(Posted June 19, 2019) Because tomorrow foreseeably may be a busy day, I thought I’d get a jump start on things by giving you an admin note on what I expect tomorrow.

If you’ve followed the Supreme Court of the United States, you know that that Court issues opinions in all cases argued during a given term, before recessing for the summer. That recess customarily begins at the end of June. This often results in a rush of opinions in the second half of the month.

This year is no outlier: Of the 69 appeals argued in this term, the court has yet to hand down rulings in 20 of them. And as you’ve seen, the end of June is next week. Normally the Court hands down opinions on Mondays, but when enough opinions remain, the justices add one or more opinion days. Tomorrow is one such.

I expect to see five published opinions tomorrow, though I don’t know which ones we’ll see. I then expect the Court to add two more opinion days next week – likely Wednesday and Thursday, so it can announce rulings in all of the remaining cases.

Meanwhile, on the correct side of the Potomac, tomorrow is a presumptive opinion day for the Supreme Court of Virginia. We could see zero opinions, or ten, or something in between. My best bet is something in between, and I seriously doubt we’ll get anything approaching ten. There’s plenty to choose from; five appeals remain undecided from the February Session, and most of the April Session appeals are still pending. It’s extremely unlikely that the court will hand down any rulings from the June session, just two weeks ago.

My readers know that I don’t often focus on SCOTUS rulings, unless they have a significant Virginia nexus, or unless they’re of particularly major significance. You can get analysis of that court in many places, though the best site is SCOTUSblog. If you want something approaching real-time news, you can follow their live blog; opinions start arriving at 10:00.

My focus is always first on the Supreme Court of Virginia. If that court announces rulings – they hit the website shortly after 9:00 – I’ll analyze those and post commentary as quickly as I can. If something comes down from One First Street that I feel I should cover, I’ll follow up on that after I finish the Virginia analysis.





(Posted June 17, 2019) Late June is always high season for opinions from the nation’s highest court. The Supreme Court of the United States clears its docket by the end of the term of all cases argued in that term. As this morning dawned, fully 24 appeals remained undecided from the 69 argued in October Term 2018. Today the Court hands down four, and two of those affect the Commonwealth.

Followers of Virginia politics have been eagerly awaiting the outcome of Virginia House of Delegates v. Bethune Hill, a challenge to district alignment in the House of Delegates. Last year, a divided three-judge panel ruled that several Virginia House districts were racially gerrymandered, and directed new districts to eliminate that.

In response, the Attorney General decided not to appeal the ruling, finding that an appeal “would not be in the best interest of the Commonwealth or its citizens.” The majority of the House felt that it would not be in their best interest to accept the ruling, so they (acting as the House, an intervenor in the trial proceedings) pursued this appeal.

By a 5-4 vote with what may prove to be a surprising lineup, the Supreme Court today dismisses the appeal, ruling that the House doesn’t have standing to pursue an appeal where the Commonwealth has decided against that course. Justice Ginsburg writes the opinion of the Court, and she’s joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch. (Yes, you read that right.)

The Court begins by noting that Virginia law confers upon the Attorney General the power to provide all “legal service in civil matters for the Commonwealth, the Governor, and every state department,” etc. Thus, when the AG makes a legal judgment to pursue, or not pursue, a given course of action in civil litigation, our laws make that his choice alone.

The House contended that it had standing by virtue of the concrete harm it would suffer by a litigation loss here, but the Court today rules that that isn’t enough to establish Article III standing. Although the appealed ruling could – indeed, foreseeably will – affect the House’s composition, today’s majority holds that “the House as an institution has no cognizable interest in the identity of its members.” The majority concludes with this summary:

In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.

Justice Alito dissents. Writing for the Chief Justice and Justices Breyer and Kavanaugh, he concludes that the Virginia House meet the requirements of standing because it has  “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” The dissent argues that districting “matters because it has institutional and legislative consequences.” (I hasten to point out that it does in Virginia, where each chamber of the General Assembly is almost equally divided. That might not be the case in, say, Kansas, where one party enjoys dominant supermajorities in both legislative chambers.) The dissent doesn’t come out and hold that the prior maps are permissible, because today’s holding doesn’t reach the merits of the gerrymandering challenge. The only issue today is whether the right litigant is before the courts.

