UPDATES ON RECENT APPELLATE DEVELOPMENTS

 

[Posted March 2, 2011]  Here are several news items to catch you up on what’s been going on in the appellate world recently, plus a few case notes from recent decisions from the Court of Appeals.

 

March session for SCV

Today marks the midway point of the Supreme Court’s March session.  This marks the first session in which Chief Justice Kinser presides from the center chair.  She began the session on Monday by remarking on the passing of her predecessor, the late Justice Leroy R. Hassell, and observing a moment of silence in his honor.

 

This one, unlike many recent sessions, will run a full five days.  Over the last year and a half, the court has shortened the session to four days more often than it’s taken the full five.  I don’t know whether this reflects the new chief’s preference, or if it was a decision of the entire court; nor do I know whether five-day sessions will again become the rule instead of the exception.  Let’s give it a few sessions and see how things develop.

 

Friday will be opinion day for the cases argued in the January session, and perhaps for a couple of opinions held over in January from previous sessions.  As usual, I’ll be here at the keyboard all day, posting analysis of those opinions soon after they hit the wire.

 

Two vacancies remain

The General Assembly ended its regular 2011 session on Sunday without filling either of the vacancies on the Supreme Court – one created by the retirement of Justice Lawrence Koontz and the other by Justice Hassell’s passing.  The reports I‘ve seen indicate that the legislature will fill both seats when it reconvenes in early April.

 

If the two chambers cannot agree on either or both positions, the Governor is empowered by the constitution to appoint the new justice or justices on a temporary basis.  Any such appointment would expire thirty days after the next legislative session begins.  Theoretically, the legislature could refuse to elect any person thus appointed; but in the minds of most people with whom I’ve discussed this subject, the idea of taking a robe off someone’s shoulders for anything short of high crimes and misdemeanors is unthinkable.  The legislature has approved at least the last three justices selected by governors (the chief justice, plus Justices Goodwyn and Millette).

 

Fourth Circuit enters the Digital Age

The Fourth Circuit has announced that it intends to post on its website audio files of oral arguments.  I heartily applaud this move, as it makes the court just a bit more open to lawyers and members of the public.  As I have preached elsewhere, some of the best preparation for your first oral argument (or your first one in a while) is to come to Richmond and watch several appeals being argued.  If you can’t do that, you should at least listen to recordings.  Starting on May 2, you’ll be able to do that from the comfort of your office, just by clicking on a link.  Here’s the court’s announcement, with an invitation to comment if you like.  [Secret hint to the justices of the Supreme Court of Virginia:  This would be a really, really good idea for your court, and for the Court of Appeals, too.]

 

Rule changes for Virginia practitioners

The Supreme Court announced yesterday that it has approved numerous changes to the Rules of Court.  Most of the changes in the appellate sector are explanatory rather than groundbreaking.  The primary thrust of the appellate rule changes is to clarify what it means when a rule established a page limit and a word-count limit for briefs.  In that event, the court has always allowed practitioners to meet either limit.  For example, petitions for appeal are limited to 35 pages or 6,125 words (Rule 5:17(f)).  If you file a brief that meets the word-count limit, it’s rules-compliant even if it stretches to 37 pages.  The new rule changes end any doubt as to whether you have to meet both requirements by adding the clause, the longer of just before the dual limits.

 

By law, the new rules can’t take effect for sixty days (that, coincidentally, will also be May 2), but in this case, it doesn’t matter; these new provisions are, to borrow a phrase from the legislature, “declarative of existing law.”

 

For those attorneys who practice in other courts, there are plenty of changes to parts of the rules other than 5 and 5A.  For example, Rule 1:1 gets a modest addition, to reflect the coming age of electronic case filing.  The existing rule concludes with this sentence:  “The date of entry of any final judgment, order, or decree shall be the date it is signed by the judge.”  The new rule will add, at the end of that sentence, this clause:  “. . . either on paper or by electronic means in accord with Rule 1:17.”  Go to this link and click on the entries for March 1, 2011, to see the text of all the pending changes.
 

Three recent CAV opinions

Let’s catch you up on the latest published opinions from the Court of Appeals of Virginia.  We got one last week and two yesterday:

 

Administrative law

Horne v. Virginia Real Estate Board features several fact-specific rulings, but as I see it, only one matter of sufficient precedence to get this one published.  It’s an appeal by a real-estate agent who was sanctioned by the Board in connection with a closing that collapsed soon after the ink was dry on the contract.  The Department of Professional and Occupational Regulation (known lovingly as DPOR to those who favor acronyms) investigated four charges against her, and dismissed two of them, but found violations in the other two.  It imposed modest fines and terms of licensure probation.  The agent appealed to the circuit court and asked for an award of attorney’s fees for defending all four charges.

