THE TOP TEN APPELLATE STORIES OF 2005

(Final posting, December 22)

As this eventful year winds down, I have been thinking back over the most important appellate developments of 2005, at least as far as our focus is concerned. On a national scale, the choices would be far different; the turnover of justices in the Supreme Court of the United States and the eminent domain ruling in Kelo v. City of New London would probably top that list. But our focus is on the appellate courts that sit in Virginia, so our list, necessarily more provincial, bears the marks of what’s important to Virginians (and those in other states within the Fourth Circuit).

This list is necessarily subjective, and reflects my own sense of which stories were most important. Many of you will no doubt have a different view, although I doubt this list will start many barroom fights. (I think I would be flattered if it did.)

Before starting on the inexorable march down the Top Ten, I thought I’d mention just a few of the many stories that almost made the final cut. In no particular order, they are:

  • Davenport v. Little-Bowser, the April decision by the Supreme Court that required the Commonwealth’s Registrar to issue a replacement birth certificate to the same-sex adoptive parents of a child;
  • Omniplex World Services v. US Investigations, handed down by the Supreme Court in September, the most recent defeat for those attempting to enforce covenants not to compete;
  • Norfolk Admirals v. Jones, in which the Court of Appeals ruled that fighting is an integral part of hockey (a question that has no doubt led to several barroom brawls in Canada)
  • Slade v. Hampton Roads Regional Jail, where the Fourth Circuit affirmed the policy of charging pretrial detainees a $1 daily fee to offset the jail’s operating costs;
  • Luginbyhl v. Commonwealth, a challenge to the use of blood test certificates as hearsay (the Court of Appeals granted rehearing en banc in late August);
  • The Mattaponi Tribe water rights cases, involving the interpretation of a Seventeenth Century treaty, and the Supreme Court’s determination of whether the Commonwealth is immune from a suit to enforce it; and
  • Martin v. Ziherl, the January decision by the Supreme Court that struck down the Commonwealth’s anti-fornication statute.

With those out of the way, here are the first two entries in our Top Ten list, with the remainder to follow as the week unfolds:

  1. Appellate rule changes affect rehearings, attorney’s fees claims.

Two significant changes to the Rules of the Supreme Court of Virginia took effect in 2005. Rule 1:1A began on April 1 (no foolin’), and provides that where a party has recovered attorney’s fees in the trial court pursuant to a statute or contract, and the petition for appeal is denied, the appellee can then ask the trial court to award appellate attorney’s fees as well. Note that there is no provision for a successful appellant to get this award; it’s only available where a petitioner loses at the first stage. The practical effect of this rule will be to dissuade some frivolous appeals, but it may also dissuade some potentially meritorious appeals where the appellant has a low risk tolerance.

The other major rule change in the state appellate courts deals with petitions for rehearing. The two courts began a pilot program for calendar 2005 to test whether e-filing would be feasible or desirable. During that year, all petitions for rehearing (not petitions for appeal or other briefs) were required to be filed electronically, as a PDF attachment to an e-mail to the court. The rule provides an exemption only for pro se prisoner petitions and for those Luddite lawyers who could convince the court that they were unable to produce an electronic version of their briefs. (Leave was probably liberally granted to file an old-fashioned paper brief, but it likely came with a scolding to stay current with the times.)

The pilot program was regarded by the courts as a success; the program has been renewed, and will continue on into 2006 and beyond. It is entirely foreseeable to me that e-filing will soon be expanded in both courts, either as an option or as a mandatory requirement. If you own a significant amount of stock in a brief printing company, you may want to start recruiting villagers with pitchforks and torches to fight this looming (but as yet unannounced) development. For what it’s worth, I still advocate using the companies in all but the simplest of filings with any appellate court, and I don’t own any stock in any of them.

  1. The eight million dollar oversight.

When I wrote about this development in July, I began the report, “If there is a more terrifying lawyer story than this one, I don’t want to hear it.” The owners of the Wintergreen ski resort suffered a $8.3 million judgment in a recent personal injury case; evidently its trial lawyers had not seen it coming, as their pretrial settlement offer was reported to be in low five figures. Undaunted, the lawyers made plans to appeal, and hired a very prominent Virginia firm to handle that process. Unfortunately, the young lawyer assigned to file the trial transcript filed only the transcript of the post-trial motions hearing, not of the trial itself. Under the Supreme Court’s inflexible approach to Rule 5:11, that meant that the court could not address any of Wintergreen’s arguments, and the appeal was dismissed without a hearing.

