MORE ON THE SCV DEADLOCK: A PUZZLE SOLVED

 

[Posted September 5, 2015] In a couple of my previous posts about the impasse over the seventh seat on the Supreme Court of Virginia, I’ve discussed the problems that might arise if the Governor reappoints Justice Roush (as looks overwhelmingly likely) and that appointment is later invalidated (which is a very different matter). Specifically, what happens to those decisions that the court hands down while she’s sitting in, say, November or January? Are they valid? Are they invalid if she joined a 4-3 majority? How do litigants challenge the judgments after the fact?

When I composed those earlier essays, I had no idea that the Commonwealth has actually plowed this ground before. It was, in my meek defense, a very long time ago, and the doctrine hasn’t exactly popped up in many (or maybe any) recent decisions. Oh, well; as the saying goes, a good lawyer doesn’t know everything, but he knows how to find anything. Here’s the story, and how it resolves that troubling set of possible problems.

After the end of the Civil War, Virginia was under military administration as part of Reconstruction. That period ended when the Commonwealth, having ratified the 13th and 14th Amendments, was readmitted into the Union on January 26, 1870.

Before that date, public officials here, from Commissioners of the Revenue to sheriffs and all the way to the highest court in the state, were appointed by the military governor, first Francis Pierpont and then Henry Wells. On the date of readmission, Governor Wells’s office terminated and he no longer exercised any power.

But what about his appointees? If the military was no longer in control, weren’t the military appointees out of office? And if so, who, if anyone, was your local sheriff, or tax collector, or judge?

In a series of three decisions, the Supreme Court of Appeals of Virginia – that was its name back then – resolved that question and more. For our purposes the important issue was this: when a judge hands down rulings, and the judge is later found not to have been properly in office, what’s the status of those rulings?

Technically, the answer is, “It depends,” but fortunately for us, there’s enough guidance in the decisions that we can now answer definitively the questions posed in the first paragraph of this essay.

The decisions explain that a judge can hold office in one of three ways: de jure, de facto, or as a usurper. A judge de jure is perfectly legitimate. One who is only de facto has a colorable claim – he’s been elected or appointed – though there may be some question as to the legitimacy of that election or appointment. A usurper has no right to the office; he’s essentially a squatter.

The court’s ultimate rulings on our problem correspond to how the judge holds office. If she’s de jure, then no one can challenge the legitimacy of her occupancy of the office. If she’s a usurper, her rulings are essentially void (or perhaps voidable; but the difference isn’t important in this context). The nuance falls in between. For de facto judges,

upon the unquestioned and uniform authority of the decisions of the English and American courts, their official acts must be held to be as valid and binding, so far as the public and the rights of third parties are concerned, as if their title to the office had been unquestioned and perfect.

Griffin’s Ex’or v. Cunningham, 20 Gratt. (61 Va.) 31, 42 (1870).

In another case decided the same term, the court cited with approval a Wisconsin decision that came out this way:

where a party was indicted, convicted and sentenced, at a term of a Circuit court held by a person who exercised the office of judge of said court, under an appointment by the governor without authority of law, there being another person entitled to said office, the sentence was, nevertheless, valid and binding. It was so decided upon an application for a writ of habeas corpus after a judgment of ouster had been pronounced against the judge, upon the ground he had been so illegally appointed.

Quinn v. Commonwealth, 20 Gratt. (61 Va.) 138, 141 (1870). An “appointment by the governor without authority of law”; doesn’t that sound familiar?

Finally, we have this:

The rule which declares that the acts of an officer de facto are as valid and binding as if he were an officer de jure, is founded on the soundest principles of public policy, and is absolutely essential to the protection of the best interests of society. Indeed the affairs of society could not be conducted on any other principle. To deny validity to the acts of such officers, would lead to confusion and insecurity, in public as well as private affairs, and thus oppose the true policy of every well regulated State.

McCraw v. Williams, 33 Gratt. (74 Va.) 510, 514 (1880).

So, from a seeming legal morass, we have clarity. At some point, unless the Fates intervene and the warring parties settle their differences, a court will probably determine whether the General Assembly is or is not in session this month, and accordingly whether the Governor had the actual power of a recess appointment. But there can be no room for debate on the legitimacy of the court’s rulings in the interim: they’ll be valid and unassailable, under uniform caselaw that goes back centuries.

