(Posted May 21, 2018) The Supreme Court of the United States this morning grants certiorari to review a Fourth Circuit ruling involving Virginia’s moratorium on uranium mining. The appeal is Virginia Uranium, Inc. v. Warren.

In the late 70s, shortly after discovery of a huge uranium lode in Pittsylvania County, the General Assembly commissioned a study to determine whether the material could be mined without undue risk to the Commonwealth and its citizens. The legislature enacted a one-year mining moratorium in 1982, pending receipt of the commission’s report. The next year, it extended the moratorium indefinitely. Two years later, a divided commission report recommended lifting the moratorium, but the legislature never did so.

The owner of the site didn’t press the matter, because the relatively low price of uranium didn’t justify the expense of extracting it. But about ten years ago, that price spiked upward, making it economically feasible to mine the ore. The owners sought legislative action to end the moratorium, but the 2013 General Assembly didn’t pass that bill. The owner then went to U.S. District Court, contending that the Virginia act was preempted by federal law.

The district court dismissed the suit, holding that preemption didn’t apply because the Nuclear Regulatory Commission doesn’t regulate uranium mining – just the processing of mined material and the storage of nuclear waste (“milling or tailing storage”). The Fourth Circuit affirmed.

At the petition stage, the Supreme Court called for the views of the Solicitor General. The Solicitor submitted an amicus brief supporting the mine owner’s request for certiorari, and today the Justices agree to consider the appeal on the merits. It is far too late for this case to make the OT17 argument docket; after briefing, the Court will likely receive oral argument late this year, and issue its decision in the first half of 2019.

This appeal will present a classic preemption question. When Congress passes legislation that “occupies the entire field” is a given area, there is “no room left” for states to act in that field. Preemption can be express, where Congress states that it is superseding all contrary state laws, or implied, where preemption takes place as a practical matter without a specific statement to that effect. The Justices will decide in this appeal whether, in regulating milling and tailing storage, Congress effectively preempted the rest of the uranium field, too.



(Posted May 17, 2018) The long losing streak is over; a citizen wins an appeal in a Freedom of Information case for the first time in several years. The decision in Bragg v. Rappahannock County is unanimous, and the chief justice provides the story.

As my readers no doubt know, FOIA requires that meetings of government bodies such as boards of supervisors must occur in public. There are exceptions, for which the body can recess behind closed doors to what’s generally called executive session. But when a body does that, it can only discuss specifically exempted matters — for example, advice from its lawyers on whether to settle pending litigation. Upon its return to open session, the members must certify that the board discussed only exempt matters in the executive session.

Bragg is a citizen who got word that on several occasions, the county board had discussed nonexempt matters in executive sessions. She secured a smoking-gun memo from one of the supervisors, acknowledging that the board had indeed discussed in private matters that should have been open to the public. Bragg filed a petition against the board and attached the acknowledgement as an exhibit.

The board filed a motion to dismiss, claiming that the petition was improper in form, since it has to be accompanied by an affidavit showing good cause. The board insisted that the language of the notarial certificate was inadequate. Here’s what it said:

THIS DAY personally appeared before me, the undersigned Notary Public, Marian M. Bragg, who, upon being duly sworn by me, stated under oath that all of the allegations in the attached Petition for Enforcement of the Virginia Freedom of Information Act are true and correct, except to the extent therein stated to be on information, and to such extent she believes them to be true.

The board argued that this “on information and belief” stuff was wholly inadequate for a FOIA petition, and besides, the petition didn’t indicate the source of the information. A judge designate bought that argument and dismissed the petition.

To predict how the appeal came out, all you need to know is this statutory tidbit: “when an affidavit is required in support of any pleading or as a prerequisite to the issuance thereof, it shall be sufficient if the affiant swear that he believes it to be true.” Code § 8.01-280. There was nothing wrong with the notary’s certificate. And the source of Bragg’s information, assuming that’s required in a petition, is fairly obvious: the board member’s acknowledgement. In a brisk 7 1/2 pages, the justices send this case back to Little Washington for a hearing on the merits.





