THE TOP APPELLATE STORIES OF 2016

(Posted December 30, 2016) It’s been a few years since I prepared an end-of-year summary. Those retrospectives were always fun, so now that the last opinions are in, I may as well take a look back over Virginia’s appellate developments in the course of the year that’s now drawing to a close.

If this website were named American Appellate News & Analysis, the story of the year would obviously be the extended vacancy on the Supreme Court of the United States. But I’ll let the good folks at SCOTUSblog give that topic a try, if they see fit. Perhaps The New York Times’s principal court-watchers, Linda Greenhouse and Adam Liptak, might give this topic a spin, but we’ll stay on the good side of the Potomac.

Appellate day of the year: July 19. Normally you won’t find the justices within miles of Ninth and Franklin in mid-July; they’re at work in their chambers across the Commonwealth. (Justices Mims and Powell, both of whom live in the Richmond area, might have their principal chambers there; I’m not sure. The others are scattered across the map.) But on this sweltering day, the court convened a historic special session to consider two important cases with major political implications: Howell v. McAuliffe and Edwards v. Vesilind. In the former, the court issued a writ of mandamus to undo the Governor’s blanket restoration of civil rights to 200,000 former felons, requiring him to act case-by-case instead. In the latter, the court reversed a finding of contempt against several legislators who had refused to turn over their correspondence with the Division of Legislative Services and with an outside consultant, all relating to litigation over partisan redistricting.

I simply could not resist the allure; I traveled to Richmond, got in line extra-early, and got a reasonably good seat in the courtroom to watch the arguments. This was history and I had to see it. I had plenty of company, as a number of legislators and other dignitaries came to watch; even with plenty of added temporary seating, the courtroom overflowed. The argument quality was high, as you can hear for yourself by listening to the audio recordings on the court’s website.

I’ve written about both decisions here and I won’t repeat that analysis now. I’ll mention only that the justices plainly had good political sense in the civil-rights decision, ruling against the Governor without actually issuing a writ of mandamus directed to him. (The writ commanded several of his executive officials instead.) And while I continue to regard partisan redistricting as an ugly stain on the good name of our Commonwealth, the justices’ resolution of Edwards merely sent the case back to the circuit court for eventual trial; unlike Howell, that story isn’t over.

Appeal of the year: It’s tempting to list Howell v. McAuliffe due to the sensational nature of both the proceedings and the subject matter. But you have a right to expect variety here; and besides, Howell wasn’t an appeal at all but an original-jurisdiction proceeding. Instead, let’s turn to the October 27 ruling in Elliott v. Carter, a wrongful-death claim based on a Boy Scout’s drowning. Five justices concluded that the circumstances of that case – a Scout peer leader who led a young scout out along a sandbar into the middle of the Rappahannock River and then left him there to drown – did not rise to the level of gross negligence. The majority ruled in favor of the peer leader as a matter of law, in large part because he had tried to swim back out – 150 yards out – in response to the younger boy’s panicked cries of distress.

The basis of the majority’s ruling lies in one of the jury-instruction descriptions of gross negligence: the “want of even scant care.” But by focusing on that, the court turned its collective back on another classic definition of gross negligence, conduct that would shock fair-minded people. Arguably that test for gross negligence vel non is now out of Virginia jurisprudence, though the court didn’t come right out and say that. Justice McCullough’s dissent points out that a person who leads a helpless victim into danger shouldn’t be able to escape liability by trying to help after it’s too late; but that sensible contention fell on deaf ears.

This ruling will foreseeably influence future litigation. It establishes for the first time that a defendant who acts grossly negligently can “purge” himself of that gross negligence by making a too-late, even half-hearted, effort to help afterward. The example I used in my analysis was a driver who knowingly drives the wrong way in traffic, causes a head-on collision, and then calls 911 afterward. I don’t believe you can convert gross negligence into ordinary negligence by the simple expedient of offering ineffective aid after the fact.