Below, the three-judge panel directed new districts, and as a result of today’s ruling, those new lines are the ones under which Virginians will vote this November, when the entire General Assembly is up for election.

Today’s other Virginia-centric decision is Virginia Uranium, Inc. v. Warren. This appeal centers on an immense deposit of uranium ore in Southside Virginia, and the Commonwealth’s ban on mining it.

When the owners of land in Pittsylvania County learned that they had a ton of ore – actually, 60,000 tons of it – under their property, they began leasing mineral rights. The General Assembly, concerned about safety, authorized a study and then enacted a one-year moratorium on mining the ore. The next year, the legislature extended the moratorium indefinitely, “until a program for permitting uranium mining is established by statute.” No such statute has ever seen the light of day, so the original one-year ban is effectively permanent.

Virginia Uranium sued in federal court, claiming that Virginia’s ban on uranium mining ran afoul of the federal Atomic Energy Act, a comprehensive statute that, the petitioner claimed, wholly occupied the field of atomic-energy safety, thus preempting Virginia’s statute. The district court and the Fourth Circuit agreed, ruling in favor of the Commonwealth. The Robes at One First Street agreed to take a look.

Today, a highly fractured SCOTUS affirms the ruling below, upholding the mining ban. To understand why, let’s examine a few terms that are at the heart of uranium mining.

The first is familiar: Uranium ore is a metal that combines uranium with other metals. The process of getting that ore out of the ground is familiar to us: That’s mining.

Next, the order must be processed to separate the uranium from the other metals. That process is called milling, and involves crushing the raw ore to isolate the uranium in it. That process produces usable uranium that can be shipped off to be used in things like nuclear reactors.

But the milling process produces a waste product called tailings, and tailings are dangerous. Those have to be stored carefully, to avoid contamination of things like the local water supply.

The federal statute governs milling and transportation of uranium, but says nothing about mining. The issue here is whether Virginia can regulate that mining.

I mentioned that today’s ruling is fractured. Here’s the lineup: Justice Gorsuch writes a plurality opinion, joined by Justices Thomas and Kavanaugh. Justice Ginsburg files a concurring opinion, joined by Justices Sotomayor and Kagan. And the Chief Justice dissents, with Justices Breyer and Alito signing on. If you’ve been keeping track, that’s 3+3+3=9.

I’ll get right to the holdings without embellishing. The plurality notes that since federal law doesn’t address uranium mining, that leaves the matter to the states, so Virginia’s ban is permissible. Gorsuch also opines that the motivation for the act should be off-limits to judicial interpretation. Justice Ginsburg agrees with the first holding but not the second; she feels it’s entirely appropriate to inquire into what a legislature was trying to accomplish.

That leaves the chief, who insists that the first two opinions are addressing an issue over which there’s no dispute, and that wasn’t contained in the question presented here. We all know, he writes, that the federal statute doesn’t cover mining. The real question, he notes, is discrete from that: whether Virginia “may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and tailings).” This is the old question from law school: Can you do something indirectly that you can’t do directly? For the dissent, the answer is no, and Virginia’s end run around the preempted purpose of its regulation is impermissible.

The chief compares this with similar end runs, such as the idea of ending trash collection and fire protection for a nuclear facility as a means of pressuring for changes it wants, but cannot mandate. But a state “cannot use its authority to regulate law enforcement and other similar matters as a means of regulating radiological hazards.”

Thus, by a vote of 3 to 3 to 3, the Supreme Court affirms, handing Virginia a win and making all that uranium ore almost useless, at least for now. In case you’re wondering how this holding applies as precedent, the answer is that the first holding in the plurality opinion – the AEA’s text doesn’t preempt mining regulations – is The Law, because six justices voted for it. The second part of the plurality, discussing legislative motives, isn’t binding because only three justices voted for that.