(Posted May 15, 2018) A panel of the Fourth Circuit today reverses an order by an Eastern District judge who had awarded a writ of habeas corpus to Trayvion Blount. In Blount v. Clarke, the appellate court chides the district judge for relying on a dissenting opinion in a previous split panel ruling.

This case has been a cause celebre for quite some time here in Tidewater. Blount was a juvenile when he joined a crime spree; that choice earned him an initial sentence of six life terms plus over 100 years in prison. When SCOTUS handed down a ruling that barred life terms for juvenile offenders without the possibility of parole, Blount sought habeas relief. Governor McDonnell headed that off at the pass by issuing a partial pardon, reducing the sentence to 40 years.

There followed a series of rulings in state and federal appellate courts, going back and forth over the question whether Blount’s term was invalid and whether the initial term was at all material to the proceedings anymore. Governor McAuliffe reduced the sentence even further, but the appeal still wound its way through the appellate system.

Today’s ruling holds that the initial reduction to 40 years foreclosed habeas relief. Since it was a partial pardon and not a commutation, Blount had no ability to refuse it in order to maintain that he was really facing a life sentence. That undoes the current habeas proceeding.

If you’re mapping out the process, Blount has two appellate options left: He can seek en banc rehearing from the Fourth or certiorari from the Supreme Court of the United States. Both are real long shots, but the alternative is to keep grinding away on all that prison time.




(Posted May 11, 2018) Let’s take a quick scan of the countryside and identify some matters of interest in the appellate world.


New Fourth Circuit Nominees

The president has nominated one judge and one lawyer to fill seats on the Fourth Circuit. US District Judge Marvin Quattlebaum and AUSA Jay Richardson were tapped to replace Judges Dennis Shedd, who took senior status recently, and William Traxler, who will do so this summer. Both nominees are on the young side; Quattlebaum is in his early 50s and Richardson is in his early 40s.

Given Republican control of the Senate and the elimination of the filibuster rule, I expect both nominations to receive the Senate’s consent before the midterm elections six months hence.


Lawyers Hall of Fame

Virginia Lawyers Weekly has created a hall of fame for Virginia judges and lawyers. The publication recently announced its inaugural class of 33 members.

I will confess that upon reading the list of honorees, I was struck by what I perceived as a geographic bias in favor of lawyers and judges from Richmond and the State of Northern Virginia. Fully 75% of the names on the list were from those regions; Tidewater, by contrast, got only three (attorneys Anita Poston, Conrad Shumadine, and Hunter Sims, each of whom richly deserves the honor). Summoning all the righteous indignation I could muster, I fired off a complaint e-mail to my pal Paul Fletcher, the publisher of VLW, citing the obvious bias.

Of course, Paul set me straight: He pointed out that roughly ¾ of Virginia’s lawyers work in those two regions. Tidewater’s paltry delegation actually approximates our percentage of members of the state’s bar. And while I had listed examples of several fully qualified Tidewater lawyers, VLW didn’t receive nominations for them, so that explains their omission from the list.

Thus chastened, I wrote back to Paul and admitted defeat. But just you wait: Next year, the nominations will be awash with folks from the correct side of the Hampton Roads Bridge-Tunnel.

Two last points: None of the lawyers on the list hail from Virginia’s most populous city, a surprising development in my view. And it’s conspicuous for its absence of appellate practitioners. There are no appellate lawyers and only one appellate jurist (Senior Justice Liz Lacy, also a well-qualified honoree). We’ll have to do something next year about that, too.


A new stats feature

Unless you’re very new around here, you know that I’m not afraid of numbers. I devour statistics and am only too happy to dive into the appellate courts’ annual statistical reports, to see what insight I can divine from them.

Over the past few years, I’ve sensed a jurisprudential shift in the Supreme Court of Virginia. A far as I know, no one else posts statistical analysis of the court’s holdings. (It’s different for the Big Supremes in Washington; for them, there’s a wonderful site known as Empirical SCOTUS, which I recommend highly. Virginia posts a few stats in its annual State of the Judiciary report, but that’s focused on workload, not outcomes.) So it’s probably up to me to report on what I see.

