ANALYSIS OF JANUARY 19, 2017 SUPREME COURT OPINIONS

 

(Posted January 19, 2017) We get the first opinions of the new year today from Ninth and Franklin, as the Supreme Court decides two appeals by published opinion.

Criminal law

A shoplifting conviction sets the scene for a fight over jury instructions in Lindsey v. Commonwealth. A store employee saw Lindsey put two hats inside his clothing. Another employee confronted Lindsey, who was later charged with petit larceny, third offense.

At trial, the prosecution offered a jury instruction out of VMJI:

Willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise, unless there is believable evidence to the contrary.

Lindsey objected to that and offered a substitute:

You may infer that willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise.

Since this language is very similar, I’ll highlight the difference: the defense instruction tells the jury that it may infer intent from concealment, while the prosecution’s says that concealment is evidence of intent.

Lindsey was convicted, and the Court of Appeals affirmed per curiam. But Lindsey’s trip to a writ panel bore fruit; the justices agreed to take a look.

The dispositive issue here is whether the prosecution’s instruction creates a presumption, in which case it’s unconstitutional; or else allows the jury to draw a permissive inference, in which case it’s not. Presumptions don’t have to be conclusive in order to violate the Due Process Clause; even a rebuttable presumption is impermissible.

By a 5-2 margin, the SCV today rules that the VMJI language doesn’t create a presumption, so the conviction is affirmed. The chief justice, writing for the majority, notes that the instruction given

merely instructed the jury that willful concealment of goods while on the premises of a store is evidence of intent to convert and defraud. It provided that the jury could consider the concealment of merchandise as evidence of criminal intent, along with any other evidence that was presented to it.

In that sense, it describes a permissive inference that the jury may draw, and doesn’t mandate any conclusion that the jury must accept.

Justice Goodwyn, writing on behalf of Senior Justice Koontz, disagrees; he believes that this language requires the jury to find criminal intent, “unless there is believable evidence to the contrary.” No criminal defendant is required to adduce “believable evidence” in a criminal trial, given the obligation of the prosecution to prove each element beyond a reasonable doubt and the defendant’s right to remain silent. The dissent would remand the case for a retrial, “if the Commonwealth be so advised.”

As always, I don’t get a vote, but if I had been on the court, I probably would have joined the majority. I agree with those five justices that an instruction that concealment “is evidence of” intent doesn’t command the jury to find that intent; it still must evaluate that evidence along with all the other evidence in the case.

The one thing that troubles me just a bit about this conclusion is the final clause in the model instruction: “unless there is believable evidence to the contrary.” That clause doesn’t match up well with the previous language, which states that concealment is “evidence of intent,” as contrasted with, say, “proof of intent.” That phrasing would clearly run afoul of the Due Process Clause. Because of that, and despite the fact that this appeal resulted in an affirmance, it might behoove the model-instruction solons to take another look at the wording of this instruction.

Torts

In September the justices heard argument in an automobile MIST (minor impact, soft-tissue injury) appeal, Gilliam v. Immel. Immel rear-ended Gilliam and admitted that he did it; liability was conceded, so the sole issue at trial was damages. There was no discernible damage to Gilliam’s car, and today’s opinion notes that during the collision, “Gilliam was restrained by her seatbelt and no part of her body came into contact with any part of her vehicle.” Her body tensed on impact, but she had no visible signs of injury.

An ambulance came to the scene and took Gilliam to a hospital, where she told health-care providers that her back and neck were sore. They gave her some medication and released her; she went to work the next day. She received follow-up treatment from her family doctor, an orthopedist, and a neurologist after she reported that the pain in her neck had radiated down into her shoulder. She received what I infer was a cortisone injection and some outpatient surgery (which again cost her only one day of work) to address her shoulder pain.

The orthopedist who performed the surgery opined, based on Gilliam’s reports, that her medical care was traceable to the collision, despite her history of back surgery years before. Gilliam introduced medical bills of $73,000.

At trial, the surgeon testified for Gilliam, while another orthopedist testified for Immel based on a record review. (For the uninitiated in PI litigation, that means that he never examined or treated Gilliam; he just read her medical records.) Immel’s expert opined that none of the expenses were attributable to the collision; she suffered only a minor strain that would resolve itself naturally within weeks.

A jury heard all this and wound up believing Immel’s expert; it returned a verdict for Gilliam but awarded her zero dollars in damages. The trial court entered judgment accordingly.

On appeal, the justices unanimously affirm. Justice McClanahan writes the opinion, and she points out that the evidence was very much in dispute as to whether Gilliam’s medical care was causally related to the collision. Gilliam argued that had she proved, at a minimum, that her back and neck injuries were symptomatic for weeks, and she was entitled to at least something for that. No dice, Justice McClanahan answers; that claim – and the surgeon’s confirmation of it – depended entirely on Gilliam’s own report. And the jury was free to conclude that she was embellishing her symptoms, if it so chose.

The court decides one other issue here. Gilliam sought to tell the jury that in the immediate wake of the collision, Immel said to her, “You black bitch. I don’t have insurance. You’re not going to get anything out of me.” As inflammatory as that statement is, it didn’t relate to the one issue that was actually being tried: the extent of Gilliam’s injuries. Theoretically it could be relevant to a claim of infliction of emotional distress, but Gilliam didn’t plead a claim like that, so the Supreme Court affirms the trial court’s decision to exclude the statement at trial.

One last point about the primary ruling in the case. While technically this was a verdict in favor of the plaintiff, the court continues the long-standing practice of evaluating it as being in favor of the defendant, since the jury awarded zero damages. That makes a difference in this appeal, because it calls for the justices to view the evidence in a light most favorable to Immel, not Gilliam. Hence their conclusion that the jury may not have believed Gilliam’s reports of pain.

 


STORM SHUTTERS STATE COURTS;

FOURTH CIRCUIT DELAYS OPENING

 

 

(Posted January 9, 2017) The storm that the folks at The Weather Channel are calling Helena dumped snow and ice across much of eastern Virginia over the weekend. The Clerk’s Office of the Supreme Court of Virginia is closed today; if their roads are as icy as ours here in sunny Virginia Beach, I’m not at all surprised by this decision. The CAV usually follows the Supreme Court’s lead, so that office will probably be dark, too. The Fourth Circuit will open today at 10:00 a.m.

By operation of law, any appellate deadline that is set to expire today in the state courts is automatically extended at least to tomorrow, or later if the Clerk’s Office is closed again. Code §1-210. As I understand the federal late-opening policy, this doesn’t count as a day on which the Clerk’s Office is inaccessible under FRAP 26(a)(3), so you have to file today as usual.

One last caution, and it’s a crucial one. If you have a deadline today in a state-court appeal, and you have to file in the trial-court clerk’s office, you must ascertain whether that office is open. Here in Tidewater, and for many jurisdictions from here to Richmond, most of those offices are closed. But as far as I know, local courts in other parts of the state are open as usual, so you do not get an extension for those courts. The most common documents filed locally are the notice of appeal, the transcript, and the appeal bond. Do not assume that Richmond’s weather problem redounds to your benefit.

Update 10:55 a.m.: Here’s a link to a webpage that lists local court closings today. I cannot confirm that this list is comprehensive; your best approach is still to call your local court to be sure. Thanks for the link, Kevin.

