MUSINGS ON A QUIET APPELLATE LANDSCAPE

(Posted January 31, 2018) You’ve seen the setup in a cowboy movie or two. One cowpoke says to another, “Shore is quiet ‘round here.” The other pauses for a moment before answering, “Yeah … too quiet.”

In that vein, I give you the too-quiet atmosphere of the Supreme Court of Virginia, where an entire month has passed without a single published opinion, a single unpub, or even a single writ granted. The most recent opinions and unpubs came down December 28, and the most recent writ arrived a week before that. This makes me leery that SCV Clerk Trish Harrington will hand me a front-end-loaderful of decisions when the court next speaks – possibly on Thursday, February 1.

Meanwhile, here are a few things that have caught my eye.

New open-records policy on the horizon

Last June, the justices dealt yet another loss to open-government advocates in The Daily Press v. OES, a FOIA case involving access to aggregated criminal-justice records. The Peninsula newspaper asked the Office of the Executive Secretary for access to those records for a series on race and the criminal-justice system. OES responded that it wasn’t the custodian of the records; the local clerks of court are.

The justices agreed with their Executive Secretary, and affirmed a judgment in his favor. That makes the newspaper’s analysis of the data tremendously complicated – you’d have to make a hundred separate FOIA requests to a hundred separate clerks just to get the GDC-level documents.

I infer that this decision must have prompted more than one open-government fan to contact his or her legislator. Virginia Lawyers Weekly reported a couple of weeks ago that there were multiple bills in the General Assembly hopper to address public access to judicial-system records. I have to assume that The Daily Press (the judicial decision; not just the newspaper) played a large part in that.

Last week, the Supreme Court played what looks to me like a preemptive card, announcing publicly that it will promulgate a rule to address public access to non-confidential judicial records before the end of this year. The court’s press release also says that the court “is committed to working with clerks, legislators, attorneys and other interested parties to develop statewide access to online case information by July 1, 2019.”

This, you will appreciate, appears to be in direct response to public reaction to the ruling in The Daily Press. Note that the release says that the court is committed to working with all those other folks; not that the court will handle the chore itself. Even so, those open-government fans will see this as a welcome development.

If you’ve read the release, you will have noticed that it begins with a paragraph that stakes out judicial “turf,” declaring the judiciary to be an independent and coequal branch of government. That’s the justices’ way of saying to the legislature, “Leave this to us.”

Two new traps for the semi-wary

Every third year, my appellate brother Kevin Martingayle and I present a program through Virginia CLE entitled, “Preventing Nightmares: Preserving Issues and Avoiding Waiver.” It’s a collection of some of the recent ways in which appeals have died fiery deaths before the court ever gets to the merits – which is a bad thing if you’re an appellant. (If you’d like to watch the one we taped four months ago, here’s a link.)

Here’s a sneak peek at two recent rulings that are likely to make the next iteration of the program. In both of these cases, the appellant knew something about appellate procedure, but got a nasty surprise ruling from the court. In combination with last July’s ruling in Browning v. Browning – where the CAV ruled that handing a transcript up to the judge doesn’t suffice to make it part of the record – there are some scary landmines out there.

McGinnis v. Commonwealth, 68 Va. App. ___ (Dec. 12, 2017)  This is an appeal of three convictions on bad-check charges. McGinnis got a public defender, but despite his lawyer’s best efforts, McGinnis wound up with the short straw. Twenty days after the sentencing order – that’s the final order in criminal cases – McGinnis timely moved the court to set aside the judgment and grant a new trial. And when I say “McGinnis moved,” I mean the client prepared and signed the motion; his lawyer probably didn’t even know about it.

The motion had an interesting angle: McGinnis argued that you can’t be convicted of bad-check larceny when the checks are written to satisfy antecedent debts (as contrasted with receiving money or other property in exchange for the check). The next day – the last day on which the trial court had jurisdiction – the judge signed an order denying the motion.

After granting a writ, the Court of Appeals ruled that the post-judgment motion was a nullity because it was signed by neither an attorney for a party nor an unrepresented party. In true pro se situations, the client can and does sign pleadings, as Code §8.01-271.1 requires. But when you have a lawyer, you aren’t an unrepresented party, so in the absence of a valid signature, the motion wasn’t properly before the court.

