[Posted November 24, 2015] It’s that time of year again; time for a roundup of the appellate courts’ operating schedules around the holidays. We’ll start with the feds, since they’re easier.

Thus far the Fourth Circuit has announced only its closing plans for Thanksgiving; the clerk’s office will be closed Thursday and Friday, November 26 and 27, reopening on Monday the 30th. Although the court’s electronic filing system will be up and running the whole time, all filing deadlines that fall between Thursday and Sunday are extended unto Monday. I don’t have information yet on the Fourth’s Christmas and New Year’s schedule. I’ll post that when I get it, but my best guess is a closing only on the holidays themselves, with perhaps half a day on Christmas Eve (we’ll see about that).

On to the Virginia state courts. The Supreme Court and Court of Appeals of Virginia operate on the same schedule. They’ll close at noon on Wednesday, November 25 and will reopen on Monday morning. They’ll use the same schedule around Christmas, closing at noon on Wednesday and remaining closed the rest of the week. A week later, they’ll be closed December 31 and January 1. Again, any deadlines that fall on any of these days – even the half-days – will roll over to the following Monday.

Finally, my usual warning about a trap for the unwary (and even some of the “waries” among you): These deadline extensions affect documents that must be filed in the appellate court’s clerk’s office. Some documents, notably the notice of appeal, the transcripts, and the appeal bond, must be filed in the trial court’s clerk’s office. For those documents, you cannot rely on the closings in Richmond; you must ascertain whether your local clerk’s office is open. If that local office is open on your deadline day, then you don’t get the extension and you must file on time.

Of course, you can save yourself a lot of anxiety, and enjoy the holidays even more, by filing early. Why wait until the last possible day?

Health and happiness to each of you over this holiday season.





[Posted November 21, 2015] A very busy period of travel and briefwriting for me has abated somewhat, giving me time to catch up on two weeks’ worth of Supreme Court opinions.

First, I’ll acknowledge the cause of my absence on November 12 – the ABA’s Appellate Summit was a terrific experience. The Virginia Appellate Summit is modeled loosely after it, and that gathering provides the best training in Virginia appellate advocacy; the ABA’s program is the best annual nationwide gathering of appellate jurists and lawyers. I can give you a save-the-date notice right now for the next one: it’ll be November 10-13, 2016, in Philadelphia. If you’re serious about your appellate practice, you need to make time to attend.


The November 12 opinion in Kambis v. Considine is a good illustration of where Virginia’s sanctions jurisprudence is headed. It’s required reading for anyone who sets foot inside a courtroom.

Sanctions under Code §8.01-271.1 are about a generation old; the statute was enacted in 1987 as a parallel to federal Rule 11. Since then, the Supreme Court has handed down a number of landmark decisions on sanctions. For trial lawyers, the names trip lightly off the tongue: Gilmore v. Finn in 2000; Taboada v. Daly Seven in 2006; Ford Motor Co. v. Benitez in 2007; Northern Virginia Real Estate v. Martins in 2012.

A number of these decisions have come down like a cold slap in the face. For example, in Benitez, the court ended a generations-old practice of pleading potential defenses in anticipation that discovery will turn up evidence to support them. And in Martins, the court approved sanctions in the eye-popping amount of $272,000, indicating clearly that courts can impose ruinous awards for egregious conduct.

Kambis v. Considine involves conduct that’s analogous to that in Martins – litigation that’s vexatious, intended to harass an opponent. But this decision comes with an important refinement.

The procedural history is very complex – to the point that I found myself repeatedly going back to reread chunks of the opinion to be sure I got it right – and in the interest of simplicity, I’ll focus on the holding and its import. The key component is the trial court’s express finding of “a certain level of intent to intimidate Ms. Considine in this particular case.” Based on that, the court imposed sanctions against Kambis and his former attorney totaling over $220,000.

Justice Powell’s opinion, for a unanimous court, doesn’t set out the assignments of error, so I can’t be sure about this, but I suspect that the appellant didn’t challenge that factual finding of intent. Instead, he argued that his pleadings were well-grounded in fact and supported by existing law. He supported that contention with a more-than-plausible fact: his pleadings “had survived demurrers, special pleas in bar and a motion for summary judgment.” How can you be sanctioned for filing pleadings that demonstrably aren’t frivolous?

The Supreme Court notes that there’s no indication that the trial court imposed sanctions based on frivolousness. Instead, it points to another component of the sanctions statute: that relating to pleadings filed “for an improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.” The justices affirm the sanctions award because, irrespective of the merits of the pleading, it was filed to intimidate, and that, the court understandably finds, is an improper purpose.

Let’s pause for a moment to consider what this means. The three obligations in the sanctions statute are in the conjunctive. That means that if an attorney or party violates any one of the requirements, a court can impose sanctions. (This was the holding in another landmark sanctions case, Williams & Connolly v. PETA from 2007.) The Supreme Court expressly declines to consider whether Kambis’s pleadings were well-grounded in fact or supported by law, finding it irrelevant to the award of sanctions.

Did you see that coming?

Lawyers who have long viewed frivolousness as an essential component of sanctions will read this decision with surprise. The Supreme Court has now held that you can file a perfectly meritorious claim, and still get sanctioned if the trial judge figures you were doing it primarily for harassment or intimidation, instead of primarily to vindicate your legal claim.

How can the court know this? Well, in this case, the trial judge had some major help in the form of a smoking-gun e-mail from Kambis to his lawyer. (Somehow the attorney-client privilege for this communication ended up waived, presumably when the lawyer and client became subject to joint-and-several sanctions. That’s one of the horror stories from the Martins case.) It also helped that at oral argument in the Supreme Court, Kambis’s lawyer admitted that there was an intent to intimidate.

To put it mildly, it’s enormously important to figure out where the boundary is between sanctionable and non-sanctionable conduct. The court does what it can, even in a highly subjective field like this one, to spell that out in a footnote:

We recognize that almost any legal action is, in some way, intimidating. Such intimidation is inherent in our adversarial legal system and is generally not sanctionable, so long as the intimidation is a collateral effect of a party’s legitimate attempt to vindicate a legal right. The spectre of sanctions arises when intimidation is no longer a collateral effect. Thus, where a party brings an action or makes a filing primarily to intimidate the opposing party, such an action or filing is improper and runs afoul of Code § 8.01-271.1.

The careful reader will observe that the last sentence is likely to be oft-cited in sanctions motions that make claims like this one. That reader will also note Justice Powell’s use of the British spelling of spectre (instead of the mundane –er ending we typically use on this side of the pond). But that may be a sly hat tip to a certain James Bond movie that opened just six days before this opinion came down.

Criminal law

The court resolves two appeals in a single opinion under the caption Ricks v. Commonwealth, also issued on November 12. Both involve an issue of first impression, dealing with the strangulation statute, §18.2-51.6: “Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.”

The novel issue is what constitutes a bodily injury. The justices elect a broad definition:

[T]oday we hold that “bodily injury” within the scope of Code § 18.2-51.6 is any bodily injury whatsoever and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition.

In resolving these appeals, the justices affirm the conviction of one defendant (Ricks) where the victim was choked to the point that she couldn’t speak for a couple of days; she also suffered a bruise on her throat. That’s enough of a bodily injury under the new definition to support a conviction.

In the other appeal (Commonwealth v. Chilton), the justices affirm the CAV’s reversal of the conviction, albeit on different grounds. There, the victim’s testimony didn’t establish that the defendant actually choked her at all. She testified that she “saw black but it wasn’t like I completely and totally lost conscious [sic].” She explained, “I closed my eyes.”

The Court of Appeals had reversed based on the fact that merely blacking out isn’t enough of an injury. The Supreme Court holds that blacking out is indeed a sufficient bodily injury, but the evidence here didn’t prove that the victim ever lost consciousness. That represents a victory for Chilton, but the ruling is a win for future prosecutors, who can get convictions based on even a momentary loss of consciousness.

Habeas corpus

We get a split decision in Velasquez-Lopez v. Clarke, involving a claim that a criminal defendant’s counsel was ineffective because she didn’t pursue an appeal for her client. The court handed down the ruling on November 19.

The defendant is from El Salvador, spoke little or no English, and was indigent. The trial court appointed a lawyer, who communicated with her client through a translator. After extensive consultation, he agreed to plead guilty to 33 counts of taking indecent liberties; he received a lengthy prison term.

Shortly after sentencing, the defense lawyer received word that must be quite familiar to court-appointed lawyers: the client was unhappy with her work in the case. The client asked her to “reopen” the case, and noted that his brothers were getting another lawyer who could pursue an appeal for him: “They want to appeal my case but we need you to open the case so that another attorney can do something for me.”

The lawyer visited her client in jail, and he confirmed that he did not want her to work on his case anymore. She also got a phone call from one of the brothers, confirming that the client did not want her to visit him again or file the appeal. She thereupon filed a notice of appeal, to protect her client’s right to appeal, and waited to hear from another lawyer.

It will come as no surprise to you that no new lawyer ever appeared, and the Court of Appeals dismissed the appeal for failure to file a timely petition. The client then filed a habeas claim, asserting that his lawyer provided ineffective assistance because she let his appellate deadline lapse.

The circuit court convened a hearing in which the lawyer testified about her client’s instructions, which look unmistakable to me. They looked unmistakable to the judge, too, and he denied habeas relief. The Supreme Court agreed to take a look.

Five justices vote to affirm the denial of the habeas petition. Justice McClanahan writes the majority opinion and notes that the lawyer can hardly be faulted for obeying her client’s express instructions. Indeed, it’s hard to imagine a claim of ineffective assistance where a lawyer advises her client and then follows his express directions on how to act. The lawyer properly filed the notice, and her not filing a subsequent petition for appeal is exactly what the client directed her to do.

Justice Roush, writing for Justice Goodwyn, files a dissent in which she points out that a court appointment of counsel is good through the appellate process. Here, the lawyer was never formally relieved of her obligations to her client; that relief could only come in the form of an order of withdrawal. The dissent feels that the lawyer had an obligation to file the petition when a new lawyer never materialized. Under these circumstances, the dissent concludes that the lawyer’s actions didn’t meet the standard of care under Strickland v. Washington, so he should get the opportunity to pursue an appeal.




[Posted November 10, 2015] As we celebrate the 144th anniversary of the most famous question of the Nineteenth Century (“Doctor Livingstone, I presume?”), here are a few items of interest in the appellate field this week.

New appellate rules

On October 30, without any fuss at all – and without even a mention on the court’s “what’s new” website page – the Supreme Court promulgated several rule changes, some of which relate to the appellate courts.

Rules 5:35 and 5A:30 deal with a precious topic, that of appellate attorney’s fees. The amendment adds a new section (b)(2) to the SCV rule, and a new section (b) to the CAV rule, providing for awards of attorney’s fees in domestic-relations cases.

The court amends Rule 5:21, for appealing from the State Corporation Commission. This is designed to address the procedural mess that came to light in BASF Corp. v. SCC, the April decision involving power lines across the James River near Fort Eustis.

There are also amendments to Rules 5:13A and 5A:10A, which allow the transmission of digital records from trial courts to appellate courts. The word court is changed to tribunal, presumably to include entities like the SCC and the Workers’ Comp Commission.

Criticism of Rule 1:1

The Richmond Times-Dispatch has an editorial today that discusses problems associated with Virginia’s 21-day finality rule. The editorial notes that prosecutors seeking to undo a set of fictional affidavits, filed by a police officer to get search warrants, have tried to find a way around the rule, although the paper posits that those same prosecutors would vigorously oppose a criminal defendant who tried to finesse the rule.

