(Posted May 28, 2020) We get a bountiful harvest of rulings today from the Supreme Court of Virginia. The court hands down seven published opinions and two published orders.


Freedom of Information

Let’s start with an open-government case: Cole v. Smyth County Board implicates the exception from open-meeting requirements for consultations with counsel.

This litigation turns on what I regard as one of the most important governmental duties, that of furnishing a public library. This one’s called the Smyth-Bland Regional Library, named for the two adjacent counties that it serves. In 2016, the Smyth County Board of Supervisors voted to replace all seven of its appointees to the library’s board of trustees.

As you can imagine, this mini-putsch generated backlash. Three of the ousted trustees sued, claiming that their removal was unlawful. While that litigation was pending, the County Board went into executive session during four scheduled meetings. As required by FOIA, the County Board explained the reason for the closed discussions: “discussion with legal counsel and staff pertaining to actual or probable litigation.” The announcement didn’t specify the name of any such litigation, or otherwise describe it.

During those closed sessions, the County Board “discussed potential disbandment of the Library,” including the financial costs and benefits” of doing so. Finally, in a public session in which no member spoke and no citizen input was allowed, the County Board passed, by a 6-1 vote, a resolution to disband the library, citing the rationale that “administrative costs associated with the operation of a regional library now exceed the financial benefit of maintaining a regional library system.”

None of us are immune from viewpoint bias, and I’ll go ahead and state mine right now: I was horrified when I read this justification. I’m a collector and lover of books, and I realize what these board members don’t: You don’t measure the benefit of a library in dollars. A library is one of the fundamental pillars of a community; a society loses an essential part of its culture by closing it. I found myself rooting against the County Board immediately.

A FOIA lawsuit ensued, with a local citizen – the president of the local Friends of the Library chapter – claiming that the County Board violated the open-meeting requirement by going into closed session. She insisted that the announcement of the purpose of the discussions was improper in that it didn’t identify specific litigation, and that the County Board improperly went beyond discussing litigation in the closed meeting.

A circuit court judge ruled in favor of the County Board, finding that the public announcement was sufficient and that the discussions were germane to the pending lawsuit. The court dismissed the suit with prejudice.

That was in 2017. The citizen promptly appealed and got a writ. She filed her opening brief, and waited for the appellee’s brief.

And waited. I reported on a separate aspect of this appeal last autumn. The County Board’s lawyer is a member of the General Assembly, and invoked his privilege under Code §30-5 to receive an automatic extension of the deadline to file. This went on for a year and a half before the appellant asked the Supreme Court to intervene and require the legislator to file something. The justices directed the parties to file briefs on the issue. Just before the legislator’s deadline to respond to that, he went ahead and filed the brief of appellee.

The subtext of that short proceeding was the concept that the legislator was abusing the statutory privilege, and decided to avoid a potentially embarrassing order from the Supreme Court. Today, almost three years after the circuit court’s final order, we get a ruling.

The Supreme Court reverses the judgment and sends the case back to circuit court. It finds that the public announcement in these situations must go beyond mentioning the statutory basis for the exemption; it has to describe the litigation. I suspect that county boards and city councils elsewhere may already do this, but for the rest of them, the requirement is now out in plain sight.

The justices also rule that the County Board exceeded the scope of the exemption by discussing financial aspects of the library’s operation. That’s governmental financial management; not litigation. Because exemptions have to be construed narrowly, and the County Board bore the burden of proving that the exemption applied, the case now heads back to Marion, where the judge will evaluate the now-successful citizen’s claim for attorney’s fees. And those fees will now have an appellate component.


Local governments

The justices take up a police-power case today, deciding Hooked Group, LLC v. City of Chesapeake. This is an inverse-condemnation action that followed the closure of a street that abutted the landowner’s property. The commercial parcel still had access to another street, but the landowner insisted that the closure had a significant and negative effect on the property’s highest and best use.

A circuit court judge agreed with the City, ruling on demurrer that the remaining access was reasonable as a matter of law. He rejected the landowner’s reliance on one of the seminal cases in condemnation law, State Highway Comm’r v. Dennison, which had also involved the closure of one of two adjacent roads, leaving access through the other road. There, the Supreme Court had held that the closure presented a jury issue on whether remaining access was reasonable.

This morning, the justices affirm the circuit court’s decision. The Supreme Court finds Dennison inapposite, because in that case, the Commissioner closed access to a four-lane road, leaving access to a two-lane road; in this case, it was the other way around. Justice McCullough’s opinion for a unanimous court concludes that this setup means that the remaining access was reasonable as a matter of law.

This last aspect of the case is an enormous win for condemnors. In the past, issues like this were typically matters for the factfinder. That was the ruling in Dennison. The Supreme Court has rarely taken on the task of finding what remaining access is reasonable, but it does so today.

