NOTE ON RECENT APPELLATE DEVELOPMENTS
(OR LACK THEREOF)
(Posted October 1, 2019) There’s a reason behind that uncomfortable lull in VANA postings. The Supreme Court of Virginia has been largely silent since the late-August flurry of opinions. The flame isn’t burning brightly because there’s no fuel for it; the court decided all but one of its pending appeals before Justice McClanahan’s departure and Justice Chafin’s investiture. It’ll be another few weeks before the September decisions are ready for release. But we still have some developments to explore.
Slim September docket
The Supreme Court heard oral argument in just 15 appeals in the September session, three weeks ago. In years past, September’s argument docket was typically the largest of the year, as more appeals matured over the long three-month interval between the June and September sessions.
But the justices have been handing out writs with tweezers recently, so there are fewer appeals to argue on the merits. As I’ve explained previously, that’s partly because of a decline in appellate business – new filings are down roughly 40% in the past 15-18 years – and partly because of a conscious decision by the court to grant fewer writs. An appellee’s advantage has never been greater in the almost 15 years that I’ve been covering the court.
New David-Goliath Index
With the third quarter in the books, it’s time to update our periodic review of how the appellate Big Guys are faring against their smaller cousins in published opinions. This quarter generated unprecedented success for David, at least in the time that I’ve been reporting the Index. The Supreme Court decided 15 appeals with an identifiable Big-Guy-vs.-Little-Guy dynamic, and David won seven of those, losing eight.
The year’s total is thus 10 wins for David and 26 for Goliath, for a D-GI of 28/72. David is still getting his clock cleaned overall, but the most recent results are more encouraging for that side of the litigation aisle.
ABA Summit draws nigh
I’ve reported before on the coming ABA Appellate Summit in Washington, November 14-17. It’s the best nationwide gathering of appellate jurists and lawyers. You can still register here, but from what I know – I’m on the event planning committee – registrations are far ahead of previous paces, so you should sign up quickly to avoid being shut out. There’s a real chance that we’ll hit the host venue’s capacity.
Really, if you’re serious about your appellate career, you owe it to yourself to attend one of these. Next year’s summit will be in Austin, Texas, which is much farther away, not to mention its being in a foreign country.
New Judicial Learning Center
This story came as a pleasant surprise – the Supreme Court announced last month the founding of the Judicial Learning Center, housed at the court itself. According to the court’s press release, the center’s exhibits “provide an overview of Virginia’s judicial system, the rich history of Virginia’s judiciary, and its contributions to the development of America’s legal system.”
One interesting feature of the center is “an interactive portrait collection of the Justices of the Supreme Court of Virginia.” If you’ve ever wondered who all those jurists in the old portraits are, glowering down at you from the walls of the courtroom as you argue, this is your chance to put a name with a face. You can sign up for guided tours by contacting the State Law Library (804-786-2075).
ANALYSIS OF AUGUST 30, 2019 SUPREME COURT OPINIONS
(Posted August 30, 2019) For the seventh straight business day – a string that is likely unprecedented in the long history of our Commonwealth and its highest court – the Supreme Court of Virginia issues decisions today. There are two new published opinions this morning, leaving one solitary appeal undecided from the cases argued before now. (It’s possible that the court could decide that one by unpub later today.) We are walking an unmapped path.
A suppression motion is the only appellate issue in Hill v. Commonwealth. Here’s the setup: Two veteran police detectives saw a car parked in a “high crime, high drug area” of Portsmouth one April afternoon. They saw Hill sitting alone in the car, in the driver’s seat. Here’s how the court describes the scene (omitting appendix citations):
[Hill] was “leaning back in the seat watching” and not “moving around.” The detectives made a U-turn and observed Hill for approximately “a minute or so.” As the detectives pulled up near Hill’s vehicle, Hill began “looking up and down, up and down, and he was constantly doing a bunch of movement inside of the vehicle.” The detectives pulled up “right beside [Hill’s] vehicle” and parked approximately 25 feet away without using any lights or sirens. Wearing their “police vest[s]” and “badge[s] of authority,” the detectives walked up to Hill “on the driver’s side of the vehicle, at which time when [they] approached [Hill], he put his left hand on the steering wheel and then … he turned his back and head away from [them]” and “began digging with his right hand between … the driver’s seat.”
The detectives feared that Hill was reaching for a gun. They identified themselves as police and shouted, “Show us your hands” several times, but Hill just “kept digging around inside the vehicle.” That was enough for the detectives; they opened the door and yanked Hill outside. A quick search under the driver’s seat revealed a stash of cocaine.
Hill moved to suppress the evidence, claiming that the police had no right to search him. He asserted that the seizure was not a valid Terry stop because police couldn’t articulate any suspected criminal activity. The trial court felt that the officers had a legitimate fear that they might be facing a deadly weapon, so the court denied the motion to suppress.
