(Posted November 16, 2017) It has happened again. This makes – what, 37 years in a row? – that I’ve been dissed by the folks at People Magazine, who inexplicably have chosen somebody named Blake Shelton over me for this year’s award.

Perhaps I should have called for a more expansive letter-writing campaign in support of my candidacy. Maybe next year; for now, let’s explore today’s Supreme Court opinion. At a minimum, I know I can do THAT better than Mr. Shelton can.


Criminal law

The principal issue in Cole v. Commonwealth is a fairly simple one: May jail employees conduct a nonconsensual body-cavity search of arrestees upon their arrival in jail? Cole was arrested in Alexandria on an outstanding warrant – today’s opinion doesn’t say what the warrant was for – and the arresting police officer found an open container of alcohol and a small amount of marijuana during an inventory search of his car.

The Alexandria jail has a policy of requiring strip searches of pretrial detainees who are charged with drug offenses, no matter how minor. During their search of Cole, a deputy noticed a white baggie hanging out of a body part that we prefer not to discuss openly here at VANA. That baggie turned out to contain cocaine.

Cole moved to suppress the evidence, and the trial court granted the motion, finding that the standard for strip searches of pretrial detainees is different from that for persons who have been convicted. The Commonwealth took an interlocutory appeal to the CAV, and succeeded in getting that order reversed. The case went back for a bench trial, and there, Cole renewed the motion to exclude the evidence. The court refused, based on the CAV ruling, and convicted Cole.

Cole appealed the conviction and again asked the CAV to review the suppression issue. The appellate court held that it couldn’t touch this issue, which had become the law of the case after the interlocutory appeal, and refused the petition for appeal.

The justices granted a writ, and today’s decision is a partial reversal and partial affirmance. But don’t be fooled by that; there’s one clear winner today, and that’s the Commonwealth.

The reversal is on a matter of appellate practice: The justices find that the CAV erroneously regarded the suppression issue as unreviewable on a merits review. That’s because a statute specifically says that an appellant can ask the appellate court to reconsider a ruling like this one on post-conviction review.

But that’s the extent of Cole’s victories today. The justices go on to evaluate the merits of the suppression ruling, and they find the CAV’s original decision to have been correct. Based on SCOTUS caselaw, courts afford great deference to the decisions of corrections officers on how to maintain security. Because of the possibility of spreading contraband or weapons to the jail population, the court finds that there’s a valid reason for this policy. In order to prevail, an appellant has to adduce “substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Cole hadn’t come close to meeting that tough test, so the Supreme Court affirms the conviction.




(Posted November 10, 2017) The courthouse doors are shuttered today for Veterans’ Day; no more opinions will come down until next week. I have no looming deadlines to file briefs. (I file days or weeks early and get a good night’s sleep before the deadline.) This looks like a good time to take a look around the appellate universe and report on what’s happening.

Before I get to that, today is a date worth commemorating for a couple of reasons beyond veterans. It is the 42nd anniversary of a maritime tragedy that gained worldwide attention due to a haunting ballad. It’s also the 146th anniversary of the most famous question of the Nineteenth Century. On both occasions, men displayed courage that I simply cannot imagine.


ABA Appellate Summit

Last week the ABA convened the Appellate Judges Education Institute, commonly known as the Appellate Summit, in Long Beach, California. This is the preeminent gathering of appellate judges and lawyers in America; it usually attracts three or four hundred attendees from across the country. It’s a wonderful opportunity to share ideas and war stories with your colleagues from elsewhere. It also offers roughly a gazillion hours of MCLE credit (okay, more like 15 or 16 hours this year, with four in Ethics), much of it on cutting-edge appellate topics.

If you’re an appellate lawyer and you’ve never been to a Summit, then for the good of your practice you need to commit to doing so. Next year’s event will be in Atlanta. I don’t have the date yet, but it’s traditionally in early November. I’ll post something when I get word.

Update November 13: The 2018 Summit will convene November 8-11, 2018 at the Atlanta Marriott Marquis. I’ve already blocked off my schedule. Your turn.


Dog days in Louisiana

Early this week I saw a story out of the Pelican State that was, to say the least, eye-catching. By a vote of 6-1, the Supreme Court of Louisiana denied a petition for a writ filed by a criminal defendant named Warren Demesme. The petitioner complained that the trial court had admitted statements he made after he requested a lawyer during a custodial interrogation.

Here’s the key point in the transcript of the interrogation:

If y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.