 


SUPREME COURT RESPONDS TO POLITICAL DISPUTE

— SORT OF

 

[Posted August 29, 2015] Sometimes, your humble scribe is a little slow on the uptake. That happened yesterday, when I got notice that the Supreme Court has revised its September session docket. The previous edition had seven cases slated for Monday (including one of mine), six each on Tuesday and Wednesday, and three on Thursday, which was to be opinion day. (In case that sounds odd, you should know that the last day of the session is traditionally the shortest, to allow the justices to finish the week’s business and start making their way back home. A three-case opinion day is perfectly normal.)

The new schedule condenses the docket to just three days: seven cases on Monday, eight on Tuesday, and seven more on Wednesday.

The major surprise for me was the announcement that opinion day would still be Thursday, September 17. That stuck out to me, as the court has always handed down opinions on the last day of the court’s open session. Indeed, the justices literally “hand down” the decisions in a nice touch, where each justice, one-by-one, announces a decision – the result only, with a note of who if anyone dissents – and then hands the original slip opinion to the Clerk of Court, who stands below the bench in the well of the court.

This is a beautiful tradition that provides a measure of ceremonial formality to the court’s decisions. But on the September opinion day, I strongly suspect that the opinions will be “handed down” only metaphorically, when they’re posted online, on the court’s website. That’s not much of a ceremony, I mused as I silently hoped that this wouldn’t become the norm.

It didn’t hit me until this morning why the court was making this change, which is overwhelmingly likely to be a one-time event: this is the way the court addresses, at least in the short term, the problem engendered by the political fight over the seventh seat on the court. Justice Roush’s gubernatorial appointment expires on Wednesday the 16th, so by anyone’s measurement she can participate in that day’s docket. Thursday was the problem: even if the Governor were to reappoint her, there would be uncertainty over the legality of that appointment.

The court has arranged to avoid any problem with this session by calendaring the entire session’s docket for the first three days of the week. Accordingly, no litigants on the September session’s docket need worry about the legitimacy of the court’s ruling.

A cynic might point out that this action only postpones the inevitable controversy, by kicking the can to the November session. But I see the court’s reasoning, and I agree that this is a good move. Besides, who’s to say that the current impasse, ugly as it is, will inevitably last until November? Perhaps the warring political parties can find a solution before the court reconvenes on November 2. (I realize that about half of you just blurted out, “Yeah; right,” but let’s wait and see, okay?) In the meantime, the Supreme Court has done as much as it can. Now it’s up to the General Assembly and the Governor.

 


UNPUB ILLUSTRATES FINALITY DANGER

 [Posted August 28, 2015] The Supreme Court of Virginia recently handed down an unpublished order that highlights the danger inherent in orders that suspend final judgments. The case is Umana-Barrera v. Commonwealth, and came down on August 21.

The defendant pleaded guilty to rape and got 15 years of active prison time. Shortly after he was sentenced, he began to think better of the decision to plead, so he consulted another lawyer. That lawyer sought an order suspending the sentence, to allow him to brief and argue a motion to withdraw the plea.

The trial court entered a series of orders doing just that, before eventually denying the motion. The defendant appealed to the CAV, which originally found that the suspension had lapsed due to the delayed entry of an order. But the defendant asked that court to remand the case to allow him to seek correction of clerical mistakes in the orders. Without objection from the Commonwealth, the CAV remanded the case for that purpose.

The trial judge obliged, entering two orders nunc pro tunc. One clarified that one of its original orders had mistakenly omitted a specific ruling on one of the suspension requests. The case then made its way back to the CAV, which held the time for appealing to have expired anyway.

Against this dizzying procedural background, the justices granted a writ, and that resulted in last week’s unpublished order. The justices are agreed upon the outcome – the defendant loses because his time ran out – though they disagree on how to get there. In order to analyze the case, I’ll set out the dates of the relevant orders and hearings. This is a little complicated, but I’ll try to make it clear.

January 2, 2013 – The trial court enters the original sentencing order, calling for 15 years in prison. Under Rule 1:1, the court automatically retained jurisdiction for another 21 days, or until January 23.

January 23, 2013 – On the last possible day, the court enters an order suspending the January 2 order for 30 days. That gives the trial court another 51 days of control over the case (30+21) so now the court will lose authority to act on March 15.