The court also rejects the landowner’s contention that the 2012 amendments to the Constitution of Virginia, strengthening protection for property rights, meant that a loss of access was compensable. The General Assembly added a statute that provides for compensation for “a material impairment of direct access to property.” This, you might perceive, means that landowners are on a much stronger footing in these cases than they were before the amendments.

The justices disagree; they hold that their pre-2012 caselaw is “still relevant.” The new rule it announces today – fans of George Orwell might term the doctrine, “four lanes good; two lanes bad” – still requires the same reasonable-access-remaining analysis as before. This calls into question whether the entire process of amending the Constitution was meaningful.

Despite the court’s observation that Dennison is “simply inapposite,” I sense that the Hooked Group decision represents a noticeable retreat from that old doctrine. The fundamental holding of Dennison was that the issue of reduced access was ripe for jury determination, because there was some evidence of a significant reduction in that old parcel’s value. The trial court decided this case on demurrer, in which the courts must accept the landowner’s pleading that the street closure was a material detriment to its property. This, in turn, may signal that the justices are more open to early termination of litigation than before, when they openly protected the right to a jury trial. This opinion holds that judges, not juries, may be the ones to decide what’s reasonable.



We see another appeal with family members on both sides of the “v.” today, in Larsen v. Stack. It’s a familiar setup:

Dad owns a farm that we’ll call Blackacre in his own name. He executes a will that leaves the farm to Son and Daughter, but he gives Stepmom “the right to reside in [Blackacre] for so long as she is physically and mentally able to do so.” As long as Stepmom lives there, she also gets rental payments for an onsite cell tower.

After Dad died, trouble arose. Son and Daughter believed that Stepmom didn’t have a life estate, and they perceived that they had a right to use the property in conjunction with her. They sought a declaratory judgment to construe the will.

The circuit court ruled that the will was ambiguous in some material respects, so it permitted parol testimony from the attorney who drafted Dad’s will. That lawyer told the judge that Dad wanted his children ultimately to own the farm, and he didn’t give Stepmom a life estate for fear she’d have to sell it to qualify for Medicaid.

Satisfied with this explanation, the judge construed the will exactly as Son and Daughter had asked. But Mom got a writ. Today the Supreme Court affirms. The court notes that Dad did give Stepmom a life estate in another piece of property, so if he had meant to do so with the farm, he would likely have used that word. And the will gave Stepmom the right to reside on the farm, not exclusive ownership of it, so Son and Daughter could use it, too, so long as they didn’t interfere with Stepmom’s use of it.

I commend this short (9 pages) opinion to you for the clarity of Justice Chafin’s writing. Of all the justices, I’m least familiar with her style, because I’ve seen comparatively little of it. She writes in clear language with refreshingly many paragraph breaks. (Keep that in mind for your writing. Text with frequent paragraph breaks is easier to read.)


Civil procedure

Speaking of clarity in writing, we get an opinion today from Justice Russell in a land-use context, but the major lesson is in an arcane procedural tool. The opinion in Byrne v. City of Alexandria is short – aren’t all of Justice Russell’s opinions short? – at just over seven pages, and involves a fence in Old Town Alexandria.

Byrne bought a house in Old Town that dates to the 1780s. It was a fixer-upper, and Byrne got all the required approvals and permits to renovate it. He started work. But he hadn’t obtained approval from the local architectural board to demolish the brick fence in front. When he removed it to facilitate the renovation, the board cleared its throat and told him to stop.

As I see it, Byrne did the responsible thing: He submitted plans to put in “a Victorian ‘wicket and spear’ fence pierced by two gates.” His plans showed one of those gates as being narrow, for pedestrian access only, and the other as eight feet wide, to facilitate things like deliveries to the home. The board allowed him six feet only. Byrne didn’t like that, so he pursued administrative appeals and then a court challenge.

That’s what we’re here about today: a two-foot difference in the width of a gate. I recognize that property values in Old Town are astronomical. But two feet? Even so, it was enough to interest at least two justices on the panel that the case was worth a slot on the argument docket.

The circuit court took oyer of the administrative record that the City Council had when it heard Byrne’s appeal. After considering that, the court affirmed the six-foot requirement. On appeal, the Supreme Court first takes up the question whether oyer was appropriate for such documents.

The procedural tool of taking oyer is the process by which a defendant asks the trial court to metaphorically staple a document onto the plaintiff’s complaint. Normally in evaluating a demurrer, the court is limited to the four corners of the plaintiff’s pleading. Oyer allows the court to furnish a document on which the plaintiff’s claim depends, even if the plaintiff hasn’t attached it.

In an 1895 decision, the Supreme Court had seemingly limited oyer to “deeds and letters of probate and administration, not to other writings.” More recent decisions, however, have approved of courts’ taking oyer of many other kinds of documents. Today’s decision cements the broader approach: The Supreme Court rules that a trial court may take oyer of a missing document if “the missing document is essential to the claim.” This doesn’t mean that the court can consider anything that the plaintiff mentions obliquely, but if his claim depends on the document, then the plaintiff can’t force the court to decide a demurrer without it.