I invite you to imagine what would happen if Virginia litigants – and not merely inmates, but civil litigants, too – could move to reopen a case after many moons, asserting the discovery of new evidence. You’d have an awful lot of unhappy trial judges.

This Thursday’s opinions

As my readers know well, Thursdays are now the rolling release dates for Supreme Court opinions. As I noted last week, there are still six unresolved appeals that were argued in September; foreseeably some of those will come down this Thursday, either as published opinions or as unpublished orders.

That’s some bad timing for me, because this Thursday I’ll be in Washington, DC for the ABA’s Appellate Summit. I’ll get to this week’s rulings when I can, but it may or may not be same-day this time around.

About those unpubs …

Historically, the Supreme Court decides about 35-40% of its appeals by unpublished order. In the past three years, the annual percentages are increasing noticeably: 37% in 2012, 41% in 2013, and 44% last year. I don’t have year-long figures for 2015 yet, but it occurred to me, as I reviewed the decisions that have come down in the past few weeks, even that more of them are unpublished this time around.

It turns out that my sense was right. Of the 16 cases decided from the September session, half have been unpublished. Now, the stats geek inside me insists that that may be because we have an incomplete set of data: the court may have released its unpubs first, because they were less complicated than the published opinions. That would actually make sense. But we’ll have to wait a while longer to see if the percentages return to historical norms.





[Posted November 5, 2015] Today we get another batch, albeit a small one, of published opinions from the Supreme Court. There are two published opinions today and one unpublished order. By my count, that leaves six cases unaccounted for from the batch of 23 that were argued in September.

By the way, if the court hadn’t changed to rolling release dates recently, today would have been the normal opinion day for this session, and would have marked the last release date of the calendar year. But with the new rule, we can get more on any Thursday before the calendar turns to 2016. While I expect a starkly low number of published opinions this year, we won’t have a final count until late December.

Criminal law

Justice Roush has a short, clear opinion in Grafmuller v. Commonwealth, which is a sentencing challenge. The appellant was convicted after an Alford plea of four Class 6 felonies in 2009. On two of them, he received ten-year prison sentences, with most of the time suspended. In all, he got 35 years, with ten to serve.

The problem is, the maximum sentence for a Class 6 felony is five years, not ten. When the appellant pointed this out in a 2015 motion for a new sentencing hearing, the trial judge looked at it and noticed that he was right. But the judge didn’t need a new hearing to fix the problem; he just entered an order that amended the ten-year sentences to five each. No harm, no foul (and no court appearance needed).

Also in 2009, the Supreme Court handed down Rawls v. Commonwealth, where a jury had fixed a sentence that exceeded the statutory maximum. In that case, the justices held that Rawls was entitled to a new sentencing hearing, not merely a reduction in sentence. This rule, the court noted back then, “will eliminate the need for courts to resort to speculation when determining how a jury would have sentenced a criminal defendant had the jury been properly instructed or had the jury properly followed correct instructions.”

But that was a jury trial. This was a bench trial, so there was no need for the judge to speculate. He could say categorically how he would have ruled if he had known the proper sentencing range.

That seems like a nice reason for a differing rule in bench trials. But surprise! The justices reverse anyway, expressly declining to carve out a bench-trial exception for the requirement of a new sentencing hearing.

Now, before you go throwing up your hands and viewing this as make-work for trial judges, keep reading. Today’s unanimous opinion lists two quite plausible reasons for a unitary rule. If there’s an exception for bench trials, what happens when the original judge isn’t available to reconsider the sentence? After all, there was a six-year delay before Grafmuller got around to moving for a new hearing, and the delay in Rawls was twice that. Suppose the judge died, or retired to Aruba, in the interim?

And before you try to carve out an exception to the exception (it’s okay to forgo the new hearing if the original judge is available), there’s another reason that’s even more important: every criminal defendant has a constitutional right to be present during each phase of the proceedings. Just allowing the judge to amend his judgment without any input from the defense would toss out the Sixth Amendment, and we can’t have that.

This case is accordingly remanded with direction that the judge conduct a new sentencing hearing. Yes, it might end up being perfunctory, with the judge listening patiently before entering the exact resentencing order that got us here in the first place. Actually, the judge can do that, and it would probably survive appellate scrutiny.

But a big part of our criminal-justice system is the assurance that we use proper procedures — you know it as due process of law — before taking away a person’s life or liberty. That makes remand the appropriate remedy.

One final point: you may have wondered about the timing. How could Grafmuller wait six years after sentencing before filing this challenge? Wouldn’t it be time-barred? No, because a sentence that exceeds the statutory maximum is void ab initio, and can be attacked at any time.

Estates and trusts

There are several interesting issues in Rafalko v. Georgiadis, a declaratory-judgment proceeding involving a multi-million-dollar estate. The facts really aren’t that complicated, but the legal analysis turns out to be; we get a 4-3 decision with two separate dissents. The three opinions run to 50 full pages.

In the 1980s, a man we’ll call Dad marries Stepmom. He has two sons by his first marriage. Shortly after his remarriage, he creates a revocable trust that names his new wife and his two sons as beneficiaries. The sons are listed as co-trustees.

In August 2012, he amends and restates the trust, removing the sons’ trustee roles and naming himself as the trustee. He lists Rafalko, “a professional investment and wealth manager,” as successor trustee.

The new amendment contained different pay-out provision on Dad’s death. Previously, the trust would give lump sums to each son upon their father’s passing. But the new provision continues the trust while Stepmom lives, giving her the income from it, and only distributes money to the sons when Stepmom dies.

Now, we all know that each testator gets to decide how his bounty should be distributed; no one else gets a vote in that decision. Even so, the sons are none too happy about the change. They complain to Dad about having to wait to receive inheritances, and contend that Rafalko was one of Stepmom’s pals.

Dad dies in December 2012; the record is silent about whether he was heartbroken about a rift with his sons. A month later, Son #1 sends a letter to the lawyer who drew the August amendment, asking him to preserve documents for a coming contest. The next day, he writes to Stepmom, asking her to agree to end the trust now and distribute one-third to each of Dad’s survivors. This letter tells Stepmom that if the sons have to file suit, they will contest Dad’s mental capacity and allege undue influence.

I’ll warn you: there’s a major-league curveball coming. Unknown to the sons, Dad had gone back to a lawyer in September and had executed a third set of documents. There were two significant changes in it. The first was that if there were no remaining beneficiaries of Dad’s trust, Rafalko was allowed to send the money to “a charity of her choosing.” The second was the killer: a no-contest clause.

This clause is the heart of today’s appeal. It provides that if any beneficiary:

shall directly or indirectly, by legal proceedings or otherwise, challenge or contest this trust agreement or any of its provisions, or shall attempt in any way to interfere with the administration of this trust according to its express terms, any provision I have made in this trust agreement for the benefit of such beneficiary shall be revoked and the property that is the subject of such provision shall be disposed of as if that contesting beneficiary and all of his or her descendants had predeceased me.

The clause provided an exception for the trustee’s fraud, dishonesty, or bad faith, but in the absence of that, “the decision of my Trustee that a beneficiary or potential beneficiary is not qualified to take a share of the trust assets under this provision shall be final.”

Uh-oh. The sons received from Rafalko a copy of this language, and probably swallowed hard. This new provision gave Rafalko the right to cut them out entirely from Dad’s estate, because they had sent a couple of ominous letters before they even knew about the September amendment. (You may wonder why I used the word they instead of saying “Son #1.” Son #2 effectively ratified his brother’s missives, and the brothers didn’t contest on appeal that they were both bound by the letters.)

In late January, Rafalko wrote to the brothers, saying that she was evaluating whether the letters violated the no-contest clause. She invited them to give her any relevant information on the point. The brothers responded that they weren’t challenging the administration of the trust; they included signed releases that Rafalko had given them, waiving the right to contest the trust. At this point, it looks like the situation will calm down.

Ah, but if it had, we wouldn’t have an appellate opinion today. After mulling things over for about three months, Rafalko made her decision. She wrote to the brothers and told them that she had decided that the letters violated the no-contest clause, so they and their descendants were barred from any trust assets. The brothers promptly responded by filing this DJ action, seeking a ruling that their actions didn’t disqualify them.

Rafalko demurred, noting (apparently correctly) that the sons didn’t allege that she acted with bad faith, dishonesty, or fraud. The court overruled that, holding that he could simply decide whether her actions comported with the trust language. The case went to a bench trial, after which the court issued a letter opinion, ruling in favor of the sons. The court held that the no-contest clause only applied to efforts to fight the September provision, and the sons had expressly directed their letters to the August document.

Rafalko filed a motion to rehear, noting that the judge hadn’t adjudicated the bad-faith issue. The court convened such a hearing and affirmatively found bad faith. It entered final judgment for the sons. Rafalko sought and got a writ.

Today, a bare majority of the court – Justice Goodwyn, writing for the chief justice, Justice Roush, and Senior Justice Lacy – votes to affirm. It affirms the trial court’s holding that the no-contest provision only applies to the September document, because Rafalko’s phrasing of the assignments of error didn’t expressly challenge that finding. It also notes that the bad-faith finding is an alternate ground to affirm.

Justice Mims sees nothing wrong with the phrasing of the assignments, finding them sufficient to “direct this court and opposing counsel to the points on which the appellant intends to ask a reversal of judgment.” On the merits of the August-vs.-September issue, he argues (persuasively, in my mind) that the trial judge got it wrong. The no-contest language applies to “this trust agreement.” The trial court and the majority interpreted that to be the September document. But as Justice Mims points out, that document isn’t a trust agreement: “Standing alone, it contains none of the elements required to create a trust.”

I think he’s right; the September document was a series of amendments to the August document (which was indeed a trust). That, logically, is the document that the new no-contest clause was intended to protect.

The problem with Justice Mims’s position, in my view, goes back to the language of the assignments. None of the assignments of error expressly challenge the court’s finding that the no-contest language only applies to the September amendments. I don’t like reaching this conclusion, because I believe the court is too quick, in a great many cases, to find waiver where the assignments aren’t perfect. (Full disclosure: I’ve made a lot of money over the years by pointing out the infirmities of my opponents’ assignments.) But based on what I’ve seen of the Supreme Court’s jurisprudence on this point, I agree with the majority that the wording of the assignments boxes Rafalko out of this key issue.

Justice Kelsey (joined by Justice McClanahan) is next. He broadly takes the position that Rafalko was just doing her job, exercising the role that the trust assigned to her. Here’s a compelling excerpt from her cross-examination:

When asked on cross-examination if she thought there was an overriding “fairness” issue for her to resolve, the trustee responded: “I am not in the position of deciding what’s fair. I’m in the position of deciding what the trust tells me to do.”

Justice Kelsey also assigns great weight to the settlor’s intent. No-contest clauses, he points out, are intended to prevent intra-family squabbling over money. Dad here had the right to cut anyone off if he wanted, on terms that he alone could fix.

There’s also discussion in the opinions over the need to construe no-contest clauses strictly, but also to enforce them rigidly when they apply. As often happens, the real fight here is whether the language of the clause is ambiguous. If it isn’t, then as Justice Kelsey correctly notes, no construction is needed; you just apply the plain language that the settlor used.

