TERROR THREAT SHUTTERS SUPREME COURT, COURT OF APPEALS

 

 

(Posted January 18, 2021) Early Friday afternoon, someone called the clerk’s office of the Supreme Court of Virginia and reported that a bomb was in the building. This prompted an immediate evacuation. Bomb-sniffing dogs combed the building but found no explosives. This terror threat was empty. The building’s staff was allowed to return to work later that afternoon.

The FBI warned us this would happen. After the January 6 insurrection at the U.S. Capitol showed how real was the threat to American constitutional democracy, the bureau issued a bulletin on January 10, alerting state and federal authorities of plans for armed protests in all 50 state capitals. The bulletin forecast actions starting January 16; Friday’s call came a day early, based on that timetable.

The same afternoon, Chief Justice Don Lemons entered a judicial-emergency order closing the courthouse – which houses the Court of Appeals and its clerk’s office in addition to the Supreme Court and its clerk – from Saturday, January 16 through Thursday, January 21. Only three of those dates are particularly meaningful in this context, because the building is customarily closed on weekends, and today is a state holiday.

The chief justice’s action is perfectly sensible. The reason behind the need for it is not. Only once before in our nation’s history has an election generated overt challenges to the rule of law and to our electoral system. That sparked the worst war in our history. In all other elections, the losing party has accepted the outcome, however grudgingly, and has done the responsible thing: prepare for the next election and try to win that one. This is one of the norms that has held our nation together for nearly two and a half centuries.

As we’ve seen in the past four years, our norms aren’t what they used to be. Perhaps it would be better to phrase it as, those norms don’t carry the weight that they used to. The president has taken delight in ignoring those norms, including the two that the authors of How Democracies Die regard as the most crucial: mutual tolerance and forbearance.

The president’s scorn appears to have been contagious; now his supporters feel no compunction about using terrorism – “The use or threat of violence to intimidate or cause panic, esp. as a means of achieving a political end”; Black’s Law Dictionary, 10th ed. at 1701 – to overturn the recent election. Judging from the number of National Guard personnel in the District of Columbia right now, it would seem that those supporters will be unable to prevent the inauguration of president-elect Biden on Wednesday. Hence their decentralized approach to terror: spread it around the nation.

I’m a hundred miles away from Capitol Square in Richmond. The bomb hoax didn’t affect me directly. But a lot of people who work in that building are folks I care about deeply. I have plenty of friends who work there. Some wear robes, but most don’t; they’re clerks and court executives and librarians and receptionists and Capitol Police officers and more. More fundamentally, if you’re a Virginian, and especially if you’re a Virginia lawyer, this was a bomb threat against you. It was a threat of violence against the heart of the civil and criminal justice system in Virginia.

Civilized society created the courts system as a means of peaceful resolution of disputes. The alternative, self-help, could predictably lead to violence on a regular basis. This is the painful irony of these violent threats – in the name of seeking political power, they seek to deprive us of the means to peace.

The clerk’s offices will be functioning this week; staff will be working remotely from their homes. You just can’t pay them a visit. The judicial-emergency order states that if anyone needs an extension of time because of the building closure, “such extensions shall be liberally granted upon appropriate motion.” Note that this means you don’t get an automatic extension under Code §1-210; you have to ask for it.

 


NOTES ON THE DAWN OF A NEW APPELLATE YEAR

 

 

(Posted January 7, 2021) The turn of the calendar means that a dreadful year (by most accounts) is safely in the rear-view mirror. This looks like a good occasion to look around and see what’s going on in the world of appeals.

 

Final David-Goliath Index of 2020

In the final quarter of last year, we saw five published decisions that fit the parameters of the David-Goliath Index. Goliath took the gold medal in four of those. That gives us a year-long total of 13 wins for David and 31 for Goliath. The final D-GI is thus 30-70.

If that seems lopsided to you, please note that this has been a solid year for our Davids. In the previous four years, Goliath won 78% of the time. Overall, our Big Guys have been winning three appeals for every one the Little Guys win over a five-year period.

