NEW FEDERAL RULE MANDATES BREVITY
[Posted October 4, 2016] Do you suffer from logorrhea? When it comes to briefwriting, do you find that you just can’t stop? Do you believe you can be twice as persuasive in forty pages as you can in twenty? If so, then according to Garrison Keillor, there’s a support group for you; it’s called On-and-On-Anon.
If all this describes you, then page and word limits are your nemeses. Appellate courts are notorious for setting page limits that force you to cut yourself off before your eloquence reaches its apex.
Well, get ready for bad news: by pending rule change, the federal page limits are getting shorter, as of December 1. The old word limits (14,000 words for principal briefs; 7,000 for reply briefs) were based on the assumption of 280 words per page. The courts will now apply a 260-words-per-page protocol, so the new limits will be 13,000 and 6,500, respectively. Look at it this way: you get the same number of presumptive pages – 50 and 25, respectively. You just can’t cram as many words onto each page by ruses such as creative use of fonts and single-spaced footnotes.
In reality, most appellate lawyers have long abandoned page limits, finding the word counts to be more liberal. No more.
These changes didn’t come without stern opposition from a surprising source: appellate lawyers themselves. A story in today’s New York Times describes efforts by nothing less than the president of the American Academy of Appellate Lawyers to stop the reduction. I also recall discussion of this as a proposed rule at last year’s ABA Appellate Summit, when some lawyers fumed about the potential loss of pages, while the rest of us kept our mouths shut.
The NYT story contains the best counter-point to the opposition: longer briefs are less persuasive. In most appeals, I can inflict more damage in ten pages than I can in twenty. There’s one, and only one, use for string cites, but somehow they find their way into brief after brief, clogging the narrative and chasing the reader’s attention away.
Look, I know that some appeals – and some case areas – are complex, and perhaps you need to spend more time and pages explaining things. In the truly complicated appeal, you should be able to make out a case for extra briefing space. (Don’t try that with the SCV, though; that court relaxes page limits very seldom.) But I agree with the appellate jurists quoted in the NYT story: most briefs are too long.
In his wonderful book, The Winning Brief, Bryan Garner urges that you “strive to halve your page limits.” That may seem unthinkable – only 7,000 words for a merits brief? Only 18 pages for an SCV petition for appeal? – but it’s excellent advice. Yes, it’ll take effort to trim it down, to pare extraneous material, to exercise ruthless triage in selecting issues; but it’s worth it when doing so enhances the persuasive force of your brief.
One last point: lawyers who file page-limits briefs are often practicing a form of defensive lawyering. They fear that if they leave out a so-so issue, an arguably on-point citation, an argument with a theoretical chance to win, they could get sued. This is a form of cowardice, and it costs your client in the metric that matters most: the ability of your brief to actually persuade the reader.
UPDATE ON RECENT (AND UPCOMING) APPELLATE DEVELOPMENTS
[Posted September 23, 2016] Now that the rains have stopped here in soggy Tidewater, let’s raise the periscope and see what’s going on in the appellate world.
Decline in cert grants
I’ve written previously about the fact that the Supreme Court of Virginia has cut back sharply on the number of appeals it awards. (That being said, there are already 14 from the writ panels three weeks ago.) While incoming petitions in Richmond are definitely down, the number of writs is noticeably lower than caseload factors alone would explain.
But our court isn’t the only one where the justices are being more selective. At One First Street, the cert-granted rate at SCOTUS has been “sluggish,” according to an essay on the website Empirical SCOTUS. The Big Supremes have granted only 29 cert petitions for October Term 2016, leaving “over half of the Court’s merits docket still open.”
For those of us who make our livings in the appellate arena, the decline in business is alarming. For trial lawyers, the takeaway is a little different; this underscores the bon mot that the best appellate strategy is usually to win the case in the trial court. With fewer grants, there are correspondingly fewer reversals, in both courts.
Oral argument hell
I received from a pal this link to the oral-argument audio in a Seventh Circuit case involving a policy decision by Indiana Governor and Veep wannabe Mike Pence, prohibiting Syrian refugees from settling in the Hoosier State. The audio is at times painful to listen to, not because the argument is poor, but because of the bludgeoning that the court administers to an experienced appellate lawyer: Indiana Solicitor General Thomas Fisher. His tormentors are Judges Richard Posner, Frank Easterbrook, and Diane Sykes.