We all know from basic Criminal Procedure texts that “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” That’s straight out of Miranda v. Arizona. SCOTUS has qualified that by noting that the request for counsel must be unambiguous:

Although a suspect need not “speak with the discrimination of an Oxford don,” post, at 476 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards [v. Arizona, 1981] does not require that the officers stop questioning the suspect.

Davis v. United States, 512 U.S. 452, 459 (1994).

The SCV has recently taken up a situation like this, with a seemingly unambiguous request from a suspect during questioning: “That’s what I want, a lawyer, man.” While that line, from Stevens v. Commonwealth, 283 Va. 296 (2012) seems unambiguous, it was a vastly different story in context, and the justices ruled against the appellant. (My January 13, 2012 essay on the decision explains why in greater detail.)

Against that backdrop, we have Louisiana v. Demesme. The Louisiana high court evidently felt that Demesme might have been referring to a hypothetical animal with a law degree, so it held the request to be ambiguous and refused his petition.

Anyone who’s heard any American slang in the past thirty years is rolling his or her eyes at that one. It’s unclear from the case record that the justices received anything other than the transcript; an audio recording would have provided more context. But even without the audio, it’s fairly clear to me that there’s some punctuation missing, not to mention some vernacular spelling: “I know that I didn’t do it so why don’t you just give me a lawyer, dawg, cause this is not what’s up.”

And you thought punctuation was only important for grammar geeks. Here, the court reporter’s decision not to include it probably means a lengthy stay in prison. To be fair, the cloistered life of an appellate jurist might also have played a significant role; after all, few justices refer to each other as “dawg.”

[Before my legions of fellow grammar geeks start sending me memes, I’ll warn you off: Yes, I do know about the “Let’s eat, grandma” and “Eats shoots and leaves” phenomena.]


Fourth Circuit filing pause

You may have seen the word from 1100 East Main that the Fourth Circuit’s Case Management and Electronic Case Filing System is being upgraded this weekend. The system is shut down (as of 6:00 p.m. yesterday) and can’t accept any filings until the new system comes online sometime on Monday, November 13.

But the judges aren’t heartless; if you have a filing deadline, it’s automatically extended unto Monday. That being said, the practical effect of this extension is almost zero. Today is a federal holiday, and nobody’s required to file on weekends anyway. Only if you had a deadline yesterday will it give you any extra time.

Update November 13: The new site is live. Here’s a link to the court’s website for more information. Please note that you cannot simply continue to e-file using your old login information; you have to upgrade your PACER account and link your legacy CM/ECF account to the new PACER account. The link gives you more information about how to do that.

Years ago, when the Fourth converted to mandatory e-filing, the court offered a wonderfully helpful live training program for lawyers setting up accounts. I don’t see any indication that the court will do that again for this change.


Courts’ holiday closings

As long as we’re discussing closures, we may as well review the appellate courts’ closings for the upcoming Thanksgiving holiday. In the Supreme Court of Virginia and Court of Appeals of Virginia, the Clerk’s Offices will close at noon on Wednesday, November 22, and will reopen on Monday the 27th. Any deadlines that fall anywhere in there are automatically extended unto November 27. (Even though the office will be open half a day on Wednesday, by law the early closing gives you the extra time.) The Fourth will be closed only Thursday and Friday, November 23-24.

I’ll add my usual word of caution: This advice only applies to the appellate courts. In Virginia state courts, your local trial-court Clerk’s Office might not close early the day before Thanksgiving. If that’s the case, and you have a filing that’s due in the trial court (a notice of appeal; an appeal bond; etc.), then you must file by the original deadline. A locked door in Richmond won’t help you if your local courthouse is open. Make the phone call and check.




(Posted November 9, 2017) This morning, the Supreme Court of Virginia hands down one opinion, Chilton-Belloni v. Angle. It’s a land-use appeal, but the primary issue is the application of res judicata. It contains a ruling that may come as a surprise to you.

Chilton-Belloni owns a home in Staunton; today’s opinion describes it as a historic home on a now-busy street. In 2006, she and her husband wanted to build a wall to provide them with a measure of privacy and soundproofing. A City inspector visited, reviewed the scene and the plans, and told them, “You’re good to go.”

The landowners started construction. The next year, when they were almost done, the Zoning Administrator came by and told them to stop; the inspector the previous year had been mistaken. Since the wall violated Staunton’s ordinances, he presumably instructed them to take it down.