February 12, 2013 – The court enters an unopposed order that extends the suspension for another ten days. Now we’re up to a drop-dead date of March 25.

February 21, 2013 – The court convenes a hearing on the motion to withdraw the plea. There’s no ruling that day, but the court orally announces that it’s adding another 30 days to the suspension, presumably taking us to April 24. Unfortunately:

March 27, 2013 – The court finally gets around to entering an order that memorializes its February 21 rulings. That order recites the 30-day extension.

Now, why did I add the adverb a couple of entries above? Because circuit courts, being of record, “speak through their orders.” Even though the judge announced the new 30 days, and even though (as I assume) a court reporter took that down, the added suspension isn’t effective until the judge puts pen to paper. In my humble legal opinion, the trial court lost jurisdiction to do anything in the case – anything – when the sun rose on March 26. It had a deadline, self-imposed, of March 25 to enter that order, and when that date passed, so did the trial court’s power over the case.

Of course, that didn’t stop further proceedings:

April 15, 2013 – An abortive hearing takes place in which, “due to a miscommunication,” the defense wasn’t ready to go forward. Everyone agrees to continue the matter, and this conversation ensues:

THE COURT: All right. Let’s go ahead and set a date, then, to do this. You need a month out?

[COUNSEL]: That would be fine, Your Honor. Of course, I would need another order.

THE COURT: Yes.

Do you know what kind of order he’s referring to? Well, so do I; he needs another order suspending the final judgment. But look what happens:

April 22, 2013 – The judge signs a “clerk’s form order” that continues the case until May 30. Guess what? The order says nothing at all about a suspension of finality. I assume that’s because the clerk, and not counsel for the parties, prepared it. I’m not criticizing the clerk; I’m just recognizing that the clerk won’t know, the way the lawyers will, what’s necessary in the order.

May 30, 2013 – The court conducts a substantive hearing on the motion and presumably denies it. There’s one last event here, anticlimactic as it is:

June 6, 2013 – The court enters an order denying the motion.

As I mention above, the CAV remanded to allow a nunc pro tunc correction of the April 22 order, so that it will expressly rule on (and grant) the implicit request for another suspension. The trial judge complied, entering an order that specified another 60 days, tacked onto the original 30-day suspension. (Note that that 60 days takes us to mid-May, when you add in the 21 days under Rule 1:1.) It also revised the March 27 order, marking it “nunc pro tunc February 21.”

I’ll jump to the Supreme Court’s analysis of this matter, and then I’ll add my sense of things. A majority of the justices – we can’t know exactly who wrote the order, because unpubs don’t tell us that – find that the lawyer’s implicit request for another suspension (“Of course, I would need another order”) is close enough, especially viewed in context. It also agrees that the trial court had the power to “correct” its April 22 order by adding the missing language about suspension, and the ability to retroactively extend the deadline by making the March 27 order nunc pro tunc.

But the majority finds that the court lost control over the case in mid-May, so the hearing at the end of that month, and the subsequent order, were nullities. It therefore affirms the convictions.

Justice Kelsey, joined by Justice McClanahan, concurs in the outcome but insists that the majority took the wrong route. The concurrence would hold that the vague statement, “Of course, I’ll need another order,” wasn’t enough to put the issue of a suspension into play. And that, in turn, meant that the trial court’s nunc pro tunc order actually changed – not corrected – the court’s actions in that hearing. These backward-looking orders are intended only to correct errors in orders, so that the record will “speak the truth” about what actually happened. They aren’t appropriate vehicles to reopen the case generally so the court can take up and decide a new matter.

This, you will readily agree, is a tangled mess of dates, hearings, and orders. But here’s my sense: I tend to disfavor procedural waivers where it’s a close call. Here, I would agree with the majority that the lawyer’s request, in context, would be sufficient to convey to the judge that what he wanted was a suspending order.

But I’ve read this opinion twice, and I don’t see that anyone has addressed what I believe is the case-dispositive problem: the trial court didn’t have the power to enter an order on March 27, because no written suspending order was in place at that time. The last one had expired two days earlier. And entering an order nunc pro tunc can’t retroactively revive the trial court’s jurisdiction over the matter, a fact that the majority points out and the concurrence doesn’t challenge.

Here’s the danger that ignoring this problem poses. Let’s assume that a trial court does have the power, by a nunc pro tunc order, to change the date of entry on an order back to the date the court announces its ruling in open court. I believe that’s quite wrong; but let’s walk down this path together and see where it leads.