This development offers a great many warnings and lessons, but I must confess that my heartfelt sympathies are with the young lawyer who filed the wrong transcript, no doubt completely inadvertently.  If you practice in an appellate court, what happened in this case should scare the hell out of you.  In a large firm, perhaps one should expect little understanding after a mistake of that magnitude; the consequences were almost certainly severe, a different order of magnitude than if it had been an eight thousand dollar case. The underlying judgment, however, is irretrievably final at this point, as far as I know.

In case you’re wondering whether a malpractice claim can be pressed on this, I suppose it can, but doing so offers one hurdle that is, in my view, likely to be insuperable for the resort. As you may know, there are two components of a legal malpractice claim such as this. One is called “the case” (showing that the lawyer breached the applicable standard of care), and the other is “the case within the case” (showing that if the standard had been met, the client would have won). Proving the case would be simple; the issue probably would not be contested. But proving the case within the case would be virtually impossible; the resort would have to show that if the proper transcript had been filed, it would have won the appeal by getting a reversal. Now, which witness would be called to testify about that? Showing that the Supreme Court would have reversed a given judgment is, in my opinion, something that no litigant can ever do, not because the appellate court is unpredictable, but because I cannot conceive of any competent evidence that could be adduced for this purpose.

Tomorrow: Entries #8 and 7 in the list.

8.  Turf war in the courthouse

This one wasn’t quite scandalous enough to land on “The Jerry Springer Show,” but the prospect of a squabble between a judge and a sheriff is newsworthy enough to make the list. The fact that the Court of Appeals granted en banc review is just icing on the cake.

George Epps is the duly elected sheriff of Petersburg; he landed in hot water when he unilaterally elected to skip out on his responsibilities under a courthouse security agreement he had previously made with the Circuit Court judges. That agreement called for sheriff’s deputies to provide security to the Petersburg courthouse, which also includes the docket administrator’s office and a small (but public) law library. Citing the need to assign his deputies elsewhere, Epps informed the Clerks of Court (but not any of the judges) that as soon as the daily docket was complete, he would pull his deputies to perform other duties.

One of the judges learned one afternoon that the building had no security. She then posted a notice on the door that the courthouse was temporarily closed. Epps saw the notice and removed it. When the judge found out, she –

You can read the rest of the semi-scandalous story here . From an appellate perspective, this case merits inclusion in this list because of a couple of interesting points. First, the sheriff won his appeal, albeit barely. He raised nine separate arguments on appeal, and lost on eight of those. In a published opinion, he obtained a reversal on the grounds that the judge was not a competent witness in his criminal trial, pursuant to a statute. (The statute is for the protection of judges, who might otherwise have to answer subpoenas ad testificandum at the whim of a litigant.) The second interesting point is that the Court of Appeals granted a petition for an en banc rehearing on August 30. Whenever the full court takes up a case, you had better pay attention; the court itself regards these rulings as the strongest authority on the court’s views, for understandable reasons.

The real surprise here is that it was the sheriff’s petition for rehearing that the court granted. You read that right; he got his conviction overturned, but instead of heading back to court for a retrial, if the Commonwealth be so advised, he asked the full court to review his case. Winning the appeal wasn’t enough; he apparently wants to be exonerated, without facing the possibility of a retrial. The case is still pending on the Court of Appeals’ docket; we should be getting a ruling soon.

7.  Your case is dismissed, and we won’t let you tell anybody about it

Try explaining the fundamental fairness of the American system of jurisprudence to Jeffrey Sterling, a covert CIA agent who felt he was the victim of racial discrimination on the job. He received tougher work assignments than agents of other races; suffered disparate treatment; and lost out on opportunities for advancement within the secret agency. When he complained, he was retaliated against, including but not limited to vandalism of his property. As any other American has the right to do, he filed a discrimination suit.

