(Posted November 8, 2019) Here’s a glimpse around the appellate landscape.


SCV calendars remarkable motion argument

I won’t claim that I’ve seen it all, even within the narrow confines of Virginia appellate practice. But it takes something highly unusual to generate the reaction I felt when I learned yesterday – through the kindness of Virginia Lawyers Weekly’s Peter Vieth – that the Supreme Court of Virginia will next month hear oral argument on a motion. That’s so far out of the ordinary that I just had to dig for more details.

In addition to the many incoming case filings they process, the justices adjudicate numerous motions each year. In 2018, the court received over 1,300, usually for things like extensions of time, amendment of briefs, or leave to proceed in forma pauperis. To the best of my knowledge, the court has always disposed of those in the manner provided in Rule 5:4. A panel of the court considers the motion and any response that the other party may file, then issues an order adjudicating it. The rule expressly says that the parties don’t get oral argument on motions.

Well, it actually says more than that. The rule’s wording is, “No motion shall be argued orally except by leave of this Court.” But I had never heard of the court’s granting such leave, ever, until yesterday.

The litigation may be familiar to you if you read VLW. The court granted a writ early last year, and the appellant duly filed the opening brief. Two weeks before the due date for the brief of appellee, the appellee’s lawyer moved to stay proceedings under Code §30-5, since its lawyer is a member of the General Assembly. If you know about that statute, the continuance is automatic; the mere invocation of the request means that the court must grant it. The SCV accordingly extended the due date for the brief of appellee until 30 days past the end of the 2018 special legislative session.

Except that day never arrived. Technically, the legislature never adjourned sine die from that session; it remained in session through and including the 2019 regular session and thereafter. The appeal languished for a year and a half before the appellant got tired of waiting and filed a get-on-with-it-already motion, asking the court “to compel counsel for the appellees to file his response to the appeal.” The motion recites that the lawyer-legislator had, in the intervening time, found time to appear in local trial courts a couple hundred times.

Under standard Rule 5:4 practice, a respondent to a motion has ten days to file a response. In what was probably a poor judgment call, the appellee didn’t respond, thus adding fuel to the accusation that the appellee was ignoring the appeal. By last week, the justices had seen enough.

On October 30, the court issued a two-page order, directing the filing of letter briefs and scheduling the motion for hearing on the next writ-panel day, December 3. Underscoring the importance that the court places on this issue, the hearing won’t be before a three-justice panel, but before the full court. (As far as I know, the order isn’t available on the court’s website. If you want a copy, contact me and I’ll forward it to you.)

For appellate practitioners, the standard reaction to this news is “Wow!” This motion carries the potential of an inter-branch dispute that we’ve never seen before; it may be unsurprising that the court settles on a procedure that we’ve never seen before, either. And it makes sense that an issue of this magnitude would justify a hearing by all seven justices.

I won’t miss this spectacle; I have a petition on the December 3 writ panels, so I’ll be in Richmond anyway, but I emphatically will be in the courtroom to watch this play out. Of course, the appellee may pull the plug on the hearing by the simple expedience of going ahead and filing the merits brief, assuring that this motion ends not with a bang but a whimper.


Sold-out Summit

On a couple of recent occasions I’ve written to urge Virginia appellate lawyers to sign up for next week’s ABA Appellate Summit in Washington, DC. It is, in my view, the best nationwide meeting of the appellate bench and bar each year.

If you postponed deciding whether to attend, the decision has been made for you: For probably the first time ever, the Summit is sold out, with over 400 registrants. If you’re experiencing non-buyer’s remorse, next year’s Summit will be in Austin, Texas.


Two published orders from the SCV

Yesterday the Robes decided two appeals by published order.

In Schmuhl v. Commonwealth, the court affirms a conviction of kidnapping, burglary, malicious wounding, and a companion firearms charge. The court does so summarily, adopting the holding and the reasoning of the Court of Appeals in a half-page order.

In Spruill v. Garcia, the court agrees with the appellant in ruling that the trial court erroneously admitted documentary evidence over a hearsay objection. But this proves to be a hollow victory as the court goes on to find that the admission of the evidence was harmless error. The information in the records mirrored the contents of fully admissible live testimony, so the justices rule that the error didn’t affect the outcome, and affirm the judgment.