SESSION WEEK PROGRAMMING NOTE

 
[Posted September 10, 2013] The Supreme Court’s September session began yesterday with a high-profile argument in a Charlottesville murder appeal. The justices will hear arguments in 19 appeals, some of which are consolidated or cross-appeals, through Thursday. And there are some whoppers on this week’s docket:

 
Tomorrow, the Court takes up the appeals involving the Portsmouth Tunnel toll cases. A judge here in Tidewater declared earlier this year that the financing plan for the Midtown Tunnel was unconstitutional; the justices granted a writ immediately when the appellees consented to a writ. The tunnel tolls are, to put it mildly, a hot topic in this corner of the state. The plan to finance the project with tolls was evidently negotiated behind closed doors and announced publicly as a fait accompli, leaving local citizens furious that their viewpoint was never considered. [Follow-up note: I’m reliably informed that this perception is incorrect; there was actually a pretty fair amount of pre-contract public briefing on the project.] At issue is whether the contract between VDOT and a private company, which will build and operate the tunnels and collect its tolls, is an unconstitutional delegation of the power to tax.

 
Also tomorrow, the justices will entertain argument in an appeal that challenges whether a physician who injures a fetus in utero may rely upon the damage cap in the Medical Malpractice Act. The issue here is that the Act applies only where health care is delivered to a patient, and the Act defines a patient as “a natural person . . .” In Virginia, fetuses aren’t persons, so the justices will need to sort out whether that definition takes the claim out of the Act.

 
Thursday, the court will receive arguments in the cross-appeals filed in the Virginia Tech shootings litigation. In the trial court, a jury awarded two families $4 million each; the court reduced those awards to the $100,000 cap under the Virginia Tort Claims Act. The Commonwealth appeals even that reduced award, while the families seek to reinstate the university’s president as a party defendant.

 
On top of all this, Thursday is opinion day, when the justices will hand down rulings from appeals argued in June. As you know, opinion days are my six busiest days of the year around here. Unfortunately, I’ll need to be in Richmond that day, something that’s only happened to me three times previously in the 8½ years that I’ve published this website. What this means for you is that while I will post analysis of Thursday’s decisions, I’ll be a bit late in getting started, because the justices will have my full attention that morning. I expect to start posting early Thursday afternoon, and to complete my analysis of this week’s batch of opinions by sometime on Friday.