(Posted February 15, 2018) The Fourth Circuit this morning hands down a decision in International Refugee Assistance Project v. Trump, the litigation involving the Trump Administration’s travel ban. By a vote of 9-4, the court affirms a Maryland district court’s ruling invalidating the government’s policy.



Chief Judge Gregory authors today’s majority opinion, which formally addresses the third executive pronouncement on immigration. The first two, known as EO-1 and EO-2 (the EO stands for Executive Order) came in the days right after the president’s inauguration, and applied to several nations that were all majority Muslim. This one was issued September 24, and covers immigration from eight nations: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. You’ll note that two of those aren’t primarily Muslim nations.

The most glaring question today is whether the addition of those two non-Muslim nations means that the September order was neutral as to religion. Today’s opinion quotes a 1971 SCOTUS opinion holding, “[T]he Establishment Clause forbids subtle departures from neutrality, ‘religious gerrymanders,’ as well as obvious abuses.” The court finds evidence to establish the real motive for the policy in a predictable place:

Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam.

The majority opinion is 61 pages, and disposes of the preliminary issue of justiciability, including consideration of injury in fact and ripeness, before turning to the primary question in the appeal: Whether the Maryland district court correctly enjoined the September executive order.

My readers know well that analysis of preliminary injunctions focuses on four factors. The Fourth takes up each of these in turn:

Probability of success

This is the longest section in the opinion, and contains most of the jurisprudential fireworks. The court notes that the travel ban’s challengers have to establish that the Administration’s invocation of national security “is a pretext for an anti-Muslim religious purpose.” Proving that something is pretextual is a big ask, but not here:

In the extraordinary case before us, resolution of that question presents little difficulty. Here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself.

I’m well aware that while the President has a lot of die-hard supporters – his “base” – there are plenty of other conservatives who support his policies but wish he could cut out his troublesome Twitter habit, which often proves embarrassing. Here, that habit comes back to bite the President, as the court cites Trump’s own words to establish his meaning. The opinion cites:

President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

In responding, the government had to show that the travel ban’s primary purpose was secular. Here, the court ventures on a short detour to mention briefly the statements by candidate Trump in 2016:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. We need not and thus do not rely on pre-election statements in assessing the constitutionality of the Proclamation.

Ah, but there’s a zinger coming:

We need not do so because the President’s inauguration did not herald a new day. Rather, only a week after taking office, President Trump issued EO-1, which banned the entry of citizens of six Muslim majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. The very next day, January 28, 2017, Rudy Giuliani, an advisor to President Trump, explained that EO-1’s purpose was to discriminate against Muslims.

The court notes that with this context, “every federal judge who considered the matter enjoined EO-1, finding that it likely violated the Constitution.” It didn’t help that in the following months, Trump often referred to the original ban (EO-1) almost wistfully, referring to the following orders as watered down and politically correct.

I hasten to add that many of my readers may agree that these successive efforts to craft a constitutional policy really were bows to political correctness. I won’t weigh in on that debate; I’ll just mention that the question here is whether the policy violates the Establishment Clause in doing so. The relevance of this information is in what the court finds it shows about the true purpose behind the policy.

Having found that the plaintiffs are likely to succeed on the merits, the court goes on to find that they’ve made a sufficient showing of irreparable harm. The policy is already in effect, so there’s no question of what the future might hold. As as for that harm:

We further agree with the district court that the individual Plaintiffs whose family members are categorically rendered ineligible for visas have demonstrated a likelihood of irreparable harm. Prolonged and indefinite separation of parents, children, siblings, and partners create not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience.

The court disposes of the third prong, holding that the balance of equities favors the plaintiffs, especially since the district court’s injunction conforms to SCOTUS’s ruling (137 S.Ct. at 2088) limiting the injunction to persons with “a credible claim of a bona fide relationship with a person or entity in the United States.”

The last prong of the analysis, the public interest, is probably the easiest for the majority. Having held that the policy is unconstitutional, the court rules that “it cannot be in the public interest for the President to violate the Establishment Clause.” Continuing, the opinion points out, “On a fundamental level, the Proclamation second-guesses our nation’s dedication to religious freedom and tolerance.”

The affirmance notes that the injunction excludes the two non-Muslim nations, North Korea and Venezuela. Since the court’s merits analysis is limited to the Establishment Clause claim, based on an anti-Muslim animus, its appropriate to exclude those. Finally, the court stays the injunction pending resolution of the issue by the Supreme Court.

While there are several concurring opinions, let’s turn immediately to the primary dissent. Judge Niemeyer (joined by two other dissenters) begins with the premise that immigration policy is the president’s job, and the courts need to keep their noses out of it. Here’s his summary:

The opinions of the district court and those supporting the majority’s judgment are demonstrably wrong in virtually every material respect. They fail to recognize and address more than a century of jurisprudence explaining the deference federal courts owe to the political branches with respect to decisions to grant or deny foreign nationals entry into this country; they ignore and again fail to address the plain language of the Administrative Procedure Act on which the plaintiffs rely to allege a cause of action that it does not provide; they misconstrue the INA, effectively rewriting it to accord with their own policy choices and then concluding that the President violated the statute as so revised; they apply a novel legal rule that provides for the use of campaign-trail statements to recast later official acts of the President; and they utterly subvert longstanding Supreme Court precedents on the Establishment Clause.

