LEGISLATURE FILLS APPELLATE BENCHES
(Posted June 20, 2022) After an impasse that lasted about three months, Virginia’s appellate courts will again be fully staffed with Robes this summer. On Friday, the General Assembly elected two jurists to fill the current vacancies on the Supreme Court of Virginia, elevating Judge Wes Russell from the Court of Appeals and Judge Thomas Mann from the Fairfax Circuit Court. The legislature chose Halifax Circuit Court Judge Kimberley White to fill Judge Russell’s seat. Judges Russell and White will step up July 1; Judge Mann will take his new seat a month later.
These elections bring the Supreme Court back to its full complement of seven for the first time since Senior Justice Don Lemons stepped down on February 1. The court’s website notes that he’s serving as a senior justice; I expect that the court will approve Justice Bill Mims as a senior, probably upon his 65th birthday, which is … oh, right about now. That will max out the number of senior justices at five. In my recollection, it’s been quite a while since the Supreme Court featured seven active justices and five senior justices at the same time.
AN APPELLATE GLOSSARY
(Posted June 16, 2022) The appellate world has a language all its own. So does this website; you’ll see here a few terms that most non-lawyers, and even some lawyers who don’t handle appeals, wouldn’t immediately recognize, at least without substantial context. To ensure that everyone can be on the same page, here’s a list of some of the more common terms in these milieus. Italicized terms are more or less unique to this website and can be a bit tongue-in-cheek; others are typical for all discussions of appeals.
Across the river – Washington, DC, just across the Potomac from the Commonwealth of Virginia, and home to the Supreme Court of the United States.
Activist judge – I’m going to give you the definition that Ambrose Bierce would have included in The Devil’s Dictionary: An activist judge is a jurist who strikes down a law that you like. A wonderful judge is a jurist who strikes down a law that you dislike.
Age off – In Virginia, judges must retire from active service after reaching their 73rd birthday. A judge thus “ages off” the court by reaching that milestone, thereby creating a vacancy for the next General Assembly to fill.
Appellate guild – The cadre of appellate practitioners in Virginia, including advocates, clerks, staff attorneys, and even the appellate judiciary; an extraordinarily collegial group of professionals who regard each other as treasured siblings, and treat each other with that degree of kindness.
CAV – The Court of Appeals of Virginia, the Commonwealth’s intermediate appellate court. It dates to 1985, and got a major jolt in the past year thanks to Senate Bill 1261 (q.v.).
Center chair – This is another term for the chief justice of a given court, since that jurist sits in the center seat on a multi-judge bench, with other jurists arrayed around him or her in order of seniority. The center chair at One First Street (q.v.) is officially the Chief Justice of the United States, not the Chief Justice of the Supreme Court.
Cert – Short for certiorari, the process by which an appellate court chooses cases for merits review in discretionary appeals. There are about eight different ways to pronounce the longer word, with no consensus, so it’s safest to stick with just “cert.” When SCOTUS (q.v.) decides to accept an appeal for merits review (q.v.), it “grants cert.”
Certworthy – A petition for discretionary review that looks meritorious, or worthy of a cert grant.
Clearance rate – This quotient results from dividing the number of appeals acted on by a particular court in a given time period by the number of cases filed there. A court with a clearance rate above 100% is cranking out more rulings than there are incoming appeals; it’s making fast work of its docket. A sustained clearance rate below 100% means that a court’s backlog of undecided cases is growing. SCOTUS traditionally clears exactly 100% of its argued cases by the end of its term in late June.
David-Goliath Index – This one’s unique to this website, as far as I know. Once a quarter I publish a listing of recent decisions from the Supreme Court of Virginia that have an identifiable big-guy-vs.-little-guy dynamic. It’s a rough measure of the court’s composite ideological position in such cases.
Docket draw – In the Supreme Court of Virginia, the justices gather privately six times a year to select at random which justice will have the primary obligation to write the opinion of the court in each case on the upcoming argument docket. This assumes that the chosen justice is in the eventual majority. Docket draw is about three weeks before each session. At these meetings, the court also takes up matters such as petitions for rehearing.
Dunked – This unceremonious term is one I use to report that an appellate court has summarily dismissed or otherwise rejected an appellate challenge. It’s a bad sign.