I have written here recently, though irregularly, about the Supreme Court’s rightward shift in its published opinions over the past several years. Not all rulings have a right-left axis, of course; there’s no “liberal” side to a boundary line dispute, an equitable-distribution ruling, or a collection on a commercial surety bond. But many of the SCV’s decisions come in cases that have a reasonably definable big-guy-vs.-little-guy dynamic. We can analyze those over time to see how the court’s rulings have changed. And I have.

First, a word about what comprises each camp. The one for the big guys includes most circumstances where the government is one of the litigants – criminal appeals, tax challenges, tort-claims-act litigation, and so forth. It also includes insurance companies and manufacturers in tort cases, employers in wrongful-termination suits and Workers’ Comp claims, and so forth. You get the idea. I have taken to referring to these two camps in my own mind as David and Goliath – just to indicate their relative size, without any moral judgments.

You don’t have to go back very far to find a time when the two were fighting on even terms. From 2005 through 2009, Goliath won 51% of the time, about as close to a dead heat as you can get. In theory, trial judges who err should do so in favor of David or Goliath in roughly equal numbers, so that 51/49 split seems normal.

That began to change as the decade turned. From 2010 to 2015, Goliath won about 65% of the time. The number of cases is statistically significant, in my view; this shift isn’t an aberration. It probably represents a rightward vector in the court’s composition, with correspondingly more rulings favoring Goliath.

But Goliath was only building up momentum. In 2016, he forced David to accept the appellate silver medal in 82% of published opinions. In 2017, we got the same result, 82% in Goliath’s favor. Where David was once able to hold his own, these days he’s losing nine out of every eleven appeals.

This trend is proving durable enough that I’ve decided to make it a continuing feature here. Every three months, I’ll post what I call the David-Goliath Index, a sort of scoreboard of the quarter’s appellate outcomes – at least, those that are published – with the percentage of appellate victories by David and Goliath, respectively. For the first quarter of this year, the Index is 30/70. So far in 2018, David is putting up a good fight.


Controversy in an unusual locale

The national appellate guild has been abuzz about the recent SCOTUS argument in Trump v. Hawaii, involving the president’s travel ban. Solicitor General Noel Francisco concluded his argument by insisting that the president “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban.”

What’s wrong with that? Well, let’s start with the fact that, as a few reporters showed, the president made no such statement on September 25. He did give a speech that day – in Saudi Arabia – but never mentioned the travel ban. That very public disclosure prompted the SG to deliver a letter to the SCOTUS Clerk, stating that he had misspoken; he meant to say January 25. On that day, the president spoke with David Muir of ABC News:

“You’re about to sign a sweeping executive action to suspend immigration to this country,” Muir said.

“Right,” Trump answered.

“Who are we talking about? Is this the Muslim ban?” Muir asked.

“We’re talking about — no it’s not the Muslim ban,” Trump answered. “But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause us tremendous problems.”

This letter shifted the discussion topic to whether these words were a “crystal clear” repudiation of a Muslim ban, especially when compared with the president’s many statements to the contrary, both before and after the interview.

It is not my purpose – nor is it within my power – to sort out the underlying dispute. For you, my dear readers, it is only to mention that this short statement has focused attention, probably unwanted, on the Office of the Solicitor General. As I’ve mentioned here before, the SG is the highest-ranking person in the government who actually practices law, as we conceive it. His two bosses, the Attorney General and the Chief Deputy AG, are administrators who don’t write and sign pleadings or argue cases. The Solicitor is, from a law-practice standpoint, It.

I’m here to assure you that the Office of the SG does not admit schnooks into its employ. These are some of the highest-quality lawyers in government anywhere. The Solicitor himself is often referred to as “the tenth Justice,” reflecting the respect the Court has for the Solicitor’s views. The problem with the SG’s misstatement is that, if the Robes perceive it is truly inaccurate, it will impair the credibility of the office and the official. This is unfamiliar territory for these folks, and they probably figure that the sooner they get back out of the public eye, the better.

