All posts by David Rourk

Analysis of February 1, 2024 Supreme Court Decisions



(Posted February 2, 2024) Just when you thought we would endure another dry week from the Supreme Court of Virginia, word arrived by e-mail early this morning that the justices had handed down two unpubs yesterday. Harmless-error analysis permeates both decisions. Let’s take a look.


Actual-innocence petitions

In a short (3½ pages) order, the justices reverse a decision of the Court of Appeals and direct remand to the circuit court for supplemental factfinding. The case is Richardson v. Commonwealth, an actual-innocence proceeding where the CAV had dismissed the petition because, as it found, the petitioner hadn’t exercised reasonable diligence and “a rational factfinder would still convict him once all of the relevant evidence was considered ….”

The Supreme Court agrees with the petitioner that the Court of Appeals should have utilized a statute that permits remand for more factfinding when the case so requires. Reviewing the CAV’s decision under an abuse-of-discretion standard, the Supreme Court reverses anyway, ordering remand to the circuit court for an evidentiary hearing.

The order also holds that the Attorney General may engage in pleading that, in other contexts, would constitute approbating and reprobating. Between the time when the original petition arrived and an amended version hit the CAV Clerk’s Office, political control over the Office of the Attorney General transitioned from the Democrats to the Republicans. The new AG, Jason Miyares, took a dimmer view of the petition than had his predecessor, Mark Herring, and filed a very different kind of response. The justices rule that in these purely statutory proceedings, the OAG can do that.

I noticed a few unusual items about this order. Some were minor: The formatting of the caption has changed since the last unpub issued at Ninth and Franklin, eight months ago. The case name and lower-court listing are now in all-caps. There’s an apparent typographical error on the first page, where the order refers to the petitioner as “Boone.” (His full name is Terrence Jerome Richardson, and I don’t know where the name Boone comes in.) [Update February 5: It’s corrected now, and whoever Boone is, he’s no longer part of our tale.]

Perhaps most significant, the order looks rushed to me. Instead of the customary introduction, where the court sets the table with relevant facts and procedural history, the order dives right into the petitioner’s argument and then lays out the relevant statute. It’s as though the court expects the reader to be already familiar with the case, so it can pick up the discussion midway through a normal opinion’s layout.

Because this is an unpub and it’s unanimous, we can’t know who wrote it. Justice Russell sits this one out, presumably because this proceeding arrived in the CAV while he was a judge there; Senior Justice Koontz sits in for him.


Criminal law

Our protagonist in Swinson v. Commonwealth might have benefited from Gary Cooper’s style – the strong, silent type. Instead, when a deputy sheriff pulled him over at a traffic stop, his mouth remained in gear while the brain was disengaged.

That resulted in a conviction of possession of methamphetamine with intent to distribute. The amount recovered in the arrest was evidently small – about 4 1/3 grams – and he had none of the usual paraphernalia of drug dealers, such as packing materials, a scale, or a big wad of cash.

But he volunteered to the deputy something along the lines of “I have it sold already and am on my way to deliver it for $50.” That, you will admit, is reasonable evidence of intent to distribute, so he received an indictment for the greater offense, instead of simple possession. In fairness to our protagonist, he later said that he was just joking about the sale.

Let’s fast-forward to the jury-instruction phase of the trial. The model instruction for this offense lists several relevant factors for the jury to consider in evaluating intent to distribute, telling the jury that it “may consider all facts and circumstance, including but not limited to ….” The following list ensues:

  • The amount of drugs
  • The manner of packaging
  • The presence of “an unusual amount of cash” and the size of the bills
  • The presence of drug-distribution equipment, such as a set of scales
  • The presence of equipment consistent with personal use, such as a pipe
  • Any weapons at the scene
  • A “pager or other electric communication device” (note the throwback to the 1980s)
  • The defendant’s conduct and statements
  • The location of the arrest
  • The presence of more than one type of drug

Swinson’s lawyer probably looked at this list and smiled. Most of these factors were absent here, so he offered to the judge the model instruction. This would make the instruction a powerful tool in the defense’s closing argument. “Ladies and gentlemen, there was a small amount of drugs; no packaging; no scales; no large bills; no weapons; no pager; no other drugs … you can and should find that Ms. Swinson possessed this for his own personal use only.”

As the saying goes, “Man plans, and the gods laugh.” This promising closing argument evaporated when the prosecution convinced the circuit court to remove the references to the factors that weren’t present here: no reference to cash, drug paraphernalia, a weapon, or other drugs. Instead, the instruction contained only those factors that were present, and hence would point the jury in the direction of guilt.

The jury did indeed settle on guilt. The Court of Appeals assumed without deciding that the circuit court erroneously truncated the instruction, but affirmed the conviction based on harmless error.

This week, the Supreme Court agrees, mostly, that the error was harmless. The evidence included that unwise self-inculpatory statement about Swinson’s planned transfer of the drugs for the princely sum of fifty dollars. The court holds that “viewed holistically, the weight of the evidence strongly supports the conclusion that the jury’s verdict would have been the same even if the model jury instruction had been given in its entirety.” The court cites that self-inculpatory statement as proof that Swinson got a fair trial and the verdict that he deserved.

This conclusion draws one dissenting voice. Justice Mann pens a concise dissent in which he notes that, in evaluating a refused instruction, a reviewing court is supposed to view the evidence in the light most favorable to the party who offered the instruction. That, in this case, would be Swinson. While you or I might scoff at his claim that the inculpation was in jest, a jury might see the evidence differently, and this jury (unlike the appellate courts) got to hear Swinson’s testimony to evaluate whether he was sincere. Appellate courts have to give an instruction’s proponent that chance.

I’ll confess that when I read the majority’s opinion, I agreed that Swinson got what was coming to him. He confessed at the scene, for cryin’ out loud! But Justice Mann’s logic is, in my view, unassailable: This case should have gone back for retrial. The dissent correctly notes that judges in Virginia – unlike their judicial cousins on the federal trial benches – can’t single out parts of the evidence for emphasis. This edited model instruction did exactly that, telling the jury to focus on the factors that tend to indicate guilt. Our trial courts aren’t supposed to do that.

I’ll add one other thing. Like the Court of Appeals, the Supreme Court here assumes without deciding that the truncated instruction was erroneous. Even so, the majority can’t contain its distaste for the instruction; it adds a footnote in which it “takes no position regarding the correctness” of the circuit court’s ruling or the commentary in the model rules that permits the truncation. This looks to me like the majority is holding its collective nose while voting to affirm. I’m admittedly reading between the lines here, but that’s how I see it.

 *   *   *

Both of yesterday’s decisions came from appeals argued in the November session. Two unresolved appeals remain from that session, plus three more from January’s argument docket.


Appellate News and Notes



(Posted January 18, 2024) Here’s a quick report on some developments in the world of appeals.


A published opinion, sort of

The Supreme Court of Virginia hands down one published ruling today. In Fary v. Commonwealth, the justices summarily affirm an en banc decision of the Court of Appeals in a criminal case. Instead of writing a new opinion, the SCV merely affirms for the reasons set out in the CAV’s published opinion. It’s a sufficiency challenge in a prosecution for attempted malicious wounding, brought against the operator of a boat that rammed another vessel. Spoiler alert: The court rules that first impact may or may not have been inadvertent; but when the defendant backed up and charged again, well …

Today’s ruling comes down in lightning fashion, as the parties argued the case just eight days ago. My best guess is that the decision conference after oral argument was short and sweet, with one justice opining, “I think the Court of Appeals got it exactly right,” followed by six head nods.


A promising sign

The SCV’s February/March session schedule isn’t out yet, but I got an advance copy of the potential argument docket because I have an appeal on it. (The clerk sends out an advance notice to lawyers who may be on a given docket, to check for schedule conflicts.) I was delighted to find 13 cases listed. It’s possible that not all 13 will make the ultimate session schedule, but this is a promising sign; the last time the court heard more than eight appeals in a session was November 2022.


No news may be good news …

The silly season is upon us, as the General Assembly is in session. I decided to check the wonderful Legislative Information System website to see what bills are in the hopper that might affect the appellate courts here. To my surprise, I found nothing; just eleven bills relating to courts of record, and the thumbnail descriptions don’t show a single reference to the appellate courts. This assures us of a fair degree of predictability in the coming year.

There will, of course, be at least one legislative act in this session that affects our world, as the General Assembly will choose the newest member of the Court of Appeals. The successful candidate must achieve a majority vote of each of the two chambers. Because Democrats now control both, I don’t expect a major fight, other than possibly a geographic one. The Tidewater delegation may want another jurist from this corner of the Commonwealth to take Senior Judge Humphreys’s seat, while the larger Northern Virginia delegation might argue for greater representation on the court. As usual, I have no more insight on that than I have on quantum mechanics or the literature of Kyrgyzstan. Let’s just wait and see.


Another Milestone Passes



(Posted January 15, 2024) Yesterday marked 19 years since I began to publish this website. It’s been an enjoyable ride thus far, made all the more so by the notes of appreciation that I get from time to time. I’m very glad that so many of you find the site useful.

Yes, Virginia, there will be a twentieth year. I intend to continue posting case analyses, essays, and updates, complete with the occasional appellate joke. But this will very likely be the final year of this site, as I plan to hang up my legal pad a little over a year from now. Setting a career sunset date that’s that far out gives me plenty of time to identify the dozens – okay; probably hundreds – of things I’ll need to accomplish between now and then.

This is more than fair warning, if you want to keep copies of a few specific posts that you might find useful down the road. Meanwhile, I’ll try to make the prose sparkle throughout 2024. Health and happiness (and a few more writs granted!) to each of you.

Report on Current Appellate Events



(Posted January 10, 2024) The gears of government have resumed turning after the holidays – the 2024 General Assembly session began a few hours ago – and there are just enough notable appellate matters for a quick report to you.


A coming appellate vacancy

Bloomberg Law is reporting that Fourth Circuit Judge Jim Wynn of North Carolina has decided to take senior status. His honor will turn 70 in a couple of months, and while he doubtless has plenty still in the tank, this retirement enables President Biden to appoint a younger jurist to the life-tenured seat. The announcement didn’t specify a transition date.

Judge Wynn is a former Navy JAG officer, and is typical of appellate jurists I know in one key respect: He’s one of the world’s great nice guys. I’ve spoken with him at bar functions and at CLE programs, and he simply couldn’t be more pleasant. He’s long been a voice urging civility on the court at times when majority and dissenting opinions turn up the heat.


A thinned January session

I reported a couple of weeks ago that the Supreme Court of Virginia would convene this week with five appeals on the docket. Last Friday, the court revised the docket by removing the one purely civil appeal on it. This morning the justices received argument in three cases, and they’ll gather again in the morning to hear just one more.

This continues the alarming trend of tiny merits dockets at Ninth and Franklin. Last year, The Robes heard oral argument in just 28 cases. Go back a generation and it’s almost ten times that. I recognize that the shift to initial review in the Court of Appeals has artificially depressed SCV docket sizes in the past two years, but by now we should have seen something of a rebound. This raises my suspicions that the justices have indeed decided to make the Supreme Court of Virginia a court of certiorari – or law development, for those of you who prefer that term –and leave the error correction to the Court of Appeals. It’s too early to know for sure; another year’s stats will help me make a better-informed judgment.

Meanwhile, on Tuesday the court posted to its website one more writ granted from the December 5 writ panels, bringing the total to five out of the 28 petitions argued that day. That may sound encouraging, but remember that the court convenes only six writ-panel sessions each year. If each of those dates generates something like five appeals awarded, we’ll be stuck around the 30-appeal mark for merits cases. That would be a sign that the writ market has collapsed on a more permanent basis. Let’s wait, hope, and see.


The David-Goliath Index

With the year’s decisions in the books, it’s time to calculate the 2023 David-Goliath Index. At the close of the third quarter, David had prevailed in seven appeals and Goliath in ten. In the fourth quarter, I rate three rulings as going in favor of our Davids and five for our Goliaths. That gives us a year-end score of 40/60 – that is, the Davids won 40% of the time (10 wins) and the Goliaths won 60% (15).

If that seems lopsided to you, keep in mind that, on a percentage basis, this is David’s best year in a long, long time – maybe ten years. The last few years saw Goliath taking top honors more than 70% of the time. But I wouldn’t recommend reading too much into this, as we only have 25 decisions in all. It’s too easy to skew results when n is that small.

I won’t try to project anything specific for 2024 – except for my earnest hope for a larger sample size – but given the larger-than-usual number of criminal writs granted in the past few months, I would expect David’s winning percentage to shrink at least somewhat over the course of the coming year.


Fallout over SEAL Team Six

The blawgosphere is still buzzing over yesterday’s oral argument in former President Trump’s appeal in one of his criminal prosecutions. As reported here yesterday, Trump’s lawyer argued in the DC Circuit that a president couldn’t be prosecuted — even after his term ends — for ordering an official assassination of a political rival unless he were first ousted from office in a court of impeachment.

I wasn’t in the courtroom yesterday – the former president was, probably to the distaste of the panel – but I sense that another, less bold answer might have been better suited to the situation. The lawyer’s unfortunate argument conjured the ancient legal principle in monarchies that “the king can do no wrong.” We fought a war to rid ourselves of a king; George Washington wisely declined to become one, and the idea of a person who would merely preside was born. Allowing any person, even the chief executive, to commit criminal acts without fear of prosecution is anathema to the rule of law.

My best guesses are that the panel will rule against the former president; that he’ll seek en banc rehearing as a way of stalling the case; that the full court will refuse rehearing or affirm the panel; and that the president will file a cert petition. That process will probably take more than the eight or so weeks between now and the scheduled trial date. For those of you old enough to remember Phil Ford’s tenure at the University of North Carolina, this is the Four Corners offense translated to the appellate arena.