I get the sense that the equities of the situation played a major role here. I don’t have any inside information about this, but I suspect that the majority just couldn’t stomach the idea that the sons’ letters violated a clause that they had no idea existed. (Note that the majority never expressly reaches this precise issue, so it remains for adjudication another day.) There’s a great deal of emotional appeal to that angle, a fact that Justice Kelsey acknowledges. He goes on to point out how such a doctrine would enable abuses by beneficiaries who willingly remain ignorant or feign ignorance.

I don’t know whether that’s a valid point or a slippery-slope fallacy. But for now, lawyers in Virginia who prepare wills and trusts just got a major jolt; you need to be very careful now of just how you phrase these clauses.

He also has one other high card to play, relating to the finding of bad faith. The sons didn’t plead bad faith, and they disavowed at trial any desire, or even any need, to prove it. They just wanted a finding that Rafalko had interpreted the trust language incorrectly. Justice Kelsey is absolutely right to point out that when you don’t plead something, you can’t get relief for it. The trial court had no more business finding bad faith, based merely on its different reading of the document, than it would have in finding that Rafalko failed to pay Dad’s accountant’s bill. It wasn’t an issue in the case, because the sons didn’t plead it, and there was no basis for the trial court to rule as it did. I agree with him that the majority’s very brief treatment of this issue, as an alternate ground for its judgment, is entirely unsatisfying.

This opinion points out the enormous deference that courts give – or are at least supposed to give – to trustees when the settlor includes that “her decision shall be final” language. In that sense, one very significant issue here is what role courts may play. The court finds that the law imposes duties that the settlor can’t excuse, such as impartiality. But I sense that this is much like a review of arbitration, where the court doesn’t get to agree or disagree with the arbitrator’s decision.

One last minor, but interesting, point: Rafalko stood to gain nothing from this ruling, one way or another. In response to the sons’ contention that Rafalko was Stepmom’s pal (they stopped short of saying “Stepmom’s stooge”), there’s a simple, fatal riposte: Stepmom also stood to gain nothing based on Rafalko’s decision. Her share of the trust proceeds – an entitlement to the trust income for her lifetime – would be the same no matter what Rafalko decided. That puts a different spin on any suggestion that Rafalko was doing this for her old pal Stepmom’s benefit, doesn’t it?

Of course, the party that would benefit from a finding adverse to the sons is the as-yet-undesignated charity that Rafalko would choose in the event the sons were disqualified. Today’s opinion doesn’t identify any such entity, and that may be because Rafalko never got around to designating one before the sons sued.




[Posted October 29, 2015] Today, for the first time since the Supreme Court of Virginia changed to rolling release dates for opinions, we get a batch of six such opinions from appeals argued in the September session. The litigants whose cases are decided today are the first beneficiaries of a policy that may accelerate the disposition of some appeals; the previous “normal” release dates for the last session’s appeals would have been next week. That means that these folks are getting their decisions a week earlier than they would have under the old policy.



The court takes up a wrongful-death judgment in favor of juvenile statutory beneficiaries in In re Woodley. The decedent was a four-year-old boy who was killed in a school-bus accident. The case went to trial against the school division and one or more bus drivers, and the jury returned specific verdicts in favor of the decedent’s three brothers. Two of those brothers were juveniles.

The brothers’ parents submitted to the trial court a proposed irrevocable trust agreement for the benefit of the juveniles. The plan called for an experienced trust officer of a reputable company to manage the assets until the boys reached adulthood, at which time the assets would be gradually distributed to them. The trust officer expected an annual rate of return of about 7% on the money.

The trial judge wasn’t satisfied. He rejected this plan and directed that the funds be held by the Clerk of Court in interest-bearing accounts until the boys reached the age of majority. The rate of return on funds held that way is just 0.1%.

The Supreme Court today unanimously reverses this decision. It notes that this isn’t a settlement, over which the statutes give the trial courts the right to review and approve such resolutions. This was instead a verdict that was incorporated into a judgment. In that instance, the wrongful-death statutes are specific: awards “shall be paid to the personal representative.” The justices today find that a judge cannot override that specific statute by directing the payment of an award to someone else, even the Clerk.


Habeas corpus

We’ve seen a fair number of cases in recent years that raise ineffective-assistance claims based on legal advice given to resident aliens. Specifically, you can be deported for committing certain serious offenses, and rather than plead guilty to those offenses, many aliens may wish to contest them, to avoid the deportation threat. That’s the scenario in Escamilla v. Superintendent.

Escamilla arrived here as a legal alien in 1999. Four years later, he was arrested and charged with grand larceny and three vehicle-tampering offenses. After being assured by his lawyer that a guilty plea would have no immigration consequences, he agreed to plead guilty to reduced charges and serve a short jail term, with parts of the sentences suspended for three years. All of those suspended terms expired in 2006.

Late in 2013, the feds arrived: The Immigration and Customs Enforcement folks picked him up for deportation proceedings. Alas, the lawyer’s advice was incorrect, because the larceny charge qualifies as one of those serious charges. Escamilla accordingly filed a habeas petition in state court, contending that he received ineffective assistance of counsel back in 2003.

The trial judge dismissed the petition, finding it to be time-barred. The court also ruled that it didn’t have jurisdiction over the case, since Escamilla wasn’t in state custody when he filed his petition.

The justices today affirm that ruling, primarily on the jurisdictional ground. The court notes that habeas is a remedy for persons who complain that they are improperly detained. Escamilla hadn’t been detained by Virginia since 2003. That being said, modern habeas-corpus jurisprudence extends that where a person has not fully served his sentence. In Escamilla’s case, the Commonwealth still had power over him on these charges until 2006, since he was on probation.

That still doesn’t get us to 2013. Escamilla unquestionably was in custody when he filed his petition, but it wasn’t state custody. Today’s opinion notes that state courts can’t review the legality of the federal government’s detention of a person. (That pesky Supremacy Clause.) Accordingly a person in Escamilla’s situation, who has fully served his sentence, only to learn of the immigration consequences later, can’t use state habeas to challenge the original criminal proceeding.

The second habeas case of the day shares many features with the first. The appellant in Fuentes v. Director also pleaded guilty to a larceny charge – she had been caught red-handed after shoplifting, and admitted her guilt to the store’s employee and to a police officer. Only after the trial court accepted her plea and sentenced her did she get a tap on the shoulder from the feds.

In this case, the trial court held an evidentiary hearing. There, Fuentes testifies, as did her defense lawyer. The lawyer told the judge that he had repeatedly informed Fuentes that “he discussed the risk of deportation with her each time they met because that was her principal concern.” He explained to her that a guilty plea would produce “the likelihood of deportation.” The trial court found this testimony to be credible, and refused the petition.

Still, Fuentes appealed, contending that the lawyer had advised her incorrectly. He hadn’t known until the evidentiary hearing that her status was that of a resident alien instead of an illegal alien. The justices find that this part won’t fly because she had told her trial lawyer before pleading that she “had no papers.” It was reasonable for the lawyer to accept this representation.

Fuentes also argued that the lawyer had understated the risk by using the word likelihood. She contended that the offense of which he was charged would automatically make her subject to deportation. But as Justice Mims, the author of today’s unanimous opinion, correctly notes, automatic eligibility for deportation doesn’t equate to automatic deportation. The Attorney General still has discretion whether to order a given alien’s removal.

Because the court finds that the lawyer’s advice didn’t fall below the standard of care, it affirms without reaching the prejudice prong of the Strickland analysis. Reading between the lines, the opinion telegraphs that if the court had reached that prong, the appellant would have lost even more fully.

Criminal law

Bowman v. Commonwealth involves a conviction of construction fraud against a contractor who accepted a $2100 deposit against a $4200 swimming-pool job, and then didn’t deliver. The owner called him and received some excuses and promises; when those didn’t pan out, he called the police.

The gendarmes advised the owner to send the demand letter that’s required in the statute. The owner did that, but it was returned unopened. The owner sent a follow-up letter to a different address. This one found the mark, and the parties spoke by phone. The owner told the contractor to just deliver the part he’d ordered – a pool liner – and he’d get another contractor to install it. Despite even more promises, the contractor never delivered the liner and never refunded the money. That led to this criminal trial.

Justice Kelsey lays out the trial-court proceedings, and at one point, my jaw dropped in astonishment. The prosecution offered the original envelope, still unopened, into evidence, but no one ever opened it to see what the letter actually said. (The owner couldn’t recall what it said.) Nor did the second letter make its way into evidence.

That matters – in fact, it’s case-dispositive – because this criminal statute requires proof that the defendant “fails to return such advance within fifteen days of a request to do so sent by certified mail …” That statute unambiguously requires proof that the owner mailed a request for return of the money in the certified letter.

The problem is that at trial, the owner testified that he really just wanted his pool liner, so he could have another contractor finish the work. The law doesn’t allow an alternative demand – in this case, return of the deposit or provision of the liner – so without proof of what either letter actually said, there’s no proof, beyond a reasonable doubt, that this condition was met here. The court accordingly reverses the conviction and enters final judgment for the contractor.

The appellee in Commonwealth v. Davis needs to make plans to buy a really, really nice Christmas gift for his court reporter. That’s because the reporter won Davis’s freedom.

This case stems from a fatal shooting in Surry County. And it was a particularly violent crime: “the shooter fired ten or more gunshots into an occupied parked car,” killing the occupant. Davis was arrested and charged with three felonies – murder, malicious shooting, and a firearm charge – plus the misdemeanor of reckless handling of a firearm.

The matter proceeded to a hearing in general district court. As is customary, the GDC judge heard the matters all at once, as a preliminary hearing for the felonies and as a trial on the merits for the misdemeanor. But the evidence at that hearing was particularly weak on one key point: the identification of Davis as the shooter. After receiving the evidence, and lawyers’ arguments that focused primarily on the sufficiency of the ID, the judge made the following rulings on the record:

On the issue of probable cause, clearly the Commonwealth has met its burden as to whether a felony was committed or not.

On the issue of whether or not you’ve shown it reasonable to believe Mr. Davis was the one that fired the weapon, I find that you have not met that burden, and I find no probable cause.

On the misdemeanor charge as to whether or not you’ve proven the case beyond a reasonable doubt, I would find that you have not. I’m going to find him not guilty of that charge.

The court accordingly dismissed the misdemeanor count and refused to certify the felony counts. That didn’t stop the prosecutor. Although the misdemeanor count was now finally concluded, the Commonwealth secured direct indictments of Davis on two felonies. (My criminal-law readers know well that the refusal by a GDC judge to certify felony charges doesn’t trigger Double Jeopardy, because you can’t be convicted in a preliminary hearing.)

Davis unsuccessfully sought a dismissal based on the outcome of the misdemeanor charge. A jury found him guilty of murder and attempted murder, but a panel of the Court of Appeals reversed, holding that the acquittal on the misdemeanor charge foreclosed subsequent felony prosecution. A divided en banc CAV upheld the panel decision.

The Supreme Court granted a writ, and by a vote of 6-1, the justices affirm the CAV’s dismissal of the charges. The key to the court’s ruling is the GDC judge’s express rejection, on the record, of the Commonwealth’s proof that Davis was the shooter. If the judge had simply made a vanilla ruling of “not guilty,” then it might still be an open question whether the proof on that point had failed. But in context, the justices find today, it’s clear that the GDC judge acquitted Davis of the misdemeanor because the Commonwealth had failed to prove he fired a gun. That finding, once made, cannot be relitigated in another criminal prosecution.

Justice McClanahan files a short dissent that incorporates the reasoning of the CAV dissent at the en banc stage.

I’ve preached on many occasions to trial lawyers that they absolutely must have a court reporter take down everything that happens in a case. In this appeal, the difference between having a reporter and not having one was sixty years in prison.