Other than that, the majority opinion is just fine.

Okay, I’ll remove my tongue from my cheek. Judge Niemeyer begins the substantive part of his opinion with a section entitled, “Threshold Barriers,” and that gives you an idea of how he views this legal challenge. He first renews the contention that the Separation of Powers Doctrine consigns immigration policy to the Executive Branch, not the Judicial. The exclusion of a given individual from the country is generally nonreviewable, and the dissent perceives that this is just such a judicial review.

The district court had dealt with this objection by saying that it wasn’t reviewing individual decisions but a nationwide policy, against the backdrop of the Establishment Clause. That court then found that the government’s stated reason for the policy wasn’t bona fide, so it was fair game for judicial scrutiny. Wrong approach, the dissent maintains, pointing to language in caselaw that says that the government’s justification must only be “facially legitimate and bona fide” in order to prevent judicial review. On its face, Judge Niemeyer argues, there is at least a facially bona fide, non-discriminatory reason for this policy: legitimate national security concerns about terrorism.

The dissent perceives that the inquiry over a bona fide justification must be resolved by looking only at the four corners of the policy itself; not to extraneous information: “a lack of good faith must appear on the face of the government’s action, not from looking behind it.” (Emphasis in original) It’s here that Judge Niemeyer chides the majority for relying on campaign statements – though he does add that it’s also based on “later statements and tweets” – to seek to prove that the policy is a sham.

The dissent next tackles the topic of standing, maintaining that the Administrative Procedure Act doesn’t give courts the ability to review agency actions where other statutes or laws forbid such review. It then turns to the merits of the plaintiffs’ claims that the travel ban violated the Immigration and Naturalization Act – a statutory claim that didn’t figure in the majority’s ruling, based exclusively on the Establishment Clause.

In an unusual turn, Judge Gregory had addressed the INA issues in a concurring opinion – technically, concurring with his own majority opinion. But he couldn’t cobble together six other votes to make that section part of the formal opinion of the court; only Judge Wynn signs on to this section.

Finally, 260 pages into our long stroll through this dispute, the dissent reaches the Establishment Clause. Judge Niemeyer finds three flaws with the majority’s ruling here:

First, as already explained, it misconstrued and misapplied the holding of Mandel to look behind the text of the Proclamation; second, in looking behind the text, it created and applied a new and unprecedented rule embracing a scope of relevant evidence that is both dangerous and unworkable; and third, its Establishment Clause analysis stretched the Supreme Court’s holdings in this area far beyond their intended scope.

Of these, the one I found most interesting is the second. Here the dissent cites the famous case of Hamdi v. Rumsfeld from 2006 for the premise that the courts don’t defer to comments by public officials to the media when interpreting those officials’ actions. Basically, comments to the media are unreliable policy indicators.

Judge Niemeyer’s explanation calls to mind the fact that people on opposite sides of a given issue can both usually find support from biblical quotations:

Because of their nature, campaign statements and other similar statements, including tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official’s developing ideas best supports its desired conclusion.

This, you can understand, makes citation of campaign statements troublesome. But back to the majority: Judge Gregory, as I note above, explained that the president’s post-inaugural statements and tweets echoed his earlier pronouncements. The majority also points to a statement by the White House Press Secretary that the president’s statements and tweets are official government communications.

Judge Niemeyer isn’t done on this point. He notes that there’s no logical limit to how far back a court can look. Statements made back in college? And after making his campaign statements, Trump did something that only 43 other humans have ever done: He took an oath to “preserve, protect, and defend the Constitution” as President. That intervening act should make a difference, Judge Niemeyer believes, making pre-inauguration statements fundamentally different from those made on the campaign trail.

Judge Niemeyer sees the majority’s approach as an implicit threat to the courts’ legitimacy:

[P]ublic respect for Article III courts calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives. It appears that the temptation may have blinded some Article III courts, including the district court and perhaps the majority of this court, to these obligations, risking erosion of the public’s trust and respect, as well as our long-established constitutional structure.

As I noted above, there are several concurring and dissenting opinions today; there are eight separate submissions, including the majority and the main dissent. Judge Traxler, for example, believes that the plaintiffs don’t have standing to raise statutory claims, and so he would not reach the merits of those. He voted last year with most of today’s majority, ruling that a district court properly enjoined EO-1 and EO-2. He votes with the dissent this time, finding that the September order appropriately addresses the Fourth’s previous concerns.

Judge Agee also dissents more broadly on standing ground. He believes that the plaintiffs don’t have standing even to raise an Establishment Clause claim. Judges Niemeyer and Shedd sign on to this view.

On the other side of the fence, Judge Wynn believes that the constitutional grounds for the majority’s ruling are insufficient. He would go on to rule that the travel ban violated federal statutory law. Judge Harris disagrees; joined by Judges Motz and King, she feels it’s best to leave the statutory claims for another day. Judge Keenan, joined at least in part by three other judges, would uphold the injunction on both constitutional and statutory grounds.