On the merits, the justices have little trouble in concluding that the City Council didn’t act arbitrarily or capriciously when it affirmed the architectural board’s determination. The Supreme Court accordingly affirms.



We visit the dark world of subrogation agreements today in Erie Ins. Exch. V. Alba, which arises here in sunny Virginia Beach. This appeal arises from a particularly scary event, a fire at a condominium complex. There’s no word in today’s opinion of any personal injuries, but the fire, sparked by one or more smoldering cigarettes, caused over $800,000 in damage to the building.

The condo association had purchased an insurance policy from Erie that contained a provision waiving subrogation by the insurer against individual unit owners. That means that Erie can’t sue the owner of the unit for negligence in causing the fire.

Ah, but the owner of the unit had leased it to a tenant. Erie paid for the damage and then sued her, claiming that her negligence had caused the fire. She responded by claiming the benefit of the provision that protected her landlord, the unit owner. Erie answered that the policy says nothing about releasing tenants; the tenant countered that she stood in the shoes of her landlord. Who’s right?

The circuit judge entered a declaratory judgment in favor of the tenant, but today the Supreme Court reverses and sends the case back for trial. The court interprets the policy language exactly as it’s written, and it never mentions tenants. As for the stand-in-the-shoes argument, the court rules that the tenant had no contractual relation with the condo association, so there’s nothing to indicate an intention to vary the relationship from the terms of the policy.

So, is Erie going to get a check from the tenant for $800,000? Not likely; she’s almost certain to be judgment-proof for a claim that large. But Erie has obtained a precedential ruling that might help it, and other insurers, with other claims.


Limitation of actions

It was painful to read Mackey v. McDannald, an appeal growing out of a claim that a lawyer had misappropriated stock proceeds that should have gone to his former partners’ survivors. The stock came from the conversion of a health insurer from a mutual company to a stock company in the 1990s. The surviving lawyer had been a partner with the firm for eight years before leaving in 1995. When he left, the remaining three partners organized a new partnership in their names only. The stock conversion came two years later.

The three former partners died between 1999 and 2002. After the last death, the former partner, now the only living member of the old partnership, learned about the stock. At this point, the survivor did something that he would no doubt come to regret: He changed the mailing address for the old, defunct firm to his own home.

Meanwhile, a former associate of the firm, assisting the widow of one of the deceased lawyers, found a reference to the stock and asked the surviving former partner about it. The response was, “I have looked into it. There is not enough money involved.”

Ah, but there was plenty of money. The account represented over 600 shares of the insurance company, plus another $20,000. Six years later, in 2009, the surviving partner directed the stock administrator to liquidate the shares and send the proceeds to him. In doing so, he used a letterhead – printed on his own computer – showing the old, pre-dissolution partnership name and his home address. The administrator mailed him two checks totaling almost $100,000.

Six years later, the former associate found documents referring to the stock. He tried to contact the surviving partner but got no answer. (Bad sign #1.) He called the stock administrator, and was told that he couldn’t get any information unless he represented someone entitled to the stock. But the administrator revealed that there had been some activity, suggesting that he contact the former partner. (Bad sign #2.) The associate eventually got confirmation of the liquidation and payment. He informed the widow he’d been helping and representatives of the other two estates. That led to this lawsuit, filed in 2015.

The circuit court faced a tough preliminary decision at trial. The defendant raised the bar of the five-year statute of limitations. The claimed conversion happened in 2009, six years before suit. The plaintiff estates asserted the tolling provision relating to using “direct or indirect means to obstruct the filing of an action.” The defendant replied that the action they posited – the defendant’s telling the associate that the stock was essentially worthless – predated the conversion, so it couldn’t have obstructed their filing suit; there was at that point no cause of action.

The court overruled this defense, finding that the timing of the obstruction was irrelevant. By misleading the associate, who had completely trusted the former partner, the defendant put the victims off the trail, with foreseeable results. Only when the associate stumbled on suspicious documents six years after the stock liquidation was anyone aware of what happened.

The circuit court found that the surviving partner had indeed converted stock belonging to the three estates. It awarded judgment for almost $260,000 in compensatory damages and added $100,000 in punitives. The surviving partner appealed.

Today the justices affirm in part. They agree with the trial court’s analysis of the tolling issue, ruling that “intent – not timing – is the touchstone of the inquiry.” The Supreme Court reverses one aspect of the award, holding that the surviving partner’s misleading statement to the associate inured only to the benefit of the widow for whom the associate was working; not the other two estates. But it concludes that the third estate had a valid claim for conversion of the stock. The justices remand the case; as I see it, the circuit court must now calculate the amount due to that one widow.

