[Posted August 3, 2016] Do you figure that all the important appellate rulings appear in the reporters? Think again. Here are three relatively recent unpublished appellate developments that are worth noting. For each, I’ll mention how it will affect your practice.

Brandon on steroids

When the Supreme Court decided Brandon v. Cox in 2012 – can it be four years already? – the appellate bar was abuzz. This is the case in which the Supreme Court held that if a trial court doesn’t rule on a timely filed motion to reconsider before it loses jurisdiction, the arguments in the motion are waived for appeal. The justices insisted that the judge has to actually rule (or, in the language of the opinions, have an opportunity to rule) on an issue in order to enable appellate review. The Supreme Court noted that the appellant – who had been pro se at trial – had failed to schedule a hearing that would have enabled her to get a ruling.

In a petition for rehearing in the Supreme Court, the now-represented appellant pointed out that Rule 4:15 forbids litigants from noticing motions to reconsider; only the court can do that. The Supreme Court was therefore chiding her for failing to do something that its rules forbade her to do. After seeing this, the court revised its initial opinion, but it still insisted that the appellant get a ruling somehow. The opinion didn’t say how. Hence the buzz.

Let’s fast-forward to the case of Newport News Shipbuilding Employees Credit Union v. Busch. The case went to trial in late October 2014, at which time the judge struck the evidence and dismissed the case. Except no order got entered and the action lay dormant on the circuit court’s docket.

Three weeks after the oral ruling of dismissal, the losing party (the credit union) moved the court to reconsider. In obeisance to Rule 4:15, it didn’t notice a hearing; instead it awaited a ruling on the motion.

Three months later, in February 2015, somebody at the courthouse fell awake and realized that there was no dismissal order. The court entered one, and the credit union timely noted an appeal. But the order said nothing about the motion to reconsider. Finally, in late April, the court entered another order formally denying the rehearing motion.

Anyone who’s survived Appeals 101 knows that the April order is hopelessly late; it came down far more than 21 days after the February final judgment, so it’s void. On June 16, 2016, the Supreme Court entered an unpublished order, ruling that review of the motion to reconsider is procedurally defaulted. On page 3 of the order, the court notes that “the circuit court lost jurisdiction of the case before giving any indication that it was aware of [the credit union’s] motion ….” That, in turn, leads the court to conclude that the record doesn’t show that the circuit court had an opportunity to rule on it.

In Brandon, the motion to rehear was filed something like nine or ten days after final judgment. That’s a timely filing under Rule 1:1, but it leaves only a week and a half to get a ruling and a signed order. It’s certainly plausible that the judge may not have known that the pro se plaintiff wanted additional relief in that case.

But in the 2016 appeal, the motion was filed three months before final judgment. It was sitting there in the court’s file all that time, with the credit union’s being forbidden to set a hearing; powerless to do anything but await a decision. Someone saw the file and noticed that there was no judgment order, but somehow overlooked the most recent filing in the case.

There’s an ironic denouement to this order, one that won’t be available to most similarly situated appellants: the justices go ahead and analyze the credit union’s argument anyway, and reverse, sort-of as the credit union had asked. How can that be, when the court has just ruled that the issue wasn’t preserved? It’s because the argument in the motion to reconsider implicated the trial court’s subject-matter jurisdiction, and that kind of defect can be raised at any time, including for the first time on appeal.

How it affects you

The Brandon conundrum has generated plenty of discussion among the appellate bar ever since the court decided it. What can an appellant possibly do to comply with the Supreme Court’s insistence that she must somehow ensure that the record is sufficient, when the Rules of the Supreme Court prohibit her from being proactive? There are some excellent minds among my colleagues in the appellate bar, but no one has been able to come up with a satisfactory answer. The credit union’s position here illustrates that this problem – one created by the rules; not by statutes – will continue to vex appellants who cannot achieve what the court requires.

That being said, here are a few imperfect solutions that you might try if you find yourself in this unpleasant position:

  • Prepare two orders, one granting your motion and one denying it. Send both to the judge and ask her to please enter one of them before the court loses jurisdiction. (Go ahead and specify that date in your transmittal letter, so she doesn’t have to try to figure it out.)
  • Notice a hearing for entry of the order you oppose, assuming the court hasn’t already done that. Get a court reporter, and at that hearing, mention that you have a motion to reconsider pending. Ask the judge whether she would like to convene a separate hearing to decide those issues.
  • Call the judge’s law clerk or secretary and mention the situation. Explain that you’re not allowed to set a hearing, and ask that your request for a hearing – or at least a ruling – be passed along to the judge.

Finally, if your case is in a relatively rural venue — perhaps a circuit that contains four or five counties — keep in mind that the judge may not return to “your” county courthouse for several days or even a couple of weeks. Find out where his primary chambers are, and send him a copy of what you file.

The post-argument brief

Last month I traveled to Richmond to watch the historic arguments in Howell v. McAuliffe, about which I wrote extensive analysis recently, and Edwards v. Vesilind, the challenge to partisan redistricting in the General Assembly. Each argument took a full hour – 30 minutes a side – as the justices explored complex issues that bled from law into politics.

The lawyers representing the senators in Edwards decided after oral argument that they wanted to beef up their response to a question on a particular issue. (My immediate reaction to that is, “Join the club, pal.” We all think of a better answer we could have given. That revelation usually comes during the drive back to the office.) But rather than shrug and accept life’s imperfections, the lawyers drafted a detailed letter – a page and a half, single-spaced, with plenty of case citations – purporting to “clarify” their position on a given issue.

