ANALYSIS OF JUNE 17, 2021 SUPREME COURT OPINION

 

 

(Posted June 17, 2021) Some appellate decisions are hair-on-fire occurrences. “Alert the major media!” Today’s ruling in Nicholson v. Commonwealth will trigger a more modest response: “Alert the appellate geeks!”

This is an appeal of a conviction for driving on a suspended license, fifth offense. (Side note from a former prosecutor: At what point does a frequent flier like that get the message?)  Nicholson received a summons for the offense in Albemarle County, and the GDC and then circuit court both got ‘er on the charge. In circuit, various orders referred to the proceeding as “Commonwealth v. Nicholson,” and when she noted an appeal to the CAV, she did so with that as the style of the case.

Alas; the proper prosecuting authority looks to have been the county, although the local Commonwealth’s Attorney evidently handled the case at trial. The sentencing order – for those civil lawyers among you, that’s the final order in any criminal prosecution – listed the case as “Albemarle v. Nicholson.”

The Court of Appeals noted the discrepancy and remanded the case to circuit court to determine what the proper prosecuting entity was. “The County,” came back the answer, though the circuit court’s nunc pro tunc order also modified the reference to the law violated, noting both the state Code and its parallel in the County Code.

Now what? Back upstairs, the Court of Appeals directed supplemental briefing on the issue. Nicholson and the Commonwealth filed briefs, but this time the County filed one, too, acknowledging that it had received notice of the appeal and consenting to Nicholson’s request for leave to amend. (I commend the County Attorneys for doing the right thing.) Nicholson’s prospects brightened accordingly.

No dice, the CAV ruled. It dismissed the appeal by finding that the notice of appeal was “fatally defective” for misidentifying the offense being appealed. Today the justices unanimously reverse and send the appeal back to the CAV for a decision on the merits. Prior caselaw indicates that a notice of appeal doesn’t have to be perfect; just sufficient. The Supreme Court rules that this notice did its job despite the inconsistency in the identity of the appellee.

There’s a significant paragraph on page 6 of this short opinion from the efficient pen of Justice McCullough. In Roberson v. Commonwealth from 2009, the Supreme Court had belittled – maybe that’s too strong a word, but you get the message – the importance of the trial court’s docket number in identifying the judgment that’s being appealed. The court reconsiders that and holds today that that number can be an important factor in identifying the exact case that’s being appealed. As Justice McCullough points out in a footnote, it’s still important for counsel to list the correct docket number.

Today’s opinion cites two seminal decisions on this issue, Roberson and Ghameshlouy v. Commonwealth decided the following year. This opinion may join them as the decisionmaking triad on questions like this.

 


THE COURTHOUSE DOORS START TO CREAK OPEN …

 

 

(Posted June 11, 2021) The word normalcy sounds quaint now, inured as we are to the many adjustments of pandemic life. But I’ve seen the first sign that the appellate world might be returning to the old ways. The Fourth Circuit today announces that it will reopen the Powell Courthouse in Richmond beginning Tuesday, July 6.

The court’s bulletin isn’t a complete return to life as we knew it a year and a half ago. Anyone who enters the building must still wear a mask, pass a temperature check, and answer a series of Covid-related questions. But starting next month, if you want to hand-file a document at the clerk’s desk instead of at the first-floor drop box, you can do that. For those who aren’t yet ready to reenter an enclosed space like this, the court will retain the drop box, though it will move one block east, to the annex entrance at 1100 East Main Street.

What about oral arguments? The notice offers this tantalizing hint: “Face coverings during Court proceedings are required as directed by the Court.” There’s one argument date over the summer months, a single criminal appeal on July 16, and the court’s website doesn’t yet indicate whether the court will hear that argument remotely. The ensuing session is in late September, and if I were forced to wager on it, I’d place two American dollars on the court’s allowing lawyers the option of in-person or remote argument then. I believe that the court will be ready to open its courtrooms, but might not force a lawyer to appear in-person if he or she doesn’t feel safe in doing so.

Fine, you’re thinking; but what about the state courts? There’s no formal word out of Ninth and Franklin yet, but let me see what the ol’ crystal ball shows …

Not much. We do know that the most recent order extended the judicial emergency another 21 days, to June 20. That order came down a bit later than I was used to seeing; previous orders had something of a rhythm, and this one missed its usual cue.

But I’ll add two things. First, the current order – the 22nd in the series – allowed trial courts far more discretion in allowing proceedings, so long as the judge deems them safe. Second, the Governor has indicated that he will allow the state of emergency to expire at the end of June. The terms of Code §17.1-330 give the Supreme Court, not the Governor, the final say over whether there’s a judicial emergency, but the justices will likely weigh the public end of the formal emergency when deciding whether to extend the judicial one.