Workers’ Compensation

When you read McKellar v. Northrop Grumman Shipbuilding, you’ll come away thinking that the justices felt like adding some exclamation points after the phrase, “Reversed and remanded.” But this being the genteel world of appellate practice and procedure, the opinion ends with a simple period.

McKellar worked as a welder for 42 years at Northrop Grumman. On April 1, 2010, he gave the company a month’s advance notice of his intention to retire. But before the calendar could turn to May, he fell on the job and injured himself seriously. The shipyard’s clinic placed him on restricted duty for the rest of the month.

McKellar’s injuries lingered past his retirement date, so he saw an orthopedic surgeon. After examining him, the good doctor pronounced him totally disabled, placing him on “no-work status.”

McKellar accordingly filed a claim for Workers’ Comp benefits; he sought medical benefits and temporary-total disability compensation. Reading between the lines, the company responded with something like, “What are you, nuts? You’re not disabled; you’re retired.”

After a hearing, a deputy commissioner awarded McKellar both medical benefits and disability, citing a 1992 Industrial Commission decision holding that you aren’t barred from Comp benefits merely because you retire after you’re injured. But the full commission disagreed, at least in part. While McKellar was still entitled to medical benefits, the commission ruled, 2-1, that his “wage loss would have occurred regardless of his compensable injury.” The Court of Appeals agreed with the full commission.

But the justices have the last word, and the shipbuilder isn’t going to like it. The Supreme Court unanimously reverses, holding that the CAV’s decision was “plainly erroneous.” That’s tough talk by appellate standards, and reflects a wholesale rejection of the ruling below instead of a nuanced disagreement.

The court rules today that there are different standards for evaluating total and partial disability claims. A worker who’s partially disabled can – indeed, usually must – find other work, including light duty. His Comp claim is measured by subtracting his present income (or income-earning capacity, if he’s not working) from his previous income.

Totally incapacitated workers are a different breed; at least, their claims are analyzed differently. Those workers don’t have the ability to offset their income loss, and for those who retire, they can’t supplement their retirement income by things like part-time work. For them, benefits are measured by their loss of income-earning capacity.

Justice McClanahan files a concurring opinion that’s just as favorable to the employee, but would use a simpler means of getting to the same destination. The court today remands the case and directs reinstatement of the deputy commissioner’s original award.




[Posted October 19, 2015] As usual, October is proving to be quite busy. I’ve been on the road quite a bit this month, sating attorneys’ autumn cravings for MCLE credits before the October 31 deadline. My father used to insist that attorneys were notorious procrastinators; I’m finding little to contradict his view.

But in the meantime, the appellate globe hasn’t stopped spinning. Here’s a quick look at what’s been happening lately.

Virginia Appellate Summit draws record crowd

The first Virginia Appellate Summit convened in 2008. Those of us who produced it expected attendance of perhaps two dozen, since there just weren’t a lot of appellate lawyers in the state. We were pleasantly surprised when almost 60 showed up. At the second one four years later, we topped 70 attendees.

This year’s summit, held at Troutman Sanders’s office in Richmond, exceeded even that figure, as about 85 attendees gathered for 6½ hours of MCLE credit. The Virginia Bar Association sponsored the program, and the chair of the VBA’s Appellate Practice Section, Frank Friedman, deserves plenty of credit for organizing a wonderful program that was very well-received. We heard from jurists on the Supreme Court and Court of Appeals of Virginia; got insight from insiders on the three appellate courts in Richmond (including the Fourth Circuit); and learned from many of Virginia’s premier appellate advocates about briefwriting, oral advocacy, and even how to seek cert in Washington.

If you missed it, you’ll probably have to wait a while for the next one. But in the meantime, there’s probably still time to sign up for the ABA’s Appellate Summit – on which the Virginia summit is modeled – next month. Here’s a link to the web page for the program, which is absolutely terrific. I hope to see you there.


SCV rulings are trickling in   

You’ll recall my announcement last month, describing the end of formal opinion days in the Supreme Court. From now on, the court will release opinions whenever they’re ready (though normally on Thursdays). So far the court has issued three unpublished orders in cases argued in the September session. There are as yet no published opinions, but I expect some of them to start arriving in the near future.


Boyd Graves Conference addresses appellate procedure

Last Friday and Saturday, the Boyd Graves Conference met in Staunton to consider a batch of proposals for the improvement of our system of civil justice. One such proposal dealt with appeals. The conference voted to recommend the modernization of certain aspects of appellate procedure, starting with the language of appeal and supersedeas bonds. For example, the conference has recommended doing away with the Nineteenth Century introduction, “Know all men by these presents …” and other archaic phrasings, in favor of what you and I consider to be normal English.

The Boyd Graves proposal also clarifies that in setting an amount for a suspending bond, including judgment interest, the trial court should allow one year for resolution of the case in the appellate court. Finally, the conference approved a proposal to provide that challenges to the trial court’s bond decisions can be made by motion in the appellate court. Now, such challenges have to be included in regular appellate briefs (including a petition for appeal and brief in opposition).

These proposals will go to the General Assembly for consideration in the upcoming legislative session. If approved by both chambers and signed by the Governor, they would presumably take effect July 1, 2016.



[Posted September 17, 2015] Today is an important anniversary in legal history: 228 years ago today, the most important document in American history was signed in Philadelphia. (No, not the Declaration; that other one.) It’s also the first of the Supreme Court’s rolling-release opinion days. The court hands down seven published opinions from appeals that were argued in the June session.


The shortest opinion of the day comes from the pen of Justice Kelsey: Wooten v. Bank of America implicates the doctrine of judicial estoppel. The appeal involves a bank’s claim for an equitable lien against real estate. Here’s the timeline:

Husband buys Blackacre in 2002 and gets sole title (this is actually before he became a husband; see the next sentence). In 2005, he marries Wife. In 2007, he borrows money from the bank, giving it a lien against the property by deed of trust. That loan closes on November 15.

About a week later, Husband signs a deed that conveys Blackacre to himself and Wife as tenants by the entireties. He records that on November 26. Ten days later, on December 6, the bank finally gets around to recording the mortgage.

Dirt lawyers will see the problem immediately: since the deed of trust didn’t hit the clerk’s office until after the deed of conveyance, the lien isn’t valid against Wife. After all, she hadn’t signed the mortgage documents. The parties presumably believed that the mortgage had already been recorded, so Wife would take title subject to the “preexisting” lien.

I infer that nothing untoward happened until about 2012, when (1) Husband and Wife entered into divorce proceedings, and (2) payments stopped on the mortgage. When the bank sought to foreclose, it discovered the problem created by the inverted recordations. The bank sued, seeking various forms of equitable relief; the primary object of the suit was to validate the lien as against Wife’s title.

In the divorce, a judge entered a decree that did several things. The most relevant here is that it noted that Blackacre was in foreclosure, so upon its sale, Husband and Wife would split the net proceeds (or the net shortage) equally. The court ordered the parties to cooperate in the sale, and to execute all papers necessary to carry it out. Wife’s lawyer endorsed the decree as “Seen.”

Now we’re back to the suit filed by the bank. The bank’s lawyer took that decree and handed it to the judge in the equitable case, saying that Wife could not now deny that she was obligated on the loan, because of the language in the divorce decree. The judge agreed and held that Wife was barred by judicial estoppel from asserting that the mortgage didn’t bind her.

Today the Supreme Court reverses and remands the case for further proceedings. The justices find that judicial estoppel doesn’t apply in this situation, because Wife never made an affirmative representation that she’s seeking to repudiate. True, the divorce-court judge made “statements” in its order that could be relevant; but merely endorsing an order as “Seen” isn’t an adoption of those statements as one’s own.

No doubt the bank will be dissatisfied with this outcome, but I believe that this ruling is entirely correct; affirming would require taking the doctrine of judicial estoppel in a direction it’s never taken before.

One last point: today’s opinion contains a very useful discussion of the difference between judicial estoppel and the related concept of approbating and reprobating. If you’re handling litigation where you’re contending that a party has changed its position, this short opinion is required reading, and you’ll probably wind up citing it.


Limitation of actions

Heads up; there’s a major-league trap for the unwary in Allstate Property & Casualty Ins. Co. v. Ploutis. This is a suit by a homeowner to recover on a fire-insurance policy for damages to her home.

The policy provided that any action against the company had to be brought within two years of the date of loss. The homeowner did that, suing two days before that deadline. She later nonsuited and refiled just short of six months later.

So, we’re okay, right?

Well, that’s the issue in the case. The insurer sought to dismiss the case based on the fact that the second suit had been filed more than two years after the loss. The trial court disagreed, but today, the Supreme Court reverses and enters final judgment for Allstate.

How can this be? The nonsuit statute specifically tolls the statute of limitations, and this homeowner did everything by the book – or so you’d think. But the tolling statute tolls statutes of limitations. This is a contract of limitations. The language isn’t provided by statute, and parties are free to contract for any provision they wish; they don’t thereby import tolling statutes.

The homeowner tried one other tack, arguing that insurance law mandates certain provisions in fire-insurance policies. One of those provisions is a two-year period for filing claims, so arguably this is a statutorily imposed limitation period. The justices disagree, finding that the fact that contract provisions are mandated (the insurance company can use alternate language, but it has to be at least as favorable to the insured as the statute) doesn’t convert it from the realm of contract.

The trial judge had ruled, perhaps as an alternate ground, that the refiled action was just a continuation of the nonsuited one. But under well-established caselaw, that isn’t true; a refiled action is entirely separate from the original one.

The trap for the unwary here should be blindingly obvious now: in actions that are governed by contracts, you cannot nonsuit and expect to be able to refile after the expiration of the original limitation period.


Freedom of Information

I have a dim sense of a tide turning in Virginia’s FOIA jurisprudence. Going back several years, the Supreme Court’s rulings, as a whole, came down firmly on the side of those who advocated openness in government. When a governmental agency that denied access to records, a citizen who litigated the withholding enjoyed a decided advantage in court.

That advantage remains, in the form of the liberal interpretation that courts are supposed to give to FOIA, including narrow construction of exemptions. And yet, earlier this year, the court dealt open-government forces a blow in Fitzgerald v. Loudoun County Sheriff, holding that a record of a criminal investigation of a death doesn’t lose its exempt status after the investigation reveals that the death was a suicide. Today, the justices again side with a governmental entity.

Today’s decision is Department of Corrections v. Surovell. The appellee is a state Delegate who sought various records relating to Virginia’s execution chamber outside Jarratt, in Greensville County. The department resisted, noting among other things that the records might endanger the security of the prison, its inmates, and its staff.

A trial judge – and I’ll go ahead and say this now: the trial judge was Jane Roush of Fairfax, who now sits on the Supreme Court – directed the department to produce certain categories of records, and redacted excerpts of others. For our purposes, the categories aren’t crucial; what matters for us is the procedure that the justices use in reversing.

The relevant statute exempts documents relating to public safety “to the extent such disclosure would jeopardize the security of any governmental facility,” etc. Citing with approval caselaw from elsewhere, the Supreme Court rules that a trial court has to accord substantial weight to the views of the administrative officials in charge of the prison, particularly in their assessment of the effect of disclosure on security.

At the circuit-court hearing, a prison official had indeed testified about the potential for disruption, either of prison operation or the execution itself, that disclosure would produce. The Supreme Court notes that the trial judge hadn’t stated what level of deference she gave that testimony, so it remands for the trial court to reevaluate the case using the newly announced standard.

