SEPT. 1 MARKS ONSET OF APPELLATE COURTS’ TERMS

The three appellate courts that sit in Virginia will soon begin regular sessions in their 2005-06 terms. The Supreme Court of Virginia will convene on Monday the 12th, and will hand down opinions on Friday the 16th (for those cases argued in June). The Court of Appeals will meet in Richmond for writ panels and in Salem for merits arguments, both on Wednesday the 7th. And the Fourth Circuit resumes on Monday the 19th. As we await these renewals of the appellate processes, here’s a quick look back at the more important legal developments in late August.

Supreme Court

The Supreme Court has not issued any writs since August 9. It may announce a few next Tuesday, the 6th, or the following Tuesday, arising out of writ panels that met yesterday.

Court of Appeals of Virginia

The most significant published opinion released by the Court of Appeals is probably Wilson v. Commonwealth, in which a fractured en banc court affirmed convictions arising out of a drug operation. The principal issue in the appeal deals not with the underlying facts, but with the trial judge’s rejection of the defendant’s recusal motion. By a 6-5 split, the court rejected Wilson’s argument that the judge’s actions created an appearance of impropriety. (The trial judge censured the defense attorney in open court, referring to his tactics as “shenanigans,” and removed the lawyer from the court-appointed list as punishment. He also sought out an assignment of the case to himself instead of one of the other eight judges on the Norfolk Circuit Court.) The decision was announced in four separate opinions; some of the dissenting views hold sharply that the judge’s conduct of the proceedings should have warranted recusal.

The court also affirms the constitutionality of the Commonwealth’s blood alcohol certificate in DUI cases, in the face of a challenge brought under Crawford v. Washington, 541 US 36 (2004). In Crawford, the Supreme Court of the United States invalidated the use of most hearsay exceptions in criminal cases, holding that only actual confrontation would satisfy the Sixth Amendment. In Luginbyhl v. Commonwealth, the Court of Appeals holds that such certificates are not hearsay, and are thus not subject to the Crawford rule.

In Wiese v. Wiese , the court holds in a case of first impression that a refinance of a mortgage is not sufficient to convert separate real property into marital property, in the context of equitable distribution.

Finally, the court granted rehearing en banc in two appeals. Logan v. Commonwealth involves a panel reversal of a conviction based on the defendant’s expectation of privacy in the hallway of a rooming house. Epps v. Commonwealth is the celebrated case involving the prosecution of the sheriff of Petersburg in a dispute with the judges of the Circuit Court of that city. In the panel opinion, all of the sheriff’s appealed issues were rejected save one; that one, however, resulted in a reversal for a new trial. An even more interesting aspect of this case is that, according to the order granting rehearing, it was the sheriff, not the Commonwealth, who sought and obtained rehearing. Apparently, the sheriff will ask the full court to dismiss the case entirely, rather than subject him to a new trial.

Fourth Circuit

The federal appeals court has issued several noteworthy opinions in the past couple of weeks. On September 2, the court denied en banc rehearing in the recent partial-birth abortion case, RMCW v. Hicks, in which the court, based on the Supreme Court’s 2000 decision in Stenburg v. Carhart, 530 US 914, struck down Virginia’s ban on the procedure. Four opinions are filed along with the order denying rehearing. Judges Michael and Niemeyer, the authors of the original panel majority and dissenting opinions, respectively, submit additional statements of their views on the case. Judge Luttig files a one-sentence concurrence, in which he references his concurring opinion in an earlier appeal in which a previous abortion statute was invalidated. But the most intriguing opinion is from Judge Wilkinson, who argues passionately against what he sees as judicial intervention in the political process; he deplores the legitimization of procedures he terms “too gruesome to bear repetition here.” It looks convincingly as though he’s arguing in favor of a grant of en banc rehearing.  But he then appends the following short paragraph that forms the basis for his concurrence in the denial of rehearing:

“We do not write upon a clean slate here. As circuit judges, we are bound to follow the Supreme Court. I can find no fair basis for distinguishing this case from Stenburg . . .. For that reason, I vote to deny rehearing en banc.”

The court issued two recent decisions involving the legitimacy of federal regulations. In National Federation of the Blind v. FTC, decided August 26, the court affirms the right of the Federal Trade Commission to regulate “telefunders,” private persons or entities hired by charities to place telephone calls to solicit donations. The opinion finds the regulations to be reasonable in scope, since (unlike other impermissible forms of regulation on commercial speech) they place in the hands of the public the decision of which solicitations they are willing to receive. Charitable organizations must abide by a charity-specific “do not call” list, separate from the national “do not call” list applicable to non-charitable solicitors. Judge Duncan dissents, finding no credible basis to distinguish between calls placed directly by charities and those placed by telefunders.

A day earlier, in United Seniors Ass’n v. SSA, the court upheld the regulatory power of the Social Security Administration to those entities who mass-mail solicitations to Social Security recipients.

The court issued one published ERISA case, on August 29. In Provident Life v. Cohen, the court affirmed the district court’s refusal to award total or residual disability benefits to an employee after a heart attack. (On the latter claim, the court finds that the employee does not meet the policy’s definition of residual disability.) But it reverses the district court’s order declaring the policy null and void. This ruling was based in the trial court on misstatements by the employee, after his heart attack, of his condition; the district court found such statements to be material. In reversing, the appellate court distinguishes between false statements made in order to obtain coverage (such as on an application for insurance) and those made after coverage has begun (as here). The court determines that these statements could not have misled the insurer into issuing a policy it would not otherwise have issued, so they could not form the basis of a rescission of coverage.

The court also issued one particularly interesting takings case involving a failure to issue a building permit. A builder bought land in Myrtle Beach, SC; made appropriate development plans; and began selling units in a 14-story residential tower. The City of Myrtle Beach denied building permits for reasons the builder thought impermissible. The builder appealed the denial in state court, and simultaneously filed a separate due process, equal protection, and takings claim under 42 USC §1983. The parties agreed to stay proceedings in the §1983 case pending resolution of the permit appeal.

After a trip through the South Carolina appellate system, the builder eventually won, and the city granted the permits. The builder then pursued its §1983 claim, arguing that the delay in granting the permits was compensible. The district court denied the request and entered summary judgment for the city. On appeal, in Sunrise Corp. v. City of Myrtle Beach, the Fourth Circuit affirmed, finding that the city’s actions was not a categorical taking under Lucas v. South Carolina Coastal Council, 505 US 1003 (1992), nor was it a regulatory taking under Agins v. City of Tiburon, 447 US 255 (1980).

In reality, the decision in this case was probably foretold by the ruling in Agins. The builder tried to argue that the delay, unlike that in Agins, was extraordinary. The Fourth Circuit finds that the multi-year delay as the permit case moved through the state judicial system was not within the control of the city; the city had always acted promptly (though not in a way consistent with the builder’s wishes) in resolving the permit issue. The lesson here is that delay in issuing permits will almost never be compensible, absent some showing of bad faith or oppressive conduct on the part of the municipality.