ANALYSIS OF NOVEMBER 30, 2023 SUPREME COURT OPINION
(Posted November 30, 2023) Today is the anniversary of the birth of my favorite author, Mark Twain. He had an unmatched (in my opinion, anyway) capacity for bringing just the right dollop of wit to everyday situations. His writings have kept me laughing for decades.
Perhaps because of him, I’ve tried to insert an appropriate amount of wit in these musings, in the hope that an enjoyable experience here will bring you back. Today, I find myself overmatched: There is no spice that can liven the bland stew of today’s decision from the Supreme Court of Virginia. The issue in Verizon Virginia LLC v. State Corporation Commission is whether the SCC has subject-matter jurisdiction to decide who must pay for the relocation of Verizon facilities within the VDOT right-of-way in the Capital Beltway.
Now, I readily acknowledge that donnybrooks over subject-matter jurisdiction can be entertaining. This instance is obviously of great interest to the parties, as I expect that a lot of zeroes are at stake. But the public may not notice; Verizon’s facilities are going to be moved, one way or the other. It’s just a matter of whether the utility or a public-private partnership will foot the bill. And today’s issue is even narrower than that: Which tribunal can decide the claim?
Verizon has a right to use VDOT’s rights of way, subject to the requirement that the Department can require the company to move things around without cost to VDOT when circumstances require. When VDOT sought to expand the Beltway, it decided to expand it inward, adding new lanes from the median so as not to require it to acquire expensive rights of way from adjacent landowners. This project is a public-private partnership, and the entity that’s handling the expansion is a private company, Capital Beltway Express.
Verizon, faced with significant relocation expenses, filed a DJ proceeding in the SCC, asking for a declaration that the private company has to absorb the costs. Acknowledging its agreement with VDOT, Verizon argued that the private company isn’t a party to that agreement, and it can’t latch onto VDOT’s rights.
The SCC ruled that it didn’t have subject-matter jurisdiction because this is a contract claim, not a statutory one. Verizon exercised its right to appeal directly to the Supreme Court – no writ process required – and today the justices unanimously affirm. The court finds that the origin of this claim is the contract, and claims like that go to circuit courts, not to the SCC. The justices also reject an argument that this claim falls within one of a very few exceptions to that division of labor.
As I see it, Verizon can still bring its claim in a circuit court, assuming there are no limitation-of-action issues. I don’t know enough about matters like this to offer an opinion on limitations, and I certainly don’t know enough about the ultimate merits of the claim.
Poor Justice Russell drew the short straw and had to write the opinion of the court. As readability goes, he does a fine job, considering the dry material that he had to work with. This case produces a lightning turnaround, as the parties argued the case to the court on November 1, just four weeks ago.
ANALYSIS OF NOVEMBER 22, 2023 SUPREME COURT OPINION
(Posted November 22, 2023) Opinion day comes 24 hours early this week because of the Thanksgiving holiday. The justices hand us a single decision: Commonwealth v. Puckett resolves a question about restitution in a criminal case.
Puckett was the assailant in an especially vicious knife attack. His victim survived, but incurred six figures in medical bills. Because the victim was indigent, Medicaid paid about 20% of the bill and the hospital wrote off the rest.
At Puckett’s sentencing, the circuit court awarded restitution to the Virginia Department of Medical Assistance Services in the amount it had paid. Puckett appealed, contending that the victim himself was the only proper payee of a restitution award. And because the victim never had to pay anything, he hadn’t “incurred” any expenses that could be the subject of a restitution award.
The Court of Appeals liked that line of reasoning and reversed the restitution award. It noted that DMAS wasn’t a victim of the attack, so it wasn’t a proper party to receive restitution.
In the cosmic scheme of things — specifically, the state budget — $22,000 isn’t a lot of money; but the Commonwealth appealed anyway. A writ panel decided that the issue was worth resolving, and the parties argued the case to the full Supreme Court in the September session.
Today the court reverses the CAV’s judgment and reinstates the restitution award. It concludes that the restitution statute does contemplate a situation like this. Regardless of whether the victim ultimately had to pay the medical bills, he clearly incurred them, and that’s enough to empower a circuit court to require restitution to the entity that ultimately laid out the money.
Justice Kelsey authors today’s opinion for a unanimous court. Justice Russell sit this one out; my best guess why is that he was on the Court of Appeals when this case made its way through that court.
FINALLY! AN ETHICS CODE FOR SCOTUS
(Posted November 13, 2023) The New York Times reported a few minutes ago that the Supreme Court of the United States has adopted an ethics code for the justices. As I set out in an essay posted earlier this year, I believe that this move is overdue, and I’m glad the Court has done it; this will replenish the Court’s diminished supply of public trust.
I’m breezing through the new code to get a feel for it; I’ll periodically update this essay as I go along. The first thing I’ve noticed is that it liberally employs a word that wise heads in Virginia recently determined to be troublesome in the legal context: should. In comparison, the Canons of Judicial Conduct for the Commonwealth of Virginia employ must and may.
The many shoulds will leave a reader wondering how, exactly, this code will be interpreted and how it will be enforced. Even some of the aspirational statements will cause a little throat-clearing. For one example, here’s the text of Canon 4, subpart (A)(1)(e):
In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.
I invite you to compare this with this November 9 report in The Washington Post entitled, “Justice Barrett Gets Standing Ovation at Federalist Society Gala.” I’m not naïve enough to believe that this code will stop speeches to like-minded bar groups, even overtly political ones like the Federalist Society. But the juxtaposition of these stories reflects unfortunate timing.
Next, the announcement of this code contains words comparable to those in certain legislative enactments emanating from Capitol Square in Richmond, to the effect that “This act is declarative of existing law.” The justices insist these provisions “are not new” in that they are effectively the “equivalent of common law ethics rules” of long use at the Court, and are “a codification of principles that we have long regarded as governing our conduct.”
I strongly suspect that the promulgation of this code will spur plenty of op-ed calls for enforcement of the new-old provisions against the justices who made recent news with their very public missteps. I’m not holding my breath. My sense after having read through the code is that it won’t fully address public concern, especially if more examples surface. But one primary purpose of the Court’s issuing this code as assuredly to prevent another branch of government — that would be Congress — from stepping in to impose one, thereby triggering a jurisdictional turf war over whether one branch of government can tell another branch how to police itself.
Now that I’ve taken an hour to read through the code, I’m considerably less enthusiastic about it than when I first posted the news at about 2:30 this afternoon. I fear that much of the public will come to regard this as a sort of Potemkin village of judicial ethics, more for show than for enforceability. I do not, however, recommend that you hold your breath waiting for further explanation from the justices. I believe that this is the last we’ll hear from them on this subject for quite a while. (Update November 14: After a day of pondering the new code, I’m becoming more and more convinced that this announcement is just an insult to our intelligence. The policy has no teeth, no enforcement mechanism, and no way to even complain about anything. It’s less a code and more a set of gentle, nonbinding suggestions. I believe that the Court did this for one reason only: It was getting crushed in the court of public opinion, and needed to make a show of caring. To the Robes by the beautiful banks of the James, those justices who seem to take judicial ethics seriously: thank you, thank you.)