Let us imagine, then, that on February 21, a judge renders (announces orally) his final ruling in a civil case: “I order final judgment for the defendant.” He enters a final judgment order on March 27, carrying out that ruling. He then decides to make the order nunc pro tunc, back to February 21.

Now, Rule 1:1 specifically defines the date of entry of an order as the date the judge signs his name to it. But if he can effectively back-date it? Let’s go back to my fictional civil case. The unlucky plaintiff now learns to his chagrin that his 30-day period for noting an appeal has already expired. It expired before the judge ever entered the judgment order. He can’t appeal, because of that nunc pro tunc order.

Every appellate lawyer and jurist I know would agree that this can’t happen; a judge can’t change the date on which he signs a paper by a subsequent nunc pro tunc order, thereby depriving the losing litigant of an opportunity to appeal. So how is this case different?

It isn’t. The Supreme Court decided this very issue, right down to the oral announcement of judgment within the suspension period and entry of the order afterward, in Wagner v. Shird, 257 Va. 584 (1999). In that one, the judge announced his ruling at the conclusion of a hearing that took place on the last day of the suspension period. The opposing lawyer stated in open court that he agreed to an extension of the suspension. But the court didn’t enter the order until two months later, with this result:

While the circuit court may have rendered its judgment on Shird’s motion for remittitur at the conclusion of the hearing on February 24, 1998, it did not enter that judgment until April 21, 1998. At that time, the court no longer had jurisdiction over the action because the 30-day stay of the January 6th final order had expired and the court had not entered another order extending the length of the stay. Thus, the April 21st order was a nullity.

In the end, I agree with both the majority and the concurrence on the outcome of the appeal. But I believe that the judgment was final well before the dates the two opinions discuss.

The lesson of this case should be obvious: don’t play around with suspension orders. If you’re really going to undertake post-judgment remedies, seek an order that suspends finality “until further order of the court.” If you can’t get the court to agree to such language, you need to stay on top of the expiration dates, and act well before they expire. Additionally, when you come to a hearing that’s on the last day of the suspension period, or even in the last week of it, bring a proposed order with you that you can hand up, so the judge can sign it that day. An order that’s signed after the court loses control of the case is too late.

 


SUPPOSE THE SCV BATTLE GOES NUCLEAR?

SOME AWFUL WHAT-IFS

 

[Posted August 21, 2015] Over the past 19 days, Topic A in the Virginia legal community has been the partisan squabble between the Governor and the General Assembly over who’ll occupy the “juniormost” seat on the Supreme Court. I’ve already posted my sentiments about who’s in the wrong here – at least to a degree, both sides – but a query from a reporter this week got me thinking about what would happen if the war were to escalate.

As you’re no doubt aware, the legislature met earlier this week, ostensibly for redistricting purposes. That task quickly fell flat. Republicans in the Senate took this opportunity to interview a candidate for the permanent seat that’s now occupied by Justice Roush. But that candidate was Judge Alston; they pointedly refused the Governor’s request to at least give Justice Roush an interview so she could justify keeping their seat. No dice, the senators said.

Later that day, the solid Republican wall cracked when outgoing Sen. John Watkins decided he just couldn’t stomach what his party was doing to a well-qualified sitting jurist. His nay vote led to a 20-20 tie, which the Lieutenant Governor broke to the majority’s chagrin. The Senate then quickly adjourned.

Since the Governor has the right to recess appointments, that adjournment would seem to allow the Governor to reappoint Justice Roush when her term expires on September 16, so she would continue uninterrupted in office at least until February, by which point it might be a tad more unseemly to unseat her. So the Governor’s thinking evidently goes.

The Republicans weren’t giving up; they claimed that the Senate couldn’t lawfully adjourn without the House’s consent, citing Art. IV, §6 of the constitution. They warned the governor that if he reappointed Justice Roush and they won a legal challenge to his authority to act, then any rulings in which she participated after September 16 would be invalid.

Now we’ve reached the point of my chaotic musings. I won’t try to decide the constitutional question described above; I’ll just say that I’ve read the provision and I believe that either side can legitimately claim to be right, so it’ll take a court judgment to settle the issue. That court battle – still theoretical at this point – is the subject of this essay.

