ANALYSIS OF JULY 6, 2017 SUPREME COURT ORDER

(Posted July 6, 2017) You read that right – today we’re looking at one of the Supreme Court’s unpublished orders. The justices generally dispose of somewhere around 40% of their merits docket by unpubs. Under Rule 5:1(f), practitioners are free to cite unpubs as persuasive – technically, “as informative” – though they aren’t binding authority.

Even so, you need to know about Center for Public Integrity v. TitleMax of Virginia because of what it says about appellate practice, and about the justices’ views on assignments of error. It’s an admin-law appeal from the State Corporation Commission, so Rule 5:17 doesn’t govern it; this one stems from the court’s interpretation of Rule 5:21(a)(7). Still, the decision involves specificity of assignments, and this ruling tells me – actually, it confirms my previous view – how the justices evaluate that specificity.

The Center for Public Integrity is an investigative news group. Its mission statement is, “To serve democracy by revealing abuses of power, corruption and betrayal of public trust by powerful public and private institutions, using the tools of investigative journalism.” From that, you can probably figure out why it would be interested in auto title lenders, an industry that generates fast cash via short-term loans with what most borrowers would regard as breathtaking annual interest rates.

The Center sent a request to the SCC for copies of required financial reports from several title lenders. The Commission normally publishes aggregated statistics on title lenders, “but it has historically treated each lender’s report as confidential due to the potentially sensitive information contained therein.” Because this request called for individualized information, the SCC let the lenders know about the request, and indicated that it intended to release the records unless they spoke up.

The lenders filed petitions in the SCC asking that the individual information be kept confidential. They pointed to a statute that protects from disclosure “any personal financial information” submitted to the relevant bureau. The Code doesn’t define that phrase in this context, but the lenders noted that it elsewhere generally defines person to include companies. The Center replied that in this context, the phrase should only apply to natural persons.

The SCC, acting in its adjudicative function, decided that the phrase was ambiguous. But instead of resolving the ambiguity, the Commission punted, concluding that its long-standing practice of releasing only aggregate data had not been overridden by any legislation that would require a change. In essence, it decided not to decide, thereby allowing the lenders to back into the winner’s circle.

The Center appealed, and since appeals from the SCC are of-right, it didn’t have to go through the usual writ process. Here are the two assignments of error, the language of which turns out to be fatal to the appeal:

1. The Commission erred as a matter of law by finding that § 6.2-101 prohibits the Commission from disclosing the un-redacted and noncumulative § 6.2-2210 Annual Reports of [Lenders] to the public.

2. The Commission erred as a matter of law by finding that the term “personal financial information” contained within § 6.2-101 is ambiguous and thus encompasses [Lenders’] financial information.

Did you spot the fatal flaw? No? It isn’t obvious until someone points it out to you, so I’ll act as your tour guide: The SCC never actually made either of the exact rulings that these two assignments identify. It never ruled that Code § 6.2-101 prohibits anything; it simply held that the statute didn’t require the SCC to treat the information otherwise than its previous practice did.

As for Assignment 2, the fatal language is “and thus encompasses” the information. The SCC never got to that point in the analysis. The coup de grace comes in this passage of today’s order:

Thus, even if the Commission ultimately had concluded that the Center’s interpretation of Code § 6.2-101 (A) was correct, that would only mean that the statute does not prohibit the Commission from releasing the reports. It would not mean that the Commission is required to release them.

There’s one other noteworthy ruling in today’s order that points out a vital difference between SCC appeals and ordinary appeals. One of the lenders had assigned cross-error, though today’s order doesn’t describe the issue. Instead, it states in a footnote that SCC appeals under Rule 5:21 do not permit cross-error, so the justices swat that aside without reviewing it.

What’s a mostly satisfied SCC litigant to do if it wants to cross-appeal? There’s only one way to do this, and that’s to note and pursue your own appeal, even if you won. Your appeal is of-right, too, so you’ll get review on the merits – assuming you phrase your assignments carefully.

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I regard today’s order as all-too-predictable bad news. It’s bad because it fuels the perception that appellate courts are labyrinths with landmines: dizzying, mystifying, and dangerous. This perception is quite real in trial lawyers’ minds, and is widespread here in Virginia. As I’m finding from talking to those lawyers, that perception is driving them out of the appeals business.

In turn, that’s good for my business; but even appellate veterans are concerned on occasion that the court might take an unforeseen view of the language in assignments, with damaging consequences for our clients. If the appellate pros feel this way, who’s to say that the trial lawyers are wrong?

This isn’t the way things should be. In my opinion, courts of all varieties should be user-friendly. Erecting barriers to merits review – such as by extremely harsh interpretations of briefs – impairs the court’s public image. The court isn’t a business that depends on its public image for economic success; but we’re talking about public confidence in a branch of government. That matters.

This development is predictable because it’s entirely consistent with the way the court has dealt with many other imperfections in assignments of error. Of all the sections of an appellate brief, the two that deserve the most careful scrutiny are the assignments of error, where you frame the appellate issues, and the conclusion, where you set forth the exact relief you’re requesting. A mistake in either of those can lose a potentially winning appeal.

I continue to believe that the court doesn’t have to, and shouldn’t, treat its litigants – the “consumers” of the court’s services – like this. It’s entirely possible for appellate courts to look at the issues on appeal less strictly, to get to more merits rulings. I’m aware of the countervailing argument, which is that specificity of assignments informs the appellee (and the court) of exactly which issues are at stake in the appeal. It’s not right to allow the appellant to set up a moving target.

But other appellate courts, such as the federal circuit courts of appeal, operate with a less-strict statement of appellate issues, which identify generally what the appeal will be about. These statements can encompass sub-issues that Virginia litigants might not think to add to the list of assignments (with fatal consequences here). The sky doesn’t seem to be falling at 1100 East Main; the Fourth Circuit and its sister circuits get along just fine with those more general statements, as do a majority of other states’ appellate courts. Virginia is one of a few holdout states that cling to binding assignments of error. I can’t say whether our sister states interpret the language of assignments as strictly as our justices do.

I’ll add one last point for those of you who might perceive that the current system is unfair.

Years ago, when my daughter was a little girl, I explained to her that our family was a democracy, and we voted on what we do. I added, “You’re a member of the family, and you get a vote. I’m a member, and I get a vote. And Mommy’s a member, and she gets three votes.”

My daughter had just enough math under her belt to respond, “Hey! That’s not fair!” I replied to her, “Fair? Is it fair that birds can fly and you can’t? That’s just the way the world is, kiddo.” It was my way of telling her that she had to live in the world we actually inhabit, not an imaginary one that she might prefer. (It was also my way of acknowledging my subordinate role in Chateau Emmert.)

If you think that the justices’ decision to biopsy each assignment under a microscope, and to euthanize those found wanting, is unfair, the only solution right now is to spend more time polishing your own assignments. The justices aren’t backing off.