By the way, I can’t let this go without a practice tip for you. If you do “misspeak” in one of your oral arguments, it is entirely appropriate to write a prompt letter pointing that out, and correcting the error. But if you do so, be sure to keep it as short as humanly possible, and do not use the letter as an excuse to expand upon your argument. Here, in full, are the “guts” of the Solicitor’s letter to the Clerk, as an illustration of how simple to keep it:

Dear Mr. Harris:

            At oral argument in this matter last week, I referred during my rebuttal to a statement by the President “on September 25.” Transcript 81:17-19. I intended to refer to the President’s statement on January 25, 2017, that is cited in the government’s reply brief at page 28, note 8.

            I would appreciate if you could distribute this letter to the Members of the Court.




(Posted May 10, 2018) The Supreme Court issues two published opinions today in appeals argued in the February session. Justice Kelsey writes both of these, and they’re both unanimous.


Eminent domain

Condemnation lawyers are well-acquainted with the formula for determining damages to a residue parcel: You subtract the residue’s value after the take from its value before the take. Any difference is damage that’s owed to the landowner. Today, in Commissioner of Highways v. Karverly, Inc., we get an important refinement of that calculus.

The landowner operates a day-care center on five acres in eastern Henrico County, on Route 5. VDOT decided to expand the right-of-way, and took a strip of land plus a couple of easements from the site.

At the just-compensation trial, the landowner sought damages. It called an appraiser who testified that the take generated certain functional obsolescence on the site, requiring adjustments including relocation of fencing and equipment. Considering the residue’s value before and after the take, the expert testified to damages of about $190,000.

VDOT’s appraiser testified about the value of the take itself – a matter not in issue in this appeal – but when he tried to move on to the subject of damages, the landowner objected. VDOT’s appraiser had not valued the residue before and after the take; he simply concluded that based on his view of the property, including factors such as its permissible uses, there was no change in value. The trial court sustained the objection and excluded the damages opinion.

The condemnation jury returned a divided report (that’s permissible in condemnation trials). Three members awarded the landowner damages of roughly $168,000; the other two reported that they “felt that the value of the remainder after take was not correct, which prevented us from agreeing to the damages.” The circuit court entered judgment on the majority report; VDOT got a writ.

The justices today reverse and remand the case for retrial – presumably though not expressly on the issue of damages alone, since VDOT didn’t appeal the award for the take itself. The court finds that the exclusion of the VDOT appraiser’s testimony was an abuse of the trial court’s discretion.

The primary ruling today is that an appraiser need not calculate the before and after values before testifying that there are no damages. (This rule obviously benefits condemnors only, not landowners.) The justices rule that the VDOT expert did enough investigation to conclude that there was no adverse effect on the property, so it was unnecessary to perform the calculations.

There’s a clear subtext in today’s opinion that the Supreme Court was not comfortable with the testimony by the landowner’s expert. Justice Kelsey repeatedly writes critically of that expert’s methods and conclusions. This is noteworthy because in the appeal, VDOT didn’t assign error to the foundation for the landowner’s expert’s opinions; it only appealed the exclusion of its own expert. There’s also an unusual emphasis on the split nature of the jury’s report, something I haven’t seen before in these decisions. In the end, the court decides that these factors militate in favor of admission of VDOT’s expert’s testimony.



While most lawyers are aware of the Statute of Frauds, Code §11-2, most don’t know that it has a cousin, the Statute of Conveyances, Code §55-2. The latter statute requires that a lease for a term of more than five years must be by deed or will. The justices explore the Statute of Conveyances this morning in The Game Place, LLC v. Fredericksburg 35, LLC.

This appeal is about a commercial lease for a store in the shopping megalopolis known as Central Park in Fredericksburg, just west of I-95 at Exit 130. Both the landlord and tenant are successors to the original parties to a 15-year lease. The Game Place operated a store – presumably selling video and computer games – and paid monthly rent to the landlord, Fredericksburg 35, for 13½ years. At that point, probably facing declining sales due to the rapid rise of online gaming, the tenant decided to close up shop. It handed the landlord the keys and a check for the current month’s rent, and said farewell.

The landlord sued the tenant and its guarantor for the remaining rent over the term of the lease – about $68,000 – plus 25% attorney’s fees. The tenant asserted our new friend the Statute of Conveyances as a defense, claiming that the landlord based its suit on a plain-vanilla lease, not in the form of a deed. The trial court rejected that argument, holding that “The law looks at substance not form,” and ruled in favor of the landlord. The tenant and the guarantor got a writ.