 


THE TOP APPELLATE STORIES OF 2016

 

(Posted December 30, 2016) It’s been a few years since I prepared an end-of-year summary. Those retrospectives were always fun, so now that the last opinions are in, I may as well take a look back over Virginia’s appellate developments in the course of the year that’s now drawing to a close.

If this website were named American Appellate News & Analysis, the story of the year would obviously be the extended vacancy on the Supreme Court of the United States. But I’ll let the good folks at SCOTUSblog give that topic a try, if they see fit. Perhaps The New York Times’s principal court-watchers, Linda Greenhouse and Adam Liptak, might give this topic a spin, but we’ll stay on the good side of the Potomac.

Appellate day of the year: July 19. Normally you won’t find the justices within miles of Ninth and Franklin in mid-July; they’re at work in their chambers across the Commonwealth. (Justices Mims and Powell, both of whom live in the Richmond area, might have their principal chambers there; I’m not sure. The others are scattered across the map.) But on this sweltering day, the court convened a historic special session to consider two important cases with major political implications: Howell v. McAuliffe and Edwards v. Vesilind. In the former, the court issued a writ of mandamus to undo the Governor’s blanket restoration of civil rights to 200,000 former felons, requiring him to act case-by-case instead. In the latter, the court reversed a finding of contempt against several legislators who had refused to turn over their correspondence with the Division of Legislative Services and with an outside consultant, all relating to litigation over partisan redistricting.

I simply could not resist the allure; I traveled to Richmond, got in line extra-early, and got a reasonably good seat in the courtroom to watch the arguments. This was history and I had to see it. I had plenty of company, as a number of legislators and other dignitaries came to watch; even with plenty of added temporary seating, the courtroom overflowed. The argument quality was high, as you can hear for yourself by listening to the audio recordings on the court’s website.

I’ve written about both decisions here and I won’t repeat that analysis now. I’ll mention only that the justices plainly had good political sense in the civil-rights decision, ruling against the Governor without actually issuing a writ of mandamus directed to him. (The writ commanded several of his executive officials instead.) And while I continue to regard partisan redistricting as an ugly stain on the good name of our Commonwealth, the justices’ resolution of Edwards merely sent the case back to the circuit court for eventual trial; unlike Howell, that story isn’t over.

Appeal of the year: It’s tempting to list Howell v. McAuliffe due to the sensational nature of both the proceedings and the subject matter. But you have a right to expect variety here; and besides, Howell wasn’t an appeal at all but an original-jurisdiction proceeding. Instead, let’s turn to the October 27 ruling in Elliott v. Carter, a wrongful-death claim based on a Boy Scout’s drowning. Five justices concluded that the circumstances of that case – a Scout peer leader who led a young scout out along a sandbar into the middle of the Rappahannock River and then left him there to drown – did not rise to the level of gross negligence. The majority ruled in favor of the peer leader as a matter of law, in large part because he had tried to swim back out – 150 yards out – in response to the younger boy’s panicked cries of distress.

The basis of the majority’s ruling lies in one of the jury-instruction descriptions of gross negligence: the “want of even scant care.” But by focusing on that, the court turned its collective back on another classic definition of gross negligence, conduct that would shock fair-minded people. Arguably that test for gross negligence vel non is now out of Virginia jurisprudence, though the court didn’t come right out and say that. Justice McCullough’s dissent points out that a person who leads a helpless victim into danger shouldn’t be able to escape liability by trying to help after it’s too late; but that sensible contention fell on deaf ears.

This ruling will foreseeably influence future litigation. It establishes for the first time that a defendant who acts grossly negligently can “purge” himself of that gross negligence by making a too-late, even half-hearted, effort to help afterward. The example I used in my analysis was a driver who knowingly drives the wrong way in traffic, causes a head-on collision, and then calls 911 afterward. I don’t believe you can convert gross negligence into ordinary negligence by the simple expedient of offering ineffective aid after the fact.

In case it isn’t obvious, the peer leader’s conduct shocked me; I would have regarded this as an obvious jury issue. I suppose this ruling means that I can no longer consider myself fair-minded.

Appellate minutia of the year: This one’s very recent – this month, the justices quietly changed the rule limiting your choice of fonts for use in Supreme Court briefs. This move came just over a year after the court itself changed the font in which it hands down slip opinions. Previously those opinions came out in clunky Courier, which mimics the output of an old typewriter; but beginning in September 2015 the court switched to what looks like Times New Roman. Nowadays, lawyers can choose from among twelve permissible fonts (including TNR) for their filings.

Opinion day of the year: Also in September 2015, the court stopped holding its opinions for simultaneous release on six predictable days per year. Probably because of the number of former Court of Appeals judges now on the Supreme Court, the justices adopted the CAV’s practice of releasing opinions as they become ready, one day per week. This complicated my life significantly; previously I set aside the six opinion days two years in advance, but now I had to plan for as many as fifty opinion days.

Fortunately it’s proved to be manageable, and for some lucky litigants, it’s meant getting a ruling a week or two earlier than usual. But one opinion day in 2016 was unlike any other. On February 12, the court handed down ten published opinions and five unpublished orders – by far the busiest day of the year – deciding fifteen appeals that had been argued just four weeks earlier. Especially compared with the previous seven-week pattern, that’s a lightning pace.

Why does this one stand out? Why the “roush to judgment”? Because the Governor’s interim appointment of Justice Jane Roush was set to expire on February 13, and the court didn’t want any challenges to the validity of its rulings that happened to include her. That, in turn, leads us to Virginia’s …

Appellate story of the year: The filling of the seventh chair. I don’t have to recount this story in detail for any of my readers, as I’ve written on it extensively. And it was a saga. Justice Millette’s retirement in the summer of 2015 gave the Governor the opportunity to name an interim replacement to the Supreme Court, since the legislature wasn’t in session. He did so in early August, naming Fairfax Circuit Court Judge Roush to the vacancy. Legislative Republicans initially pronounced her well-qualified, but that lasted a matter of hours before those same Republicans decided to rebel and try to seat someone else, because the Governor hadn’t danced the proper steps to the Virginia Governmental Reel.

The legislators’ efforts to replace her in a summer special session failed when one Republican Senator couldn’t bring himself to unseat a sitting, qualified justice – something that hadn’t been done since the William McKinley Administration. The Governor reappointed her, but that expired in February, and by then the newly constituted General Assembly had settled on CAV Judge Steve McCullough for the seat. Because Justice Roush’s circuit court seat had been filled and she had no bench to return to, she “graduated” to what I trust is a lucrative mediation career.

*   *   *

What’s on tap for 2017? Well, don’t expect any more changes in judicial personnel in the appellate courts. The Supreme Court is set at least until the chief justice reaches mandatory retirement age in a few more years, and as far as I know there are no looming retirements in the CAV. Fourth Circuit judges are appointed for life, of course, so their departures are almost always voluntary retirements.

As for rule changes, those are hard to forecast, but I expect the state appellate courts to continue to evolve over time into a paperless e-filing system, as the Fourth has been for years. I doubt the courts will trim back oral arguments any further – doing so would require that they install a conveyor belt behind the lectern, and that would take a budgetary allocation – but I’ll watch the website with a nervous eye. Existing rules may get a tweak here and there, such as with the recent shift of the partial-final-judgment rule to Part 1 of the rules. As usual, disgruntled litigants may head across Ninth Street to seek legislative “reversal” of a particularly galling appellate decision.