 

The circuit court affirmed and refused to award fees.  It rejected the fees for the two charges it affirmed, for obvious reasons (you don’t get attorney’s fees when you lose), and it rejected the rest of the claim because, it found, you can only get fees for charges that are pending in the circuit court, not those that were “dismissed” below.

 

Last week, a panel of the Court of Appeals reversed.  It found the two disputed charges to be unsupported by the evidence (a conclusion I wholeheartedly embrace; these charges never should have been brought, based on the facts set out in the opinion).  That’s the part of the case that’s probably not worthy of being called precedent.  It also remands to the trial court for a calculation of attorney’s fees for the two disputed charges, since the agent is now the winner.  Again, there’s no new ground plowed here.  But the appellate court affirms the denial of fees for the two charges on which the agent prevailed at the administrative level.  That’s the part that gets this opinion published.

 

The ruling, by the way, makes perfect sense in the context of the statutory fee-shifting language:  “In any civil case brought under Article 5 . . . of this chapter . . . in which any person contests any agency action, such person shall be entitled to recover from that agency . . . reasonable costs and attorneys’ fees . . .”  The court is only entitled to shift fees where the prevailing respondent contests an agency action.  The agent didn’t contest the dismissal of the other two charges at the agency level, so those fees can’t be awarded here.

 

Criminal law

There’s a short opinion this week in which, reading between the lines, the CAV panel found the defense lawyer’s approach to be hyper-technical and even clever; but in the end, it’s unavailing.  The case is Lampkin v. Commonwealth, involving a conviction for a third offense of domestic assault and battery.  Based on the opinion, there’s little question that Lampkin did it, or that he had been previously convicted.  But one of the prior conviction orders was unsigned.  That happens sometimes, and the legislature has made provision for authentication of such sentencing orders, as long as a sort of omnibus order is signed by all of the court’s judges on the last day of a given court term.

 

With regard to the prior at issue here, the prosecution introduced an order signed on the last day of the previous term, and one signed on the last day of the term that included the conviction.  Or did it?  Lampkin argued that there was no evidence of the date on which the term began, so we can’t be sure that the whole term was included.

 

Nice try, the CAV figuratively write in affirming the conviction, but no cigar.  The court can take judicial notice of the beginning dates for each court’s term – it’s right there in the Code – and that information establishes the necessary dates.

 

The other criminal opinion, also released yesterday, is Young v. Commonwealth.  It’s the most intriguing issue of this group, and it also generates the only disagreement among these three appeals (Judge Haley writes the majority, joined by Judge Kelsey; Judge Humphreys dissents).  The issue is when, exactly, an arrest occurs.

 

Young was injured in a collision one autumn evening in Caroline County, and was treated by rescue personnel at the scene.  They decided that his injuries warranted transport to a hospital.  A trooper arrived at the scene and saw many of the classic signs of DUI; it didn’t exactly hurt the investigation when he found at least one open container of alcohol in the wrecked car.  The trooper decided to follow the ambulance to the hospital.

 

It’s what happened there that produces the fireworks here.  While the suspect was lying in a bed with IV tubes in his arm, and well inside three hours after the crash, the trooper intoned the classic phrase, “You are under arrest,” followed by the recitation of Miranda rights and a description of the implied-consent law.  Young agreed to have a blood sample drawn; that sample, when analyzed, showed him to be thoroughly pickled (.22%, nearly three times the legal limit) and in no shape to be behind the wheel.  Once the sample was drawn, the trooper charitably issued a summons (instead of retaining the driver under arrest) and left Young in the capable hands of the hospital staff.

 

The question here is whether the trooper arrested the driver before the blood sample was drawn.  If so, he’s guilty; if not, then the implied-consent statute doesn’t kick in, and the test results are inadmissible, leaving the prosecution’s evidence somewhat wanting.  The majority finds that the driver was indeed under arrest, despite the fact that the trooper never clamped a firm hand down on the driver’s shoulder to symbolize the fact.  You see, merely announcing, “You’re under arrest” isn’t enough to effect an arrest; if it were, an officer could holler the phrase at a fleeing felon, at which point the unfortunate ne’er-do-well would also have an escape charge.

 

The majority and dissent joust over whether it’s necessary for any physical touching to occur, and whether that would even be a good idea with a guy who’s wired up with IV lines and being actively treated by medical personnel.  The discussion is long, so I won’t repeat it here, but the opinion is well worth reading, just for the intellectual activity of sorting out the competing position.  There are also zingers on both sides, making this opinion a fun read in addition to being the latest word from the CAV on this issue.