ANALYSIS OF OCTOBER 15, 2020 SUPREME COURT OPINIONS
(Posted October 15, 2020) After three barren Thursdays, we have opinions today from The Robes by the James. The Supreme Court of Virginia issues two published opinions today, plus one unpublished order.
An employer wins what may be a temporary victory in an injury-by-accident case today. The appeal is Alexandria Public Schools v. Handel. The claimant is a school teacher who was injured when she slipped and fell after stepping in a puddle of water in her classroom.
Her injuries were bad enough to warrant an ambulance ride to a hospital. She eventually filed a comp claim for “injuries to her right ankle, knee, hip, shoulder, neck, and back,” as today’s opinion reports.
Visits with two orthopedists revealed a nerve injury to the shoulder, which is the only injury at issue in today’s opinion. A deputy commissioner concluded that there was a causal connection between the undisputed accident and the shoulder injury, so the teacher got an award of benefits. The full commission and the Court of Appeals agreed.
But the Supreme Court unanimously vacates the award and remands the case today. The Court of Appeals had approved the finding based on the conclusion that
any injury causally connected to the accident—even if not connected to the sudden or mechanical change—is compensable. In other words, a claimant does not need to prove a structural or mechanical change in every part affected by an obvious accident as long as there is at least one sudden or mechanical change and each injury is caused by the accident.
It’s this analysis that leads to today’s remand. The Supreme Court holds that an “any injury suffices” approach is incorrect; the claimant must prove a connection between the accident and the specific injury. It remands to the CAV to address the claim in this light. It’s possible that that court will send it back down, since this calls for a factual determination. At that hearing, the employee may or may not be able to furnish the required proof of a causal connection.
Today’s opinion in Day v. MCC Acquisition addresses the interplay between a statutory interpleader proceeding and the old equitable doctrines that preceded that statute. At issue are uncertificated shares of stock in Trigon Healthcare, the successor to Blue Cross/Blue Shield.
Before that succession, a company named M.C. Construction owned a membership interest in Blue Cross. When that insurer converted from a mutual company to a stock company in 1997, M.C. Construction owned shares in the new company. From what I can tell from today’s opinion, no one ever issued stock certificates in that new company.
Two years later, a new company, MCC Acquisition, bought all of the assets of M.C. Construction. (Because of the similarity of the company names, I’m going to call this company “the buyer,” to make this analysis easier to read.) The purchase agreement gave the buyer title to all tangible and intangible property of the old company.
As you may recall, Trigon evolved through mergers and acquisitions into Anthem and then to WellPoint. At this point, WellPoint issued stock in itself in the name of M.C. Construction, and since the company was by that point defunct, sent the shares to the Unclaimed Property office within the Virginia Department of the Treasury. The Treasurer sold the stock and plunked the money into the Richmond Circuit Court during an interpleader action.
This led to competing claims to the money. The buyer asserted that it had a right to receive the funds, because it had bought all of M.C. Construction’s assets, including intangible ones like claims to corporate stock. M.C. Construction replied that the buyer’s claim was for breach of contract – the failure to turn over the stock – and the five-year statute of limitations for a contract claim had long expired.
A circuit court judge ruled in favor of the buyer, holding that there was no evidence of any stock certificates in existence before 2008, when the Treasurer got WellPoint shares. What the buyer got was a chose in action, and since this is an interpleader proceeding, the breach-of-contract limitation period didn’t apply.
The Supreme Court agrees today. This is an in rem proceeding, not an in personam contract action. The circuit court’s task was to ascertain who the rightful owner was; not to adjudicate a claim that X owed money to Y. As today’s opinion notes, “no party currently maintains a claim against the other for anything.” The court’s discussion contains a detailed examination of the nature of stock ownership and of in rem actions. Because this isn’t a contract claim, the circuit court correctly declined to apply a breach-of-contract statute of limitations, and correctly awarded the funds to the buyer.
TWO INTERESTING SCOTUS APPEALS
(Posted October 7, 2020) While we hold our collective breath to see if The Robes in Richmond will hand down any published rulings tomorrow, I thought I’d mention a couple of interesting appeals on the other side of the Potomac.