I won’t editorialize and spoil the plot; I’ll save the freshness of the content for your ears. All I’ll say is that if an appellate jurist ever says to me as I stand at the lectern, “Honestly, you are so out of it,” it’ll be time to hunt up a new career. (If you’re curious but you don’t have half an hour to spend listening, here’s written coverage of the argument from The Indiana Lawyer.)
Some non-VANA writing
In the hope that you like the prose you find here, I’ll give you links to a couple of articles I’ve written that have been published recently elsewhere. The first is a book review I wrote for the State Bar’s magazine, Virginia Lawyer. The second is a fun historical piece I wrote for the ABA Council of Appellate Lawyers; its publication Appellate Issues is hot off the press, released just this week. (You’ll need to scroll all the way down to page 46 for my essay.)
By the way, I invite you to check out the entire issue of CAL’s journal; it’s a terrific resource. I heartily endorse your joining the organization if you have an appellate practice. One extra perk: CAL members automatically get the annual law review, Journal of Appellate Practice and Process; no extra charge.
One last plug for AJEI
The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, draweth nigh. It’s November 10-13 in Philadelphia. I’m going, and so are hundreds of other appellate judges and lawyers from across the nation. The CLE programming is top-notch, and you’ll get to rub elbows with, and share ideas with, appellate lawyers from elsewhere.
One of the summit’s regular features is the Friday morning roundtable discussions. The organizers pick half a dozen or so topics, set up that many tables, and invite anyone who’s interested to come, ask questions, offer advice, and learn from your appellate colleagues in a laid-back, small-group setting. I’ll be leading the discussion entitled, “Solo and Small Firms: Latest Challenges in Managing a Small Appellate Practice.”
But don’t come only on my account. Want to hear an informal conversation with Justice Kagan? How about a preview of next year’s SCOTUS Term (incomplete as it is right now, there will surely be more grants by November) featuring Paul Clement? You can be dazzled by Dean Erwin Chemerinsky’s unbelievable memory for details during his two hour-long programs discussing OT15 decisions, both of which speeches he delivers entirely without notes. You can learn how writing in the digital age is different from what you learned in law school. There’s even an hour of ethics credit to be claimed, if you need that.
I’ve been to five previous ABA Appellate Summits, and have always found the program to be well worthwhile. Next year’s program might be on the West Coast, so here’s your chance to attend one without flying back and forth across the North American continent.
ANALYSIS OF SEPTEMBER 22, 2016 SUPREME COURT OPINIONS
[Posted September 22, 2016] It’s an extraordinarily soggy Thursday here in Tidewater; we’ve had two months of rain in the past three days. That’s a good excuse to stay inside and unwrap the two presents we get this morning from the Supreme Court of Virginia.
The facts section of Du v. Commonwealth is painful to read. Justice Kelsey tells the tale of a young immigrant from Vietnam who comes to America at 18 to live with the father he never knew. He lived for a time with his father, stepmother, and half-sister. After a period that may have been tranquil, Du stormed out, seemingly never to return.
But return he did; four years later, he broke into the home and sexually abused and raped his then-13-year-old sister. The girl’s mother walked in on the pair, leading to a fight. That fight took a dramatic turn when Du reached for a metal baseball bat and began beating his father and stepmother about their heads. The beating continued until they were both insensible; the stepmother stirred once, but Du hit her again, stilling her. Du then told his sister, “Don’t panic; they’re dead.”
The attack left the father severely injured. Thanks to emergency surgery, he survived, but was dependent on others for normal life activities. The mother received stitches to close an open head wound; her victim-impact statement revealed the deep and lasting psychological impact of the attack on her.
While awaiting trial, Du wrote several times to his father and stepmother, encouraging them not to come to court to testify, so that the charges against him would be dismissed. I’m not sure that would have worked, since home-security video captured the events. But the prosecution introduced the letters in the trial court, showing the judge how Du had attempted to hamper the prosecution’s case.
Du pleaded guilty to aggravated malicious wounding, malicious wounding, and statutory rape. The trial judge sentenced him to life plus 30 years, and suspended all but 50 years of that term. The court added conditions of probation for life upon release from prison. In addition, the court directed that Du could have no contact with the three victims for the rest of his life. That, too, was a condition of the suspended sentence.
At the sentencing hearing, the prosecutor told the judge that the stepmother “requested that [the no-contact order] not be ordered for her.” The judge pondered that, then refused, noting that the stepmother could, if she chose, write to Du. The court expressly “discounted” the proffer of the stepmother’s wishes, given the clarity of the victim-impact statements.
