APPELLATE UPDATES – THE HOLIDAY EDITION

(Posted December 19, 2023) As the days of 2023 dwindle down to a precious few, let’s see what’s happening in the appellate world.

Appellate courts’ holiday closings

The Clerk’s Office of the Supreme Court of Virginia will close at noon on Friday, December 22, and will remain closed Monday and Tuesday, December 25-26. The Court of Appeals of Virginia usually follows suit, so that’s the schedule downstairs, too.

By operation of law, any filing deadlines that expire on any of the dates from this Friday through next Tuesday are automatically extended unto next Wednesday, December 27. I’ll add my usual caveat that your local clerk’s office’s hours may vary, so if you have a filing that’s due in the circuit court on one of those days, you must check to see if that clerk’s office is open. This includes matters such as a notice of appeal, appeal bond, and transcript filing.

The Fourth Circuit has announced that it will be closed all day on Friday the 22^nd, and will remain closed through Tuesday, reopening on Wednesday the 27^th. You get the same extension in that court. This is the first time in my recollection when the federal closing schedule has been more liberal than the state’s, albeit only by about three hours.

For each court, you should know that the availability of e-filing doesn’t alter the deadline extension.

One last point: If you’re unlucky enough to have a filing deadline on December 27, not counting any extensions, then you don’t get the benefit of the holiday closings. In that event, you have three options to stay on Appellate Santa’s “nice” list: Plow through the holiday weekend and file it on the deadline day; seek your opponent’s (and the court’s) consent for a short extension; or (and this is the one I prefer) file this week. Nothing in the rules of court says you can’t file early and enjoy your holidays with a clear conscience.

Looking slightly ahead, the state-court clerk’s offices will be closed January 1 and 2, with the same automatic-extension rules in place. The Fourth hasn’t announced its New Year’s closing schedule yet.

Federal appellate webinar

The Fourth Circuit will again host a free webinar on appellate practice in that court. It’s Friday, February 2 from 9:00 a.m. to noon. Registration is available here. Highlights include a chat with US Solicitor General Elizabeth Prelogar; a judicial panel on effective advocacy; and a segment on agency appeals. For those of you who don’t handle admin-law cases, the last segment includes an irresistible teaser of “a behind-the-scenes look at how appeals are processed in the Fourth Circuit, including criteria considered in deciding whether to hear oral argument and the role of the Office of Staff Counsel.”

Appellate-focused CLE programs are more available than they were a generation ago, but they’re still comparatively rare. Three free hours of credit on a highly relevant topic? An inside scoop on the court’s workings? What’s not to love?

New hope for the demurrer appeal

Four months ago yesterday, I reported what I regarded as an alarming set of rulings. The Court of Appeals of Virginia had begun to summarily affirm in appeals of sustained demurrers. The appellants’ sin of omission was the same: the failure to file a transcript or written statement of the proceedings. I mused then that a transcript for such an appeal usually wouldn’t matter, because the pure-law issue in the circuit court and on appeal is identical: Does the complaint state a claim for which the courts can grant relief?

I learned recently that after having dunked one such appeal, the CAV will evidently rethink that set of holdings. It has granted panel rehearing in a case decided in October, Oliver v. Kimberly A. Pinchbeck, P.C., and has reinstated the case to the merits docket.

I’ve seen opinions in a few of these no-transcript affirmances, and they seem to rest on the premise that, without a transcript, the appellate court has no way of knowing whether the appellant abandoned one or more arguments in the demurrer hearing below. This, to my thinking, elevates sheer speculation to the point of being case-determinative; the court was deciding cases based on a guess about what might have happened, instead of what the record shows did happen.

The question now is what the court will do with the case. It can issue an opinion that reaffirms the unfortunate waiver holding, perhaps embalming the principle with a published decision; it can issue such an opinion that holds the opposite, expressly stating that transcripts may not be needed in these appeals; or it can ignore the issue and simply decide the appeal on the merits.

My level of inside information on these things remains at zero, so I’ll find out when the litigants do.