This opinion was hard to read because it speaks ill of the fitness of a lawyer. Justice Mims’s opinion for a unanimous court recites that the misleading of the associate “was an act that ‘involved moral turpitude.’” Yes, those quotation marks are real; this passage is in this opinion. And the opinion is going into Virginia Reports, for the appellant’s great-grandchildren to read decades from now. Finally, it’s foreseeable to me that the appellant lawyer will be getting a call – if he hasn’t received one already – from a State Bar ethics investigator, now that the justices have pronounced the death sentence for his future credibility as a lawyer.




(Posted May 14, 2020) This sleepy corner of the appellate universe just erupted. The Supreme Court of Virginia hands down three published opinions today, and the Fourth Circuit announces the long-awaited rulings in DC v. Trump and In re Trump, argued in December. The federal opinions run to 143 pages, so it’ll take me some time before I can post comprehensive analysis; I’ll read the opinions so you won’t have to.

The Fourth Circuit decisions involve claims that the president is violating the Emoluments Clauses by operating a hotel in the District of Columbia while he’s in office. Both rulings are 9-6, with Judge Motz writing for the majorities; the court rules against the president both times. I’ll post analysis as I go along through the course of the day. I might even be able to get to the Virginia decisions, including a very interesting reversal of an immunity ruling from Dickenson County.


Fourth Circuit

Today’s two opinions stem from the same litigation. The District of Columbia and the State of Maryland sued the president in his official capacity, claiming that his operation of the Trump International Hotel, while he occupied the Oval Office, violated the two Emoluments Clauses in the U. S. Constitution. During the pendency of the case, the plaintiffs sought and obtained leave to add individual-capacity claims against the president for the same conduct.

The president moved to dismiss the claims on immunity grounds, among others. He claimed that he was not amenable to official-capacity suit for his official acts, and that he was absolutely immune from individual liability for those official acts.

The district court rejected the official-capacity defense in an order. That order also provided that the court would address the individual-capacity issue separately. But after several months without such a ruling, the court directed the parties – not including the president in his individual capacity – to start discovery.

The president responded by noting an appeal under the collateral-order doctrine. Although the district court hadn’t formally ruled on his individual-capacity defense, he contended that starting discovery effectively denied him that immunity. Well-established precedent holds that immunity like this protects a litigant from the burden of participating in legal proceedings, including discovery, and not merely from ultimate liability. A denial of immunity before trial deprives that defendant of the benefit of that defense.

A few days after that notice of appeal, and two days after the record arrived at the Fourth, the plaintiffs voluntarily dismissed their individual-capacity claims without prejudice to their ability to refile.

A panel of the Fourth Circuit unanimously ruled in favor of the president last year, but the court voted to rehear the case en banc. I was in Richmond to watch those arguments – I like being present for history – and today, after five months, we have rulings.

The first of these is D.C. v. Trump, the individual-capacity issue. A nine-member majority of the court rules that the appellate court lacks jurisdiction to consider the appeal, and therefore dismisses it. The majority finds that the district court never ruled on the claim of individual immunity, so there’s no final adjudication of that issue. The district court had twice promised that it would issue an order deciding that defense, but the president appealed before getting such a ruling.

Six judges dissent. Judge Niemeyer writes the principal dissent, joined by Judges Wilkinson, Agee, Quattlebaum, and Rushing. These dissenters view the district court’s actions as a conscious effort to thwart appellate scrutiny. They cite previous holdings that allowed appellate review where a district court refused to decide an immunity issue. This is such a case, they feel, and is ripe for adjudication.

On the merits, the dissenters would hold that the state and the district lacked standing to sue. They reject the Rule 41 dismissal because it came after the appellate court acquired jurisdiction, which bars further acts by the district court.

Judge Richardson dissents separately, and alone. He agrees that the district court’s actions constitute an effective rejection of the immunity defense. But rather than address standing, he would decide the appeal in a different merits ground: The president isn’t answerable personally for his official acts. He bases that position on a holding from 1867, where the State of Mississippi sought to enjoin President Andrew Johnson from enforcing Reconstruction legislation. The Supreme Court back then had held that a president’s official acts cannot give rise to individual liability. Judge Richardson contrasts this with Clinton v. Jones from 1997, where President Clinton was sued for unofficial acts (the conduct preceded his becoming president, so it couldn’t be official-capacity).

The majority has an answer for the dissents’ appellate-ripeness contentions: In the cases cited by Judge Niemeyer, the district court had expressly declined to rule on immunity. Judge Motz states that no one has cited any case where there was no such express refusal. And since there’s no such refusal here, there’s no final adjudication of the issue.