The Delicate Art of Answering Questions



(Posted January 5, 2024) I can’t read minds – my wife will confirm this, as I’m terrible at reading hers – but my best guess is that non-appellate lawyers envision the process of preparing for an appellate oral argument as primarily writing, polishing, and eventually memorizing a speech. Not so among the appellate guild. For us, the speech is second in importance to the inevitable interruptions with a judicial question or three. That’s what we focus on. As I’ve noted here, we’re silently begging to be interrupted when we get to the lectern.

Let’s explore how appellate advocates prepare for and answer questions from the bench. If you’re just kibitzing here, and you have only a trial practice, keep reading; you’ll likely learn something that will help you at the circuit or district court level.


Start early

When do appellate lawyers start answering questions from the bench? The subtext of the introductory passage to this essay is a good clue. We plan carefully, and we do so long before the oral argument date.

For me, and probably for most of my peers in the guild, oral argument preparation is one quantum of time spent in preparing a speech and three or four quanta of anticipating questions. I try to think of the toughest, nastiest, most dangerous questions that a jurist could imagine. I then take my time in working through the best possible answer to each of those questions. I do this in advance so I won’t have to come up with an answer on the fly while standing at the lectern.

If you’re wondering where to mine this prospective lode of questions, the easy place to start is the Bad Guys’ brief. What are their best arguments? (Be fair to the scoundrels.) Imagine that argument, but turned into a judicial question. Now figure out your best response.

Don’t stop there; envision the holding that you’re asking the court to make; the doctrine that you hope they’ll embrace. Now think that through past your case to the next one, and the one after that. Here’s some wisdom I got long ago from Judge Barbara Keenan of the Fourth Circuit: Trial judges take a given set of laws and figure out what the facts are. Appellate jurists take an established set of facts and figure out what law applies to it. Accordingly, those jurists are vitally interested in how the holding should look, and what kind of precedent it sets.

Once you have this list and your prepared answers, take some time to pare the answers down so they occupy just a few seconds (ideally) or no more than three or four sentences (in a pinch). You might get interrupted halfway through a complex answer, so you must focus on using your time with brutal efficiency.

The final step in this process is a matter of personal preference, but one way or the other you have to make a list of your killer questions and your polished answers, plus any key record or caselaw cites that are likely to be helpful. If you put them on a sheet of paper in a binder, that’s fine; if you prefer to argue with a tablet at the lectern, create a page for this purpose. Either way, make sure you can access and scan it immediately, preferably in one to two seconds, tops.


Embrace the first question

You’re at the lectern, and the panel has courteously given you a reasonable but short amount of time to start your argument. Then some busybody on the court butts in without so much as a by-your-leave and asks a question out of left field, on a topic other than the one you were discussing. What do you do?

Believe it or not, the answer is rejoice. (I think I stole that answer from John W. Davis, one of the Twentieth Century’s great appellate advocates.) The fact that you’re getting a question means that you have the court’s attention. It’s also an opportunity for you. It tells you what’s concerning the jurist who asked the question; what bothers her about your position. If she clams up and allows you to speak without interruption, then the first knowledge you’ll have about that judicial concern is when you read the opinion, by which point it’s too late for you to affect the outcome. Rejoice!


Be quiet

I’ll put this bluntly: Don’t be a moron and attempt to talk over the jurist who’s asking the question, in a desperate attempt to finish the killer point you were making. They hate that. The proper protocol is important enough that I can phrase it as a commandment: When thy jurist’s mouth opens, thou shalt immediately close thine own.

Instead of raising your voice in an effort to be heard, stop speaking immediately and look at the jurist who’s asking the question. Listen carefully to the question, and then answer it directly. If it’s on your tough-questions list, it’s entirely appropriate to turn to that page and refresh your memory of your pre-formulated answer.


Answer the question, even if it’s a tough one

There are friendly questions – sometimes called softballs – and then there are questions designed to probe perceived weaknesses in your case. Whichever kind you receive, the first thing you should utter at the end of the question is a direct answer to the substance of the question. If you need to append an explanation, that’s fine; just remember that the order of operations is direct answer first, explanation second. Under no circumstances may you promise to “get to that point in a few minutes.” You got to that point as soon as the question arrived. Answer it now.

My treasured appellate pal George Somerville, now enduring the travails of a rigorous 9-to-5 retirement, always offered this advice to those entering the appellate arena: If the question is one that calls for a yes-or-no answer, the first word out of your mouth must be either yes or no. After that you may quickly add any needed explanations or qualifiers; but the court deserves a direct answer to a direct question.

Update January 9: We now have a clear illustration of this very principle. A few minutes ago, the following exchange occurred in the hearing of former President Trump’s appeal in the DC Circuit, where he contends that he’s absolutely immune from criminal prosecution for acts taken while he was president. The speakers are Trump’s lawyer John Sauer and Judge Florence Pan:

THE COURT: “Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six.”

MR. SAUER: “He would have to be, and would speedily be impeached and convicted before the criminal prosecution.”

THE COURT: “I asked you a yes or no question.”

MR. SAUER: “If he were impeached and convicted first.”

THE COURT: “So your answer is no.”

MR. SAUER: “My answer is qualified yes. There is a political process that would have to occur.”

Please, I beg you not to follow Mr. Sauer’s example. Answer the question first, and then (and only then) give the qualifier.


If appropriate, take a moment

When you get a tough question, it’s entirely good form to take a very few seconds to think about it. This approach conveys thoughtfulness on your part and respect for the questioner’s concern. It’s far, far better to generate three to five seconds of dead air before giving a considered response, than it is to blurt out the first plausible answer that comes to mind. Just keep it reasonably short. If you get to fifteen seconds, you’ve ruined the mood; the court will assume that you just don’t have an answer, and you’ll turn off the bench.


Everything above this line comprises the easy stuff. Let’s turn next to some difficult situations, and how to deal with them.


To concede or not to concede; that is the question

You will eventually hear a dreaded question that begins, “Counsel, will you concede that ….” What follows may be as innocuous as a butterfly, but it’s more likely to be a live cobra, and you need to treat it with appropriate respect. No matter how forcefully you argue Point X in your well-polished brief, if you concede the opposite in response to a question, the court will take that as a binding admission, and you (and your client) are stuck with the oral answer; you’ll likely see your own words quoted to you in a footnote to the court’s opinion.

Keeping in mind that you can’t avoid requested concessions any more than you can dodge other questions, here are some ideas on how to respond. First, if it’s a matter so obvious that you’ll lose credibility if you don’t concede – “Counsel, will you concede that the sun generally rises in the east and sets in the west?” – then you have to make the concession. Refusing to do so will cost you credibility, and no matter how good you are, you don’t have any of that to spare.

Second, if it’s on your tough-questions list, be happy that you’ve formulated an answer in advance. Turn to that page and respond appropriately.

Third, if you get an unanticipated question that might damage your case if you answer it incorrectly, and you’re not sure about the right answer, you still have a way to respond without losing face (and the appeal). You can cite Rule 1.2 of the Rules of Professional Conduct, telling the court that the decision whether to concede this point requires you to consult with your client. He has a right to be involved in the process of deciding whether to give away a significant legal or factual point, and you can’t consult with him from the lectern. The jurist might not like that response, but it’s consistent with our ethics rules.

Having suggested this approach, I urge you not to abuse it. If it’s obvious that you have to make a damaging concession, then you must do so in good faith and try to explain to the court why you should win anyway.

Fourth Circuit judge Toby Heytens, himself an elite appellate advocate before taking the bench, offers this approach when you get a tricky hypothetical question — really, that’s just a different way to phrase a requested concession — and you aren’t sure if the answer might damage you. At the lectern, his approach in responding to such inquiries was to say, “I think the answer in that situation would be X, though I’d want to evaluate that much more fully before offering a definitive answer.” This simple, elegant approach avoids the possibility of a direct concession.

What you may not do in response to a hypothetical is reply, “Those aren’t the facts of the case, your honor.” She knows that; that’s why she asked a hypothetical question.


Saying “I don’t know” properly

There comes a time in every advocate’s career when a complete stumper arrives. Maybe it’s the meaning of an obscure exhibit that you hadn’t anticipated would be germane; maybe it’s the contours of a prior decision handed down 90 years ago. We need something better than a shrug here.

Many years ago, I was in the Supreme Court of Virginia when a very prominent lawyer, one I respect enormously, was called to the lectern to argue his appeal. To my astonishment, he arrived empty-handed – no notebook, no legal pad, no index cards, no nothin’. He began a beautiful speech, but before long, a member of the court with an impish sense of humor asked him to identify on which page of the record the court would find a certain cited item.

Uh-oh. Perhaps some lawyers are appendix savants who can memorize every page and quote them back to you in a second or two. I’m not one of those, and neither was this day’s hero. His answer was, and I quote, “I don’t know. But I assure you it’s in there.”

You’ll observe that this answer has two components, contained in separate sentences. The first sentence is a correct response; if you really don’t know the answer, you should admit as much. But the second sentence was a big mistake. Phrasing it that way says to the court, “I don’t know; you go figure it out.” We won’t be doing that in our appellate practices, okay?

The proper way to do this is to say something like, “Standing here today, I don’t know. But I can get the correct answer and convey it in a letter to the Clerk that I’ll deliver within 24 hours.” Note that this is an express offer that you’ll do the work yourself, and will submit the answer promptly. To this question, you’re likely to get one of two answers. (1) “No, it’s not that important.” Now you’re off the hook. (2) “Yes, please; I’d like to have this information.” Now you can go back to the cozy confines of your office, find the right answer, and send it to the court as promised. Just keep the letter very short; a simple reference to the question followed by the requested information and then, “Respectfully yours, ….”


When the badger grabs hold

Many, perhaps most, appellate courts have one or more jurists who won’t let go of a point despite your best efforts to disentangle and resume your argument. These questioners will keep you engaged with multiple follow-up queries even after you’ve given your best try at a direct answer. Your precious time is ticking.

This is an exercise in diplomacy. At some point – not too early in the exchange, or it’ll look like you’re surrendering quickly – you need to ask the jurist politely to let you go. Here are a few ways to phrase this; what follows emphatically is not an exhaustive list.

“Your honor, I’ve genuinely given you the best answer that I have on this point. I sense that I haven’t satisfied you, but I don’t know that I can do better than what I’ve said. I request your leave to move to my argument on Assignment 2 while I still have time on the clock.”

“Perhaps your honor and I will ultimately have to disagree on this exact issue. But I’d like to turn to the Johnson case, which I believe addresses your concern from another direction.”

Or in extreme situations:

“I perceive that I’m just not going to get your vote in this aspect of the case. I would, however, like to take a stab at convincing a majority of your brethren on the court. May I return to my argument to do that?”

I repeat, for vitally needed emphasis: This requires diplomacy. You can’t use any of these lines with an air of exasperation, or you’ll lose Judge Badger and some of the other judges, too; you might even get an oral bench-slap from the presiding judge or justice.


The two-front war

You’re zinging along in your reply to Judge Smith when, halfway through – and before you get to the juicy part – Judge Jones pops in with another question. What do you do? You can try to put Jones on hold while you finish making your killer point to Smith; or you can drop Smith like a bad habit and jump immediately onto Jones’s question. Either way, it looks like you’re bound to offend somebody.

As far as I know, there’s no firmly established best practice here. I suggest this: After you follow the easy advice at the top of this essay by remaining silent during Jones’s interruption, you look quickly at Smith and say quickly something like, “I’ll return to your question as soon as I can,” then answer Jones as concisely as possible. Smith will understand your predicament.

This problem worsens if two jurists both want to ask you different questions at the same time, or close enough that it comes out like one long, confusing query. This, too, requires tact.

My advice is to set the table: “Judge Smith would like to know about the contract claim and Judge Jones about the warranty claim.” You then look at the presiding judge on the court or panel and say, “I propose to answer Judge Smith’s question first and then turn to Judge Jones’s topic.” Everyone on the court should understand that you’re tacitly asking the presiding judge to allow you to separate the questions in this way, and most presiding judges will say, “Go ahead.” This legitimizes your approach and carries the fringe benefit of allowing you to answer the questions in the order that you prefer.


Know thy questioner

No, this isn’t going to be an admonition to read every published opinion by each member of your panel. In the Fourth Circuit and the Court of Appeals of Virginia, you don’t know the panelists in advance, so you’d have to undertake an endless task.

Instead, I’m referring to the generic jurist’s task. Going back to John W. Davis, his rule #1 for appellate advocacy is to put yourself, in your mind’s eye, in the position of the court. You’re in oral argument because you want to win the appeal, but the judge is there because she wants to know how to decide the case and how to shape the holding. Face it: Very few appeals come down to a sudden game-winning oral argument. In my opinion, something around 85% of appellate persuasion is on the briefs. Oral argument doesn’t change votes very often.

Instead, the court may want to know how the opinion should read. I’ll allow you to cheat on your tough-questions list by giving you one of them right here, for every appeal you argue: “Counsel, if we rule in your favor on this point, how would we phrase the ruling?” You must have a considered and concise reply to that question. You don’t “leave it up to the wisdom of the Court to shape a proper opinion”; that’s a cop-out and a missed opportunity to get the language that you most want.


More than a century ago, Theodore Roosevelt had sharp words for critics. Here’s the passage, which I dearly love:

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.

If you regard questions from a hot appellate bench with fear, take heart from Roosevelt and from this essay. Know also that while you may begin your presentation with the jitters, your nerves will settle down once you start arguing. Because you’ve prepared for your argument, you need not be a cold and timid soul. Get into the arena and let ‘em have it.


Notes on the Close of Another Year



(Posted December 29, 2023) Over the weekend, I used the word fugitive playfully, to describe a practice golf ball that, once released from a dispenser, popped out of the waiting basket and started to roll away. A moment later, I pondered for the first time the etymology of the word and immediately recognized its Latin root in the phrase tempus fugit – time flies.