First, let’s set the table with a look at the calendar. September 16 is 30 days after the August 17 special session began, so that’s the correct expiration date for Justice Roush’s current appointment. It’s also in the middle of the September session of the Supreme Court. Justice Roush can participate in the cases on Monday and Tuesday without a fuss by anyone. (I’ll be at the lectern that Monday, so I’ll definitely see her at the end of the bench.) Wednesday is sort of a gray area; when, exactly, that day does her commission expire? And what about Thursday? If she’s reappointed and she participates that day, those cases – fortunately, only three of them at this point – run the risk of invalidation if the Republicans win the legal challenge.

But let’s turn to that legal challenge and see what it might look like. Surprisingly, there is precedent for a judicial battle over which person is entitled to a seat on our highest court. That being said, you need to go back to the Arthur Administration – that’s Chester Alan Arthur – to find that precedent.

In 1876, Judge Wood Boulden of the Supreme Court of Appeals of Virginia (that’s the court we now call the SCV) died in office, having served almost six years of his 12-year term. Late that year, the legislature elected Edward C. Burks – father of Martin Burks, the author of Burks’s Pleading & Practice – to fill the vacancy.

Judge Boulden’s original term was set to expire at the end of 1882, and in that year – there having been a change in the political winds after the formal end of Reconstruction – the legislature elected Drury Hinton for a 12-year term starting in January 1883. But the seat was still warm; Judge Burks objected, claiming that all terms of office for the high court were for 12 years, so he still had six years left to serve. Judge Hinton noted that the General Assembly had passed an act providing that when a judge filled an unexpired term, his tenure was limited to what was left of the original 12 years. Judge Burks shot back that the constitution, which kind of trumps statutes, says that all judges’ terms shall be for 12 years.

So, who’s going to referee this kind of contest? The unfortunate answer is that the other four members of the high court did so, perhaps with more than a modicum of distaste for the proceedings. In what looks to me to be an original-jurisdiction proceeding, the remainder of the court ruled, by a 3-1 vote, that Judge Burks was out and Judge Hinton was in. Hinton v. Burks, 77 Va. 1 (1883). (I offer a sincere and very grateful hat-tip to my fellow history lover, Judge Everett Martin, for turning me on to the case.)

The nature of the Hinton case is different in several respects from the current conflict, and the constitutional provisions are definitely different; but the old case still offers us some limited guidance as to what we might expect. Here are a few idle musings about that.

First, although I’m sure they’d all love to run and hide from it, it looks like the six current justices will have the final say on any legal proceeding affecting the legitimacy of any reappointment of Justice Roush. (Judge Hinton recused himself from the 1883 case, and I’m confident that Justice Roush would do so, too.) You may reliably expect that one or more of the senior justices will fill out the bench. This means that the justices would be in the uncomfortable position of deciding who their new colleague will be. But as a practical matter, the case could be presented to a lower court first; that would be some unlucky circuit court judge, whoever draws the short straw.

Next problematic issue: who represents whom? If there’s to be briefing, and maybe even an oral argument, in the Supreme Court, then there will have to be lawyers. Although both sides would love to have his representation, I tend to think that the Attorney General may pass on the case, given the political and governmental ramifications.

You should know that in Hinton, the Attorney General of the day, Frank Blair, chose to step in on the side of Judge Hinton. Of course, that might have something to do with the rapidly changing politics of the day.

[Gee, I guess that isn’t too far removed from our scenario after all.]

Leaving the AG aside for now, any private lawyer who takes a side might figure that he or she is engaging in a very risky proposition. After all, if the other side wins, then that lawyer will be presenting future arguments to a justice who is likely to remember that “this lawyer argued against my being here.” That being said, I doubt that either the Jane Roush or the Rossie Alston that I know will hold a grudge. Still, it’s a daunting prospect.

Next, even more daunting, issue: who are the parties to the legal action? In the Nineteenth Century, the two judges were the litigants, and at first blush, it looks like our two modern jurists might be the only ones with standing. But I wouldn’t leave out the possibility that a legislator might sue the Governor, or vice versa, in an effort to ascertain the limits of gubernatorial power when the legislature sort-of is and sort-of isn’t in session. That would avoid the unseemly prospect of seeing a case name like Alston v. Roush in Virginia Reports.

