(Posted September 15, 2022) Today is a noteworthy day for appellate lawyers. It’s the 165th anniversary of the birth of William Howard Taft, 27th President of the United States and 10th Chief Justice of the United States. Many people with a passing knowledge of our nation’s early Twentieth Century recall that he’s the only person to have held both offices, being appointed to the Court eight years after leaving the Oval Office.

But this mention is for another reason: Taft is also the only former Solicitor General to be elected president. I read a book recently that asserted that Abraham Lincoln is the only president ever to have argued a case in the Supreme Court. Taft, had he lived long enough to have read that book, would likely have cleared his throat and pointed to his 15-3 record in SCOTUS appeals. (Abe lost his one and only case there.)



I consider myself a reasonably serious student of Virginia sanctions jurisprudence, and am always happy to see new material on this topic. T0day’s opinion in AV Automotive, LLC v. Gebreyessus brings that material and a dissent.

Gebreyessus worked for a car dealership, one affiliated with a manufacturer that had an incentive program for its staff, paying them bonuses. In a complaint filed by the dealer against the employee, it asserted that she had cooked the books, including customer reviews, to artificially inflate her own bonuses. The complaint asserted that the manufacturer had penalized the dealer $700,000 for these misstatements.

But that last part wasn’t true; the manufacturer soon revealed that it hadn’t imposed any penalty, and wouldn’t be doing so. (Ulp!) The employee sought sanctions for this false pleading. The circuit court agreed to impose sanctions for this and for other litigation conduct. It gave the employee an award of over $200,000 – all of her lawyers’ fees for the entire case.

A divided court today affirms in part and reverses in part. Justice McCullough writes for a five-justice majority, holding that the circuit court acted within its discretion in imposing sanctions for most of the conduct cited by the employee. But it holds that at least some of the other conduct wasn’t sanctionable. It goes on to hold that awarding all of the employee’s legal fees for the entire case was excessive, so the court remands the case for a recalculation of the amount of the sanction.

Justice Chafin pens a dissent, which Justice Kelsey joins. She points to an unusual circumstance – the employee’s legal fees were being paid by a fellow defendant in the trial court, who was not involved in this appeal. The dissent accordingly concludes that the employee didn’t “incur” any fees so it would be improper to award any to the victorious employee.

Here’s the relevant language, so you can see the nature of the dispute; I’m cleaning this up to avoid a lot of distracting ellipses: “the court shall impose an appropriate sanction, which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing, including reasonable attorney fees.”

The $200,000 question is what incurred means in this context. As it appears, it’s an implied passive voice, long derided by serious writers as indicating sloppy draftsmanship; it means, “the amount of reasonable expenses that are incurred,” etc. The passive voice is the use of a past participle, preceded by a to be or to get verb.

Slight digression: One classic use of the passive voice came on May 1, 1973, when Richard Nixon’s press secretary, Ron Ziegler had to backpedal from his previous unmistakable dismissive comments to Washington Post reporters Bob Woodward and Carl Bernstein. Ziegler had denied any wrongdoing by White House staffers in the Watergate affair and described the reporters’ stories to the contrary as “shabby journalism.”

Then, after Bob Haldeman and John Erlichman resigned on April 30, 1973, Ziegler had to face the press again. On that day, he couldn’t bring himself to come right out and say, “I was wrong,” a line familiar to virtually every husband. Instead, he turned to the passive voice, which conceals the identity of the actor: “Mistakes were made in terms of comments.”

Back to today’s decision: The dissent insists that the word incurred in this context must mean, “directly incurred by the other party.” Because the record contains nothing to indicate that the employee would have to reimburse her benefactor for the payment of fees, the dissent would reverse the fee award in its entirety. The majority is satisfied that someone incurred fees. The two sides accuse each other of inserting language into the statute.

A couple of quick notes about today’s ruling: I’m pleased to note that two of my pals, Monica Monday and George Peterson, argued the appeal back in April. This was at a time when the court was down to five active justices – the legislature had yet to elevate the court’s two newest Robes – so Senior Justices Russell and Millette sat in, both voting with the majority.

Because the parties argued it in April, this was the second-oldest undecided case on the court’s docket. The only older case, Baughman v. Commonwealth, also arrives today, though this one is by unpublished order. It’s a sexually violent predator appeal that also results in a remand, and also generates a spirited dissent. At the very end of the Baughman order, dissenting Justice Kelsey writes that, despite his disagreement with the majority’s rulings, the opinion should be published.

To that, I say, “Amen, brother.” The percentage of unpubs of the court’s merits rulings has risen in recent years, to the point that perhaps 60% of all merits cases end up in Virginia Reports.  While I can see my way to consigning a few merits cases to the unpubs pile, I believe that the court should publish more, not less.

Finally, the Baughman decision comes 34 weeks after the oral argument. I haven’t confirmed this yet, but that might be the longest delay between argument and decision in the 17+ years that I’ve been covering the court. As you might expect, opinions with dissents often take longer, because the two authors are exchanging drafts and then polishing their own.