Time has flown yet again, and the world stands ready to initiate what will be a momentous new year. With no new decisions this week from the Supreme Court, here are a few idle thoughts on the close of the current year, in recognition of that fleeing golf ball as a metaphor for the passage of time.


Exhortation from the ABA

If you’re an American Bar Association member, you received yesterday an e-mail from the office of ABA President Mary Smith. One paragraph in that note caught my eye:

Lawyers have a duty to support and defend the Constitution along with a specific duty to represent our clients. This is rooted in our professional oath along with the Preamble to the Model Rules of Professional Conduct, which states that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

The admonition to promote the rule of law among nonlawyers was familiar in a sense, and yet strange in that I didn’t recall it from any Ethics course I’ve taken here. I decided to dig around and see if I had missed something.

The good news is that my memory is still functioning; the bad news is that this important exhortation isn’t contained in the preamble to the Virginia Rules of Professional Conduct. That’s why I hadn’t heard about it in any Virginia Ethics courses.

Why not? Why does Virginia eschew this sensible call to us to be good citizens instead of just good lawyers? Unlike individual rules, there’s no comparison between the Model Rules and our rules for the preface, so we don’t have an easy answer.

I can conceive of two plausible answers to this question. The first is that the ABA may have added the quoted passage in its 2000 update of the Model Rules, shortly after Virginia adopted its version in 1999, and Virginia just never got around to incorporating the exhortation into our preamble. I like that hypothesis better than the alternative, which is that Virginia made a conscious decision not to include this language in our rules.

The year 2024 will be a critical one for the rule of law in America; I don’t think I need to explain why. Virginia should take the belated but important step of formally urging its lawyers to embrace this sensible duty.


A judicial retirement

Sunday marks the final day in office for the longest-tenured judge on the Court of Appeals of Virginia. Judge Bob Humphreys steps down after a judicial run that began in 2000. He’s a product of my hometown of Virginia Beach, having served as our elected Commonwealth’s Attorney before being called directly to the appellate bench. He has been quick to say yes to requests for CLE presentations, always offering a liberal and welcome dose of wit in those sessions.

I’m pleased to report that one of Judge Humphreys’s final important judicial acts was to preside over a certain civil marriage ceremony in a local park last month. It was a small affair; the witnesses comprised the bride’s mother and aunt, the groom’s mother, and three collies including my beloved Ardie. I was quite proud to walk my favorite daughter down that beautiful tree-lined aisle.


January argument docket

The Supreme Court of Virginia has published the argument docket for the January session. It contains five appeals spread over Wednesday and Thursday, January 10-11. In between will be an always-grand event: the State of the Commonwealth address on Wednesday evening. Traditionally, most of the justices attend the speech; the court times the January session so it coincides with the beginning of the General Assembly session each year, so The Robes are in town anyway.

The five appeals set for next month include two criminal cases, two habeas, and one civil appeal implicating longarm jurisdiction. One of the habeas proceedings appears to be an original-jurisdiction action, so there’s no lower tribunal there. Of the remaining four, I noticed that two arose from writs issued in September, and the other two were granted all the way back in March. So much for my thesis that one can roughly project the merits-argument session from the date of a writ grant.


New writs granted

The Supreme Court has posted to its website five new appeals granted over the course of this month, including three from the December 5 writ panels. I continue to see a disproportionately large number of criminal writs, at least measured by the pre-2022 norm. It may be taking civil cases longer than I had expected to wend their way through the Court of Appeals and onto an SCV session docket.

Based on the timing of previous grants, I expect something like seven appeals on the February/March session’s argument docket. While seven merits cases is still well below what we normally saw several years ago, it would still be the court’s largest merits docket in a year; the February/March 2023 docket contained eight appeals. I’m looking forward to seeing ten or more appeals in a session again, but the good old days of twenty or more may be gone forever.


Health and happiness to you and your loved ones in 2024, and well beyond.

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 22nd, and will remain closed through Tuesday, reopening on Wednesday the 27th. 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.


Analysis of December 14, 2023 Supreme Court Opinions



(Posted December 14, 2023) Christmas comes a week and a half early for courtwatchers at Ninth and Franklin. The Supreme Court of Virginia hands down three published opinions this morning, including a decision in the oldest undecided appeal on its argument docket.



Today the Supreme Court of Virginia joins the ranks of courts that must confront an important sociological issue: how we should address transgender people, in this instance in the public-school context. In Vlaming v. West Point School Board, the justices evaluate a claim by a high-school French teacher who was fired by the school division for refusing to use a student’s preferred pronouns. Today’s majority and concurring/dissenting opinions run to 143 pages, so it’ll take me some time to read through them and post analysis; I’ll update this essay as I go along.

Late in a recent school year, one of the teacher’s students let him know of a planned gender-identity transition from female to male. The teacher claimed in the eventual lawsuit that sincere religious beliefs barred his use of what he regarded as misgendered pronouns. The teacher accordingly settled on what he felt was a suitable workaround: No pronouns at all, for any of the students in the class. Each student was permitted to select a class name – presumably in French – and discussions in class used those names instead of pronouns.

That wasn’t good enough for the student’s parent, who demanded that the teacher use a specific pronoun. When the teacher refused, the school’s administration warned him repeatedly. The school board eventually fired him for refusing to adhere to its nondiscrimination policy.

The teacher sued, claiming a violation of his rights under the Virginia constitution’s guaranty of freedom of religion. His lawyers intentionally chose not to sue under federal law, probably fearing a speedy dismissal based on SCOTUS’s ruling in Employment Division, DHR of Oregon v. Smith from 1990. That ruling had subordinated employees’ religious beliefs to generally applicable law. (The subject there was the use of peyote, a controlled substance, by Native Americans in their religious observations.)

The past few years have convinced me that Smith has one foot on reversal and the other foot on a banana peel, and will be reversed just as soon as the US Supreme Court’s current majority can get its collective hands on a suitable vehicle for it. The teacher’s lawyers decided not to tackle a climb like that; they took the path of lesser resistance at the time, claiming in this action that Virginia law gives individuals more religious protection than does its 1791 cousin from across the river.

The school board filed a demurrer and plea in bar in response to the suit. After a hearing, the King William County Circuit Court sustained the demurrer and the plea and dismissed the action. A Supreme Court panel awarded the teacher an appeal early in March 2022; the full court received oral argument on November 1 of that year.

If you’re counting months now, I’ll hasten to add that you’re right: November 1 was a long time ago. The modern SCV cranks out most of its opinions within a couple of months of the oral-argument date; a few stretch to the 15-to-18-week range; a tiny fraction take more than half a year. This is the longest of them, and there’s no doubt why: The issues in this case are highly complex, and the justices likely feel a special responsibility to get this one right. This case arises solely under Virginia law, so Those Other Robes won’t get a crack at it; because of the way the teacher’s lawyers shaped the pleadings here, the Supreme Court of Virginia is the court of last resort for this case.

In resolving this case, the court divides. Justice Kelsey pens the majority opinion. He concludes that the teacher states a claim for which relief can be granted. The school board, in his view, sought to compel speech with which the teacher disagreed. The majority holds that this approach fails strict scrutiny; we aren’t dealing with a looming breakout of civil disorder here.

And the burden to justify compelled speech is, the court rules, greater in the educational context. The majority specifically addresses that context in rejecting the school board’s argument that it had the power to regulate his on-the-job speech.

The court also resolves the teacher’s claim that he was fired without due process. The majority’s framing of the issue is all you need to understand its reasoning:

Vlaming alleges that the School Board based its termination decision upon two written policies that neither expressly nor implicitly required teachers to use third-person pronouns, in addition to preferred names, for transgender students. Dismissing this claim on demurrer, the circuit court held as a matter of law that any ordinary person would have known that these policies forbade Vlaming’s nonuse of pronouns and authorized his termination as the price of his silence. We disagree.

As noted, today’s ruling is not unanimous. Justice Powell pens a short concurrence, joined by the chief justice, in which she emphasizes that the government’s right to impair religious freedom is not limited to addressing “overt acts against peace and good order.” This language comes from a statute, not the constitution, and the concurring justices perceive that the constitutional provision affords governments more latitude.

The same two justices join (in part) a far more fulsome dissent by Justice Mann. The dissent begins with this moving passage:

The issues before us today raise the most delicate human questions of religion, liberty, individualism, and the proper conception of these rights in a society which holds divergent views on the meaning of each. Today we have done little to harmonize this divergence. Now, Virginia stands alone among every jurisdiction in this country by imposing a new level of scrutiny; a super scrutiny for religious rights but no others.

If you’re up on your First Amendment, you’ll recognize the subtext here: The dissent perceives that the court’s resolution of this appeal violates a different provision, the Establishment Clause. Courts have long noted that there’s “play in the joints” between these two provisions, which tend to cut in opposite directions. I’ve reported here in the past couple of years my sense that the Establishment Clause has been getting its clock cleaned in recent SCOTUS decisions; the Free Exercise Clause is rampant and shows no sign of losing its dominance.

The dissent is also a partial concurrence; it agrees with the majority’s rulings on the teacher’s free-exercise and breach-of-contract claims. In that sense, the court today unanimously sends the case back to circuit court for trial. The two sides part company over claims under the Commonwealth’s religious-freedom constitutional provisions, plus those claiming free-speech and due-process violations.

The dissent perceives this ruling as opening the door – or to use its metaphor, the gate – to a form of religious tyranny of the minority, or even of a single citizen. The majority’s expansive reading of the Virginia constitutional provision will, in the dissent’s view, enable individuals to force the government to yield to an individual’s religious views, on pain of a free-exercise violation.

Both sides of this juristic debate employ sweeping language taken from our founding documents – most notably the Virginia and United States Constitutions – to justify their conclusions. Both dive into the deep end of our Commonwealth’s and our nation’s legal history. As a result, today’s opinions are long – 143 pages in all. Given that length, I have necessarily truncated this analysis; otherwise you’d be reading a 25,000-word essay that might take you the better part of your workday to read through – and that’s just the first time. If that interests you, the slip opinion is just a mouse click away.

This appeal is, in one sense, the ultimate appellate outlier. The parties argued it 13½ months ago, easily the longest delay between oral argument date and decision date in our lifetimes. The last time anyone saw such a delay was probably in the Civil War; but I don’t have access to the court’s Nineteenth Century oral-argument dockets to check.

When you read today’s release, you’ll see that there was a reason for the lag. As usual, the authors of the majority and dissenting opinions have exchanged drafts, likely multiple times, allowing each to address the other’s arguments. It is an extremely thorough job, on both sides; both opinions are beautifully composed. And of course, both observe the SCV tradition of courtesy to the other, something that’s often cast aside in decisions from One First Street. We in Virginia got the better end of that deal.

I noted one significant divergence in the wording of today’s opinions. The majority effectively adopts the teacher’s workaround on pronouns, by never using one to refer to the student. It uses pronouns liberally in referring to the teacher; but the student, identified as “John Doe,” is always Doe in the majority. In the dissent, Justice Mann uses masculine pronouns – the student’s choice – consistently.


Criminal procedure

Lest we become swept up in today’s major news item, we have more. In Commonwealth v. Delaune, the justices resolve a dispute over the revocation of a suspended jail sentence.

After convictions for multiple drug offenses, Delaune received two years of active incarceration with the compliments of a learned Virginia Beach Circuit Court judge. It could have been worse: The full sentence was six years, but the court suspended four. It imposed the usual conditions of release, notably obedience to laws, and added a special condition that she remain drug-free.

Alas; the boon of lenity meant too little to her. Shortly after her return to liberty, she overdosed on drugs. It didn’t kill her, of course; but it did earn her a revocation hearing. Before that hearing, she bolted, leaving her probation officer in the dark as to her whereabouts. Law enforcement officers eventually caught up with her.

While the revocation proceedings were underway, the legislature amended the relevant statute to liberalize the treatment of defendants in Delaune’s position. The new rules forbade a court to impose active incarceration for a single instance of what they call a technical violation. Using drugs and absconding on parole are technical violations, though by statute, they’re treated as two such violations.

The circuit court reimposed the sentence and resuspended all but 60 days of it. Thinking that that sentence was too harsh, Delaune appealed and found succor in the Court of Appeals. That court ruled that the maximum available period of incarceration here was 14 days. Today the Supreme Court agrees and affirms.

One aspect of this decision is especially noteworthy. Although the statutory change hadn’t quite kicked in as of the date of the revocation hearing, the Commonwealth’s Attorney agreed to treat it as though it were in effect. The parties can do that, by statute. In the Court of Appeals, the Attorney General stepped in and repudiated the local prosecutor’s agreement, contending that the Code amendment shouldn’t apply retroactively.

Nonlawyers will have a hard time understanding this, but the AG can do that. Despite a clear agreement by the Commonwealths Attorney, the AG can shrug off the agreement and proceed more harshly. Today’s opinion explains that away by citing earlier cases holding that the AG and the CA are separate officers, and the AG can repudiate – or at least isn’t estopped by – an agreement made by his predecessor.

Today, however, the Supreme Court rules that that doctrine doesn’t apply here. The mutual-consent statute allows the local prosecutor to make an election, and allowing the AG to sweep an agreement aside would effectively nullify the statute.

Justice Chafin pens today’s opinion for a unanimous court.


Today’s third ruling is a habeas case, Schmuhl v. Clarke. The petitioners was convicted of several crimes stemming from a home-invasion robbery with aggravated malicious wounding. His trial lawyers planned to offer a defense that he was, at the time of the offense, “suffering from an acute medication induced delirium at the time of the home invasion and, therefore, he was unable to understand the nature, character, and consequences of his actions.” They hired a psychiatrist and a psychologist to testify at trial that a combination of medications led to involuntary intoxication.

The prosecution read this as notice of an insanity defense. It accordingly requested information about the prospective experts and no doubt planned to have the defendant examined by its own expert.

The defense lawyers anticipated this. They also recognized that there’s a big difference between being found not guilty by reason of insanity – which results in a period of psychiatric confinement – and a finding of involuntary intoxication. They therefore told the circuit court that they weren’t offering insanity.