In reading these opinions, you’ll probably note something unusual in the principal dissent: It contains stinging critiques of the district court’s motives. I’m accustomed to seeing sharp rebukes of rulings that the appellate court finds unwise. But as I see it, jurists as a whole perceive themselves as being part of a fraternity. That’s why, for example, appellate advocates are best advised to avoid personal attacks at a trial judge when pressing an appeal. They don’t like it when we do that (so I never do it). Judge Niemeyer accuses the district judge of acting in a “deliberately dilatory and, more probably, manipulative” manner and “deliberately calculated to avoid appellate review ….” He concludes that, upon considering the whole record, “it becomes pellucidly clear that the district court was not interested in addressing the immunity question for fear of creating an immediately appealable order.”

No, this is not an invitation for you to ping the trial court on appeal. They have robes, so they can do that; you still shouldn’t.

On to today’s second decision, in In re Trump. As the caption indicates, this is a petition filed by the president. After the district court denied the president’s motion to dismiss (on four non-immunity grounds) in the primary litigation, the president moved the court to certify the case for immediate appellate review. The court declined that request.

The president then filed a petition in the Fourth Circuit for a writ of mandamus that would direct the lower court to go ahead and certify the interlocutory appeal. A Fourth Circuit panel granted that relief and issued an order directing the district court to dismiss the litigation on standing grounds. But again, the full court granted en banc review, leading to today’s opinion.

By the same 9-6 margin, the full court rules against the president. Judge Motz again pens the majority. She begins by noting that mandamus is truly extraordinary, and isn’t suitable for a short-cut appeal. She cites three criteria for its proper use:

  • No other adequate relief;
  • A “clear and indisputable” right to relief; and
  • Appropriateness of the relief requested, in the court’s discretion.

She then turns to the two grounds upon which the president sought mandamus relief. First, he invoked 28 U.S.C. § 1292(b), which expressly permits interlocutory appeals. But the court rules today that that requires an agreement by the district court and the circuit court that such an appeal is appropriate. It’s not enough that an appellate court may find that a given ruling was wrong, or even an abuse of discretion: “Mere disagreement with the district court … does not constitute evidence that the decision was based on ‘whim’ or that the district court usurped judicial power.”

The president’s second argument was that it was “clear and indisputable” that there is no right of action. But the DC Circuit has stated that the question whether a litigant can sue the president for an Emoluments Clause violation is “unsettled,” thus making it neither clear nor indisputable. And an Inspector General reported last year that the president’s operation of the hotel “was a possible violation” of the Clauses. In short, this is an open matter for litigation; today’s majority concludes that that litigation must play out in the district court.

Judge Motz then turns to the president’s contention that the separation-of-powers doctrine bars judicial review here. As the majority phrases it, this is an assertion that “no court can order the President to comply with the Emoluments Clauses.” Judge Motz concludes that the duty to obey the law, and specifically the Clauses, isn’t an official prerogative; everyone has to obey the law.

I’ll pause here for a historical comparison. During the litigation over the Watergate audiotapes, President Nixon’s lawyer, James St. Clair, appeared before US District Judge John Sirica to argue whether the president had to obey a subpoena. St. Clair, couching his phrasing to reflect his reluctance, told Judge Sirica, “The president wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”

I’m not a separation-of-powers guru, by any means. But these arguments seem to me to be the same: The president need not obey the law unless he wishes to, and no Article III court can compel him to do so. In 1974, Judge Sirica rejected this bold argument, and the Supreme Court agreed, unanimously.

I hasten to add that the above doesn’t constitute a conclusion about the ultimate merits of the case. The president raises a strong argument about standing, one that the majority doesn’t reach, for understandable reasons. But Judge Motz rejects here the contention that no one can enforce the law against me, and in my view, she does so entirely correctly.

Let’s turn to the dissents. Judge Wilkinson begins, and if you’re a fan of his style, today’s opinion won’t disappoint. He finds the very presence of the underlying litigation to be so improper that mandamus is clearly and indisputable.

Judge Wilkinson posits a tough question that the majority never addresses: What form of relief is the district court supposed to grant here?

If it is the Trump Hotel that gives offense, are we to order its closure for the duration of the President’s term? Or are we to command divestiture of any presidential interest, beneficial or otherwise, notwithstanding the fact that divestment is traditionally disfavored in equity? Are we to place this single asset in some sort of not-so-blind trust? Are we to enjoin foreign dignitaries from patronizing the Hotel? Are we to bring in some third party to manage the Hotel’s ongoing operations? I have not the slightest idea.

He also questions whether the plaintiffs here – the state and the district – have suffered a cognizable harm, which again the majority declines to reach. He then expressly asserts that the majority’s judgment is an act of raw partisanship by the very judges who outvote him today. These are, indeed, strong and explosive accusations against one’s brethren and sistren on the same bench; but there are many more to come.