 

Preliminary caseload indicators in the SCV

The justices issued 48 published opinions, 7 published orders, and 28 unpubs in 2020, for a total of 83 merits decisions. The court received oral argument in 82 granted cases over the course of the year.

If you think that those are small numbers, your Jedi sense serves you well. The size of the merits docket is way down from the heady days of about 15 years ago, and the number of published decisions is the lowest of which I have any record. My records go back to 1965.

Get ready for a new record a year from now. The court will convene next week for a 14-case session. But by the April session at the latest, and possibly as soon as the March docket, the effects of the judicial emergency will kick in, dramatically reducing the size of merits dockets simply because there are very few final judgments coming out of circuit courts. I had hoped that the Robes would grant more writs to preserve the image of busy merits dockets; but I think I’m doomed to disappointment there. In sum: 2020 was a historically bad year for appellate business, and 2021 will be even worse.

In 2020, SCV Clerk Doug Robelen opened 1,571 new records. That’s a drop of 10% from the 1,760 new filings in 2019. And remember, 2021 will be worse.

 

CAV published-opinions count

The Court of Appeals of Virginia issued 71 published opinions in calendar 2020. The previous year saw an abnormally high figure of 86; the 2020 figure looks to be a regression toward a likely mean. For comparison purposes, the court handed down 66 published opinions in 2018, so 2019 really looks like an outlier.

I’ve pondered whether the CAV will also suffer a retrenchment in overall business volume. My best guess is that it will, but likely not as dramatic a drop as the one on the other side of the building. Three-fourths of the CAV’s docket is criminal appeals, and as courthouses reopen across the Commonwealth, those courts will give priority to those cases. The other two major components of the CAV’s docket, domestic relations and Workers’ Comp, don’t require juries, so they may bounce back more quickly, too.

 

Close of a remarkable career

My appellate pal George Somerville of Harman Claytor in Glen Allen has decided to call it a career. I’m happy to report that there’s no ill-health component to this decision; he simply concluded that it was time.

Of all my friends in the appellate guild, I think I’ve known George the longest; we met perhaps 25-30 years ago when he and another lawyer from his firm came to the Virginia Beach City Attorney’s Office to give us some in-house training in litigation, including appeals. George could speak authoritatively, having clerked for one of the giants of the federal appellate bench, Judge Ruggero Aldisert of the Third Circuit. We became friends then and stayed that way without interruption ever since.

The appellate bar is thus a bit poorer today. The silver lining, for those of you who sensibly aspire to join us, is that there’s a bit more room at the top now. As usual when one of my pals retires, I’ll borrow a Navy term because I live in a Navy town: Fair winds and following seas, my brother.

 

Remote oral arguments

All three appellate courts that meet here in Virginia continue to operate with closed courtrooms. That is, all oral arguments are conducted remotely, with no one in the actual courtroom. The Court of Appeals of Virginia will continue to do that at least through April 30. The SCV announces its plans session-by-session; next week’s session is definitely remote, and my best guess is that the March session will be, too. The Fourth Circuit will entertain remote arguments in its upcoming session running from January 25-29.

 

Expansion of CAV jurisdiction on the horizon?

I expect the upcoming General Assembly session to take up a bill to revolutionize the appellate system in Virginia. The bill would effectively give us a parallel to the federal system, where each losing trial-court litigant gets one of-right appeal in the Court of Appeals, followed by certiorari review in the Supreme Court.

There are still plenty of details to be worked out, and I’m not about to start counting chickens. But in my view, this would be an extraordinarily good move. Virginia is alone in the Nation in not providing an appeal of right to every appellant. Alone in these United States, almost all appellants here must first beseech the appellate court to take the case. Our litigants deserve better than that. Litigants in 49 states already get better than that.

Because of its profound effect on our field of practice, I intend to monitor this bill after it’s filed and will report on it when I get news. If it passes, appellate practice could grow significantly, as more losing litigants might decide to pursue an appeal without the need to face the daunting hurdle of getting a writ.

 


ANALYSIS OF DECEMBER 17, 2020 SUPREME COURT OPINION

 

 

(Posted December 18, 2020) I’m a day late in getting to analysis of yesterday’s Supreme Court opinion in Palmyra Associates v. Commissioner of Highways. I have a decent excuse: I spent all day in an actual courtroom with an actual judge hearing actual witnesses. No, really; I did.