On Monday – the celebrated First Monday in October – the Supreme Court of the United States heard argument in Carney v. Adams, an appeal challenging Delaware’s attempt to keep its higher-court judiciary balanced between Republicans and Democrats. The law there states that judges are appointed so that one party has a bare minimum majority. The state’s supreme court, for example, has three Ds and two Rs. This, the thinking goes, ensures judicial balance.
What’s wrong with that, you ask? The problem, from the perspective of respondent Adams, is that not everyone is a Democrat or a Republican. This system disqualifies anyone affiliated with a minor party, or no party at all. They’re simply ineligible.
There are two issues here. The threshold issue is procedural: Adams indicated that he wanted to be considered for a judgeship, but he never formally applied. He regarded that application as a useless and futile step. The Court will have to consider if, in light of this, he has standing.
The second issue is on the merits: Can a state systematically discriminate against those folks who decline to adopt a particular political affiliation? A district judge answered that question in the negative, and the Third Circuit agreed, striking down the provision.
The comparison with Virginia is easy: Our judges don’t have express party affiliations, so there’s no overt requirement to be a member of any party. Tacitly, though, even casual observers realize that a politically unaffiliated candidate for a Virginia appellate court starts out in a deep hole, because politicians – members of the General Assembly – choose who gets a robe here. If you don’t like this system, consider that in 22 states, voters choose jurists after sometimes nasty political campaigns. That stomach-turning prospect is enough to make you warm to our system, with all its warts.
The next case I’ll mention is for procedure geeks: Ford Motor Company v. Montana 8th Judicial District, which is being argued as I type this. This appeal will determine whether SCOTUS jurisprudence will continue its steady move back to the old Pennoyer v. Neff doctrine.
Here’s the issue: A driver was killed in a wreck in Montana. Deciding to sue Ford on a products-liability theory, the decedent’s personal rep filed the suit in Montana. Ford replied that it wasn’t subject to in personam jurisdiction in the courts of that state. Oh, yes you are, replied the plaintiff, pointing out that Ford advertises extensively there, and ships cars to dealerships in the state.
But Ford pointed out that its alleged negligent act of manufacturing the car occurred in a plant in Kentucky. And a Ford dealer in the State of Washington sold the car to the original purchaser. Ford claimed that there was no causal connection between its advertising/dealership activities in Montana and this collision.
This raises issues of personal jurisdiction, which can be general or specific. Under recent SCOTUS jurisprudence, Ford is “at home” in Michigan, where its headquarters are, and in Delaware, where it was incorporated. That means that the courts of those states have general jurisdiction over the company; you can sue it for any cause of action there, even cases where the injury or other default occurred elsewhere.
Special jurisdiction requires that Ford’s contacts with a forum state “give rise or relate to” the plaintiff’s claim. Thus, if the decedent’s car had been made or originally sold in Montana, then that state’s courts could hear the case. This appeal turns in part on whether “give rise to” means pretty much the same thing as “relate to.” The former suggests proximate causation; if that’s the test, then it looks like the plaintiff will have to pack its bags for a Michigan or Delaware court. The plaintiff’s lawyers are arguing that the two phrases have different meanings, and “relate to” is broader. The plaintiff argues that a ruling in Ford’s favor would dramatically limit longarm jurisdiction, meaning that many plaintiffs will simply give up and not pursue a claim that must be brought in a remote jurisdiction.
The Court will hear hot-button issues in other appeals in this Term; these two cases will interest a far more limited audience. I’m not much good at making forecasts in SCOTUS appeals, but since I’m not betting my mortgage on this, I’ll go ahead: I believe that the challenger, Adams, will win in the Delaware judiciary appeal, and Ford will secure a valuable ruling in its case. If you went to law school and learned that International Shoe v. Washington was the gold standard in personal jurisdiction, you have some catching up to do.
NOTE ON RECENT APPELLATE DEVELOPMENTS
(Posted September 30, 2020) Today brings to a close a tumultuous third quarter of a year that most folks will be happy to see in the rear-view mirror. Let’s look around the landscape.
We may get one or more published rulings tomorrow, but those will fall in the fourth quarter. With the third in the books, I can update the D-GI.
Except there’s not much to report. The Supreme Court of Virginia handed down just five published opinions in the past three months. Nope; not a typo. Only two of those had the kind of big-guy-vs.-little-guy dynamic that made them suitable for our index, and the warring combatants split those. That brings our running total for the year to 12 wins for David and 27 for Goliath, for a year-to-date D-GI of 31-69.
