[Posted September 8, 2008] Its been a busy week and a half in The Holy City. From the first statewide meeting of appellate lawyers in a long while, to a judicial investiture, to a reminder of the hazards of record-preservation, theres something for everyone in this report.
On Thursday, August 28, the Appellate Practice Subcommittee held a summit meeting for appellate practitioners. The gathering featured four hours of free CLE presentations on a variety of topics of interest to the appellate lawyer. Attendees got to hear, among other topics, analysis of the finality doctrine, with a discussion of the severable interests rule; a report on the status of the Appellate Rules Advisory Committee, which is recommending significant changes to Virginias appellate rules of procedure; a discussion from the outgoing and incoming Solicitors General of the Commonwealth, plus another experienced appellate practitioner, on the best uses of moot courts to prepare for oral arguments; and the inside story (from a Supreme Court justice and a Court of Appeals judge) on the kinds of things that especially effective appellate lawyers do.
The program was very well attended and very well received, generating universally positive comments. We also got several good ideas for how to improve things in the (likely) event the subcommittee determines to offer the program again in the future.
Investiture of Justice Millette
The Supreme Court returned to full strength with the September 5 investiture of Justice Lee Millette, formerly of the Court of Appeals, to replace Justice Steve Agee, who stepped over to the Fourth Circuit. A packed Supreme Court main courtroom heard comments from Governor Kaine, who appointed Justice Millette when the General Assembly could not agree on a nominee. Virginia State Bar president Manny Capsalis presented a resolution on behalf of the statewide bar associations. Several members of the legislature also addressed the fully-assembled court during this program, including an invocation from Del. Robert Marshall (one of the few times in which the Lords Prayer could be heard intoned in full during an official session of the court), the presentation of Justice Millettes commission by Del. Jackson Miller, and a benediction from Del. Ward Armstrong (which took the form of an order, directing the Almighty to grant certain forms of relief in the form of blessings, wisdom, etc.) One of the delegates — I forget which, but I think it was Del. Marshall — asked the very same Almighty to give Justice Millette strength and wisdom when he is called upon to decide the constitutionality of legislative enactments; the irony of that wish escaped few in the courtroom. One of the best moments from a personal standpoint was when the chief justice appointed Justice Millettes wife, Beth, and his children, Lauren and Roy, as an enrobing committee to help the newest justice with his new vestment. There was, of course, the obligatory joke from the court about the new justices workload.
Unpublished order on preservation
While all these festivities were approaching, the Supreme Court decided one case by unpublished order earlier on Friday the 5th, dismissing as improvidently granted an appeal in an insurance coverage case. The reason for this ruling will be familiar to appellate practitioners the court determined that the appellant had failed to provide a sufficient record from which the matter could be adjudicated. The case is Rezainik v. Natl Union Fire Ins. Co.
Rezainik was an employee of a VDOT contractor, and was injured in a VDOT vehicle. He sought uninsured motorist benefits, but the vehicle had only liability coverage. Rezainik argued that such coverage was mandated by statute, and also contended that the policy provided such coverage for the fleet of VDOT vehicles.
Unfortunately, no one thought to put into evidence the list of vehicles within the fleet (or at least those covered by the policy), so the Supreme Court determined that it couldnt evaluate the merits of the case. This, then, becomes the latest in an unfortunate series of cases where the failure to protect the record in the trial court winds up scuttling what might have been a meritorious appeal.
Since the order dismissing this appeal is unpublished, it won’t appear in Virginia Reports. Reader of this site who would like a copy of the order may contact me for one.