The Court of Appeals refused Du’s petition for appeal to review the probation and no-contact provisions. The justices granted Du a writ, and today they affirm by a 6-1 margin. Noting that the appeal is evaluated under the deferential abuse-of-discretion standard, the court finds that the trial court acted within the limits of that discretion.
As for the probation, Justice Kelsey points out that the court could have imposed active prison time of life plus 30 years, and probation is “far less severe than life imprisonment.” All seven justices agree with this ruling.
The justices split over the no-contact provision. The majority finds that the trial court had the discretion to act as it did. The trial judge hadn’t spelled out much detail for the ruling, but the majority finds that the court could reasonably have considered Du’s attempt to influence the trial by manipulating his injured father and stepmother, and sought to ensure that Du wouldn’t subsequently try to pressure the stepmother into recanting her testimony. The sentence also found support in the victim-impact statement, which spelled out the psychological damage to the stepmother.
Justice Powell dissents here, observing that conditions of suspension must be reasonably related to rehabilitation and deterrence. She points out that Du has contact with only three people in this country, and the no-contact order permanently cuts him off from all of them. Given the expression of the stepmother’s wish not to be so separated, she finds the term unreasonable. It does not, in her view, serve a rehabilitative purpose.
As for the possibility of Du’s pressuring his stepmother to recant in order to undercut the conviction, Justice Powell argues that that possibility “cannot come to pass under our jurisprudence.” That’s because recantation evidence is highly suspect, since it is in essence a credibility attack by the witness upon herself. Since the video corroborated other evidence of the crimes, proof of a recantation would be highly unlikely.
When you read the opinion, Justice Powell’s opening sentence will resonate with you: “This is a horrible case which might tempt reasonable jurists to do things that they might not ordinarily do.” None of us can be truly aware of our subconscious biases, and perhaps she’s right about this. In reading the majority opinion, I found myself agreeing wholly with Justice Kelsey; and even after reading the dissent, I think I would have voted to affirm. But I cannot say that Justice Powell’s perspective is necessarily wrong; and the permanency of this isolation does give me at least some pause.
By the time Du is slated for release, he’ll be in his 70s, although he might find relief in Virginia’s geriatric-release statute and get out in his 60s. I have no idea how old the stepmother will be when this 50-year term ends; possibly in her 80s. The dissent contains the seed of a nagging question: Is the rehabilitative capacity of our corrections system so weak that it holds no hope of changing this young man? I like to hope that it can make a change like that, even after a crime this horrifying.
Upon seeing the line immediately above this one, you might be tempted to skip to the next section. Well, forget it; there is no next section. Besides, if you don’t stick around for Cygnus Newport-Phase 1B v. City of Portsmouth, you’ll miss a truly remarkable debate over a point of statutory interpretation. And sooner or later, every lawyer bumps into a statutory-interpretation issue.
When I was a baby lawyer in the 1980s, I performed roughly a gazillion title examinations. I traveled to record rooms near and far, pulled musty books off shelves, scoured hoary indexes, thumbed through cabinets of financing statements, and hand-wrote a whole mess of property descriptions. Even now, the typical beginning of the anciently worded and thoroughly redundant description comes to me without fail: “All that certain lot, piece, or parcel of land, together with the buildings and improvements thereon, lying, situate, and being in the City of _______, and known, numbered and designated as …”
The lawyers who originally crafted language like that were either hypercautious or getting paid by the word.
In order to assess a title, you have to know about priorities among liens. The first rule is that real-estate taxes come first, even if God holds the mortgage. After that, Virginia is a “race-notice” state, so whichever lienholder records his lien in the clerk’s office first gets priority over all subsequent liens.
If a debt secured by a lien isn’t timely paid, the holder can foreclose on it by selling the property at auction. When he does so, all inferior liens are extinguished.
So far, all this is Liens 101, and most lawyers are rolling their eyes, waiting for me to get to something they don’t know. This case is about the lien held by a creature of statute: a community development authority. CDAs are authorized to provide local governments “with an additional means to finance infrastructure associated with development in an authority district.”
The City of Portsmouth has a number of problems, and a shortage of taxable land is one of them. The city is surrounded by other cities, so annexation is no longer an option. (Indeed, the City of Chesapeake was created in 1963 as a defense against continued annexation of Norfolk County lands by Portsmouth.) The federal government owns a large proportion of the land in the city, so Portsmouth can’t tax that land. As you can imagine, Portsmouth will look kindly upon just about any legitimate “additional means to finance infrastructure.”