The Easter Island argument – An experienced advocate’s bane; this is the unfortunate experience of delivering an oral argument to an appellate court and getting no, or painfully few, questions from the panel. You get the same degree of feedback as if you’d delivered a speech to the moai on Easter Island.
Eighth and Franklin – Another term for the Court of Appeals of Virginia, taken from the location of the Rose Lafoon Building, the court’s headquarters in downtown Richmond. Compare Ninth and Franklin.
En banc – Some appellate courts, such as the US Court of Appeals for the Fourth Circuit and the Court of Appeals of Virginia, primarily decide appeals in panels of three judges. A party who’s aggrieved by a panel decision can seek en banc rehearing, asking the entire court to decide the case and thus supersede the panel’s decision. The translation from Latin is “on the bench,” reflecting that the whole court is sitting there, listening. Some courts regard en banc rulings as a sort of super-precedent.
Error correction – One of the two basic appellate functions, the other being law development. The appellate court reviews a lower tribunal’s ruling to see if it conflicts with established law in some way. If the lower court has committed an error, the appellate court can reverse and either remand (q.v.) the case for more proceedings, or enter final judgment itself.
The Fourth – A shortened name for the United States Court of Appeals for the Fourth Circuit. The court’s headquarters are in downtown Richmond, across a corner of Capitol Square from the Supreme Court of Virginia.
Grant rate – The percentage of petitions in which an appellate court awards discretionary review. The Supreme Court of Virginia has granted civil petitions for appeal at a rate of roughly 16% for the past several years. Another quarter of them are dunked (q.v.), and the court refuses the remainder. This means that 84% of all such appeals have died without merits briefing or arguments. But see SB 1261.
The Highest Court in the Land – I have no personal knowledge of this, but I understand that this is the name that insiders have given to the basketball court at One First Street (q.v.).
Hot bench – This can mean one of two things (sometimes both at the same time). The more typical understanding is an appellate panel that asks the lawyers plenty of questions. Its antonym, a cold bench, results in the Easter Island argument (q.v.). A secondary meaning is an appellate court that’s thoroughly familiar with the record, so the advocate doesn’t have to spend much time bringing the court up to speed on what the appeal is about. Either way, unless you’re chickenhearted, you want a hot bench.
Interpanel accord doctrine – I know that the Court of Appeals of Virginia applies this, and I believe that the Fourth Circuit does, too. When a panel of either court issues a published opinion, the remainder of that court regards it as authoritative and binding in subsequent appeals. The only ways it can be overturned are by an en banc (q.v.) decision or by the Supreme Court. Note that this only applies to published decisions; unpubs (q.v.) get no such love from subsequent panels.
Law development – The fraternal twin sister to error correction, this is the appellate function of filling out the interstices of the law with published decisions that govern statewide. Some discretionary appellate courts may grant a writ (q.v.) where they don’t believe that the judgment under review is incorrect; they grant it because there’s a new, previously uninterpreted statute, or perhaps a split in the circuits, and bench and bar need a definitive answer.
The learned judge – This term, while italicized, is by no means unique to VANA; you’ll find it in appellate opinions dating deep into the nation’s legal history. I italicized it because it has a special meaning here when I’m composing analysis of appellate decisions. If you see my analysis refer to proceedings in a circuit court hearing or trial, and I mention something that “the learned judge” did, that almost always means that the judge is a pal of mine. It emphatically is not sarcastic; it just indicates that the decisionmaker is someone I know well.
The lectern – The correct term for what many people mistakenly call a podium, the location whence an advocate delivers an oral argument in an appellate court. (A podium is a usually wide platform that’s raised so an audience can see the speakers better. You can stand on a podium without causing a ruckus, but don’t try standing on a lectern unless you need to change a light bulb.)
Merits docket – In an appellate court of discretionary review, this is the list of cases in which the court has awarded an appellant that review.
Ninth and Franklin – Shorthand for the Supreme Court of Virginia, derived from the courthouse’s location in downtown Richmond. This term now has a shelf life: Plans are afoot to move the courthouse in the next few years to the Pocahontas Building, a block and a half away. At that, I suppose I’ll have to start referring to the court as Tenth and Main, which isn’t nearly as poetic.