(Posted May 30, 2019) What had been a slow month for opinions turns lively today, as the Supreme Court of Virginia hands down five published opinions and one published order.

Criminal law

The court takes up a twist on the familiar language of Miranda warnings in Spinner v. Commonwealth. After a bench trial, the circuit court convicted Spinner of the stabbing death of his father-in-law in Campbell County. Police initially spoke with Spinner in a carport of his brother’s home, where they executed a search warrant and took a fingernail sample for DNA analysis.

During that conversation, an investigator informed Spinner as follows; I’ll highlight the key provision:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you’re being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question and if you wish one. And I always caveat that with: ‘If you’re charged with a crime.’ You can decide at any time to exercise any of these rights and stop answering questions or to stop answering—making any statements.

During the ensuing conversation, Spinner made some inculpatory statements before stating that he didn’t want to answer any more questions. The investigator ended the discussion then.

Two days later, police arrested Spinner and gave him the same Miranda warnings. During the ride to the police station, the investigator suggested to Spinner that he hadn’t gone to the victim’s house with the intention of killing him. Spinner said nothing but nodded his head affirmatively.

Spinner moved to suppress both the statements and the head nod, based on a claim that the Miranda warning was improper. The trial judge ruled that the conversation in the carport wasn’t custodial, so a Miranda warning was unnecessary. The statements and the head nod both came into evidence; the court sentenced today’s appellant to two life terms.

The Court of Appeals declined to tinker with the convictions, but the justices agreed to take a look. Today they unanimously affirm. They hold that the conversation at the carport wasn’t custodial, citing the trial judge’s factual findings about that event. Viewed in a light most favorable to the Commonwealth, that ruling wasn’t plainly wrong, so the carport statements were unaffected by Miranda.

That leaves the head nod. Today’s short opinion traces the development of Miranda warnings in this context – where an officer adds something extra to the familiar language – from Miranda through two more SCOTUS decisions, California v. Prysock in 1981 and Duckworth v. Eagan eight years later. That results in the following synthesis:

Miranda warnings don’t require exact language; a “fully effective equivalent” is sufficient. A warning cannot imply that the right to counsel only attaches during court hearings, since that right applies during the investigation of a crime. But this warning (from Duckworth) is acceptable: “We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.”

The Supreme Court today holds that the proper reading of the investigator’s added language in this appeal is the same as in Duckworth. Police officers can’t immediately bring on a lawyer, but a suspect can insist on having a court appoint one. That means that there was nothing wrong with the warnings given here.

The justices decide two companion appeals today involving a novel procedural posture. The cases are Watson v. Commonwealth and Commonwealth v. Watson. In 2007, Watson entered Alford pleas on several felony charges, including four use-of-a-firearm indictments. The circuit court convicted him on those pleas and sentenced him to a lengthy term of imprisonment. The sentences on the firearms charges were identical: three years each, to be served consecutively.

But the law requires that a second or subsequent use-of-a-firearm conviction must carry a five-year sentence; no more and no less. In 2017, Watson learned of this and filed a motion to vacate his sentence as void ab initio, demanding a new sentencing hearing. He argued that the sentences imposed were outside the statutorily prescribed range, so the court didn’t have jurisdiction to enter the sentencing order.

He had good reason to feel that way. In 2009, the Supreme Court perceived that its rulings in improper-sentence appeals were difficult to reconcile, so in Rawls v. Commonwealth, it decided to end the uncertainty by handing down specific guidelines:

Today we adopt the following rule that is designed to ensure that all criminal defendants whose punishments have been fixed in violation of the statutorily prescribed ranges are treated uniformly without speculation. We hold that a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because the character of the judgment was not such as the [c]ourt had the power to render.