And as for this website, please be assured that I have no plans to change. No paywall; no pop-up ads; no domineering supervisor who wants to edit out my appellate jokes. We’ll mark our twelfth anniversary in a couple of weeks, and I intend to go on posting analysis, leavened with a bit of wit where I can, and let you know how today’s decisions will affect your jury trial next week or your oral argument in the next session. Thanks for riding along this year; health, happiness, and prosperity to each of you in 2017.

 


 

ANALYSIS OF DECEMBER 29, 2016 SUPREME COURT OPINION

 

(Posted December 29, 2016) The Supreme Court clears one last appeal off the decks today, before the close of 2016. Payne v. Commonwealth is a criminal appeal of convictions for robbery and companion firearm charges. The victim answered an ad on the Internet to buy a used laptop computer. The purported seller invited him to meet at an apartment complex after dark. At the appointed hour, a man approached the buyer and invited him to come inside to see the laptop, which was charging.

At this point, the victim wisely smelled a rat, so he “surreptitiously removed his wallet and watch and put them in the center console of his car” before following the seller inside. There, the buyer found a different kind of hardware: a second man held a knife while the first man blocked his exit. Before long the first man pulled a pistol. The robbers demanded money. The victim, remarkably quick-witted for such a stressful situation, explained that he hadn’t brought money; if he liked the computer, he planned to go to a bank to withdraw the purchase price.

The knife-wielding robber went through the victim’s pockets and found only car keys and a cell phone. The frustrated robbers fortunately didn’t stab or shoot him, but they did take his cell phone and warn him not to follow as they ran away.

The victim wisely didn’t chase them. Instead, he flagged down a passerby, borrowed his phone, and called police. He gave an officer a description of the robbers and of the events.

Two months later, a detective interviewed Payne, today’s appellant, who lived a quarter-mile away. Payne denied any involvement, but suggested that a cousin may have been involved. The interview went well for Payne, as the detective believed he was telling the truth. She later interviewed the victim and showed him several photographs. He picked Payne out as the gun-wielding robber, but given her earlier interview, the detective didn’t have much confidence in that.

What happened next, however, turned the tables. Police caught a man who they believed had held the knife in the robbery. When the victim came into court to testify at that defendant’s preliminary hearing, he immediately spotted Payne and recognized him as the man with the gun. This produced a Perry Mason moment: “When [the victim] was asked during his testimony at the preliminary hearing if he recognized the man who had held the handgun, he identified Payne in the audience.” Payne soon had the right to remain silent.

That evening, a prosecutor sent an e-mail to the detective who had believed Payne’s story, telling her about the day’s courtroom drama. Today’s opinion sets that e-mail out in full after adding numbers for ease of reference. Here it is:

[1] Actually I gave [the victim] a photo line-up with [Payne] and he did pick him out. [2] The problem is, [Payne] looks like [his cousin’s] friend [Rosser] who we initially thought was helping [Payne’s cousin] with the crime. [3] Attached [are] some pictures I found of [Rosser]. [4] I felt very unfortable [sic] getting warrants on [Payne] just off of a photo id since I had interviewed him on multiple occasions and he appeared to be truthful. [5] To date, I’m still not sure he was involved? [6] I have all of this documented in my case file. [7] Unfortunately I ran out of time before leaving [for forensics training] and didn’t put it in a supplement form. [8] I don’t have access to mobile while [at training] therefore I can’t type a supplement. [9] I don’t return to work until April 15th. [10] I told [Officer Musser] that if he needed my case file to get Sgt. Herrick to make him a copy of it. [11] If you need something before I return let me know and I’ll do my best to make arrangements to get it to you. [12] If you need a supplement, I can go in over the weekend and try to get it done.

Payne sought to introduce this e-mail at trial. The judge balked, but agreed to let him introduce sentences 1-3 and 6. The court found the remaining sentences immaterial to the issues being tried. Payne appealed this ruling, and today the justices affirm it. The court finds that sentences 4 and 5 go to the ultimate issue, and therefore invaded the jury’s province. Sentences 7-12 didn’t fit within the doctrine that Payne urged, in that they don’t “discredit the police investigation.” Nothing in those sentences suggests that there was anything untoward in the investigation; they’re mostly dry administrative details.

Payne appealed one other issue. He offered a jury instruction that was modeled on one from a federal prosecution, and that the Fourth Circuit had approved. That instruction (also set out verbatim in today’s opinion) relates to four sets of circumstances that a jury should consider in evaluating the reliability of an eyewitness identification. The trial court refused it, ruling that the topic was adequately covered in other instructions, especially good ol’ VMJI 2.500, Credibility of Witnesses. It also ruled that the proffered instruction could mislead the jury by giving it an unduly restrictive checklist of four items.

In this regard, state-court practice is quite different from that in federal courts. In US District Court, a judge is allowed to comment on the evidence, including singling out certain items or facets for special emphasis.

Not so in Virginia courts. Virginia’s trial judges are admonished not to comment, and doing so can result in a reversal and a new trial. The Supreme Court today agrees with the trial court and the Court of Appeals that the judge got this one right. The justices are careful to state that they aren’t categorically outlawing any kind of instruction based on the federal case. Justice Mims, writing for a unanimous court, opines that

It is not difficult to foresee a defendant proffering a jury instruction similar to Payne’s, but drafted to avoid the problem of focusing the jury’s attention on a limited number of factors affecting the reliability of an eyewitness identification, thereby seemingly elevating the importance of those factors vis-à-vis similar factors not included in the proffered instruction. Provided that such an instruction is supported by the evidence, it would correctly state the law and a trial court would not err by giving it, at its discretion.

Because I’m not a criminal-defense trial lawyer – a career limitation that redounds to the benefit of every one of my potential criminal clients – I cannot say what such an instruction would actually look like, and as for the court’s crafting one for us … well, Justice Mims ain’t talkin’.

 

 


ANALYSIS OF DECEMBER 22, 2016 SUPREME COURT OPINION

 

(Posted December 22, 2016) The justices manage to squeeze one more opinion in before Christmas, and it’s a nice present for some taxpayers. In Wakefield Manor Associates v. Arlington County, the court decides a challenge to real-estate taxes on transfers of development rights. TDRs are creatures of statute, and allow landowners to protect their land from future development. They’re useful to preserve properties with bucolic beauty or having historical importance; things like that.

These transfers work by a dedication of available density – for example, a right to build a huge apartment building containing hundreds of units – from one property to another. The first property is called the sending area and the second one is the receiving area. In this way, the owners can be compensated for their forgone rights to develop, and landowners elsewhere, who might otherwise be constrained by land-use limitations, can build what they want to without a rezoning. The county has to approve the transfer before it becomes effective.

These development rights have a value, and Arlington County wanted to tax them when Wakefield Manor and one other landowner sought to sever them. The owners paid the taxes under protest and sued to get the money back.

There are two statutes that allow counties to tax TDRs. The court rules today that the county can’t use the first one, because that requires that the county adopt an ordinance with twelve specific criteria. Unquestionably, the county didn’t do that, so the court turns to the second approach.

That one fails, too, because it allows taxation only after the sending and receiving areas are both identified. The taxpayers segregated the TDRs in 2011, but didn’t settle on a buyer for the rights until 2015. The court rules today that in the intervening years, the county didn’t have the power to tax the rights. That means that the taxpayers will get a nice check, just in time to fill a stocking Saturday night.