The judge metaphorically shrugged and said, “Your call” before convening the jury trial. During that trial, the court heard a proffer of the experts’ testimony and decided to exclude it. The jury got the defendant, and the Court of Appeals and Supreme Court affirmed a few years back.

The defendant’s next step was this habeas claim, alleging that his trial lawyers didn’t properly understand the contours of the distinction between insanity and involuntary-intoxication defenses. The same judge who presided in the criminal trial handled the habeas case; he refused the petition, holding that the lawyers knew what they were doing and simply made an understandable tactical decision. If that approach had worked, it would have bestowed upon the defendant a bountiful set of benefits.

Today, in a unanimous opinion written by Justice Powell, the Supreme Court affirms. Viewing the lawyers’ actions without “the distorting effects of hindsight,” the justices conclude that the habeas petition hasn’t “overcome the strong presumption that his trial counsel’s conduct fell ‘within the wide range of reasonable professional assistance.’” The lawyers carefully researched the law and chose a course of defense that offered their client a legal home run if it succeeded. The fact that it ultimately failed doesn’t make their assistance ineffective.

*   *   *

Today’s release of Vlaming means that all of the decisions in the Supreme Court’s 2022 argument dockets are now, at long last, in the books. Schmuhl finished off the five cases argued in the September 2023 session, and Delaune is the second decision to come down from the November session; there are four more left. We have two more Thursdays in 2023; two more potential opinion days to (possibly) add to the year’s bounty of decisions.


Court revives suit by teacher fired for not using trans student’s pronouns

Court revives suit by teacher fired for not using trans student’s pronouns

Conservatives hail divided high court ruling in Virginia as a win for religious freedom; supporters of transgender rights cast it a license to discriminate

By Justin Jouvenal, The Washington Post – 12/14/2023

In a ruling hailed as a major victory by conservatives, Virginia’s Supreme Court on Thursday revived a lawsuit by a teacher who claims his religious liberties and free-speech rights were violated when school officials fired him for refusing to use the pronouns of a transgender student.

In a split 143-page decision, the justices overturned a lower court decision dismissing Peter Vlaming’s case, which has drawn national attention because it pitted the hotly contested issues of transgender rights and religious freedom against each other. In its 4-3 decision, the Supreme Court remanded the case to a lower court for trial.

The Alliance Defending Freedom (ADF), the conservative Christian group that is representing Vlaming, called the ruling a “sweeping victory” for free speech and religious rights, and Virginia Attorney General Jason S. Miyares (R) said “it dramatically expands the protection of religious liberty.”

But legal counsel for the National Center for Lesbian Rights (NCLR), which has followed the case, called it “dangerous and misguided” and said it gives teachers a right to discriminate. The expansiveness of the ruling also troubled two justices who dissented from the majority opinion, who wrote that Virginia now stands alone in the country in offering “a super scrutiny for religious rights but no others.”

“As a teacher, Peter was passionate about the subject he taught, was well-liked by his students, and did his best to accommodate their needs and requests,” ADF senior counsel Chris Schandevel said in a statement. “But he couldn’t in good conscience speak messages that he doesn’t believe to be true, and no school board or government official can punish someone for that reason.”

Administrators with West Point High School, where Vlaming worked, and West Point School District, who are named as defendants in the lawsuit, did not respond to a request for comment Thursday. The rural school is about 40 miles east of Richmond.

Shannon Minter, legal director for NCLR, said in a statement that the ruling ignores teachers’ obligations under the law.

“Requiring teachers to treat transgender students equally when they address them in class is about prohibiting discriminatory conduct, not speech,” Minter said. “Such a rule no more restricts protected speech than requiring teachers to treat any other group of students equally.”

Vlaming, who taught French, claims in his lawsuit he couldn’t refer to a transitioning student assigned female at birth by masculine pronouns because it violated the tenets of his Christian faith.

Vlaming, a six-year teacher, told the student he would use the student’s male name in class and try not to use pronouns in an effort to balance the student’s wishes and his own religious beliefs, according to the lawsuit.

But school administrators told him it would violate a nondiscrimination policy to not use the student’s masculine pronouns and issued Vlaming warnings, according to the suit. When Vlaming still refused to use the masculine pronouns, the lawsuit says, the school board fired him in December 2018.

Vlaming filed his lawsuit in 2019, claiming the school and district officials violated Virginia’s constitution and state law. He is seeking to be reinstated to his position and damages of $1 million.

The lawsuit did not argue that administrators violated Vlaming’s federal constitutional rights, so the Virginia Supreme Court’s ruling is the final say on the matter and cannot be appealed to federal court.

A King William County Circuit Court judge dismissed most of Vlaming’s claims following motions by the defendants, and Vlaming eventually dropped the rest of the lawsuit before appealing the dismissals to the state Supreme Court last year.

The Virginia Supreme Court ruled that Vlaming did have grounds to sue and reinstated the lawsuit, finding that Virginia’s constitution extends robust protections to religious liberty, perhaps even more so than the First Amendment.

“Our Constitutional Republic … cannot be true to itself if it curates between those who can and those who cannot participate in the public marketplace of ideas and retreat, when necessary, to the private sanctuary of conscience,” the majority opinion states. “Absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs.”

L. Steven Emmert, an appellate attorney in Virginia who is not involved in the case, said in an analysis that some of the dissenters were concerned that the decision was so broad it might open the door “to a form of religious tyranny of the minority, or even of a single citizen.”

The ACLU of Virginia said in a statement that “public school officials are still bound by federal law to not discriminate against their students.”

Emmert said in an interview that time will tell whether the ruling is truly as sweeping as conservatives contend but that the decision comports with the “modern trend” of greatly expanding the free exercise of religion, particularly by the U.S. Supreme Court.

Emmert pointed to U.S. Supreme Court decisions in recent years, including one allowing a massive cross on public land in Maryland and another allowing a town council to open meetings with a prayer, as part of the trend.

“This was Virginia’s turn,” Emmert said.

Virginia court revives lawsuit by teacher fired for refusing to use trans student’s pronouns

Virginia court revives lawsuit by teacher fired for refusing to use trans student’s pronouns

The former teacher, who was fired from West Point High School in 2018, said he could not use the student’s pronouns because of his religious beliefs.

From NBC News:  By Denise Lavoie, The Associated Press – 12/14/2023

RICHMOND, Va. — A lawsuit filed by a Virginia high school teacher who was fired after he refused to use a transgender student’s pronouns was reinstated Thursday by the state Supreme Court.

Peter Vlaming, a former French teacher at West Point High School, sued the school board and administrators at West Point High School after he was fired in 2018. A judge dismissed the lawsuit before any evidence was heard in the case. But the Supreme Court overturned that ruling and said the lawsuit can proceed to trial.

Vlaming claimed in his lawsuit that he tried to accommodate a transgender student in his class by using his masculine name and avoiding the use of pronouns, but the student, his parents and the school told him he was required to use the student’s male pronouns.

Vlaming said he could not use the student’s pronouns because of his “sincerely held religious and philosophical” beliefs “that each person’s sex is biologically fixed and cannot be changed.” Vlaming also said he would be lying if he used the student’s pronouns.

His lawsuit, brought by Alliance Defending Freedom, a conservative Christian legal advocacy group, alleged that the school violated his constitutional right to speak freely and exercise his religion. The school board argued that Vlaming violated the school’s anti-discrimination policy.

All seven justices of the state Supreme Court agreed that two of Vlaming’s claims should move forward to trial: his claim that his right to freely exercise his religion was violated under the Virginia constitution and his breach of contract claim against the school board.

“Absent a truly compelling reason for doing so, no government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs,” Justice D. Arthur Kelsey wrote in the majority opinion, joined by three other justices.

But the court was split on some aspects of the lawsuit. In a dissenting opinion, Justice Thomas Mann, joined by two other justices, wrote that the majority’s opinion on Vlaming’s free-exercise-of-religion claim was overly broad and “establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.”

L. Steven Emmert, an appellate attorney and publisher of the website Virginia Appellate News & Analysis, said the main dispute between the majority and the dissenting justices “is the extent to which the individual’s beliefs can overcome the government’s interests.”

“The majority said only where the public safety and order is at stake can the government restrict someone’s speech and their free exercise of religion, and this case doesn’t rise to that level,” Emmert said.

Vlaming’s attorney, Alliance Defending Freedom senior counsel Christopher Schandevel, said Vlaming was well-liked by his students and “did his best to accommodate their needs and requests.”

“But he couldn’t in good conscience speak messages that he doesn’t believe to be true, and no school board or government official can punish someone for that reason,” Schandevel said.

During arguments before the state Supreme Court, Alan Schoenfeld, an attorney who represents the school board and school administrators, said Vlaming’s speech was part of his official teaching duties and his refusal to use the student’s pronouns clearly violated the anti-discrimination policy.

“A public school employee is not at liberty to declare that he will not comply with a neutrally applicable policy that is part of his duties as a classroom teacher,” he said.

Schoenfeld did not immediately respond to a telephone message Thursday. School board Chair Elliot Jenkins and Vice-Chair Laura Shreaves did not immediately respond to emails seeking comment on the ruling.

Alliance Defending Freedom has brought at least six similar lawsuits — three in Virginia, and one each in Ohio, Kansas and Indiana.

Update on Appellate Developments



(Posted December 7, 2023) Most Americans associate today with the attack on Pearl Harbor that ushered the nation into World War II. I mark it for a different reason, and today is an especially important iteration: It’s the sesquicentennial of the birth of my most famous relative, author Willa Cather. She was a native Virginian, born in Frederick County, just north of Winchester in a settlement that was called Back Creek then; it’s now known as Gore. Her family moved to Nebraska when she was a child, and that’s the formative environment for her most enduring fiction.

I’ve learned that a foundation in Nebraska has set aside 600 acres of grassland and named it the Willa Cather Memorial Prairie, a few miles south of her long-ago home in Red Cloud. That site is on my list of must-visit places, to honor my third cousin (twice removed), and to see the land as she did.

The opinion well at Ninth and Franklin is dry again today, so let’s explore some current appellate matters.


A quick count on SCV opinions

With today’s shutout, there are presumably just three more potential opinion days in 2023. I should have been patient and waited for the final numbers to roll in, but curiosity got the better of me, so I decided to review what’s come down thus far; it’ll be easy to update this in early January. If you make your living in the Supreme Court of Virginia, I’ll warn you that what follows is not pretty.

With roughly 16/17ths of the year in the books, the SCV has released 24 published rulings and two unpubs. When I began to publish this website almost 19 years ago, a total of 24 published decisions was roughly what I could expect on each of the court’s six opinion days each year. If the caseload in those days had been as sparse as the current docket, I may not have decided to launch this site.

Only five of the decisions came down to a split vote, with one or more justices dissenting; the other 19 were unanimous. Three of the published decisions are orders, and that means that we can’t know who the authors were. For the remaining 21, here are a few interesting tidbits:

The most frequent dissenting voter, with three, is the chief justice. In marked contrast, Justice McCullough has a perfect voting record, casting his lot with the majority in every decision.

As of tomorrow, we will have gone half a year since the last dissent (City of Hampton v. Williamson). Since then, the court has handed down nine straight unanimous decisions. I counted just eleven dissenting votes all year. We’ve seen two 4-3 outcomes, two more that ended 5-2, and a single 6-1 decision.

The court’s most prolific writer is Justice Kelsey (six opinions of the court and one dissent), followed closely by Justices Russell (five and one), McCullough (five and zero), and Powell (four and zero). At the other end of the spectrum are the chief (one dissent) and Justice Chafin (one opinion of the court). It’s possible – indeed, highly likely – that each of these two received an assignment for an opinion that turned into one of the court’s three unpubs.


Business is down across the Potomac, too

Throughout the year, I’ve bemoaned the paucity of merits cases in the SCV. The court concluded its six 2023 sessions having heard oral argument in just 28 cases. But the decline was foreseeable after the passage of Senate Bill 1261 two years ago, and I expect – not without a dollop of nervous worry – an uptick next year.

The merits caseload of Those Other Robes is way down, too. SCOTUS convenes seven times a year in what that Court calls sittings. We call them sessions here on the correct side of the river, but I won’t fuss over a minor difference like that. The docket for the fourth sitting of OT ’23 is out, and when you add together the arguments on the first four, it only comes to 29. (When appeals are consolidated for argument, I’ve counted that as a single argument.) Ten years ago, the first four sittings of OT ’13 saw 46 oral arguments.

If you’re starting to see a troubling trend here, join the guild. I occasionally receive questions about what’s behind the years-long decline in appellate business. My semi-informed speculation – though it’s still speculation – includes things like the cost of appealing and the rise of ADR. It once included the dauntingly low writ-grant rate in the Supreme Court of Virginia, but now every appellant gets one round of merits review, so that’s probably no longer a major factor.

Perhaps appeals are becoming obsolete, like pocket calculators, classified ads, and handwritten letters. This is fair warning for those of you who are looking to break into the appellate field. We in the guild will welcome you – it’s extraordinarily collegial here – but I can’t promise you a ton of business, at least to start.


When good things happen to good people

I read yesterday that Vice President Harris has now cast more tiebreaking votes in the US Senate than any previous VP, surpassing a record set by John C. Calhoun back in the JQ Adams and Jackson Administrations. She received a small ceremonial gavel as a memento.

But the news for us is what she cast that tiebreaking vote for: the nomination of D.C. Court of Appeals Judge Loren AliKhan to a seat on the US District Court. Before she became a learned appellate jurist, Judge AliKhan was an appellate lawyer, and a terrific one at that; she served for a time as the Solicitor General for the District of Columbia. You may have seen her at one of the Virginia Appellate Summits. She now leaves the world of appeals for a trial bench, but who knows? At just 40 years old, she may have a future on a higher court.