Riley v. Commonwealth, Rec. No. 0405-17-1 (unpublished, Dec. 27, 2017)  This one’s a DUI conviction from Virginia Beach. Riley’s lawyer moved to suppress certain evidence. After a hearing, the trial court denied the motion. Riley’s lawyer then evidently reached an agreement with the prosecutor to enter a conditional guilty plea, thus properly preserving his right to appeal the suppression ruling.

But the judgment order that the court actually entered didn’t contain the conditional-plea language. Thirteen days after sentencing, the defense lawyer moved the court to reopen the case, and the next day, the court timely entered an order reopening the case and placing it on a docket three weeks thence for hearing. The prosecutor consented to the reopening.

So far this seems all perfectly normal. Twelve days after that hearing date, the court entered an order amending the guilty plea to a conditional one, allowing the contemplated appeal to go forward.

That’s what everyone thought. In the Court of Appeals, the path of justice took a fatal detour for Riley’s chance. A CAV panel dismissed the appeal, finding that the trial court had lost jurisdiction over the case 21 days after sentencing. That date was 26 days before the corrective order.

But how can that be? The trial court entered a timely order reopening the case (14 days after sentencing) and reinstating it on the docket.

The answer is in Rule 1:1, that ruthless dragon: “All final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” The appellate courts apply this requirement strictly: “The running of the twenty-one-day time period prescribed by Rule 1:1 may be interrupted only by the entry, within the twenty-one-day period, of an order modifying, vacating, or suspending the final judgment order.” Hackett v. Commonwealth, 293 Va. 392, 399 (2017) (emphasis in original).

If an order does something other than modify, vacate, or suspend the final judgment, it won’t stop finality. This order “reopened” the case and placed the matter back on the docket, but that isn’t an express vacation or suspension. (The Supreme Court ruled nine years ago in the Lummis Gin appeal (278 Va. 270) that merely retaining a case “on the docket” isn’t the same thing as suspending it, so the appellate clock keeps ticking.) And while the eventual order did modify the judgment by explicitly allowing a conditional plea, that order came 26 days too late. The court thus dismisses the appeal, since an unconditional guilty plea is a waiver, and the court cannot consider the denial of the suppression motion.

Will SCOTUS branch out into state law?

On many occasions, I’ve mentioned here that in matters of purely Virginia law, the SCV is the court of last resort. Litigants who aren’t satisfied with the Supreme Court’s decision have no recourse unless the case implicates federal law; only then is a further appeal, to One First Street, available.

Last week, the Pennsylvania Supreme Court handed down a per curiam decision in a lawsuit challenging partisan gerrymandering in Pennsylvania Congressional districts. Citing only Pennsylvania law – not the federal Constitution – the justices struck down the obviously gerrymandered map. (Statewide, votes for Congress are roughly even, but Republicans hold 13 of the Keystone State’s 18 seats in the House. Here’s a link to a map of one of the districts, so you can judge for yourself.) The order directs the legislature to create a new map by February 9; if there’s no such map, the court will draw one.

The losing litigants in that case, led by Pennsylvania House Speaker Mike Turzai, have filed an emergency application for a stay pending appeal to SCOTUS. That seems normal enough, until you consider that court-of-last-resort angle. Without a federal nexus, you’d be hard-pressed to explain how the federal appellate court can consider this issue.

The applicants justified their trip to Washington by citing Art. I, §4 of the Constitution of the United States: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof ….” They contend that even though the Pennsylvania court didn’t apply federal law in its analysis, the U. S. Constitution still covers this situation, so the federal court can take up the appeal.

I suspect that that’s unlikely to fly, because 2½ years ago, the justices rejected this approach in the Arizona redistricting commission case. But hold on: Justice Alito, to whom the emergency application was presented, asked the respondents for a response. His honor could simply have refused the application if he felt there were no federal nexus, but the request for a response hints that he might feel that there are five votes to weigh in.

The response is due on Sunday. (Yes, they can do that.) This appealability issue is an aspect of the litigation that only a procedure geek can appreciate, but it bears watching. Turzai v. League of Women Voters may have as much to say about federalism as it does about redistricting.