(Posted August 30, 2018) I’m later than usual in posting analysis of the Supreme Court’s Thursday morning opinions. I have a good excuse: I appeared this morning before a writ panel that convened here in beautiful Virginia Beach. The justices were gracious as always – the legendary mean ones are all long-gone by now – and I’m back to analyze today’s lone published opinion.

Before jumping in, the history geek in me needs to mark today’s anniversary of the first convening of the Supreme Court, in Williamsburg in 1779. The original court had six judges — not an ideal number for resolution of disputes; but they managed somehow — and Edmund Pendleton was the first president of the court. Upon being sworn in, he turned around and swore in his colleagues, including a couple of estimable jurists named Wythe and Blair.


Public service companies

Appeals from the State Corporation Commission are of-right, meaning that the appellant doesn’t have to go through the writ process as I did this morning. Because there’s no petition stage, you might expect that there would be a host of SCC appeals in Virginia Reports, but actually there are relatively few. Today, the justices decide City of Alexandria v. SCC, an appeal of the SCC’s approval of a surcharge by three water utilities.

The utilities asked the SCC to approve a small surcharge – less than 50 cents a month – to help them update aging infrastructure. The SCC approved a three-year pilot program in one jurisdiction with several limitations and consumer protections. That didn’t sit well with two of the cities involved, so they exercised that automatic-appeal right and headed to the Supreme Court.

There are two issues in today’s appeal. The first is whether the SCC has the authority to approve the surcharge. The analysis of this issue takes several pages, but the ultimate ruling is that such authority does exist. The Constitution of Virginia gives the SCC authority over railroads, phone companies, and gas/electric companies. That doesn’t include water utilities. But the constitution also allows it to exercise “such other powers and duties not inconsistent with this Constitution as may be prescribed by law,” and the legislature has statutorily extended to the SCC the right to regulate water rates charged by public service companies.

The second issue today is sufficiency of the evidence. The justices have no difficulty in affirming on the SCC’s record. While there was a disagreement among experts, the factfinder gets to resolve that. The court also finds the limitations and consumer protections to be appropriate, and concludes that the SCC’s decision is consistent with the evidence before it.



Yesterday the court handed down a short published order in Madison v. Loudoun County. Madison is a frequent flier in the judicial system, especially when it comes to suing Loudoun County and its departments and officials. Last year, she filed an original-jurisdiction action in the Supreme Court, but the court dismissed that in February and directed Madison to show cause why she should not be sanctioned.

We don’t know what cause she tried to show, but whatever it was, it wasn’t enough. Today the court imposes two sanctions. It directs Madison to pay over $4,000 to the county for its legal fees in responding to the petition. And it imposes a prefiling injunction against her, prohibiting her from suing the County or its divisions or departments, unless she obtains either a licensed Virginia lawyer to represent her, or leave of court.

It’s this last holding that gets the per curiam order published. This is the second prefiling-injunction sanction that the Supreme Court has imposed in just over a year; the most recent one was in Adkins v. CP/IPERS Arlington Hotel in June 2017. This signals that while the justices respect the public’s right of access to the courts, they won’t tolerate abuse of that right.