ANALYSIS OF OCTOBER 14, 2021 SUPREME COURT OPINIONS
(Posted October 14, 2021) For those of us who follow appellate decisions, a long drought ends today as the Supreme Court of Virginia hands down its first published opinions in six weeks.
The justices take up several dirt-law claims in Givago Growth, LLC v. iTech AG, LLC, from Fairfax County. It’s a suit by an LLC that owns land up there, filed against a lender that sued and slapped a lis pendens notice in the local land records.
When the plaintiff in that action nonsuited and withdrew the lis pendens, the property owner sued the lender for a host of claims: malicious abuse of process, slander of title, tortious interference with contract, and civil conspiracy. The lender demurred, claiming that the lis pendens was entitled to the absolute privilege that protects assertions made in the course of litigation.
The learned judge considered this argument, and agreed with the lender. He dismissed the action with prejudice. A Supreme Court writ panel decided to take up the issue.
Today’s opinion, written by Justice Mims, first addresses the propriety of a court’s deciding a defense like privilege on demurrer. The court rules that that’s improper, as affirmative defenses have to be raised by pleas or an answer. While that might have been the end of today’s decision, the court goes on to examine the merits of the defense.
If you find that unusual, I agree with you. By evaluating an affirmative defense that has yet to be properly raised, the court issues something that looks a lot like an advisory opinion. But it’s entirely foreseeable to me that the circuit court will eventually have to make this call, so the justices decided to weigh in on it in the interest of judicial economy. After all, there’s no need to make the parties try the case, only to come back to the appellate courts (it would be the CAV by then) to get a legal ruling on an issue that the parties have already framed well.
Today’s opinion analogizes this situation to the filing of a mechanic’s lien. Both that lien and a lis pendens are ancillary to the main object of the litigation. They serve to notify potential purchasers that the plaintiff has a claim against the subject property, thereby protecting the person or entity who asserts that claim. The justices note that prior caselaw has protected a mechanic’s lienor from defamation liability by the privilege defense.
At this point, it looks like the Robes are about to hand the lender a delayed-onset victory. But then we see this paragraph:
However, the circuit court went further and held that the defense of absolute privilege applies to all four causes of action alleged in the petitioners’ complaint: slander of title, malicious abuse of process, tortious interference with contractual relations, and civil conspiracy. This Court has never extended this defense to non-defamation torts, such as the latter three listed above, and we decline the invitation to do so today.
The court thus rules that while the privilege defense may bar an action for slander of title, it won’t apply to the other three, non-defamation claims.
Okay, now it looks like the slander claim is going down (eventually), and the other three will proceed at least through the pleading stage. But wait; there’s more! Justice Mims then adds that even the absolute pleading privilege is subject to a requirement of relevancy. If the allegations in the lis pendens are “palpably wanting in relation to the subject matter of the controversy” as to make them irrelevant or improper, then the property owner can fend off the privilege defense.
I learned long ago that merely having a monetary claim against John Q. Defendant isn’t enough to warrant the filing of a lis pendens against his property; that requires a claim to ownership of that specific property. That might be the reason why Justice Mims adds this ominous language at the end of today’s discussion: “we note that the facts alleged in the complaint, if proven true, are concerning and may not satisfy even this ‘liberal rule’ regarding relevancy.” The justices thus remand the case so the circuit judge can make that evaluation.
The court takes up a certified question from the Fourth Circuit in White v. US. The appeal arises from a criminal prosecution in which the government managed to obtain an enhanced sentence under the Armed Career Criminal Act, successfully convincing the district judge that White had three prior violent felonies. That led to a significantly stiffer sentence than White would have received otherwise.
On appeal to the Fourth, White claimed that one of his three prior convictions, a Virginia proceeding for robbery, didn’t qualify as a violent felony. That argument led the Fourth to certify this question to the SCV: “Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?”
This issue likely triggers an I-thought-I’d-seen-it-all reaction. I had never heard of a robbery conviction for threatening to out someone. Extortion, maybe; but then, I don’t handle criminal litigation.