Six years later, the court described this rule as “bright line” and “purposefully broad,” intended to apply to all defendants sentenced outside a statutory range. Watson pointed out in his motion that he was inarguably sentenced outside a statutory range, so he was entitled to a new sentencing hearing. The Commonwealth responded that Watson’s sentence wasn’t void but voidable, so his motion, filed ten years after sentencing, came too late.

There’s more. Watson similarly moved the circuit court to vacate the sentences of twelve other felons for the same reason. He didn’t join the others as parties, but cited familiar language from numerous Supreme Court opinions: an order that’s void ab initio may be challenged “by all persons, anywhere, at any time, or in any manner.” Because Watson clearly falls within the category of “all persons,” he asked the circuit court to order new sentencing hearings for the other twelve, too.

On Watson’s motion to vacate his own sentence, the Rawls language persuaded the trial court that this sentencing order was void. The court accordingly ordered a new hearing. But it balked at ordering relief for the other twelve, finding that Watson didn’t have standing to challenge their sentences. The court rejected a broad reading of “any person,” insisting that any such challenge had to come from a person affected by the judgment.

Watson then did something that many, indeed most, lawyers find difficult: He persuaded a panel of the Supreme Court to grant him a writ to review the standing ruling. The court simultaneously awarded the Commonwealth an appeal on the vacatur of Watson’s sentence.

Well, now. How do we resolve this? The plain language of the Supreme Court’s jurisprudence seems to favor Watson. That broadly phrased void-ab-initio precedent looks like it covers this situation, and unless the court is going to backtrack on its oft-repeated “any person” holdings, Watson may get to canopener a bunch of other felons’ sentences, conceivably against their will.

Except it doesn’t come down that way. In the standing appeal, the justices rule that traditional standing requirements implicitly limit the class of the “any persons” who may challenge a void judgment, so Watson can’t raise this objection on behalf of the other felons. In doing so, the court limits the application of its prior holding in the Virginian-Pilot Media case in 2010, so now the ability of a person without standing to make a challenge is limited to subject-matter-jurisdiction objections. The court also declines to vacate those other felons’ sentences sua sponte, as the Virginian-Pilot concurrence had suggested; that’s because those felons should be made parties to the proceeding.

That leaves the Commonwealth’s appeal of Watson’s vacatur. Here, the court turns to two decisions from 1953, holding that a too-short sentence is merely voidable, while a too-long one is void. Today’s opinion holds that these old cases were not among the difficult-to-reconcile decisions that the court undertook to encompass within its broad doctrine in the 2009 Rawls decision. A too-short sentence is still merely voidable, so Watson’s challenge to his sentence comes years too late.

This, then, is what the court rules today:

  • In the numerous earlier decisions holding that “all persons, anywhere, at any time, or in any manner” may challenge a void sentence, the ruling really meant “a person with standing.”
  • In the bright-line Rawls doctrine, the phrase “a sentence imposed in violation of a prescribed statutory range of punishment” the court really meant “a sentence imposed in excess of a statutorily prescribed maximum punishment.”

That’s the law henceforth.


Here’s one for the procedure geeks among us: Is venue improper if the plaintiff sues somewhere other than the place specified in a forum-selection contract clause? Let’s dig into RMBS Recovery Holdings I v. HSBC Bank USA to find out.

This is a derivative suit filed by several entities that collectively invested in mortgage securities during the real-estate boom of about 12-15 years ago. HSBC Bank serves as trustee to three trusts that held those securities. The investors contracted with two entities that today’s opinion calls sponsors; the sponsors’ job was to ensure that only high-quality loans made their way into the trusts. The sponsors agreed to a sort of quasi-guaranty arrangement: If any poor-quality loans made it through the cracks, the sponsors would either replace or repurchase them. This afforded the investors a separate measure of security.

I don’t have to tell you what happened, do I? The recession happened, and the boom market went bust. The investors, facing a huge capital loss, insisted that the bank force the sponsors to make good on their promise. The bank agreed to do so only if the investors signed confidentiality and indemnity agreements.