The justices next reverse on an issue that might surprise you: the court holds that there’s no authority in this section of FOIA to order redaction. In essence, if any portion of a document is exempt, the government can withhold the whole thing. That sound you just heard was a collective gasp from open-government advocates.

This aspect of the ruling draws a partial dissent; Justice Mims, writing for Justice Goodwyn, notes that another FOIA statute requires a custodian to identify when a part of requested records is exempt, and to produce the non-exempt portion. He contends that the particular exemption that relates to prison documents doesn’t override that basic obligation.

Of course, when the case is reconsidered on remand, a new judge will have to undertake the analysis, since former Judge Roush has other duties now. That being said, the Supreme Court’s opinion today telegraphs pretty well, at least to me, how that hearing is going to come out.


Res judicata

Just as the Wooten decision, discussed above, provides a very helpful explanation of the doctrine of judicial estoppel, today’s ruling in Lee v. Spoden will serve as an especially valuable discussion of the various forms of res judicata.

The factual and procedural history is a little convoluted, but the basics are these: Lee founded a company to provide consulting services to health-care professionals. A year later, he married Spoden, and he gave his new wife a 50% interest in the company. About a decade later, the business bought property in Florida.

Alas; love faded, and five years after that purchase, the wife sued for divorce. The parties reached a fairly comprehensive written agreement that provided several relevant terms. The wife surrendered her 50% share, but would become a salaried employee of the company. The company continued to own the Florida property, and when it sold, the wife would get the net proceeds. This agreement made its way into the final divorce decree.

Several years later, the now ex-wife sued her ex-husband and the company for breach of contract and of fiduciary duty, claiming that the husband had blown the deal and seeking various forms of relief. At a hearing on the defendants’ demurrer, the trial court noted that the wife’s real remedy wasn’t to file a suit for damages; it was to get a show-cause order, enforcing the divorce decree.

Wife was happy to comply; she amended her complaint and separately filed a show-cause petition. The court tried the show-cause proceeding first, and after hearing evidence, ruled in favor of the husband. With a final order in hand, the company (now 100% owned by the husband) sold the Florida property.

Right after that sale, the defendants showed the final order in the contempt case to the judge in the breach-of-contract action, and asked for summary judgment based on res judicata. No dice, the judge ruled; we’re trying the contract case next. At that trial, the court granted the wife’s motion to exclude the contempt order, on the grounds that it was prejudicial to the husband.

The final legal issue is that the wife moved, at the close of all the evidence, to amend her complaint. Her initial pleading hadn’t listed an amount sued for; she sought to make that roughly $250,000. Over the defendants’ objection, the court ruled that he didn’t think she needed to amend; but in the alternative, he granted her motion.

A jury gave the wife almost $139,000; the defendants appealed. On appeal, the results are technically mixed, but don’t be fooled; the husband and his company walk away with all the really valuable rulings today.

Justice Powell’s opinion for a divided court provides a terrific explanation of the contours of res-judicata law in Virginia. She explains the two types of claim preclusion (bar, when a defendant wins in prior litigation; and merger, when a plaintiff wins) and the two types of issue preclusion (direct estoppel and collateral estoppel) and how they apply in this case; the opinion will serve as a lasting primer for those of you with res-judicata issues of your own.

The court rules that when the husband won in the contempt proceeding, that win necessarily decided in his favor the factual issues (except one) in the contract suit. The court notes that a contempt judgment can serve as the basis for res judicata’s preclusive effect; that the husband and his company were in privity; and that the two cases involved the same conduct, transaction, or occurrence. Hence the husband was entitled to final judgment on those issues.

I mentioned just now that one issue wasn’t barred: wife asserted that the husband and his company had sold the Florida property in bad faith. (Since that sale occurred after the contempt proceeding ended, it obviously couldn’t have been decided in that earlier judgment.) The justices send this claim back for further proceedings, though they caution that the wife will still be still bound by the factual determinations in the contempt case.

The Supreme Court next takes up the issue of the exclusion of the contempt judgment as evidence in the contract trial. Observing that all evidence against you is likely to be somewhat damaging, the justices point out that Virginia’s rules only bar evidence that the court finds to be unfairly or unduly prejudicial to the opponent. The contempt judgment was undeniably the truth, and it was the heart of the husband’s defense; he actually waited until a court told him he was allowed to sell the house before he closed. The justices rule that this evidence should have been admitted, and it presumably will be on remand.

Finally, the court addresses the ad damnum issue, noting that it, too, will foreseeably arise again on remand. This is the one issue on which the wife wins; the court finds that while the trial court’s ruling on the necessity for amendment is suspect, its alternative ruling, actually granting leave, was unappealed. That ruling is therefore the law of the case, so the judgment that was in excess of a $0 ad damnum, as originally pleaded, is allowable.

Of course, that favorable judgment has just been vacated, so this is only a technical victory. In addition, please, please do not take this as an endorsement by the justices of the practice of filing a suit without a damages clause. The Rules of Court now require such a clause, and this issue only comes out this way because of the failure to appeal that ruling. Nor should you count on this case as precedent to support the amendment of the ad damnum at the conclusion of all the evidence. The defendant is entitled to a continuance if you do that, assuming the judge rules in your favor on the relief requested. The better practice, of course, is to move to amend early, as soon as you perceive the need.



One of today’s more enjoyable reads is REVI, LLC v. Chicago Title Ins. Co. It is, predictably, a claim on a title-insurance policy. REVI is a company that bought five acres of land in Fairfax County in 2000 after getting a clean title report and an owner’s policy from Chicago Title. When the company went to develop the property, it got a rude shock in the form of a set of restrictions on the land, imposed by a federal condemnation back in the 1960s.

Well, this is one of the reasons you buy owner’s title insurance. The company called Chicago Title. The insurer negotiated with the feds and obtained a limited release of the restrictions. Reading between the lines, something like the following exchange then took place:

INSURER: This is the best deal we could make with Uncle Sam. They’ve agreed to waive several of the restrictions, so you can still use the property.

OWNER: But not all of the restrictions? What if the remaining restrictions impair the value of the land? We paid good money for that property, and you guaranteed us that we’d have good title to it.

INSURER: Relax. If we determine that your land has suffered a diminution in value because of the remaining restrictions, we’ll indemnify you for any losses.

OWNER: Okay; I guess that should work, as long as we’ve got your word. [Signs agreement and hands it back to insurer.]

INSURER: Thanks. And, by the way, we’ve determined that there is no diminution in value, so we ain’t paying you anything.

OWNER: [Four-letter Anglo-Saxon words deleted]

Of course, the owner later decided that the property was indeed diminished in value – otherwise we wouldn’t have a lawsuit to talk about here – and it demanded money, which the insurer refused to pay. That led to court, where the owner sued the insurer for damage and for statutory attorneys’ fees for a bad-faith denial.

The insurer asked the court to bifurcate the trial, with a jury to decide the primary claim and the trial judge to handle the bad-faith part. The judge agreed to bifurcate, but held that the jury would decide both aspects of the case. The jury hit the insurer for $1.2 million on the main claim and $440,000 in attorneys’ fees for a bad-faith refusal to pay.

But before that verdict could be reduced to judgment, the insurer asked the judge (a different judge tried the case than the one who had ordered the limited bifurcation) to rethink the bifurcation ruling. That motion succeeded; the judge took away the bad-faith verdict and entered judgment, based on his own view of the evidence, in favor of the insurer on that part of the case.

The owner took the case to Richmond, where the justices granted a writ. Today, a majority of the court affirms the decision to set aside the bad-faith verdict. The heart of the issue is that the statute says that “the court” determines if there’s a bad-faith denial, and if so, “the court” can award attorneys’ fees. Does that phrase refer to the judge only, or can a jury decide? If the latter, then the verdict can be reinstated.

There are three opinions in today’s batch for this case. Justice Mims writes for the chief justice plus Justices Goodwyn, Powell, and Millette (who heard this case before he retired, and is now listed as a senior justice). The majority explores the legislative history of the statute and concludes that the phrase the court in this context means the trial judge, and doesn’t permit jury resolution of the bad-faith issue. Back when insurance law resided in Title 38.1, the law provided that “the trial judge” would make those calls. That’s unambiguous, of course; but when the legislature recodified that title, the new statute used the term the court.

The majority concludes that since this was a recodification instead of an ordinary amendment, the usual rule (a change in language implies a substantive change in the law) doesn’t apply. It finds support in legislative history for the premise that this change was not intended to alter the previous procedure.

Justice McClanahan files a concurrence, disdaining the legislative-history approach in favor of a contextual view:

In a vacuum, the term “court” can be understood to include both judge and jury. But in the context of a statute providing for a finding or determination to be made by “the court,” the General Assembly has consistently used the term “court” to refer to the trial judge.

This has the advantage of avoiding the messy approach of heading straight for the legislative history when attempting to understand a statute. And that brings us to Justice Kelsey’s dissent.

Trust me, when it comes to legal history, no one, no one, is going to “out-history” Justice Kelsey. In the twelve pages of his dissent, you’ll bump elbows with Blackstone and Coke and Black (the original editor of Black’s Law Dictionary). You’ll meet Justice James Wilson, a signer of that Declaration that I mentioned a while back, who went on to sit in the inaugural session of the Supreme Court of the United States. You’ll see a dizzying array of statutes in which the General Assembly has taken care to spell out when it means to exclude the jury from “the court.”

All of this comes against a powerful backdrop: Justice Kelsey is an extraordinarily strong advocate of jury resolution of factual disputes. He’s written extensively on the topic, and if you read his dissent in this case, you’ll see how ardently he believes in the jury as a bedrock component of our legal culture.

In that sense, it’s hard to argue with him. After all, the Constitution of Virginia has that wonderful language (Art. I, §11) praising trial by jury and urging that it be “held sacred.” Justice Kelsey argues that when we have a genuine dispute about what a statute means, doesn’t it make more sense to turn for guidance to our primary legal document, instead of some often-fuzzy legislative history?

In the end, statutory interpretation comes down to a simple question: what do we think the legislature meant? If it’s abundantly clear from the words themselves, then there’s no interpretation required; you just apply the plain language. In this context, Justice Kelsey chides the majority for finding that there’s a “commonly accepted definition” of the phrase the court, saying that if that were the case, the court would just “consult our favored dictionary and be done with it.”

One last point: I’ve reported in years past that the Supreme Court of Virginia has been firmly committed to jury resolution of factual disputes. In recent years, I’ve noticed some slippage in that commitment, as the court has, at least in my view, accorded less of that deference in a noticeable number of decisions. Justice Kelsey’s dissent here, and his writings elsewhere, indicate that he is now the court’s strongest trial-by-jury advocate. Personally, I regard that as a good sign.

Read this decision, even if you don’t practice in the field of insurance law. It’s entertaining and educational, and gives you a good picture of how various justices go about the task of determining what statutes mean.

Bratton v. Selective Ins. Co. presents a tragic story with a complex legal dispute. It’s a coverage question, and the justices differ sharply on the answer.

The case arose from a fatal accident involving a road construction worker. The decedent was operating a dump truck that was helping to spread hot asphalt onto the side of a roadway. He periodically got out of the cab to check for spilled asphalt, which could harden on the roadway if not cleaned up immediately. At one point, he got out and walked about nine feet toward the rear of the truck. Two drunk drivers then collided with a front-end-loader near the truck, causing that equipment to slam into him, crushing him against the dump truck. He died from his injuries.

