to leave and south carolina supreme court upheld the conviction out of the criminal trespass statute the u s supreme court on principles of due process because it wasn't forseeable that the statute would be applied that conduct found a due process violation and refused to allow to go forward and sort of this view of an ex post facto violation if you compare that to auburn versus ohio which is a child pornography case for potentially the statute swept an innocent conduct that you could not criminalize not the similar from what we had here and how macdonald looked at it and i was going the court said everybody knew the statute just read the statute the goal was obvious to prevent people from trading in child pornography and the same is it's absolutely true here where the goal of eighteen point two three seventy four point three c was to stop people from soliciting any type of sexual act really from a person under the age of fifteen so as a result the statute as narrow can be applied to talk  when you get into that box the question then is just under ed did lawrence and validate state laws that criminalize a solicitation of sodomy for minors and then the answer to that is plainly not under edwin probably not certainly not under even the noble review lawrence car out specific categories of cases sodomy involving minors is one of them and so at this point there's also just no dispute about what did the statute can be constitutionally applied demis conviction should be upheld under at let me ask you question my recollection is that after mcdonnell the virginia's legislature amended that and sodomy statute but as i read tague hill when prodigious supreme court is determining what the intent of the legislature was in the end sodomy statute they take into consideration the amendments that were made after the mcdonnell case so they're analyzing and tipped based on actions subsequent to the two mcdonald's so can we have the facts say that they made a legitimate analysis under however you pronounce it as to what the purpose of the of the law is sort of two responses your honor the first is i sort of retire killing two lights one is them saying this is what we said in mcdonald already previously we have we've already discussed this we think the statute complied this way we know the general assembly wanted it to so ultimately it just sort of all builds together to everybody in the commonwealth of virginia was trying to reach the same place which is the commonwealth absolutely intended and has always criminalize the solicitation of sodomy involving minors under the age of fifteen and everybody in the commonwealth has worked towards that goal title makes a lot in his reply brief about the fact that we supposedly ignored general simply amended the statute called a special session but that's not surprising either in light of this court's opinion which seemed to invalidate entirety of what or at least a huge portion of virginia's child predator laws that it's just cross reference the statute so it made perfect sense for them to cost special session and come in including yourself going forward what there is there is u s supreme court's cases saying a legislative change doesn't apply to prior conduct this is also discussed in osbourne where they make clear that a judicial change about what a statute actually cover does apply as long as it was reasonably forseeable and so here it just is one of those cases where everybody is trying to get to the right result and in mcdonald this court was trying to get to the right result but felt constrained by and the supreme court didn't feel constrained in the same way and isn't bound by in the same way and so everybody has tried to pursue what they thought was the right path in front of lawrence and virginia law and so coming back to this court code section eighteen point two three sixty one a has been authoritatively narrowed by the virginia supreme court and that's the narrowing construction that's on him on appeal here undoubtedly had notice that his conduct in this case was criminal the narrow statute can be constitutionally applied so under ed his deferential framework the discourse should be affirmed unless the court has further questions i will see the remainder of my time argument that the mcdonald that the four strokes mcdonnell scored had no inkling that virginia's supreme court in mcdonald gave the statute a narrow construction and i think that's just simply incorrect as pointed out at page six of our that the virginia supreme court is not bound by god but it is bound by for example united states v reason which it is dangerous for our liberties to allow alleged mistress at a net wide enough to catch every conceivable offender even ones who