Justice Kelsey writes today’s opinion for a divided court. He concludes that the trial judge got it right: These officers, seeing a suspect reaching into a concealed area at their approach, could easily have been in peril of being shot at point-blank range if the object of Hill’s search was indeed a concealed weapon. In my former life as a local-government lawyer, I represented a lot of police officers, so I’m keenly aware of officer-safety concerns. When I finished reading the majority opinion, I was convinced that it was the correct result.
That view did not survive my reading of the third paragraph in Justice Millette’s dissent, in which Justice Mims joins. The dissent points out that Terry analysis is a two-phase endeavor, and the majority has jumped straight to the second step, while ignoring the first one: The police have to have an articulable suspicion of some likely criminal activity before they conduct a Terry stop. Justice Millette begins by quoting this line from a Fourth Circuit ruling in a Terry appeal: “[A]n officer may not conduct a protective search to allay a reasonable fear that a suspect is armed without first having a reasonable suspicion that supports an investigatory stop.”
There are more quotations in the dissent to the same effect, but it comes down to this: If the only thing necessary for a Terry stop is that the officer fears that his safety might be at risk, then the Fourth Amendment is an empty promise. Any police officer could stop and frisk any person in any situation, simply by claiming a subjective fear of personal harm.
The Terry doctrine requires more. As the dissent notes, the stop must be objectively reasonable, and that requires objective facts to back up a claim that the officer legitimately feared for his safety. The only factor supporting such a claim was the location – high-crime, high-drug – while other circumstances here militated against such a conclusion. The encounter was in broad daylight; Hill was just sitting in a car; and while weapons often accompany drug activity, one of the detectives here acknowledged that he had never recovered a weapon in all his previous work in that area.
I don’t handle criminal appeals, so I’m loath to offer bold opinions on criminal rulings. But I believe that the Fourth Amendment groans at today’s decision. If police really can jump straight to the “I was legitimately fearful” justification for a stop-and-frisk encounter, without naming any specific suspected crime, we are all less free.
Justice Kelsey also gives us the majority opinion in today’s other opinion. Our Lady Of Peace, Inc. v. Morgan is a lawsuit against a nursing home alleging that an employee raped an 85-year-old resident. This one features quite a procedural novelty.
There seems little doubt that the employee committed the rape. The home tasked him with personal care of residents – dressing, bathing, etc. – and he pleaded guilty in a criminal court to the assault. The resident’s personal representative sued the employee and added claims against the home based, among other things, on respondeat superior.
In an action like this, the plaintiff has the burden of proof on a respondeat superior claim. But a showing that the employee was working for the employer at the time creates a rebuttable presumption (of the bursting bubble variety, for those evidence geeks among you) that the employee was acting within the scope of the employment. There’s no dispute here that that presumption applied.
The home answered the suit in part with a special plea in bar on respondeat superior liability. Neither party demanded a jury on the plea, so the issue came before the trial court in an ore tenus hearing. At that hearing, the home called only one witness, its executive director, who said nothing about the assault. She instead “generally described Our Lady of Peace’s policies and practices, the regulations to which it was subject, the role of nursing assistants, [the employee’s] employment record, and the medical and daily-activity assistance provided to [the resident].”
The personal rep replied that the question whether the assault was within the scope of employment was ultimately for the jury to decide. The trial court took the matter under advisement and eventually issued an order, ruling in favor of the personal rep. But instead of finding that the issue was unripe for immediate decision, the court handed the personal rep an unexpected boon: It ruled that the act was indeed within the scope of the employment. It later barred evidence relating to the scope-of-employment issue and issued a peremptory jury instruction, taking the issue away from the jury.
That jury returned a verdict of $1.75 million in damages against the home and the employee. Both appealed, but the justices awarded the home only an appeal. Today a majority of the court reverses and remands the case for a new trial.
Justice Kelsey, again writing for the court’s majority, chides the trial court for deciding a special plea based solely on allegations in pleadings. That’s the process for a demurrer, while a plea raises a distinct issue – usually one of fact – that makes the rest of the issues in the case irrelevant. The majority would hold the personal rep to the position it asserted in response to the plea, that this was a question for the jury at trial, and today it remands for just that proceeding.
Justices Mims and Powell see this differently. The home elected to roll the dice on the respondeat superior issue by presenting it to a judge. But at the evidentiary hearing on that plea, the home adduced insufficient evidence to win on that issue. What does that mean?
It means, in the dissent’s view, that the home’s argument was foreclosed when the dice came up snake-eyes. That is, it’s the home that should be held to its strategic decision, and when that backfired, that’s the end of that issue; the rest of the case is for the jury.
There’s more. Justice Mims, who has a devilish sense of irony, takes pains to quote an authoritative source in arguing that “[t]he litigants—not the judges—determine the issues to be decided, the facts to be presented, and the range of remedies to be sought.” That source is an article by Justice Kelsey himself. The dissent uses this passage to illustrate that when the litigants decide to use a given approach to resolving a dispute, it isn’t up to the judge to second-guess them. Justice Mims also cites a recent SCV opinion, also authored by Justice Kelsey, on the presumption issue.