Judge Wilkinson decries what he sees as the modern tendency to resolve political questions in the courts instead of where they belong: in the ballot box. And he asserts that “the federal courts have never sustained an injunction against the President in connection with the performance of an official duty.” (Emphasis original) They have done so with presidential subordinates, but that’s distinction makes all the difference in the world to him. (For a Virginia parallel, consider Howell v. McAuliffe, in which the petitioners sought to enjoin the Governor of Virginia and several subordinates in connection with the re-enfranchisement of convicted felons. The Supreme Court of Virginia, in a highly fractured ruling, issued a mandamus writ against the Governor’s subordinates, but not to him.)

There are wry philosophical and even literary moments in Judge Wilkinson’s dissent. Here’s a particularly memorable one:

Even if we had the power to let this case go forward, prudence and any sense of judicial modesty should stop us from doing so. When faced with such an unprecedented case based on such tenuous constitutional grounds, we would do well to heed the ancient admonition against wanton abuse of judicial authority: “O, it is excellent / To have a giant’s strength; but it is tyrannous / To use it like a giant.” W. Shakespeare, Measure for Measure, act 2, sc. 2, lines 107-09. Not incidentally, the Great Bard was referring to a judge.

(I’ll interject a personal view here: The world is full of judicial opinions that cite Blackstone and Kent. But it’s always a special pleasure to see a reference to classic literature. This passage is a small sample of what makes Judge Wilkinson’s opinions enjoyable, even entertaining, to read. Just don’t expect beach reading.)

Judge Niemeyer’s turn comes next – because he’s the next most senior dissenter after Wilkinson; that’s how they line these up – and he again prods the district court for using what he sees as improper means to jury-rig a win for the states and the district, at the president’s cost. He echoes the standing problem that, he believes, should end the litigation. And he expressly calls on the Supreme Court of the United States to step in and correct what he sees as today’s string of errors.

On standing, Judge Niemeyer explores what he perceives as the key weakness of these plaintiffs’ suing. The thrust of this litigation is that the president enjoys a competitive advantage over other hotels and convention centers in the DC area, because of his status as president. Foreign and domestic visitors who seek to do business with the president, who curry his favor, predictably will choose to stay in the Trump International instead of competing hotels.

It’s a plausible thesis, but how does this harm governments? The plaintiffs offered three justifications, but this is the key one: “that the District and Maryland have a parens patriae interest in protecting their citizens from economic injury …” This won’t fly with Judge Niemeyer; again, recall that the majority never reaches this question, so we don’t have a judicial riposte to this thrust.

That’s the end of the dissents, but there’s one more opinion today, the shortest of the four. Judge Wynn pens a short (3½ pages) concurrence, joined by Judges Keenan, Floyd, and Thacker. He joins fully in the majority, but writes separately to address something I mentioned above. He sees inappropriate attacks by his dissenting colleagues, not just on the district judge but on the circuit judges in the majority. Here’s his thesis:

Editorial writers, political speechwriters, and others are free, of course, to make a career out of accusing judges who make decisions that they dislike of bias and bad faith. But the public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office.


The dissenting opinions abandon notions of judicial temperament and restraint by commandeering this case as a vehicle to question the good faith of judges and litigants that are constituent members of our Union.

Judge Wynn insists that the nine justices in the majority are doing their job as they see it; that they’re deciding only the question actually before the court (whether mandamus lies, and not whether the plaintiffs will eventually prevail on ultimate issues); that the majority decision is not, as the dissenters accuse, based on politics. This is a plea to judicial civility, something I’m not accustomed to seeing. But this litigation is itself unique, and seems to have inspired unique reactions.

No, this decidedly is not the end of the line. It’s highly likely that the president will take his two appeals across the Potomac and hope to get a friendlier reception at One First Street. That process assuredly will take us past November and even January. If the president is still in office next January 21, this case may still be relevant; if someone else occupies the Oval Office, I foresee a mootness dismissal.

Given the length of today’s opinions, I’ve given you the Reader’s Digest version of some issues and have skimmed others; for the full flavor, you’ll need to read them yourself. If you do that, see if you share Judge Wynn’s concern about intra-bench incivility. I believe he’s right: Even jurists shouldn’t resort to accusations of impropriety merely to strengthen a forceful legal point. The bench has long been a strong collective advocate for civility and professionalism among lawyers, and those unfortunate advocates who go too far may expect to be called down for it. When a jurist displays that kind of intemperate conduct, it sends a bad signal.


Supreme Court of Virginia

Let’s step across the corner of Capitol Square and see what the SCV hath wrought today. We’ll start in the far southwest – for your information, Virginia has a border with Kentucky, and Roanoke isn’t on it; I mean far southwest, as in Dickenson County – with Viers v. Baker. This is an interesting dispute between a prosecutorial assistant and a newly elected prosecutor. The assistant had worked in the office for 29 years. After the election, the assistant saw her future boss, congratulated him, and asked if she’d still have her job. He assured her that she would, and later repeated that to the administrative staff.