We’re not done; not even close. What kind of suit could be filed? Declaratory judgment comes immediately to mind, but that might not fit, especially if there’s a direct way of challenging the supplemental appointment. Since this wouldn’t be directed from one court to a lower court, that leaves out a writ of prohibition (though you have to think that the Republicans would dearly love to get an order prohibiting the Governor from doing something, anything).

My best guess is quo warranto, an extraordinary writ that’s now exclusively statutory. See Code §§8.01-636 et seq. Such a writ may be sought against “any person who intrudes into or usurps any public office.” It’s the way you “try title” to a public office. Since a “person interested” can file it in the name of the Commonwealth – this is one of those “ex rel.” suits that you sometimes see in the reports – you just have to find someone who’s sufficiently interested n the subject matter. The “other” justice clearly would be entitled to it, and without doing a whole lot of research, I can’t rule out a legislator or the Governor, either.

One of the interesting things about quo warranto proceedings is that venue lies in the city where the respondent lives; Richmond is only a fall-back court. That means that anyone who files suit against, say, Justice Roush must file it in Fairfax Circuit Court. (The Supreme Court doesn’t have original jurisdiction over these matters; just appellate.) I’ll pause now to give you a moment to consider how you’d like to be that trial judge. The only silver lining is that the taking of evidence should be wholly unnecessary; the parties can probably stipulate to the events and then argue cross motions for summary judgment. But still.

Here’s a related problem. Let’s suppose that Justice Roush shows up for the November and January sessions, acting as though nothing unusual had happened. Now suppose that the Supreme Court ultimately rules in favor of the Republicans. I’ve seen a report that Dick Howard, the primary draftsman of our current constitution, thinks that those judgments might well be problematic, and I’ve learned to respect his constitutional views.

But does that invalidate all decisions that she participated in? Would it be limited to the cases in which she joined a 4-3 majority, so that her vote affected the outcome; or would all of the cases on which she sat go back to Square One?

And what would be the means of obtaining relief from those decisions (even the 4-3 ones)? It’ll probably be too late for a petition for rehearing for the cases decided in January; for that, litigants would probably have to file independent actions under Code §8.01-428. That means that a circuit court judge, in any such proceeding, would have to decide whether to uncork a Supreme Court ruling. I invite you to conceive a mental picture of water flowing uphill.

Even that kind of suit presents complex issues: Would a litigant who wants to reopen a decision on these grounds have to preserve that issue by objecting during oral argument in the Supreme Court (say, in a case argued in November) to Justice Roush’s participation? That’s the functional equivalent of a motion for recusal, always a dangerous course unless you’ve got an ironclad case. Would a motion like that give the justices an independent means of adjudicating the legitimacy of a second appointment? Probably not, because I seriously doubt that a justice’s decision not to recuse herself could be appealed to the Supreme Court.

Please remember that almost none of this is authoritative, because there simply is no specific provision for something like this in the Code, and there’s no precedent under our current constitution. Even Hinton v. Burks is based on a slightly different fact pattern and a wholly different set of constitutional provisions. It would offer the parties and the court some procedural guidance but no definitive answers.

As with my previous essay, I don’t have a ready solution for the problem that this dispute presents. The two warring branches of government have each painted themselves into corners, to the point where there’s no way at all that everyone comes out of this unharmed. And as we’ve just seen, the litigation approach is impossibly messy. Yet as each day passes, that solution becomes all the more likely.

 


 

MORE THAN JUST A NEW LOOK

 

Posted August 14, 2015 – No, you don’t need new glasses. And you haven’t reached the wrong website. Today marks the launch of a revised version of this website, the first wholesale update I’ve had since I first published it ten years and seven months ago today. Here’s what’s new:

First and foremost, we’ve brought the site up to current website technology, so it’ll be less susceptible to technical glitches and hacking. We’ve been operating on the 2005 platform long enough.

We’ve optimized it for mobile devices, so the site will read well on tablets and smartphones.

For those of you who’ve been asking for an RSS feed, I’ve heard you. I’ve resisted doing that before, because I periodically make small changes to the site without changing the actual content – for example, correcting a typographical error or moving essays from the home page to the archives – and I didn’t want to send out a lot of false pings. We’ve addressed that by allowing you to sign up for notifications when I make meaningful changes, such as a new essay or case analysis. If you’ll check in the upper right-hand corner of any page, you’ll see a red link to a sign-up page. Click on that link, and you’re on your way.