This set of opinions is quite a collective opus. In practical terms, it may not have much short-term impact, because the court stayed its ruling immediately. SCOTUS will take up related issues in its current review of a Ninth Circuit decision. That case comes to the Supreme Court only on statutory grounds; this case presents the justices with the constitutional angle. The appeal from the Ninth Circuit will probably be argued in April, with a decision coming by the end of June. There is zero chance that this case will be ready for a merits argument by then, so it remains to be seen whether the Robes will tackle the constitutional approach this year.




(Posted February 14, 2018) In early August, Fauquier County law enforcement officers arrested a man on suspicion of the first-degree murder of one of his supervisors at work. The case wended its way through the legal system, and the circuit court eventually set a trial date for March 2018.

The defendant was in custody from his arrest until January 3, on which date a judge granted a motion for him to be admitted to pretrial bail. A horrified prosecutor, concerned that a murderer was on the loose, quickly appealed the bond ruling to the Court of Appeals. On January 25, that court affirmed the ruling, no doubt because of the abuse-of-discretion standard of review.

The prosecution pressed on, filing a petition for appeal in the Supreme Court on February 1. Someone at the court must have sensed the urgency of the situation, because the defendant filed a brief in opposition four days later instead of meeting the usual 21-day deadline. I infer that the court directed the early filing.

One week later, on February 12, the justices handed down a rare GVR order, in Commonwealth v. Duse: The court grants the petition for appeal, vacates the bond order, and remands the case for next month’s trial. This is, of course, greased lightning when compared with a normal appeal; but review of bond rulings, no matter which side is the appellant, is by no means normal.

We don’t know which justice wrote the court’s per curiam order. It notes that with first-degree murder charges, the Code creates a rebuttable presumption that “no condition or set of conditions will reasonably assure Duse’s appearance or the safety of the public.” The defendant undertook to rebut that presumption, and in the trial judge’s eye, he did that.

But the court said and did some things on the record that led the justices to reverse and direct that the defendant be held in custody pending trial. The prosecution identified four ways in which it contended that the judge erred, and the justices go along with all four. First, and probably simplest, the trial court noted that the defendant, not having been convicted of anything, was entitled to a presumption of innocence. That’s true during the trial; but not at a bail hearing; indeed, the statutes create the opposite presumption with a first-degree murder charge.

Second, the Supreme Court finds that the trial judge improperly balanced the severity of the charges against the absence of a specific, current threat to the public. “The court inexplicably stated that Duse had no history of violence, ignoring that he currently was under indictment for the execution-style murder of his work supervisor.” The court notes that evidence of current specific threats isn’t part of the statute’s calculus.

Third, the Supreme Court holds that the trial court improperly speculated that the defendant wasn’t a flight risk because of his age, calling that ruling “a clear error in judgment. Given his age [76], his apparent ownership of a home in the Philippines, and the specter of a murder conviction, Duse has every incentive, along with the means, to flee prosecution.”

Finally, the Supreme Court chides the trial court for “wholly discounting and according no weight to Duse’s well-documented prior history of mental health disorders.” In all, the justices have no difficulty in sending the defendant back to jail to await trial.

I’ll add a couple of quick observations about the order here. First, this is the second time in the past three months that the Supreme Court has handed down a merits ruling on a Monday, instead of holding the decision for release on the normal Thursday opinion day. The previous one was another out-of-the-ordinary case, JIRC v. Pomrenke, decided in late November. In theory, the court could have done that simply for emphasis, since a Monday ruling stands out from the ordinary. But I doubt that; in both instances, I believe it’s more likely that the court simply thought that it was important to get the ruling out immediately.

Second, the Supreme Court’s new decision-notification system didn’t seem to notice this one. I subscribe to the service (naturally), but there was no ping on Monday for a new published order. I did get an e-mail on Tuesday for an update to the Appeals Granted listing, but that turned out to be a false alarm; the court didn’t announce any new writs last week.

Now, having launched and relaunched a website of my own, I will not criticize the court’s IT folks as they iron out the wrinkles. I have felt their pain.




(Posted February 8, 2018) You read that headline correctly, my brethren and sistren. The Supreme Court of Virginia hasn’t released a published opinion in 2018, so we’re down to analyzing unpubs. Even so, there have been only two of those since the calendar turned.



This morning, the court hands down a short order in a sanctions appeal: Barrett v. Minor out of the Bristol Circuit Court. This appeal began as a child-custody dispute. When the trial court sustained Minor’s demurrer to Barrett’s complaint, it dismissed the complaint with prejudice and set a date for argument on Minor’s motion for sanctions against Barrett. That hearing date was nearly three months down the road.

Four months after the hearing date, and almost seven months after the demurrer order, the court entered an order imposing the requested sanctions. Barrett appealed, and today the justices reverse and enter final judgment denying the imposition of sanctions, finding that the trial court lost jurisdiction 21 days after dismissing the complaint.

This outcome was predictable for appellate practitioners. The dismissal order didn’t retain jurisdiction over the case to adjudicate the motion for sanctions; it merely calendared the motion for hearing on a later date. The Supreme Court has already ruled that merely retaining a case on the docket isn’t sufficient to postpone finality. City of Suffolk v. Lummis Gin Co., 278 Va. 270, 277 (2009). Only entry of an order that expressly “retains jurisdiction” will keep the case in the breast of the trial court indefinitely. Johnson v. Woodard, 281 Va. 403, 409-10 (2012). You should regard that two-word phrase as a set of magic words that you must include in the order; if the phrase isn’t in there, you need to get the judge to sign an order suspending the judgment.

