UPDATE ON CURRENT APPELLATE DEVELOPMENTS

 

(Posted September 19, 2017) Here are a few tidbits from the appellate world that have caught my eye lately.

 

New Solicitors General

The Senate today confirmed Noel Francisco as the 47th Solicitor General of the United States. The vote was 50-47, and while I haven’t seen an official listing, I strongly suspect that it was a straight party-line vote, or something close to that. Francisco has been serving as the Acting Solicitor General for eight months, since being appointed Principal Deputy three days after the President took office.

The SG is the highest-ranking practicing lawyer in the federal government. His boss, the Attorney General, is an administrator who doesn’t actually practice law, but the SG actually walks into the well of the Supreme Court and intones, “May it please the Court …” The position is so influential and so respected that the SG is often described informally as “the tenth justice.” This reflects the fact that when the Supreme Court wants the government’s views on litigation in which the United States is not a party, it often issues a call for the views of the solicitor general (abbreviated CVSG), and the court respects the resulting brief. Litigants often clamor to get amicus support from the SG.

Being eagle-eyed, you will have noted my use of the plural in the header for this section. The Solicitor General of Virginia, Stuart Raphael, stepped down last month to return to private practice after crafting a remarkable body of appellate advocacy on behalf of the Commonwealth. His deputy, Trevor Cox, is the Acting Solicitor General, but in my mind, the adjective is unnecessary; he’s our Solicitor General for now. In case you’re wondering, we are indeed in very good hands.

Once upon a time, before I was able to create an exclusively appellate practice, I daydreamed about being the solicitor general. Since then, I’ve come to realize that Messrs. Francisco and Cox don’t live in a perfect world, no matter how much you enjoy handling appeals. The Solicitor sometimes has to take positions and defend causes that he finds morally repugnant or analytically indefensible, because that’s the government’s position. (Stuart Raphael has assured me that it doesn’t happen very often, and I believe him.) In those cases, you suck it up and do your job. But my position is much happier: I can just say no.

As a parting gift, I’ll leave you with this bit of Solicitor General trivia. Only one person has ever served as both Solicitor General of the United States and as President: William Howard Taft was the nation’s chief advocate from 1890-92 under President Benjamin Harrison. He reached the Oval Office in 1909, and as most of you already know, was appointed Chief Justice of the United States in 1921.

 

A bountiful crop of writs

The Supreme Court of Virginia convened writ panels in late August, and a few days after that, it started raining writs. From August 30 to September 12, the clerk issued 15 of them.

There’s always an uptick in writs right after panels convene, for obvious reasons. This number does give me pause, though, in one small respect. I’ve always heard that the court doesn’t segregate the grants from the refusals and issue them separately. Put another way, there’s no relation between the amount of time that elapses from argument to order, on the one hand, and success or failure on the other. But if that were true, then you’d expect to see a steady stream of writs over a period of several weeks, not a clump of them all at once like this.

One possible explanation for this is that Clerk of Court Trish Harrington’s staff has been especially diligent with this batch, and all of the orders – good and bad – are getting processed quickly.

 

September session

The justices began hearing arguments this morning in the Supreme Court’s September session. They heard six sets of arguments today. They’ll hear six more tomorrow, five on Thursday, and two on Friday.

Once, not long ago, the court began its sessions on Mondays and went all the way through Fridays. Of course, back then they were hearing 30 or more arguments in a week, so the extra day made sense.

The shift to a Tuesday start is more recent; it came just within the last few years. My best guess is that this allows the justices who don’t live in the Richmond area to use Monday for travel, instead of devoting Sunday to their official duties. (Now that Justice Kinser has retired, the gross miles traveled are way down anyway.) The longest trip by far for any member of the court is Justice McClanahan, who travels from her home in the Abingdon area, probably on the order of five hours’ drive.

One last point: You’ve probably wondered why the court has a short concluding day – just two Friday arguments – instead of adding those to an earlier day and wrapping up sooner. On this, I don’t know the answer; I only have that virtually useless tool, idle speculation, to draw upon. One possible reason is that the court has more to do during session week than just listen to you arguing against the Bad Guys. They have administrative duties, too, and the extra time allows them to spend part of Friday wrapping those up as well. And maybe – just maybe – some of the decision conferences get heated and require a bit more deliberations. I’ll admit that I’m rooting for this one.

 


 

PREPARING FOR ORAL ARGUMENT THE VIRGINIA WAY

 

(Posted September 15, 2017) If you’ve seen this week’s edition of Virginia Lawyers Weekly, you’ve no doubt noticed the article entitled, “10 Steps for Preparing for an Appellate Argument.” That’s because it’s on page 1, above the fold, in the paper’s prime real estate. You can’t miss it.

But for the most part, you wouldn’t be harmed by missing it. Some of the basic advice is well worth heeding, but some is less useful and at least two items are utterly useless here in Virginia.

The author of the article is a Massachusetts lawyer. It’s possible that this is the way they do it up in the Bay State, but you can do better here in Virginia.

 

What the article gets right

I’ll give the author this much: She does include the #1 must-do item in preparing for an appellate argument, although she buries it as her entry #8, “Anticipate the hardest questions.” When I prepare for an argument, I spend one unit of time preparing a speech and about four units anticipating the toughest, most difficult questions I might get. I then prepare concise answers to each, including cites to pages in the record or caselaw, and I put those on a sheet in my argument notebook. When I get one of those questions at the lectern, I can turn to that page, refresh my memory if necessary, and deliver a polished answer instead of either incoherent ramblings or stunned silence.

Speaking of a notebook, the author does refer to that obliquely, late in segment #5, which is titled, “Read the key cases and have them at your fingertips.” I always use a three-ring binder for arguments, and one of my most important pre-argument tasks is selecting what will go into it. I use ruthless triage to ensure that I don’t bring too much with me; that’s cumbersome and a form of defensive lawyering. My estimable legal assistant then prepares tabs for easy reference and inserts everything I’ve chosen into a binder, so in court I can turn instantly to any document I want. A typical binder will have tabs something like this:

Our brief

Their brief

Reply

Complaint

Demurrer order

Final order

Smith v. Jones

Brown v. Day

Contract

Some of my technophile pals will use a laptop or tablet at the lectern, and that’s fine; I won’t argue with them. (The screen on my binder has never frozen; nor has it ever run low on battery life. But I digress.) If you’re one of the technophiles, that’s good; just know that the VLW article includes no information about how to organize your e-notes.

 

What the article gets sort-of right

There are some good tips that don’t break any new ground or provide any special insight into the appellate argument process, but they’re a decent reminder of basics. For example, entry #4 is “Update your research.” For you, my loyal readers, that’s usually less of a concern because you always stay up-to-date on new appellate decisions the easy way, by reading this website. But no lawyer wants to arrive at the lectern and be asked about an unknown decision that came down a month earlier.

Item #7 is “Prepare a list of ‘must-make points.’” The author of the article begins to justify this sensible advice by writing, “The reality is that, in most cases, you will spend most of your allotted time answering questions from the judges.” In my experience, that’s just not true. You should expect questions, of course; and experienced appellate lawyers are silently begging to be interrupted from the moment they arrive at the lectern. But in most appellate arguments I spend far more time giving a speech than in answering questions. (There are, of course, exceptions, arguments to a particularly hot bench where the questions fly around like swallows. But that’s definitely not “most cases.”)

It is a good idea, of course, to identify your key points; that’s basic argument preparation. But the real skill of an appellate advocate – one the author doesn’t mention – is responding to a question and weaving that answer into the flow of the argument, so that it comes across as seamless. A journeyman appellate advocate gets all the points out; a master creates an oral tapestry.

The article devotes a single sentence, buried at the bottom of point #8, to a topic that’s dear to many appellate lawyers: moot court. About 85% of appellate lawyers use moot courts as part of their preparation. That 85% is probably convinced that not mooting an appeal is malpractice. Guess what? I’m part of the other 15%. I never participate in moot courts, because of the way I was trained as a speaker. Unlike the 85%, I don’t insist that others have to do it my way; in fact, I believe that for most advocates, it’s a good idea to moot it. In any event, whether you like mooting or not, a serious article on preparing for appellate argument should include more than a drive-by mention of this tool.

