ANALYSIS OF FEBRUARY 3, 2022 SUPREME COURT OPINIONS
(Posted February 3, 2022) Brevity, the Bard assures us, is the soul of wit; Dorothy Parker adds that it’s also the soul of lingerie. Today that justices take that advice – well, Shakespeare’s, anyway – by issuing two of the shortest published opinions you’ll ever see.
The Constitution requires that a criminal defendant “be confronted with” the witnesses against him. In Cortez-Rivas v. Commonwealth, the court “confronts” a contention that the language translator in a police interrogation must be called as a witness at trial. A detective questioned Cortez-Rivas in connection with a sexual-abuse investigation. Because the suspect was a native Spanish-speaker, a police officer who spoke that language attended and translated the questions to the suspect and the answers to the detective. A police body camera recorded the entire interview.
At a subsequent trial, a different translator, fluent in Spanish, testified. She had viewed the video and had produced a transcript, without any input from the original translator. Cortez-Rivas objected that the prosecution hadn’t confronted him with the original translator. The trial court shrugged off that objection and a jury convicted the defendant; the Court of Appeals refused a petition for appeal.
Today, the Supreme Court affirms. The original translator wasn’t a witness against the defendant. His absence was thus immaterial to the case. The jury only heard from one translator, and she testified and was subject to cross-examination at trial.
In a footnote, Justice McCullough, who authors this three-page opinion for a unanimous court, observes that there’s a split of authority over whether a translator must testify to satisfy the constitutional requirements of the Sixth Amendment. But because of the posture of this case, the court need not confr-
Oh, I can’t say it again. The court reserves this question for another day.
A rare procedural development is at the heart of Godlove v. Rothstein, from Shenandoah County. This was a suit to establish an easement, and specifically the right of the dominant-estate owner to build a driveway across the servient tract. The circuit court ruled that Rothstein, who owned the dominant tract, did have such a right. The servient owners got a writ.
While the case was on appeal, Rothstein sold his property. He then did what I consider an admirable thing: He moved the Supreme Court to dismiss the appeal and vacate his victory below.
The court is happy to oblige him; it agrees that the case is now moot. This decision reflects the importance of the appellate process: Until and unless the appellate court issues a final judgment, the case isn’t over yet, because appellants have a right to have their challenges heard. Otherwise, the appellee could win below and then prevent any effective review of a judgment that the losing litigants might not want to be saddled with.
But there’s more. The appellants asked the Supreme Court to tax almost $3,000 in costs against Rothstein, claiming that they had prevailed in the case. Oh, no, you didn’t, the court explains today. When an appellate court dismisses an appeal as moot, the court regards neither party as substantially prevailing. No reversal, no costs. Each side must bear its own litigation expenses here.
Justice Kelsey pens this short decision, also just three pages long. For curiosity’s sake, I counted the number of words in each opinion to see which one was more concise. (Actually, I cut and pasted them, and Microsoft Word did the counting for me.) Justice McCullough wins the brevity sweepstakes with an opinion that comes in at a bit over 800 words; Justice Kelsey manages to squeeze in over 950 in his three pages. (In fairness to him, he had to resolve two legal issues, not just one as in Cortez-Rivas.) Speaking as a consumer of the court’s opinions, I can say that this is my kind of opinion day.