This is the first decision from the court’s January session, which concluded four weeks ago. For those of you who follow the timing of the court’s decisions, four weeks is about the time in which I expect to start seeing unpubs arrive; the first published opinions typically start arriving around six weeks after the session. If you’re keeping score, there are still eight appeals outstanding from the November session, and two groups of poor appellate souls are still waiting for rulings in appeals argued in September.

One last point on this case: The Fourth Circuit and the Court of Appeals of Virginia each have provisions allowing for summary reversals. 4th Cir. LR 27(f); Rule 5A:27. If the Supreme Court had a similar provision in its rules, I suspect that this appeal would have ended that much sooner.

UPDATE 3:00 p.m.: My appellate pal Steve Minor has given me some additional information about the case. He represented the appellee, and has forwarded to me a couple of documents that obviously aren’t in today’s order.

Steve realized that the trial judge had lost jurisdiction long before entering the sanction order. Indeed, he notified the trial judge of that fact long before this appeal; but the court pressed on. The eventual sanction wasn’t for a monetary award; instead, the court imposed a prefiling clearance requirement before Barrett could file any more litigation against Ms. Minor.

On appeal, while Steve might have tried to tilt with windmills and ask the justices to abandon their clear line of prior rulings, he took the professional approach instead. He notified the Supreme Court of his agreement that the trial court had erred. Despite that, the justices directed him to file a merits brief. Steve then filed a concise brief of appellee that outlines why the order was improper. Today’s opinion followed what I understand is a very short oral argument last month.

In the appellate field, Steve is one of the real pros. By handling this matter the way he did, he upheld the Principles of Professionalism and, in the process, gained priceless credibility with the Supreme Court.



In contrast to the short, plain ruling in Barrett, last week’s order in Dominion Nuclear Connecticut, Inc. v. Securitas Security Services USA, Inc. is complex and produces a divided ruling.

Dominion operates a power plant up in New England. It hired Securitas to provide site security at the plant. The contract contains a provision requiring Securitas to indemnify Dominion from liability arising from “any and all claims” brought by any party. The indemnity provision applies “to the extent arising from the negligence” of Securitas or its employees.

While apparently on patrol one day, a Securitas employee slipped and fell, injuring herself. She sued Dominion in a Connecticut court, alleging that the company was negligent. Dominion answered and asserted that the employee was at fault. It then asked Securitas to indemnify Dominion against the claim.

No dice, Securitas answered; neither we nor our employee did anything wrong. Dominion pointed to its answer, raising the comparative negligence defense, and contended that that assertion triggered the indemnity requirement. Dominion decided to sue Securitas here in Virginia – that’s what the parties’ forum-selection clause required – for breach of its obligation to provide coverage and a defense.

Analyzing cross motions for summary judgment, the trial court agreed with Securitas. Last week, a bare majority of the Supreme Court reversed and remanded the case.

We don’t know which justice wrote the opinion, except that it wasn’t one of the three dissenters, identified below. The majority finds that Dominion’s assertion of the employee’s negligence satisfies the “to the extent” provision, finding that her PI lawsuit “implicates her negligence as a Securitas employee and thus triggers Securitas’ duty to defend and, depending on the outcome of the suit, to indemnify Dominion.”

Justice Kelsey files a dissent, and he’s joined by the chief justice and Justice Goodwyn. He points out that the indemnity provision covers claims based on Securitas’s negligence. The employee’s lawsuit – the document that sets out her claim – never asserts that she was at all negligent; in fact, it says that she was blameless. The dissent would thus find that there’s no duty to indemnify, since Dominion’s defensive pleading isn’t part of the employee’s claim against the company.

How did Dominion manage to persuade a majority of the court that the word claim means “the claim and any defenses that may be raised in opposition to it”? Justice Kelsey asserts that it’s by a sort of legerdemain on the part of the lawyers:

In a creative interpretation, Dominion defines the relevant claim under the indemnity provision not as Brandenburg’s complaint, which is predicated solely on Dominion’s negligence, but rather as Dominion’s answer, which includes a comparative-fault defense predicated solely on Brandenburg’s negligence. I am content to dismiss this argument with the observation that the claim referred to in the indemnity provision means a claim – not an affirmative defense to a claim. Dominion sees no difference between the two because it substitutes the word “accident” for the word “claim” in the indemnity provision. Dominion’s briefs on appeal lay bare this substitution with the repetitive, but erroneous, assertion that the indemnity provision applies if Dominion shows that the “accident was caused, at least in part, by [Brandenburg’s] own comparative negligence” and that, as a result, “the accident could have arisen from Securitas’s negligence.”

(Emphases original in dissenting opinion) The dissent points out that Securitas will thus have to pay 100% of the costs to defend the Connecticut lawsuit, even if it turns out that the employee really wasn’t at fault.

I know better than to make sweeping pronouncements about cases where I haven’t seen the briefs. I can, however, say that after reading these two passages, my sentiment lies with the dissent. I do see a difference between a claim and the defenses to that claim. If the indemnity language had been phrased differently – for example, if it had covered all litigation in which a claim of negligence by Securitas or its employees was a triable issue – then I might feel otherwise.