While these folks are firing letters back and forth, the statute of limitations is ticking. To beat that clock, the investors filed derivative actions in New York against the sponsors. The bank and the investors then signed the confidentiality/indemnity agreements, each containing a forum-selection provision requiring any litigation to occur in New York City.

Once the ink was dry on these, the bank substituted itself in the New York suits as plaintiff. Bad news: By then, the statute of limitations had expired. The New York court accordingly dismissed the suit as untimely.

That led the investors to sue the bank in Fairfax, site of the bank’s headquarters, claiming that the bank failed to act timely to protect the investors’ rights. The bank replied with a motion to dismiss, claiming that Fairfax was a forum non conveniens. It argued that New York was more convenient due to, among other things, the presence of several witnesses there, plus the fact that New York law governed anyway. The motion said nothing about the selection clause in the confidentiality agreement.

The Fairfax court quickly convened a hearing. The judge was astounded at the contention that a bank could claim that it was inconvenient to litigate a claim in its home county. The motion to dismiss died a quick death.

The parties continued to conduct pretrial litigation in Fairfax. At one point, the court sustained a demurrer with leave to amend. The investors timely amended, and this time the bank moved to dismiss based on the forum-selection clause in the confidentiality agreement. This time, it worked; the circuit court agreed that it had to dismiss without prejudice and allow the parties to litigate up north. The court rejected a claim that the bank had waived the clause by litigating the case here in Virginia for over a year before raising this objection.

If you’ve waded through this complex tale this far, take heart: It’s time for some appellate rulings. Both sides appealed, and today the justices hand two victories to the investors. In their appeal, the court agrees that the presence of a forum-selection provision in a contract is a personal defense that a party can waive. It also rules that, on this record, the bank did waive it; objections to venue have to be raised and pressed on to a ruling promptly. The bank didn’t do that, so it lost the ability to insist upon trying the case in New York.

In the bank’s appeal, the Supreme Court rules that the trial court didn’t abuse its discretion by keeping the case in Fairfax, rejecting the claim that our courts are inconvenient. Here, the bank is undone by an unfavorable standard of appellate review. The trial court didn’t abuse its discretion, the justice rule today, because there are plenty of connections with Virginia, document transfer is simple and easy in this digital age, and it would take several years to get to trial in the Big Apple.

I saw one important tidbit in today’s opinion: “Code § 8.01-264(A) does not address an instance, as here, in which venue is properly laid but another forum has been otherwise agreed to by the parties in a forum selection clause.” That factor is relevant in a motion under § 8.01-265. The former statute deals with suits filed in an improper forum; the latter is where the plaintiff chooses a forum that’s proper, but inconvenient. Keep that distinction in mind if you’re moving to transfer or dismiss.

School discipline

There’s a complex procedural setup in Fairfax County School Board v. S.C., so I’ll give you a truncated version of the facts and then jump straight to the holdings. A high-school freshman in a Fairfax public high school found herself in hot water when three other students reported that she had sexually touched each of them. An assistant principal notified her of the accusations; she submitted a written reply, admitting the touching but insisting that it was consensual.

The school system’s behavioral policy bars sexual touching regardless of consent, so the principal issued an interim 10-day suspension to the freshman, notifying her in writing that the school division would conduct a hearing for sexual assault within that time. The student brought a lawyer with her to the hearing, in which two hearing officers presided.

During the hearing, the freshman admitted to the conduct; her lawyer acknowledged that “there’s a very good possibility that this does fall within a disciplinary realm.” The hearing officers found that the conduct was nonconsensual sexual touching, but didn’t find sexual battery as defined in the Code of Virginia. They imposed longer-range discipline, including transfer to an alternative school; the school board affirmed that.

The freshman sued in circuit court, arguing that the discipline imposed was arbitrary because the student had been exonerated of sexual assault or battery. The trial judge agreed and vacated the finding of misconduct.

The Supreme Court reverses today. There are a few key reasons for that, but the primary one is the strong deference that courts must accord to school divisions in disciplinary cases. The circuit court had focused on the legal definition of sexual battery, which requires proof of “force, threat, intimidation, or ruse.” But the school division’s policy required none of these factors; it simply banned all sexual touching, and the student unquestionably did that. The justices accordingly dismiss the freshman’s petition for judicial review.