And promptly lost. Not on the merits; he lost because the government asserted the privilege of the state secrets doctrine, which provides the government with a right to a dismissal of any case that would require the disclosure of important state secrets in order to litigate fairly. The identities of Sterling’s coworkers were classified. His geographical area of operation and even the nature of his duties were classified. In short, Sterling would have to do some major blabbing just in order to make out a prima facie case. So the district court dismissed the case after reading two declarations from CIA Director George Tenet; the opinion hints that Sterling wasn’t even allowed to see the documents upon which the court decided to dismiss the case.

If this is ringing any Kafka-esque bells for you, you’re probably not alone. Sterling asked the Fourth Circuit to reverse the trial court’s ruling, arguing that he could still prove his claim, and that it should not, therefore, be dismissed. The appellate court disagreed, and on August 3, affirmed the dismissal. It finds that whether Sterling chose to prove his case by direct evidence or by using the McDonnell Douglas framework, he would necessarily be constrained to present state secret evidence of some sort. “Here, the whole object of the suit and of the discovery is to establish a fact that is a state secret.” And the opinion contains numerous references to the inappropriateness of judges’ reviewing the executive branch’s determinations of what is secret, making this in essence a separation of powers case.

The court expresses some sympathy for Sterling, noting that in cases such as this, he will bear a burden not shared generally by other American citizens. It also points, with a hopefulness that Sterling likely viewed with cynicism, to the fact that the CIA has its own internal EEO process for the resolution of claims. But in the end, the interests of the government trump the rights of this particular individual for his day in court.

Tomorrow: Entries #6 and 5 in the list.

6.  “On further review . . .” Any lawyer who has lost a case has at least toyed with the idea of asking the court to reconsider. In appellate courts, that’s done through a petition for rehearing (discussed previously in item #10 above). Petitions for rehearing are seldom granted in the Supreme Court, and when they are granted, it almost always is in the context of the denial of a petition for appeal. Even then, the odds are long, as the court grants only about one rehearing for every 25 or so petitions filed. Once a published decision is announced, most losing litigants simply give up the fight.

But this year, one losing litigant succeeded. In November, the court vacated its previous opinion in Kondaurov v. Kerdasha, a vehicular personal injury case in which most of the plaintiff’s damages arose from her mental anguish over the fate of her companion dog, which was injured in the collision. The court’s original opinion, issued in September, had struck down a $300,000 judgment for the plaintiff, since it found that her emotional damages should have been measured against those damages that a person of normal sensitivities would have suffered. (The plaintiff had a debilitating condition that made her more susceptible than the average person to emotional trauma.)

According to the rules, a petition for rehearing may be granted if one of the justices who voted with the majority believes that there is good cause for rehearing. The original decision was unanimous – Senior Justice Russell authored the opinion – so any of the justices could have had second thoughts.

This case presents significant issues that could affect the way most personal injury cases are tried in Virginia. In recognition of that fact, the state’s two major personal injury bar associations have each waded in on the case at the rehearing stage; the Virginia Trial Lawyers Association filed an amicus brief in support of the petition, and the Virginia Association of Defense Attorneys filed one in opposition. (In the interest of full disclosure, I must mention that I am on the VTLA’s brief as co-counsel.) The case will be reargued in the March session of the court, and a decision should be handed down in April.

According to a report of the case in Virginia Lawyers Weekly, this is the first time the court has vacated a published opinion in 5 ½ years. When something happens that infrequently, it’s big news when one does hit the wire.

5.  Taking a long, hard look at the rules

Many a trial lawyer who has ventured into Virginia’s appellate system has at some point cursed under his breath at the procedural maze, the unfamiliar rules, the jurisdictional landmines that all too often sink an appeal on some technicality. This perception has helped to drive the creation of a commission that began deliberations in 2005 to study ways in which the rules relating to appellate practice can be changed. One of the reported goals of that commission is to see what can be done about making appellate courts more user-friendly. Justice Lemons chairs the commission, which comprises many illustrious jurists, clerks, and practitioners from across the Commonwealth.