 


NOTE ON RECENT RULE CHANGES

 

(Posted December 20, 2016) On November 4, I posted an essay about two new rule changes in the state appellate courts. Here’s a follow-up, addressing two more that may affect your practice.

The first one is old news that I had missed: on November 1, the court moved Rule 5:8A, the partial-final-judgment rule, to Part 1, where it now resides as Rule 1:2. There was once a Rule 1:2 that dealt with venue in criminal cases, but that rule was relocated to Part 3A almost ten years ago, and that “street address” in the rules had remained vacant ever since. As far as I can tell, there’s no change in the wording of the rule; just a new number.

I will confess to at least some puzzlement about this change. It seems from the context of the rule that it should apply only to civil cases that are pending in the circuit court. But the Supreme Court moved the PFJ rule to Part 1, containing “General Rules Applicable to All Proceedings,” instead of Part 3, “Practice and Procedure in Civil Actions.”

Part 1 applies, at least in theory, to every kind of litigation, civil and criminal, at every level of the court system. As phrased, the rule doesn’t expressly exclude suits filed in general district court, which can be appealed on to circuit. The benches will now be left to determine whether a GDC judge (or JDR, or maybe even the Workers’ Comp Commission) can enter a partial final judgment, thus generating an immediate right of appeal.

I believe that the justices could have prevented any ambiguity by placing the rule in Part 3 instead, where it seems to belong. Still, that’s probably a stylistic quibble at most, and I won’t get worked up over it. And let’s face it: the rules aren’t exactly organized in a meticulous way. If they were, for example, Rule 1:18 and the accompanying pretrial schedule order would be in Part 3, where they belong with the other rules for civil cases. Just remember to review the rules early and often in your practice.

The next change is a whopper, at least for those of us who care about minutiae like typography: The chains have been shattered! You are no longer constrained to use one of only three distasteful options when it comes to fonts for your appellate pleadings.

Last Thursday, without any fuss, the court quietly amended Rule 5:6, “Forms of Briefs and Other Papers,” to remove the requirement that Supreme Court briefs must be printed in Arial, Courier, or Verdana. Instead, the court has published on its website a “List of Acceptable Fonts” with a whopping twelve font names.

Until now, when I had only those three choices, I used Verdana. Courier just looks awful to me – think a 1952 Smith-Corona – and between Arial and Verdana, the latter looks easier to read. Arial is “denser,” in that you can get more words onto a given page, so it was the default choice for lawyers with logorrhea, those for whom a 35-page limit is a formidable and painful constraint.

I invite you to click on the link for the acceptable-fonts list and see what looks good to you. I probably won’t stick with Verdana for my briefs, because I don’t like the italics – they don’t stand out sufficiently from roman letters. Right now I’m weighing the choice between Cambria and Constantia. If you’re among the crowd who think more words are better than fewer, you’ll go with good ol’ Times New Roman, which is the densest of the 12. (That being said, you should rethink your underlying assumption. Longer briefs are less persuasive than shorter ones.)

One last point: This change only applies in the Supreme Court of Virginia. Nothing has changed in the Court of Appeals. There, you can use any font you want, as long as you use at least 12-point type. (Here’s a secret hint from someone who files briefs for a living: Use 13-point. The judges aren’t getting any younger, and lamentable things happen to the eyesight of a person who’s hit the big five-oh. That includes most of the CAV.)

 


ANALYSIS OF DECEMBER 15, 2016 SUPREME COURT OPINIONS

 

(Posted December 15, 2016) In order to avoid the Christmas rush, the Supreme Court disposes of six cases today by published opinion, and three more by order. That’s quite a bounty for one day; let’s dig in.

Detinue

There’s a short opinion today in McGrath v. Dockendorf, an action for recovery of an engagement ring after the planned union fell through. If you have even a passing familiarity with this website, you know that I always summarize the most relevant facts before exploring the issues and the holdings. But I find that I cannot improve on the concise, elegant summary penned by Justice McCullough:

On August 25, 2012, Ethan L. Dockendorf proposed to Julia V. McGrath. She accepted. He offered her a two-carat engagement ring worth approximately $26,000. In September 2013, after the relationship deteriorated, he broke off the engagement. The parties never married. Love yielded to litigation, and Dockendorf filed an action in detinue seeking, among other things, the return of the ring. In response, McGrath demurred to Dockendorf’s complaint, arguing that it was barred by Code § 8.01-220. Following a hearing, the trial court agreed with Dockendorf. The court found that the ring was a conditional gift. It also held that Code §8.01-220 did not bar the action in detinue for recovery of the ring. The court ordered McGrath to either return the ring within 30 days or it would enter judgment in the amount of $26,000 for Dockendorf. This appeal followed.

Of course, it’s unsurprising that Justice McCullough would write so well; after all, he’s a former appellate lawyer. Everyone knows that appellate lawyers make the best writers.

Having now alienated the other six justices, I’ll turn now to the court’s analysis. The court affirms today, noting that while actions for breach of promise to marry are no more, this is a different kind of proceeding. The former actions for breach allowed a variety of damage claims, and encouraged sensational (and perhaps sordid) evidence. The legislature acted in 1968 to bar those proceedings. But detinue seeks recovery of a specific chattel, and this one is based not on a breach of promise, but on the failure of a condition after a conditional gift.

That’s a separate type of action, previously recognized by the courts, and not expressly abrogated in that 1968 statute. That means the would-be husband can indeed sue.

There’s one interesting unresolved aspect of this dispute. The old conditional-gift jurisprudence involved situations where a fiancée received a ring and then broke off the engagement. In this situation, the fiancé gave her the ring, and then he broke it off. Isn’t that different? Maybe it is, but because that issue wasn’t the subject of an assignment of error, the court can’t reach it today. It will fall to another broken-hearted suitor to test that boundary.

Habeas corpus

Here’s an interesting puzzle: If a person is held pending criminal proceedings in one circuit, can a judge of a different circuit take up a habeas corpus challenge to the detention? We get the answer today in In re Vauter, which began in Alexandria and then abruptly jumped to Dinwiddie County.

The appeal centers on a capital-murder defendant named Murphy. During pretrial proceedings in Alexandria Circuit Court, Murphy assaulted his lawyer in open court. That led to a competency evaluation, and those tests showed that Murphy was not competent to stand trial. But the doctor who examined him found his condition to be treatable, so he was held in custody in a secure hospital in Dinwiddie County and given appropriate medical help.

As required by statute — see this link, and scroll down to subsection F — a judge conducted semiannual hearings to ascertain whether he was still incompetent. The statute describes four factors: hearings every six months, continued incompetency, medically appropriate treatment, and whether the inmate presents a danger to himself or others.

After seven years of this, Murphy’s lawyers moved the Alexandria Circuit Court to dismiss the indictment, claiming that the statute providing for essentially unlimited detention for treatment before prosecution was unconstitutional. That got him nowhere, as the trial court and the state and federal supreme courts refused relief.

After seven more years – fourteen years after the original indictment – Murphy again moved to dismiss. This time, the Commonwealth stipulated that he was “unrestorably incompetent” – that sounds pretty final to me – but the court still refused to release him, instead ordering continued treatment.

Murphy had had enough of Alexandria justice; he went instead to the Dinwiddie Circuit Court and filed a habeas petition. The respondent, the director of the hospital, filed a petition for a writ of prohibition, seeking to bar the Dinwiddie court from taking up a challenge to what the Alexandria judge was doing.