The issue in this litigation is whether the estate was entitled to tap the coverage that applied to the dump truck and to a pickup truck that was parked about 200 feet away, with its safety flashers on as a warning to traffic. The dispositive issue is whether the decedent was “occupying” either or both vehicles. In the language of the policy, that word means “in, upon, using, getting in, on, out of or off.”

In declaratory-judgment litigation to determine if coverage existed, a trial judge heard evidence and ruled in favor of the insurance companies. The court made several specific factual findings that are set out on pages 31-32 of the slip opinion. In brief, the court ruled that the decedent had already gotten out of the dump truck and walked a short distance, so he didn’t meet the definition of occupying. As for the pickup truck, it belonged to another contracting company, and there was no evidence that the decedent even knew it was there.

Today’s decision sharply divides the justices. Justice Millette writes the opinion of the court, and he’s joined by the chief justice, Justice Mims, and Senior Justice Lacy. This is the longest opinion of the day, so I won’t go into the level of detail that the court does, but the court’s majority votes to reverse, holding that the decedent was “getting out of” the dump truck and was “using” the pickup truck at the time of the collision. That means that the estate can recover on the UIM provisions of both trucks’ insurance policies.

Coverage gurus will jump all over the legal analysis of this case, since I perceive that it breaks some new ground in Virginia law. Most important, the court adopts a test – perhaps it would be more accurate for me to call it a method of analysis – that considers:

the totality of the circumstances – including the individual’s proximity to the vehicle, the duration of time during which the individual acts, the particular actions taken, the situation in which the individual is acting, the motivation for the individual’s actions if any can be ascertained, and the purpose of the policy’s coverage – to determine whether the individual was “getting out of” the vehicle. And if those circumstances establish that the individual was no longer “vehicle-oriented,” then the act of “getting out of” the vehicle was complete.

Now you see why I’m not willing to call it a test. This analysis will necessarily be subjective. It can also lead to some incongruous results, such as the one here, where a person can get out of a truck and walk away, while still being in the process of getting out.

Justice Goodwyn files a short partial dissent, agreeing with the majority’s analysis about the dump truck while disagreeing on the pickup. But the real fireworks are in Justice Kelsey’s lengthy dissent, where he’s joined by Justice McClanahan.

The dissent begins with the age-old proposition that bad facts make bad law. (Actually, the original formulation of this adage was, “Great cases like hard cases make bad law,” from an opinion by Oliver Wendell Holmes. But it’s been expressed as “bad cases” often enough that no one will quibble.) What follows is a detailed analysis of the Supreme Court’s prior caselaw, indicating that the court is now departing from a wealth of precedent.

The trial judge made several factual findings, and based his ruling on those. The dissent notes that the majority effectively reweighs the evidence in the estate’s favor, thereby violating a venerable rule of appellate review. The dissent also cites several previous cases that would, you would think, lead to an affirmance on this record. But it’s all for naught, as the insurer does everything right in the case except get to four votes.

I’ll add one last point, and it’s to return to that Holmes quotation I mentioned just above. The full passage, from Northern Securities Co. v. US, 193 US 197, 400-01 (1904) is worth quoting, if only for the light it sheds on this case and others like it:

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping  the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what was previously clear seem doubtful, and before which even well settled principles of law will bend.

You’ll have to forgive Justice Holmes’s use of which in place of that on a couple of occasions there — you can probably put that down to changing patterns of American English usage in the intervening century — but this passage and the sentiment behind it underlie the whole of Justice Kelsey’s argument.


Criminal law

In yet another 4-3 decision, the court arguably plows some new legal ground in Evans v. Commonwealth. It’s a Fourth Amendment case involving entry into a home without a warrant.

The facts are fairly straightforward, and are undisputed. Three police officers, on bike patrol in a Norfolk neighborhood, noticed a strong odor of marijuana coming from the second-floor window of an apartment. The knocked on the door of the apartment and a woman answered. The officers said they were investigating the odor, and asked how many apartments were in the building. The woman said it was just her apartment. Then she did a remarkable thing: she closed the door.

Okay, maybe that’s not quite so unusual, since citizens have a right to refuse entry to police officers. An officer knocked again, and the woman answered again. He told her they could smell marijuana coming from the apartment. She answered, glibly enough, “Ain’t nobody smoking weed in here.” She closed the door again, but not before the officer smelled the same odor again, this time through the doorway.

One more time, the officers knocked. This time, it took five minutes for the woman to answer, during which time the officers heard movement inside. When the woman opened the door this time, she saw the officers and tried immediately to close it, but one of the officers stopped her, placing his hand and foot against the door to prop it open. He told her, “You can’t close the door on us,” and that he and his colleagues were coming inside to investigate.

They did indeed enter, and when they got to the second floor, they found Evans, who is the woman’s son, coming out of a bedroom. He rapidly gained a pair of handcuffs. After obtaining the consent of the woman and the son to search the place, the officers found drugs, guns, ammunition, and more currency than I usually keep around the house.

Do you remember the part where the police had a warrant? No? Well, you’re on to something. Evans moved to suppress the warrantless entry and search, but the trial court denied that motion. Evans entered a conditional guilty plea and took the appellate highway.

He got no help at the first stop on that road, as the Court of Appeals refused his petition. But at least one of the justices found something interesting in the case.

Today a bare majority votes to affirm the conviction. The majority notes that police can enter a home without a warrant as long as exigent circumstances exist, and the court finds that exigency here in two circumstances:

first, the cloud of heavy and extremely strong marijuana odors, some of which blew through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge of Evans’ mother that the investigating officers at her doorway smelled the marijuana, which would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask others to do so) soon after she closed the door. By themselves, these facts establish exigent circumstances based upon Grissett, Cephas, and a host of analogous cases.

Not that that’s all; the court adds a belt to the suspenders in its next paragraph:

Those facts, while sufficient in themselves, are not the only facts in this case demonstrating exigent circumstances prior to the officers’ entry into the apartment. After one of the officers explained to Evans’ mother that they smelled marijuana coming from the apartment window (even as the odor continued to pour through the doorway), she slammed the door in his face. She was noticeably shaking and nervous as she did so.

The court also cites the woman’s Ain’t-nobody remark to top off the sundae, finding that, “The Lady doth protest too much.”

Now, I’m never against inserting a little literature into legal opinions from time to time, though my taste runs more to Mark Twain and Alexandre Dumas. In any event, this line from Hamlet illustrates nicely the majority’s point that a hasty denial in circumstances like this can indicate deception. And that adds heft to the conclusion that the officers had reason to suspect that criminal activity was afoot, and that evidence was about to be destroyed, two of the classic components of exigent-circumstances analysis.

But hold on; there’s a powerful dissent by Justice Mims, joined by Justices Goodwyn and Millette. There’s no Shakespeare in it, but the dissent offers sound reasons why those who value civil liberties should shudder at this holding.

I’m a big fan of stating your argument succinctly and as forcefully as you can, remaining faithful to the record. I try to do that in each brief I file, and I think it works well. Rather than subjecting you to my summary of the dissent’s key contention, I’ll give you Justice Mims’s excellent formulation of the problem. This is the introductory sentence of his dissent:

Today, the majority permits the government to dispense with the constitutional requirement to obtain a warrant before entering a private residence if law enforcement officers have probable cause to suspect criminal activity, make contact with an occupant, and announce their suspicions before entering.

How’s that grab you? At least at a visceral level, most of us probably expect more than that before the police can enter our homes. But according to the dissent, whenever the police suspect criminal activity inside a home, they can create their own exigent circumstances just by doing what cops are supposed to do: knock and announce. That (as the dissent sees today’s majority holding) leads to the conclusion that evidence of wrongdoing is likely to be destroyed simply because the inhabitants know that the police are outside.

The dissent understandably leans heavily on the Big Supremes’ recent decision in Kentucky v. King from 2011. In that case, the Court held that the mere fact that the occupant knows that the gendarmes are outside doesn’t create an exigency.

There’s plenty more where that came from. I found both the majority and the dissent to be clearly written and engaging to read; I think you will, too. But something tells me that Evans’s lawyers might be getting out the map of I-95 north from Richmond, so we may not have heard the last of this yet.




[Posted September 16, 2015] Do you need MCLE credit? Want some top-drawer training in appellate advocacy? Rejoice, for I bear good news that will bring great joy to the appellate community.

On September 30 in Richmond, the third Virginia Appellate Summit will convene at Troutman Sanders’s office on Brown’s Island in Richmond. The Virginia Bar Association graciously provides logistical support, and the price simply blows away the competition: $125 for 6½ MCLE hours of high-level appellate training. (It’s $175 if you’re not a member of the VBA’s Appellate Practice Section. Membership in that section is just $25. Do the math and join the section.) You’ll hang out for a full day with the state’s top appellate lawyers and a host of appellate jurists from the Supreme Court and Court of Appeals of Virginia and the Fourth Circuit.

Here’s a link to the VBA webpage that describes the event; you can sign up online here.

I’ve reported before about the ABA’s Appellate Summit, which every third year or so returns to Washington, DC. This is one of those years; the summit will take place from November 12 through 15 at the Omni Shoreham Hotel. There’s plenty to do the whole weekend, and you can book an entire year’s MCLE requirement, plus grab a few hours to carry over to 2017. It’s decidedly pricier at $695 (there are discounts for judges, appellate staff attorneys, professors, military lawyers, law students, and ABA members), but you get plenty for that price.

What, you doubt me? How about a Thursday night reception at the Supreme Court of the United States? With one or more of the Robes mingling in the crowd? That reception is included in the price of the summit. I got to meet Justice Thomas a few years ago, and a few years ago I heard a private chat to the assembly from Chief Justice Rehnquist. My favorite social component is the Friday night dine-around, where you pick a restaurant, sign up, and then find out when you get there who you’ll meet.

This program is attended by appellate jurists and lawyers from around the nation. The last time it was in Washington, I was astonished to learn that other than some military lawyers attached to the Pentagon, I was the only Virginia lawyer at the program. Let’s make sure that doesn’t happen again; you can get details and sign up here.

I’ll be at both programs, each of which gets my outstanding rating for program quality. I hope to see plenty of you there.




[Posted September 11, 2015] The news has been racing around the appellate bar today. At first I couldn’t imagine its being true; but I’ve checked on the Supreme Court’s website, and there it is: Opinion Day as we know it is no more at Ninth and Franklin.

For generations – at least as long as I’ve been practicing law, and probably many decades before that – the Supreme Court of Virginia has handed down its published opinions on the final day of the next session. For example, the cases argued in the April session are decided by published opinion on the last day of the June session. As I noted in a recent post here, there’s a nice ceremonial touch where each justice, in turn, announces the result of a given appeal and then literally hands the slip opinion down to the Clerk of Court, who stands below in the well of the court.

No more. Effective immediately, the court will no longer “hand down” decisions on a specific day. Starting with next week’s opinion da- I mean, next Thursday, the court will post published opinions on its website, on a rolling basis. The court won’t hold them for simultaneous release, as it’s always done before; whenever the opinion is ready, the court will post it, usually on Thursdays.

In making this change, the Supreme Court has adopted the practice of the Court of Appeals of Virginia, which posts its opinions, published and unpublished, each Tuesday, without actually “handing” anything down.

As Donald Trump would say, “This is huge.”

I’ll take a moment here to mention how this change will affect you. If you’ve argued a merits case, in the past you always knew that the opinion would likely come down on a specific day, seven weeks thence. It’s always been possible for it to be sooner (in the case of unpubs, which can arrive any Friday) or later (if the court passes the case to the next session). But in the majority of appeals, you could look to a specific date for a resolution.