The only troubling part of this story is that a tiebreaking vote was necessary. Judge AliKhan is plainly qualified to be a district judge. From what I can see, opposition to her in the Senate – every Republican, plus Democratic Senator Joe Manchin of West Virginia – arose from pure politics and had nothing to do with her qualifications.

The particularly concerning aspect is that her opponents cited some of the positions she took in litigating cases, a patently improper consideration if we’re to have a functioning legal system. After all, lawyers have to be free to represent clients and causes without personal cost. But that’s the environment we occupy now. The days of 96-3 Senate confirmations – that was the vote in 1993 to confirm Ruth Bader Ginsburg to a SCOTUS seat – appear to be over, replaced by a chamber where each senator is expected by his or her party’s leadership to oppose the other party’s nominees, no questions asked.


Analysis of November 30, 2023 Supreme Court Opinion



(Posted November 30, 2023) Today is the anniversary of the birth of my favorite author, Mark Twain. He had an unmatched (in my opinion, anyway) capacity for bringing just the right dollop of wit to everyday situations. His writings have kept me laughing for decades.

Perhaps because of him, I’ve tried to insert an appropriate amount of wit in these musings, in the hope that an enjoyable experience here will bring you back. Today, I find myself overmatched: There is no spice that can liven the bland stew of today’s decision from the Supreme Court of Virginia. The issue in Verizon Virginia LLC v. State Corporation Commission is whether the SCC has subject-matter jurisdiction to decide who must pay for the relocation of Verizon facilities within the VDOT right-of-way in the Capital Beltway.

Now, I readily acknowledge that donnybrooks over subject-matter jurisdiction can be entertaining. This instance is obviously of great interest to the parties, as I expect that a lot of zeroes are at stake. But the public may not notice; Verizon’s facilities are going to be moved, one way or the other. It’s just a matter of whether the utility or a public-private partnership will foot the bill. And today’s issue is even narrower than that: Which tribunal can decide the claim?

Verizon has a right to use VDOT’s rights of way, subject to the requirement that the Department can require the company to move things around without cost to VDOT when circumstances require. When VDOT sought to expand the Beltway, it decided to expand it inward, adding new lanes from the median so as not to require it to acquire expensive rights of way from adjacent landowners. This project is a public-private partnership, and the entity that’s handling the expansion is a private company, Capital Beltway Express.

Verizon, faced with significant relocation expenses, filed a DJ proceeding in the SCC, asking for a declaration that the private company has to absorb the costs. Acknowledging its agreement with VDOT, Verizon argued that the private company isn’t a party to that agreement, and it can’t latch onto VDOT’s rights.

The SCC ruled that it didn’t have subject-matter jurisdiction because this is a contract claim, not a statutory one. Verizon exercised its right to appeal directly to the Supreme Court – no writ process required – and today the justices unanimously affirm. The court finds that the origin of this claim is the contract, and claims like that go to circuit courts, not to the SCC. The justices also reject an argument that this claim falls within one of a very few exceptions to that division of labor.

As I see it, Verizon can still bring its claim in a circuit court, assuming there are no limitation-of-action issues. I don’t know enough about matters like this to offer an opinion on limitations, and I certainly don’t know enough about the ultimate merits of the claim.

Poor Justice Russell drew the short straw and had to write the opinion of the court. As readability goes, he does a fine job, considering the dry material that he had to work with. This case produces a lightning turnaround, as the parties argued the case to the court on November 1, just four weeks ago.


Analysis of November 22, 2023 Supreme Court Opinion



(Posted November 22, 2023) Opinion day comes 24 hours early this week because of the Thanksgiving holiday. The justices hand us a single decision: Commonwealth v. Puckett resolves a question about restitution in a criminal case.

Puckett was the assailant in an especially vicious knife attack. His victim survived, but incurred six figures in medical bills. Because the victim was indigent, Medicaid paid about 20% of the bill and the hospital wrote off the rest.

At Puckett’s sentencing, the circuit court awarded restitution to the Virginia Department of Medical Assistance Services in the amount it had paid. Puckett appealed, contending that the victim himself was the only proper payee of a restitution award. And because the victim never had to pay anything, he hadn’t “incurred” any expenses that could be the subject of a restitution award.

The Court of Appeals liked that line of reasoning and reversed the restitution award. It noted that DMAS wasn’t a victim of the attack, so it wasn’t a proper party to receive restitution.

In the cosmic scheme of things — specifically, the state budget — $22,000 isn’t a lot of money; but the Commonwealth appealed anyway. A writ panel decided that the issue was worth resolving, and the parties argued the case to the full Supreme Court in the September session.

Today the court reverses the CAV’s judgment and reinstates the restitution award. It concludes that the restitution statute does contemplate a situation like this. Regardless of whether the victim ultimately had to pay the medical bills, he clearly incurred them, and that’s enough to empower a circuit court to require restitution to the entity that ultimately laid out the money.

Justice Kelsey authors today’s opinion for a unanimous court. Justice Russell sits this one out; my best guess why is that he was on the Court of Appeals when this case made its way through that court.


Finally! An Ethics Code for SCOTUS



(Posted November 13, 2023) The New York Times reported a few minutes ago that the Supreme Court of the United States has adopted an ethics code for the justices. As I set out in an essay posted earlier this year, I believe that this move is overdue, and I’m glad the Court has done it; this will replenish the Court’s diminished supply of public trust.

I’m breezing through the new code to get a feel for it; I’ll periodically update this essay as I go along. The first thing I’ve noticed is that it liberally employs a word that wise heads in Virginia recently determined to be troublesome in the legal context: should. In comparison, the Canons of Judicial Conduct for the Commonwealth of Virginia employ must and may.

The many shoulds will leave a reader wondering how, exactly, this code will be interpreted and how it will be enforced. Even some of the aspirational statements will cause a little throat-clearing. For one example, here’s the text of Canon 4, subpart (A)(1)(e):

In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.

I invite you to compare this with this November 9 report in The Washington Post entitled, “Justice Barrett Gets Standing Ovation at Federalist Society Gala.” I’m not naïve enough to believe that this code will stop speeches to like-minded bar groups, even overtly political ones like the Federalist Society. But the juxtaposition of these stories reflects unfortunate timing.

Next, the announcement of this code contains words comparable to those in certain legislative enactments emanating from Capitol Square in Richmond, to the effect that “This act is declarative of existing law.” The justices insist these provisions “are not new” in that they are effectively the “equivalent of common law ethics rules” of long use at the Court, and are “a codification of principles that we have long regarded as governing our conduct.”

I strongly suspect that the promulgation of this code will spur plenty of op-ed calls for enforcement of the new-old provisions against the justices who made recent news with their very public missteps. I’m not holding my breath. My sense after having read through the code is that it won’t fully address public concern, especially if more examples surface. But one primary purpose of the Court’s issuing this code as assuredly to prevent another branch of government — that would be Congress — from stepping in to impose one, thereby triggering a jurisdictional turf war over whether one branch of government can tell another branch how to police itself.

Now that I’ve taken an hour to read through the code, I’m considerably less enthusiastic about it than when I first posted the news at about 2:30 this afternoon. I fear that much of the public will come to regard this as a sort of Potemkin village of judicial ethics, more for show than for enforceability. I do not, however, recommend that you hold your breath waiting for further explanation from the justices. I believe that this is the last we’ll hear from them on this subject for quite a while. (Update November 14: After a day of pondering the new code, I’m becoming more and more convinced that this announcement is just an insult to our intelligence. The policy has no teeth, no enforcement mechanism, and no way to even complain about anything. It’s less a code and more a set of gentle, nonbinding suggestions. I believe that the Court did this for one reason only: It was getting crushed in the court of public opinion, and needed to make a show of caring. To the Robes by the beautiful banks of the James, those justices who seem to take judicial ethics seriously: thank you, thank you.)

More Appellate Potpourri



(Posted November 9, 2023) Today I’m thinking of celebrated astronomer Carl Sagan, born on this date in 1934. In his far-too-short life, Sagan received (among numerous other awards) a Peabody, an Emmy (two, actually), a Pulitzer, three Hugos, and medals from NASA and the National Academy of Sciences. He also received, at one point in the 1980s, a letter from a twenty-something Steve Emmert, expressing great respect for Sagan’s body of work. To my enormous surprise, he wrote back.

In my office, I have a framed print – really, it’s just a printout of an online photo – of this image, taken from the Cassini spacecraft in its visit to Saturn a few years ago. I use it to remind myself how insignificant 0ur troubles are; how meaningless most of our differences are. It’s a wonderful conversation starter for people who have never considered this perspective.

Sagan never got to see this image; Cassini snapped it more than two decades after an aggressive form of cancer claimed him in 1996. But he anticipated it, inspired by an earlier, similar photo. Here’s a passage, recounted in his book, Pale Blue Dot, from a lecture that he had delivered just two years before his death:

On [the tiny dot in the original photo], everyone you ever heard of… The aggregate of all our joys and sufferings, thousands of confident religions, ideologies and economic doctrines, every hunter and forager, every hero and coward, every creator and destroyer of civilizations, every king and peasant, every young couple in love, every hopeful child, every mother and father, every inventor and explorer, every teacher of morals, every corrupt politician, every superstar, every supreme leader, every saint and sinner in the history of our species, lived there on a mote of dust, suspended in a sunbeam. …

Think of the rivers of blood spilled by all those generals and emperors so that in glory and triumph they could become the momentary masters of a fraction of a dot.

In our many moments of strife and discord, we would all do well to ponder this perspective and realize that we’re all brothers and sisters here, sharing the only home that we’ll ever know.

*   *   *

Things are still quiet at Ninth and Franklin – no new decisions for the third straight Thursday – so this is a good day to catch up on some appellate developments.


An AJEI highlight

The ABA’s Appellate Summit last week had the usual bounty of outstanding appellate CLE presentations, but my favorite was probably the “fireside chat” with US Solicitor General Elizabeth Prelogar. On Saturday morning, she sat down with a couple of appellate jurists to answer questions about the job and about life. The hour flew by as she related details of inner workings in the office, of her tenure as a law clerk to two SCOTUS justices, and of her pre-law-school journey. (This included a year as Miss Idaho.)

I finally got a definitive answer to one nagging question, of how to pronounce her surname. At the outset of the session, Judge Michelle Childs of the DC Circuit introduced the Solicitor by pronouncing her name as “pre-low-grr,” where the second syllable rhymes with know. I figured I had my answer until, late in the program, the interviewee mentioned her own name, and pronounced it “pre-logger,” as in someone who comes in and marks individual trees before the logging crew comes in to cut some of them down.

Sessions like this are wonderful opportunities to humanize public figures, and this was no exception. America’s top-ranking appellate lawyer is a real person, and a delightful one at that.


New developments in the appellate blawgosphere

VANA is not, of course, the only website focused on appeals – not even the only one in Virginia. Other sites have featured some interesting recent posts. John Koehler has this new piece on the surprising size of the pending merits caseload at the Supreme Court of Virginia. It features discussion of a couple of OJ proceedings, cases that you won’t find on the court’s writs-granted page. He has also posted a very moving essay on a CAV opinion published yesterday. Both are highly readable, as is virtually everything on John’s site.

Jay O’Keeffe has resumed posting after a hiatus of a couple of months. His current musings include one on decision conferences, another on unpubs in the Court of Appeals, and his skepticism of the current CAV position on the necessity of transcripts for appeals where the only issue is the sufficiency of a pleading below. I agree with Jay on this, wholeheartedly; the CAV’s approach is unnecessarily strict and leads me to doubt the assurances that I’ve long received from appellate jurists that, deep down, they hate procedural defaults and want to decide all appeals on the merits.

Juli Porto continues to post excellent summaries of recent decisions. If you try cases, you could do worse than to print out one of her analysis essays of a topical case for your trial notebook. She provides a helpful cheat sheet on the decisions as they arrive, and you can tell at a glance how new opinions will affect your next trial.

John O’Herron, who was a speaker at an AJEI segment on practice-building, occasionally posts highly informative essays in the Commentary section of his web page.


Speaking of unpubs …

I’ve already lamented the paucity of merits cases in the Supreme Court of Virginia, and I won’t repeat that here. But I’ve quietly been monitoring one interesting side effect of the current court’s small merits caseload. Unpubs are becoming an endangered species in the SCV. The court has issued only two of them all year. Just five years ago, there were two dozen.

Mind you, I emphatically am not trying to encourage the court to issue more unpubs; I believe that most if not all merits decisions should be published. I just note that one consequence of the court’s plummeting merits docket is the absence of these familiar decisions.


A clever headline

This isn’t remotely appellate, but it’s too cool not to mention. Virginia Business magazine posted yesterday a couple of stories about this week’s election. One of those discussed the outcome of a referendum in Richmond over whether to authorize construction of a new casino in the capital city. You’ve probably heard about the result of the vote; but the title of the essay, which spoils any surprise about the outcome, caught my eye: “No dice.”


Election 2023: What Hath Voters Wrought? (Appellate Edition)



(Posted November 8, 2023) You sensibly don’t come here for political news and views. But yesterday’s General Assembly election will have consequences in our field. That’s worth at least a brief note.

As most of you know, the legislature elects all judges in our fair Commonwealth, from the district-court level all the way up to the Supreme Court. Our framework requires that any judge, to secure a seat, must gain a majority of the votes in each legislative chamber. Even a unanimous vote in one chamber won’t get it done if the other chamber settles on someone else.

Yesterday, voters handed the keys to both chambers to Democrats. That means that beginning in January, Democrats will have the power to select any judges they wish, without input from Republicans. At least one of those future jurists will occupy an appellate seat: Longtime CAV Judge Bob Humphreys has reached the mandatory retirement age and will step down this winter.

The new legislative session will end the gridlock that has characterized the current General Assembly in the past year. Oh, to be sure, the legislature filled two seats on the Supreme Court, and one on the Court of Appeals, in its current makeup. But that seems like years ago. More recently, the two houses haven’t been able to bring the State Corporation Commission up to full strength, leaving it paralyzed with just one of three members until retired member Jimmy Dimitri stepped in on a temporary basis, just to make a quorum.