The dissent also identifies one other point that, if they’re right, has ominous overtones for appellate practice. Noting that the home had below asked the trial court to make a factual finding in its favor, only to have that finding go the other way, the dissent points out that the home doesn’t contend on appeal that the trial court got the facts wrong. “Indeed, it acknowledges on brief that it ‘does not contend that the Circuit Court “erroneously resolved the facts.”’”
Why does this matter? In the dissent’s next sentence, it accuses the majority of “ignor[ing] the arguments Our Lady of Peace actually made and instead revers[ing] the trial court for a reason that was not advanced in Our Lady of Peace’s briefing or oral argument: that it was impossible for the trial court to reach its conclusion based on the limited evidence presented at the plea-in-bar hearing.” That is, the home never made the argument in the appellate court that the majority seizes on to reverse. The dissent understandably calls this approach “wrong-result-wrong-reason,” something the Supreme Court has never done before other than on jurisdictional grounds.
Is this the new normal? Will Supreme Court majorities start finding unpleaded reasons to reverse, instead of limiting the “wrong reason” remedy to affirmances? I doubt it. This appears to be a case-specific approach, one driven by the need to reach a particular appellate outcome in this appeal. In short, don’t assume that the justices will do this for you in your appeal.
That leaves us with proceedings on remand. There’ll be another trial, of course, unless the parties settle. The employee’s liability is fixed, so retrial will relate only to the home’s potential liability. The home had asked the Supreme Court to rule as a matter of law that it isn’t liable for this criminal assault, since that clearly exceeded the scope of the employee’s authorized duties. The court balks at that, holding that as the personal rep pleaded it, it is indeed a matter for the jury. You’ll find the customary language in the majority opinion, stating that the appellate court takes the facts as the personal rep pleaded them. You’ll also see a passage – by now also customary – on page 16 expressing essentially unveiled skepticism that the plaintiff can actually prove the case.
Justice McCullough, joined by Justice McClanahan, files a concurring opinion, joining fully in the majority but expressing grave reservations that an employer can be liable for a rape. That abhorrent act, these justices feel, deviates much too far from the employee’s authorized activities for the employer to have to answer for it. The dissenting justices approach this entire discussion by describing it as unnecessary dicta, and condemning it as “overruling sub silentio a sizeable portion of this Court’s respondeat superior precedent.”
While I’ve spent plenty of space exploring this decision, I’m still concerned that I’m not doing it justice. The discussion on both sides of the question is fascinating; this case merits your full reading for the joy of the analysis, in addition to the procedural lessons it imparts.
* * *
The court’s release of these two decisions means that the justices have decided all but one appeal argued to date. That sole outlier, Tingler v. Graystone Homes, was argued in June. As I mention above, the court still might release an unpublished order later today, in which case the court will have achieved a truly rare 100% clearance rate. This, too, is an unexplored path for those of us who follow appellate developments here in Virginia.
Finally, I’ll add a note of gratitude. I’ve noted my surprise at the unexpected distribution of opinions over the past week. I speculated that it had something to do with Justice McClanahan’s impending retirement. Peter Vieth of Virginia Lawyers Weekly inquired and got the following response from the court. I’m very grateful to him for sharing it with me; you should see an article from him today on the paper’s website.
In the past, the Court occasionally handed down an opinion wherein a footnote explained the participation of a justice in the opinion after death or retirement. For example, in Commonwealth v. Smith, 281 Va. 582 (2011), which was handed down on April 21, 2011, a footnote stated:
Former Chief Justice Hassell presided and participated in the hearing and decision of this case before his death on February 9, 2011; Justice Koontz participated in the hearing and decision of this case prior to the effective date of his retirement on February 1, 2011; Justice Kinser was sworn in as Chief Justice on February 1, 2011.
Additionally, in Ellis v. Commonwealth, 281 Va. 499 (2010), the opinion of the Court was authored by Justice Barbara Keenan and handed down on April 15, 2010. A footnote in the opinion stated:
Justice Keenan participated in the hearing and decision of this case prior to her retirement from the Court on March 12, 2010.
Subsequent to the cases cited above, the court changed its practice. Now a Justice’s vote will not be counted in any case unless the Justice served in that capacity on the date of the handing down of the Court’s opinion or order. With regard to an opinion, the mandate that follows is a ministerial act of the clerk and will not have any bearing on the date the vote is counted.
Justice Elizabeth McClanahan is retiring from the Court on September 1, 2019. In order to have her vote counted on the cases upon which she sat, under these circumstances, the Court decided to hand down opinions or orders as they became otherwise final and ready for release.
HOW TO SPEAK TO AN APPELLATE COURT
(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.
Part 1 – How to Speak
This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?
As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.
As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.
EMERGENCY APPEALS: A HOW-TO GUIDE
(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.
All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.
I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.