The article concludes with a point that’s purloined directly from John W. Davis’s now-legendary 1940 address to the New York City bar association: “Put yourself in the judges’ shoes.” Davis phrased it this way: “Change places (in your imagination of course) with the Court.” This is a fundamental that belongs in Public Speaking 101; any speaker should consider the listener’s perspective, and craft something accordingly.

 

What the article gets (ahem) less than right

If you’re appearing in an appellate court here in Virginia – either the Supreme Court or Court of Appeals of Virginia or the Fourth Circuit – then points #2 and 3 will be useless to you: “2. Research the panel. 3. Read your judges’ other opinions.” Elsewhere in the Nation’s appellate landscape, courts announce in advance which jurists will be assigned to a specific case, so if you really want to hone in on a particular judge, you might be able to do that.

But none of our three courts identify panel members in advance. Whether it’s a writ panel in the SCV or a three-judge panel in the CAV or the Fourth, you find out who’s on your panel when you walk into the courthouse and check in, just before your argument. That means that if you really want to bone up in advance on the jurisprudential tendencies of each potential member of your panel, you have to research seven members on the Supreme Court (leaving aside for now the senior justices), eleven in the CAV, and 15 in the Fourth. Good luck with that.

The author of the article fails to include an important caveat, in case you realize that a member of your panel wrote a seminal decision that helps you: Don’t mention that fact in your argument. That is, do not say from the lectern, “And Justice Jones, I know you’re well aware of this doctrine, because you wrote the Johnson opinion.” I cringe even to type this, because I know that approach doesn’t go over well. Just cite the case and trust Justice Jones to recall it.

Instead of trying to divine who’ll be on your panel, it’s better by far to familiarize yourself with the relevant caselaw on your specific appellate issues, paying particular attention to the more recent ones. If you’re relying on an obscure decision from the Nineteenth Century, you’ll have to do more work, and waste more time at the lectern, than if you’re citing something from last year.

In my mind, the article’s most egregious sin of omission is that it tells the reader nothing about how to organize the argument that he’s preparing. Isn’t that what “preparation” is supposed to be? In this regard, oral argument differs from briefwriting. If you have multiple issues, modern appellate-advocacy theory is to put your most interesting issue first in your brief. The task of a brief, from the standpoint of persuasion, is to grab the reader’s attention quickly and get that reader leaning in your direction, ideally from page 1 on.

In contrast, with oral argument it’s better to focus first on the most vital issue in the case. But you can usually do both at once. In some instances, we can begin the argument forcefully with something like this (after we introduce ourselves, of course; an oral argument essential that the article again fails to mention):

While there are a number of sub-issues in the briefs, in truth this case will turn on how you rule on the admissibility of Exhibit 2. If you rule that it was inadmissible, then I’m going to lose this appeal. But I have no fear on that point, because the trial court got this right. Here’s why …

A lawyer who begins an argument this way has metaphorically grabbed the court by the lapels. She has seized each jurist’s full attention after only fifteen seconds of argument, particularly with the startling admission, delivered confidently, “If you do this, then I’m going to lose.” She’s avoided a long windup in favor of going straight to the narrow, decisive issue.

Trust me on this: They love that. Flowery oratory is part of the appellate tradition, but guess what? Daniel Webster is dead! So are the days of long orations; nowadays you have to get right to the point. (Daniel Webster couldn’t clear his throat in the 15 minutes that advocates get in merits appeals these days.) You may as well get to that key point forcefully.

The article also omits one vital element of preparation: How much argument should you prepare? That is, if you were to get no questions, how much of your allotted time will you take? If you answered, “All of it, of course,” you’re making a mistake. You probably will get some questions, and if you get several minutes’ worth, that time bumps aside the points you had planned to end with. A good rule of thumb is to prepare argument for somewhere around 70-75% of the allotted time – so, for a 15-minute argument, between ten and eleven minutes – and allow yourself a degree of comfort. (If you reach the end and you still have time left, then for God’s sake, take John W. Davis’s closing advice: “Sit down.” Thou shalt not wing it.)

As I noted, the likelihood is that you’ll get questions. If you don’t, that’s often a bad sign, especially at the petition stage in state court. No experienced appellate advocate wants to deliver what I call the Easter Island speech to a solemn, mute audience. We want to know what’s on the jurists’ minds so we can address those issues, preferably with our carefully prepared answers. In case you’re wondering, Davis agreed: “Rejoice when the Court asks questions.”

*   *   *

I have perhaps been unfair to the author of the VLW article by pointing out that she’s from Massachusetts and by titling this essay the way I did. I’m confident that she’s quite capable, and good appellate advocacy really isn’t much different from state to state. My point here is that neither that article nor this essay will make you an expert on appellate advocacy. I’ve seen plenty of arguments given by good lawyers who nevertheless had no more business stepping up to an appellate lectern than I would have stepping into the octagon.

If you want to cultivate an appellate career, great; there’s always more room in the appellate bar, which is a wonderfully collegial group. Just get some real training and don’t rely on an article in a journal to get you up to speed.

 


 

ANALYSIS OF SEPTEMBER 14, 2017 SUPREME COURT OPINIONS

(Posted September 14, 2017) The Supreme Court today decides three appeals by published opinion and one by published order. In doing so, it clears from its figurative desk the hoariest appeal on the docket. 

Easements

The three primary types of easement are express (usually set out in a deed or will), by prescription (think adverse possession), and by necessity. The third type is the backdrop for Palmer v. R. A. Yancey Lumber Corp., which comes to us from Albemarle County.

The two parcels at issue here came from a common grantor two centuries ago. When one Richard Richardson died in 1828, he left portions of a single tract to two heirs. The larger one, now over 300 acres, was landlocked by this separation, and under Virginia law, an easement automatically arose over the smaller parcel, now 44 acres, to a public road.

Isn’t that a taking, you might wonder? After all, the recipient of the smaller tract never agreed to allow its use by the owner of the larger one, and the late Mr. Richardson didn’t expressly create such an easement in his will.

The answer is that public policy frowns on landlocked parcels, because they thwart the development, use, and enjoyment of real property. The law accordingly creates an automatic easement by necessity, irrespective of the “subdivider’s” intention.

I suppose the owner of the large parcel could fly a helicopter in, but that isn’t realistic. It’s especially unrealistic when you consider the primary use of the large parcel: as a lumber “farm.” Its owner grew trees there and wanted to send equipment in to harvest the lumber, and semis in to haul the logs away. The owner of the smaller parcel didn’t mind the activity when it last occurred 30 years ago, using smaller hauling trucks; but now the lumber company wanted to widen and improve the access road to allow big trucks. Nowadays, the most efficient way to haul logs is by tractor-trailer, and the existing road wasn’t suitable for those vehicles.

The lumber company filed suit seeking a declaratory judgment that it had the right to widen and improve the road. Its owner and two experts testified about the current need to use semis and the inadequacy of the road for that purpose. The small-parcel landowner didn’t use experts; she simply said that she didn’t consent to a larger easement and nobody was paying her to take away her land. She argued that an easement, “once located cannot be widened.”

The trial court disagreed and allowed the lumber company to make certain improvements to accommodate the semi traffic. The company didn’t get all it had asked for, but it was enough of a victory to convince the defendant to appeal.

The justices affirm today. They observe that there’s no caselaw to support the defendant’s “once located” contention, noting that on brief, she called it “Palmer’s rule.” Actually, there’s plenty of precedent for judicial authority to modify the dimensions of easements, based on changing circumstances over the years. After all, the court notes, if an easement started out as a path for horses in, say, 1828, it would be largely useless in the 21st Century. That would defeat the public policy I described above.

Justice Mims offers an intriguing dissent. He’s okay with some of the majority’s holding, allowing a few minor modifications to the road, but he parts company with the rest of the court over the use of semis. he notes that the lumber company’s testimony only established that tractor-trailers are the most efficient way to remove the logs; not that they were the only possible way. The company could, for example, cut the logs shorter and continue to use the smaller trucks that it had used in the 1980s. That wouldn’t maximize its profit, but the easement-by-necessity doctrine doesn’t go that far. Justice Mims believes that in order to justify the relief granted by the trial court, the company would have to show that the smaller-log approach was economically unviable, not merely less profitable.