For those of you who don’t handle land-use law – and I presume that that’s a healthy majority of you – your first inclination is to raise an objection of fundamental unfairness. The City told the owners they were okay to build, and they acted in reliance on that information. Here in the hallowed halls of the law, we’d call that estoppel: The City cannot change its position after the owners show detrimental reliance.

Except the City can, in fact, change its position. There’s a long line of authority holding that the doctrines of estoppel and waiver don’t apply to governments when they act in their governmental capacity. Stated another way, a government official can’t bind the government by his words or deeds. If it were otherwise, each government employee would be able to overturn the law in specific instances. Only the legislative body can establish the law.

You’re still skeptical of me, even though I’m a former local-government attorney? Okay; go check Segaloff v. City of Newport News, 209 Va. 259 (1968), where Mr. Segaloff did exactly what the landowners did here – relied on an official’s mistaken interpretation of a land-use ordinance and started construction – and lost. I will confess that while reading this opinion, I wondered how the landowner would address the hammer that is Segaloff.

The answer is in the procedural posture of this case. Back in 2007, the owners asked the BZA for a variance. In those dark days, Cochran v. Fairfax BZA, 267 Va. 756 (2004) was the law of the land, and it portended bad outcomes for those seeking variances. Under the applicable statute back then, an applicant had to establish “clearly demonstrable hardship approaching confiscation” just to get a variance. That’s enormously difficult.

The BZA evidently felt the landowners’ pain; essentially snubbing Cochran and the statute, it granted the variance early in 2008. The win was short-lived; the circuit court overturned the variance in June 2009.

You’d figure that would be the end of it, but for whatever reason, nobody did anything after the final judgment. The owners didn’t take the wall down and the City didn’t try to make them. The City’s forbearance may have been affected by a statutory change in the 2009, effectively overturning the harsh Cochran doctrine by removing the “approaching confiscation” language.

Two years later, the City finally took action: It brought criminal charges – criminal charges! – against the owners for failing to remove the wall. The trial court ruled that the prosecution was time-barred. (Misdemeanors have a one-year statute of limitations in Virginia.)

Just when it’s looking like the owners are going to keep their wall, somebody – perhaps a careless motorist – went and damaged it. Ms. Chilton-Belloni, recently widowed, then received what you might consider a nastygram from the new Zoning Administrator, warning her that if she tried to fix the wall, that “will be considered another violation.”

The owner asked the Administrator for another variance, citing the intervening change in the statute. “No dice,” came the response; the Administrator noted that the issue had been fully litigated in a final court judgment. The owner then appealed that decision to the BZA, asking that body to give her the relief that the Administrator had withheld.

In response, according to the pleadings, the Administrator did something surprising: She refused to convene the BZA. Instead, she sued the owner for an injunction to remove the wall. The owner sought a stay of that action to allow the BZA to decide her variance request. The circuit court refused the stay and granted the injunction, simultaneously denying the owner’s separate petition for a writ of mandamus. The court found that the variance issue was res judicata after the earlier litigation, and “engaged in its own determination that a violation occurred.”

I’ll interject a side note here. That surprising refusal to convene the BZA doesn’t play a part in the Supreme Court’s eventual reasoning; as a result of the way in which the justices decide the case, that issue sort of fades into the woodwork. But it’s possible, just possible, that it may have subtly colored the way in which the court looked at the merits of the issues. Assuming it happened – and today’s opinion reports it only as an allegation by the owner; not an established fact – it looks as though the Administrator is trying to cut off available legal relief, in the form of a board hearing. That approach is similar to efforts by a trial judge to prevent appellate review of one of her rulings. The justices don’t like it when judges do that, and if the Administrator did as the owner asserted, the Supreme Court probably wouldn’t look kindly on that, either.

Senior Justice Millette writes today’s opinion for a unanimous court. He begins the analysis by noting that the owner’s separate appeal of the mandamus denial was effectively waived, but agrees with the owner that all of the issues in that appeal are contained in the injunction suit.

On the merits of that appeal, the court sides with the owner, ruling that the trial court erroneously applied res judicata to bar a second look at the variance issue. The justices find that the June 2009 decision was based only on the BZA’s authority to issue a variance, not on the merits of that request. The court thus holds that those merits were not “actually litigated and resolved” in that suit, so that judgment didn’t bar this request.

Justice Millette goes on to address whether one other decision might be res judicata: the BZA’s original adjudication. The question whether administrative (non-judicial) decisions can become res judicata is often a close call. After all, if there’s no judge involved, deciding whether something has been “adjudicated” isn’t always obvious.