In 2004, an LLC bought a large (176 acres) tract of land somewhere in Portsmouth and wanted to develop it. The LLC borrowed money from a bank to finance the acquisition, and gave the bank a mortgage, which the bank promptly recorded. The City then created a CDA at the LLC’s request, and the CDA then issued $16 million in bonds to pay for things like roads and light poles.
In order to pay for this, the City – with the LLC’s express consent – levied special assessments on all land within the district, including these 176 acres. The LLC and the CDA signed an acknowledgement that the assessment would run with the land. The LLC got about $12 million out of the bond revenue and started building in 2005.
You remember what happened in 2007-08, right? The economy tanked, and the real-estate market got clobbered. By 2011, the LLC had apparently run out of money without finishing the infrastructure. The bank sold the note to an investor, and assigned the deed of trust. This development is what real-estate lawyers refer to as a bad sign.
The LLC defaulted and the investor foreclosed on the mortgage; the investor was the high (and probably sole) bidder at the auction. It allocated the property to various subsidiaries, including today’s appellant. The issue in this appeal is whether the foreclosure on the 2004 mortgage wiped out the subsequent lien created by the special assessment.
If the assessment were a tax, the answer would be easy: you can’t wipe out a tax lien by foreclosing on a mortgage. But assessments are different, and the statute that authorizes them contains language that mirrors the race-notice statute for other recorded liens. Who wins?
This is actually a very close call, and the Supreme Court’s 4-3 division today reflects that. Justice McCullough draws majority-writing chores, and he holds that assessment liens comparable to this have been regarded as immune from lien-foreclosure since a 1904 decision, which had held that special assessments had priority over other liens “by necessary implication.” The court equated assessment liens to tax liens.
That isn’t the end of the discussion, but I’m going to jump forward to Justice McClanahan’s riveting dissent. She observes that the 1904 decision was interpreting liens that arose in the late 1890s, before the creation in 1900 of the modern race-notice system.
Back to the majority, which also rules that the assessment lien arose long before the investor took title in 2012, so its recording in 2006 makes the assessment the higher priority. But the dissent invokes something well-known to dirt lawyers: the shelter doctrine. That rule states that when a buyer with knowledge of another’s equity (you can read that in this context to mean “another person’s lien”) acquires the property from a person who got it without notice of the other lien, the buyer steps into the shoes of his seller and takes the property free of that other lien. The purpose of this legal fiction is simple: if the good-faith owner couldn’t convey good title to a buyer, he might never be able to sell his property. The imposition of the subsequent lien would effectively take his property.
Let’s jump back and see what Justice McCullough says about that. He points out that by law, assessments cannot exceed the benefits resulting from the improvements. He goes on to quote this language from a 1935 law-review article that discusses this very topic:
Assuming, as we must, that this guarantee is effective, the property itself is directly increased in value to the amount of the assessment, and this increase in value necessarily inures to the benefit of all earlier lienholders. Such being the case, there seems to be no good reason why earlier lienholders should not pay for such increased value.
The majority concludes that “in the limited context of special assessments,” the shelter doctrine doesn’t apply.
Oh, yes it does, Justice McClanahan fires back. She points out that the majority’s premise relies on the absence of any provision for the priority of assessment-liens’ status. But these statutes are not, as the prior law had been, silent as to super-priority; they expressly state that whoever wins the race to record has the superior lien. This Code provision thus overrides any common-law presumption of a super-priority.
In the relative tranquility of the appellate world, we don’t get many bar fights like this. These decisions are a fascinating read, even if you aren’t a dirt lawyer.
ANALYSIS OF SEPTEMBER 15, 2016 SUPREME COURT OPINIONS
[Posted September 15, 2016] Today we get three more published opinions from the Supreme Court of Virginia.
Easily the highest-profile decision of the day is Edwards v. Vesilind, which was one of two cases argued in the court’s rare special session in July. While the underlying litigation is about partisan redistricting, this appeal involves a discovery dispute and turns on legislative privilege.
In the course of trial preparation, the petitioners in the circuit court sought documents relating to legislators’ efforts to craft legislative districts, an overtly political process in Virginia. They issued subpoenas to the Division of Legislative Services and to some outside contractors whom the legislators had hired to produce computer- generated maps. They also requested production of documents directly from the legislators, who were parties to the case.
The legislators asserted privilege based on the Speech or Debate Clause in the Constitution of Virginia. After receiving argument, the trial judge decided that the privilege didn’t apply, so he compelled production. The legislators sought approval for an interlocutory appeal, but the petitioners below wouldn’t consent to that, so the court couldn’t order it.
