UPDATE ON RECENT APPELLATE DEVELOPMENTS

 
[Posted October 2, 2012] It’s been a couple of weeks since the Court of Appeals of Virginia handed down any published opinions, and the Supreme Court of Virginia is between sessions, so let’s take a quick look at what’s happening elsewhere on the appellate spectrum.

 

First Monday in October

Yesterday marked the opening of the October 2012 Term of the

Roberts Court

. I will not engage in the fool’s errand of speculating as to whether this term will be more explosive than the past few have been – after all, in more than half of the cases that the Court will eventually hear this year, cert hasn’t even been granted yet. Some recent comments from Justice Ginsburg have led to a wide expectation that the Court will take up the constitutionality of the Defense of Marriage Act; that one will engender some fireworks.

 

Also out of Washington, the Court yesterday asked the government to file a response to a petition for rehearing in Liberty University v. Geithner, one of the twin Fourth Circuit challenges to the Affordable Care Act. As virtually everyone with a pulse knows, the Court adjudicated the constitutionality of that act last June in a controversial set of opinions; the Lynchburg college has again asked the justices to entertain its challenge to portions of the act, despite last year’s refusal of cert. Of the two appeals, I always regarded Virginia v. Sebelius as a tilt at windmills, but Liberty University had a legitimate chance at review. The fact that the justices are at least thinking about the issue again ought to be major news, but somehow it isn’t.

 

Procrastinators, awaken and arise!

Jack Jouett here, reminding you that the MCLE reporting deadline draws nigh. If you still have some blank space in your interim listing of course credits, October is high season for CLE programs, since lawyers notoriously wait until the ninth inning before fulfilling the year’s 12-hour requirement. I noted in a previous post that there are several appellate programs on this month’s busy slate; here’s a recap:

 

Jeff Summers and John Rasmussen are presenting a live programon the Eastern Shore on October 5 (that’s this Friday), dealing with insurance-law issues, federal jurisdiction, and appellate practice. Of particular interest to trial lawyers will be discussions of preservation of issues for appeal (always a vital topic for any lawyer who doesn’t want to be hastily escorted out of an appellate court) and the enormous difficulty of pleading negligence in the wake of AES Corporation v. Steadfast Insurance. Live programs don’t come to the Shore very often, so if you’re up there and you still need four hours of credit, this program will be useful across a spectrum of practice areas. (By the way, if you live here in Tidewater, keep in mind that Cape Charles is at the southern tip of the Shore, so it’s just a short, beautiful ride across the Chesapeake Bay Bridge-Tunnel.)

 

The VADA will present several programs on appellate issues at its annual meetingin Hot Springs on October 11 (next Thursday), including a conversation with a Supreme Court justice and a panel discussion of recent appellate trends in Virginia. You might have to be a VADA member to attend.

 

Virginia CLE’s day-long programon appellate practice returns after a three-year hiatus; this time, the program will be presented at the Richmond Marriott West out in Glen Allen on October 17. This one will feature presentations by experienced appellate practitioners (including the lawyers whom I consider to be Virginia’s foremost authorities on waiver and standards of review), plus plenty of appellate robes and court insiders.

 

Finally, Jeff and John will repeat their Cape Charles presentation in Grundy, at the Appalachian School of Law, on October 19. I really want to express my appreciation to them for bringing live programming to historically underserved areas of the Commonwealth; but now it’s your turn. If you’re in or near one of those areas and you want to see more such offerings in the future, you need to attend these programs, to show that there’s a market for it.

 

Rule amendments in the Fourth

The Fourth Circuit has amended two local rules, effective yesterday. New L.R. 46(b) deals with admission to the bar of the court, and L.R. 41relates to mandates. On the latter front, my appellate colleague Steve Minorhas posted an interesting essay on mandates in the state and federal system. He mentions In re Commonwealth, 278 Va. 1 (2009), a decision that perplexed me when it came down. In that case, the Supreme Court directed a trial judge to conduct an evidentiary hearing before resentencing a defendant. Instead of doing that, the judge simply went ahead and imposed a new sentence. On appeal, the justices ruled that the trial judge acted within his authority, despite the fact that the appellate mandate plainly required a new hearing. I wrote about the case here, back when it was decided. (You’ll need to scroll down to the criminal-law section.)