APPELLATE NEWS AND NOTES
(Posted February 12, 2021) In honor of Lincoln’s Birthday, let’s start with a tale about the great man during his days of practicing law. According to a collection of anecdotes that occupies a privileged place on my bookshelf, one stubborn client who asked Lincoln to “bring suit for $2.50 against a debtor would not be put off in his passion for revenge. [Lincoln] therefore gravely demanded ten dollars as a retainer. Half of this he gave to the poor defendant, who therefore confessed judgment and paid the $2.50. Thus the suit was ended to the entire satisfaction of the angry creditor.”
No doubt this novel approach would raise some eyebrows with modern Bar counsel, but who cares? It’s a great story, and it includes a 200% legal fee. Is this a great country, or what?
Storm shutters appellate courts
A winter storm dropped enough white stuff on Richmond overnight that all three appellate courthouses are closed today. In the ever-stoic Fourth Circuit, “Staff are available by phone, and CM/ECF is available for electronic filing.” All appellate deadlines that would otherwise expire today are automatically extended until the courts’ next business day, which is Tuesday, February 16.
CAV expansion bill advances
I promised to keep an eye on Senate Bill 1261 for you. That’s the proposal to expand the size and jurisdiction of the Court of Appeals of Virginia, and to provide the badly needed reform of an automatic right of appeal in all cases, without the necessity of a petition for appeal. In case my sentiment isn’t already clear, I earnestly support this long-overdue change, as a mere 49 other states provide that of-right appeal; we are quite literally alone in failing to provide this essential legal protection.
The bill has cleared the Senate after a few tweaks, and is now in the House Courts of Justice Committee. The Roanoke Times is reporting that the bill is still alive despite Republican opposition. GOP lawmakers are concerned about the cost of providing this element of legal modernity. They also fear the prospect of Democrats’ filling several seats on a court that’s chock-full of Republican appointees.
I expect the 140 Level Heads to resolve the matter internally, one way or the other, and if the bill passes, they’ll choose new judges later this month. As currently phrased, the bill creates the of-right appeal and expands the court effective October 1, 2021.
Interesting cert grant at One First Street
The Supreme Court of the United States has granted certiorari in City of San Antonio v. Hotels.com. The underlying dispute was about taxes assessed by a host of Texas jurisdictions against the online hotel-booking site and several other similar online sites. The localities got a deep-eight-digit judgment, and Hotels.com posted a supersedeas bond. An appellate court reversed the judgment and on remand, the district court included as part of the costs taxed against the localities the amount of the bond premium. That premium was $2 million, an amount the localities understandably didn’t want to pay. The Fifth Circuit affirmed the full amount of taxed costs.
The localities filed a cert petition and Hotels.com waived its right to file a brief in opp. But The Robes asked for such a brief, and ultimately granted cert to decide what discretion, if any, a district court has to deny costs to a successful appellant. The appellants – the Texas localities – argue that the ruling here, that there is no such discretion, is at odds with every other circuit court’s position on this point.
Honestly, if you aren’t an appellate geek, this issue might seem hopelessly arcane to you. But those who swim in my pool recognize that, in big-dollar litigation, this can be a major issue. Let’s take the example of a plaintiff in a wrongful-death suit who gets a $20 million judgment against the manufacturer of an allegedly defective product. If the district court has no discretion to deny costs, the personal representative might face significant liability unless she consents to allow the appeal to go forward without a surety bond.
In addition to the initial waiver of a brief in opp, this appeal features one additional oddity: a complete lack of amicus briefs. Nowadays, the general sense among the Supreme Court bar is that if you want a cert grant, you’d better have plenty of amici. That isn’t to say that one without any amici never sneaks onto the merits docket; but I sense that this is a true rarity.
Normally in appeals heard on the dismal side of the Potomac, I refer you to SCOTUSblog for first-rate coverage. For reasons I can’t guess, that excellent site hasn’t said a word about this appeal, other than to note the cert grant. There’s no discussion at all; at least, not yet. My pal Dan Huckabay at Court Surety Bond Agency in California has an essay about the issues here.
The Supreme Court granted cert in early January. I expect it to calendar the appeal for the April sitting, with a decision likely coming in June. Because that’s when the high-profile rulings come down, this decision might well be overshadowed by those seemingly sexier cases in the mainstream-media coverage, and perhaps in legal media, too.
In case you have a cultural, spiritual, or chickenhearted objection to federal court and you stick firmly to the state courts, please know that this coming ruling will likely have no effect on you. In questions of Virginia law, the Supreme Court of Virginia is the court of last resort. And if you’re asking, I’m not aware of any ruling from our Robes on whether large bond premiums are taxable.