This commission will have a long timeline; it is scheduled to deliberate for a year and a half. By the time it wraps up, we will probably have a whole new Code of Virginia (our statutes are scheduled for a complete recodification in 2007). But in my view, these two projects should be coordinated; many of the rules relating to appellate courts come from statutes (hence the reference to certain “mandatory and jurisdictional” deadlines, which the courts are not free to waive). And in order to change many of the procedures, some statutory changes will have to be made by the General Assembly. Happily, the commission is well aware of this, and will no doubt work closely with the legislature to produce a comprehensive package of reforms.

Now, as to what those reforms will look like, . . . you can guess as well as I can. In case you’re wondering whether the rules will become more like the Federal Rules of Appellate Procedure, I believe that they will not. You probably already know that the rules change on January 1, 2006 to provide for a single form of action in circuit courts. The amended rules for trial courts do, indeed, look very much like the Federal Rules of Civil Procedure. I strongly doubt that this commission will decide that it likes federal appellate procedure better than what exists now, or what the commission can contrive for the future.

Whether the rules do become more user-friendly or not, appellate advocacy will still be a very different animal from trial advocacy. Appellate courts require a different approach to writing and to oral presentations; some commentators have said that it even requires a different type of thinking. That difference is something that no change in rules, regardless of how comprehensive that change is, can ever address.

Tomorrow: Entries #4 and 3 in the list.

4.  Passing the torch

It was a watershed year in the Court of Appeals. Judge Rosemarie Annunziata announced her retirement late in 2004, and was replaced by Judge James Haley, of the Stafford County Circuit Court. If that were the only change, it would hardly make this list. But late in the year, not one but two judges of the court announced that they, too, were stepping down. Chief Judge Johanna Fitzpatrick and Judge Rudolph Bumgardner III each tendered letters indicating impending retirements, effective early in 2006.

Now, three judges out of eleven IS big news, especially when we’ll be getting a new chief judge as part of the bargain. The General Assembly will have the opportunity to appoint replacements in the upcoming session, and with the Republicans in control of both houses, one should not expect the philosophical makeup of the court to shift to the left. As readers of this site recall, I do not engage in speculation as to who may be named to a particular judicial opening. But that hasn’t stopped others from pointing to Fairfax Circuit Court Judge Terrence Ney as a possible appointment to one of the openings. Ney was widely regarded as a frontrunner for the position that went to Haley in 2005; he will probably receive significant interest again this time.

This turnover is particularly significant since the Court of Appeals generally decides cases in three-judge panels. With only eleven judges on the court, the chance of a new judge’s appearing in a given case (including Haley in the term new judge) is substantial. Appellate lawyers who form conclusions about jurists based on their knowledge of the judges’ voting records must now account for three new faces from the bench.

3.  Responding to the double-dog-dare

In 2003, the General Assembly was determined to pass a ban on the procedure sometimes called partial-birth abortion. The legislature’s commitment was unshaken by a United States Supreme Court opinion in a challenge to a Nebraska statute on the same topic. That court held that the Nebraska act was unconstitutional because it did not contain an exception to protect the health of the mother. (The Nebraska statute protected the life of the mother, but contained no exception where her health was at stake.) Undaunted, the General Assembly passed its statute, with no protection for the health of the mother, despite suggested amendments that would have eliminated the problem cited by the high court.  The bill became law.

It wasn’t long before the new Virginia act was challenged in court; in fact, the challenge came in the form of a complaint filed in US District Court in Richmond two weeks before the statute was to take effect. The Richmond Medical Center for Women, which performed some abortions for patients, asked the court to declare that the act was unconstitutional, citing the Nebraska case. The district court obliged, ruling that the plain language of the Nebraska decision prohibited a statutory scheme such as the one crafted here. The Commonwealth appealed, in an effort to salvage its statute.

On June 3, a panel of the Fourth Circuit handed down a strongly worded opinion that takes the General Assembly to task for essentially thumbing its collective nose at the Supreme Court. Judge Michael, writing for the majority, notes with barely concealed astonishment the legislative history of the statute, concluding that the General Assembly knew about the Nebraska decision and simply decided to ignore it. I described this aspect of the court’s decision in a section of my essay on the case, which section I titled, “Hubris.” I have seen no reason to back off that diagnosis in the 6 ½ months since the opinion was handed down.