I referred above to “the hoariest appeal the docket,” and this is it. The parties argued this appeal on March 1, and have been sitting on their hands for over six months, waiting for a ruling. That makes this the longest period between argument and decision I can recall in my nearly 13 years of publishing this analysis; the previous record holder was Muhammad v. Commonwealth, the DC sniper appeal that produced 137 pages’ worth of opinion back in April 2005. The court took five months to decide that one.

Separation of powers

When I set out just now to specify the heading under which I’d analyze Old Dominion Committee for Fair Utility Rates v. SCC, I hesitated. It involves the power of the SCC to regulate utility rates, so I considered “Administrative law” and “Utilities” before discarding those as too general, given the issues in the appeal. I briefly considered “Constitutional law,” but that might lead you, my dear readers, astray. In the end, this case is about the ability of the General Assembly to restrict the Commission’s ability to use a power granted unto the SCC by the Constitution of Virginia.

The setup will be familiar to anyone who followed the 2015 session of the General Assembly. That year, the legislature agreed to suspend for 4-5 years the SCC’s usual biennial reviews of rates charged by Dominion Energy (I’m using its current name) and Appalachian Power Company. Over protests by the Attorney General and the SCC itself, the legislature agreed to do this in exchange for certain commitments by the utility companies.

Old Dominion Committee is “an association of large industrial customers of APCO.” It petitioned the SCC for a declaratory judgment that the statute suspending the reviews was unconstitutional, since it deprived the SCC of constitutionally conferred powers. Soon, an association of local governments joined, as did a private citizen. Each petitioner asserted that the constitution gave the SCC the power to regulate utility rates, and that the General Assembly could only specify the “criteria and requirements” for exercise of that regulatory power. The constitution never gave the legislature the right to prevent the SCC from regulating rates at all. According to the petitioners, the statute did just that: No regulation for the next four years (five, in the case of Dominion).

A divided SCC, acting in its judicial capacity, ruled that the statute was constitutional. It began with the strong presumption that any statute is constitutional, and held that the statute constituted nothing more than the “criteria and other requirements” that the legislature still controls. The commission rejected the contention that the SCC has “a plenary power to legislate [note: rate-setting is a legislative act] that is both exclusive of, and superior to, the General Assembly.”

The petitioners exercised their right to a rare appellate treat: an of-right appeal to the Supreme Court. There is no petition stage in appeals from SCC decisions; the justices must accept the case — assuming, of course, that there are no jurisdictional defects in the pleadings. Today, the Supreme Court rules 6-1 that the SCC majority got it right: The statute is constitutional.

Justice McClanahan writes for the majority. She starts with the language of the constitution that grants rate-setting authority to the SCC. Importantly, that section begins, “Subject to such criteria and other requirements as may be prescribed by law,” the commission has the power to set rates. While the SCC can set rates, it’s always subject to control by the General Assembly. As the court had held in a 1974 case involving VEPCO, the SCC’s powers are subordinate to those of the General Assembly.

It’s worthwhile to pause momentarily here for a minor digression, one that I’ve recognized for years, but that is spelled out well in the majority opinion. The Virginia legislature is unlike its federal cousin in that the federal Constitution enumerates Congress’s powers, while Virginia’s General Assembly has unlimited powers — except where the Constitution limits them. The implicit underpinning of this section of today’s opinion is the concept that the General Assembly can do whatever it wants, unless that’s something that the constitution clearly forbids. Close calls go to the legislature.

In that context, the majority today reaffirms that 1974 decision, holding that the General Assembly had enough power over the functioning of the SCC that it could do what it did in 2015.

Justice Mims again dissents, in one of the most fascinating pieces of judicial writing I’ve seen in quite a while. (Justice McCullough’s recent discussion of substantive due process also gets a nod in this category, as do several of Justice Kelsey’s forays into the arcana of legal history.) His thesis is that the 1974 VEPCO case was wrongly decided. While he respects stare decisis as well as the next Robe, he notes that that doctrine has to yield when it runs up against the constitution.

I’ll allow you to read the dissent to get Justice Mims’s sense of why the 1974 decision was wrong — it has to do with an interpretation that either would or would not lead to a redundancy — and skip right to the fire-and-brimstone part. Here is the heading to part C of his dissent. He wrote it in all caps, and I won’t change that.

IF THE GENERAL ASSEMBLY CAN SUSPEND THE

COMMISSION’S RATE-MAKING POWERS FOR A PERIOD OF YEARS,

IT CAN SUSPEND THEM FOREVER

Well, now. That, my brethren and sistren, is how you make a point forcefully.

The dissent points out that the people of Virginia, not the General Assembly, created the Commission and the people, not the General Assembly, gave the commission the power to regulate rates. Once upon a time, before the 1902 Constitution of Virginia, the legislature did have this power, but that constitution took that power away and gave it to the SCC. The 1971 constitution repeated that distribution. Justice Mims regards the majority’s opinion as essentially rescinding the people’s allocation of governmental power between the legislature and the commission. And that makes this a case about separation of powers.

I haven’t listened to the audio recording of the oral argument of this appeal, but I infer that Justice Mims put this very conundrum to the Commonwealth’s lawyer: “Can the General Assembly suspend the SCCs rate-making powers forever?” That lawyer replied that if the legislature did that, the people would react by exercising what I’ll call the democratic veto, also known as “throw the bums out” on election day. Justice Mims, the only member of the court who’s a former legislator, has a skeptical reply. He notes that the Commonwealth and today’s majority

seem to envision that after some period of sufficient duration, a majority of voters in a majority of the districts will revolt, uniting under the banner that the Commission’s authority must be restored, and secure a bicameral legislative majority to compel that outcome. Despite having been previously elected to legislative office, I cannot begin to speculate how many years would have to pass before the esoteric issue of the Commission’s constitutional authority to set rates rose to predominate over other public policy issues.

He’s right about this last point, of course; probably 90%+ of Virginia voters have never heard of the State Corporation Commission, have no idea what its function is, and won’t get worked up over a perceived power grab by the legislature in a matter like this.

In reality, the only body that provides a meaningful check on legislative power — the only body that can really halt a governmental power grab — is the Supreme Court. Today, the court declines to do so. Perhaps this ruling will inspire the villagers to gather with pitchforks and torches (if only metaphorically, on election day), but I doubt it. Pocketbook issues and disputes that fit into a 30-second commercial will drown this issue out when voters go to the polls.

Insurance

The court decides one appeal by published order today: Erie Ins. Co. v. McKinley Chiropractic Center, PC. It’s a suit by some doctors who treated a patient after an auto collision. The doctors got the patient to sign an agreement assigning to the doctors “all insurance and/or litigation proceeds to which Patient is now or may hereafter become entitled” as a result of her bodily injury claim. The doctors faxed a copy of the assignment to Erie, which insured the driver of the car that hit the patient, and then proceeded to treat the patient.

A funny thing happened at some point thereafter: The patient settled with Erie, the insurer sent her a check for the full amount of the settlement — essentially ignoring the assignment — and the patient signed a full release of all claims. When the doctors found out about that, they sued Erie for the amount of its unpaid bill. The doctors won in GDC and in circuit, but today the justices reverse and enter final judgment for the insurer.

One of the fundamentals of insurance law is that an insurer has no duty to pay a claim until it’s reduced to judgment. That never happened here; the patient settled without getting a judgment, and maybe even without filing suit. By statute, an injured party can’t sue the tortfeasor’s insurance company. That means that the doctors don’t have a right to sue as an assignee.

My sense is that this ruling is going to generate substantial wailing and gnashing of teeth among the healthcare industry. How do healthcare providers enforce these assignments? They obviously have a right to sue their patient, but the point of the assignment was to ensure a liquid, no-fuss source of payment. (One never knows what the patient has done with the money in the intervening years.) I suppose that providers could ask insurers for a contractual commitment to honor their patients’ assignments, but I doubt any such commitment will be forthcoming.

 


 

ANALYSIS OF SEPTEMBER 7, 2017 SUPREME COURT OPINION

 

(Posted September 7, 2017) The Supreme Court releases a single opinion today, in a criminal appeal. The case is Dietz v. Commonwealth. It involves the prosecution of a schoolteacher for using a cell phone for purposes of procuring or promoting indecent liberties with a child, one of her students. The teacher began with a series of text messages to the student’s phone that appear to be low-level flirting. They escalated later to naughtier territory, including some photos of the teacher, though those stopped short of what the law classifies as nudity.