We might accordingly see a 23rd order that extends the judicial emergency only to June 30. But candidly, I doubt that the justices will do that and allow trial judges carte blanche to summon venires, select juries, and conduct trials any way they wish. I believe that the Supreme Court will want to retain at least some control over local proceedings, and the only way to do that is to continue the judicial emergency.

 


NEWS AND NOTES FROM THE APPELLATE WORLD

 

 

(Posted June 10, 2021) The Robes by the James don’t have any new published opinions today, so let’s take a look around and see what’s happening across the appellate landscape.

 

SCOTUS term winds down

While I don’t usually cover appellate issues arising on the incorrect side of the Potomac, things always get interesting up there as June unfolds. The end of June is the traditional end of the Supreme Court’s terms, and it always seems that the Court holds the major news-item decisions for late in the month. That makes it worth a look, even for folks who don’t have Virginia-related business up there.

In normal years, the Court clears its docket by the last day of June and heads into a summer recess. Last year, the justices entertained delayed oral arguments in May because of the courthouse’s closing during the pandemic. That led to the latest announcement of SCOTUS decisions in a given Term in recent memory, on July 9, 2020. These were the first July announcement from the Court since the 1980s.

True to form, the last decisions of that Term were hot-button cases: Trump v. Mazars USA and Trump v. Vance, on subpoenas for the former president’s financial records; and McGirt v. Oklahoma, in which the Court ruled that a vast section of that state, including part of the City of Tulsa, was sovereign turf for the Creek Indian Tribe. I commend to you Justice Gorsuch’s almost poetic opening to the McGirt majority opinion, which begins with, “On the far end of the Trail of Tears was a promise. …”

This year, one of the most interesting aspects of Courtwatching is the number of still-undecided appeals argued during OT20. The Court hands down one opinion this morning, leaving a whopping 21 still to be decided.

For most of the year, the Court announces opinions on scattered Mondays. Once June arrives, it customarily adds Thursday opinion days, rather than drop a front-end loaderful of opinions on a single day. And in the last week of the month, it sometimes adds a Wednesday opinion day.

I don’t know if the Court will again dip a toe into July’s waters, but if not, it has a lot of opinions to hand down in very few potential likely days. There are three Mondays and two Thursdays left in this month. If the Court decides to clear its docket on those days, we’re looking at four opinions per day, which is a whopper of an average. And yes, there are still some major-news-item cases left to be decided.

 

Some interesting essays

My appellate pal John Koehler has posted a non-appellate, but still interesting, essay on the labor-market dynamic. Perhaps it’s the Econ-major geek in me, but I found his views to be fascinating.

Elsewhere, Jay O’Keeffe posted several interesting essays on his site, De Novo, in May. Jay writes very well, and I always enjoy a venture to his site.

 

The latest on CAV expansion

As noted in this space recently, the General Assembly has some important summertime homework this year, as it’ll fill seven vacancies on the Court of Appeals of Virginia. The legislature reopened the application process some time ago because it felt that the previous window was too short and the applicant pool wasn’t exactly diverse. I haven’t heard any word as to when the Governor will call a special session to choose the new Robes, but it can’t drag out too long; the Court of Appeals will have a significantly increased workload starting in January, and those new judges will need time to get judge training and get up to speed on the court.

Lest we forget, there’s much more that has to happen before January 1 besides choosing judges. A committee even now is poring over the Rules of Court to determine what amendments will need to be made before the CAV’s jurisdiction expands. The Attorney General will hire 27 new lawyers – appellate lawyers, all! – to handle the anticipated uptick in merits appeals on the criminal side. The Indigent Defense Commission gets seven more appellate lawyers, too. I expect that both Chief Staff Attorneys – in the Supreme Court and the Court of Appeals – will add more staff, too. And even all of this says nothing about the private sector. John’s essay on the labor market is looking to be more topical than you might think.

 

Final SCV argument session of 20-21 term

If you blinked, you missed this week’s argument docket in the Supreme Court of Virginia. The justices entertained just ten appeals over two court days in the June session.

Unlike their colleagues in Washington, Virginia’s Robes don’t save their sexiest appeals for the end of June … but sometimes it works out that way. Two of this week’s ten were appeals about the statue of General Lee on Monument Avenue in Richmond. A circuit court had ruled that citizens, including those who live near the statue and at least one descendant of the original donor, couldn’t prevent the Commonwealth from removing the monument. Despite this ruling, the court enjoined the Commonwealth from proceeding with the removal pending an appeal.

This last part seems incongruous to me; if a court rules that a petitioner doesn’t make out a case for an injunction, but then orders the injunction anyway, what’s the basis for that order? I don’t know if the parties addressed that on appeal.

What I do know is that the justices allotted 70 minutes for oral argument in the two appeals, but the lawyers used only 30; 20 in the first appeal and 10 in the second. This was no doubt due in large part to an astonishing development: No member of the court asked a single question of any of the lawyers, in either appeal. Not a peep from the court.