But here, the justices have an uncomfortable surprise for this Administrator and her colleagues across the state. Today’s opinion quotes with approval this passage from a Rhode Island decision:

[A] strict rule of res adjudicata in zoning matters could have unfortunate consequences such as denying a landowner once refused relief the right to a reconsideration of an application based upon intervening circumstances resulting in a deprivation of all beneficial use of his property. Such an undesirable result could have serious constitutional implications and would do violence to the expressed legislative will authorizing zoning boards to vary the terms of zoning ordinances in hardship cases.

In a separate passage, Justice Millette outlines the new contours of res judicata in the context of Virginia land-use law:

Use of a property should not be forever governed and restricted by the date at which an owner first seeks permission to alter the property. It should be allowed to evolve along with the zoning standards of the locality. There are ample reasons to permit property owners and zoning appeals boards to revisit a zoning question when the relevant ordinances or statutes have changed, and utterly unjust to bar a landowner from potential benefits to his or her property merely because he or she, or a previous owner, had engaged in a prior appeal of the matter under different law.

I bet you didn’t see that coming. At least as of today, the Supreme Court has softened the bar of res judicata in the land-use context.




(Posted November 2, 2017)


Alas, the wrong team won the World Series last evening. My beloved Dodgers needed to win eleven games in the postseason, and they went 10-5, falling one victory short in a scintillating Series. So be it; this was a wonderfully successful season.

The justices sensed that I need something to distract me, so they’ve given us two published opinions this morning. Let’s take a look.



Lawyers handling probate matters are accustomed to running their reports by a commissioner of accounts, a delegee of the circuit courts. In Gray v. Binder, we see what happens when a litigant chooses to go straight to the commissioner, bypassing that pesky court.

Gray is the step-grandson of a decedent who made a will half a century ago. The will made specific bequests, including one to Gray’s mother, expressing a “desire that she use it for the education of” Gray.

The grandfather must have made it to a ripe old age, because he outlived everyone mentioned in the will except Gray. A lawyer qualified as personal representative, and due to Gray’s assertion of an interest in the half-million-dollar estate, the attorney wrote to a local commissioner, asking for aid and direction. The commissioner agreed to help.

Commissioners probably do this all the time, but they generally do so after an order of reference from a court. This time, the attorney, in his capacity as personal rep, filed his petition directly with the commissioner. The commissioner heard evidence and issued a ruling against Gray and in favor of some of the decedents’ cousins. The circuit court confirmed the report and entered judgment accordingly. Gray appealed, but the justices refused it in 2015.

Wait; what? You’re probably asking why we have a published opinion if the Supreme Court refused to grant a writ. The reason is that the probate process wasn’t over:

On May 4, 2016, the Commissioner filed a routine debts and demands report with the circuit court, authorizing the Administrator to “distribute the remainder of the estate to the beneficiaries after the final payments of any administrative expenses and debts known to the fiduciary.”

Gray saw an opportunity here: He filed exceptions to the new report, and when the trial court ruled against him, he appealed that judgment. In his appeal, he asserted that the commissioner didn’t have subject matter jurisdiction over the initial proceeding. And since the circuit court’s jurisdiction was derivative of the commissioner’s, that meant the entire previous proceeding was a nullity. That looked intriguing enough to a writ panel that the court agreed to hear the appeal.

Today, in an opinion by the chief justice, the court first dispenses with the cousins’ contention that Gray’s objection came to late, since he never raised it in the earlier proceeding or appeal. That gets nowhere; an objection to subject-matter jurisdiction can come at any time, since SMJ isn’t subject to waiver.

That proves to be the extent of Gray’s victory today; on the substance of the case, the court rules that it can’t review an objection to the commissioner’s subject-matter jurisdiction. That’s because, under the Constitution and Code of Virginia, the Supreme Court has the power to review circuit courts; not commissioners. The opinion notes simply that the circuit court certainly had subject-matter jurisdiction over an aid-and-direction petition, and that’s all the appellate court can touch. The court accordingly affirms.

Justice McCullough files a short and interesting concurring opinion. He notes that there may well be a thorny legal issue over whether a commissioner can hear matters without an order of reference. But the procedural posture of this case bars review of that question, so it’ll have to wait for another appeal on another day.

Domestic relations

Anybody who knows anything about weddings knows that the celebrants have to have a marriage license. That little detail seems to have slipped the minds of the happy couple in Levick v. MacDougall. They fell in love, picked a date, recruited a rabbi, and showed up for the ceremony without ever thinking to get that slip of paper.