If yesterday’s election had resulted in continued divided control of the state house, I could easily see a continued impasse, no matter what damage this did to the Commonwealth’s position as a supposedly business-friendly state. I could also see a Republican-controlled chamber’s refusing to fill Judge Humphreys’s seat, or demanding its own candidate as the only alternative to such an impasse.

I mention this not to say that yesterday’s outcome was good or bad in terms of who won. I’m neither a D nor an R. But unified control of the legislature, in either party’s hands, means that benches will be filled. That includes the SCC and Judge Humphreys’s seat on the CAV. And because the newly constituted Democratic majority will be in full control of judicial selection for two years, it means that the Democrats will get to choose at least one other appellate jurist when CAV Judge Glen Huff retires the next year.

The Supreme Court, in case you’re wondering, is probably immune for now. That’s because the next Robes to reach mandatory retirement age are Justice Chafin in 2028 and Justice Powell two years later. I added the probably because we’ve seen several justices in a row leave the court before their mandatory retirement date. The last one to age off the court was Justice Lawrence Koontz in 2011. Anything can happen.

What’s Going On?



(Posted November 2, 2023) The recent paucity of meaningful opinion days has left me scrambling for ways to title essays like this, where I don’t have a new opinion to analyze. The Robes by the scenic banks of the James leave us hungry again today — those poor folks following Vlaming v. West Point School Board will now be waiting more than a year after oral argument for a ruling — so as long as I’m here in Washington, DC, the birthplace of Marvin Gaye, I thought I’d channel his muse. Because of the format of this website, I can only provide the lyrics; you’ll have to hum the tune as you read.

Advance report from the ABA Appellate Summit

That’s why I’m here in the District, of course. The Appellate Judges Education Institute begins in a couple of hours. It’s the inspiration for the Virginia Appellate Summit and is the best nationwide gathering of appellate advocates and jurists. This afternoon features a “fireside chat” with Justice Kavanaugh; Saturday morning we’ll get a similar conversational interview with US Solicitor General Elizabeth Prelogar. There’s a reception tonight at the Library of Congress, and by tradition, at least one of Those Other Robes will be there, meeting and greeting star-struck appellate lawyers and judges from the provinces.

Each year, I accumulate far more MCLE credits than I can even carry over to the next year, from my teaching schedule. This event is where I come to learn, and some of the best appellate minds in the country are here to provide that.

For those of you already looking to next year, the 2024 gathering will be November 14-17 at the Westin Boston Seaport District in Massachusetts. The last time I was in Boston other than to change planes was 30 years ago. Hope to see you at that one, too.

More writ grants and a new session

Meanwhile, on the correct side of the Potomac, the Supreme Court of Virginia has issued four more precious writs from the panels that met last month. There were 36 petitions on the writ docket, so we should be content with an 11% grant rate.

Of these four writs, three are in criminal/traffic cases. In the Old Days, before CAV expansion, criminal writs were fairly rare and civil appeals dominated the merits docket. Now that he first batch of civil appeals under the new protocol have filtered their way up through the system for SCV review, I’ll be watching carefully to see when — and if! — the previous ratio returns.

Meanwhile, the Supreme Court’s November session has come and (by the time I’m typing this at about 10:30 Thursday morning) gone. The justices entertained argument in just six appeals, including one SCC case and four criminal appeals. I expect rulings in most of these before the calendar turns to 2024. But even if the court decides them all by then, this will be the smallest annual crop of opinions since perhaps the Civil War. As I’ve mused here before, most of that dip in output is because of Senate Bill 1261. But I believe that a significant cause is a conscious decision by the justices to hear fewer merits cases.

A troubling new development on judicial screening

I learned last week that state legislators are now seeking fewer perspectives on nominations to fill appellate-bench seats. The Court of Appeals of Virginia will soon experience a vacancy when the learned Judge Bob Humphreys retires. Usually the judicial committees in the General Assembly cast a wide net, seeking input from several statewide bar associations on the crop of candidates.

This year, it’s different, or so I’ve been told. The only group whose views the legislators want this time is the State Bar. To be fair, the VSB has always been the 800-pound gorilla among the many bar associations; getting its endorsement is the top priority for candidates because of its outsized weight. But I invite you to consider the views that this new policy excludes:

  • The two tort bar associations, the Virginia Association of Defense Attorneys and the Virginia Trial Lawyers Association
  • The Old Dominion Bar Association (minority lawyers), the Virginia Women Attorneys Association, the Hispanic Bar Association of Virginia, the Asian Pacific American Bar Association of Virginia
  • The Commonwealth’s oldest and largest voluntary bar group, the Virginia Bar Association

I may be inadvertently omitting one or more others, but that’s a reasonably comprehensive list of the groups who have traditionally offered their views.

I’ll add one point despite its flaming obviousness: The most important factor in the decision on who will replace Judge Humphreys is probably not a bar endorsement but next week’s election. The legislature elects judges and justices, and if one party or the other emerges from the General Assembly elections with control of both chambers, well …


Analysis of Edmonson v. Kite (1869)



(Posted October 26, 2023) Today is another barren Thursday at Ninth and Franklin, so let’s look back into the past at an old appellate decision. This one takes us far from the sweet air of the Commonwealth into America’s heartland; the Supreme Court of Missouri handed down its decision in Edmonson v. Kite, 43 Mo. 176, in January 1869.

This is a landlord-tenant appeal – or so the property owner figured. In the 1860s, when a certain military-political dispute raged across the continent, Robert Edmonson owned property in downtown Springfield, Missouri. Downtown is probably a generous term; while we don’t have reliable population figures for the incorporated town back then, it probably numbered somewhere near two or three thousand residents. Some of this estimate included slaves – slavery was legal in Missouri back then – but we probably can’t know just how many. It was a small town, even by mid-19th Century standards.

Edmondson was a Southern sympathizer in the Civil War, and he had many colleagues in southern Missouri. The federal authorities that occupied the town seized his building and turned it over to the local postmaster, Ben Kite, because they needed the existing post office for another purpose. Edmonson’s Southern sympathies may have played a role in the selection of his property, but we can’t know that at this distant point.

Edmonson wanted his property back, but he wasn’t going to get it. He knew it was fruitless to sue the federal government during wartime, so he hired a smart lawyer who came up with a novel theory: He sued the postmaster in his personal capacity, claiming the right of a landlord to recover “for the rent, use, and occupation of a house.” In essence, he claimed that Postmaster Kite owed him implied rent, despite the absence of a lease agreement.

Kite’s response was twofold: Edmonson didn’t have possession of the premises when Kite took possession. The United States Army did. Kite also alleged that the Army had taken possession of the original post office and had directed him to move his operation to Edmonson’s building. He introduced into evidence the several military orders that had commanded him to do just that.

The Greene County Circuit Court sympathized with the landowner and allowed the claim to go to a jury. That jury awarded Edmondson a money judgment for the fair rental value of the property. Kite took the case up on appeal.

The Missouri high court eventually agreed with the postmaster, setting aside the judgment because “the action for use and occupation cannot be maintained unless the relation of landlord and tenant, express or implied, exists between the parties.” The court ruled that Edmonson’s remedy was in tort, not contract. Its opinion concludes with this passage, reminiscent of our own Ted Lansing Supply doctrine that “pleadings are as essential as proof”:

In suing for a tort [the landowner] must state the facts that constitute the tort; otherwise he cannot prove these facts. There was manifest error in this case in holding that the relation of landlord and tenant existed from the mere fact of occupancy. All the evidence shows that there was no such relation, either express or implied.

Thank goodness for appellate courts! The supreme court remanded the case for further proceedings; the outcome of those proceedings is probably lost in the deep folds of time, though I suspect that the putative landlord came away empty-handed.

Why is this old case worthy of reporting now, here in the Old Dominion? It’s because of the backstory, of how Kite got to be Postmaster and how he came into possession of the original post office.

Ben Kite and his wife Mary (née Gott) Kite moved to Springfield from their native Kentucky in 1849, when he was 27 and she was just 19. He was a carpenter, and evidently impressed enough local residents that when the time came to build a new courthouse and jail in the 1850s, they selected him to supervise the construction.

The year 1860 brought … well, you know what it brought. As a sharply divided nation faced a critical presidential election, a clear division of loyalties flared in southern Missouri, a state that never formally seceded from the United States but was by no means firmly in the Union camp. Kite, then still a carpenter but now a prominent citizen in his adopted hometown, publicly announced his support for the Republican candidate for president, Abraham Lincoln. A local history journal described Kite as among the “leading unionists” in the county.

With Lincoln’s inauguration and the transition from the Democratic Buchanan Administration, a host of new political appointments started arriving across the nation. One such commission came to Kite, as grateful Republicans named him the new postmaster for Springfield. The commission arrived by a circuitous route in the Spring of 1861, shortly after familiar events at Fort Sumter, South Carolina.

Kite received the news gratefully, but realized that he had a problem: The current postmaster, Nathan Robinson, was what was called in those days “an ardent secessionist.” The flag of the Confederate States flew over the post office. Here’s how this looming confrontation unfolded, as reported in Kite’s 1899 obituary:

It was understood that a change would be resisted. With his commission and a loaded revolver in his pocket Mr. Kite entered the postoffice [sic] one morning and, presenting both of his evidences of authority to the astonished gaze of Mr. Robinson, demanded possession of the office in the name and by the authority of the commission. Mr. Kite had no more trouble, Mr. Robinson vacated and the confederate flag was taken down from the building.

A 1929 historical cartoon in the Springfield Leader depicted the encounter here; see the third panel of the strip.

This was the office space that Kite first took, until the federal government directed him to more spacious quarters in Robert Edmonson’s building. Kite served as postmaster until 1864; at the end of the war he was elected Springfield’s mayor. He went on to an ironic but fitting post – judge of the Greene County Circuit Court, the very tribunal that had erroneously awarded a money judgment against him until the Supreme Court of Missouri came to his rescue. He held court in a building that he had helped to erect.

Ben Kite also went on – though he would never know it – to be my great-great-great grandfather. One of my prized possessions is an old family bible containing several handwritten signatures of previous owners within the Gott family, my ancestors all. One is a dual signature, where one may read first, “Mary S. Gott.” Then below it, presumably after her marriage at a young age, she added carefully, “Mary S. Kite.”

Judge Kite and his wife now rest in Bellview Cemetery in Springfield. Learning this story has convinced me to make a pilgrimage there to pay my great respects.


Analysis of October 19, 2023 Supreme Court Opinions



(Posted October 19, 2023) Today marks one of the most important days in the history of our Commonwealth, and indeed of the nation. On this date in 1781, Colonial troops, including the Continental Army and numerous members of local militias, lined the roads near Yorktown to witness the proceedings as British troops under Lord Cornwallis marched sullenly and laid down their arms. This event didn’t mark the formal end of the Revolutionary War, or even the end of fighting; battles would continue for another year and a half, and the war didn’t end until the parties signed the Treaty of Paris in 1783. But Americans have long marked the capture of the main British army on October 19, 1781 as the symbolic end of America’s most important war.

My family has a personal connection to the surrender: My great-great-etc. grandfather, Jasper Cather of Frederick County, served in the Virginia militia and, by family lore, was present at the surrender. It must have been the greatest day of his life.

It’s a great day in 2023, too, as the dam breaks on the clogged stream of opinions from the Supreme Court of Virginia. After last week’s trickle, the court releases three new published decisions – two opinions and one published order. Let’s take them up in the order in which the justices received oral argument.



I found the analysis in McKeithen v. City of Richmond fascinating. It involves the priority of subordinate liens after a tax sale of real property.

Oh, I hear you groaning out there. But you’re wrong. No, it’s not boring. You should be more open-minded. Read along and see if you agree.

The story starts with an owner of land in Richmond. He evidently paid his property-tax bills faithfully until Father Time claimed him in 2006. His heirs didn’t pay the taxes thereafter. After eleven years of nonpayment, the City finally got around to filing suit to sell the property to satisfy the tax lien.

I’ll leave aside for now the question why it took City Hall over a decade to enforce its tax lien. The issue for us is what to do with the sale proceeds. A title search revealed two prior recorded liens, whom we’ll call Creditor A and Creditor B. Creditor A had an old lien of $14,000, while B’s, far newer, exceeded $100,000.

A tax sale of the property brought a bit over $50,000. The City got the first bite of the pie – as the Code requires, tax liens are first in priority – and that came to about $29,000, leaving around $21,000 for the junior lienors.

Creditor B appeared and sought payment of his uncontested $7,000; the court directed that payment. But Creditor A never appeared, despite the passage of the statutory two-year period that the court must hold funds. When that period ended, Creditor B returned to the court, arguing that since creditor A had blown off the proceedings, that lien was extinguished and B was entitled to the remaining $14,000.

The City responded with a nasty surprise: Under the statute, if another creditor doesn’t claim his share, the new surplus doesn’t go to junior lienors, but is escheated to the taxing authority – in this case, the City. The circuit court agreed with the City; a panel of the Supreme Court agreed to take a look.

Today’s opinion divides the analytical labors into two parts. In the first, the court agrees with the circuit court and the City that a textual view of the statute does indeed compel the conclusion that the City is entitled to the remaining $14,000. But step 2 in the process is the decision whether following the statute in this situation effects a taking of private property without just compensation. The Supreme Court here agrees with Creditor B and holds that the statute is indeed unconstitutional.

Beyond question, Creditor B had a property interest in the land that’s the subject of the tax sale. By providing for escheatment – the process for public confiscation of property where there’s no private owner – the statute cuts off a valid lien. Basic lien law gives a creditor thus secured a lien over the whole of the debtor’s property; not merely that part that exceeds the value of senior lienors. This means that Creditor B will receive, after remand, the entire res of this appeal – fourteen thousand dollars. I cannot guess what his attorney’s fees for the appeal were.