The reason why this decision is unpublished is assuredly because of the unique language used in the indemnity agreement, making the decision of limited utility as precedent. It’s worth noting that even Justice Kelsey acknowledges that the indemnity language was “awkwardly worded,” the result of “poor craftsmanship.” Right now, some transactional lawyer is reading that passage, and cringing.




(Posted January 31, 2018) You’ve seen the setup in a cowboy movie or two. One cowpoke says to another, “Shore is quiet ‘round here.” The other pauses for a moment before answering, “Yeah … too quiet.”

In that vein, I give you the too-quiet atmosphere of the Supreme Court of Virginia, where an entire month has passed without a single published opinion, a single unpub, or even a single writ granted. The most recent opinions and unpubs came down December 28, and the most recent writ arrived a week before that. This makes me leery that SCV Clerk Trish Harrington will hand me a front-end-loaderful of decisions when the court next speaks – possibly on Thursday, February 1.

Meanwhile, here are a few things that have caught my eye.


New open-records policy on the horizon

Last June, the justices dealt yet another loss to open-government advocates in The Daily Press v. OES, a FOIA case involving access to aggregated criminal-justice records. The Peninsula newspaper asked the Office of the Executive Secretary for access to those records for a series on race and the criminal-justice system. OES responded that it wasn’t the custodian of the records; the local clerks of court are.

The justices agreed with their Executive Secretary, and affirmed a judgment in his favor. That makes the newspaper’s analysis of the data tremendously complicated – you’d have to make a hundred separate FOIA requests to a hundred separate clerks just to get the GDC-level documents.

I infer that this decision must have prompted more than one open-government fan to contact his or her legislator. Virginia Lawyers Weekly reported a couple of weeks ago that there were multiple bills in the General Assembly hopper to address public access to judicial-system records. I have to assume that The Daily Press (the judicial decision; not just the newspaper) played a large part in that.

Last week, the Supreme Court played what looks to me like a preemptive card, announcing publicly that it will promulgate a rule to address public access to non-confidential judicial records before the end of this year. The court’s press release also says that the court “is committed to working with clerks, legislators, attorneys and other interested parties to develop statewide access to online case information by July 1, 2019.”

This, you will appreciate, appears to be in direct response to public reaction to the ruling in The Daily Press. Note that the release says that the court is committed to working with all those other folks; not that the court will handle the chore itself. Even so, those open-government fans will see this as a welcome development.

If you’ve read the release, you will have noticed that it begins with a paragraph that stakes out judicial “turf,” declaring the judiciary to be an independent and coequal branch of government. That’s the justices’ way of saying to the legislature, “Leave this to us.”


Two new traps for the semi-wary

Every third year, my appellate brother Kevin Martingayle and I present a program through Virginia CLE entitled, “Preventing Nightmares: Preserving Issues and Avoiding Waiver.” It’s a collection of some of the recent ways in which appeals have died fiery deaths before the court ever gets to the merits – which is a bad thing if you’re an appellant. (If you’d like to watch the one we taped four months ago, here’s a link.)

Here’s a sneak peek at two recent rulings that are likely to make the next iteration of the program. In both of these cases, the appellant knew something about appellate procedure, but got a nasty surprise ruling from the court. In combination with last July’s ruling in Browning v. Browning – where the CAV ruled that handing a transcript up to the judge doesn’t suffice to make it part of the record – there are some scary landmines out there.

McGinnis v. Commonwealth, 68 Va. App. ___ (Dec. 12, 2017)  This is an appeal of three convictions on bad-check charges. McGinnis got a public defender, but despite his lawyer’s best efforts, McGinnis wound up with the short straw. Twenty days after the sentencing order – that’s the final order in criminal cases – McGinnis timely moved the court to set aside the judgment and grant a new trial. And when I say “McGinnis moved,” I mean the client prepared and signed the motion; his lawyer probably didn’t even know about it.

The motion had an interesting angle: McGinnis argued that you can’t be convicted of bad-check larceny when the checks are written to satisfy antecedent debts (as contrasted with receiving money or other property in exchange for the check). The next day – the last day on which the trial court had jurisdiction – the judge signed an order denying the motion.

After granting a writ, the Court of Appeals ruled that the post-judgment motion was a nullity because it was signed by neither an attorney for a party nor an unrepresented party. In true pro se situations, the client can and does sign pleadings, as Code §8.01-271.1 requires. But when you have a lawyer, you aren’t an unrepresented party, so in the absence of a valid signature, the motion wasn’t properly before the court.

Riley v. Commonwealth, Rec. No. 0405-17-1 (unpublished, Dec. 27, 2017)  This one’s a DUI conviction from Virginia Beach. Riley’s lawyer moved to suppress certain evidence. After a hearing, the trial court denied the motion. Riley’s lawyer then evidently reached an agreement with the prosecutor to enter a conditional guilty plea, thus properly preserving his right to appeal the suppression ruling.

But the judgment order that the court actually entered didn’t contain the conditional-plea language. Thirteen days after sentencing, the defense lawyer moved the court to reopen the case, and the next day, the court timely entered an order reopening the case and placing it on a docket three weeks thence for hearing. The prosecutor consented to the reopening.