The legislators found another way to secure prompt review of the issue: they asked the court to hold them in contempt, which would separately be an appealable order. The petitioners didn’t mind that, so the court found the legislators in contempt, at which point they appealed to the Court of Appeals. The parties agreed to ask the Supreme Court to certify the appeal – a process by which the justices can grab a case off the CAV’s docket without awaiting a final ruling – and the justices cooperated.
Today the Supreme Court vacates the contempt finding. The court analyzes the contours of the Speech or Debate Clause, discussing its history in the English Common Law and in the federal Constitution, which has a similar provision. The justices today unanimously rule that the Clause protects the legislators’ documents from disclosure, and by extension applies to legislative staff, to DLS, and even to the outside contractors who prepared the maps. The court finds that as long as the contractors are performing an act that would be protected if the legislator did it himself, then the privilege applies.
Importantly, the holder of the privilege is the legislator, so if the contractor or DLS had wanted to waive it, the legislators could prevent that.
The redistricting litigation is by no means over; the case goes back for further factual development and a likely trial. The petitioners below don’t come away from this empty-handed, because one legislator agreed to waive his privilege and produced documents. He wasn’t involved in this appeal, and my best guess is that the petitioners may find some evidentiary goodies in his batch of documents.
Today’s opinion in Miller & Rhoads Building LLC v. City of Richmond will interest exactly two types: tax jocks and those with a keen interest in issues of statutory construction. Here’s the setup:
Richmond imposes local taxes on real estate within the city limits. Certain areas also constitute special service and assessment districts; there’s an additional tax on properties in those areas.
There’s a building in downtown Richmond that’s bordered by Fifth, Sixth, Broad, and Grace Streets. It was formerly the Miller & Rhoads department store, and lay vacant for many years before a limited liability company bought it in 2006 to turn it into a hotel and condominium residences. (In case you’re wondering, it’s the Richmond Hilton. I’ve stayed there; it’s quite nice.)
Richmond’s tax ordinances also contain provisions for partial tax exemptions for rehabilitated properties. This project was emphatically rehabilitative, so the LLC sought exemption from the regular and special-district taxes. The City agreed as to the ordinary taxes, but refused to apply the partial exemption to the special-district taxes. A circuit court judge agreed and refused to order a refund of the taxes, which had been paid under protest. The LLC got a writ.
The trial judge had ruled that the special-district tax wasn’t a real-estate tax at all, so the exemption didn’t apply. No one on the Supreme Court is happy with that analysis; it probably helps that in oral argument, the City Attorney admitted that the special-district assessment was “a tax on real estate.”
That means that the justices can’t affirm based on the original ruling. Four members of the court choose another path to get to the same destination. Justice Powell writes the majority opinion. She holds that a separate ordinance says that special-district taxes “shall be subject to the following sections” and then lists four of them. Since the partial-exemption ordinance isn’t among them, the majority concludes – based on the expressio unius canon – that there’s no partial exemption for the special-district assessment.
Justice Kelsey disagrees, noting that expressio unius isn’t a doctrine to be applied liberally, or with a blind eye toward the statutory [here, ordinance’s] phrasing. He points out that the four enumerated ordinances each deal with the subject of collection of the tax; not its application. There would be no reason, he feels, for the ordinance to even mention the partial exemption, since it dealt with a wholly different subject. Given that view, he would reverse the circuit court and relieve the LLC of the extra tax.
It’s shameful, but I will admit to a fondness for stupid-criminal stories. We’ve covered a few good ones here at VANA. Probably my favorite is McDowell v. Commonwealth from 2007, where a grand-larceny suspect was caught several hours after stealing stuff, but insisted that the store couldn’t establish the value of what he stole, since it was never found. Unfortunately for him, he chose to commit his felony four hours after the store had completed inventory, so they were able to figure out exactly what he’d taken. Then there was Patrick v. Commonwealth from the same year, where the Court of Appeals took up an appeal by a hapless thief of scratch-off lottery tickets. He wisely went to a different store to cash in the winning ones; the store clerk there was someone who knew him well and was readily able to identify him to police.
Today’s sermon is Collins v. Commonwealth, and implicates a traditional American pastime, speeding on motorcycles. But this was no off-the-rack bike; it was an orange-and-black Suzuki with an extended frame. One purpose of that frame is to modify the bike for drag racing.