Alas for the teacher, by the time those last messages came through, she was no longer texting with her student but with a detective who had acquired the student’s phone. Indicted for the offense I describe above, she defended on two grounds. First, she claimed that the cell-phone statute required communication with a third person, not merely with the “target” minor. Second, she claimed that since she hadn’t exposed any “sexual part” of her body in her photos, she hadn’t actually taken indecent liberties.

The trial court and Court of Appeals rejected both arguments, and today the Supreme Court agrees, affirming the conviction. Justice McClanahan, writing for a unanimous court, reasons that nothing in the statute requires contact with a third party. And the teacher undoubtedly committed an act in furtherance of the “purpose” of a plan to commit indecent liberties. This statute doesn’t require proof of a completed criminal act of indecent liberties. The purpose of the statute is, as the Court of Appeals had ruled, “to protect children from people who would take advantage of them before the perpetrator could commit a sexual assault on an actual child.”

 

 


ANALYSIS OF AUGUST 31, 2017 SUPREME COURT OPINIONS

 

(Posted August 31, 2017) The Supreme Court gives us a bountiful crop of decisions today – six published opinions and one published order. This is the largest batch we’ve seen in a single day since mid-April.

 

Freedom of Information

Once upon a time, citizens in FOIA appeals enjoyed overwhelming success in the Supreme Court. That trend is no more; today the court hands public bodies the latest in an unbroken string of appellate successes that stretch back almost a decade. (The last time the citizen prevailed in one, as far as I can tell, was September 2007, in Fenter v. Norfolk Airport Authority.)

Today’s decision comes in Virginia Education Ass’n v. Davison, which combines three separate appeals – with separate record numbers – into a single opinion. Davison asked the Loudoun County Schools for records relating to Standards of Learning test results. The school system told him, “Sorry; we don’t have those records. The Virginia Department of Education does.”

Fair enough; Davison sent a FOA request to the Department for Loudoun’s aggregated test scores, “sorted by teacher and by school over the past five years along with an explanation of the methodology used to calculate the assessment scores.” Note that he’s not asking for individual students’ scores, which would be exempt from disclosure.

The Department wrote back, saying that it doesn’t segregate information by individual teacher. Oh yes you do, Davison replied, and gave the Department a link to its own website, noting that the Department compiled just such information. (Ulp!)

But the Department wasn’t through resisting. It said that the information Davison requested “only exist in a database that contains information directly related to students, [and] they are considered scholastic records” that are exempt. Davison thrust back that the Department could produce summary reports from this database that didn’t identify students, as it had done in the past. The Department “acknowledged that such reports did exist at one time, but were no longer produced …”

If this is starting to look fishy to you, you’ve got company. This last refusal was enough for Davison; he filed a mandamus petition in circuit court. After the Virginia Education Association and the Loudoun School Board intervened, the court convened a hearing on the defendants’ demurrers. It eventually overruled them, issued a writ of mandamus, and imposed $35,000 in attorneys’ fees upon the Department and the school board. All three appellants appealed and each got a writ.

Today the justices rule that while this appeal doesn’t present issues of student confidentiality, it does for teachers. The statute exempts “Teacher performance indicators, or other data used by the local school board to judge the performance or quality of a teacher, maintained in a teacher’s personnel file or otherwise …” Davison urged that this exemption didn’t apply, because the school board didn’t actually use SoL scores in teacher evaluations. But the court rules today that that doesn’t matter:

Applying the rule of the last antecedent to Code § 22.1- 295.1(C), we conclude that the phrase “used by the local school board” refers solely to the phrase “other data” and not to the phrase “teacher performance indicators.” Read through that prism, it is only the “other data” that must be used by the local school board in order for it to be held confidential. Actual use does not apply to teacher performance indicators.

Hence we have an issue of case-dispositive punctuation; the appellants win because of a comma. My humble view is that, based on the rules of grammar as I understand and apply them, this analysis is unassailable. The statute exempts two things: teacher performance indicators, and other matters that the school board actually uses. The indicators themselves are exempt whether the board uses them or not.

The court thus reverses and remands, but there’s one point on which I’m not clear. All of the appellants win, so Davison loses. The court rules that the trial court erred in imposing part of the fee award upon the school board, since it emphatically was not the public body that maintained the records. But the Supreme Court remands for recalculation of the fee award. I don’t know why the court does that; FOIA only allows attorney’s fee awards to a party who successfully sues a public body, so I expected a reversal and final judgment. Perhaps there was an unappealed aspect to the case below on which Davison won, though today’s opinion doesn’t describe it.

Local governments

The merits issue in City of Danville v. Garrett is actually the secondary attraction for me, and I suspect that my fellow appellate practitioners will agree. This is an appeal of a circuit court’s decision against the City of Danville in litigation over a police officer’s disability benefits.

Officer Garrett was injured in the line of duty and sought an award of statutory disability benefits, equal to 2/3 of her average salary. The City replied that its ordinance only allowed disability benefits of 30%. A trial judge agreed with Garrett.

Today the justices reverse and enter final judgment for the City. The Supreme Court rules that Danville didn’t opt into the state system, as allowed by a statute; instead it created its own system with lower benefits for its police officers. That means that the state benefit rate didn’t govern Officer Garrett’s claim.

Today’s opinion is only five pages long, the shortest decision of the day. As I see it, the most important language is contained in a footnote (which is quite often where the goblins hang out). Here it is:

This Court granted the City’s motion for an extension of time to file its petition for appeal under Rule 5:5. In response thereto, Garrett contends that this Court lacks subject matter jurisdiction over this appeal under Code § 8.01-671. We reject that contention, concluding that Code § 8.01-671 does not affect the Court’s subject matter jurisdiction.

I’ve seen the briefs in this case. In that context, this short passage is beyond surprising to me; it’s shocking. I’ll explain why.

Last year, the City filed its petition for appeal a day late. That’s fatal; the deadline for filing the petition is mandatory, and the court has interpreted it as jurisdictional, presumably because the three-month (as of July 2017, it’s now 90 days) deadline is imposed by statute.

The City later moved the Supreme Court to extend the filing deadline, as Rule 5:5 allows. Officer Garrett replied that the City had provided no good excuse for missing the mandatory deadline. In the past, the court has regularly attributed an error by a party’s agent — including an attorney — to the party. You chose your lawyer or your printing consultant or your courier, and that person made a mistake; hence that becomes your mistake, so you don’t get relief. But the justices granted the City’s motion anyway, enlarging the time to make the late filing timely. The court eventually granted this writ, and as we’ve seen, it reverses today.

There’s more than that. The statute imposing the three-month deadline for petitions only allowed extensions of time in criminal appeals; there is no authority to extend in civil cases. This situation was what prompted the Judicial Council to recommend that the statute be changed, and the General Assembly did so in the 2017 session, so now the court can extend the filing deadline in civil appeals, too. But that statutory change came too late for this appeal; the filing deadline here was August 2016. This petition should have been DOA.

In her merits brief, Officer Garrett again objected that the City’s petition was filed too late, and expressly pointed out that the court accordingly didn’t have jurisdiction over the case. She cited the criminal/civil dichotomy in the statute that gave the court the power to extend the otherwise fatal deadline. I fully expected the court to rule accordingly, and to dismiss this appeal as improvidently awarded.

The court’s ruling surprises me in the casual, almost backhanded way in which it adjudicates an issue as vital as its own jurisdiction with virtually no discussion. This footnote gives no hint of the events I’ve related above; indeed, I never would have known about the legal issues involved if Officer Garrett’s lawyer hadn’t called me a few months ago to ask about the situation. My forecast to him about what would happen turns out to have been incorrect.

In previous cases, the court has emphasized that it must strictly adhere to the limits that the legislature has imposed upon the court’s jurisdiction. Today, instead of respecting those limits, the court essentially ignores them, ruling that it had a power that the legislature had unambiguously withheld until this year.