Today’s opinion is yet another stroll through centuries of legal history, courtesy of Justice Kelsey’s enduring love of that topic. (I’m not complaining; I like it, too. I’m a history geek in addition to being a word nerd.) That history leads the court to the conclusion that the Statute of Conveyances is not merely an obsolete relic; it’s still a part of Virginia law and still governs leases such as this one. Since this lease wasn’t in the form of a deed, wasn’t executed under seal, and didn’t meet any of the requirements for a seal-substitute under Code §11-3, it’s unenforceable as to its term.

Note the emphasis in that last sentence. All of the other provisions in the lease are binding on the parties; but the courts must treat this lease as unenforceable for its provision of a 15-year lease period. Instead, the term is governed by the usual rhythm of rent payments. In this case, the tenant had paid rent monthly, so it is, in effect, a month-to-month lease. Since the tenant was current on rent when it surrendered possession, it owes the landlord nothing. And since the guarantor’s liability is contingent upon the tenant’s, he gets off, too. The Supreme Court reverses and enters final judgment.

One last point about today’s decisions: If you like footnotes, you’re going to have a blast reading these. There are 20 footnotes in Karverly and 24 in The Game Place, while the two opinions add up to just over 33 pages. (You can probably gloss over the notes in The Game Place unless you really like the history lesson, but the notes in Karverly are important to understanding the ruling.) I haven’t performed a statistical analysis, but my general sense is that Justices McClanahan, Powell, and Kelsey tend to use far more footnotes than do their brethren on the court.


But wait! There’s more …


In an unpublished order – probably unpublished because the circumstances are so bizarre – the justices modify an assault-and-battery judgment from Hampton. The case is Mack v. Blount, brought by a man who sustained “a small scratch” on his hand when Mack struck him. Mack was evidently offended that Blount was walking his dog and encroached upon her property.

Normally in disputes like this, I’m on the side of the dog person. I regard cat ownership as an affliction that probably indicates an unstable mind. But I don’t know the circumstances here — conceivably, Blount might have declined to scoop up his dog’s deposit in Mack’s yard, or something like that — so I won’t judge too harshly.

Blount sued for $200K in compensatory damages and the statutory max for punitives. A jury saw his claim as more modest: In a question sent back to the court, it asked, “Can we place legal fees as the $ amount for compensatory damages or does it have to be an exact dollar amount?” This is a bad sign for the plaintiff.

The problem with this is that, while Blount had sought fees in his pleadings, he hadn’t adduced any evidence of them at trial. Under Lee v. Mulford from 2005, that means it’s too late. But instead of answering “No,” the judge just told the jury to reread the instructions and return a verdict.

What came next won’t be a surprise: The jury fixed damages for battery as “legal fees not to be [sic] exceed $35,000 plus $1.00.” (There was also an award of $1 for the assault claim and punitives of $1.) That led Mack to ask the court to instruct the jurors that they cannot award legal fees. The judge declined to do that. Instead, the court gave the jury a fresh verdict form and told it to go back and insert a numeral in the blank for damages. The jury did so, awarding the plaintiff $35,001 for battery.

You know what’s going on here, right? The jury figures that Mack shouldn’t have slugged Blount, and should have to pay his lawyer. But the jurors assessed one scratch as being worth one buck.

The court entered judgment for the $35K+3 – don’t forget that punitive award – but today the justices rule that the trial judge should have instructed the jury that no legal fees could be awarded in the case.

Normally, that would result in a remand for a new trial. But we’re not done with the strange developments here. Asked at oral argument whether Blount would prefer a new trial or a reduction of the damages to $3, Blount’s lawyer said, “We’ll take the $3, thank you,” or words to that effect. The lawyer explained that that would at least represent a victory, even if it would only be symbolic. Since that’s the relief that Mack wanted, too, the justices shrug and say, “Good enough for us, too.” The court reduces the award to $3, enters final judgment, and remands for an award of costs.

Who said that appellate litigation is mundane?