(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.





(Posted September 2, 2021) In two rulings handed down this morning, the Supreme Court of Virginia affirms lower-court judgments that permit the Governor to remove the statue of Gen. Lee on Monument Avenue in Richmond.

In a short published order in Gregory v. Northam, the court affirms the denial of declaratory-judgment relief to the descendants of the Nineteenth Century donors of the land on which the monument now rests. There are no sweeping public-policy pronouncements in the order; in the end, it turns on principles of real-property law.

In 1890, the Commonwealth accepted a deed to the site containing this language:

The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the Special Statute herein before mentioned executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold said Statue and pedestal and Circle of ground perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

The modern heir to those grantors sought to enforce the rights that the Commonwealth thereby granted to his ancestors, as the language quoted above unmistakably creates a perpetual obligation on the part of the Commonwealth.

The justices rule that any rights reserved by the grantors created an easement appurtenant – that is, an easement that benefits a particular parcel of land – and not an easement in gross, which benefits one or more individuals. That’s dispositive here because the heir doesn’t allege that he owns any particular parcel of land that this language was intended to benefit. This means that the heir doesn’t have a property interest that gives him the right to enforce the language against the Governor.

*   *   *

The discussion in Taylor v. Northam is more sweeping and will be cited liberally in many future cases involving public policy. This appeal stems from litigation brought by property owners in the vicinity of the monument. They, too, sought a declaration that the Governor had no right to repudiate the promise made by the 1889 General Assembly when it adopted a joint resolution. This resolution authorized the Governor at that time to accept the gift and guarantee that the Commonwealth would hold the monument “perpetually sacred to the monumental purpose to which it has been devoted.”

A circuit court judge considered the matter in a bench trial. After receiving evidence and arguments, the court took the case under advisement before issuing a letter opinion last October. The court noted that a restrictive covenant like this can be enforced only if it’s consistent with public policy. The burden to establish a contrary public policy fell on the Governor here.

At trial, the evidence on this point was lopsided, judging from the recitation in today’s opinion. The Governor called two expert witnesses, eminent historians both, who told the court about the variance in public policy between the 1890 Commonwealth and today’s. The monument rose at a time when white Virginians, stung by the pain of what they saw as a punitive Reconstruction, sought to affirm their pre-war dominant position in society. The statue was for them a symbol of what we now refer to as the Lost Cause myth.

Modern society is, as we all know, quite different. The subjugation of one race by another is anathema to all but a few modern-day fringe groups. The decision to remove the statue is in line with other current legislative actions and public-policy statements.

As today’s opinion explains, the circuit court noticed “the lack of any evidence” from the plaintiffs on public policy other than those from the Nineteenth Century. They had claimed that these declarations survive today as modern public policy.

The circuit court disagreed with the plaintiffs, finding the covenants repugnant to modern public policy. It accordingly refused to enforce them and granted judgment in favor of the Governor. When the plaintiffs appealed, the circuit court sua sponte entered an order granting a temporary injunction against the statue’s removal, pending resolution of the appeal.

By current standards, that resolution was quite swift. Today, ten or eleven months after the final order below, the Supreme Court issues a 26-page opinion that affirms the judgment below, albeit on slightly different grounds. In contrast, what I’ll describe as garden-variety appellate litigation takes a year and a half or more from circuit-court judgment to SCV merits decision. This appeal was fast-tracked.

Justice Goodwyn pens today’s opinion. He begins his analysis by noting that the plaintiffs’ claims rest on two assumptions. The first is that they have an enforceable property right to control the use of land owned by the Commonwealth. The second is that the Constitution of Virginia bars the Governor from removing the statue because the legislature passed that joint resolution. He concludes, “Rightfully, neither premise survived the [circuit] court’s scrutiny.”

The monument is a form of government speech, and government speech “is a vital power of the Commonwealth.” The plaintiffs were claiming the right to force the government to embrace a particular message, one that Nineteenth Century white Virginians sought to perpetuate.

But as the Governor’s experts explained, times change. And one generation of Virginians – those with political power, anyway – cannot force later generations to agree with a message that is no longer widely held. This is all the more true of a public-policy statement in a joint resolution, a lesser form of legislative pronouncement than an enactment. That joint resolution is not, and never was, binding law; it was merely an expression of the post-Reconstruction legislature’s desires.