It didn’t last; on the fourth day of the new year, the new boss told the assistant that her work space was dirty, so she was fired. This came as a double surprise: Not only had he promised her continued tenure; cleaning her space wasn’t her job.

This firing didn’t go over well politically. The assistant and her husband were active Democrats, and the new Commonwealth’s Attorney was, too. The assistant was evidently well-liked within the local party, and some members started clearing their throats at the new officeholder.

At this point – assuming you believe the complaint, as the circuit court decided this case on demurrer – the prosecutor did a dumb thing. He decided to deflect blame by asserting, during a local party meeting, that he had fired the assistant because she had wiped his office computer, sort of cyber-stranding him. Again per the complaint, the truth was that the outgoing prosecutor had disabled his old password; when his successor called for help, the outgoing CA told him how to set up a new one. The problem was quite temporary, and it wasn’t the assistant’s fault at all.

You should know that tampering with a computer is a crime, and the new officeholder had just told several party faithful that the now-fired assistant was a crook. She sued for defamation and intentional infliction of emotional distress. A circuit court sustained the prosecutor’s judicial-immunity defense based on federal law (Imbler v. Pachtman, 1976) holding that a prosecutor shares judicial immunity and can’t be sued for exercising his official duties. The court dismissed the litigation in its entirety.

The Supreme Court today reverses the dismissal of the defamation claim. The trial court was wrong to turn to federal law, which doesn’t apply here. Under state law, a prosecutor gets the benefit of the James v. Jane test for immunity; but he isn’t absolutely immune as in federal court. The statement allegedly made at the party meeting wasn’t in furtherance of a prosecution, so this doesn’t fit within Virginia’s immunity jurisprudence. That means that the plaintiff gets to see a jury.

The court affirms the dismissal of the intentional-infliction claim. That has four prongs, and the court goes straight to prong 2, ruling that the prosecutor’s conduct, while perhaps ill-advised, wasn’t “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”


Next, in Padula-Wilson v. Landry, the justices take up a case with domestic-relations origins, but one that didn’t come up directly through the Court of Appeals. This is another defamation claim, and this one includes claims that a guardian ad litem and several experts in a custody case tortiously interfered with a mother’s relationship with her three children.

In the context of custody proceedings during a divorce case, a circuit court appointed a guardian ad litem and some healthcare professionals to evaluate the parents and their relationships with their children. Ultimately, these professionals recommended to the court that the father have custody and the mother have only supervised visitation. The mother appealed; the Court of Appeals remanded; and the circuit court granted joint physical and legal custody to both parents.

The mother then filed a tort action against all of the professionals, claiming that they tortiously interfered with her relationship with her children, and that one of the healthcare professionals had defamed her in his report. The circuit court sustained demurrers and dismissed the complaint, finding that tortious-interference didn’t cover this situation; that the proper place to challenge in-court testimony is during the trial, not afterward in tort litigation; and that the circuit court’s ultimate joint-custody order made the whole thing moot.

The mother appealed to the Supreme Court, which granted a writ. Today, the justices unanimously affirm. The Supreme Court agrees with the circuit court that the doctrine of tortious interference doesn’t apply here. No one took the mother’s children away wrongfully, and she received full due-process rights in the custody trial. Fundamentally, “no cause of action for tortious interference with a parental or custodial relationship may be maintained against a guardian ad litem or an adverse expert witness based upon his/her expert testimony and/or participation in a child custody and visitation proceeding.”

For what it’s worth, this ruling makes eminent sense. A disgruntled litigant has an avenue available – that’s what appellate lawyers are for – and suing adverse witnesses is no way to run a civil-justice system. And as Justice McCullough’s opinion observes, “dragging mental health professionals and guardians ad litem into court for their role in a custody and visitation case would be highly detrimental to the process.”

The court also affirms the dismissal of the defamation claim against one of the healthcare professionals. The circuit court had ruled that the statements were privileged, so the mother couldn’t sue on them. The justices today affirm on an alternate ground, finding that each statement identified in the complaint was a matter of opinion. Because that suffices to defeat the defamation claim, the court decides not to take up the trickier question of privilege.





(Posted May 11, 2020) After 15+ years of covering the Supreme Court of Virginia, I’ve seen a lot. It takes quite a bit to surprise me anymore. But sometimes …

Over the weekend, my appellate pal George Somerville sent me a passage from a 1974 SCV published opinion. What I read was jaw-dropping. I had to read it twice. All that process did was make my jaw drop a second time.

Because I love history, and because this story unfolds in an eerie parallel to one of our nation’s signal historical events, I’ll lay out the stories side-by-side.

In June 1972, three days before would-be burglars botched an attempt to break into Democratic headquarters at the Watergate Hotel in Washington, a defendant named Saunders received the unwanted gift of a substantial period of free room and board with the compliments of the Virginia Director of Corrections.