This is the third recent decision of which I’m aware in which the Supreme Court has adjudicated a case over which it had no jurisdiction. The other two came last year: Environment Specialist v. Wells Fargo, 291 Va. 111 (2016), where the appealing party was clearly not aggrieved, and Ragland v. Soggin, 291 Va. 282 (2016), where the $200 sanctions fell below an unmistakable $500 jurisdictional minimum for Supreme Court review.

I was also greatly surprised by the reasoning in the footnote. It asserts that Officer Garrett’s argument raises the absence of subject-matter jurisdiction, and then concludes that the statute doesn’t affect that component of jurisdiction.

But her briefs don’t say that; I’ve read them again this morning, and the phrase subject matter doesn’t appear anywhere. Her argument implicates one of the “other conditions of fact that constitute prerequisites of the authority of the court to proceed to judgment.” Verizon Online v. Horbal, 293 Va. 176 (2017). There is no plausible contention that she waived her objection at any point. The Supreme Court’s approach is to effectively rewrite Officer Garrett’s briefs to assert something else, and then shoot that phantom argument down.

In case you’re having trouble reading between the lines, I believe this conclusion is wholly incorrect. The court had no business deciding this case on the merits after the appellant missed one of the classic mandatory-and-jurisdictional deadlines in the rulebook. I cannot say why the justices chose to overlook this fatal error, because I’m not a court insider. All I can tell you is that this decision is final and unappealable; the Supreme Court is the court of last resort for issues involving purely Virginia practice and procedure.

Land use

What do you do when you apply for a land-use permit, you get one, you spend money building a structure consistent with the permit, and then months later the local government tells you to take it down because the permitting decision was incorrect?

For many years, the answer was, “You take the building down.” Supreme Court caselaw indicated that a government official couldn’t authorize a violation of land-use ordinances, because doing so would make him, not the elected governing body, the policymaker. This is another way of stating that localities, like other governmental units, aren’t subject to the doctrine of estoppel and waiver when they act in their governmental capacity.

Three landowners on the Northern Neck found themselves in this very pickle when they got a permit to build a two-story detached garage adjacent to their home. After they filed their application for a permit, the county zoning administrator visited the property and okayed the project. The owners spent $27,000 building the garage.

The problem is that under the county’s ordinance, you can’t build a garage that’s higher than the home itself, and the home was only one story. Several months after the end of construction, a new zoning administrator came by and told them they were in violation. (Today’s opinion doesn’t go into detail, but I infer that the notice told them to either get a variance or demolish the garage.)

That’s the setup for Richmond County v. Rhoads. A trial court had ruled in favor of the owners – that’s why we have the county on the anterior side of the “v.” – and today the justices affirm. The court cites a 1995 remedial statute, by which the legislature provided succor for folks in this situation. The statute applies when three circumstances are present:

(1) a “written order, requirement, decision or determination made by the zoning administrator;”

(2) the passage of at least 60 days from the zoning administrator’s determination; and

(3) a material change in position “in good faith reliance on the action of the zoning administrator.”

The parties had effectively stipulated to these elements. But the county wasn’t done; it claimed that the first administrator’s permit wasn’t a “written order, requirement, decision or determination.” Oh, yes it was, the court replies today. It has all the earmarks of an official government action.

The county also claimed that the statute only prohibits a subsequent zoning administrator from rescinding a permit; it doesn’t apply to other entities such as the board of supervisors or a court. No dice here, too; this is a remedial statute and governs actions by those other entities, too.

Contracts

A contract for the sale of land is at the heart of Denton v. Browntown Valley Associates, Inc. from beautiful Warren County. Denton owned a 120-acre parcel and contracted to sell it to Browntown for $740K. Surprisingly for a contract of that size, the earnest-money deposit was just $500. If Inspector Clouseau were evaluating this appeal, he would regard that as “une clue” that trouble is brewing.

On the closing date, the buyer backed off, claiming that it couldn’t get an agreement with a neighboring landowner about access. The buyer asked for a release and its $500 back. Since there was no contingency dealing with that other landowner, the seller determined to hold the buyer to the contract. He tried to resell it but got no other buyers.

The seller decided to sue. He had a choice: sue for damages or seek specific performance. A damages action would require proof of what a willing buyer would pay (you subtract that figure from the contract price to get the damages), and he didn’t have one of those. He therefore chose specific performance.

The buyer had a plausible defense up its sleeve. It noted that four of the 120 acres were subject to a title defect involving a neighboring parcel. With that defect, the seller couldn’t deliver good title, so specific performance wasn’t available. The seller responded by producing an old deed carrying out a boundary-line agreement with the neighboring owner.

I apologize for the fact that it gets even more complicated here; but the parties aren’t finished making material mistakes, and I’m just the messenger. The buyer noted that there was a trustee’s deed for the four acres in the chain of title. And the seller’s boundary-line deed, although dated a year before the trustee’s deed, wasn’t recorded until eight months after the trustee’s deed. (Now, why would you wait to record a deed? But I digress.) The seller countered that the grantee of the trustee’s deed hadn’t raised a fuss in the ensuing 15+ years, so that wasn’t a problem.

Now we’re off to court so a circuit judge can sort all this out. The court (1) denied a motion in limine to exclude the trustee’s deed and (2) retroactively granted the buyer’s motion to strike, after having taken it under advisement to let all the evidence in. It granted judgment to the buyer and added a $48K attorney’s fee award under the fee-shifting provision in the contract.

Today the justices affirm with a series of what I view as no-nonsense rulings. The seller assigned a slew of errors – at last eight that the court mentions – and the justices reject each one. They rule that the trustee’s deed was relevant to the marketability of the title, so the judge properly admitted and considered it. They also turn aside the seller’s contention that the buyer would have known about any title issues if it had conducted a title examination: “Regardless of the contract’s requirement for a title examination, it is the seller who bears the burden of proving that he has marketable title. … That is doubly true where the seller seeks specific performance of the contract.”

The Supreme Court also reaches back into the dim recesses of its early decisions, where it had held (in 1831) that when a trifling portion of the property is in dispute, that doesn’t vitiate the entire contract; you just make an allowance for the uncertainty and perform the rest.

But the justices’ judicial ancestors back in the antebellum days were no fools. That approach is fine where the disputed area possesses “no particular value in relation to the general tract.” Here. the court concludes that the trial judge considered that factor and didn’t abuse his discretion in doing so.

The court finally approves the attorneys’ fee award, even in the face of a plausible first-breach argument. That doctrine holds that the first party to breach a contract cannot sue to enforce it; the seller argued that the buyer was the first party to breach an obligation here.

In another appeal, that might work; but in a development that’s painfully familiar to appellate practitioners, the seller hadn’t pleaded this affirmative defense in the trial court, so it’s waived. The court also rejects the contention that fees were inappropriate because the seller’s arguments below were reasonable, even if ultimately unsuccessful. This argument might work in a sanctions appeal, where issues like good faith are case-dispositive. But this is a plain-old fee-shifting provision, so good faith (or not) isn’t material.

Criminal law

The court adjudicates two appeals in a single published order entitled Williams v. Commonwealth. The opinion tells a sobering story about the state of Virginia’s mental-health system, at least when it intersects with the criminal-justice system.

Two separate grand juries indicted Williams in 2014 for felony assault; the second jury added charges of attempted murder. The victim in the cases was his wife; the offenses occurred six weeks apart. His attorney and the prosecutor reached an agreement by which Williams would plead guilty to the first assault charge and not guilty by reason of insanity to the later charges.

The trial judge heard evidence, including from mental-health professionals, in support of the plea agreement before ultimately accepting both pleas. The court sentenced Williams to serve five years for the assault and ordered involuntary civil commitment on the finding of temporary insanity.

So far this all seems normal. The part that generates an appeal is the judge’s conclusion that Williams would serve the five years first and only then be held for mental evaluation and treatment. Williams had asked the court to allow him to be treated first and incarcerated second, but on appeal he asserted specific legal arguments instead of a general request.

The problem with this approach is that old nemesis, the contemporaneous-objection rule. I’ve preached this sermon often enough that I don’t need to repeat it in depth: you have to give the trial court an opportunity to rule in the first instance.

That being said, the rule contains an ends-of-justice exception, and Williams sought to invoke that exception here to get Supreme Court review anyway. In a divided ruling, the court rules that this case doesn’t satisfy the ends-of-justice exception because the trial court’s ruling doesn’t create a grave injustice.