No problem, the rabbi assured them. Just go get one, send it to me, and when I receive it I’ll sign the marriage certificate. That worked for the couple, and on December 21, 2002, they exchanged vows. Two weeks later, they went to the courthouse and got the license, which is officially known as a marriage register. At that point, according to today’s opinion, the ostensible husband told his ostensible wife “that he would mail the marriage register out right away to the rabbi, and she agreed and kissed him goodbye.” He dutifully put the register in the mail.

The rabbi was traveling, so he didn’t receive the document until January 21, a full month after the ceremony. He signed it that day – stating that the marriage had taken place January 21 instead of back in December – and regarded that the parties were married.

The parties thought so too, including several years later when the bloom and the rose had long since parted company. As the marriage deteriorated, the parties signed a marital agreement by which the ostensible husband, Mr. Levick, would pay his ostensible wife, Ms. MacDougall, $150,000 annually in spousal support and would agree to generous equitable distribution for her benefit, all in the event of divorce.

That proved to be prescient; the parties did indeed file for divorce. During the pendency of those proceedings, Mr. Levick filed a pleading asserting that the marriage was void ab initio because of the difference in the dates on the register. This, as you will readily understand, makes a great deal of difference to the parties: If there was no marriage, then there’s no basis for the marital agreement, and the ostensible husband will save himself a lot of coin.

The circuit court ruled in favor of Mr. Levick, ruling that he wasn’t a husband at all. The Court of Appeals sort-of affirmed, holding that the marriage was voidable, not void. It still ruled in favor of Mr. Levick.

Today, a sharply divided Supreme Court reverses and remands. The majority finds that while this arrangement may be novel, it isn’t absolutely forbidden by our marriage statutes, and in that context, Virginia’s strong presumption in favor of marriages compels the conclusion that the parties were an actual husband and an actual wife; nothing putative about it.

I am not accustomed to giving orders. I’m outranked at home, where The Boss can outvote me, 1-1. Here at my office, when my legal assistant tells me I have to do something, I do it; I know what’s good for me. But I beg your leave, my dear readers, to issue an order to you, here and now: If you have even the slightest intellectual curiosity about the law – and I presume that you do, or else you wouldn’t have this site bookmarked – you MUST, thou SHALT, read this slip opinion, including the dissent. Justice Kelsey writes for the majority and Justice Powell pens the dissent. Both are fascinating pieces of reading, with each side firing legal volleys in what brought to mind for me an 18th Century naval battle between frigates. Each side has several convincing points to make. I won’t prejudice you; go click on the link above, read it, and see where your sentiments lie. I thoroughly enjoyed the experience, and so, I confidently predict, will you.




(Posted October 26, 2017) Today is opinion day, but I’m on the road for a speaking engagement and won’t be able to post detailed analysis of the two opinions we received this morning from the Supreme Court of Virginia. I’ll post essays on them tomorrow. For now, here are the rulings:

Kalergis v. Commissioner of Highways is an eminent-domain appeal involving a seldom-used procedure after a condemnation: A mandatory buyback when the condemnor decides not to build after all. This opinion explores what happens when the value of the land changes over several intervening years.

La Bella Dona Skin Care v. Belle Femme Enterprises occurs at the intersection — or not — of fraudulent conveyance law and common-law conspiracy. The case also evaluates successor-entity liability.

*   *   *

Virginia’s eminent-domain statutes permit VDOT to acquire in advance a parcel of land when it contemplates a future road project. Once it acquires the property, it has 20 years to begin the work. If not, the original landowner has the right to reacquire the property for “the original purchase price, without interest.”

Since land generally appreciates in value, this can be a sweet deal for the landowner (or his or her heirs). True, he loses the right to use the property in the interim, absent some sort of possession agreement. But there are no real-estate taxes for the whole period, after which he gets to buy land at a fraction of its current value. How can you go wrong?

In Kalergis, we find out how it can go wrong. The gross parcel was 55 acres; VDOT bought roughly half of that in February 1994 for $1.1 million. Its appraisal valued the land at about $286,000 and the rest for improvements. Because VDOT had no use for the improvements, the landowner offered to buy them. VDOT agreed to let him take away what he could for $30,000. The parties shook on the deal.

The landowner removed several items from the property, but decided not to try to move the buildings. They were eventually demolished.

