APPELLATE NEWS AND NOTES
(Posted February 18, 2022) Here are a few current tidbits from the appellate landscape.
Former Acting Solicitor dies
The appellate world lost a master advocate recently with the passing of Walter Dellinger of O’Melveny & Myers in Washington. Dellinger served as Acting Solicitor General beginning in 1996, and previously headed the Office of Legal Counsel, the president’s team of senior legal advisors. In case you don’t recognize them, both of these positions require outstanding legal skills, which Dellinger unquestionably possessed. He was 80.
A notable retirement
Speaking of Solicitors General, I learned only yesterday that former Virginia Solicitor General Bill Hurd retired from the practice of law at the end of last year. I’m lucky enough to call Bill my friend; he was Virginia’s first Solicitor and a truly outstanding advocate. He’s also an extraordinarily gracious person; I’ve never heard him utter an unkind word, though I’ve heard lots of kind ones. As with similar retirements, I’ll offer to him the classic Navy wish, since I live in a Navy town: Fair winds and following seas, my brother.
A subtle change
The Supreme Court of Virginia’s website contains a page that lists the active and senior justices. I noticed today for the first time that it no longer lists the name of Justice Don Lemons, who retired February 1. His name remained on the site for a couple of weeks after his retirement date, but the court’s staff has updated it now.
The important point about this is that he isn’t listed among the court’s senior justices. His retirement letter said nothing about his willingness (or not) to serve in a senior capacity. He may want to take some time away from the court before deciding on that.
More on senior justicehood
As we learned last year, Justice Bill Mims’s term will expire at the end of next month, and he’ll step down from the court then. In an earlier post on this development, I mentioned what I saw as a procedural quirk that would require him to sit idly for 2½ months before assuming the position of senior justice. By statute, senior justices must be “eligible for retirement,” and regular retirement eligibility occurs on a person’s 65th birthday. Justice Mims won’t turn 65 until mid-June.
Ah, but I missed another provision in the VRS laws: Early retirement is permissible at age 55 with at least five years of service. Given his 14 years as a legislator, four years in the Office of the Attorney General, and now 12 years on the Supreme Court, it’s safe to say that he’s eligible for that retirement. He has indicated his desire to so serve, and I believe that the court will instantly convert his status to senior justice.
The courthouses are reopening! The Fourth Circuit will convene in-person oral arguments in the second week of March; the Supreme Court of Virginia will do the same the week before that; and the Court of Appeals of Virginia will leave it up to individual panels to decide. I sense that most of those panels will do what they can to accommodate in-person argument. This is a singularly welcome development. Remote oral arguments are, in my humble view, acceptable as a stopgap, but are nowhere near as effective as being there in person.