ANALYSIS OF JULY 13, 2017 SUPREME COURT OPINIONS

(Posted July 13, 2017) Today the Supreme Court of Virginia hands down two rulings related to the Atlantic Coast Pipeline.

The first, Chaffins v. Atlantic Coast Pipeline, LLC, presents a straightforward issue about notice of entry. Virginia’s public-service-corporation statutes allow companies to enter private property to perform surveying and other related work before building public projects. If the company can’t get the owner’s permission to enter, it gives advance notice of “the date of the intended entry,” and thereafter may enter and perform the work.

As part of the pipeline project, ACP gave certain Buckingham County landowners notice that it would enter their properties “on or after April 27, 2015.” In a DJ action, the landowners contended that an open-ended notice didn’t fairly apprise them of when the crews would be onsite. The company replied that it didn’t have to give an exact date; just an intended date. It noted that all sorts of things, from the weather to other projects, could affect the actual entry date.

The trial court agreed with the company, but today the justices reverse. They observe that the purpose of the notice provision is to enable the landowner to observe the entry, corral livestock while the company is onsite, and document any damage. If the company could show up at any time with no end date, the landowner would be left guessing.

The company argued that the landowner’s argument would lead to an absurd result – they gave the example of requiring a new notice every time the weather prevents a scheduled entry. The justices conclude that it might be inconvenient for the company, but that doesn’t make it absurd. That’s part of the price you pay for getting access to private property against the owner’s will.

Justice Mims’s opinion for a unanimous court contains an additional section. The company contended that the matter was moot because it had issued a subsequent notice to these landowners, telling them it would be onsite from July 6 to 11, 2015. That, you will admit, is far more informative, and the company contended that it superseded the initial open-ended notice.

Except it doesn’t expressly do that. In theory, the original notice would allow the company to enter the land today, or in the year 2525 – there I go, giving away my generation again – and the company has continued to maintain that the original notice was valid. The issue therefore isn’t moot.

It may be effectively over, though. Today’s opinion concludes with a remand “for further proceedings consistent with this opinion.” I understand that the company did enter the property and perform at least much of its work, so it may not need to enter again. (Note that this isn’t a condemnation action proper; that comes later.) In theory, those further proceedings could include a claim for damages to the property, but I don’t know about that. The enduring lesson of this case is that in this context, “on or after” won’t suffice for a notice.

The next case is Palmer v. Atlantic Coast Pipeline, LLC, and it raises wholly separate issues. Here, a landowner in Augusta County challenged not the date of entry, but ACP’s right to carry out the project in the first place.

The landowner used three lines of attack. First, she claimed that ACP can’t use our public-service-company statutes because those only apply to Virginia companies under Title 56 of the Code. ACP incorporated in Delaware. The Supreme Court rejects this argument because the relevant statute is broader: “Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a …” ACP is within that broad definition.

But the landowner had a second argument, and this one looks like a killer: Article IX, §5 of the Virginia Constitution states that “[n]o foreign corporation shall be authorized to carry on in this Commonwealth the business of, or to exercise any of the powers or functions of, a public service enterprise.” Alas for the landowner, she didn’t present this argument in the trial court, so the contemporaneous-objection rule claims another victim.

This matters a lot. Now that the landowner won the Chaffins appeal, public service companies can adjust fairly easily; they just reword their notices. But if Palmer is right about this one, then ACP can’t employ Virginia’s statutes. That might prevent the company from building the pipeline at all, unless it forms a subsidiary company here in Virginia.

That waiver ruling is enough to end discussion on this issue, but it doesn’t. The court goes on to point out that the argument is waived for a second reason: The landowner saved her argument on this point for her reply brief. Her opening brief contained only a bare reference to the constitutional provision, and she poured on the argument in her reply. Experienced appellate lawyers will tell you that you can’t do that; the justices expect you to make the argument in your first brief.

Today’s opinion quotes the landowner’s lawyer from oral argument: “I didn’t present it [in the opening brief] because I thought it was a silver bullet.” He may have been right about that, but the court regards the argument as waived.

I’m going to try to read between the lines a bit here. Why did the court point out this waiver, when the first (and more familiar) one was 100% effective to shut off the issue? I sense that the court resented the lawyer’s effort to game the briefing system, maybe even to lie in ambush. After all, if the landowner deploys all her best arguments in the last brief of the case, the company can’t respond. That means that the court has to decide the appeal based on insufficient briefing.

The primary lesson here is elementary: Fire your ammunition in your opening salvo. The secondary lesson is that the justices expect you to help them to do their jobs – as former Justice Keenan put it, they regard lawyers as the court’s partners in the task of deciding what Virginia law will be. We sometimes get knee-deep in the process of advocating for a client and forget that role.

The landowner’s final argument is that her right to property is fundamental under Art. I, §11 of the Virginia Constitution. She contended that allowing companies to enter her land at all is a denial of due process. The justices are havin’ none o’ that; they note that while the right to property is indeed fundamental, it has never been absolute. Virginia’s common law and Code have recognized the right of entry for public purposes since the earliest days of the Republic. The court finally concludes that the 2012 amendment to the constitution – the one inspired by Kelo v. New London – didn’t change that.

Justice Mims writes this opinion, too, and once again the decision is unanimous. But Justice McCullough tacks on an irresistible concurrence that raises a fascinating issue: He contends that under the Virginia Constitution, there’s no such thing as substantive due process.

Where did that come from, you ask? It didn’t come from the opinion of the court; Justice Mims never mentions it. Justice McCullough observes that it “underpins the appellant’s argument,” so he addresses it.

Try as he might, he cannot conceal his disdain for the concept of substantive due process. He quotes legal observes as calling it “an oxymoron” and “a contradiction in terms.” He charts its rise (and subsequent falls, and rises again) in now-discarded rulings such as Dred Scott v. Sandford and Lochner v. New York. He even hints that SCOTUS’s recent decisions based on substantive due process should be regarded with equal suspicion, citing as examples Lawrence v. Texas and Obergefell v. Hodges.

Justice McCullough’s premise is that while the Nine at One First Street can interpret the federal constitution, the justices of the Supreme Court of Virginia are the final arbiters of the meaning of the Constitution of Virginia. If the federal jurists want substantive due process in their founding document, they can have it; but we have no obligation to import it here. He views due process as a purely procedural concept – the government cannot do certain things to you unless it follows certain procedures. That’s what due “process” is supposed to be.

You’ll note that Justice McCullough writes alone; none of the other members of the court sign on. That doesn’t necessarily indicate that they disagree with him. It may only mean that they didn’t see the need to bite off such a big chunk of the apple in order to decide this particular appeal. After all, they decide cases on the narrowest ground possible, and that almost never is a sweeping constitutional pronouncement. I can’t tell you how they view substantive due process; but Justice McCullough’s cards are face-up on the table.

I have never hesitated to quote our justices when their rhetoric soars. I think it livens up the reading of otherwise dry judicial opinions, and I hope you find that it livens up the reading on this website. With that in mind, I bestow upon you the gift of the concurrence’s penultimate paragraph, in its entirety. I loved it, and I suspect you will, too. Bon appétit.

To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive due process as part of Virginia’s constitutional jurisprudence, a review of the United States Supreme Court’s jurisprudence convinces me that we ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.