I’ll offer one other observation. This case took a long, long, long time to make its way through the appellate system. That’s happening with greater frequency now that appeals must transit the Court of Appeals first, before heading upstairs to the Supreme Court. But this isn’t one of those cases; the record number is 210389. That means that it arrived at the Supreme Court 2½ years ago, long before the expansion of the Court of Appeals.

How did it take that long? Two factors caused the extraordinary delay. The first was the writ process: The SCV Clerk received the petition for appeal in April 2021 and the brief in opp the next month. The writ panel originally dunked the petition in July 2021, likely for a procedural default; but the entire court granted a petition for rehearing in October of that year, reinstating the case to the normal writ process. So far, we’re not exceptionally behind schedule.

But now the problem arises: It took the Supreme Court another 15 months, until January 2023, to rule on the merits of the petition. This length of delay is all the more ineffable because the briefs are already in; there’s no four-month gap for the petition and brief in opp. The panel simply took its time in deciding what to do.

By March 2023, the merits briefs were complete. The Clerk placed the appeal on the June micro-docket (just two appeals, an all-time low in the span of my career and possibly of all time). After receiving argument on June 7, the court took the case into its breast and the parties settled down to wait for a ruling.

And they waited. Today’s ruling is unanimous; there were no dissents to coordinate. The analysis is also, as I see it, unassailable. Every component of Justice Kelsey’s opinion for the court makes full sense to me. This case doesn’t bear any of the earmarks of a tough analytical slog, with the possible exception of the court’s declaring a statute to be unconstitutional as applied. In normal times, I would have expected to see an opinion like this in perhaps six to eight weeks. This one took 19, and I can’t imagine why.

Experiences like this and Vlaming v. West Point School Board – a monstrous temporal outlier that’s closing in on a full year since oral argument – give us a broad hint that the current Supreme Court doesn’t prioritize the speedy resolution of appeals the way some of their judicial ancestors did. To be fair, some of the justices probably do. I infer that linguistic exactitude and uber-careful analysis are the greater motivators for Justice Kelsey; of the decisions that take half a year or more to arrive, a disproportionate percentage involve his work as the author of the opinion of the court or a dissent. That doesn’t make his approach wrong; just different.

I mention this because you, my beloved readers, have to advise your clients about the appellate process. One of the components that’s important to most clients is the time it’ll take for an appeal. With the CAV now possessing near-plenary appellate jurisdiction, and with the pace slowing noticeably in that court in comparison with pre-2022, your clients should expect a full appellate process to take no less than 2½ to 3 years, and perhaps more. This is one of the unintended consequences of Senate Bill 1261: The appellate pace has demonstrably slowed to a crawl.


Criminal procedure

Basic principles of double jeopardy bar a subsequent prosecution of a defendant who has been acquitted of the same charge in the same jurisdiction. Commonwealth v. McBride explores what happens when a judge mistakenly grants a motion to strike the prosecution’s evidence.

McBride found himself at the point of the Fairfax Commonwealth’s Attorney’s metaphorical sword, answering drug-distribution charges. The prosecution sought to introduce evidence of prior convictions from Maryland, hoping for an enhanced conviction and sentence. The prosecutor obtained a ruling in limine that these convictions would be admissible at trial based on the authentication from across the Potomac.

At trial, the defense sought to exploit doubt about whether the person in the Maryland records was the same as the person in the dock here. At first blush, this looks like a longshot; the defendant’s full name is Danjuan Antonio McBride, not John Johnson. I’ll go out on a limb and speculate that there are perilously few persons with his name. But I digress.

The circuit court, citing at least some ambiguity (including a record that showed two different birthdates, exactly one year apart), granted a motion to strike at the end of the prosecution’s case, at least as to the recidivist component. The Commonwealth’s Attorney objected strongly and asked if he could reopen the evidence to introduce one added, clinching document. Pondering that, the court decided to allow that, over a foreseeable objection from the defense.

With the new document in the case, the court ruled that the jury would have to decide whether the prosecution had proved that the prior convictions belonged to the current defendant. It reversed its prior ruling on the motion to strike. Today’s opinion adds, “At that point, the defendant had not presented any evidence or taken any other steps such as releasing witnesses.”

The jury got ‘im, of course. The defendant appealed to the CAV, which bought his double-jeopardy argument and reversed in a published opinion. The Commonwealth then perfected an appeal, resulting in today’s opinion.

The justices this morning unanimously reverse the Court of Appeals and enter a final judgment of conviction on the enhanced charge. The court holds that while Rule 3A:15 directs a circuit court to enter a judgment of acquittal upon striking the evidence, the circuit court’s initial decision to strike was interlocutory, and the court had the authority to reconsider it (as courts may do in any case where they still have jurisdiction). The fact that the defense hadn’t taken any action in reliance on the initial ruling means that he isn’t prejudiced by the quick reversal, so he gets no help from the federal Double Jeopardy Clause.


Assignments of error

I was ready to classify Moison v. Commonwealth in the field of criminal law until I got to the surprise ending. But resolution of the case turns unmistakably on how the appellant proceeded in the appellate courts.

This appeal involves convictions for multiple counts of aggravated sexual battery and taking indecent liberties. The defendant is the father of two girls; Norfolk police charged him with the offenses after the girls told their mother about numerous incidents over the years.

The precipitating event came on the evening of a party at the home of one of the defendant’s friends. The prosecution alleged that the two girls went inside the friend’s home to sleep on a sofa while the two adults stayed outside. The defendant entered the house around 5:00 am and allegedly committed sexual batteries on his daughters.

At trial, the defense called his friend – the host of the party – who was prepared to testify that she and the defendant had stayed outside together until 6:00, so he couldn’t have been inside at the time of the claimed incident. The prosecutor objected, noting that the defense has an obligation to disclose alibi evidence before trial, and no such disclosure came in this case. The defense responded that the offered testimony wasn’t an alibi. The learned judge wasn’t having any of it; he excluded the evidence and the jury convicted the defendant.

In the Court of Appeals, the defendant argued that the evidence was actually impeachment of the daughters. The CAV observed that this contention was made for the first time on appeal, but it went ahead and analyzed the argument anyway before concluding that the evidence was, indeed alibi, so the trial judge correctly excluded it.

Today the Supreme Court affirms. Unlike the Court of Appeals, the justices don’t touch the question whether this is or is not alibi evidence. Instead, the court turns to the language of the assignment of error:

The Court of Appeals erred in affirming the trial court’s barring the Defendant from presenting relevant and material testimony on grounds that the evidence was alibi evidence which had not been properly disclosed to the Commonwealth in advance of trial pursuant to Rule 3A:11(d)(2) of the Rules of the Supreme Court of Virginia because such testimony did not constitute evidence of alibi but rather was offered to impeach by contradiction the testimony of the two alleged victims.

You see that last clause, starting with “because such testimony”? The court today holds that that language “cabins the error that this Court can consider to only whether the trial court erred by not admitting Lee’s testimony as impeachment evidence.” That is, the court can’t consider whether it was or wasn’t alibi evidence, because that isn’t the issue that the defendant framed on appeal. Because this argument is procedurally defaulted under the contemporaneous-objection rule, and that’s the only issue that the appeal raises, the justices vacate the alibi finding but affirm on procedural waiver.

 *   *   *

Today’s bounty of decisions leaves just three argued but undecided appeals on the Supreme Court’s docket as we steam toward the November session. Schmuhl v. Clarke, a habeas appeal, and Commonwealth v. Puckett, a restitution case, were both argued in the September session. The Vlaming appeal, mentioned above, was argued somewhat earlier than that.


Supreme Court Reinstates Gambling Ban



(Posted October 13, 2023) What, you thought the justices were on a long siesta? No dice; today the Supreme Court of Virginia hands down an important order relating to “skill games” that pay out prizes to players.

In 2020, the General Assembly acted to regulate these machines. The operator of some truck stops, where the machines are quite popular, sued to have the statutory regulation declared unconstitutional. A circuit court judge granted a temporary injunction after applying the four-factor test in Winter v. NRDC, a SCOTUS decision that Virginia judges have had to use because the SCV has stubbornly refused to lay down a specific Virginia test.

That prompted the General Assembly to act last year. It amended the statute to avoid the constitutional infirmity that the judge had pinpointed. Accordingly, the existing lawsuit became moot; no one would seek to enforce a superseded statute. Back to court went the plaintiff, contesting the new law. Again the judge imposed a temporary injunction, fixing a trial date in December 2023.

The Commonwealth, as is every litigant’s right in this position, filed a petition for review. The justices today, in Commonwealth v. Sadler Brothers Oil Company — NASCAR fans will recognize the surname — overturn the injunction and reinstate the ban. In doing so, the court rejects a First Amendment challenge, holding that the statute addresses conduct, not speech.

This decision implicates a lot of wealth. These machines are, as I understand it, money-printing devices for the owners and the companies that lease them. The legislature saw them as just a form of slot machines, and as the court indicates today, the General Assembly emphatically has the right to regulate, or even prohibit, gambling.

One point about today’s order caught my attention. This case had at least the potential for the Supreme Court to lay down, at long last, a definitive standard for the granting of temporary injunctive relief in the Commonwealth. The order mentions in a detailed footnote the dispute over whether we should adhere to the federal Winter standard or its predecessor, known here as the Blackwelder Furniture test. But the court punts on that opportunity, holding that the injunction request fails under either test because the petitioner isn’t likely to prevail on the merits. In appeal after appeal, when given the opportunity to set a specific standard — something that circuit courts and litigants have long been salivating for — the justices have refused to do so.

The likely explanation for the absence of such a definitive ruling is that today’s order comes from a three-justice panel and not the full court. Justices McCullough, Chafin, and Russell were the only three Robes to consider and decide this appeal. I sense that if the Supreme Court will ever answer our prayers, it will take the full court to set down a rule. Personally, I doubt that such a ruling will come during my legal career, and maybe not even in my lifetime.

I note with appreciation the good folks over at Virginia Mercury, which broke the story today. This isn’t among the court’s published opinions, and it doesn’t even appear on the unpubs web page.


Analysis of October 12, 2023 Supreme Court Opinion



(Posted October 12, 2023) For the first time in 2½ months, the Supreme Court of Virginia hands down a published opinion today. Let’s see if my analysis skills have gotten rusty.

Anderson v. Clarke is a habeas corpus appeal by a prison inmate in Albemarle County. He claims that the Director of Corrections – that’s Mr. Clarke – has erroneously calculated the number of earned sentence credits that he has on account, and that he’s entitled to immediate release. A circuit court disagreed, and the justices agreed to review the case.

This appeal relates to two recent changes in the statute governing these credits, which you and I may know as “time off for good behavior.” From the time his sentence began in 2013 until 2021, Anderson was entitled to 4½ days of credit for each 30 days he served – assuming that good behavior, of course.

In 2021, the General Assembly amended the statute to liberalize the number of credits available. An inmate in Anderson’s position could earn up to 15 days of credit for each 30 days served. Perhaps more important, the legislature made the change retroactive. For someone who’d been in the Big House for eight years of a 13-year sentence (as Anderson was), that’s a lot of time off.

One important proviso stood between Anderson and immediate release. The 2021 act came in a special session, and the legislature specified an effective date for the change of July 1, 2022. That meant that succor was still a tantalizing year away.

Fate intervened in the form of the 2021 statewide elections. Those swept Republicans into the Governor’s Mansion and into control of the House of Delegates. As part of the budget process in the 2022 general session, the newly constituted legislature amended the earned-sentence-credit statute to restrict eligibility for the more liberal calculus. Inmates serving time for certain classes of serious crimes would not get the bumped-up credit; they were restricted to the previous slower pace. This legislation, too, had an effective date of July 1, 2022.

Anderson had been convicted of four crimes, and one of those was in the restricted category. The director accordingly limited his credit calculus to 4½ days per month. Anderson felt wronged and turned to the courts.

The Supreme Court today analyzes the claim and concludes that the circuit court got it right. Anderson argued that he was entitled to that retroactive credit up to the effective date of the 2022 budget; but the court rules that because the two bills had the same effective date, the earlier provision never kicked in for him. The 2022 legislature effectively took away what the 2021 legislature had offered him. Because he never had an “active” right to the larger credit – just an inchoate one – he didn’t lose a property right. The justices accordingly affirm. Justice Russell pens the opinion for a unanimous court.

This appeal was one of five cases on the September argument docket. It comes down swiftly, just four weeks after the “May it please the court ….”


Yet Another Peek Around The Landscape



(Posted October 4, 2023) Tomorrow is Thursday, and thus might, just might, offer up one or more opinions from the Supreme Court of Virginia. Experience is an effective teacher, and it’s taught me not to get my hopes up; the font of appellate decisions at Ninth and Franklin has been dry for months now. But hope springs eternal. Meanwhile, here’s a quick look at a few other appellate developments.


3Q D-GI – such as it is

With the close of the year’s third quarter, it’s time to check on the balance of decisions in the Supreme Court, to see how our Davids and our Goliaths fared. Except, there were only two decisions announced last quarter. Only one of those meets our big-vs.-little criterion, so we have a skewed David-Goliath Index for the quarter of 100/0 (David prevailed in the one that came down.) For the year, we have seven wins for the little guys and ten for the giants, for a year-long D-GI of 41/59.

While David is still losing three out of every five appeals, that figure is far more positive than it has been in any of the past several years. As I warned in July when I analyzed the 2Q results, you really cannot read anything into this because the sample size is far too small.


OT’23 opens

Last Monday, October 2, was one of the saddest days on the calendar for me. That’s because the Ryder Cup – my favorite golf event and one of my top four sports events of all, along with World Series Game 1, the World Cup in soccer, and the Army-Navy football game – ended on Sunday, meaning that I have an interminable two-year wait for the next one. And the long wait will be a bitter one because the Euros crushed the American team last weekend.