Many lawyers don’t know that in certain circumstances, you can indeed submit a letter to the court after briefing and even after oral argument. Probably the most common is a very simple correction of a typographical error or of an oral misstatement. For example, if Justice X asks you on what page of the appendix she’ll find a certain document, and you tell her incorrectly that it’s page 402, no one is likely to fuss if you write the next day and say, “I’m sorry; it’s actually page 302.” I suspect that the court will appreciate that, as it saves the justices work.

The other authorized supplement is contained in the Rules of Court. Rule 5:6A, which just celebrated its first birthday last month, allows you to file a very short letter if you learn of “pertinent and significant authorities” after briefing or oral argument. The rule contains some sharp constraints on the letter, and notes that the justices may ignore it if it looks like you should have known about the material before your brief or argument. The provision is not carte blanche.

In response to the senators’ letter, the Clerk of the Supreme Court wrote to inquire if this was a Rule 5:6A letter. No, it isn’t, the lawyer assured her. Promptly after that, the Clerk notified all parties that since there was no authority for the submission of the new material – which essentially constituted a fourth brief for the appellants – the chief justice had directed her not to distribute it to the justices. To the best of my knowledge, none of the seven justices knows what’s in the letter. Also to the best of my knowledge, the Clerk’s letter will not make its way into Virginia Reports.

How it affects you

For your practice, familiarize yourself with the new rule, and with what it does and doesn’t allow you to file. Don’t assume that you can insert your new killer answer after the argument’s over; you won’t get anywhere. The rule is especially helpful if a court hands down a particularly salient new decision after you file or argue; the justices are going to want to know about that. But stick to the limits imposed, and don’t convert an informative letter into a quasi-brief.

Incidentally, there’s a parallel rule in the CAV: Rule 5A:4A. In both rules, there’s a provision for a short response by the opposing party.

A GVR in the SCV

Appellate practitioners are familiar with the two-step process of getting a merits decision in the Supreme Court of Virginia. The appellant files a petition for appeal; a panel of justices considers that petition and a brief in opposition, listens to a short oral argument, and then decides whether to grant the writ. If the panel refuses it, then the appeal is over (subject to a petition for rehearing). If the panel grants the writ, the parties re-brief the case, and then jointly appear for an oral argument before the full court. Only after that does the court issue a decision on the merits.

Until last week, I was aware of no shortcuts in this process. For example, the Supreme Court of the United States often uses a process that’s abbreviated GVR, where the court grants certiorari, vacates the judgment appealed from, and remands the case for reconsideration, usually in light of a new decision by the appellate court on the same or a similar issue. They do it all in a single order. That process, I had assumed, was exclusively federal; I had never seen the Supreme Court of Virginia do anything like that.

You’ll note the past-perfect tense, indicative mood, in the previous paragraph. All that has changed. On Wednesday, the justices issued a short unpublished order in an eminent-domain case that awards the petitioner an appeal, reverses the judgment below, and remands the case to the trial court for further proceedings in light of a comparable decision issued in mid-June. There’s no second round of briefing, and the lawyer for the appellee never got to address the court on the merits. (Only counsel for the appellant speaks at writ panels.)

I’ve since learned that while I never knew of this procedure before, the court actually does employ it perhaps once or twice a year, often in prisoner habeas appeals. I can’t say whether this signals a new willingness by the justices to cut back on the merits docket in this way when the court believes strongly that the judgment needs to be reversed; but I wouldn’t be surprised if this is the first in an increasing flow of such orders.

Two final points: First, the rules in the Supreme Court technically allow a unanimous panel to reverse a judgment on its own, without consulting the other four justices. See Rule 5:3, describing the difference between the en banc court and “divisions,” which we call panels. “If the Justices composing any division shall differ as to the judgment to be rendered in any case, … the case shall be reheard and decided by this Court sitting en banc.” This provision carries out Code §17.1-308, which allows the Supreme Court to sit in divisions, and states that it takes the agreement of three justices to make a decision the ruling of the court. Under the statutes and rules, a unanimous panel can decide the case without an argument on the merits before the full court.

That being said, I believe that all seven members of the court at least got to touch this decision. By all accounts, this is a very collegial set of justices, and I doubt anyone would want to inspire resentment. I’ve never heard of a merits reversal by a panel, though the rules and statutes do allow that if the panel is unanimous.

Second, unlike the June decision, the case decided last week contained a jurisdictional issue that could have deep-sixed the appeal. The appellee contended that the appellant had omitted from the appeal a party that the eminent-domain statutes mandate be included in the litigation. The justices’ short order mentions nothing about that issue, so it’s rejected tacitly. Theoretically it could find its way into a merits decision in another case, but the justices were not going to allow it to hold up this reversal.

How it affects you

I’ve always urged appellees not to pull any punches in their briefs in opposition. The writ stage is where the appellee’s advantage is greatest: in civil cases, the court refuses the writ (thereby giving the appellee an automatic win) 85% of the time. Once the writ arrives, the appellee loses, on average, about 60% of the time, so an appellee should do everything he can to make the strongest possible argument at the writ stage. You should never hold a winning argument in reserve, assuming you can raise it later before the full court; use the tremendous advantage you have at the writ stage.

Now we have a new and ominous reason for my advice: you may never see a merits stage.