This is what appellate lawyers refer to as an OJ proceeding, invoking the Supreme Court’s original jurisdiction. This isn’t an appeal at all; the Supreme Court takes up the case in the first instance, and today it denies the requested writ. It finds that a statutory prohibition of consideration by a different court after conviction doesn’t apply here, because Murphy hasn’t been convicted of anything.

The effect of this is that the case goes back to Dinwiddie for adjudication on the merits. That doesn’t mean that Murphy will be released. It means that the Dinwiddie judge may agree or disagree with the Alexandria judge, in which case the aggrieved party can appeal on the merits, and this case will see the inside of the Supreme Court Building yet again.

Criminal law

Today is not a good day for criminal defendants in Virginia’s highest court. The court decides three criminal appeals, and the defendant loses every time. (You could plausibly contend that in the habeas case discussed above, Murphy got an interim win.)

The first one we’ll take up is Commonwealth v. Lambert, a conviction of a schoolteacher for simple assault of a student with Down’s Syndrome. Lambert was on bus duty one day when the student got off the bus, handed her book bag and coat to a teaching assistant, and bounded happily into the building. Lambert saw this, figured it was inappropriate (the teaching assistant felt otherwise, finding it perfectly normal), and went after the child. She confronted the student inside and told her to go back out and get her things. The student refused, so Lambert grabbed her by the arm and dragged her outside, despite the student’s crying and screaming in resistance.

Several months earlier, the teacher had received a disciplinary letter from the school board, instructing her to “please use your teaching assistants in the room when disciplining a child. You should not put your hands on a student unless it is for instruction or for the safety of a child.” At the ensuing assault bench trial, the court admitted this letter into evidence over Lambert’s objection.

This letter was crucial to the trial, because teachers are generally given a special exemption from assault-and-battery liability:

“Simple assault” or “assault and battery” shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control.

After hearing testimony from several other witnesses to the event, the trial judge convicted Lambert, finding that she wasn’t acting in the scope of her official capacity. That is, the school board had defined and constrained her duties by removing from her discretion the right to put her hands on a student.

The judge didn’t stop there. He independently ruled that, even without the limitations in the letter, he found Lambert’s actions to be an unreasonable response to the situation, and hence beyond the statutory exemption.

Lambert appealed and got a rare win in the Court of Appeals, one of only a handful of criminal reversals in that court in 2015. But the case wasn’t over; the Commonwealth appealed and the Supreme Court agreed to look into the matter.

Today the justices unanimously reverse the Court of Appeals and reinstate the conviction. Most of the parties’ appellate efforts were no doubt spent on what had been the CAV’s rationale: “In effect, [the trial court] substituted the School Board’s and Scott County’s standards of conduct for that specified by the General Assembly in the criminal statute to determine that appellant could not have been acting within her ‘official capacity.’”

But the justices take a different path. They focus instead on the trial court’s alternative holding, that even with the statutory exemption, this conduct still exceeded the bounds described in the statute. The CAV hadn’t addressed that, but the Supreme Court finds it dispositive.

In case you’re wondering, Lambert isn’t going to jail; the trial court sentenced her to 30 days but suspended all of that. I suspect that the real impetus for this appeal is the effect of a conviction upon her ability to continue to work as a teacher. On that issue, I can’t offer an informed opinion, but my suspicion is that she may have to find a new career now.

Next in line – at least, the way I’ve lined them up – is Johnson v. Commonwealth, which implicates the evolving legal issue of life sentences imposed on juvenile offenders. Johnson was convicted of first-degree murder arising out of a shooting death, and the circumstances of the crime aren’t relevant to the appeal. He was two weeks shy of 18 years old when he committed the crime. Before sentencing, he asked the judge to appoint a neuropsychologist to assist in his defense, explaining that such an expert could offer testimony relating to the effect of Johnson’s youth on his actions and hence his culpability.

The trial judge wouldn’t bite, noting that Johnson hadn’t demonstrated a particularized need for the help. This was more akin to a fishing expedition, where Johnson hoped the expert might come up with something helpful. The court proceeded to impose a life sentence for the murder charge, plus another 42 years for seven related felonies.

Johnson moved the court to reconsider, asserting that he shouldn’t receive a life sentence because of SCOTUS jurisprudence relating to juvenile offenders. Noting Virginia’s geriatric-release statute, he argued that he still didn’t have a meaningful opportunity for release after rehabilitation, as those SCOTUS cases mandate. The judge still said no, so Johnson was off to the Court of Appeals.

Which promptly said no, too. That court refused to even consider the neuropsych issue, but it granted a writ on the geriatric-release assignment. Affirming, it ruled that Johnson had not, in fact, received a life sentence without parole, so the SCOTUS decisions were immaterial.

This must have come as something of a dismaying surprise to Johnson, who held in his hand a sentencing order that said “Life in prison,” dated well after the time when Virginia abolished parole. He pressed on to the Supreme Court.

An effectively unanimous court affirms today. Justice Powell writes for the court, ruling that the trial judge’s analysis of the neuropsych issue was correct. In this context, I sense that a contrary holding would have entitled every juvenile defendant to that kind of expert – a significant change in established practice.

Justice Powell then turns to the life-without-parole issue, which is the heart of today’s ruling. In 2012, the US Supreme Court decided Miller v. Alabama, which held that (1) mandatory life sentences without the possibility of parole for juvenile offenders were unconstitutional, and (2) life-without-parole sentences, when not mandatory, could only be imposed if the court considered the “offender’s youth and attendant characteristics.”

The previous year, the SCV decided Angel v. Commonwealth, which had held that the availability of Virginia’s geriatric-release program meant that no life sentence was truly without parole. The next time the Virginia court considered this issue, earlier this year in Vasquez v. Commonwealth, the court reaffirmed its belief that Miller simply doesn’t apply here because of the statute. Justice Powell follows that holding here, concluding that because Miller is inapposite, it doesn’t help Johnson.

Senior Justice Millette files a concurring opinion. He summarily agrees on the neuropsych issue, but offers a nuanced view of the parole assignment. Justice Millette voted with the original majority in Angel, but he believes that the playing field is different now, in light of Miller and its very recent cousin, Montgomery v. Louisiana, decided earlier this year. Those cases, in his view, compel the court to revisit its stance in Angel and Vasquez.

The concurring opinion lays out the issue effectively, explaining how the mandatory considerations in SCOTUS jurisprudence are at odds with Virginia’s approach. Justice Millette emphasizes the holding that a state must afford a juvenile offender “some realistic opportunity to obtain release,” and Virginia’s rarely used geriatric release program may not be realistic. Justice Mims, who joins today’s majority, memorably warned of the same thing in his concurring opinion in Vasquez, noting that with only a 4% release rate, “it may become increasingly difficult to maintain that geriatric release as applied truly provides a ‘meaningful opportunity’ for release.” (See 291 Va. at 258 for the full passage.)

Justice Millette also points to SCOTUS’s admonition that while locking up some juveniles without parole is permissible, it should be applied only to “the rarest of children, those whose crimes reflect irreparable corruption.” Virginia’s geriatric-release program isn’t designed to take into consideration the factors that Miller and Montgomery mandate, so he feels it can’t validate modern life sentences. Here, it looks like we do things the other way around, where prisoners presumptively get no geriatric relief, and the rare case provides for release. That being said, Justice Powell correctly points out that we don’t have any data yet on geriatric release of juvenile offenders, since no juvenile sentenced after 1995 – the year when we abolished parole – has turned 60. That’ll start somewhere around 2038.