Williams contended that with the prison-first approach, he was in effect being punished for having a mental illness. The court’s five-member majority – as with other orders, it doesn’t identify its author – concludes that nothing in the sentencing statutes mandates that treatment must precede incarceration, so there’s nothing manifestly wrong here.

The majority adds two salient points here. First, prisons are required by law to provide inmates with health care, including for mental illnesses. Williams can and indeed must be treated while he is incarcerated. And if the Director of Corrections determines that the prison system can’t provide Williams with the care he needs, he can petition a court to transfer an inmate to a hospital. This is enough, the majority finds, to address any concern about punishment first and treatment second.

Justice Mims writes separately, and you can almost hear him sighing: “I reluctantly concur with the Court’s ruling declining to apply the ends of justice exception to Rule 5:25 in this case.” He feels that this case illustrates the need for the General Assembly to address this issue, since “the statutes are deficient because they do not direct courts how to prioritize incarceration and commitment when a defendant is found guilty of some criminal offenses but not guilty of others by reason of insanity.”

Here’s another short quote that explains the origin of his concern: “But medical care is merely an incidental function of correctional facilities, which are principally charged with custody and rehabilitation. Medical care, including mental health treatment, is the principal responsibility of hospitals and other treatment facilities.”

This struck a familiar chord with me. One of my pals is in the corrections field, and he has told me on several occasions that the largest facility here in Tidewater that provides mental-health treatment is the Virginia Beach City Jail. We are warehousing the mentally ill in facilities that are ill-suited to provide treatment for those conditions. Justice Mims provides a compelling argument for the legislature to step in.

Justice Powell dissents, and if you’ve read her dissents, you know that there are no pulled punches. She insists that the trial court did indeed get the order dead-wrong, even under a deferential abuse-of-discretion standard. She notes that the court elevated a discretionary sentence (for the assault) over a mandatory commitment.

A court can subject a felon to a wide range of sentences, and even suspend execution of any prison term in its entirety. But upon a finding of not guilty by reason of insanity, there was no discretion: state law mandates immediate (“At the conclusion of the hearing”) commitment to a hospital. This trial court received and expressly credited evidence that Williams needed inpatient treatment, so it erred by not doing as that statute mandates.

I have virtually no expertise in mental-health issues, so I hesitate to wade in beyond the above analysis of the legal rulings. I’ll only add that while I agree with Justice Mims that further legislative action is urgent, I’m not going to hold my breath, given what I’ve seen about how the General Assembly chooses to treat those accused or convicted of crimes, even with a mental disorder.

Torts

The justices wrestle with an issue that has split federal circuit courts on the effect of a release upon FELA claims. Today’s decision is Cole v. Norfolk Southern Railway Co.

My readers know that the Federal Employers’ Liability Act covers employees of railroad companies. It liberalizes an injured employee’s right to recover from his employer in several ways, such as by eliminating contributory negligence and assumption of the risk defenses. One clause in it provides that “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void.” Congress enacted this provision in response to employers’ inserting clauses in contracts of employment that barred the employee from claiming any rights under FELA.

Today’s opinion tells us that one Aaron Cole worked for Norfolk Southern for 35 years. In 1996, concerned that he had been exposed to toxins including asbestos, he sued the employer, claiming that he had contracted pneumoconiosis and feared contracting other diseases, including lung cancer. Four years later, he and the employer entered into a settlement agreement in which he released the company from liability for all claims for lung-related diseases. In exchange, he received $20,000. He was 78 years old at the time.

Doctors diagnosed Cole with lung cancer in 2009; he died late the next year. His personal representative sued the railroad under FELA, relying on the language quoted above to evade the otherwise conclusive bar of the release. The trial court heard the railroad’s special plea of release; acknowledging that the Third and Sixth Circuits have split on the effect of this statute on releases like this, the court concluded that the release was effective, and dismissed the action.

The Supreme Court unanimously affirms today. The justices adopt the Third Circuit’s approach, which they call the “risk of harm” test. Here’s what that test entails:

[A] release does not violate [FELA] provided it is executed for valid consideration as part of a settlement, and the scope of the release is limited to those risks which are known to the parties at the time the release is signed. Claims relating to unknown risks do not constitute “controversies,” and may not be waived under § 5 of FELA.

Because the decedent had known in 2000 about the risk of future lung conditions, and indeed had pleaded fear of that very development, the release is valid and bars the wrongful-death claim here.

Taxation

I have a confession to make. It would probably be best if I kept this to myself; but I have a duty of candor toward you, my faithful readers, so you need to know the shameful truth. As I was reading Kohl’s Department Stores, Inc. v. Department of Taxation, I repeatedly considered declaring “analysis bankruptcy” by simply declining to post anything on it. It’s packed, stuffed, loaded with truly arcane taxation and accounting stuff, and I have never held myself out as a tax jock. (I pay my taxes; I don’t care about anybody else’s.)

Bankruptcy seems to be a sensible option, the little voice inside my head whispered. After all, nobody’s holding a gun to your head, forcing you to post analysis. Just give ‘em a link and tell ‘em to go read it for themselves. But in the end, my sense of responsibility won out: If the justices have to suffer through this agony, I ought to man up and do it, too.

 Kohl’s and the Department fought over about $2 million in this case, so for some tax lawyers, this isn’t uninteresting at all. The case relates to taxes that Kohl’s paid in 2009-10. Like other corporations, Kohl’s pays taxes on its taxable income. That reflects its gross receipts – the aggregate of what all its customers give the store in exchange for stuff – minus its costs of doing business. That includes components like labor, utilities, advertising expenses, and so forth. The result is taxable income, upon which the company calculates its annual tax bill for payment to Uncle Sam and Aunt Virginia.

The Kohl’s chain operates the stores, but a related company called Kohl’s Illinois owns intellectual-property rights like trademarks and licenses those rights to Kohl’s. Because this is a deduction from Kohl’s taxable income, Kohl’s excluded it from its gross income.

Kohl’s Illinois has no presence in Virginia and is hence beyond the reach of the tax man from Richmond. It declared the royalty revenue as income. But in paying taxes in various other states where it has to apportion its revenue, it didn’t have to account for a portion of those in every state, based on differences in tax schemes. That means that a substantial amount of this money isn’t being taxed anywhere, at least not on the state level.

In 2004, the General Assembly decided to close this loophole. Joining a number of other states who were addressing this missing-revenue problem, it passed an “add-back” statute that requires companies like Kohl’s to pay taxes on money it paid to related companies like Kohl’s Illinois, with one big exception: The company doesn’t have to add the money back if “the corresponding item of income received by the related member is subject to a tax … imposed by … another state.” Kohl’s claimed the exemption; the Department fussed; and that brings us to court.

On occasion, I note that certain opinions wind up getting assigned to particularly appropriate members of the court for opinion-writing duties. This is contrary to the popular belief that the assignment is truly random; I strongly suspect that some horse-trading goes on. In that vein, it should come as no surprise that the author of today’s majority opinion is Justice Mims. Why would he be the one to write about a 2004 tax statute? Well, what do you think he was doing that year? He was a member of the State Senate, that’s what. He accordingly is able to spice up his opinion with plenty of what passes in Virginia for legislative history, including the legislature’s desire to close this loophole and thereby grab an extra $34 million a year in tax revenue.

The majority concludes that using Kohl’s interpretation would frustrate this legislative purpose, allowing Kohl’s and other companies to shelter income by sending it to geographically favored related companies. The court also applies the Rule of Practical Construction, noting that courts generally defer to the interpretations of agencies charged with enforcing various Virginia laws. The court rules that the Department’s interpretation is correct, so Kohl’s has to pay the money.

Just not all of it. Kohl’s had made an alternative argument in the trial court, claiming that the Department’s calculation of a tax – assuming it was appropriate to tax at all – was incorrect. The trial court hadn’t ruled on that alternate argument, but the majority today picks it up and gives the store a partial victory, in the form of a remand for recalculation.

One quick side note: I’m quite surprised that the majority agreed to do that, since the trial judge never ruled on the alternative basis. In most contexts, the justices will not touch an issue that the trial court hasn’t decided. Examples of this are legion: for a couple of examples, see Lasley v. Hylton, 288 Va. 419, 428 n.3 (2014) and Orndorff v. Commonwealth, 271 Va. 486, 506 (2006).

