[Posted March 12, 2016] You’ve noticed that it’s been a while since my last post. That’s due to a couple of factors: the Supreme Court has been deathly silent since its hurried release of opinions and unpubs on February 12, and I’ve been on the road a great deal in the interim. In truth, the actual appellate news field has been reasonably quiet recently. But appellate news has exploded in the past few days. Let’s dig in.

A new justice

On Thursday the legislature elected CAV Judge Steve McCullough to fill the seventh seat on the Supreme Court of Virginia. This ends the hyperpartisan spat over the Governor’s appointment of Jane Marum Roush to the seat, and legislative Republicans’ stalled efforts to replace her with CAV Judge Rossie Alston. The legislators knew that they had to get their acts together no later than Friday, or the Governor would simply reappoint Justice Roush, and that nod would last until February 2017.

Justice-elect McCullough will be a rarity on the Supreme Court: the first former appellate lawyer in a long, long time to sit on the other side of the lectern. He’s had experience with that role on the Court of Appeals, so it won’t be a steep learning curve. For the first time since I was admitted to the bar, we’ll have a justice who’s actually handled appeals for a living.

But what about the previous nominees? Judge Alston is less affected, as he’ll continue to sit as a judge of the CAV. He’s up for reconsideration next year, and I have little doubt that he’ll be speedily reelected.

Justice Roush (I will continue to call her that, just as I’ve done with retired justices) faces a much less certain future. Once upon a time, when the Republicans were trying to replace her last year, she may have been offered Judge Alston’s CAV seat if she agreed to step aside. That ship has sailed; the General Assembly yesterday elected Henrico GDC Judge Mary Malveaux to fill Judge McCullough’s CAV seat. On Wednesday, they elected a new circuit-court judge to Fairfax Circuit, so that bench looks to be full, too.

My uninformed suspicion is that the Commonwealth is about to gain a new mediator who’s in heavy demand, and who might make more money doing that than she did wearing a robe.

I firmly believe that both Justice Roush and Judge Alston are victims. They were used as pawns in a political temper tantrum by politicians who cared not one whit what damage they were doing to capable judges, to dedicated public servants. To people.

I’ll address one last point. Could it be possible that one or the other of the candidates was promised the next available seat on the court? It’s theoretically possible, but I highly doubt it. The next time there’s scheduled to be a vacancy on the court, barring something like an early retirement or a move to a federal court, is 2022, when the chief justice will reach mandatory retirement age. By that time, both Alston and Roush will be in their mid-60s. If you look for an example of a justice who was appointed that late in life, you have to go back to the early 1930s  (Justice Joseph Chinn was 65 at his appointment in 1931), and that was long before Virginia law enacted that mandatory-retirement statute. In any event, none of us can say what the political climate will be in 2022, so even a solemn promise like that might prove impossible to carry out.

How does this replacement affect pending argued cases?

The first thing to know is that there aren’t many of them; when the court gave us a front-end loaderful of decisions on February 12, it left, by my count, only two appeals undecided from those that had been argued up to then. One of them is Johnson v. Commonwealth, a review of a life sentence in a murder conviction; the other is Chesapeake v. Dominion Security Plus Self-Storage, a closely watched eminent-domain case from down here in Tidewater. I know that Justice Roush participated in at least the latter case, and probably in both.

So what happens in those appeals? Well, I wrote last year about the de facto officer doctrine, which legitimizes the rulings made by a judge whose commission later turns out to have been improper. But can the court issue an opinion after the date on which a justice is no longer in office?

I strongly suspect that the answer is yes. Since no sitting justice has been removed since about 1900, we don’t have a lot of direct precedent, but in the more recent past, the court has gone ahead and released opinions after justices have died or taken senior-justice status. For example, Senior Justice Compton died on April 9, 2006. Twelve days later, the court handed down Ogunde v. Commonwealth (271 Va. 639). The late justice not only took part in the decision of that appeal before his passing; he wrote the majority opinion.

Two noteworthy retirements

Virginia’s appellate bar is a small and close-knit group. While we’re technically in competition for incoming business, in reality the group of appellate lawyers here is a terrific bunch. We’re pretty much all good friends, and as a result, appellate practice in the Commonwealth is a great pleasure.

A few days ago, one of Virginia’s very few exclusively appellate lawyers hung up his iPad. My pal Jeff Summers has called it a career after serving our nation (he’s a retired Marine colonel), the public (he served as the New Kent County Attorney for a number of years), and his clients in the private sector, not to mention his work through various bar associations to better the profession. He plans to devote time to some charitable causes (The Boss will not tolerate his simply hanging out around the house), do some traveling, and generally enjoy life.

