ANALYSIS OF AUGUST 27, 2020 SUPREME COURT OPINION
AND RICHMOND STATUE APPEAL
(Posted August 27, 2020) The Supreme Court has issued two significant decisions in the past 24 hours. This morning, it hands down a published opinion in an appeal involving the always tricky boundary between misnomer and misjoinder. Yesterday, the court issued an unpublished order in an injunction appeal over the Richmond mayor’s decision to remove Confederate statues in the capital city. We’ll take them up in that order.
In a decision that conjures the recent case of Richmond v. Volk from 2016, a sharply divided court reverses the dismissal of a vehicular-tort suit in the Richmond Circuit Court. Today’s ruling is Hampton v. Meyer.
The problem arose in understandable fashion. Three persons were injured in three separate cars in a collision on Christmas Eve in 2016. Rescue personnel transported all three to a hospital. Police officers presumably came to the hospital to investigate.
An officer generated an accident report that contained an error. It identified the driver of one of the vehicles as a man we’ll call Dad. Dad was one of the owners of the vehicle (along with Mom), but Son was actually the driver. The police officer mistakenly slotted the owner’s name where the driver’s name should have been.
When an injured party filed a lawsuit just under two years later, that suit was styled Victim v. Dad. A month later, after service of process – and, of course, after the two-year anniversary of the collision – Dad’s insurer told Victim’s lawyer, “You’ve got the wrong defendant. Dad wasn’t driving.” Victim’s lawyer then nonsuited and refiled the action as Victim v. Son; the allegations in the two complaints were functionally identical. The refiled complaint specifically referenced Richmond v. Volk as authority for the change of name, with relation back.
Son raised a statute of limitations, arguing that this wasn’t like the Volk case. There, the plaintiff had mistakenly sued by using the defendant’s correct given name and an incorrect surname. Here, the complaint identified a real person – Dad – and that, he argued, is a classic case of misjoinder. The circuit court agreed and dismissed the case.
As I noted above, the court reverses today and sends the case back for trial. A bare majority of the court finds that this is indeed a misnomer, as the body of the complaint specifically describes a person – the driver of a given vehicle at a specific date, time, and place – but names that person incorrectly. Applying the holding of Volk, the majority holds that this was sufficient to identify the party sued, so the circuit court should have permitted the second suit to go forward.
Three justices dissent. They acknowledge the Volk ruling and the importance of stare decisis, but insist that a deeper dive into the court’s misnomer rulings compels a different result. The dissent collects cases where the court found misnomer and those where it found misjoinder, before concluding that a situation like this fits better into the latter category. The discussion also includes a passage with the irresistible title, “The Defendant-Got-Lucky Factor.”
A word about the lineup: Justice Mims writes the majority opinion, joined by Justices Goodwyn, Powell, and McCullough. All of those but McCullough had been in the Volk majority. Justice Kelsey writes the dissent – I wonder how many times I’ve written that phrase recently – as he did in Volk, and the newest Justice, Chafin, joins him. One justice effectively shifts sides: The chief justice had voted with the Volk majority, but joins the dissent here.
Justice Kelsey goes out of his way to acknowledge Volk and the importance of stare decisis. He concludes his argument by noting that “the majority’s reasoning … is defeated by, not justified by, stare decisis.” Reading his opinion carefully, I believe that you’ll conclude that what he’s saying is that adhering to pre-Volk rulings compels affirmance. I sense that he continues to regard Volk as wrongly decided, and I suspect – but it’s only a suspicion – that if he had three accompanying votes, he’d overturn it in favor of earlier misnomer/misjoinder rulings.
While Hampton v. Meyer will be of interest to lawyers, Stoney v. Anonymous will make headlines across Virginia. The court today rules on a petition for review filed by the Mayor of Richmond to address an injunction issued by the circuit court of that city. For those who haven’t been following the uproar, here’s what happened:
If you’ve driven along Monument Avenue anywhere in the past century or so, you’ve seen the statutes honoring several prominent people. All but one – Arthur Ashe, whom I revered in my youth even though I didn’t play tennis – depicted someone associated with the Confederate States of America.
I attended college in Richmond, a long time ago in a galaxy far, far away, and I remember seeing those statues without thinking much about the historical context. I learned that Generals Jackson and Stuart’s equestrian depictions faced north, because they perished while fighting the northern enemy; while General Lee, who survived the war, is shown facing his beloved South. Beyond that, I really didn’t think about the statues much, if at all.