That being said, the concurrence notes that in this case, the trial court read and considered four articles submitted by the defense on “brain development and legal culpability.” That means that the judge did consider “youth and its attendant characteristics” in sentencing. That’s why this is a concurrence and not a dissent.

There are storm clouds on the appellate horizon. Last year, a US District Judge in Norfolk issued a written opinion containing language that I regarded as shocking, concluding that there was “no possibility that fairminded jurists could disagree” that Angel violated “clearly established federal law.” LeBlanc v. Mathena, 2015 US Dist. LEXIS 86090 at *47 (E.D.Va. 2015). Last month, a divided panel of the Fourth Circuit affirmed that judgment. 2016 US App. LEXIS 20041 (4th Cir. 2016). I have little doubt that the Commonwealth will seek either en banc rehearing or cert, so LeBlanc is not yet over. But while Justice Millette’s concurrence cites the Fourth’s decision, the majority simply ignores it. In this legal context, I don’t know how you can do that.

I’ll add my sense of things: I’ve been skeptical of the court’s reliance on geriatric-release ever since the court announced it in Angel. Especially in light of the later SCOTUS decisions, I’ve felt that Angel and now Vasquez have one foot on reversal and the other foot on a banana peel. LeBlanc now portends that very reversal, and I doubt there will be five votes the other way at One First Street, even if President-Elect Trump gets a conservative replacement for Justice Scalia. Montgomery was a 6-3 decision, with the chief justice and Justice Kennedy voting with the four more liberal members of the court. You’d have to flip three votes to come up with a contrary ruling, and that’s not going to happen in the near future.

Today’s final criminal decision is Rich v. Commonwealth, a conviction for an offense commonly known as DUI-maiming. Rich was driving at 2:20 a.m. when she struck a victim who was crossing Virginia Beach Boulevard here in my hometown. The victim was in a motorized wheelchair that had no lights or reflectors; he was, as a witness testified, operating it erratically.

That’s probably because he had a BAC at the time of .22, which, based on my experience as a onetime DUI prosecutor, is thoroughly snockered. Nevertheless, he was crossing the Boulevard when Rich ran into him, causing him permanent injuries. Rich, too, had a positive BAC, though not as elevated as the victim’s: she was a .13.

Rich made some incriminating statements to the police officer who investigated. She admitted to drinking, stated that she had only slept for two hours the previous night, and at the time she struck the victim, she was bending down and to the right so he could light a cigarette for her. She claimed that she never saw the wheelchair.

At a subsequent trial, Rich was convicted of DUI, and she didn’t appeal that. On the more serious maiming charge – that’s a felony – the prosecution had to prove conduct that is “so gross, wanton and culpable as to show a reckless or indifferent disregard for the safety of others.” The trial judge set out his findings as follows:

The court believes her conduct was gross, wanton, and culpable such as to show a disregard for human life.

In addition to the alcohol, the other factors that contributed to that gross, wanton, and culpable finding were sleep deprivation, were the distracted [sic], and failure to maintain a proper lookout. In and of itself the act of asking for a cigarette to be lit was reckless while driving an automobile.

The defendant further failed to brake, and failure [sic] to keep a proper lookout, as I indicated, in that another driver in the same place more or less successfully avoided the victim in this case.

You’ll note that when viewed in isolation, some of those circumstances don’t independently constitute “reckless or indifferent regard.” For example, numerous cigarette smokers will choke on the finding that asking your passenger for a light while driving is recklessness “in and of itself.”

But we don’t view these in isolation; taken together, the circumstances were enough to persuade first the trial court, then the Court of Appeals, and today the Supreme Court, that this conduct met the requirements for the felony conviction. That’s especially true where the appellate court views the evidence in the light most favorable to the prosecution.

On appeal, Rich had contended that there was no proof beyond a reasonable doubt of just how the accident happened. The victim’s intoxication may well have played a role, she argued, and the Commonwealth adduced no direct evidence – just an accident reconstruction – of how this all took place.

Importing the causation analysis of another statute to resolve this issue of first impression, the justices rule that in order to exculpate Rich, the victim’s intoxication (and the erratic operation of the wheelchair) would have to amount to a superseding cause, entirely breaking the chain of causation that included Rich’s actions. Because a reasonable factfinder could infer from the totality of the evidence how the collision happened and find fault with Rich’s actions, the conviction is affirmed.

Taxation

Consider the plight of the poor Commissioner of the Revenue when it comes to assessing machinery and tools for local taxation. She has to slap a value on each item used in manufacturing in her county, and she has to do it every year. She also has to be careful not to assess anything at more than its fair market value. She could do that, I suppose, by keeping a medium-sized battalion of appraisers on her staff.

Or she could use a nice, easy rule of thumb, valuing everything at 25% of its purchase price, and figuring that not many people will complain about getting a 75% discount right off the bat. That’s the approach in Western Refining Yorktown v. York County, involving the local tax on a troubled refinery on the Peninsula. Today we find out if that’s kosher.

Western Refining operated a 658-acre site as a refinery and terminal starting in 2006, when it purchased the site. By then, the refinery was already 50 years old. It spent plenty of money – over $200 million – over the ensuing two years to upgrade the facility. And then 2008 hit.

You remember the recession, right? Businesses across the Commonwealth and across the nation suffered greatly as the economy suddenly contracted. Some regions, such as Northern Virginia and here in Tidewater, were insulated from the worst of the downturn, because those economies depend heavily upon static military and other government spending. (Our turn for pain came about three years later, when the budget sequester slashed military spending, sending the entire military industry into financial turmoil. But I digress.) The refining business was among the business sectors that struggled mightily starting in 2008.

Western Refining’s owners lost $60 million in a single year, starting in mid-2009. By September 2010, it was time to do something; the company decided to idle the refinery, lay off its employees, and wait for the market to rebound, it hoped by 2013.

Beginning in calendar 2012, the Commissioner granted Western Refining tax relief, acknowledging that the machinery and tools weren’t helping much. A statute exempts idle equipment from taxation, so this looks like a good fit. But that left a highly unprofitable 2010 year, and an idle 2011. The Commissioner wouldn’t budge on those years, insisting upon collecting seven figures’ worth of taxes for each year. Western Refining paid the taxes and sued to get them back.

Alas, that 2013 rebound never came. Western Refining faced a need for fast cash, so it sold the site for $180 million, well below its estimated full value. The purchaser eventually decided to sell off the refining equipment and devote the site to non-refining uses.

But Western Refining still had one asset: its legal claim for a tax refund. Alas, the trial judge saw it the Commissioner’s way, and affirmed the assessment. Today, a sharply divided Supreme Court affirms that holding.

Every tax appeal starts with a presumption of correctness. (But see below for another take on that.) It’s up to the taxpayer who files a challenge to establish in court that the Commissioner assessed property at more than its fair-market value. Four justices find that Western Refining didn’t do that, despite adducing testimony from an appraiser that the true value of the equipment was only about $164 million. The trial court found fault with that appraiser’s approach: appraising the entire site and then backing out all the non-machinery items (for example, the cost of land), with the resulting number reflecting the machinery’s value.

The majority today finds that skepticism healthy, analogizing it to “appraising an entire residential neighborhood and then deducting the value of all the other homes to arrive at a residual value for the one remaining home.” The court finds that first the Commissioner and then the trial court could have found that that method fell short of rebutting the Commissioner’s selected method.