Let’s fast-forward to 2014. The landowner, well aware of the right of reacquisition, pounced shortly after the 20-year anniversary, demanding to reacquire the now-vacant land for $286K. VDOT wrote back, saying that under its view of the statute, the “original purchase price” was $1.1 million. Alternatively, it offered to accept the current appraised value of the property, $780,000.

The landowner went to court, seeking the benefit of what he perceived to be his statutory bargain. The trial court ruled in favor of VDOT. On appeal, the Supreme Court agrees, viewing the plain meaning of the statute. The landowner was asking the court to interpret “the original purchase price” as meaning “the appraisal value.” But that’s not what the statute says, and when the General Assembly wants to refer to an appraisal, it’s perfectly capable of doing that.

The landowner presumably can now buy the land back for $780K. Careful readers know not to weep for him, since he still winds up with a net gain of around $300K – leaving aside the time value of money, of course.





(Posted October 23, 2017) Virginia Lawyers Weekly’s Peter Vieth is reporting today on an announcement by the Supreme Court of Virginia relating to the procedure for evaluating petitions for appeal.

For generations, the court has awarded a writ at the request of a single justice. In three-justice writ panels, an appellant hasn’t needed unanimity or even a majority; just a single nod of the head from a single justice gets you to the merit stage.

No more; on August 22, the court voted to require two affirmative votes to grant a writ. That’s true whether the court acts on a petition for appeal or on a petition for rehearing after a writ denial. (For PFRs after a decision on the merits, the rule is unchanged. You just need one justice who voted against you to grant that kind of rehearing.) Today’s story notes that the justices implemented the new procedure immediately, which means it was in effect for the late-August writ panels.

Here are a few thoughts on this change:

The immediate question that comes to mind is what prompted this. In theory, some members of the court might feel that one or more of their colleagues have been writ “spendthrifts,” granting writs too expansively, and this was a way of reining them in. In this regard, this change will predictably lead to even fewer writs, as it’s likely that the court granted at least some previous appeals by a “vote” of 1-2. For those of us who have watched with concern the decline in the grant rate, that’s not an encouraging development; we can anticipate a slightly lower grant rate from now on.

Candidly, I tend to doubt that that’s the primary reason for the change. Exhibit A for my thesis is that declining grant rate. If writ panels were too munificent, we’d see a much larger merits docket. Exhibit B is that if there were plenty of ill-advised grants, we’d probably see a surge in the number of decisions by unpublished order. But in 2016, the court decided only 47 appeals by unpub, after using that vehicle 57 and 60 times in 2014 and 2015, respectively. There have been only 25 thus far in 2017, a pace that would result in roughly 30 unpubs by the end of the year.

The simplest explanation – which, like William of Occam, I generally prefer – is that someone on the court felt that the one-justice rule was essentially undemocratic. Today’s VLW article quotes Professor Ham Bryson, for whom I have very high regard, for this perspective:

As a general matter of law, a majority is always required to grant any motion, request or petition. So therefore, if the Supreme Court of Virginia requires a concurrence of two, this will not be a change in the law, but only in the internal and private agreement among the justices.

So, is this really just a shift in an “internal and private agreement”? I don’t think so.

The VLW article mentions a statute and a rule that relate to the court’s procedures. For now, let’s focus on the statute. Here’s an initial clip from Code § 17.1-308:

The Supreme Court may sit and render final judgment en banc or in divisions, as may be prescribed by rules of the Court not inconsistent with the provisions of this section. No decision shall become the judgment of the Court, however, except on the concurrence of at least three justices …

And here’s another one, from the next sentence:

If the justices composing any division differ as to the judgment to be rendered in any cause … the case shall be reheard and decided by the Court sitting en banc.

Let’s take these excerpts in reverse order. Rule 5:3(b) defines a division of the court as three justices. If you have four or more, it’s en banc. So your basic three-justice writ panel is a division of the court. The plain language of § 17.1-308, then, is that if there is any disagreement among the writ panel, the entire court decides the matter. That’s what has happened now for decades; the court’s previous practice is perfectly aligned with this statute. The rules incorporate this provision: the language in this second passage appears almost verbatim in Rule 5:3(c). There would appear to be a statutory and rules-based foundation for the previous practice.

But let’s return to the initial passage that I quoted above: “No decision shall become the judgment of the Court, however, except on the concurrence of at least three justices …” Again, considering the usual three-justice writ panel, if exactly one justice wants to grant a writ, you don’t have the needed three-justice concurrence to constitute a decision of the court. That means that a writ refusal by a 2-1 margin could not be the decision of the court in such a case.