Now, there’s no specific time frame for a ruling. It could come in a week or in ten; there’s no way to predict it. That’s an additional element of uncertainty. It won’t really affect the way you handle your appeals, but it’ll affect the way in which you keep your clients informed.

There’s one group for which this change may bring welcome relief: those attorneys who argue merits cases in the June and November sessions. Previously, those two groups had to wait longer than anyone else for a resolution of their cases. That’s because the next session after the November docket is in mid-January, a delay of about ten weeks; while the next session after June is a brutal 3 1/2 months later, in mid-September. Presumably those litigants will get a decision earlier than they would have under the old system, perhaps reasonably close to the old seven-week system.

The change may also help the justices. A rigid seven-week turnaround can be a bit tight with a complex case, or one where someone’s crafting a lengthy dissent. In the past, if the case needed more work, the court had two choices: rush the opinion to the Clerk, or else pass it and delay the ruling by another seven weeks or more. Now, if it takes nine weeks for the justices to polish their opinions, they can do that without any pressure.

In addition, this may make the Clerk’s life (and those of her staff) easier. It takes a considerable effort to coordinate the simultaneous release of 20 opinions – not that we’ve seen 20 in a day in a while – and this process of rolling release should make the release day more manageable.

This change will have one massive impact, and that’s on me. For over ten years now, I’ve planned my schedule carefully, blocking out the entire day on opinion day, and expecting to spend the whole day (and usually part of the next day) reading the new decisions and posting analysis. No one could interrupt me on opinion day. I accepted no appointments. I shut off my office phone; even The Boss had to call me on my cell so she could tell me what to pick up at the grocery store on the way home.

As it says above, no more. Instead of six predictable opinion days a year, now I have to plan for fifty. Not that it’s all bad; on some Thursdays I may only have one new opinion to cover. That means I can get the full day’s analysis posted here in an hour or two. And of course, some days there’ll be none.

Even so, there will be logistical difficulties. It’s easy to plan your schedule around six days a year, but now I have to block out every Thursday morning. Perhaps some of the justices are chuckling at my new predicament.

This is a good occasion to remind you of a new feature of this newly updated website. If you’d like a quick note from me whenever I’ve posted a new essay or case analysis, I can make that easy for you. Near the upper-right corner of each page on this site, you’ll find a link (in red letter) that’ll allow you to sign up for that. I’ll keep the sign-up list entirely private.

You’ll have to excuse me now; I have some “huge” changes to make in my calendar.




[Posted September 10, 2015] We’re overdue for a quick look at some of the meaningful takeaways from the appellate courts’ 2014 statistics.

Supreme Court of Virginia

First and foremost, business is off – way off. In calendar 2014, SCV Clerk Trish Harrington opened just 1,918 new files. If you go back to 2009, that figure was 2,639, so the drop-off in filings is more than 27%. In just five years! If you go back just a little further, to around the turn of the millennium, new filings hovered around 3,000 per year for several years in a row.

There are several potential explanations for the crash in new appeals, some more plausible than others. For example, it’s theoretically possible that trial judges have stopped making mistakes; but as long as humans occupy the Commonwealth’s benches, that’s not a very likely reason. Actually, if trial judges ever did become perfect, I’d be out of a job.

The more likely explanation is the economy. Appealing isn’t cheap, and a litigant who loses, say, a $75,000 judgment might not be able to find a capable appellate lawyer who’ll take the matter on for a fee that makes economic sense. Economic factors might also prompt more potential appellants to mediate or otherwise settle their cases, thus further reducing the number of appeals. (Mediation is to appellate lawyers as a lighted match is to the scarecrow in The Wizard of Oz; if the parties settle, no one appeals.)

The number of writs granted is also down, but much more sharply than the rate of new filings. From the mid-1990s through about 2010, the court granted, on average, about 200 writs per year. Then the writ market crashed: 152 writs in 2011, 123 in 2012, 109 in 2013, and 120 in 2014.

These numbers are down in a statistically significant way, and the drop in the court’s incoming business doesn’t explain the plunge. For that explanation, you have to look to increased attention paid by the court to procedural defects, and probably to increased communication before writ panels convene. Your chances of getting a writ in a civil case are now about 15%, down from 21% a few years ago.

If you’re looking for an increasing indicator, there is one, but you aren’t going to like it: procedural dismissals in civil cases have skyrocketed in the past several years. In the mid-1990s, when the court first started keeping track of such things, the court dunked about one civil appeal in nine or ten for procedural defaults. From 2009 through 2014, the average has been 23.6%, an appalling figure that reflects poorly on the lawyers who file these appeals.

Incidentally, their criminal-law cousins are doing much better; the procedural-dismissal rate in those appeals has remained around 7% for a long time. Of course, that good news is offset by the fact that the Supreme Court grants almost no criminal writs – just 3% in 2014, which is fairly typical for the previous several years.

One last statistic: Published opinions are becoming scarce. From 1995 through 2004, for instance, the court issued an average of 144 published opinions per year – right at 24 per court session. From 2010 through 2014, the court handed down more than 100 published opinions only once, in 2012. Last year, there were just 74. That number, too, is much lower than the drop of incoming appeals would indicate alone. The justices are writing far fewer opinions for publication.

Court of Appeals of Virginia

The first thing to remember is that while the CAV’s docket includes four case types – criminal/traffic, domestic relations, admin law, and Workers’ Comp – criminal filings dominate the docket. Almost three of every four new filings in that court are criminal in nature.

Business is down in the Court of Appeals, too, though not nearly as dramatically as in the SCV. From 2010 through 2014, incoming cases fell from 2,721 to 2,350, a drop of 13.6%.

The CAV can decide an appeal by published or unpublished opinion. In the past several years, there have been about four or five unpubs for each one that’s published. That matters because unpubs are generally of little or no value as precedent. Last year there were 76 published opinions, an average of seven per judge, and 327 unpubs, about 30 per judge. By way of comparison, last year the Supreme Court handed down 10.5 published opinions and 8 unpublished orders per justice (not counting the senior justices).

For quite a while now, the writ-granted rate in criminal and traffic appeals has hovered around 10% of such petitions. If you represent a criminal appellant, that gives him a sense of the likelihood of just getting a writ and moving on to the merits stage.

Fourth Circuit

Unlike in state appellate courts, business has been reasonably steady in the Fourth Circuit, with new filings dropping just 1.9% from 2010 to 2014. (Note that the federal courts’ statistics run from October 1 through September 30, while the state courts are on a calendar-year basis. For statistical purposes, the difference is essentially irrelevant.) The court takes in about 400 new filings per month.

The caseload has, however, shifted around somewhat. Criminal appeals fell by almost 30% and private civil filings were down almost 28%. Prisoner filings increased sharply over the same period.

One interesting statistic that the federal courts keep but the state courts do not is the median time between two given events in the appellate system. We’ll focus on the time between the filing of the notice of appeal and the final appellate order, in cases decided on the merits. In prisoner cases, that time was just 4.7 months in 2014. Criminal appeals took just under 8 months, and civil appeals averaged just 6 months.

This means that appeals will make their way through the federal circuit courts significantly faster than a comparable appeal in state court. (Right now, the typical span between notice of appeal and final appellate decision in the SCV is roughly one year.) That, of course, is due to the fact that in the federal court, all appeals are of-right, while the Supreme Court of Virginia operates on a writ system; it takes most appellants six to eight months just to get a writ.

In the Fourth Circuit, it takes about two months to get an opinion after the date of oral argument. That’s roughly the same as in the state courts; the SCV normally announces its ruling seven weeks after oral argument, and the CAV generally gets its opinions out within about 60 days.

In one significant respect, the Fourth is the stingiest federal circuit in the nation: The court grants oral argument just 13.1% of the time, deciding the other 86.9% of appeals on the briefs alone.

Here’s one last statistic that will affect your clients’ decisions whether to appeal or not: the reversal rate. As you might expect, criminal appellants fared poorly, securing reversals just 5.9% of the time in 2014. Prisoner petitions also got meager results for appellants, with only a 4.5% reversal rate. Private civil appeals won reversals only 7.1% of the time. In all, the court affirmed 94.4% of all appeals presented to it. Only the Eighth Circuit (95.1% affirmed) was more deferential to district courts. The nationwide average, for comparison, is an 8.3% reversal rate. The Fourth Circuit is a great place to be an appellee.





[Posted September 5, 2015] In a couple of my previous posts about the impasse over the seventh seat on the Supreme Court of Virginia, I’ve discussed the problems that might arise if the Governor reappoints Justice Roush (as looks overwhelmingly likely) and that appointment is later invalidated (which is a very different matter). Specifically, what happens to those decisions that the court hands down while she’s sitting in, say, November or January? Are they valid? Are they invalid if she joined a 4-3 majority? How do litigants challenge the judgments after the fact?

When I composed those earlier essays, I had no idea that the Commonwealth has actually plowed this ground before. It was, in my meek defense, a very long time ago, and the doctrine hasn’t exactly popped up in many (or maybe any) recent decisions. Oh, well; as the saying goes, a good lawyer doesn’t know everything, but he knows how to find anything. Here’s the story, and how it resolves that troubling set of possible problems.

After the end of the Civil War, Virginia was under military administration as part of Reconstruction. That period ended when the Commonwealth, having ratified the 13th and 14th Amendments, was readmitted into the Union on January 26, 1870.

Before that date, public officials here, from Commissioners of the Revenue to sheriffs and all the way to the highest court in the state, were appointed by the military governor, first Francis Pierpont and then Henry Wells. On the date of readmission, Governor Wells’s office terminated and he no longer exercised any power.

But what about his appointees? If the military was no longer in control, weren’t the military appointees out of office? And if so, who, if anyone, was your local sheriff, or tax collector, or judge?

In a series of three decisions, the Supreme Court of Appeals of Virginia – that was its name back then – resolved that question and more. For our purposes the important issue was this: when a judge hands down rulings, and the judge is later found not to have been properly in office, what’s the status of those rulings?

Technically, the answer is, “It depends,” but fortunately for us, there’s enough guidance in the decisions that we can now answer definitively the questions posed in the first paragraph of this essay.

The decisions explain that a judge can hold office in one of three ways: de jure, de facto, or as a usurper. A judge de jure is perfectly legitimate. One who is only de facto has a colorable claim – he’s been elected or appointed – though there may be some question as to the legitimacy of that election or appointment. A usurper has no right to the office; he’s essentially a squatter.

The court’s ultimate rulings on our problem correspond to how the judge holds office. If she’s de jure, then no one can challenge the legitimacy of her occupancy of the office. If she’s a usurper, her rulings are essentially void (or perhaps voidable; but the difference isn’t important in this context). The nuance falls in between. For de facto judges,

upon the unquestioned and uniform authority of the decisions of the English and American courts, their official acts must be held to be as valid and binding, so far as the public and the rights of third parties are concerned, as if their title to the office had been unquestioned and perfect.

Griffin’s Ex’or v. Cunningham, 20 Gratt. (61 Va.) 31, 42 (1870).

In another case decided the same term, the court cited with approval a Wisconsin decision that came out this way:

where a party was indicted, convicted and sentenced, at a term of a Circuit court held by a person who exercised the office of judge of said court, under an appointment by the governor without authority of law, there being another person entitled to said office, the sentence was, nevertheless, valid and binding. It was so decided upon an application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground he had been so illegally appointed.