By the way, in case you’re concerned, I plan to treat that e-mail list the same as I do my mailing list. I’ll never disclose it and will never sell (or even lend) it to anyone else. Theoretically I could get a court order, but I consider that prospect to be extraordinarily remote.

There are a couple of immediately noticeable changes: there’s a new photo in the upper left-hand corner (I liked the original one better, but I got outvoted), and I’ve switched from the original Arial type to my preferred Georgia. In my opinion, Georgia looks better on a screen, and I like to make my posts easy to read.

Here’s what won’t change: the content. I plan to post the same kind of analysis, updates, and notifications that have appeared here since 2005. And you’ll still get a dollop of appellate humor from time to time, along with advice on how brand-new rulings will affect how you try your case next Tuesday.

I’ll ask for your help in one regard. This changeover has had its fair share of glitches, and we’ve done what we can to patch those before today’s launch. But I have long respected Mark Twain’s sage observation, “It’s impossible to make anything foolproof, because fools are so damned ingenious.”

No, I didn’t just call you a fool; I’m only acknowledging that no technical innovation comes without a few bugs. My request to you is simple: if you spot a problem, please let me know about it. You can e-mail me at emmert@virginia-appeals.com. I promise to address each report, and to send you a note afterward to let you know what I’ve done.

Thanks for your interest in the site. Health and happiness to each of you.

 


POLITICAL SQUABBLE PRODUCES A JUDICIAL MESS

 

[Posted August 10, 2015] I have two tales to tell in this essay. One is very, very good and the other is very, very bad. But before I comment on either, I’ll explain why this essay comes a week after the events.

So it’s early August, and the appellate courts are in recess for the summer. A nice, quiet time, where appellate activity is unlikely to develop suddenly. That made it the perfect occasion to take a week to drive my daughter across the country to deliver her to her graduate school in Los Angeles. (You recall my sentiment-laden description of her high-school graduation in June 2012. She finished college in three years. Not that I’m overly proud, mind you.)

Okay; so it wasn’t the perfect time. The news broke on Sunday evening, August 2, while I was in western Arkansas, that the General Assembly had chosen not to confirm newly-appointed (and newly sworn in) Justice Jane Roush upon the expiration of her temporary appointment, courtesy of the Governor. The legislature announced it would instead elevate Court of Appeals Judge Rossie Alston to the position created by the retirement of Justice Lee Millette.

Since the last essay I’d posted on this website before my trip was the appointment of Justice Roush, and nothing has appeared here in the interim, several of my readers have written to me, each asking a version of, “Are you going to say anything about this?” Yes, I am, and I’m sorry for the delay, but I trust you’ll appreciate the reason.

* * *

We’ll start with the good news. Rossie Alston is an excellent jurist and an outstanding man. He has the kind of judicial temperament that an appellate lawyer wants to see on the bench: engaged and well-prepared, but never abusive. He will treat the lawyers at the lectern as fellow professionals. You should expect tough questions from him, but never nasty questions.

A quick digression on that: once upon a time, the Supreme Court occasionally contained a justice or two who would indeed ask nasty questions, and who would berate lawyers for the simple sin of urging a legal position that the justice disagreed with. Those justices are all gone now, and the well of the court is a terrific place to practice law, because the justices are pleasant, polite, and respectful.

Now, if you don’t want to face tough questions, I will gently suggest a career as a transactional lawyer.

Judge Alston will, upon his accession to the Supreme Court bench, become the 104th justice of the court by my count. Assuming the General Assembly elects him in the 2016 session, his term will begin in February. There’s a chance that that election could happen at the special session on redistricting later this month, though I’m not sure about that.

* * *

I promised you some bad news, and here it is: Jane Roush has become a pawn in a political battle between the Governor and the Republicans in the General Assembly. She didn’t ask for and didn’t deserve this treatment.

As you probably know, when a Supreme Court vacancy occurs when the General Assembly is not in session, the Governor can make an interim appointment that expires 30 days into the next legislative session, as I described above. The long-standing practice has been for the legislature to confirm the Governor’s choice. This is especially true where the Governor selects a capable person who’s well-respected on both sides of the political aisle. (Most Governors are smart enough not to choose a political hack, thereby provoking legislative countermeasures.)