I’ve played around with this in my mind, trying to figure out how to square the new policy with the three-justices-required rule. The only thing I can conceive is that the new policy fits if you maintain that a writ refusal isn’t actually a “decision” in a case; if you insist that only the full court can issue a decision. That’s conceivable, but I’m skeptical; after all, a writ refusal sure looks for all the world like an adverse “decision” to a losing litigant. I can’t conceive that that’s the most natural reading of the words in the statute.

And yet that’s where we are. As of now – actually, as of two months ago, whether you knew it or not – you need two votes to get a writ.



(Posted October 19, 2017) The Supreme Court of Virginia hands down a single published opinion today, in an appeal involving a DUI-3rd conviction. Before I jump into the analysis, I’ll pause to mention that today is one of the signal anniversaries in our nation’s history. On this date in 1781, Colonial forces under George Washington accepted the surrender of the British army at Yorktown. Most people don’t know this, but the war continued to rage on for another year-plus before the Treaty of Paris ended the conflict in 1783. A great many soldiers on both sides perished after Yorktown.

Even so, most Americans perceive the Yorktown surrender as the climactic event of the war. It took on added significance for me when I discovered that at least one of my ancestors was present at the surrender: Jasper Cather, an immigrant from Ulster, served in the Virginia militia. He was my great-great-great-great-great-grandfather, and is my common ancestor with the author Willa Cather. October 19, 1781 must have been one of the greatest days of Jasper’s life.


Criminal law

The Court of Appeals of Virginia doesn’t overturn many criminal convictions, but last year it gave one appellant at least partial succor. We learn today in Commonwealth v. Leonard that that relief is short-lived.

Leonard had what we would agree was a bad stretch several years ago. He pleaded guilty to DUI charges here in Virginia Beach in 2010 and 2012. Just two weeks after the second incident, and before the second conviction, he drove drunk yet again; fortunately, the only victim was a mailbox. Police caught him in less than an hour.

At trial in circuit court on a DUI-3rd charge, the prosecutor handed up certified copies of the two previous convictions, both of which were based on guilty pleas. Leonard objected to the use of the 2010 conviction, claiming that at most he could be convicted of DUI-2nd. Here’s why:

When his second DUI charge – remember, that’s the one before this one – came for trial in GDC, Leonard succeeded in convincing the judge that his first guilty plea was invalid because he hadn’t been advised of his constitutional rights. That judge convicted him of a second DUI-1st offense. That conviction was later confirmed on appeal to circuit court. Leonard claimed that the invalidity of the first conviction was judicially established, so the prosecution was collaterally estopped from using it in this third case.

The learned trial judge wouldn’t bite for that, convicting Leonard of DUI-3rd while stating on the record that Leonard was “not credible at all.” (This is what we in the legal profession call “a bad sign.”) But Leonard had better luck in the CAV, obtaining a unanimous panel ruling that remanded the case for resentencing for DUI-2nd.

Since Leonard succeeded in the Court of Appeals, that gave the Commonwealth the right to appeal on to the Supreme Court. Today the justices unanimously reinstate the DUI-3rd conviction and sentence. Justice McClanahan’s opinion notes that, in criminal cases, collateral estoppel applies to findings of fact, not law. And the resolution of constitutional questions is a matter of law.

There’s more, and the hair-splitting involved will be scary even to appellate practitioners. The justices find that Leonard’s trial-court objection bars consideration of what he tries to argue on appeal. Behold:

Leonard did not argue in the trial court that the 2010 DUI conviction order was inadmissible because he was not advised of his rights prior to entering his guilty plea in the 2010 proceeding. Instead, he argued that the 2010 DUI conviction order was inadmissible in this case because it was ruled inadmissible in the 2012 proceeding.

That, in my view, is a very fine distinction. Even so, I agree that the Supreme Court got this decision right. Issues of law had better not be subject to collateral estoppel, or else individuals will have their own private set of laws, applying only to them.

There’s one interesting argument that remains on the table and will have to be adjudicated another day. The Commonwealth argued that the 2012 decision by the GDC judge, holding that the 2010 conviction couldn’t be used for recidivist purposes, was wiped out when Leonard appealed his second DUI conviction on to circuit court and got a trial de novo. The justices find it unnecessary to reach this argument, given today’s ruling.