On September 2, the court issued an order denying the Commonwealth’s petition for an en banc rehearing. Along with that order, Judge Wilkinson wrote an opinion that decries the fact that such an issue gets decided in the courts instead of in the legislature. His sentiments clearly are with the Commonwealth. But after he takes pains to spell out those sympathies, he writes plainly, “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 Stenberg v. Carhart, 530 US 914 (2000) [the Nebraska case]. For that reason, I vote to deny rehearing en banc.” If there were ever a more eloquent paraphrase for “I hate to do this, but I have no choice,” I haven’t heard it.

Other cases, admittedly not many in number, have invalidated statutes. Several factors make this case special, including the hot-button issue of abortions, Judge Niemeyer’s scalding dissent, and Judge Wilkinson’s philosophical quandary. But no other case I have seen this year involves what the courts have found to be, in essence, a conscious disregard by the legislature of what must be conceded to be controlling precedent.

Tomorrow: The Top Two.

2.  “In this corner, weighing in at 139 pages, . . .” Of all the cases handed down in appellate courts in Virginia in 2005, perhaps none was a bigger news story than the Supreme Court’s April opinion affirming the convictions in Muhammad v. Commonwealth, the capital murder appeal by the sniper who terrorized northern Virginia residents for weeks in 2002. In a highly publicized trial, the venue of which was moved from Prince William County to Virginia Beach, Muhammad was convicted of two counts of capital murder plus other related charges. For a time, he committed one of the criminal defendant’s worst possible mistakes, and acted on his own behalf while his court-appointed attorneys sat by and listened to his opening statement to the jury. (Muhammad later had the good judgment to consent to the continued active participation by his counsel, as he took a seat and stayed quiet thereafter.)

Any time someone is convicted of capital murder, the Supreme Court must review the case. This is true whether or not the defendant wishes to appeal; review is automatic pursuant to Code §17.1-313, and there is no petition process. The defendant’s lawyers simply decide which issues to present, brief the issues, and prepare for oral argument.

In this case, they appealed everything they could think of, and perhaps a few more; the brief of appellant lists 102 assignments of error. Some of those were for evidentiary rulings; others related to the jury selection process; many were of constitutional significance. The court waived the customary page limitation, allowing both sides to present comprehensive briefs to address all of the assignments of error.

Unfortunately, Muhammad’s attorneys didn’t address all the issues they identified; a significant number of assignments are deemed waived in the published opinion because the appellant failed to argue them, as required by the rules. Of the remainder, the court rejected each in a 139-page opinion, which is, if not a record, at least the longest opinion of which I have ever heard. (The same thing goes for the 102 assignments of error.)

Aside from the notoriety of the crimes, this case merits a place near the top of the Top Ten for several reasons related to appellate practice. Among those:

  • The number of assignments of error is staggering. The best appellate advice urges fewer rather than more issues; appellate jurists consistently preach to us that they find shorter briefs more persuasive, and fewer issues to be a sign of better advocacy. This case presents a situation in which I completely understand the desire of Muhammad’s counsel to appeal everything they could conceive, given the importance of the case and the gravity of the sentence imposed; I will not second-guess their decision to throw in the kitchen sink. A part of me wonders whether they might have fared better if they had chosen half a dozen of their best arguments and focused major attention on each of those instead of the necessarily abbreviated treatment they had to give to this impossibly large number of issues. But I have not walked a mile in their shoes, and will not criticize their judgment call.
  • After Muhammad’s trial, but before the appeal played out its course, the Supreme Court of the United States handed down its landmark ruling in Crawford v.Washington, in which it largely ended the practice of applying exceptions to the hearsay rule in criminal cases. The Crawford court found that, according to the Confrontation Clause, only live testimony, preserving the right to cross-examination by the accused, satisfies the Sixth Amendment. In Muhammad’s trial, some of the testimony against him came through an exception to the hearsay rule. He accordingly asked the Supreme Court to reverse, to comport with the recent Crawford doctrine. The court declined, holding that he had not preserved the argument by raising it at trial. The conundrum here is that the Crawford doctrine didn’t exist as of the date of the trial, so it would have been hard for his lawyers to cite it to the trial court. This