In the course of all of our lifetimes, no Virginia General Assembly has taken a robe off a justice’s shoulders in a political spat with the Governor. It’s very rarely happened at the trial-court level, but never in an appellate court. Never. Never, until now.

No one in the legislature questioned Jane Roush’s credentials. Democrats and Republicans praised her selection. The Republican chair of the House Courts of Justice Committee stood beside the Governor when he introduced Judge Roush as the next Justice; the Republican chair of the Civil Subcommittee publicly stated that she would sail through the General Assembly.

But the Republicans in the Senate rebelled, claiming that, no matter how qualified she was, the Governor hadn’t consulted them before announcing his selection. They chose to make this a turf war, not over jurisprudential qualifications, but over political power. They torpedoed an illustrious judicial career in order to show the Governor who’s boss, making Jane Roush collateral damage in that turf war.

The worst part of this may be the legislators’ seeming utter indifference to what happens to the person at the middle of this. She has done nothing wrong, nothing to deserve this kind of treatment. She’s just standing in the path of the bullets. But that didn’t matter.

I’ll hasten to say that the Governor bears some of the blame for this. By all accounts, his only political contact with the legislature was to discuss his choice with the Courts of Justice chair, Del. Dave Albo. Knowing the possibility that this appointment might produce conflict between the two branches of government, it would have been wise – especially in retrospect, but this was a matter that could easily have been foreseen – for the Governor run the idea by far more legislators, particularly those in leadership positions in both chambers.

I should add that if you perceive that this essay suffers from a liberal bias, think again. I’m not a Democrat, and indeed that party wouldn’t have me, given some of my personal views. If I were to attend a party meeting and express some of those views, the chairman would be calling for Security inside of four minutes. (Same with the Republicans, by the way. They’d find me too “liberal,” just as the Democrats would think I’m too “conservative.”)

* * *

So where does Justice Roush go from here? I suppose that if she wanted it, the legislature would give her back her old seat in Fairfax Circuit, or perhaps Judge Alston’s post in the CAV. Either move would be an unprecedented demotion. With 22 years of judicial experience, she has plenty of VRS credit, so she may simply elect to retire. The world of mediation will no doubt call her promptly, and she might even find out that this move will produce a pay increase.

But whatever happens, she doesn’t deserve this treatment. From what I’m hearing, lawyers across the Commonwealth uniformly find this development to be monstrous. And they’re right; what’s happened here is appalling. And there’s no way to put the genie back in the bottle: the warring parties can’t retain Justice Roush without breaking a new promise to Judge Alston. Unless the legislature votes to increase the size of the court through the convoluted procedure in Art. VI, §2 of the Constitution – don’t hold your breath on that possibility – there’s no way both of them can sit on our state’s highest court. At least not for now.

One other thought has occurred to me: this development puts Judge Alston in a horrible spot. He has desired a seat on the Supreme Court for some time now, and suddenly, here it comes, but with some unspeakable baggage attached. I’ve read a comment or two that suggested that he refuse the appointment out of principle. But he can’t do that without offending the Republican power-players; doing that would probably mean that he would never get the slot.

I wish I could add a coda to this report, containing a happy ending. As far as I can tell, the only persons who are happy with this outcome are some (not all) of the Republicans in the legislature. The legislators have won this fight, as they will with virtually all battles over judicial appointments, given our division of powers.

 


 

GOVERNOR APPOINTS ROUSH TO SUPREME COURT

 

[Posted July 27, 2015] Governor McAuliffe has appointed Fairfax Circuit Court Judge Jane Roush to the Supreme Court of Virginia, effective August 1. She replaces Justice Lee Millette, who recently announced his retirement, effective July 31.

Under Virginia law, this appointment is technically temporary, as it expires 30 days after the legislature convenes in January. I added the adverb technically to that sentence because I’m not aware of any instance – in the history of the Commonwealth, though admittedly my familiarity is fuzzy when you go back that far – in which the General Assembly has taken a robe off a justice’s shoulders in a political fight with the Governor. It’s happened at the trial-court level, but never in the Commonwealth’s highest court.

This is an opportunity for me to congratulate my law-school almost-classmate on a terrific milestone in her legal and judicial career.

One last point: the dramatic turnover in the Supreme Court’s personnel continues apace. With the ascent of Justice Roush, five of the court’s seven members will have been appointed since 2010.