OJ case – This is a kind of proceeding in an appellate court. It isn’t truly an appeal, because it invokes the court’s original jurisdiction (OJ). For example, the Supreme Court of the United States has original jurisdiction over disputes between states. The dispute between Virginia and Maryland over which state owns the Potomac River bed is one easy example. (Maryland won, the ratfinks, though Virginia still retains riparian rights. 540 U.S. 56) In the Virginia court system, each appellate court has original jurisdiction over petitions for writs of actual innocence, among others. In these proceedings, the original filing goes to the appellate clerk of court, not to a trial court.
One First Street – Shorthand for the Supreme Court of the United States, which is located at this address in Washington DC.
The 140 Troublemakers – A tongue-in-cheek nickname for the General Assembly of Virginia, comprising the 40 members of the Senate and the 100 in the House of Delegates. In theory, a member of the legislature could take offense at this, but I’ve never heard anyone complain when the term appears here; they must know I’m using it light-heartedly.
Opinion day – A day on which an appellate court releases one or more opinions or orders disposing of appeals. Here in Virginia, The Supreme Court issues almost all of them on Thursdays, while the Court of Appeals does so on Tuesdays. The Fourth Circuit issues opinions on almost every business day.
OT – Shorthand for “October Term.” The Supreme Court of the United States traditionally begins its annual terms on the first Monday in October. The cases considered in the ensuing nine months, ending in late June, are designated as occurring in the term that began on that October date. Thus, a case decided in June 2022 is part of OT’21, for October Term 2021.
PFR – The ultimate Hail-Mary pass, where a losing litigant files a petition for rehearing, seeking to reverse an appellate ruling. The grant rate for these is tiny, but it isn’t zero.
Remand – A trial judge’s classic profanity; this is an order from an appellate court to resume control over the case and to try again where once the lower court has erred. In my experience, trial judges don’t mind it so much when they’re reversed, but they hate remands, because once they enter judgment, they want to be forever done with the case.
Road shows – Once a year, the Supreme Court of Virginia convenes two writ panels in a place other than its courthouse in Richmond. In this way, the court comes to the people (or at least to the lawyers). In my experience, the localities that host these events regard them as great honors; the local bar association usually hosts a reception for the justices the night before, and lawyers without cases to argue sometimes attend just to watch. This term is italicized even though it isn’t one of my invention; I learned that court insiders use it, and I thought it cool enough to perpetuate.
The Robes – Shorthand here for the justices of the Supreme Court of Virginia, or more loosely, any set of appellate jurists. Compare Those Other Robes.
SCOTUS – The Supreme Court of the United States. You pronounce it as an acronym, as though it were a word, and not as an initialism.: SCOH-tiss.
SB 1261 – This Senate bill rocked the Virginia appellate world over the past year. It expands the jurisdiction of the Court of Appeals of Virginia to almost every case type, and provides for discretionary review thereafter in the Supreme Court of Virginia. It also gives every appellant an appeal of right – Virginia was the last state in the nation to provide that – and enlarges the intermediate court from 11 judges to 17. For at least the next few years, the appellate guild (q.v.) will probably speak in terms of “before 1261” and “after 1261” – or something like that – and we’re not talking about a year in the Thirteenth Century. This is the most significant appellate legislation of this generation.
SCV – The predictable shorthand for the Supreme Court of Virginia. Note that the name is not “Virginia Supreme Court.” Its seal depicts, among other things, an ostrich. I’m not kidding; you can see the bird on the courtroom wall.
Session – A period in which an appellate court is sitting to hear arguments. In the Supreme Court of Virginia, each occupies no more than four days, usually starting on a Tuesday, to hear the merits docket (q.v.). That court meets for six sessions per year; the first is in January and coincides with the week in which the General Assembly session begins. Ensuing sessions are at seven-week intervals until early June. The court then recesses for the summer and resumes with two final sessions in September and at the end of October. The CAV usually convenes one-day sessions for panels (and, very rarely, en banc arguments) throughout the year. In SCOTUS (q.v.), these are called sittings and usually last for about six days spread over two weeks, from October through April.
