CHRISTMAS GOODIES FROM
ALL THREE APPELLATE COURTS

[Posted December 13, 2006] Here’s a quick update on developments from the three appellate courts that sit in Virginia.

Supreme Court

Usually, getting a trial court’s judgment reversed is a two-step process. First, you have to petition the Supreme Court to take the case; once you get the writ, there’s another round of briefing and oral argument.

Today is an exception; in an order handed down this morning, the court simultaneously hands down a writ and reverses the case. The decision comes in the case of Ray v. Congleton, and is unpublished; you won’t find it on the court’s web site. Readers of this site who would like a copy may write to me, and I’ll get it to you.

The case arises in a personal injury context. Ray was injured in a collision, and sued Congleton. The trial record, according to today’s order, clearly evinced liability. Congleton’s trial counsel “stipulated at trial that the accident caused $5,270 of total medical expenses,” but the jury returned a zero verdict (nominally in favor of Ray). Today, the appellate court finds this judgment to be inadequate as a matter of law, and remands for a new trial on damages alone.

Court of Appeals

When a criminal defendant notes an appeal, that ordinarily divests the trial court of jurisdiction over the case. But what about its jurisdiction over a request for admission to bail pending appeal?

The Court of Appeals takes up this question in Askew v. Commonwealth, decided Tuesday, December 12. Askew was convicted of possession of a firearm by a convicted felon; he was sentenced on July 27, 2005. Fifteen days later, he noted an appeal; six days after that, he moved the trial court to admit him to bail pending the appeal. The trial court incorrectly ruled that, as of the date of filing of the notice, it no longer had any jurisdiction, and denied the motion.

Ordinarily, that would end the inquiry and a summary reversal, hardly worthy of a published opinion, would ensue. But the Commonwealth raised an interesting “right for the wrong reason” argument (an appellate court will affirm a judgment even if it disagrees with the trial judge’s reasoning, if the same ultimate conclusion can be reached by other means). It contended that the bail statute only provides continuing jurisdiction in the trial court after that court has suspended execution of the sentence. To be fair, that’s pretty much what the statute says: “In any case after conviction if the sentence, or the execution thereof, is suspended . . . the court, or any judge thereof, may . . . set bail . . .”

But this position fails, too, in the court’s ten-page opinion. The court rules that things like suspension of execution and admissions to bail are matters of which the trial courts have ancillary jurisdiction during the pendency of the appeal. And in language that will be quoted by many an appealing attorney from here forward, the court notes that “an appeal does not divest the trial court of jurisdiction over ancillary matters reserved to it by statute.” The matter is remanded to the trial court for a ruling on Askew’s bail request.

Fourth Circuit

How often does a court rule that a government agency’s administrative decision was arbitrary and capricious? Admittedly, not very often, but it happened yesterday, in Ohio River Valley Environmental Coalition v. Kempthorne, a case arising in West Virginia.

In an area where coal mining is both a vital economic factor and a potential threat to water quality, you’d imagine that any change to mining regulations would gather considerable attention. So it was with West Virginia’s state program regulating surface mining. In the 1980’s the state undertook to amend its mining regulations. As required by federal law, it submitted those to the Secretary of the Interior, to ensure that the standards comply with federal minimums. Once the Secretary approves them, federal regulations “drop out” and the state regulations take preeminence, sort of a reverse Supremacy Clause that s specified by statute.

Here, once the Secretary posted the state’s proposed regulations for public comment, lots of folks complained. Some of those included the EPA and the Fish & Wildlife Service. Nevertheless, the Secretary approved the new regulations. Shortly after they took effect, several environmental groups filed suit. The district court eventually ruled (on summary judgment, no less) that the adoption of the regulations was arbitrary and capricious, and ordered them stricken. Yesterday, the Fourth Circuit affirmed that ruling.

Most of yesterday’s opinion centers on procedural challenges raised by the Secretary, who contended, for example, that the district court incorrectly applied the federal Administrative Procedure Act. The appellate court analyzes and rejects those challenges, and then turns to the merits of the case. Applying a de novo standard of review, the court notes that the Secretary’s decision that West Virginia’s failure to define terms such as material damage and cumulative impact, based solely on the absence of federal definitions of those terms, rendered the action arbitrary and capricious.

It’s tempting to call this opinion a primer on administrative review, but in truth, the subject matter of this decision is sharply limited. The opinion will be helpful for those challenging many federal administrative actions, and will, at a minimum, be useful at cocktail parties as a riposte to those who say that courts always rubber stamp whatever the federal government wants to do.