Personally, I never enjoy delivering what I call the Easter Island argument, where I give a speech to silent, stone-faced justices. I want them to interrupt me, early and often, so I can find out what’s on their minds, and then address those concerns. This week’s advocates may have felt similarly frustrated, or they may just have been relieved that they were able to finish their arguments and get away from the lectern with all their limbs still attached to their torsos. (Oral arguments these days are much safer in this respect, because the justices can’t maim you when they’re only watching you on a computer screen.)

I normally stay out of the prognostication racket with undecided appeals, because it’s devilishly hard to make a good living by wagering on the outcome of these cases. Oh, you could generate a fair return by always betting on affirmance in criminal appeals, here and in the CAV; but you’d get such poor betting odds (because of the lopsided outcomes) that it would take you a long time to amass a substantial bankroll. Besides, I know of no one who makes book on SCV rulings.

Here, though, if I had to place a gentleman’s wager, I’d bet that the court will affirm. The issue here is whether one generation of Virginians can bind all future generations to do something that those future Virginians may find uncomfortable or even abhorrent. Yes, it looks like the Commonwealth entered into a contract in the Nineteenth Century to keep and honor the Lee statue. But this is a matter of compelled speech – compelled government speech, no less. Do modern Virginians have a say in this, to allow their Commonwealth’s public speech to reflect modern mores?

Let’s take an easy example to show why today’s Virginians have that right to decide for themselves. If you posit the opposite conclusion, that a contract is a contract and we just have to live with what our ancestors agreed to do, we can explore how far that principle goes. Hypothetically, suppose that instead of an equestrian statue, the Nineteenth Century Commonwealth accepted one that depicted a snarling overseer, holding a whip and standing menacingly over two cowering slaves. The engraved base of the monument contains the words, “To the Eternal Subjugation of the Negro.” Maybe the last word is less benign; you get the idea. In accepting the monument, those Nineteenth Century Virginians, acting through their government, contracted that the statue would stand, preserved, protected, and honored, for all time.

I’m not a Supreme Court insider and never have been, but I’m confident that it would take the modern court all of two and a half seconds to rule that a contract like that is repugnant to modern public policy. Such a statue would be gone in no time.

You may posit that the Lee statue isn’t like that; it’s an honorable depiction of one of Virginia’s most prominent native sons. But the point in this litigation – as contrasted with the entirely separate political debate over the statue’s fate – isn’t whether the monument is or isn’t tasteful, or whether Lee is or isn’t worth honoring. The issue is whether a contract like this is enforceable against modern mores, when the Commonwealth has moved on.

I expect the court to affirm, and to do it unanimously. The decision could come at any time; this may be one of those appeals where the court won’t wait until a Thursday.

 


ANALYSIS OF JUNE 3, 2021 SUPREME COURT OPINION

 

(Posted June 3, 2021) After last week’s deluge of decisions, the Robes by the James return to a more sedate pace this morning, issuing a single published opinion in an appeal argued in the March session. Galiotos v. Galiotos is, as the caption suggests, a dispute between family members, and involves estate administration.

Two brothers, named as co-executors of their late mother’s will, developed differences of opinion on numerous aspects of estate administration. Brother A accused Brother B of self-dealing regarding one of the estate’s numerous valuable properties; B made parallel allegations against A about other matters. The matter inevitably wound up in circuit court, with each brother asking the court to remove the other from office.

When the parties appeared for a bench trial, Brother C was in the courtroom. Brother B moved to separate witnesses, including Brother C, since he wasn’t a co-executor and wasn’t a party to the litigation. Brother C claimed that he was indeed a party; Brother A shrugged and said he didn’t care. The court allowed him to remain.

Each party presented evidence of differences that the court eventually found were irreconcilable. Brother C, who testified early in the case, merely authenticated a batch of e-mails and explained his efforts to pour oil on his warring brothers’ troubled waters.

At the conclusion of the evidence, the learned judge decided that the only workable approach was to remove both brothers and appoint a neutral fiduciary in their place. The court denied both brothers’ requests for attorneys’ fees.

The brothers filed cross-appeals, and today the Supreme Court unanimously affirms the judgment. I’ll insert an editorial comment here: I can’t figure out why this opinion is published. The justices’ rulings all turn on whether the circuit court abused its discretion in various rulings, and each time the court finds no abuse.

 The one ruling that may have made this proper material for Virginia Reports is the court’s affirmance of the decision to allow Brother C to remain in the courtroom. Statutorily, he should have been excluded. Code section 8.01-375 mandates exclusion of nonparty witnesses on motion of any party, and Brother C unquestionably wasn’t a party.

The justices nevertheless affirm the judgment despite this mandate, finding that any error was harmless. The purpose of the statute is to prevent the nonparty witness from conforming his testimony to that of a supposed collaborator. But Brother C testified before his ostensible collaborator, Brother A, and even then offered noncontroversial evidence, such as document authentication. That isn’t enough to warrant a reversal.