In case it isn’t obvious, the peer leader’s conduct shocked me; I would have regarded this as an obvious jury issue. I suppose this ruling means that I can no longer consider myself fair-minded.

Appellate minutia of the year: This one’s very recent – this month, the justices quietly changed the rule limiting your choice of fonts for use in Supreme Court briefs. This move came just over a year after the court itself changed the font in which it hands down slip opinions. Previously those opinions came out in clunky Courier, which mimics the output of an old typewriter; but beginning in September 2015 the court switched to what looks like Times New Roman. Nowadays, lawyers can choose from among twelve permissible fonts (including TNR) for their filings.

Opinion day of the year: Also in September 2015, the court stopped holding its opinions for simultaneous release on six predictable days per year. Probably because of the number of former Court of Appeals judges now on the Supreme Court, the justices adopted the CAV’s practice of releasing opinions as they become ready, one day per week. This complicated my life significantly; previously I set aside the six opinion days two years in advance, but now I had to plan for as many as fifty opinion days.

Fortunately it’s proved to be manageable, and for some lucky litigants, it’s meant getting a ruling a week or two earlier than usual. But one opinion day in 2016 was unlike any other. On February 12, the court handed down ten published opinions and five unpublished orders – by far the busiest day of the year – deciding fifteen appeals that had been argued just four weeks earlier. Especially compared with the previous seven-week pattern, that’s a lightning pace.

Why does this one stand out? Why the “roush to judgment”? Because the Governor’s interim appointment of Justice Jane Roush was set to expire on February 13, and the court didn’t want any challenges to the validity of its rulings that happened to include her. That, in turn, leads us to Virginia’s …

Appellate story of the year: The filling of the seventh chair. I don’t have to recount this story in detail for any of my readers, as I’ve written on it extensively. And it was a saga. Justice Millette’s retirement in the summer of 2015 gave the Governor the opportunity to name an interim replacement to the Supreme Court, since the legislature wasn’t in session. He did so in early August, naming Fairfax Circuit Court Judge Roush to the vacancy. Legislative Republicans initially pronounced her well-qualified, but that lasted a matter of hours before those same Republicans decided to rebel and try to seat someone else, because the Governor hadn’t danced the proper steps to the Virginia Governmental Reel.

The legislators’ efforts to replace her in a summer special session failed when one Republican Senator couldn’t bring himself to unseat a sitting, qualified justice – something that hadn’t been done since the William McKinley Administration. The Governor reappointed her, but that expired in February, and by then the newly constituted General Assembly had settled on CAV Judge Steve McCullough for the seat. Because Justice Roush’s circuit court seat had been filled and she had no bench to return to, she “graduated” to what I trust is a lucrative mediation career.

*   *   *

What’s on tap for 2017? Well, don’t expect any more changes in judicial personnel in the appellate courts. The Supreme Court is set at least until the chief justice reaches mandatory retirement age in a few more years, and as far as I know there are no looming retirements in the CAV. Fourth Circuit judges are appointed for life, of course, so their departures are almost always voluntary retirements.

As for rule changes, those are hard to forecast, but I expect the state appellate courts to continue to evolve over time into a paperless e-filing system, as the Fourth has been for years. I doubt the courts will trim back oral arguments any further – doing so would require that they install a conveyor belt behind the lectern, and that would take a budgetary allocation – but I’ll watch the website with a nervous eye. Existing rules may get a tweak here and there, such as with the recent shift of the partial-final-judgment rule to Part 1 of the rules. As usual, disgruntled litigants may head across Ninth Street to seek legislative “reversal” of a particularly galling appellate decision.

And as for this website, please be assured that I have no plans to change. No paywall; no pop-up ads; no domineering supervisor who wants to edit out my appellate jokes. We’ll mark our twelfth anniversary in a couple of weeks, and I intend to go on posting analysis, leavened with a bit of wit where I can, and let you know how today’s decisions will affect your jury trial next week or your oral argument in the next session. Thanks for riding along this year; health, happiness, and prosperity to each of you in 2017.