SOME THOUGHTS ON THE CLOSE OF AN APPELLATE YEAR

(Posted December 29, 2017) While we still might get some ninth-inning rulings today from the Fourth Circuit, for the most part the appellate year has drawn to a close. Here are a few notes on things that occur to me as I look into the rear-view mirror.

Business indicators

For those of us who make our livings in the Supreme Court of Virginia, it’s important to keep an eye on statistics that show how busy things are at Ninth and Franklin. I won’t have a full 2017 statistical report for two or three months, but I can see a few things just by looking at the court’s website.

For example, by my count the justices handed down 111 merits decisions this year, including 79 published opinions and orders and 32 unpubs. For comparison, in 2016 there were 125. That’s a decline of about 11%.

The ink isn’t quite dry on the number of incoming cases, but my best guess is that new filings will be down by almost 100 from last year’s figure of 1,827. The appellate business is not proving to be a growth industry.

The fate of the criminal appeal

A long time ago, in a galaxy far, far away, I took a bar-exam review course in which the criminal-law segment was taught by an enormously popular U.Va. law professor named Charlie Whitebread. Near the end of that segment, he gave us advice on what to do if, despite our best efforts and analysis, we just weren’t sure what the correct answer was. In that event, he advised, “Remember: This is Virginia. [Here he slowed down his delivery when pronouncing the name of the state, so it came out as four distinct syllables.] The defendant is guilty.”

Against that backdrop, we have this year’s criminal-law appellate jurisprudence. In published decisions, the Supreme Court ruled in favor of the defendant twice and in favor of the Commonwealth 16 times. The prosecution fared slightly worse in unpublished orders, winning seven appeals and losing five. Overall, then, the defendant won 23% of the time and the prosecution won 77%.

You may be interested in a comparison of those figures with the appellants’ success rate in the Court of Appeals, where all criminal appeals except those involving death sentences must first stop. At this point, I’ve only looked at the CAV’s published decisions, not the much larger body of unpubs. But among published opinions in 2017, the CAV ruled in favor of the prosecution 36 times and for the defendant 10 times, giving the prosecution a nearly identical success rate of 78%.

Keep in mind that this count, in addition to being only for published decisions, involves only appeals where the CAV has granted a writ. The overwhelming majority of criminal appeals die a quick death at the petition stage, so the prosecution’s real success rate is likely far over 90%. (The same dynamic is true in the Supreme Court, where all criminal appeals other than death-sentence reviews go through the petition stage.)

Was there an “opinion of the year”?

In 2016, this answer was easy: The 800-pound gorilla that year was clearly Howell v. McAuliffe, a politically charged mandamus petition where the principal combatants were the Speaker of the House and the Governor. It also involved what appeared to me to be a decision made well in advance; for reasons I outlined in my essay last year, I’m convinced that the justices considered the case, debated it, voted, and wrote their opinions long before the oral argument date.

This year … not so much. We had significant rulings, of course, but nothing of the magnitude of Howell. That being said, here are a few notable rulings in my view:

Mayr v. Osborn (Feb. 2) and Allison v. Brown (Jul. 27) convince me that in Virginia, the tort of “medical battery” (this is my shorthand for it) as a parallel claim to medical malpractice is either dead or in hospice. In the past, many patients had claimed battery instead of filing a med-mal suit because the cost of hiring a medical expert made the med-mal route uneconomical.

Jones v. Commonwealth (Feb. 2) is the latest salvo in the ongoing battle between the state and federal courts over life-without-parole sentences for juveniles. I don’t think that war is over yet; I believe that SCOTUS will eventually decide whether the inclusion of a geriatric-release program like Virginia’s means that no inmate is actually serving life without the possibility of parole.

The Funny Guy v. Lecego (Feb. 16) is just scary. Where a plaintiff settles pending litigation by accepting a promise (such as a note) from the defendant to pay something in the future, and the defendant doesn’t pay, the plaintiff now has to sue on the note AND on the original cause of action. If there’s something wrong with the note, and the plaintiff didn’t plead and prove his original claim as well, that becomes res judicata against him.

Hilton v. Commonwealth (Apr. 13) and yesterday’s Pijor v. Commonwealth are this year’s entries in the stupid-criminal sweepstakes.

Daily Press v. OES (Jun. 29) is the latest in a growing string of losses for open-government advocates. The justices ruled that a FOIA request sent to the Executive Secretary of the Supreme Court, seeking aggregated records of trial-court litigation, was misdirected. The requester must instead file a gazillion individual FOIA requests to local clerks for nonaggregated data.

JIRC v. Bumgardner (Jul. 20) and JIRC v. Pomrenke (Nov. 27) gave us the rarity of two judicial-discipline decisions in one calendar year.

City of Danville v. Garrett (Aug. 31) is the third appeal I’ve seen in the past two years in which the Supreme Court decided an appeal over which it demonstrably did not have jurisdiction. The court reversed all three.

Old Dominion Committee v. SCC (Sep. 14) is actually a fair nominee for the opinion of the year. Here, the justices rejected an argument that a widely publicized deal between the legislature and two electric utilities violated separation-of-powers principles.

Levick v. McDougall (Nov. 2) analyzes a contorted fact pattern in which a happy couple got married – or did they? – even though they forgot to get a license. The back-and-forth between the majority and dissenting opinions made for fascinating reading.

Two last thoughts about may and shall

Yesterday we explored the Sexually Violent Predator Act decision in Rickman v. Commonwealth. I’ve pondered that and have a couple of additional thoughts.

The court’s focus was upon the difference between a mandatory and a directory use of the word shall in statutes. As yesterday’s essay points out, the boundary is whether the statute specifies the consequence of a failure to do what one “shall.” If the consequence appears in the statute, then it’s mandatory; if not, then it’s directory and the courts fashion an appropriate remedy.

In that context, let’s look at Rule 5:5(a), dealing with filing deadlines in the Supreme Court. That rule states that the deadlines for filing certain appellate documents, such as a notice of appeal, are mandatory. Those rules wouldn’t qualify as mandatory requirements in their own right, since none of them specify the consequence of missing the deadline. (Rule 5:9 comes closest, stating that “No appeal shall be allowed” unless you file the notice within 30 days.) The effect of Rule 5:5 is, by clear implication, to fix dismissal as the penalty for missing the deadline. And indeed, that’s the way the justices have always treated those rules; they sometimes say that the appellate court doesn’t have jurisdiction if you miss one.

If you want an example from the rules of a clearly mandatory requirement, check Rule 5:17(c), which specifies what a petition for appeal “must contain.” One of those requirements is a section entitled, “Assignments of Error.” That section goes on to state that “If the petition for appeal does not contain assignments of error, the petition shall be dismissed.” That’s what we call an unambiguous consequence.

The other thought was actually suggested by The Boss, when I told her about Rickman: “Gee, how about the Ten Commandments? Are they directory, too?” Not bad, Boss; you’re thinking like a lawyer. Sure enough, with the possible exception of the Third Commandment, there are no consequences specified there, either. Happily, this is not a matter that will occupy the justices’ minds anytime soon.

Thou shalt enjoy a happy, healthy, and prosperous 2018, my dear readers.