On the coming appellate drought
First, the good news: The advance November session docket is out, and there are 19 appeals on it. That’s great! It reflects a noticeable uptick in business since the eleven-appeal September session, and a huge increase since June’s micro-session of just five merits appeals.
But there’s bad news, in multiple doses. The 800-pound gorilla among them is the fact that the pandemic and the accompanying judicial emergency have yet to affect the justices’ merits dockets. Appeals don’t mature fast enough for that. The appeals that advocates will argue in November come from final judgments that came down before the original declaration of judicial emergency on March 16, 2020.
How do I know this? The easy answer is that of the 19 appeals, 16 have record numbers that begin with the number 19. That means that the Supreme Court Clerk received the record last year. Another two appeals bear record numbers beginning with 20, but they’re among the first 100 records received – so the records arrived at Ninth and Franklin in January.
The final appeal in this group is one that’s been racing through the appellate system: City of Charlottesville v. Payne, Record No. 200790. The case-information page for that litigation shows that the circuit court issued a final order on January 29, 2020. The Supreme Court received the petition for appeal on June 15 – the appellant received the benefit of tolling of the deadline to file the petition – and the justices granted the writ August 20, just three weeks after receiving the record. That’s lightning-fast.
This means that all of these appeals predated the pandemic. The abrupt (and very necessary) halt of jury trials has slowed the usual current of final judgments to a trickle, so future dockets should eventually bear out that slowdown. The January merits docket may still be robust, as the justices granted a surprising number of appeals from the May writ panels. But the October 20 panels are out now, and they contain about 40 appeals, down from the customary load of about 65.
This, in turn, means that next year – probably starting with the February argument docket, but assuredly in April, June, and even September – we’re looking at the very real possibility of more micro-sessions like this past June’s. This slowdown will linger as long as circuit courts wrestle with slower-than-normal trial calendars, with a lag of about eight months for writ arguments and a bit over a year for merits appeals.
One last item of good news: The Chief Staff Attorney’s Office slated an added writ panel in late August, so incoming business as of then was still healthy. Now if we could only persuade the justices to grant a greater percentage of writs.
Remote arguments continue
I reported earlier that the Court of Appeals of Virginia will hear all arguments remotely through the end of 2020. The Fourth Circuit is announcing its decision one argument week at a time; the court recently notified litigants that in-person oral arguments in the October 27-30 sitting would be suspended. Those parties will appear by video or teleconference, continued to next year, or submitted on the briefs. The Supreme Court of Virginia’s October 20 writ panels will be by telephone only, while the November merits session “will be held remotely.” I don’t know if that means telephone only, as happened in April, or by Webex videoconference, as happened in June.
Personally, I long for the return of in-person oral arguments, the best part of an appellate practice. I expect that at some point next year, the three courts will welcome advocates into a courtroom again. The SCV might be able to pull off an in-person session if the docket is small enough, as the courtroom is large enough – it seats 144 in the gallery alone – to permit healthy distancing. We’ll see.
A new SCOTUS Term looms
Appellate courtwatchers know that next Monday is the fateful day known as The First Monday in October, when the US Supreme Court’s October Term 2020 begins. Yesterday, the eight justices held what’s known as the long conference, in which they considered which pending petitions for cert to grant. It’s longer than other conferences because it includes all petitions that have matured for decision during the Court’s briefer-than-usual summer recess. We should get an order list Monday listing those precious few appeals that won writs, and the masses that didn’t.
Because of the passing of Justice Ginsburg, it’ll be a bit harder for appellants to get a cert grant. That’s because it takes four votes to grant cert, and there are, for now, only eight possible votes. In the coming Term, assuming the Senate confirms Judge Barrett as a justice, you should expect fewer writ grants in the kind of cases that liberals love. That’s because it’ll be harder for the three remaining liberal justices to convince one of their conservative colleagues to agree to accept a case. And even then, a cert grant might prove ominous, because the conservative majority may well choose to grant a writ to enable the Court to strike down a prior holding that went the “other” way. It won’t be a boring Term. UPDATE October 2: I was off by one business day. The Court issued its order list at 9:30 this morning, granting seven petitions and consolidating them into four arguments in the coming Term.