I’ll add one last observation. This case took a long time to get to final decision in the Supreme Court. Here’s the remarkable timeline:

March 26, 2012 – Date of offense and arrest

June 4, 2012 – Grand jury indicts Leonard

April 22, 2013 – Bench trial (there had been four previous continuances)

October 22, 2013 – Sentencing (this is final judgment in a criminal case)

March 20, 2015 – CAV receives notice of appeal (Really? A year and a half?)

June 24, 2015 – CAV receives the record from the trial court (ditto)

September 29, 2015 – Writ granted by a single CAV judge

April 26, 2016 – CAV’s published opinion

May 24, 2016 – CAV denies en banc review

June 21, 2016 – Commonwealth notes an appeal

October 26, 2016 – SCV grants Commonwealth a writ

April 18, 2017 – SCV oral argument

October 19, 2017 – SCV opinion

The only explanation I can conceive for the 17-month delay between sentencing and notice of appeal is that there may have been an order allowing a delayed appeal. It has also, my careful readers will have noticed, been six months since the justices heard oral argument here.


*   *   *


But let’s not stop there. In addition to the one published opinion, the justices decide three appeals by unpublished orders. Let’s take a quick peek at those, at least to see what the rulings are.


In Hunter v. Thomas, the justices reverse a defense verdict in a personal-injury case and remand it for retrial. The assignments of error included the intriguing question whether a trial court can instruct a jury on simple negligence where the complaint alleges only gross negligence. The court leaves this issue, too, for another day, ruling instead that under the peculiar circumstances of this case (and they really are peculiar; trust me), the trial court should have granted the plaintiff’s motion (made during the trial) for leave to amend her pleading to include a simple-negligence claim.

I’ll add a note of warning here: Don’t assume that this means that any party automatically has a right to amend during trial. This ruling turns on a concession by the defense lawyer that led the justices to conclude that he wouldn’t have been prejudiced by the amendment. This is still a matter of the trial judge’s discretion. The noteworthy feature of this ruling is that the court today rules that the right to liberal amendments in Rule 1:8 constrains that discretion in this case.


Atkins v. A. H. Electric Contractors, Inc. stems from a mechanic’s-lien suit by a contractor who claimed that a homeowner hadn’t paid for repairs. It eventually morphed into a suit by the contractor to enforce a settlement agreement. The justices reverse a trial court’s decision to order the parties to renegotiate a settlement agreement. The original agreement had called for a third party to appraise needed repairs, but that third party declined to cooperate.

The justices rule today that the trial court erroneously ordered specific performance of a contract that still had an unfulfilled condition precedent; that claim is dismissed with prejudice. Today’s ruling also reinstates the homeowner’s counterclaim for trial. This case, too, also features an interesting but unadjudicated appellate issue: The homeowner asserted that the contractor didn’t have a license at the time it performed work, and claimed that that fact barred the suit. The justices consign this issue to the trial court for adjudication in trying the counterclaim.

One final point: The contractor didn’t file an appellate brief, so it wasn’t allowed to argue on appeal. That had to enhance the homeowner’s chances just a tad.


Finally, the justices reverse a criminal judgment and send the case back for resentencing based on impermissible contact with a juror, in Opaletta v. Commonwealth. The appellant raised two issues, one of which dies a familiar death: His lawyer waited too late to move for a mistrial due to the mistaken inclusion of a withdrawn charge in the jury instructions. When the mistake was discovered and the court admonished the jury to ignore it, the lawyer told the judge, “I’ll reserve my motion.” The jury then retired to resume deliberations, at which point the lawyer made the motion. That’s too late; once the jury-room door closes, objections like this are waived.

The defendant has better luck with his second assignment, involving a private conversation between the foreperson and the bailiff. This came to light only after the court had dismissed the jury. When the issue arose, the bailiff blurted out a description of the conversation, at which point the judge peremptorily announced, “I’m not granting a mistrial.”

Well, now. The defense lawyer never got around to moving for a mistrial, but the justices rule that this issue was preserved for review anyway. That’s because, under specific statutory language, the contemporaneous-objection rule can’t bite you if you have “no opportunity to object.” Since the jury was already gone, there was no way to timely correct what happened, and the judge’s announcement convinces the justices that he knew perfectly well what the motion would be.

The Supreme Court notes that in evaluating this issue, the Court of Appeals concluded that this second issue was harmless error, but the CAV used the wrong standard in doing so. This issue is of constitutional significance, since it impairs the Sixth Amendment right to counsel; that kind of mistake is presumptively prejudicial. The court thus remands the case for a new trial, limited to sentencing.





(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.