A TRAIN WRECK AVOIDED

(Posted December 2, 2019) I reported recently on a very rare development at Ninth and Franklin: a looming motion hearing before the full Supreme Court. I’d never heard of such a thing, and after mentioning this to some of my appellate pals, they shrugged as well. The motion sought to compel a lawyer-legislator to stop using Code §30-5 to extend indefinitely the deadline to file a brief of appellee in a granted appeal.

For those of you hoping to see some fireworks, I’m going to have to disappoint you. The appellee saw the freight train coming and decided to get off the tracks. The brief of appellee hit the Clerk’s Office one day before the appellee’s pre-hearing letter brief was due. Since that filing resolved the motion, the Supreme Court has removed the hearing from tomorrow’s docket.

This is good news in one regard for the lawyers who’ll be presenting or monitoring writ arguments tomorrow: They’ll get home sooner. The court had set the motion hearing for 1:00, which is the normal start time for writ panels. That would have set everyone’s schedule back by 30-45 minutes. At this point, I expect writ arguments to begin at 1:00, ending somewhere around three hours later.

Back to the motion itself: I strongly suspect that the justices were relieved that the lawyer capitulated instead of defending his statutory right to an automatic continuance. This could have been a real turf war between the legislative and judicial branches of government, at the highest level. With a declining number of lawyers in the General Assembly, perhaps this perk is less important to the legislators now. But an endless delay is an intolerable price to pay for that statute, and I sense that the court would have found a way to compel him to file, holding that he had somehow waived the privilege. For now at least, we won’t know the answer. Let’s hope we never do.