The Department can find only four justices to climb on board with this ruling. Justice McClanahan dissents, and she’s joined by the chief justice and Justice Kelsey. The dissent notes that there’s no language in the statute to indicate that the General Assembly meant to tax the way the majority rules. More important, since there’s a legitimate ambiguity, the dissent would apply the rule that close calls go to the taxpayer. Justice McClanahan quotes an earlier ruling of the court that “Whenever there is a just doubt, that doubt should be resolved in favor of the taxpayer.”

Never let it be said that I didn’t man up when the circumstances required it.

 


ANALYSIS OF AUGUST 24, 2017 SUPREME COURT OPINION

 

(Posted August 24, 2017) The Supreme Court of Virginia continues to chip away at the pile of undecided appeals in its inventory. Today we get a taxation decision that turns on a provision in the federal Constitution.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

U.S. Const. Art I, §10, cl. 2. This is the Import-Export Clause, and it prohibits states from collecting money because of imports and exports. That’s the federal government’s racket.

Okay, so racket isn’t the right word. Permit me to be a tad playful. It’s the federal government’s prerogative, and this clause prevents each individual state from taxing imports and exports to death, merely because they pass through the state on their way to another destination.

Loudoun County assesses a Business, Professional, and Occupational License tax on businesses within its jurisdiction. Because Dulles Airport is in the county, that tax falls upon the many shops inside the airport, including one operated by Dulles Duty Free, LLC. As its name implies, this is a duty-free shop. Any traveler can come in and buy things, but if you’re headed out of the country – and have the boarding pass and passport to prove it – you can shop there and pay less.

Loudoun calculates its BPOL tax based on gross revenues. DDF’s store generates revenues from domestic and international sales, and the latter of these fall in the duty-free category. Loudoun calculates the BPOL tax based on all of the sales, but since 90% of the store’s revenue is from duty-free sales – hardly a surprise – the store decided to try to claim an exemption based on the Constitution.

The circuit court pondered the matter and ruled that the Import-Export Clause didn’t apply, but today, in Dulles Duty Free LLC v. Loudoun County, the justices unanimously reverse and remand for calculation of a refund. Justice McCullough’s opinion lays out the jurisprudential history of the clause. He notes that the seminal decision on the clause, handed down in 1946, has seen substantial erosion since then in several ways. But not in the way that applies to this case; the caselaw still prohibits states from taxing the movement of goods out of the country. Since DDF only receives revenue (at least 90% thereof) by selling goods to the person who’s in the process of taking it abroad, that means the Constitution overrides Loudoun’s tax scheme.

 


ANALYSIS OF AUGUST 17, 2017 SUPREME COURT OPINION

 

(Posted August 17, 2017) Cue the fanfare; for the first time in three weeks, we have an opinion from the Supreme Court.

(What, you were getting impatient? If so, I invite you to remember that before the court went to rolling release dates in 2015, you would have been waiting another month, until the September session, for this ruling. Look at the bright side.)

In re Dennis is a name-change proceeding filed by an inmate at the Greensville Correctional Center. Dennis sought to change his surname (leaving his given names intact) to Wright. In his petition, he asserts that he has converted to the Native American Faith, and that required him to change his name to match that of “his last full-blood Native American Ancestor.”

I had not known before reading this that there was a Native American Faith. (Neither had Justice Goodwyn, based on the scare quotes around the term in his opinion for the court.) I had assumed that Native Americans had a variety of religious denominations, based on which tribe they belonged to. You can learn a lot by reading Supreme Court opinions.

Virginia law is fairly deferential when it comes to changing your name. For most folks, a simple application and an inoffensive name choice are sufficient. Changing your name isn’t as easy as changing your clothes, but the Code allows John Q. Public to become John Q. Citizen fairly easily.

It isn’t as easy with inmates, for understandable reasons. The General Assembly amended the statute in 2014 to add a new subsection D, dealing with inmates. It now provides that for inmates and persons required to register as sex offenders, the trial court must reject the application unless it finds good cause to consider it. If so, the court notifies the local prosecutor, who can oppose it if he or she sees fit.

Dennis had been convicted of several sexual offenses, so after reading the petition, the circuit-court judge declined to find good cause and dismissed the petition. Against that backdrop, you may be surprised to learn that the justices granted a writ. You’ll be even more surprised that the court today unanimously reverses and sends the petition back for adjudication on the merits.

A review of the decision will end your surprise. The justices note that, based on a 2007 ruling, a religious purpose is sufficient to constitute good cause for a name change. The trial court simply skipped a step and decided the merits of the petition without considering the religious reason.

That being said, the penultimate paragraph of today’s opinion portends a dim future for the merits of the case. Justice Goodwyn observes that “the situation changes entirely” when the court takes up the merits. At that stage, Dennis’s criminal history may well thwart his effort to adopt a different name.

This decision is analogous to a trial court’s grant of summary judgment, or sustaining of a demurrer, in a civil action based on the perceived inability of the plaintiff to prove her case. You have to get to an evidentiary hearing for that, and the justices today rule that although Dennis is facing a long uphill slog on the merits, he’s entitled to an evidentiary hearing, too.

 


 

ACRONYMS AND INITIALISMS – HOW TO AVOID ALPHABET SOUP

 

(Posted August 14, 2017) The Fourth Circuit today hands down four published opinions. Court observers will know that that’s a lot for a single day. I decided to check them out to see if there’s anything my readers might find particularly important. I began with the first decision on the web page, M.L. v. Dr. Jack Smith. It raises an important and interesting issue.

M.L. is an Orthodox Jewish boy with Down syndrome. His parents asked the local school board in Maryland to afford him a free appropriate public education, and the system agreed to do that. But the parents took issue with the appropriateness of the education plan, since it was too general in an important respect: It wouldn’t teach the boy the tenets of his religion and Jewish culture.

The parents noted that school should prepare a child for the environment in which he will live, and they asserted that Orthodox Jews “do not and will not participate in the non-Orthodox community.” They wanted something much more attuned to Judaism. Perhaps sensing an Establishment Clause problem, the school system refused, leading the parties to an eventual hearing before an administrative law judge.

So far this appeared to me to be an interesting issue, and I conceived of writing and posting fairly normal analysis of it. And then I got to this sentence on page 7, at which point my reading, and my analysis plans, came to a screeching halt:

Ultimately, the ALJ found the IEP proposed by MCPS provided M.L. with a FAPE under the IDEA.

¡¡Madre de Dios!! A sentence like that calls for an essay all its own.

Let’s start with the basics. Most of the alphabet soup in that sentence comprises initialisms. An initialism looks just like the more familiar acronym, but the former is pronounced as individual letters, while the latter is pronounced as its own word. IRS, UCLA, and NAACP are initialisms; NATO, OPEC and NASA are some of the better-known acronyms.

Initialisms and acronyms are often helpful when they’re readily familiar to the reader. They save time and space, and help make writing breezier. But when a writer uses them to stand for more arcane matters, a sentence can come to a jarring halt. You know, like the one I quote above.

By this point you’re probably expecting me to launch into a criticism of the author of today’s opinion – who shall remain nameless, but his initials are Judge Steve Agee – for writing this sentence. Not at all; in his context, it’s entirely appropriate. His honor takes the time to define each term earlier in the opinion, so the reader can always go back and refresh a memory that can’t recall what one of the terms means.

But you should never write a sentence like that in your work. Never, ever, ever; at least on the assumption that you’re writing to persuade someone. That’s especially true with appellate briefs, when you’re writing to persuade a person who has limited time to read what you have to say. An appellate brief should be user-friendly, and require the minimum effort from the “consumer.”

Why the difference? Because Judge Agee isn’t writing to persuade anyone. The court’s purpose in handing down a published opinion is to provide guidance for future litigants and courts. Those folks all have the luxury of time to “translate” the abbreviated versions into whole words. In his context, this writing is perfectly acceptable.

You may be wondering what all of those abbreviations stand for. I’ll insert them in full into a version of the sentence, so that it makes sense to a reader who doesn’t know the playing field – though it will, of course, be much longer:

Ultimately, the administrative law judge found the individualized education program proposed by Montgomery County Public Schools provided M.L. with a free appropriate public education under the Individuals with Disabilities Education Act.