Being young and stupid – those were my dual majors in college – it never occurred to me back then to look at the statues through anyone else’s eyes. All that changed, of course, in the past several years. The statues, I learned, were erected not merely as memorials to admired southern heroes, but as a means of showing the minorities of 130 or so years ago what their place was. I learned about the timing of the statues and their connection with Jim Crow. I learned that Virginia history wasn’t quite what I had learned in the fourth grade.
You know what happened. Eric Garner happened. Breonna Taylor happened. George Floyd happened. In the spring and early summer of this year, Richmonders had had enough. Protests erupted at and around the statues, with calls for their removal. The General Assembly, newly in Democratic hands, had passed a law permitting localities to remove statues using certain procedures.
On July 1, the day the new law took effect, Mayor Stoney introduced in the City Council a proposal to authorize him to remove the statues on an emergency basis. The proposal was set down for one day, to July 2, but that follow-up meeting never materialized. Instead, the Mayor directed the immediate removal of the statues, one at a time beginning with Stonewall Jackson and continuing onto Matthew Maury and eventually J.E.B. Stuart. Gen. Lee, who stands watch from state property, remains, though I believe that the tide will eventually wash him away, too.
Six days after the first statue came down, a citizen identifying himself only as Anonymous filed a petition in Richmond Circuit Court seeking an injunction to prevent further removals. He (that’s a guess; today’s order doesn’t specify a gender) claimed to be an “interested person” who wanted to voice his opposition to the removals, only to be thwarted by what he saw as the Mayor’s extralegal emergency action. He cited the new state statute and a companion local ordinance, both of which specified more detailed procedures than the Mayor’s summary actions.
Two days later, the circuit court convened a hearing, at the conclusion of which it granted the injunction barring the Mayor from further removals. The Mayor filed a petition for review five days later under Code §8.01-626, which authorizes a snap appeal of an order granting or refusing an injunction. Anonymous responded six days after that, on July 20. The parties then settled down and waited.
Today, the court hands down an unpublished order – sort of; more on that later – that reverses and dissolves the injunction. While there are several intriguing angles to this case, such as whether you can file suit without identifying yourself at all, the court today resolves only one legal issue. It holds that neither the Code of Virginia nor the Richmond ordinance creates a private right of action permitting anyone to sue to enforce the obligations. Okay, the City Attorney can file suit under the new Code provision; but not a private citizen. Because Anonymous didn’t have the right to sue to enforce the statute or ordinance, the court doesn’t have to address the other issues.
This case is part of the Supreme Court of Virginia’s shadow docket, a term coined by a University of Chicago law professor in referring to SCOTUS cases decided summarily, without argument. There’s no public proceeding; there’s no published opinion; just an order that resolves the issues in the case without creating precedent. It’s even less visible than your garden-variety unpub because the SCV doesn’t even post it on its web page of unpublished orders. Unless you know to look for it, you won’t find it. If any of you, my beloved readers, want to read the order and can’t get it elsewhere, send me an e-mail and I’ll shoot you a copy. (UPDATE August 28 — The court notified the public this morning that it has posted the order on its unpubs page, so you can access it there now.)
Continuing a trend that I’ve seen in recent years, the full court – minus Justice Goodwyn, who didn’t take part because a first-rate appellate lawyer from his wife’s law firm joined as counsel in the Mayor’s pleading – decides this petition. That isn’t exactly the way the statute and Rule 5:17A specify that the court handles these petitions. The statute authorizes a single justice to act; the rule permits action by a single justice or a panel.
In recent high-profile proceedings like this – for a recent example, consider the Capitol Square gun-ban case back in January – the full court considers and decides the matter. This, I sense, is the court’s way of lending heft to its rulings, and to convey to the losing litigant that he didn’t lose merely by an unlucky draw of three justices. It’s a singularly wise way to handle these hot-button issues, though it does consume more judicial resources.
One last point: Yesterday’s order vacates the temporary injunction only. The case technically remains pending in the circuit court for proceedings for a permanent injunction. But analytically, this is the end of the line; a finding that there’s no private right of action effectively kills the entire case. I expect a swift dismissal order as soon as the SCV Clerk issues the mandate.