Summit – We cover two Summits here. The older is commonly known as the ABA Appellate Summit, formally the Appellate Judges Education Institute, and is presented annually by the American Bar Association. It moves around the nation, but usually returns to the District of Columbia at least every fourth year. Here in the Commonwealth, the Virginia Appellate Summit will soon transition from a triennial affair to biennial. It’s a customarily sold-out gathering of the Virginia appellate guild (q.v.) for advanced-level appellate education and a chance to rub shoulders with the core of the guild, to say nothing of a handful of appellate jurists.
Those Other Robes – These are the Chief Justice and Associate Justices across the river (q.v.).
Unpubs – Shorthand for unpublished orders (in the Supreme Court of Virginia) or opinions (in the Fourth Circuit and in the Court of Appeals of Virginia). There are sharp limitations on your ability to cite unpubs as authoritative, at least in the appellate courts.
VACES – The Virginia Appellate Courts Electronic System is the modern means of filing appellate documents in the courts of the Commonwealth. Once upon a time, filers had to physically lug several copies of all required documents to the clerk’s offices, where a deputy clerk duly datestamped them in: kaCHUNKitta. No more; it’s all done with electrons now. I understand that this, too, is pronounced as an acronym: “VAY-siss.” The federal parallel is the unpronounceable CM/ECF system, which stands for Case Management/Electronic Case Files. You should probably leave that one as an initialism.
VANA – Virginia Appellate News & Analysis, the first and finest website dedicated to appellate matters in Virginia. You’re reading it right now.
Writ – Literally, a document; metaphorically, an award of an appeal by a court of discretionary review. Writs are precious and rare: “We got a writ!” Across the river (q.v.), it’s more often called cert (q.v.).
ANALYSIS OF JUNE 9, 2022 SUPREME COURT DECISIONS
(Posted June 9, 2022) Today is an anniversary of one of the proudest moments for lawyers in our nation’s history. There are many such moments, but today a lawyer had the courage to take on a bully who had become a powerful demagogue. On this date in 1954, an Army lawyer named Joseph Welch dared to fight back against powerful Senator Joseph McCarthy. With the twice-stated question, “Have you no sense of decency, sir?” Welch brought down an entire movement that had been built on fear and hatred.
We lawyers occasionally suffer from a bad public image. Moments like this remind us that we can be among society’s best, especially when we act with courage.
The primary theme of City of Charlottesville v. Regulus Books, LLC is the question whether a holding company that owns and licenses intellectual-property rights is subject to local business taxation. But the side issue of taxation of costs provides the real news, in my view.
A Charlottesville lawyer has, for some time now, enjoyed a successful career as a fiction writer. He created the holding company and assigned his intellectual property rights to it; the company in turn grants publication rights to various publishers. The lawyer filed tax returns reporting business income under Schedule C. The City picked up on that; a search revealed no business license issued to the lawyer or to the holding company.
Tax bills followed, as they are wont to do wherever there’s money. The lawyer paid one bill under protest and challenged the next one in a lawsuit. The parties filed cross-motions for summary judgment.
The circuit court ruled in favor of the lawyer, holding that the tax ordinance was unconstitutionally vague. Today the Supreme Court affirms, though on different grounds. It holds that the holding company – the entity that had filed the suit – didn’t fall within a proper local-taxation category. The company doesn’t publish and it doesn’t offer a product. Nor does it offer a service to others. It merely holds rights and licenses them to others. The justices thus affirm under the right-for-a-different-reason doctrine.
The side issue that I mentioned relates to a small amount of money: $767.20. The circuit court had awarded that amount for costs, based on an itemized list containing entries for “the cost of filing, process service fees, transcript fees, transcript shipping fees, pro hac vice admission fees, and fees for case file copy requests.”
Here, the City gets at least some relief; the Supreme Court rules that some of these entries weren’t “essential for the prosecution of the suit.” The court thus remands for recalculation of the cost award.
But this victory may prove to be short-lived. It’s true that the costs statute doesn’t allow an award in the trial court for costs that aren’t necessary for the trial. A transcript – probably the largest component of this modest award – isn’t essential if all you want to do is try the case. But it really-most-sincerely is essential for an appeal, and Code §17.1-128 authorizes taxation of transcript costs in the appellate court. Rule 5:35(c) confirms that. Thus, the holding company may get an award of some of these struck costs merely by filing a verified bill in the Supreme Court.