It turns out that the highest court in the Commonwealth has decided this issue on four previous occasions – once in 1890; the other three in the 1930s – and has always said that it’s possible to base a robbery conviction on this precise threat. Who knew?
Well, White’s lawyers knew, for one. They raised the issue that physical force – the predicate act of violence for an ACCA sentence enhancement – isn’t always necessary for a robbery conviction. If White is right, he should be entitled to a new sentencing, and a shorter stay as the guest of the Attorney General of the United States.
Justice Kelsey authors today’s opinion, I found it to be one part appellate ruling and about eight parts legal history lesson. Another jurist would have cited the four SCV opinions and let it rest there; a nice, short opinion that’s beloved by working-class scribes like me. But Justice Kelsey wanted to firmly establish the precedent, so he examines English common law decisions stretching back into history. He cites numerous English opinions, all finding this precise exception to the physical-force requirement.
With this line of caselaw, the only thing that can interrupt it is legislation. The General Assembly, in its wisdom, has declined to step in and abolish this exception, so the court answers the certified question in the affirmative. That’s a victory for White.
This ruling isn’t entirely unanimous. Two members of the court – Justice Mims and Powell, can’t stomach the labyrinth of English legal history, so they file a short concurrence, based on the four SCV decisions already in Virginia Reports.
I’m of two minds about this. Like Justice Kelsey, I appreciate legal history. I’m always interested in an exposition on a subject of which I’m ill-informed. But this was a remarkable, extensive digression that, in my view, really wasn’t necessary to decide the certified question. It reminds me of another digression, this one from one of my three favorite novels, Les Misérables by Victor Hugo. The book is ponderous at roughly 1,200 pages, though I love it anyway.
In the novel, Hugo spends 100 pages describing the Battle of Waterloo. The sole story-based purpose for this overlong detour is to make the point that a really-really good guy mistakenly believes that a really-really bad guy is actually really-really good. (He isn’t. Sorry if I spoiled the novel for you.) The real purpose, I suspect, was for Hugo to express his patriotism and his admiration for Napoleon Bonaparte. The battle occurred when Hugo was 13 years old, and it must have shaped his views of what it meant to be a Frenchman.
Enough speculation; I can’t offer an informed view on why Justice Kelsey took us on this long tour into Eighteenth Century England. But the answer to the Fourth’s certified question is now chiseled deeply in the annals of our jurisprudence.
NOTE ON APELLATE DEVELOPMENTS
(Posted October 6, 2021) As we look forward to tomorrow, and the chance of our first published opinions from the Supreme Court of Virginia in over a month, let’s take a look around at the landscape.
3Q David-Goliath Index
Another quarter is in the books, so let’s see how our big guys and little guys fared against each other in the SCV. As you’ll recall, in the past several years, our Davids have been taking a pounding in merits decisions. This time, the results are much more balanced: Considering published opinions and orders plus unpubs, David won six times in the third quarter against eight wins for Goliath. The resulting 43/57 index, while still favoring Goliath, is the best that David has done in a long time. These newest decisions mean that over the course of 2021, David has won 15 times and Goliath 30, producing a 33/67 D-GI. Back to you at the end of the year.
Pace of filings
In my first essay of 2021, I noted the 10% decline in new-case filings in the Supreme Court Clerk’s Office, measured from 2019 to 2020. I forecast a larger drop-off in 2021 as the full effect of the pandemic and the jury-trial moratorium materialized.
Last year, the Clerk received 1,571 new records – a bit under 400 per calendar quarter. Thus far in 2021, the Clerk has opened only 935, just over 300 per quarter. It’s possible that the resumption of jury trials will cause the pace to pick up between now and the end of the year, but failing that, my best guess is that we’ll see about 350 fewer new filings at Ninth and Franklin – perhaps somewhere between 1,200 and 1,250. That would be a decline of about 25%.
The crystal ball gives me a cloudy picture of what to expect in 2022. The immediate effect will be a reduction in the number of direct appeals from circuit courts in civil cases, because those appeals will now stop first in the Court of Appeals. That will produce a noticeable decline in the SCV’s incoming traffic in the first roughly eight months of the calendar year.