So far this seems all perfectly normal. Twelve days after that hearing date, the court entered an order amending the guilty plea to a conditional one, allowing the contemplated appeal to go forward.

That’s what everyone thought. In the Court of Appeals, the path of justice took a fatal detour for Riley’s chance. A CAV panel dismissed the appeal, finding that the trial court had lost jurisdiction over the case 21 days after sentencing. That date was 26 days before the corrective order.

But how can that be? The trial court entered a timely order reopening the case (14 days after sentencing) and reinstating it on the docket.

The answer is in Rule 1:1, that ruthless dragon: “All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” The appellate courts apply this requirement strictly: “The running of the twenty-one-day time period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one-day period, of an order modifying, vacating, or suspending the final judgment order.” Hackett v. Commonwealth, 293 Va. 392, 399 (2017) (emphasis in original).

If an order does something other than modify, vacate, or suspend the final judgment, it won’t stop finality. This order “reopened” the case and placed the matter back on the docket, but that isn’t an express vacation or suspension. (The Supreme Court ruled nine years ago in the Lummis Gin appeal (278 Va. 270) that merely retaining a case “on the docket” isn’t the same thing as suspending it, so the appellate clock keeps ticking.) And while the eventual order did modify the judgment by explicitly allowing a conditional plea, that order came 26 days too late. The court thus dismisses the appeal, since an unconditional guilty plea is a waiver, and the court cannot consider the denial of the suppression motion.


Will SCOTUS branch out into state law?

On many occasions, I’ve mentioned here that in matters of purely Virginia law, the SCV is the court of last resort. Litigants who aren’t satisfied with the Supreme Court’s decision have no recourse unless the case implicates federal law; only then is a further appeal, to One First Street, available.

Last week, the Pennsylvania Supreme Court handed down a per curiam decision in a lawsuit challenging partisan gerrymandering in Pennsylvania Congressional districts. Citing only Pennsylvania law – not the federal Constitution – the justices struck down the obviously gerrymandered map. (Statewide, votes for Congress are roughly even, but Republicans hold 13 of the Keystone State’s 18 seats in the House. Here’s a link to a map of one of the districts, so you can judge for yourself.) The order directs the legislature to create a new map by February 9; if there’s no such map, the court will draw one.

The losing litigants in that case, led by Pennsylvania House Speaker Mike Turzai, have filed an emergency application for a stay pending appeal to SCOTUS. That seems normal enough, until you consider that court-of-last-resort angle. Without a federal nexus, you’d be hard-pressed to explain how the federal appellate court can consider this issue.

The applicants justified their trip to Washington by citing Art. I, §4 of the Constitution of the United States: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof ….” They contend that even though the Pennsylvania court didn’t apply federal law in its analysis, the U. S. Constitution still covers this situation, so the federal court can take up the appeal.

I suspect that that’s unlikely to fly, because 2½ years ago, the justices rejected this approach in the Arizona redistricting commission case. But hold on: Justice Alito, to whom the emergency application was presented, asked the respondents for a response. His honor could simply have refused the application if he felt there were no federal nexus, but the request for a response hints that he might feel that there are five votes to weigh in.

The response is due on Sunday. (Yes, they can do that.) This appealability issue is an aspect of the litigation that only a procedure geek can appreciate, but it bears watching. Turzai v. League of Women Voters may have as much to say about federalism as it does about redistricting.





(Posted January 16, 2018) It’s time to take a look around the appellate landscape. There are plenty of things to report.


Solicitor General turnover

It was just four months ago that Virginia’s Solicitor General, Stuart Raphael, left the public sector to return to work at Hunton & Williams in Washington. His deputy, Trevor Cox, took over as Acting Solicitor General, though in my mind the adjective is superfluous; I regard Trevor as the current SG.

But not for long. He, too, has stated his intention to return to private practice. Attorney General Mark Herring has announced that U.Va. Law professor Toby Heytens will become the next Solicitor in late February. The delay is to permit Toby to argue a case currently calendared in the Supreme Court of the United States. I also understand that the current Assistant SG, Matt McGuire, will be promoted to Deputy.

The next Solicitor is well qualified for the job. Toby is a veteran of that other Office of the Solicitor General – the one in Washington – and I can tell you that there are no schnooks in that office. Toby is also – like his two predecessors – a very pleasant and engaging person in addition to being a fine lawyer. The Commonwealth will be well served.

Why the exodus? Each person has his or her own reasons for changing jobs, but the prime suspect, in my opinion, is the salary. The Solicitor’s boss, the AG, makes about $150,000 a year, and the Solicitor is probably a few thousand below that. If you go back a few years, that may have been a competitive salary range for a high-level lawyer, but it isn’t anymore. I’m glad that someone as qualified as Toby has agreed to step in, but I wonder how long he’ll stay. The private sector will eventually come a-callin’ for him.


… and in the Staff Attorney’s Office

The Staff Attorney for the Court of Appeals of Virginia, John Tucker, is stepping aside at the end of this month after a successful run of several years. To succeed him, the court has tapped Senior Assistant AG Alice Armstrong; she’ll step into the job February 1. Alice is the current chair of the Virginia Bar Association’s Appellate Practice Section, and is also both a terrific lawyer and a delightful person.


