MIRACLE ON 13th STREET?
MIRACLE ON 13th STREET?
FOURTH CIRCUIT ISSUES ESTABLISHMENT-CLAUSE RULING
[Posted December 24, 2010] Just in time for Christmas, the Fourth Circuit has ruled in favor of
In order to make the numbers work for a new building, the church decided to convey the land at the corner of 13th and
A district-court judge in
That, if true, might well constitute a problem for the development. The practice of playing footsie with appraisal figures has gotten a few lawyers in hot water with the State Bar, especially during the wild ride that real estate values have taken us on lately. But this hope fades for the neighbor as the appellate court swats aside what it perceives as his unsupported conclusory assertions on this point. Plaintiffs suing in (or being removed to) federal court have to be very careful, because Iqbal requires a well-pleaded set of facts setting forth a plausible claim; you cant fall back on bare notice pleading or general assertions of wrongdoing anymore.
A thought lingered in the back of my mind as I made my way through this opinion: How would this case have come out in state court? Practitioners who appear in both forums know well the huge difference between the way the Supreme Court of Virginia analyzes pleading issues and the way that Iqbal mandates that federal courts approach them. Heres what I mean:
Iqbal and its primary Fourth-Circuit scion, Francis v. Giacomelli, provide that a judge must make a preliminary evaluation of whether the pleaded facts state a plausible basis for relief in federal court. If you check your dictionary for the definitions of plausible, the one that fits best in this context is appearing worthy of belief. I attended law school at modest academic institution in the Piedmont area of our Commonwealth, and they taught me there that juries, not judges, decide whos worthy of belief.
The Supreme Court of Virginia adheres to the view I got in law school; in my opinion, if this appeal had been in the Supreme Court of Virginia instead of the Fourth Circuit, its foreseeable that the neighbor might well have obtained a reversal of at least that part of his claim, with a directive that the trial court let a jury decide whether the appraisal figures really had been cooked, making the project (at least plausibly) a sham.
I note this not to criticize the Fourth-Circuit panel in the slightest. Its analysis of the case was entirely correct under the federal approach (assuming, as I do, that there really were no pleaded facts behind the allegation of appraisal shenanigans). But this case is yet another illustration of the fundamental philosophical divide between federal and