Three justices dissent. Justice McClanahan writes for Justices Mims and Kelsey, and maintains that the original 25% method is pure speculation – an arbitrary figure plucked out of the air. If you don’t use a legitimate basis to make the assessment, you aren’t entitled to a presumption of correctness. The dissenters would remand the case for reevaluation, without any presumption of correctness.

There are other aspects to this decision – I’ve greatly truncated the discussion in a 31-page set of opinions – but one other minor point deserves mention in an appellate context. The chief justice files a very short concurring opinion, merely quoting two sentences form the majority and stopping there. (It’s the “you didn’t pass the threshold” finding.)

This is tantalizingly close to the “silent concurrence,” where a justice joins in the result but declines to commit himself to embrace a detailed rationale. This is tantalizingly close to the “silent concurrence,” where a justice joins in the result but declines to commit himself to embrace a detailed rationale. A recent law-review article discusses this approach and calls it a legitimate means of “negative judicial agenda-setting,” a practice used far more in federal appellate courts than in the SCV. (If you want to check it out, see 17 J. Appellate Pract. & Proc. 141.) That might be a fair explanation for what happened here, especially given this opinion’s extraordinarily long incubation period: the parties argued the appeal back in the June session, and have waited over six months for today’s resolution.

 


ANALYSIS OF DECEMBER 8, 2016 SUPREME COURT OPINION

 

(Posted December 8, 2016) Today brings us one new published opinion and one brief published order from the Supreme Court. The order is a short affirmance of the Court of Appeals in Currier v. Commonwealth; the court adopts the ruling of the CAV.

The published opinion comes in Johnson v. Commonwealth, a criminal appeal involving three felony convictions for failure to appear. How many times did the defendant fail to appear? Why, once. How does that translate to three felonies? That’s the basis of today’s tale.

Johnson was arrested for three felony offenses, including forgery, all based on alteration of a check he had received from someone else. On the date set for his preliminary hearing, he didn’t appear. A grand jury thereafter indicted him on three counts of failure to appear, and since the underlying offenses were felonies, so were the FTA charges.

Johnson asked the trial court to reduce the number of charges to one, since he had only failed to appear once, on the date and time set for the prelim. The learned judge felt otherwise, reasoning that there were three underlying charges, and Johnson failed to appear on each of them. Johnson then entered conditional guilty pleas – he really didn’t have a defense to the failure to appear – and appealed from the ensuing six-year prison term (with one year to serve).

The Court of Appeals affirmed in a unanimous unpublished opinion, but the justices agreed to take a look. Today, the court splits 5-2 in affirming the three convictions.

The specific holding today is that the “unit of prosecution” for an offense like this is the number of underlying charges. Thus, if Johnson had failed to appear on a dozen related felonies, he would have faced that many additional FTA felonies. Today’s majority (Justice McCullough writes for the court) notes that the statute states that a person who is “charged with a felony offense” and fails to appear is guilty of a felony. The use of the indefinite article a means that the General Assembly must have intended for each underlying charge to count as a separate triggering offense.

Justice Mims, joined by Justice Powell, disagrees. He reasons that the use of the word a merely distinguishes the felony subsection from the companion provision for misdemeanors. The dissent feels that if the legislature had meant what the majority believes it meant, it could have said “each felony” to remove any possibility of ambiguity.

In a footnote, the majority declines to take a route that looked appealing to me – the rule of lenity, which counsels that where a penal statute is found to be ambiguous, courts should resolve the dispute in favor of the defendant. Today’s majority doesn’t find this statute to be ambiguous – a conclusion that admittedly caused an eyebrow to rise just a tad here in Virginia Beach. In my view, it certainly is possible to read the statute in the way the dissent urges. And while I can’t say for sure that that’s what the legislators had in mind, there’s at least a question about it.

 


 

ROBOLAWYERS? REALLY?

 

(Posted December 2, 2016) I assume you’re sitting as you read this. If you aren’t, pull up a comfortable chair, preferably one that won’t tip over easily.

I’ve just finished reading a fascinating new book, Megachange by Darrell M. West (Brookings Institution Press 2016). West analyzes recent historical trends and notes a pattern: we’re in an era of remarkably significant changes in many sectors of society. At just 171 pages (exclusive of endnotes), it’s an easy read, and I won’t spoil it by describing it in detail.

But one section of the final chapter grabbed me by the lapels and shook me. In that chapter, West peers into the trusty crystal ball to try to foresee future megatrends. In the section entitled, “Robots Take the Jobs,” he foresees the possibility of major unemployment due to automation. You may recall significant debate in the just-concluded presidential election over the question whether American manufacturing job losses are due to businesses’ relocations overseas, or to automation. West sees the latter as the greater contributor, and the greater long-term threat to full employment, and in turn, social stability.

I know what you’re thinking. Okay; but not lawyers. We exercise judgment in choosing among alternatives, and robots can’t do that. But West tells the story of a “challenge” by Amazon to see if designers could create a robot that’s able to “autonomously grab items from a shelf and place them in a tub.” Now the company uses 15,000 robots to do just that, making the humans who previously did the selecting involuntarily unemployed.

Yeah, yeah, you’re thinking. That’s low-level decisionmaking; nothing at all like what lawyers do. We have to be creative, exercise real judgment. No robot can do anything like that.

Well, actually …

Here’s a passage from p. 148 of West’s book that will get your attention:

Anthropologist Eitan Wilf of Hebrew University in Jerusalem … describes a “jazz-improvising humanoid robot marimba player” that can interpret music context and respond creatively to improvisations on the part of other performers. Designers can put it with a jazz band, and the robot will ad lib seamlessly without listeners being able to discern any difference with human performers.

Uh-oh. That’s getting painfully close. The Boss was a professional musician before she retired – an operatic contralto – and she has told me on occasion that opera singers and other classical musicians envy jazz performers because of their freedom to improvise. If a robot can pull off something as creative as jazz, are we in trouble?

There are examples in other fields. You’ll recall that in 1997, IBM’s computer Deep Blue took on reigning world chess champion Garry Kasparov in a match, and beat him. Kasparov was no ordinary player; according to the ratings I’ve seen, he had at the time the highest rating of any player in the history of the game. (Magnus Carlsen, who defended his world title in the past week, has since surpassed Kasparov’s late-90s rating.) Isn’t that creative thinking, at a profound level? The same company’s Watson took on the two most dominant players in the history of the game show Jeopardy!, and crushed them both.

An article in the Fall 2016 issue of Litigation, the ABA Lit Section’s quarterly magazine, which just arrived this week, reports that Thomson Reuters, the parent of Westlaw, is now using Watson in the legal industry. (Deep Blue is retired and sipping on WD-40 cocktails on a beach somewhere.) If you need a name for the cyber-interloper into our profession, Watson is as good as any.

But it’s still not what lawyers do. True. But go back in your mind’s eye 40 or 50 years and ask that generation’s auto workers if a robot could ever assemble a car. Go back even five years and ask those folks who thought they had secure jobs in the Amazon warehouse, if a robot could do what they did. A decade (or less) ago, could you find a taxi driver who would envision that a car could drive itself? Are you old enough to remember law practice in the 1970s, before Lexis and Westlaw changed the process of legal research? Who says our profession can’t change?