He appealed to the Supreme Court – there was no Court of Appeals back then – but the justices refused his petition for appeal in February 1973, a week after two of the ostensible burglars, Gordon Liddy and James McCord, were convicted in connection with the break-in.

Saunders then filed a habeas petition in the Supreme Court of Virginia. Instead of the grounds that we usually see nowadays – typically an assertion of ineffective assistance of counsel – he raised some interesting arguments about the nature of appellate review in Virginia. For example, his first claim arose from this statutory language: “A writ of error shall lie in a criminal case to the judgment of a circuit court … from the Supreme Court of Appeals.” Saunders argued, unsuccessfully as it turns out, that the use of the word shall meant that he was entitled to a writ as a matter of law.

But his second contention is what caught George’s attention, and mine. Saunders argued that the Supreme Court denied him equal protection of law by refusing his petition while granting others. Before you dismiss that out of hand, know that there’s more: He claimed that the Supreme Court had sharply curtailed the number of writs it granted. He cited a law-review article from 1971 (57 Va.L.R. 3 if you want to check it out) written by a couple of U.Va. Law professors, Graham Lilly and Antonin Scalia. The article bore the enticing title, Appellate Justice: A Crisis in Virginia?

I have your attention now, don’t I? The authors of that article accused the Supreme Court – that’s our Supreme Court; not the one in Washington – of rejecting meritorious petitions for appeal. Basing their argument on statistics showing a precipitous decline in writs granted, they asserted that the justices had stopped granting writs based on legal error, and were instead granting them only based on societal importance.

Sound familiar? Modern lawyers often mutter that the Supreme Court is refusing meritorious petitions – at least, they’re meritorious in the lawyers’ eyes – for one reason or another. This, then, is not a new refrain.

The Nixon era Supreme Court of Virginia decided that this issue was important enough to warrant one of those precious merits slots. The justices directed briefing and even oral argument on the habeas petition.

In April 1974, a week after substitute special prosecutor Leon Jaworski irritated the president by subpoenaing a certain set of highly incriminating audiotapes, the Robes in Richmond handed down their decision. In Saunders v. Reynolds, 214 Va. 697 (1974), the court recites the professors’ criticisms in detail. The opinion then addresses this critique: “We readily acknowledge that the increased number of petitions filed in recent years has created a greater burden for this court.” Id. at 700. But it continues that the justices “know, however, the cause of the apparent imbalance – the increase in the number of frivolous petitions presented.” Id. at 701 (emphasis in original).

The court insists that it evaluated each appeal based solely on merit, and denies that it refused petitions that would have been considered writworthy in years past. The court unambiguously blames “newly enunciated constitutional principles and the extension of rights of the indigent defendant” for tempting convicted defendants to appeal an issue, any issue, merely because they could. This is an unmistakable swipe at the 1960s criminal-law rulings from the Warren Court, likely including Gideon v. Wainwright, Escobedo v. Illinois, and Miranda v. Arizona. In the end, the court denies the habeas petition.

To me, the astonishing thing is that the court chose to address these issues at all. Today’s Supreme Court would never do that – this, at least, is my perception – and would instead regard its internal decisional process as being no one else’s business. You might occasionally hear statements about this topic at MCLE programs or at bar-association functions; but never in an official court publication such as an opinion in Virginia Reports.

There’s one other aspect of this scenario that merits mention here. I have statistics from the court going back to 1970. That year is likely the most recent set of stats that were available to Profs. Lilly and Scalia when they fired their broadside. I thought it might be interesting to compare that year’s numbers to those from 2019. Get ready for your jaw to drop this time:


Criminal petitions granted – 75

Criminal petitions refused – 354

Grant rate – 17½%



Criminal petitions granted – 27

Criminal petitions refused – 690

Grant rate – 3½%


The law professors saw the 1970 court’s granting only one criminal petition out of six, and felt that that was a crisis (their word, not mine). One can only speculate what they’d say about the modern court, which grants just one out of thirty.

Incidentally, if you handle civil appeals, you’re probably curious now about how those appellants fared in 1970. The answer is that they achieved success that you can only dream about: 127 grants against 182 refusals, for a grant rate of 41%. Last year, that figure was 16%, and it’s been that way for years now.

Finally, here’s a note on overall caseload. In 1970, the court granted 207 petitions for review and refused 669, for a total of 876 rulings. Last year, it granted 98 and refused 1082, which adds up to 1180 rulings. (I’m omitting last year’s 220 procedural dismissals.) That’s fewer than half the number of writs granted, despite an additional 300+ decisions.

Make no mistake: This is not happenstance but the result of conscious decisions at Ninth and Franklin to reduce the merits caseload. The alternative explanation would be that modern lawyers have become dreadful appellate advocates, and I don’t buy that. The justices are handing out writs with tweezers. If you get one, you’ve beaten some fearsome odds.