NOTES ON RECENT APPELLATE DEVELOPMENTS

Chief Justice Hassell addresses VB Bar Association – Last week, Chief Justice Leroy Hassell spoke at the inaugural Virginia Beach Bar Association Bench-Bar Conference. The chief justice was the keynote speaker at the luncheon meeting, and addressed his upcoming initiative for reformation of Virginia’s mental health laws. At the conclusion of his remarks, he invited questions from the audience, noting with a smile that a similar opportunity would not be afforded those who appeared in his court.

The chief justice responded to one question about appellate rules reform by stating that he expects a report shortly from the commission headed by Justice Lemons. That body is studying an overhaul of the rules applicable to practice in Virginia’s two appellate courts. He expects some minor revisions and some significant changes; the report should be delivered within about 60 days.

On the subject of compliance with the current set of rules, the chief justice had some sharp words for appellate practitioners, noting forcefully that the responsibility for procedural defaults lies with the attorney. In this case, it is not the message (which is axiomatic, in my opinion) that is newsworthy, but the strength of the conviction. “There is no excuse whatsoever for a lawyer to file a brief late, or to fail to put assignments of error in a petition. No excuse at all.” He noted that many – he hinted that most – pro se appellants get it right, so trained attorneys should be able to do so, too. He suggested a checklist of what should go into your brief.

My two editorial comments here are: (1) Such a checklist exists; it’s found in Rule 5:17(c). When you’re sitting down to draft a petition, get out the blasted rule book and read it. I always do. (2) Remember that the appellate courts report procedural defaults to the State Bar. The Court of Appeals reports each and every one; the Supreme Court once had a three-strikes rule, but the last I heard, it was pondering going to one strike, too. So it’s not just the appeal that’s at stake; it’s your Bar record, too.

Some interesting writs granted recently – The Supreme Court has handed down no fewer than thirty writs in the past three weeks. Some of the more interesting ones include:

An appeal by the Commonwealth of the CAV’s reversal of the conviction of Petersburg Sheriff George Epps

. Epps was convicted of contempt last year, but the Court of Appeals, in an en banc opinion, reversed and remanded. Epps’ victory came on but one of the nine issues he raised; the Commonwealth will now try to get that conviction reinstated. This case was one of my Top Ten Appellate Stories of 2005 .

Not one, but two appeals involving People for the Ethical Treatment of Animals.

One of those involves the effects of the denial of a motion to consolidate; the other relates to the increasing use of sanctions against counsel.

In a case that received statewide publicity recently, two appeals by Norfolkattorney Robert Nusbaum, a seasoned veteran of the bar, who was sanctioned and convicted of contempt of court under highly disputed circumstances.

A malicious prosecution judgment against a police detective in Virginia Beach

. I got to see the writ argument in this case; it involves, among other things, the question of whether a probable cause finding by a judicial officer (in this case, a magistrate) bars a malicious prosecution claim.

On the subject of sanctions – In August, the Supreme Court granted a writ in a case where a defense attorney was sanctioned for pleading affirmative defenses without a factual basis for them. In the trial court, the defense explained that it had no such facts, but was pleading the defenses in order to avoid waiving them; the trial judge found that no excuse. This case is particularly newsworthy because the court, on its own initiative, asked for amicus curiae briefs from the Virginia Association of Defense Attorneys and the Virginia Trial Lawyers Association.

Few published opinions from the CAV . . . – The Court of Appeals of Virginia handed down only four published opinions the whole month. Each one was a criminal case, and in each, the news was bad for the appealing defendant.

. . . And from the Fourth Circuit – The federal courthouse has been busy; just not with published cases. In the 43 cases that have been handed down in the past week and a half, there are only three published decisions. More notably, the circuit continues the trend toward summary disposition. Appellate practitioners know that you have a right to oral argument in the Fourth Circuit – sort of. The panel to which a case is assigned can unanimously decide that the briefs are sufficient, and thus dispense with oral argument under Local Rule 34(a). Recently, that’s been happening quite often: All 40 of the unpublished decisions in this time frame were decided on the briefs alone. In June, I looked at a full two weeks’ worth of rulings, and found that 100 of 107 cases – that’s 93.5%, folks – were decided without oral argument. I have not done a long-term study, but I have no reason to think that’s atypical. The lesson here is not to save anything for oral argument, because you probably won’t get one in the Fourth Circuit.  [Update — Six more opinions came down Wednesday; all unpublished; all without oral argument.]

For you football fans – Michael Vick of the Atlanta Falcons has noted an appeal to the Supreme Court of Virginia in a case involving one of his former agents. I have only limited information on this one; we’re still a ways away from the briefing stage. I have no idea whether Las Vegas has issued an early line.