Better yet, pick your favorite search engine and – actually, go pour yourself a stiff bourbon and come back; go ahead, I’ll wait – search the phrase “robots replace lawyers.” I did it on Bing and got fifty million hits. I poked around some of the articles and found ominous titles, though the articles themselves usually included assurances that the robots would only replace lawyers for ordinary tasks like document reviewing; not for processes requiring deep thought. The Litigation article that I mentioned above concludes with this reassurance:

Attorneys concerned about being replaced by [Artificial Intelligence] need not fret because based on these thought leaders, AI is being developed not to replace attorneys but to help them.

Perhaps so; but some of the articles I surveyed were a tad more foreboding, as I’ll discuss in a moment. Some of the predictions included dramatic reductions in new-associate hires, since robots could handle time-intensive tasks without expecting vacations or consideration for partnership. (So if the market for new lawyers dries up, where’s the next generation of senior lawyers going to come from?)

But robots can’t develop the personal relationships that humans can. That’s true, too. And as long as humans are the clients, it will be an advantage to have a human in the law office. But some clients won’t care; if a robotic lawyer can undercut a human lawyer on price, some clients will give it a try, and if word spreads, who knows?

Even so, some experts believe that that human touch will become superfluous “within decades.” See this very recent article from the Harvard Business Review, forecasting that “the traditional professions will be dismantled, leaving most, but not all, professionals to be replaced  by less-expert people, new types of experts, and high-performing systems.”

What does all this have to do with appellate lawyers? None of the articles I skimmed mentioned a robot’s giving an oral argument, and in truth, I can’t picture that, either. But as robotics technology continues to advance, who can say where the limit is? As I noted in a recent essay on oral argument, the great advocates of the Nineteenth and early Twentieth Centuries would find our current practice appalling, unthinkable, what with our drive-by oral arguments and expansive written briefs. Who’s to say that in the not-too-distant future, robotic lawyers won’t submit briefs to robotic judges to generate a calculated decision without the time-intensive tedium of oral arguments?

If you view this possibility as dystopian, I agree with you. Please note that I’m in no position to say that it’s inevitable. I’m just telling you that it’s not as impossible as it seems now.

What’s a human to do? Garry Kasparov and Ken Jennings have probably been asking that question of themselves for several years now, ever since they went up against machines and came away with silver medals.

In the short run, there’s probably nothing you need to do; if you’re in my generation and may be practicing for another 15-20 years, your practice is probably safe. The appellate courts that sit in Virginia will be manned by human jurists, not robots, over that time, and they’ll demand to hear a human lawyer argue each appeal.

Now, if you’re just starting a legal practice and you’re in your twenties, you may have a different career outlook by the 2060s. (As if the glut of lawyers and the current terrible job market weren’t enough of a challenge.) For you the best approach is probably to cultivate the qualities of “judgment, creativity, and empathy” – the ones identified in the Harvard Business Review article where humans cannot currently be replaced. As long as other humans are making the decision of which lawyer to hire, you’ll have an advantage that the current generation of robots can’t match.

Update December 6: I’m not the only lawyer who’s pondering this topic. See this notice for an upcoming webinar from the ABA, entitled, “Alternative Legal Providers – The Predator That Eats You Will Not Look Like You.”

 


ANALYSIS OF DECEMBER 1, 2016 SUPREME COURT OPINION

 

(Posted December 1, 2016) Justice Kelsey gives us another tour of the hallways of legal history in Clark v. Virginia State Police. It’s a retaliation claim under the federal Uniformed Services Employment and Reemployment Rights Act. Because of my love of history, especially legal history, I might linger here a bit more than usual on the context before I get to the ruling.

Clark is a State Trooper who was denied a promotion. Claiming that this denial stemmed form his service in the Army Reserves, he sued the State Police under USERRA. As that statute provides, the suit was filed in state court. The State Police filed a plea of sovereign immunity, which the trial court sustained. The justices granted a writ to review the case.

The dispositive issue in the case is whether this federal statute’s express creation of a private right of action in state courts was sufficient to waive the states’ sovereign immunity from being sued in their own courts without their consent. In order to resolve it, Justice Kelsey starts in the early days of our Republic, with passages from The Federalist Papers and a 1793 SCOTUS decision.

Publius, the pseudonymous author of The Federalist Papers, had expressed the view that states retain “a residuary and inviolable sovereignty” that Congress could not touch. But in the 1793 case, Chisholm v. Georgia, SCOTUS ruled that since the Constitution gave federal courts the power to decide suits between private parties and states, those states were no longer immune.

That decision led directly to the Eleventh Amendment, which prohibited, among other things, suits against a state by a citizen of another state. More recent caselaw has effectively expanded that prohibition, so that you can’t even sue your own state in federal court. And since most states retained their sovereign immunity against being sued in their own state courts, that left claimants against states without much of a remedy.

But wait; there’s an exception to this premise. Bankruptcy courts can adjudicate claims involving states, so perhaps this immunity doctrine is on shaky ground. But in this century, SCOTUS has ruled that since bankruptcy proceedings are in rem, they don’t tread upon sovereign toes the same way a private right of action would.

Today’s opinion notes that while the foundation of the immunity may or may not be eroding, the building still stands and the Supreme Court of Virginia will respect it. Here is the dispositive holding in today’s unanimous affirmance:

Nonconsenting States cannot be forced to defend “private suits” seeking in personam remedies “in their own courts” based upon “the powers delegated to Congress under Article I of the United States Constitution.”

So does this mean that the Commonwealth and its agencies can just ignore the federal statute and discriminate against state employees with impunity? Not really; today’s opinion observes in a footnote that the Code of Virginia contains a parallel statute. Clark could have sued under that statute, which is an express waiver of immunity. Here’s why, from the same footnote:

Clark did not assert any claims against the VSP based upon Virginia law, arguing that relief under Virginia law is “specious” because “[w]hile [Code §] 44-93.4 is modeled on USERRA, this state statute applies only to Virginia guard forces [and] does not apply to [appellant],” a member of the U.S. Army Reserves. Reply Br. at 3-4. But see Code § 44-93(A) (referring to “members of the organized reserve forces of any of the armed services of the United States”).

I haven’t gone to dig up the statutes themselves, but I suspect it’s safe to take Justice Kelsey’s word for it: a valid cause of action existed under Virginia law, and Clark mistakenly disdained it. Because of the provisions of Rule 1:6, I also suspect that it’s too late for him to plead such a claim now. [Update: One of my readers has pointed out that Rule 1:6 only bars relitigation after a decision “on the merits.” The SCV has ruled that when the Commonwealth is immune, courts don’t have jurisdiction to adjudicate claims against it. Since a finding of no-jurisdiction is not on the merits, the Trooper may well be able to sue again under the Virginia statute, assuming the statute of limitations hasn’t expired.]

Here are a couple of closing points on this case. First, while the court doesn’t come right out and say it, the justices today almost – but not quite – hold that this provision of the USERRA is unconstitutional. The effect of this holding is to make the creation of that private right of action subject to the requirement that the state have waived its sovereign immunity. If there’s no waiver, then the grant of a private right of action is really of no effect.

Second, a number of lawyers and commentators in recent years have been critical of sovereign immunity. Here’s an example of a law-review article dating back almost 40 years on that point, invoking strains of “Tin soldiers and Nixon’s coming …”; there have been many similar calls since then.

If you’re hoping for judicial abolition of Virginia’s sovereign immunity, I have disheartening news. This opinion is a strong defense of the doctrine, and not a single justice backs away from it.