(Posted January 22, 2019) It’s been quite a while since I’ve addressed the topic of oral advocacy. While there are numerous speaking styles, and no one of them is definitively correct, here are some notes on the way I do things.

Part 1 – How to Speak

This section is simultaneously breathtaking in its scope and dangerous in its connotation. The topic of how to speak is immense; the study of rhetoric and oratory goes back at least to Aristotle and Demosthenes. And tackling the task of telling people – educated people, at that – how to do something as basic as talking risks giving offense. After all, while we may realize that we’re not very good at painting portraits or singing or ballet, everybody perceives that he or she can talk well. You do, right?

As for the scope, I won’t try to be comprehensive here. I couldn’t possibly set out in an essay everything I’ve learned about public speaking since I was 13 years old and received my first training in it. It’s far too voluminous, and besides, there are some things that I don’t even realize that I know; they just come naturally after a lifetime of practice.

As for giving offense, please be assured that I’m not here to insult anyone. One of my primary goals in publishing this website is to help you to become a better appellate advocate. But even professionals who are highly skilled in their chosen craft may not know how to convey ideas clearly, forcefully, and persuasively. Here are a few basic suggestions.

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(Posted December 31, 2018) Virginia’s appellate courts are closed today, so we have time for a quick look at what happened in 2018.


Decisions on the merits

I was worried for a time that we wouldn’t reach 100 merits decisions in the SCV, but the justices put together an admirable late push, handing down 14 published opinions and one published order in December to get us over the mark. The court gave us 74 published opinions and four published orders this year. It also reissued two corrected opinions from last year. Add those to the 24 unpubs we saw n 2018 and you get 104 merits decisions.

For comparison’s sake, in 2017 there were 79 published opinions and 111 merits decisions. In 2016, we got 78 opinions and 125 merits decisions. For those of us who make our living at the appellate lectern, 2018 continues a disheartening downward trend in business.


David-Goliath Index

I promised you this as a recurring quarterly feature. Through the first half of 2018, David (the little guy in appeals, such as a defendant appealing a criminal conviction or an employee suing for wrongful termination) won about one out of three published rulings from the Supreme Court. But his third quarter was a disaster: one win and eight losses. A strong(-er) fourth quarter, where David won eight times and lost 13, brings our final David-Goliath Index to 31/69. That is, the little guy won 31% of the time and the big guy won 69% in 2018. Whether that’s a good sign or a bad one probably depends on which side of the litigation aisle you occupy.


CAV published opinions

By my preliminary count, the Court of Appeals of Virginia handed down 66 published opinions in 2018. That’s the same number as in 2016. I’ll have a fuller analysis of these figures when the court issues its full report in the spring.




(Posted October 15, 2018) I’ll confess that I’ve tended to take a lighthearted view of what I’ve described as “omigod appeals,” where a party just has to have immediate review of a trial court’s ruling. I’ve given the example of, “You’re litigating over an ice cream truck, and it’s 97 degrees outside.” I never really gave much thought to when a real need for such an appeal might arise, or how I would go about pursuing one.

All that changed recently when I was asked to speak at an upcoming conference. My topic is how to appeal in denial-of-care cases. Yet another confession: My immediate reaction to that request was, “What’s a denial-of-care case?” I really have lived a sheltered life.

I soon found out that these cases are nothing to take lightly. They refer to the circumstance where a hospital denies medical care needed to preserve someone’s life. There may be squabbling family members, and maybe even a do-not-resuscitate provision in an advance medical directive. In these cases, if a circuit court issues an order allowing or directing the hospital to deny care, and a family member wants to appeal, the normal appellate process is out of the question. These days, it takes well over a year to get from circuit-court judgment to Supreme Court opinion, and most patients in that circumstance don’t have anywhere near that much time. For these folks, there has to be a faster way.

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