Date set for Virginia Appellate Summit

Roughly every three years, Virginia’s appellate bar and benches descend on Richmond for a day of CLE and camaraderie. This is one of those years; the summit will convene September 20, 2018 in Richmond. I’ll post more details when I get them, but if you have (or hope to cultivate) an appellate law practice in the Old Dominion, you need to set that date aside right now.


New messaging service

The Supreme Court of Virginia has established a digital subscription so you can be notified of developments from opinions to rule changes to argument dockets. The service is free. Here’s a link to the announcement, and here’s a link to the court system’s home page, where you can sign up in a dialogue box on the right side of the page.

This move is obviously and fiendishly calculated to devalue the utility of this website in your eyes, offering a free direct service to give you news that you’d probably otherwise read about here. It won’t work, despite the best efforts of those scoundrels at Ninth and Franklin. You see, the court’s writeups of its decisions don’t include practical advice, analysis of how the new decision fits into the existing body of caselaw, or – most important – appellate jokes. The court is notoriously humorless when discussing its own work product, for reasons you’ll appreciate.

In that vein, I’ll share a story that I treasure. Perhaps eight or ten years ago, I encountered one of the then-current justices at a reception in a convention. He mentioned to me that he really enjoyed reading my commentary. I thanked him for the compliment, of course, but the devil within me could not be constrained, and I added with a smile, “I bet I sometimes write what you’d like to write.” The only replies I got to this were a barely perceptible smile and a barely perceptible nod before he turned discreetly away.

It’s true, of course; when I’m reporting on a stupid-criminal story in an appeal, I can write something like, “And you’ll never guess what the rocket scientist did next.” The justices can’t do that. That’s why you still need to keep this site bookmarked. Hmph!

One other thing: The system may generate a few false-positive hits, at least in the short run. I subscribed last week when I heard about the service. Today I got a notice that the appeals-granted page has been updated. I’m always interested to see what’s behind new writs, so I followed the link and found … nothing. The latest writs were dated December 26. I believe this is a minor glitch that the court’s IT people will straighten out. The feature is still worth subscribing to, unless you’re only into this stuff for the appellate jokes.


A newsworthy day

I was in the Supreme Court last Wednesday, January 10, for an oral argument. That day, the court set aside several minutes at the beginning of the docket to recognize court employees who have achieved length-of-service milestones. Two of the honorees were friends of mine: Executive Secretary Karl Hade and State Law Librarian Gail Warren, both of who have completed 35 years with the court. Karl keeps the entire system running, and Gail is a priceless treasure for lawyers who need help finding that special cite.

During the ceremony, the chief justice mentioned a couple of eyebrow-raising statistics that may interest you. One is the number of employees of the Supreme Court: over 3,000. For those of you who’ve come to think of the court as seven Robes, plus a few dozen staffers, that number is dizzying. The chief also noted that the court processes roughly $750 million in financial transactions in a year.


Not the usual course of progression

Over the years, we’ve seen numerous trial judges move up to an appellate bench, but it seldom works the other way around. We may see such a rare event soon, as the president has nominated CAV Judge Rossie Alston to fill a vacancy in the Rocket Docket in Alexandria.

I mentioned above that there are usually several reasons why someone might change jobs, and for Judge Alston, a desire to return to the trial courtroom might play a part. But here, finances are an overwhelming consideration. A federal trial judge makes something on the order of $35-40K more per year than a CAV judge does. And who needs a 401k when you get paid for life?






(Posted December 29, 2017) While we still might get some ninth-inning rulings today from the Fourth Circuit, for the most part the appellate year has drawn to a close. Here are a few notes on things that occur to me as I look into the rear-view mirror.


Business indicators

For those of us who make our livings in the Supreme Court of Virginia, it’s important to keep an eye on statistics that show how busy things are at Ninth and Franklin. I won’t have a full 2017 statistical report for two or three months, but I can see a few things just by looking at the court’s website.

For example, by my count the justices handed down 111 merits decisions this year, including 79 published opinions and orders and 32 unpubs. For comparison, in 2016 there were 125. That’s a decline of about 11%.

The ink isn’t quite dry on the number of incoming cases, but my best guess is that new filings will be down by almost 100 from last year’s figure of 1,827. The appellate business is not proving to be a growth industry.


The fate of the criminal appeal

A long time ago, in a galaxy far, far away, I took a bar-exam review course in which the criminal-law segment was taught by an enormously popular U.Va. law professor named Charlie Whitebread. Near the end of that segment, he gave us advice on what to do if, despite our best efforts and analysis, we just weren’t sure what the correct answer was. In that event, he advised, “Remember: This is Virginia. [Here he slowed down his delivery when pronouncing the name of the state, so it came out as four distinct syllables.] The defendant is guilty.”

Against that backdrop, we have this year’s criminal-law appellate jurisprudence. In published decisions, the Supreme Court ruled in favor of the defendant twice and in favor of the Commonwealth 16 times. The prosecution fared slightly worse in unpublished orders, winning seven appeals and losing five. Overall, then, the defendant won 23% of the time and the prosecution won 77%.

You may be interested in a comparison of those figures with the appellants’ success rate in the Court of Appeals, where all criminal appeals except those involving death sentences must first stop. At this point, I’ve only looked at the CAV’s published decisions, not the much larger body of unpubs. But among published opinions in 2017, the CAV ruled in favor of the prosecution 36 times and for the defendant 10 times, giving the prosecution a nearly identical success rate of 78%.