Even so, if I were writing a sentence like this in a document designed to persuade a busy reader, I wouldn’t write it quite like this. On the assumption that, like Judge Agee’s opinion, I’ve referred to the abbreviated matters previously, I’d probably phrase it something like this:

Ultimately, the judge found that the school system’s proposed program provided the student with the Act’s “free appropriate public education.”

That’s only three more words than the original version, but it’s in ordinary English and its meaning is unmistakable.

In case you’re wondering about the appeal, the Fourth Circuit panel votes unanimously to affirm. It holds that the proposed program would give the student the same kind of education that other students get. The court finds it unnecessary to delve into Establishment Clause issues, leaving those for another day and a more suitable procedural vehicle.

 


 

A LOOK INSIDE THE SCV’S 2016 STATISTICS

 

(Posted March 23, 2017) The Supreme Court has now gone two Thursdays without releasing any published opinions, so it’s time for a different angle. The court’s 2016 statistical report is out. Since I know that most of you hate numbers – that’s why you got into a profession that emphasizes words – I’ve done the digging and sifting for you. That being said, if you really-most-sincerely hate numbers, I might not be able to soften this enough for you. I hope you’ll bear with me, for the lessons are worth learning.

Here are a few items that caught my eye.

How’s appellate business?

Business is down (mostly). SCV Clerk Trish Harrington opened just 1,852 new files last year. That’s the smallest number since 1990, and it’s off 7% from the 2015 total of 1,996. But the drop-off is one-sided: by coincidence, the court received the same number of civil petitions in each year: 569.

The big change is in criminal petitions, which fell from 974 in 2015 to just 774 last year, a reduction of just over 20%. I could speculate whether this means that inmates are more accepting of their fates (doubtful) or they’re getting demoralized by the puny reversal rate. The justices ruled in favor of the prosecution in 25 of the 28 criminal appeals that it decided on the merits last year (including published opinions and unpublished orders). The overwhelming majority of criminal appellants never even got a writ. The accused’s overall success rate before the justices last year was on the order of one-third of one percent; the other 99.7% lost.

I do have a couple of encouraging upticks to report: the justices are granting more writs and are publishing more opinions. Last year’s 123 writs – 93 civil, 30 criminal – represented a healthy increase from the four-year average of about 106 writs a year from 2012-15. And the court handed down 78 published opinions in 2016. That’s up slightly over the past three years, though it still lags far behind the 119 opinions we got as recently as 2012. In the halcyon days of the late 1990s, we regularly got 150+ new opinions every year, but those times are gone.

What about the procedural-default rate?

I detest reporting on this, because it’s an embarrassment. In 2016, 7.8% of criminal petitions and 23.6% of civil petitions were dismissed for procedural defaults; they never even got to the writ panel. I suspect that many of the civil appeals were filed by pro se litigants, but I’m confident that an alarming number came from law offices.

Why is the criminal-petition rate so much lower? Possibly because the lawyers who file those petitions have been down this road before and they know the appellate landmarks – and landmines – better than their civil counterparts. It’s also conceivable that the justices may be a bit more lenient with a borderline defect if it occurs in a criminal appeal, but I have no way to evaluate that hypothesis.

I could start offering advice here on avoiding procedural default; but that’s a much longer essay, and it would probably get me on a rant about dabbling in appeals, so I’ll move on now.

How’s the “pace of play”?

(Pardon a golfer’s metaphor here.) My regular readers recall well that in September 2015, the Supreme Court shifted from its nice, predictable, six-days-yearly release dates for opinions, to a rolling-release practice in which opinions might hit the wire any Thursday. I heard several musings back then over how this would affect the time it takes the court to get opinions out. Faster or slower?

Since that sounded like a reasonable question, and since lawyers frequently ask me when to expect an opinion after argument, I decided to keep records on the release dates, so I could determine whether the pace of the decisions would now be faster or slower. Here’s a quick refresher on the previous setup:

The old practice gave us opinions on a seven-week turnaround, though on occasion the court would hold an opinion to the next session – a delay of seven more weeks – if the opinion wasn’t ready for release. In my estimation, that happened in about one case in twenty. Also, unpubs might arrive at any time; the court didn’t hold them until opinion day. Finally, the court’s schedule built in two extra-long breaks: January’s opinion day was about ten or eleven weeks after October/November’s, and the long summer recess meant that lawyers who argued in June would have to wait about 14 weeks before getting their rulings.

I decided to start with the appeals argued in the February 2016 session, because those argued that January were skewed by the Roush Effect. (See the opening paragraphs of my February 12, 2016 SCV analysis for the full story.) After that, I figured we’d see a normal pattern emerge.

The court took, on average, 11.2 weeks to release opinions from the March session, and 6.4 weeks to release unpubs. That makes it look like the smart betting is on “longer.”

For the April session, it was noticeably quicker: 7.8 weeks for opinions and 6 weeks flat for unpubs. That’s still about a week later than the previous seven-week schedule, but it’s not a huge difference.

For June, the court beat its previous pace. Remember, previously June-session arguments resulted in September-session opinions, a delay of 14 weeks. But in 2016, opinions arrived an average of 12.3 weeks after the previous session’s opinion day, with unpubs taking 11.3. Lawyers who argued in June got results sooner, on average, than they had in past years.

The court slipped a bit on appeals argued in the September session, releasing opinions after an average delay of 9.8 weeks and unpubs in 7.3. That’s noticeably slower than the previous seven-week pace.

But the justices more than made up for it in the November session, which previously had meant a delay of 10-11 weeks. The court released opinions from that session in an average of 9.6 weeks, and unpubs in 6.6.

In all, if you were looking for a significant change in the pace, you won’t find it. What you may find instead is that an opinion comes down in eight or nine weeks instead of the 14 that it would previously have taken if the court had held it over for further massaging. That is a decidedly good development.

What’s the trend in tort litigation?

The caveat here is that I cannot give you statistics from the petition stage, other than petitions filed, petitions refused, petitions granted, and procedural dismissals, as noted above. I cannot know how many plaintiffs vis-à-vis defendants filed unsuccessful petitions for appeal, because no one at Ninth and Franklin keeps that kind of record.

Not so on the merits; we have a handy compendium of those decisions, called Virginia Reports. The cases decided in 2016 are all published now – some of them still in advance sheets – and a little metaphorical elbow grease will tell us how the current set of justices is ruling in tort cases.

It’s one-sided. In 2016, the court handed down 15 opinions in appeals involving claims of bodily injury (including medical malpractice and wrongful death) and wrongful termination. In those 15 decisions, the injured party (including the terminated employee in this category) won twice, while the tort defendant (including the employer) won 13. This continues a trend that has been accelerating in the last few years. The last time the justices handed down a published opinion that affirmed a bodily-injury judgment in favor of the plaintiff, where the defendant sought a reversal, was almost 2½ years ago, in October 2014.

I hasten to add that this could be due to a skewed sample. After all, any statistician worth his pocket calculator will tell you that a sample size of 15 cases isn’t sufficient to draw firm conclusions. But I now have detailed statistics on these decisions going back to 1999, and we’ve never seen an imbalance like this before. The defense is winning these appeals by historic margins.

While we could theorize about unusual suspects – that skewed sample size, perhaps; or the possibility that trial courts, en masse, have all started making pro-plaintiff mistakes – I prefer the Occam’s razor approach: the Supreme Court has become far more conservative in the past few years, and that’s showing up in its current body of caselaw.

How’s the success rate for rehearings?

Grim, as always. In 2016, the court granted eight petitions for rehearing filed after a writ-stage refusal, and rejected the other 294, for a success rate of 2.6%. Keep in mind that the appellant may have won only a temporary reprieve; the court may ultimately affirm some of those eight.

After a decision on the merits, 23 losing litigants summoned the courage to seek rehearing last year, but the court refused each petition. RGR v. Settle is the only PFR that the court has granted after a merits decision since the beginning of 2013. The other 102 petitions filed in that time have all been in vain, a success rate of 0.97%. Of course, the success rate for those losing appellate litigants who do not choose to file a PFR is 0.00%, so you can see why they’d try.