Palmyra Associates is an eminent-domain appeal involving an intersection project in Downtown Palmyra, in Fluvanna County. The Commissioner decided to convert the previous conventional intersection into a roundabout. (I always thought that roundabout was a British term for what we Yanks call a traffic circle. But I suppose its appearance in a published SCV opinion means it’s arguably mainstream here now.) Palmyra Associates owned a large tract at the intersection, and the project claimed about a third of an acre from it for the take and two easements.

The landowner designated one of its owners as a trial witness, indicating that he would testify to a figure of $545K for damage to the residue. The Commissioner convinced the trial court to exclude any such testimony in limine, because it was based on the loss of a one-acre pad site for future development.

The owner still got to testify at trial; he opined that the residue was damaged by the coincidental figure of $545K due to a 25% damage to the front 5.5 acres of the land. He valued that land at $2.2 million, and when you do the math, sure enough, that comes out to $545K.

The condemnation commissioners returned a split report. Three of them, those who had been nominated by the landowner, reported take compensation of about $107,000 plus $350,000 in damage to the residue. The two commissioners nominated by the condemnor reported the identical figure for the take, but residue damages of only $125K.

At this point, my mind is screaming at these folks to resolve the $225K difference peacefully. Perhaps they tried, but they failed. The Commissioner filed exceptions, arguing that the property owner’s testimony should have been struck, since it obviously matched his opinion that the trial court had excluded before trial. The court then invited the parties to suggest an appropriate course of action: “confirm the award of the take only, or grant a new trial.” The parties agreed to a final order on the undisputed figure for the take, so the court did so. It then set aside the residue-damage award in its entirety, and entered final judgment. The landowner got a writ.

The justices consider three issues in yesterday’s opinion. First, they rule that the circuit court acted within its discretion in excluding evidence of loss of development of a pad site. The court notes that the plans to develop the property were ten years old and contained several unaddressed conditions, including site-plan approval. Under prior caselaw, site-plan approval is ministerial and development is by right. Site-plan approval thus ordinarily isn’t a roadblock to consideration of development plans. Here, the court nods to that prior caselaw but finds that the lack of a site plan is relevant, though not dispositive.

Second, the Supreme Court affirms the trial court’s decision to strike the owner’s valuation testimony. The court holds that the trial testimony “was necessarily rooted in a lost ‘pad site.’” This was the evidence that the court had excluded before trial; merely dressing it up as an alternative theory didn’t make it admissible.

Finally, the court takes up the landowner’s challenge to the circuit court’s post-trial decision to put the parties on terms to confirm the take compensation only, or order a new trial. The justices find this issue waived for appellate review, because the landowner consented to the procedure. That’s invited error, and appellate courts decline to address assignments like that.

The opinion is noteworthy for a couple of observations in footnotes. The first deals with preservation: The Commissioner argued that the landowner had defaulted the first issue, relating to the exclusion of pad-site evidence, by not including it in post-trial exceptions. The court rejects that contention because this was a pre-trial ruling, and the condemnation commissioners never heard the evidence. The purpose of exceptions is to ask the judge to revisit trial issues; not pretrial rulings.

Next, the court points to a particular dispute among its judicial ancestors in a split 1972 decision. There, one justice had urged that a landowner may not treat land “as divided into lots when in fact it is undeveloped acreage.” More recent opinions have held that the property should be valued considering its current development potential, considering reasonable adaptations to achieve its highest and best use. The approach that the court takes here means that the court need not resolve, and expressly reserves for another day, the question “whether and if so, to what extent, a landowner may offer evidence that the property’s fair market value would be affected by a reasonable probability that land would be divided into lots.”

Yesterday’s decision continues a long dry spell for landowners in condemnation appeals. My quick scan just now indicated that in the past three years, only one landowner in an eminent-domain or inverse-condemnation appeal has prevailed in the Supreme Court: Helmick Family Farm v. Commissioner of Highways from 2019. In every other such appeal decided in that span, the court has ruled in favor of the condemnor.