The Governor pointed to a budget amendment passed by the 2020 General Assembly, expressly repealing the 1889 resolution. The plaintiffs asserted that this action was unconstitutional. Today’s opinion finds that even without the 2020 act, it’s clear that the language in the resolution and the deeds violates modern public policy.

Justice Goodwyn also invokes a doctrine that I learned perhaps 30 years ago when I worked in City Hall: A government cannot contract away the power to govern. That includes the right to decide what form of public speech it will embrace. The Nineteenth Century legislature could no more bind the modern Commonwealth to express this view than it could contract away the right to set any speed limit for the new invention, the automobile, above ten miles per hour. Times have changed in the field of transportation, too.

The Supreme Court thus rules that the Governor in 1890 had no power to contract away future generations’ right to decide for themselves what forms of government speech could be expressed. The restrictive covenant is thus unenforceable.

In a short passage, Justice Goodwyn dispatches the plaintiffs’ claim that historic-preservation statutes also bar removal of the statue. He concludes that those statutes make the Governor the final authority on whether to remove memorials.

In a concluding paragraph, the Supreme Court affirms the judgment below and “immediately dissolve[s] all injunctions imposed by the circuit court.” So is the Governor free to schedule removal of the statue this afternoon? Technically, he has to await the issuance of a mandate, the formal order that carries out the Supreme Court’s opinion; but the word immediately suggests otherwise. It’s conceivable that the losing parties in today’s two decisions could petition the court for rehearing, but that would be a futile gesture that would only buy time, and very little time at that. Both of today’s rulings are unanimous.

Between the June session, when the Supreme Court heard oral argument in this case, and now, I’ve read a book entitled Robert E. Lee and Me by a retired brigadier general, Ty Seidule, who’s a historian on the faculty at West Point. The young Ty Seidule, four years younger than me, grew up in northern Virginia and received the same formal education that I got in southeastern Virginia. Our school teachers, in our fourth- and seventh-grade Virginia History classes, taught us that the Civil War was a noble effort by the South to preserve states’ rights to decide their own affairs, rather than having a federal government tell them what to do; it wasn’t about slavery. They taught us that Confederate generals and soldiers were better than their Northern adversaries; the Yankees only won because of great advantages in manpower and matériel. We learned that Reconstruction was as cruel and vengeful as I’ve described above, and that slaves were happy with their lots in antebellum life, preferring that to the savagery of their lives back in Africa.

Yes, we who grew up here in the 60s and 70s really did learn that in public school. We were tested on it to ensure that we had mastered what was in the official school textbooks. Ty Seidule got even more indoctrination in the Lost Cause myth when he went to college at Washington & Lee, where Gen. Lee was revered – in his words, on a par with Jesus himself. Only after he began his military career did he begin to question what he and I had been taught.

This essay is about two Supreme Court decisions, so I won’t spend too much time waxing eloquent about history. All I’ll say is that generations of Virginians, including me, received this set of myths as education. We absorbed it and accepted it – as fourth graders are wont to do; we didn’t talk back to our teachers, especially in the days when corporal punishment was still around – and carried it into adulthood. Some of us have realized over time that we were being lied to, and have cast off those lies. Today the Commonwealth may finally cast off one more prominent postwar lie.





(Posted August 31, 2021) The Supreme Court of Virginia yesterday issued an unpublished order in an injunction appeal. The case is Loudoun County School Board v. Cross, and stems from a schoolteacher’s First Amendment suit against his employer.

Three months ago, in late May, the school board calendared discussion of a proposed policy relating to transgender students. The proposed policy came up for discussion in what I assume was a regular school board meeting. Cross, an elementary-school gym teacher, registered to speak at the meeting. When he rose and took the lectern, he told his ultimate bosses that he didn’t agree with the proposed action. Here’s what he told the board, after introducing himself:

I am speaking out of love for those who suffer with gender dysphoria. 60 Minutes, this past Sunday, interviewed over 30 young people who transitioned. But they felt led astray because lack of pushback, or how easy it was to make physical changes to their bodies in just 3 months. They are now de-transitioning. It is not my intention to hurt anyone. But there are certain truths that we must face when ready. We condemn school policies like 8040 and 8035 because it will damage children, defile the holy image of God. I love all of my students, but I will never lie to them regardless of the consequences. I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The next day was normal; the teacher came to work and conducted an ordinary day of teaching his students. But the next morning, a supervisor told the teacher that he was being placed on administrative suspension due to his comments. As today’s order reports, he was “banned from all Loudoun County Public Schools property and events.” The division memorialized this action later that day by e-mailing all parents and staff of the elementary school to describe the suspension.