The wild card here is that most of the justices’ caseload – slightly more than half – is criminal petitions from final decisions in the Court of Appeals. Those, in theory, should remain relatively constant, especially because the CAV has done such a good job in keeping its docket cranking despite the pandemic.
One Summit down; one to go
The Virginia Appellate Summit last month was, from what I can tell, a major success. It was a hybrid program, allowing in-person attendance as well as remote access. It wouldn’t have happened if not for the generosity of McGuireWoods, which donated the meeting space in its downtown Richmond offices.
There’s one more Summit on the horizon: The ABA Appellate Summit will convene November 11 through 14 at the Hyatt Regency in Austin, Texas. This is the biggest and best nationwide appellate bench-bar conference, with hundreds of appellate advocates and jurists, plenty of advanced-level CLE programming, and lots of time for socializing and excursions in the city.
Early bird pricing was set to expire September 30, but the program planners decided to extend that to October 15, to allow potential attendees to evaluate pandemic conditions before deciding whether to come. I learned today that the room block at the Hyatt may be full, so it may not be possible to stay at the host hotel. But I understand that the Summit planners anticipated this when choosing the venue; there are several other hotels within walking distance.
One final perk: The Texas Longhorns entertain the Kansas Jayhawks on Saturday afternoon, November 13. I have no idea whether you can get tickets, but if you’re a college football fan, it doesn’t get much better than a Texas home game.
Still remote arguments for now
In a bow to pandemic realities, all three appellate courts that convene in Richmond are still entertaining oral arguments remotely. The Supreme Court of Virginia will host virtual oral arguments in its November session and telephonic arguments for the October 19 writ panels. It’s conceivable that the December 7 writ panels might be in-person, but I wouldn’t wager my mortgage on that.
Meanwhile, the Court of Appeals of Virginia will use remote arguments for the rest of 2021, and the Fourth Circuit will conduct them remotely for the October 26-29 sitting. The court hasn’t made an announcement yet about its final sitting of the year in early December.
I unashamedly yearn for the day when the courtrooms open again. I miss the majesty of the pillars, the drapes, the judicial portraits in the SCV’s main courtroom. It’s okay to dream; the Robes across the Potomac have convened in-person oral arguments starting this week, so anything’s possible.
FOURTH CIRCUIT VACATES HIRSCHFELD GUN RULING
(Posted September 22, 2021) Back in July, I reported on a significant Second Amendment decision out of the Fourth Circuit. In Hirschfeld v. ATF, a divided panel of the court struck down a 1968 federal statute that barred persons aged 18 through 20 from buying guns. The panel majority ruled that the statute didn’t survive intermediate scrutiny. A lone dissenter felt that it did. The opinions were long, accumulating to well over 100 pages.
Today, that ruling comes tumbling down, without so much as a rehearing grant. What happened? Why, the original petitioner, Ms. Marshall, reached her 21st birthday. That means she can go out and buy a gun now; the statute no longer affects her.
The three judges from the original panel unanimously agree that Ms. Marshall’s majority moots the appeal and hence the litigation. Even so, that same 2-1 split persists, albeit in a muted fashion. That’s because Judge Richardson, who writes today’s majority opinion, tosses in this passage at the end:
Finally, we note that the public and the “legal community as a whole” will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. (internal citation omitted)
“Oh, no, you don’t,” Judge Wynn retorts in a concurrence. (Well, he didn’t use those words; I’m borrowing some literary license here.) Here’s the essence of his riposte to the majority’s effort to give the previous long majority opinion some enduring life after its death by vacatur:
To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues’ statement that “the panel and dissent will remain available as a persuasive source” means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.
Judge Wynn notes that a ruling like this one was highly likely to be reheard en banc, and allowing lawyers and judges to cite it without that layer of screening would be unwise.
Judge Wynn is right, of course; a vacated panel opinion carries no precedential weight at all, but it’s foreseeable that someone may want to cite it. The issues here may lie fallow for quite some time, until a suitable 18-year-old can be found to file a new action. Perhaps that litigation can wend its way through the federal system in less than the three years that it takes for an 18-year-old to turn 21.