Jeff, I hope a Marine will forgive my using a Navy expression, but I live in a Navy town, and it’s the best sentiment that comes to mind: Fair winds and following seas, my brother.

The other significant retirement announcement came as a rude shock: Jonathan Goldsmith is ending a terrific nine-year run as The Most Interesting Man in the World. Here was a guy who could parallel-park a train; who won Olympic gold and silver in the same event; who’s so cool that “if he were to pat you on the back, you’d list it on your résumé.”

Dos Equis will shift its marketing focus toward a younger audience, but the memory of The Most Interesting Man will live on in advertising lore. I understand that the company will air one final ad with him, featuring a one-way Mars mission. It fits.

I mention this here because I cannot publicly confirm that the brewer has approached me to begin a series of ads focusing on The Most Interesting Appellate Lawyer in the World. The paperwork on the deal isn’t finished yet, and it would be premature to make any sort of announcement right now.

Things could always be worse

I cried because I had no shoes, until I met a man who had no feet.

Musharrif al-Dīn ibn Muşlih al-Dīn, known as Sa’di, in Gulistān (The Rose Garden)


Back to the SCV dispute: you think we’ve got it bad? Be glad you don’t live in Kansas, Dorothy.

Kansas’s government is effectively one-party. The governor is a strongly conservative Republican, and the GOP enjoys super-majorities in both legislative chambers, so the party can do whatever it wants. (Sen. Tommy Norment has probably been eyeing the Sunflower State with envy for some time now.) The state government has enacted sweeping legislation cutting taxes and government services for several years now.

But the judiciary – specifically the Kansas Supreme Court – isn’t such a deep-red hue. The court has in the past struck down some legislative pet projects, thereby stepping on some powerful toes.

In response, the legislature passed a statutory amendment in 2014 that took away the Supreme Court’s existing power to appoint chief judges of trial courts in the state’s 31 districts. Because that would foreseeably trigger a reversal on separation-of-powers considerations, the legislature added a new statute: if the Supreme Court were to declare that new judicial-appointment law unconstitutional, all state funding for the court system would be stricken.

Are you convinced yet that Kansans have it worse than we do? Hold on; I’m just getting started.

This budgetary threat was designed to engender a game of chicken. Would the court risk the shutdown of a vital governmental service? The justices didn’t blink; they struck down the law anyway, and the legislators backed off.

That was Round 1. Round 2 began last week, when the legislature passed Senate Bill 439, providing definitions in the state’s “high crimes and misdemeanors” statute. That sounds benign enough. But one key clause in the new bill stands out: if the governor signs the bill, supreme court justices can be impeached for, among other things, “attempting to usurp the power of the legislative or executive branch of government.”

Yes, that means exactly what you think it means. It’s a renewed threat to the independence of the judiciary: if you declare one of our laws to be unconstitutional, we’ll drag you in, impeach you, and send you back to the private sector.

Now are you convinced?

I’ve long recognized that while Virginia’s three branches are separate, they’re hardly equal. Our constitution separates powers, but it gives far more power to the legislative than to the executive and judicial branches. For example, the constitution established the court system, but it empowers the legislature to fix the limits of the courts’ jurisdiction. The General Assembly is free to control things from admissibility of evidence to the time limits for prosecutions to how much money an injured plaintiff may recover. The courts have to play by these rules, because the constitution allows the legislature to exercise these functions.

I’m happy to report that we’ve seen nothing here to match the events in Topeka, which appear to me as an appalling overreach by a legislature that’s so well-entrenched, it has nothing to lose. Sure, the legislature here occasionally steps in to “reverse” a Supreme Court decision it doesn’t like, and in most such instances, the justices have to just nod and go along.

But on occasion, the Supreme Court overturns an important legislative enactment without triggering a jurisprudential nuclear winter. One easy example came eight years ago, when the justices struck down an arrangement whereby a regional transit authority up in Northern Virginia would have the power to set tax rates. The legislators understandably didn’t want to raise taxes themselves, for fear of backlash on Election Day, so they delegated that power to the authority. No deal, the court ruled; the power to tax cannot be delegated.

Happily, the legislature didn’t get out the football and look up the nuclear launch codes in response; Virginia’s government carried on as usual after that decision. I get the impression that things would be much scarier for judicial independence if we had Kansas’s legislature.