Quinn v. Commonwealth, 20 Gratt. (61 Va.) 138, 141 (1870). An “appointment by the governor without authority of law”; doesn’t that sound familiar?

Finally, we have this:

The rule which declares that the acts of an officer de facto are as valid and binding as if he were an officer de jure, is founded on the soundest principles of public policy, and is absolutely essential to the protection of the best interests of society. Indeed the affairs of society could not be conducted on any other principle. To deny validity to the acts of such officers, would lead to confusion and insecurity, in public as well as private affairs, and thus oppose the true policy of every well regulated State.

McCraw v. Williams, 33 Gratt. (74 Va.) 510, 514 (1880).

So, from a seeming legal morass, we have clarity. At some point, unless the Fates intervene and the warring parties settle their differences, a court will probably determine whether the General Assembly is or is not in session this month, and accordingly whether the Governor had the actual power of a recess appointment. But there can be no room for debate on the legitimacy of the court’s rulings in the interim: they’ll be valid and unassailable, under uniform caselaw that goes back centuries.





[Posted August 29, 2015] Sometimes, your humble scribe is a little slow on the uptake. That happened yesterday, when I got notice that the Supreme Court has revised its September session docket. The previous edition had seven cases slated for Monday (including one of mine), six each on Tuesday and Wednesday, and three on Thursday, which was to be opinion day. (In case that sounds odd, you should know that the last day of the session is traditionally the shortest, to allow the justices to finish the week’s business and start making their way back home. A three-case opinion day is perfectly normal.)

The new schedule condenses the docket to just three days: seven cases on Monday, eight on Tuesday, and seven more on Wednesday.

The major surprise for me was the announcement that opinion day would still be Thursday, September 17. That stuck out to me, as the court has always handed down opinions on the last day of the court’s open session. Indeed, the justices literally “hand down” the decisions in a nice touch, where each justice, one-by-one, announces a decision – the result only, with a note of who if anyone dissents – and then hands the original slip opinion to the Clerk of Court, who stands below the bench in the well of the court.

This is a beautiful tradition that provides a measure of ceremonial formality to the court’s decisions. But on the September opinion day, I strongly suspect that the opinions will be “handed down” only metaphorically, when they’re posted online, on the court’s website. That’s not much of a ceremony, I mused as I silently hoped that this wouldn’t become the norm.

It didn’t hit me until this morning why the court was making this change, which is overwhelmingly likely to be a one-time event: this is the way the court addresses, at least in the short term, the problem engendered by the political fight over the seventh seat on the court. Justice Roush’s gubernatorial appointment expires on Wednesday the 16th, so by anyone’s measurement she can participate in that day’s docket. Thursday was the problem: even if the Governor were to reappoint her, there would be uncertainty over the legality of that appointment.

The court has arranged to avoid any problem with this session by calendaring the entire session’s docket for the first three days of the week. Accordingly, no litigants on the September session’s docket need worry about the legitimacy of the court’s ruling.

A cynic might point out that this action only postpones the inevitable controversy, by kicking the can to the November session. But I see the court’s reasoning, and I agree that this is a good move. Besides, who’s to say that the current impasse, ugly as it is, will inevitably last until November? Perhaps the warring political parties can find a solution before the court reconvenes on November 2. (I realize that about half of you just blurted out, “Yeah; right,” but let’s wait and see, okay?) In the meantime, the Supreme Court has done as much as it can. Now it’s up to the General Assembly and the Governor.



 [Posted August 28, 2015] The Supreme Court of Virginia recently handed down an unpublished order that highlights the danger inherent in orders that suspend final judgments. The case is Umana-Barrera v. Commonwealth, and came down on August 21.

The defendant pleaded guilty to rape and got 15 years of active prison time. Shortly after he was sentenced, he began to think better of the decision to plead, so he consulted another lawyer. That lawyer sought an order suspending the sentence, to allow him to brief and argue a motion to withdraw the plea.

The trial court entered a series of orders doing just that, before eventually denying the motion. The defendant appealed to the CAV, which originally found that the suspension had lapsed due to the delayed entry of an order. But the defendant asked that court to remand the case to allow him to seek correction of clerical mistakes in the orders. Without objection from the Commonwealth, the CAV remanded the case for that purpose.

The trial judge obliged, entering two orders nunc pro tunc. One clarified that one of its original orders had mistakenly omitted a specific ruling on one of the suspension requests. The case then made its way back to the CAV, which held the time for appealing to have expired anyway.

Against this dizzying procedural background, the justices granted a writ, and that resulted in last week’s unpublished order. The justices are agreed upon the outcome – the defendant loses because his time ran out – though they disagree on how to get there. In order to analyze the case, I’ll set out the dates of the relevant orders and hearings. This is a little complicated, but I’ll try to make it clear.

January 2, 2013 – The trial court enters the original sentencing order, calling for 15 years in prison. Under Rule 1:1, the court automatically retained jurisdiction for another 21 days, or until January 23.

January 23, 2013 – On the last possible day, the court enters an order suspending the January 2 order for 30 days. That gives the trial court another 51 days of control over the case (30+21) so now the court will lose authority to act on March 15.

February 12, 2013 – The court enters an unopposed order that extends the suspension for another ten days. Now we’re up to a drop-dead date of March 25.

February 21, 2013 – The court convenes a hearing on the motion to withdraw the plea. There’s no ruling that day, but the court orally announces that it’s adding another 30 days to the suspension, presumably taking us to April 24. Unfortunately:

March 27, 2013 – The court finally gets around to entering an order that memorializes its February 21 rulings. That order recites the 30-day extension.

Now, why did I add the adverb a couple of entries above? Because circuit courts, being of record, “speak through their orders.” Even though the judge announced the new 30 days, and even though (as I assume) a court reporter took that down, the added suspension isn’t effective until the judge puts pen to paper. In my humble legal opinion, the trial court lost jurisdiction to do anything in the case – anything – when the sun rose on March 26. It had a deadline, self-imposed, of March 25 to enter that order, and when that date passed, so did the trial court’s power over the case.

Of course, that didn’t stop further proceedings:

April 15, 2013 – An abortive hearing takes place in which, “due to a miscommunication,” the defense wasn’t ready to go forward. Everyone agrees to continue the matter, and this conversation ensues:

THE COURT: All right. Let’s go ahead and set a date, then, to do this. You need a month out?

[COUNSEL]: That would be fine, Your Honor. Of course, I would need another order.


Do you know what kind of order he’s referring to? Well, so do I; he needs another order suspending the final judgment. But look what happens:

April 22, 2013 – The judge signs a “clerk’s form order” that continues the case until May 30. Guess what? The order says nothing at all about a suspension of finality. I assume that’s because the clerk, and not counsel for the parties, prepared it. I’m not criticizing the clerk; I’m just recognizing that the clerk won’t know, the way the lawyers will, what’s necessary in the order.

May 30, 2013 – The court conducts a substantive hearing on the motion and presumably denies it. There’s one last event here, anticlimactic as it is:

June 6, 2013 – The court enters an order denying the motion.

As I mention above, the CAV remanded to allow a nunc pro tunc correction of the April 22 order, so that it will expressly rule on (and grant) the implicit request for another suspension. The trial judge complied, entering an order that specified another 60 days, tacked onto the original 30-day suspension. (Note that that 60 days takes us to mid-May, when you add in the 21 days under Rule 1:1.) It also revised the March 27 order, marking it “nunc pro tunc February 21.”

I’ll jump to the Supreme Court’s analysis of this matter, and then I’ll add my sense of things. A majority of the justices – we can’t know exactly who wrote the order, because unpubs don’t tell us that – find that the lawyer’s implicit request for another suspension (“Of course, I would need another order”) is close enough, especially viewed in context. It also agrees that the trial court had the power to “correct” its April 22 order by adding the missing language about suspension, and the ability to retroactively extend the deadline by making the March 27 order nunc pro tunc.

But the majority finds that the court lost control over the case in mid-May, so the hearing at the end of that month, and the subsequent order, were nullities. It therefore affirms the convictions.

Justice Kelsey, joined by Justice McClanahan, concurs in the outcome but insists that the majority took the wrong route. The concurrence would hold that the vague statement, “Of course, I’ll need another order,” wasn’t enough to put the issue of a suspension into play. And that, in turn, meant that the trial court’s nunc pro tunc order actually changed – not corrected – the court’s actions in that hearing. These backward-looking orders are intended only to correct errors in orders, so that the record will “speak the truth” about what actually happened. They aren’t appropriate vehicles to reopen the case generally so the court can take up and decide a new matter.

This, you will readily agree, is a tangled mess of dates, hearings, and orders. But here’s my sense: I tend to disfavor procedural waivers where it’s a close call. Here, I would agree with the majority that the lawyer’s request, in context, would be sufficient to convey to the judge that what he wanted was a suspending order.

But I’ve read this opinion twice, and I don’t see that anyone has addressed what I believe is the case-dispositive problem: the trial court didn’t have the power to enter an order on March 27, because no written suspending order was in place at that time. The last one had expired two days earlier. And entering an order nunc pro tunc can’t retroactively revive the trial court’s jurisdiction over the matter, a fact that the majority points out and the concurrence doesn’t challenge.

Here’s the danger that ignoring this problem poses. Let’s assume that a trial court does have the power, by a nunc pro tunc order, to change the date of entry on an order back to the date the court announces its ruling in open court. I believe that’s quite wrong; but let’s walk down this path together and see where it leads.

Let us imagine, then, that on February 21, a judge renders (announces orally) his final ruling in a civil case: “I order final judgment for the defendant.” He enters a final judgment order on March 27, carrying out that ruling. He then decides to make the order nunc pro tunc, back to February 21.

Now, Rule 1:1 specifically defines the date of entry of an order as the date the judge signs his name to it. But if he can effectively back-date it? Let’s go back to my fictional civil case. The unlucky plaintiff now learns to his chagrin that his 30-day period for noting an appeal has already expired. It expired before the judge ever entered the judgment order. He can’t appeal, because of that nunc pro tunc order.

Every appellate lawyer and jurist I know would agree that this can’t happen; a judge can’t change the date on which he signs a paper by a subsequent nunc pro tunc order, thereby depriving the losing litigant of an opportunity to appeal. So how is this case different?

It isn’t. The Supreme Court decided this very issue, right down to the oral announcement of judgment within the suspension period and entry of the order afterward, in Wagner v. Shird, 257 Va. 584 (1999). In that one, the judge announced his ruling at the conclusion of a hearing that took place on the last day of the suspension period. The opposing lawyer stated in open court that he agreed to an extension of the suspension. But the court didn’t enter the order until two months later, with this result:

While the circuit court may have rendered its judgment on Shird’s motion for remittitur at the conclusion of the hearing on February 24, 1998, it did not enter that judgment until April 21, 1998. At that time, the court no longer had jurisdiction over the action because the 30-day stay of the January 6th final order had expired and the court had not entered another order extending the length of the stay. Thus, the April 21st order was a nullity.

In the end, I agree with both the majority and the concurrence on the outcome of the appeal. But I believe that the judgment was final well before the dates the two opinions discuss.

The lesson of this case should be obvious: don’t play around with suspension orders. If you’re really going to undertake post-judgment remedies, seek an order that suspends finality “until further order of the court.” If you can’t get the court to agree to such language, you need to stay on top of the expiration dates, and act well before they expire. Additionally, when you come to a hearing that’s on the last day of the suspension period, or even in the last week of it, bring a proposed order with you that you can hand up, so the judge can sign it that day. An order that’s signed after the court loses control of the case is too late.