As an alumnus of the Virginia Beach City Attorney’s Office, I’m well aware that a locality’s governing board is a different entity from the locality itself. This distinction is case-dispositive in Marsh v. Roanoke City, a zoning appeal brought by several neighbors of a Roanoke halfway house. The neighbors sought to prohibit the operation of the house in their figurative back yard.
The zoning-appeal statute requires that any court action must name the governing body of the locality as a necessary party. But the neighbors listed only “Roanoke City,” which I take to be a shorthand reference to the City itself. The circuit court noted the difference and dismissed the case. It refused to allow correction of a misnomer, because even the correct name – the City of Roanoke – isn’t the proper party. The neighbors’ petition never even uses the word council.
Based on this reasoning, the Supreme Court affirms today in a published order. It notes the difference between misnomer and misjoinder, and finds that this is plainly a misjoinder – the neighbors simply sued the wrong party.
Let’s check next into another land-use case, where this time the petitioners sued the right governmental body. Seymour v. Roanoke County Board involves a special use permit to operate a facility dedicated to a noble purpose – caring for injured animals. The facility is at the end of a private easement that runs across several residential properties. The owners sought the permit to build a new structure to house and rehabilitate injured birds of prey.
While reviewing the application, County planning officials discovered that several structures on the site were unpermitted. They told the applicant that those structures would need to be included in the permitting process. The County Board eventually granted the permit, including retroactively for the previous structures.
This permit engendered opposition from nearby landowners – specifically, those who owned property crossed by the easement, an unimproved road not maintained by any government. The neighbors here sued in circuit court, alleging that the existing and projected use of the easement greatly increased traffic, impaired their quiet enjoyment of their properties, and required them to expend money to maintain the easement – their only means of access to public roads. Two neighbors also objected that their children, who used the lane to get to school, had nearly been struck by speeding traffic on the way to the center.
The circuit court eventually sustained the applicant’s demurrer, ruling that the neighbors had failed to establish standing under the Friends of the Rappahannock doctrine from 2013. That analysis requires two components: proximity and an individualized harm, one not shared by the public generally.
On appeal, the Supreme Court today notes that no one doubts the neighbors’ proximity to the easement; it runs across their land. On the second prong, the justices part ways with the trial judge. They rule today that the kind of harms claimed here, viewed in a light most favorable to the neighbors, can establish harms not shared by members of the public. The court thus remands the case.
One portion of this opinion gave me pause. On pages 12-13, the court takes pains to distinguish its holding from the facts of Friends of the Rappahannock. In the earlier case, the court ruled that nearby landowners didn’t have standing to object to a proposed sand-and-gravel-mining operation, despite their complaints of impaired hunting rights, noise, air particulates, and increased traffic.
The Supreme Court finds those earlier claims distinguishable from today’s circumstances, but my reading of the case didn’t convince me of the distinctions. For example, here’s one offered today:
Significantly, Friends of the Rappahannock involved more speculative allegations of harm. The property owners in Friends of the Rappahannock asserted that the operation of the sand and gravel mine may result in the alleged forms of harm. In contrast, the appellants in the present case have alleged that they have already been harmed by the traffic on the easement
Okay, I understand that. But the court today then goes on – in the very next sentences of the opinion, no less – to acknowledge that “Generally, a plaintiff is not required to allege that it has already incurred ‘particularized’ harm in order to satisfy the second prong of the Friends of the Rappahannock test. The second prong of the Friends of the Rappahannock test requires an ‘allegation of injury or potential injury not shared by the general public.’” (Emphasis original in today’s slip opinion)
Now, I’m satisfied that today’s ruling is the correct one; these landowners should have a day in court. What this unconvincing distinction does convince me is that Friends of the Rappahannock may have been incorrectly decided. Today’s opinion doesn’t come right out and say that – the justices seldom outright overrule their previous holdings – but that’s the conclusion that I reach. I hasten to add that on the seven-member Supreme Court, I have zero votes.