Keep in mind that this count, in addition to being only for published decisions, involves only appeals where the CAV has granted a writ. The overwhelming majority of criminal appeals die a quick death at the petition stage, so the prosecution’s real success rate is likely far over 90%. (The same dynamic is true in the Supreme Court, where all criminal appeals other than death-sentence reviews go through the petition stage.)


Was there an “opinion of the year”?

In 2016, this answer was easy: The 800-pound gorilla that year was clearly Howell v. McAuliffe, a politically charged mandamus petition where the principal combatants were the Speaker of the House and the Governor. It also involved what appeared to me to be a decision made well in advance; for reasons I outlined in my essay last year, I’m convinced that the justices considered the case, debated it, voted, and wrote their opinions long before the oral argument date.

This year … not so much. We had significant rulings, of course, but nothing of the magnitude of Howell. That being said, here are a few notable rulings in my view:

Mayr v. Osborn (Feb. 2) and Allison v. Brown (Jul. 27) convince me that in Virginia, the tort of “medical battery” (this is my shorthand for it) as a parallel claim to medical malpractice is either dead or in hospice. In the past, many patients had claimed battery instead of filing a med-mal suit because the cost of hiring a medical expert made the med-mal route uneconomical.

Jones v. Commonwealth (Feb. 2) is the latest salvo in the ongoing battle between the state and federal courts over life-without-parole sentences for juveniles. I don’t think that war is over yet; I believe that SCOTUS will eventually decide whether the inclusion of a geriatric-release program like Virginia’s means that no inmate is actually serving life without the possibility of parole.

The Funny Guy v. Lecego (Feb. 16) is just scary. Where a plaintiff settles pending litigation by accepting a promise (such as a note) from the defendant to pay something in the future, and the defendant doesn’t pay, the plaintiff now has to sue on the note AND on the original cause of action. If there’s something wrong with the note, and the plaintiff didn’t plead and prove his original claim as well, that becomes res judicata against him.

Hilton v. Commonwealth (Apr. 13) and yesterday’s Pijor v. Commonwealth are this year’s entries in the stupid-criminal sweepstakes.

Daily Press v. OES (Jun. 29) is the latest in a growing string of losses for open-government advocates. The justices ruled that a FOIA request sent to the Executive Secretary of the Supreme Court, seeking aggregated records of trial-court litigation, was misdirected. The requester must instead file a gazillion individual FOIA requests to local clerks for nonaggregated data.

JIRC v. Bumgardner (Jul. 20) and JIRC v. Pomrenke (Nov. 27) gave us the rarity of two judicial-discipline decisions in one calendar year.

City of Danville v. Garrett (Aug. 31) is the third appeal I’ve seen in the past two years in which the Supreme Court decided an appeal over which it demonstrably did not have jurisdiction. The court reversed all three.

Old Dominion Committee v. SCC (Sep. 14) is actually a fair nominee for the opinion of the year. Here, the justices rejected an argument that a widely publicized deal between the legislature and two electric utilities violated separation-of-powers principles.

Levick v. McDougall (Nov. 2) analyzes a contorted fact pattern in which a happy couple got married – or did they? – even though they forgot to get a license. The back-and-forth between the majority and dissenting opinions made for fascinating reading.


Two last thoughts about may and shall

Yesterday we explored the Sexually Violent Predator Act decision in Rickman v. Commonwealth. I’ve pondered that and have a couple of additional thoughts.

The court’s focus was upon the difference between a mandatory and a directory use of the word shall in statutes. As yesterday’s essay points out, the boundary is whether the statute specifies the consequence of a failure to do what one “shall.” If the consequence appears in the statute, then it’s mandatory; if not, then it’s directory and the courts fashion an appropriate remedy.

In that context, let’s look at Rule 5:5(a), dealing with filing deadlines in the Supreme Court. That rule states that the deadlines for filing certain appellate documents, such as a notice of appeal, are mandatory. Those rules wouldn’t qualify as mandatory requirements in their own right, since none of them specify the consequence of missing the deadline. (Rule 5:9 comes closest, stating that “No appeal shall be allowed” unless you file the notice within 30 days.) The effect of Rule 5:5 is, by clear implication, to fix dismissal as the penalty for missing the deadline. And indeed, that’s the way the justices have always treated those rules; they sometimes say that the appellate court doesn’t have jurisdiction if you miss one.

If you want an example from the rules of a clearly mandatory requirement, check Rule 5:17(c), which specifies what a petition for appeal “must contain.” One of those requirements is a section entitled, “Assignments of Error.” That section goes on to state that “If the petition for appeal does not contain assignments of error, the petition shall be dismissed.” That’s what we call an unambiguous consequence.

The other thought was actually suggested by The Boss, when I told her about Rickman: “Gee, how about the Ten Commandments? Are they directory, too?” Not bad, Boss; you’re thinking like a lawyer. Sure enough, with the possible exception of the Third Commandment, there are no consequences specified there, either. Happily, this is not a matter that will occupy the justices’ minds anytime soon.

Thou shalt enjoy a happy, healthy, and prosperous 2018, my dear readers.