NEWS AND NOTES FROM THE APPELLATE WORLD
(Posted April 19, 2018) Here are a few things that have popped up on the landscape recently.
The Supreme Court has announced changes to two rules in Part 5. Rule 5:1 now requires that anything submitted to the court must comply with other rules – meaning, through the Clerk’s Office. The new provision specifically forbids submitting anything directly to a justice.
In the past, practitioners have been able to submit a few items to individual justices. For example, Code §8.01-626 still provides that an aggrieved party can “present a petition for review to a justice of the Supreme Court” to secure review of most injunction orders. The statute adds that the justice receiving the petition “may take such action thereon as he considers appropriate under the circumstances of the case.”
That may be what the statute says, but the court hasn’t handled injunction appeals like that for a long time. Petitions for review virtually always go to a three-justice panel (I suppose a true emergency might justify a single justice’s acting). This new rule tells practitioners that they need to present the petition to the Clerk, after which it will be distributed in due course.
This process harks back to the old (think 19th Century) practice of ensuring geographic diversity among the justices. There had to be one justice from each of five separate regions, so an appellant could reach one quickly when needed. Generations ago, when the automobile was still in Jules Verne’s imagination, travel from, say, Big Stone Gap to Richmond could take a great deal of time. The law accordingly spread the court out across the state.
The second rule change limits the use of demonstrative aids during oral argument in the Supreme Court. Rule 5:33 now requires that you let the court know at least five days in advance, describe the exhibit, and explain how you propose to use it. The court can approve the use of the aid or refuse to allow you to bring it.
My best guesses as to why the court is doing this now are: (1) Lawyers were getting too liberal with their argument aids, inspiring them to make jury-style arguments, or (2) a lawyer who steps over to the exhibit, and away from the microphone at the lectern, thereby interferes with the audio recording, or (3) it’s something to do with courthouse and courtroom security. I don’t have any insight into the actual reason.
Both rule changes take effect on June 15.
Early court closure
Subscribers to the courts’ new notification system got word yesterday that the SCV Clerk’s Office is closing tomorrow at noon. Yes, this means that you get an extra day to file, if your deadline happens to be tomorrow. No, the notice didn’t say anything about the Court of Appeals, so you’d better plan on filing on time in that court. And no, the closing doesn’t apply to your local trial court, so if you have to file a notice of appeal or a transcript, this closing won’t affect you.
New SCV order
The justices today hand down no published opinions but one published order. In Commonwealth v. Perkins, the court addresses a CAV reversal of two criminal convictions for maiming and a companion firearm charge.
Perkins faced a bench trial for five felonies in conjunction with a robbery of a family friend. When he and a juvenile accomplice walked up to the victim, the victim was walking down the sidewalk along with Perkins’s mother. (Honestly; who commits a felony in front of his own mother?) Perkins approached the victim from behind and slugged him in the back of the head with a handgun. The accomplice also hit the victim, who lost consciousness before being robbed of $5,000 in cash.
In a bench trial, the judge got ‘im on all five charges. The CAV reversed the maiming charges, citing the fact that the accomplice had also hit the victim, so it was impossible to infer an intent to maim. A unanimous Supreme Court today, addressing only the Commonwealth’s appeal of the two dismissals, reverses and reinstates the convictions. The justices find it immaterial that the accomplice also hit the victim, since those who act in concert to commit a felony are responsible for the actions of each other. The trial judge had made a factual finding of intent, and the justice rule that that finding was not arbitrary or unreasonable.
Appellate summits on the horizon
Do you have an appellate practice? If not, do you want to build one? Either way, you need to mark your calendar now for two events this autumn. The Virginia Appellate Summit is the premier gathering of appellate practitioners and jurists in Virginia. It’s sponsored by the Virginia Bar Association and will convene on September 20, 2018 in Richmond. McGuireWoods has generously offered the use of conference space in its downtown offices for the event.
The day-long program will feature several hours’ worth of advanced-level appellate CLE programming. If you want to know the basics, Virginia CLE offers a program roughly every third year. This program is also on a three-year rotation, so if you miss it, you’ll have to wait until roughly 2021 to catch it. If you want advanced training, plus the opportunity to rub elbows with Virginia’s best appellate lawyers, make plans to attend.
The ABA Appellate Summit, formally known as the Appellate Judges’ Education Institute, is the Virginia Summit on steroids. This one convenes every year, and this year it’ll be in Atlanta, November 8-12. The ABA Summit is to national appellate practice what the Virginia Summit is to practice here; it’s the #1 meeting for those of us who make our livings at lecterns. You’ll get cutting-edge presentations on several aspects of our field, and plenty of presentations from appellate jurists. The program offers about ¾ of a million hours of MCLE credit (okay; more like 18 hours) if you need that. It usually draws about three or four hundred of the nation’s best advocates and most prominent jurists. I already have my hotel reservations; I hope to see you there.