The following day, a lawyer representing the teacher contacted the assistant division superintendent to demand the teacher’s reinstatement. A school board lawyer replied that no reinstatement was forthcoming. The lawyer explained that the suspension stemmed from “significant disruption” at the school and requests by several parents that their children be shielded from the teacher.

The teacher sued the school board in Loudoun County Circuit Court, alleging two claims for deprivation of his freedom of speech and two more for a denial of his right to free exercise of his religion. He sought temporary and permanent injunctive relief, among other remedies. After what looks like a hotly contested hearing, a circuit-court judge agreed with the teacher and entered a temporarily injunction directing the school to reinstate the teacher and remove its ban on his coming to division functions. This last provision is significant because the teacher had indicated that he wished to speak publicly again should this subject arise on a future school board agenda.

The board filed a petition for review under Code §8.01-626 on June 23. That, my faithful readers will recall, permits a snap appeal from the grant or denial of injunctive relief. A week later, the teacher filed a brief in response. Yesterday, the Supreme Court issued an unpublished order that decides the appeal. A panel comprising Justices Kelsey, McCullough, and Chafin unanimously affirms the grant of injunctive relief. The panel rules that, given the wide latitude exercised by trial judges considering injunctive relief, the circuit court here didn’t abuse its discretion in ordering relief.

There are some tantalizing procedural aspects to this ruling. Because the SCV has never expressly laid out a set of factors for trial courts to consider in deciding whether to award temporary injunctions, the parties below had agreed to use the federal standard set out in Winter v. Natural Resources Defense Council from 2008. The circuit court accordingly considered the teacher’s likelihood of success on the merits, his irreparable harm if an injunction were refused, the balance of equities, and the public interest. It ruled that the complaints of a few parents (the school housed almost 400 students) didn’t outweigh the teacher’s valid First Amendment right to speak on a matter of public concern.

If you were hoping for a full-throated endorsement of the Winter approach from today’s panel, take a deep breath and get used to a little disappointment. First, this is an unpub –principally because it’s the work of a three-justice panel, and only the decisions of the full court get the published treatment. Second, the panel today cites the Supreme Court’s previous guidance on temporary injunctions. I believe I’m safe in describing that guidance as vague, at least in comparison with the robust federal decisional law on the topic: “sound judicial discretion”; “preserve the status quo”; “the court shall be satisfied of the plaintiff’s equity”; “veracity and magnitude of the asserted harm.”

The panel cites the teacher’s unquestioned right to speak on matters of public concern, and then agrees that the circuit court appropriately found that the harm claimed by the division didn’t outweigh this right. The panel accordingly affirms the award of the injunction.

While it doesn’t figure in yesterday’s ruling, I invite you to consider this hypothetical scenario: Suppose that a teacher had spoken at the school board meeting, in favor of the policy. Suppose then that a few parents who objected to it on philosophical or religious grounds had called the school to complain about that public comment, and ask that our hypothetical teacher be kept away from their children. Can those parents’ complaints become the foundation for a school-division decision to suspend the teacher? Remember, governments put themselves in a bad legal position when they enact content-based restrictions on speech: Advocating for Position A is good; advocating for Position B will get you suspended.

Back to our tale: If you’re wondering whether the school board can seek rehearing from the full Supreme Court, the answer is no. It’s right there in Rule 5:20(h), which says that you can’t file a PFR after a ruling like this. The losing party after a full trial can appeal, of course. That will foreseeably come next year, when the losing party can get plenary by-right review in the newly expanded Court of Appeals.

This order comprises part of the court’s shadow docket. You won’t find a listing for it on the court’s “Appeals Granted” web page. There was no oral argument on the petition, so you can’t listen to anything meaningful to ascertain how things went. And while yesterday’s ruling is an unpublished order, it is not – at least, not yet – posted on the court’s “Unpublished Orders” web page. All of the parties’ submissions were on metaphorical paper (we’re in the age of e-filing now); all of the court’s actions in the case were conducted behind closed doors.