As it turns out, there’s no drag racing in today’s tale; Collins just high-tailed it from the police on two discrete occasions when they tried to pull him over. The two gendarmes eventually put their heads together and figured they had the same guy – same color and style bike, same clothing, same general vicinity.
One of the officers’ cars had a mounted camera, and before our hero sped off at 140 mph, he was able to get a screen shot of the license plate. He ran it through DMV and noted that the tag was long-inactive, but it did give the name and address of the last registered owner, one Jones. A visit to Jones revealed that he had sold the bike to Collins a few months before the police encounters, specifically telling the purchaser that there was no title because the vehicle had been stolen.
Stolen property? Now we’re leaving the realm of eluding and reckless driving.
A couple of months later, the officers learned that Collins was at a DMV, trying to register a stolen car. They quickly appeared at the office and questioned Collins about the bike after Mirandizing him. Nope, Collins told them; not me. “I haven’t ridden a motorcycle in months.”
Okay, ready for the comic relief? One of the officers did a quick search on Facebook and found Collins’s page. It contained two photos of our hero standing next to a motorcycle – the motorcycle, all orange and black and everything – in front of a house. He showed Collins the page, but Collins denied knowing anything about the bike or the house.
The officers let Collins go, then found out where the house in the picture was. One of them went to the scene and discovered what obviously looked like a motorcycle with an extended frame in the driveway, mostly covered by a tarpaulin. It was in the exact position shown in the photos on Facebook. He approached it, lifted the tarp just enough to see the distinct orange-and-white coloring, and wrote down the VIN. A quick search confirmed that the bike had indeed been stolen. He re-covered the bike and retreated to a discrete location to watch.
You already know what happens next: our hero shows up at the house and goes inside. Remember, this is the house he knows nothing about. The officer approached, knocked at the door, and guess who answers the door? When questioned about the bike, Collins began with, “I don’t know anything about it.” When that obviously wouldn’t fly, he tried, “It belongs to a friend, but I don’t ever drive it.” And finally, “Yeah, I bought it from Jones, and there’s no title.”
We have one last chapter in our stupid-criminal story. Collins appeared at the door having changed clothes from his visit to the DMV. He had swapped his flip-flops and shorts for jeans and “Timberland style boots,” just the outfit the two officers had seen on their fleeing cyclist. In the search-incident after Collins’s arrest, what do you suppose the officer found in the rocket scientist’s pocket? The keys to the motorcycle.
Okay, based on this we all know Collins is guilty, but the legal issue here stems from the Fourth Amendment. Did the officer have the right to peek under the tarp, which was on private property, without getting a warrant? The trial judge turned aside a motion to suppress, and the Court of Appeals affirmed. The CAV’s rationale was that the officer’s search “was justified under the exigent circumstances exception to the Fourth Amendment’s warrant requirement.” The CAV declined to address the Commonwealth’s alternate contention that the Fourth Amendment is subject to an exception for automobiles.
That exception is actually quite well-developed, and that turns out to be the grounds upon which today’s majority affirms. Given the inherently mobile nature of vehicles, SCOTUS has carved out an exception for the warrant requirement, holding that officers can search cars where they have probable cause to believe that they contain contraband.
Ah, but what if, as here, the vehicle is the contraband? In that case, isn’t this a search of the tarp? There’s no tarpaulin exception to the Fourth Amendment. On this point, a single justice departs: Justice Mims believes that the search was impermissible. He acknowledges that the officer could look all he wanted to from the street, and feels he could even step into the driveway to get a closer look; but no touching allowed, and specifically no peeking under the covering.
SCV REJECTS SHOW-CAUSE PETITION IN HOWELL
[Posted September 15, 2016] Several sources are reporting today that the justices have refused the show-cause petition filed in Howell v. McAuliffe, on which I reported recently. Here’s the text of the court’s short order:
Upon a Petition for Writs of Mandamus and Prohibition
On September 1, 2016, Petitioners filed a “Motion for an Order Requiring Respondents to Show Cause Why They Should Not Be Held in Contempt for Violating the Writ of Mandamus” in this Court. Upon the Motion, the response of the Respondents, and the Reply in Support of Petitioners’ Motion for an Order to Show Cause, Petitioners’ request that they be permitted discovery is denied. Further, the Petitioners’ Motion for an Order to Show Cause against the Respondents is denied.
If you’re looking for an explanation for the ruling, you’ll go hungry. I’ve seen the Governor’s response to the show-cause motion, and it raises several grounds – some substantive, some procedural – for rejection of the motion. We’ll never know why the justices said no, but we at least have a final answer in this litigation.