I’m grateful to Virginia Lawyers Weekly and to Loudoun Now for alerting me to the order. It’s so invisible that, if not for their publications, I wouldn’t have known about it, either.





(Posted August 26, 2021) After the whiz-bang developments in the last two days, it’s nice to return to the placid normalcy of a relatively low-profile opinion day. This morning, the Supreme Court of Virginia hands down a single published opinion in a Workers’ Compensation case. City of Charlottesville v. Sclafani involves an award of medical benefits and temporary total disability.

The claimant is a police officer who sustained shoulder injuries during a day of training. The training called for him to play the part of an arrestee; other officers repeatedly took turns subduing him, handcuffing him while he lay prone, and raising him off the ground. Here’s how Justice Powell, the author of today’s opinion, describes what happened:

During the training, Sclafani experienced some discomfort but there was never any significant pain. However, at the end of the day he discovered that he could not straighten his left arm to reach the steering wheel of his car and go home. As the evening progressed, Sclafani found that he could no longer move his arm up or down. According to Sclafani, he did not feel any pain until the next morning.

A few days later, the officer sought medical treatment. He was eventually diagnosed with two shoulder injuries, including a torn rotator cuff, requiring surgery. He later returned to light-duty work and eventually to his regular duties.

At a hearing before a deputy commissioner, the officer acknowledged that he didn’t feel a sudden onset of pain, but noted that at one point late in the day, he “was picked up a little weird” and felt discomfort. He identified that event as the cause of his injury.

The deputy commissioner ruled that the officer had not established an injury by accident. Specifically, the deputy found no sudden precipitating event that caused the injury. The full commission reversed and awarded benefits, saying that the day’s training session “provided the necessary rigidity of temporal precision to constitute one event.”

As a big advocate of simplicity in language, the ponderousness of that phrase caused me to shudder; but I’ll let it pass.

The City appealed to the CAV, which reversed in 2019 and sent the case back to the commission. The appellate court ruled that there wasn’t enough “temporal precision” to establish an injury by accident when the relevant window was eight hours long.

On remand, the commission, duly chastened, found that the injury necessarily happened after lunch, because the officer noted no problems before then. Reasoning that a four-hour period was sufficiently exact, the commission awarded the same benefits as before.

Now we’re headed back to the CAV, where the City argued that four hours wasn’t tight enough, either. But the court had a rude shock in store: It ruled that the court’s previous findings were the law of the case because, instead of appealing the earlier CAV judgment to the Supreme Court, the City had accepted remand to the commission. The court refused to reconsider its previous holdings and affirmed the award.

That brings us to the current appeal. The justices begin by reversing the law-of-the-case ruling. In a 1998 decision, the Supreme Court had held that a party may accept remand from the CAV without waiving the right to appeal the ultimate ruling to the SCV. The justices find these circumstances to be indistinguishable from that 1998 decision.

The justices next disagree that a four-hour window is precise enough to prove an injury by accident. They do acknowledge that an injury needn’t be instantaneous, citing a 2016 decision where they approved benefits for an injury sustained during the course of a 45-minute rescue. But they can’t stomach four hours.

Just when it looks like the officer’s claim is going down in flames, the right-for-the-wrong-reason doctrine rides in and saves the day for him. The justices recount the officer’s testimony that he had been picked up once “a little weird” and that he felt discomfort after that. This evidence, they rule today, is sufficient support for an award of benefits when considering the evidence in a light most favorable to the officer, who prevailed in the commission. The City thus wins two battles but loses the war, as the Supreme Court unanimously affirms the award of benefits.

There’s a small but interesting tidbit for appellate geeks in the congregation. What’s the difference between “right for the wrong reason” and “right for a different reason”? In a footnote on page 9 of today’s slip opinion, we learn that the court employs the former name when it expressly disapproves of the reasoning below. That’s what happened in the case decided today. In other instances, the justices may express no opinion on the reasoning below, but simply choose a different route to get to the same destination. In cases like that, they note that their reasoning is different, though the lower court’s isn’t necessarily wrong.