But it’s not all bad; SCOTUS convened that same day, the First Monday in October, to begin the new Court term. The justices have, as of this writing, already heard oral argument in three appeals. If you don’t follow that Court, you should know that practitioners and courtwatchers up there have the same problem we have here in Virginia – a severe shortage of granted cases. In “normal” years, the justices hear two oral arguments per day, but we’re pretty much on a one-a-day diet for the first two sittings of the term.


New law librarian

For the second time this year, news of a pending retirement hit me unawares, and hence hard. This time, word came from the SCV that the State Law Librarian, Gail Warren, is stepping down after an astounding 41 years on the job. For those who don’t know her, Gail is a simply wonderful person who’s entrusted with the Commonwealth’s and the Supreme Court’s repository of legal treatises, appellate records, and other documents. I will miss stopping by on my forays into the library, housed on the second floor of the Supreme Court Building, when I usually playfully ask upon my arrival for the Complaint Department.

The new librarian as of November 1 will be Alexis Fetzer Sharp, who’s apparently coming over from the library at the University of Richmond’s law school. I don’t know her and can only hope that she’s somewhere near as pleasant and helpful as Gail has always been.

One last library matter: Gail isn’t the only head of a major downtown Richmond library who’s retiring. I’ve learned that Sandy Treadway, the Librarian of Virginia, is stepping down late this year, too. The last I heard, there was a search underway for her successor. Given my great love of libraries and books, the temptation is overwhelming to give up the world of appeals and throw my hat into that ring in a quixotic effort to snag the job. After all, I’ve worked in three law offices in my career, and have been the law librarian in all three. If only they’d overlook my complete lack of any training in library science … and the fact that I live here in Virginia Beach, 100 miles away from the job …


‘We need the cases’: Virginia’s high court issuing fewer opinions

‘We need the cases’: Virginia’s high court issuing fewer opinions

By Nick Hurston, Virginia Lawyers Weekly – 9/25/2023

Appellate practitioners and others who monitor Virginia’s jurisprudence have noticed a long, steady decline in the number of opinions released by the Supreme Court of Virginia.

The expansion of the Court of Appeals’ jurisdiction and the COVID pandemic only explain the drop since 2020.

Virginia’s highest court has released 21 opinions in 2023, the last one in July. At this pace, the court will have released fewer than half the opinions it had in 2022 and a quarter of 2021’s total.

That attenuation has been gaining momentum for more than a decade.

“Twenty years ago, the Supreme Court of Virginia routinely took in about 3000 filings a year,” L. Steven Emmert of Virginia Beach said. “Fast forward to five years ago and that’s been cut in half. So the court is lacking the raw materials for its docket.”

A request for comment from the Supreme Court was returned by Alisa Padden, director of legislative and public relations. She told Virginia Lawyers Weekly the court’s statistical caseload reports with data reaching back to 2002 may be responsive.

These reports confirmed Emmert’s observation of a lengthy downward trend in petitions filed, albeit with slight fluctuations. Overall, the numbers reflect a consistent reduction in the number of opinions released by the high court, which has outpaced the reduction in petitions filed.

Here, we present thoughts from Virginia appellate lawyers about the recent paucity of Supreme Court opinions, past trends of the court and how its role is evolving with recent statutory and practice changes.

‘We need the cases’
“We talk about the declining number of Supreme Court opinions a lot at the appellate bar because it’s an issue for us,” Juli Porto of Blankingship and Keith in Fairfax said. “We need the cases.”

With fewer opinions, Porto said it’s harder to address new client issues as they arise. She pointed out that, generally, it’s good for the court to take more cases because it informs trial attorneys and judges.

“Attorneys can make more educated recommendations to their clients because they will have a robust jurisprudence to pull from,” she said.

But Emmert doesn’t think the Supreme Court’s decline in opinions is permanent.

“Now the cases that are wending their way through the Court of Appeals should begin filtering up to the Supreme Court,” he said.

But Michelle Kallen of Jenner & Block in the District of Columbia has seen fewer civil writs being accepted by the high court.

“I don’t know of any civil cases being argued in September’s session,” she said. “And for those of us who are primarily civil practitioners, that means we’re getting less experience in the Supreme Court.”

Expanded jurisdiction
The 2021 expansion of the Court of Appeals jurisdiction was a significant moment, Emmert said.

“For most of last year, the only cases coming to the Supreme Court have been criminal domestic relations cases, workers compensation and a handful of administrative cases,” he noted. “That’s why we see far fewer merits cases coming out now.”

Monica Monday of Gentry Locke in Roanoke said the Supreme Court of Virginia is now a true certiorari court.

“Virtually every criminal and civil litigant now has a direct appeal of right to the Court of Appeals,” she pointed out. “When the General Assembly decided to transform the Court of Appeals into a court with plenary jurisdiction to hear all appeals, I think it was a policy decision about what the Supreme Court of Virginia’s role is going to be.”

Meanwhile, Porto said trial attorneys must adjust to the new paradigm — where each case has the potential for direct appeal — by educating themselves about error preservation.

Court of lawmaking
Appellate practitioners roundly observed that the jurisdictional expansion of the Court of Appeals and the Supreme Court’s declining release of opinions signaled a shift in the high court’s role from correcting errors to focus more on lawmaking.

“It’s a court of last resort,” Kallen noted. “There isn’t a need for the Supreme Court to take on a case if the Court of Appeals has already corrected the error.”

Both Kallen and Emmert suspect that Virginia’s high court may be following the example of the U.S. Supreme Court, which has also been taking fewer cases and relies on the federal circuit courts for error correction.

And while Monday said the court was looking for novel issues, cases of first impression and splits among the circuit courts, Kallen and Porto opined that not all cases would make good law.

“Taking cases for law development, you’re not necessarily even taking cases with unique legal issues or that haven’t been tested because you don’t want a case with bad facts or circumstances,” Porto noted. “Bad facts make bad law, so the court is looking for the right case.”

‘Significant turnover’
Emmert and Kallen said the changing face of the Supreme Court may contribute to the declining number of opinions.

“There’s been a significant turnover on the court recently,” Emmert said. “It’s just two justices, but that’s 29% of the court.”

A pair of new justices joined the court in 2011, and the number of published opinions has steadily declined since 2012. Three judges have joined the court post-COVID.

Another factor affecting the number of opinions is the court’s tightening requirements for assignments of error.

“In 2018, the court amended Rule 5:17(c) and now you have to list specific errors and identify precisely where they are preserved in the record,” Emmert said.

Porto also noticed more cases getting kicked out of the Court of Appeals for failing to preserve or identify where errors were preserved. She suspects that trend will reverse as more trial attorneys gain experience with appellate practice.

2017 practice change
As reported in 2017 by Virginia Lawyers Weekly in “It takes 2: Supreme Court raises the writ bar,” the high court announced that it would break with decades of practice by requiring the approval of two justices — rather than just one — to grant a petition for appeal or rehearing.

“In my opinion, the justices simply decided to make it tougher to get a writ accepted,” Emmert said. As he did in 2017, Emmert believes the new practice doesn’t comport with Virginia Code § 17.1-308 and Supreme Court Rule 5:3.

“Basically, the statute says if there’s any disagreement on the panel, then the case goes to the full court, and the rule tracks that language,” he explained.

Having started to practice before the Supreme Court in 2018, Kallen said one of her favorite things about the court was the etiquette of the justices.

“The justices are really kind to their core and they emphasize being collegial with each other and with members of the bar,” she said. “You would think that collegiality might result in them taking more cases when one justice felt more strongly than the others, but apparently that’s not the case.”

Report on Appellate Doings



(Posted September 21, 2023) “Can’t act; slightly bald; can dance a little.” (Casting director’s report on an early 1930s screen test by Frederick Austerlitz, better known to us as Fred Astaire.)


A torrent of writs

Okay; I exaggerate. The Supreme Court has awarded five appeals from the batch of petitions argued three weeks ago. That feels like a torrent; before this batch, the court had awarded just 13 appeals all year. These five are likely destined for the January session; possibly February.

As for the future, there are two more writ panels in 2023: one in mid-October and one in early December. Any writs granted in those writ sessions will definitely be argued in 2024.


The other side of the building

The Fourth Circuit’s recent announcement of the September argument docket contains this passage: “Due to construction, the Bank Street entrance is closed until further notice. Please allow extra time for security screening.” I’m not sure what work is in progress at the foot of Capitol Square, but lawyers, litigants, and courtwatchers will have to use the (very serviceable) Main Street entrance.

This development may seem mundane to you; you may be surprised that I mentioned it. But in this period of appellate doldrums in Richmond, it qualifies as a major news flash.


Last call for the Virginia Appellate Summit

The Summit convenes in one week in Richmond. It’s the best gathering of the appellate benches and bar in the Commonwealth. The good folks at McGuire Woods have again generously donated the use of space in their downtown Richmond office for the event; given my long devotion to the Summit, I’m profoundly grateful to that firm.


Humanizing the robe

As I was typing today’s update, my estimable legal assistant, Debi Campbell, handed me today’s mail, consisting of a single item: Volume 3 of the advance sheets for 301 Virginia Reports. This, too, looked like a minor news item; akin to my reporting to you about the light traffic on my commute this morning. But opening the volume gave me a pleasant surprise.

The introductory matter in this volume, before we get to the blood-and-guts of the opinions, comprises proceedings of the Supreme Court in early November 2022. It is the record of special sessions of the court for the investiture of Justice Thomas Mann and the portrait presentation – the “public hanging” – for Senior Justice Bill Mims.

Perhaps you’ve seen these often-dry inclusions at the beginnings of various volumes of the reporter; maybe you’ve never read them. (After all, they’re pretty useless as citations for legal authority.) Please take my advice and read these two when you can. They’re wonderful descriptions of the men, not just the jurists. They include laughter and wit and gratitude and humility and even love. Justice Mims mentions with fondness the Oxford comma, for which he gets extra credit in my book.

If you haven’t met these two men personally, I hope you’ll have the occasion; they’re both extraordinarily pleasant and gracious. This publication ensures that posterity will know that, too.


Note on Appellate Developments



(Posted September 7, 2023) We’re still hearing crickets at Ninth and Franklin – maybe the justices are trying to outwait me – so let’s peer around the appellate scene to see what else is happening.


Two Summits draw nigh

Registration is open for the Virginia Appellate Summit, September 28 in Richmond. That’s just three weeks from today. This is the largest and best gathering of the appellate bench and bar in the Commonwealth. Expect MCLE-approved programming and the chance to rub elbows with your colleagues from across Virginia.

In the past, the Virginia Appellate Summit has been roughly triennial, but the program planners at the Virginia Bar Association have decided to host these events every other year, starting now.

The ABA’s Appellate Summit (that’s a cognomen; the formal name is Appellate Judges Education Institute) meets November 2-5. The ABA Summit moves around from year to year, but every three or four years it comes back to Washington, DC; this is one of those years. The event will take place at the JW Marriott in the heart of the District.

The ABA Summit is the granddaddy of American appellate gatherings, and was the inspiration for the Virginia Summits. Attendees traditionally get to see at least one SCOTUS justice up close; this year it’s Associate Justice Kavanaugh. You should be able to satisfy a full year’s worth of MCLE requirements by attending.

If you go to one of these programs, you’ll see me there; if you attend both, you’ll see me twice. If you have an appellate practice, you belong at these events.


If you can’t beat ‘em, impeach ‘em

The New York Times has a story out of Wisconsin, where recent elections transferred control of that state’s supreme court from Republicans to Democrats. (In the Badger State, judges run for popular election and are openly members of political parties.) The election of Justice Janet Protasiewicz likely resulted from Wisconsin voters’ distaste for Dobbs v. Jackson Women’s Health; it was a spirited election that Protasiewicz won handily over a Republican rival.

Among the key issues facing the Wisconsin Supreme Court this term will be a challenge to the openly gerrymandered districts of that state’s general assembly. The new justice spoke disparagingly about the existing map during the campaign, so GOP legislators have begun to fret about the lifespan of their legislative supermajority now that she’s part of a 4-3 Democratic majority. According to the NYT story, they’ve hit on the idea of impeaching the new jurist before she can hear and vote on the redistricting challenge.

In my mind, this tale belongs on the growing list of reasons why Virginia’s system, while not perfect, is vastly preferable to the ones used in most other states. The idea of popularly electing judges and justices gives me an uneasy feeling in my gut; the thought of impeachment for purely political reasons, instead of for misbehavior in office, is abominable. But the Wisconsin legislature is dominated by Republicans, thanks to that very gerrymandering, so the novel effort may succeed.


Next step in the musical-buildings game

You’ve played musical chairs, right? The branches of Virginia’s government are doing that on the scale of buildings. The new General Assembly Building, which has been under construction for a few years, will start welcoming occupants next Monday, and the public a month after that on October 11. The modern replacement for the legislature’s old headquarters should be impressive; it’s built on the site of the original at Ninth and Broad, a short walk across the lawn from the State Capitol.

What does this have to do with appeals? Here’s what: The legislature has temporarily occupied the Pocahontas Building on Main Street, waiting for next Monday to arrive. The Pocahontas Building is the former home of the Office of the Attorney General, which moved into its current beautiful digs on Ninth Street a few years back. When the OAG moved out, the General Assembly moved in.

Still nothing appellate? Ah, but we’re getting there. The next occupants of the Pocahontas Building will be the judiciary. The building will be demolished, or perhaps just gutted and then rebuilt from within, and the new structure will eventually hold the Supreme Court and Court of Appeals of Virginia. I don’t have any secret information about this transition, so I can’t give you anything juicy except the prospect that one day, years from now, appellate lawyers will present oral arguments to appellate panels and en banc courts there.

Now, I have no idea what will eventually become of the current Supreme Court Building whenever our appellate courts move out. Perhaps Aunt Virginia can think of another governmental agency to move in, to keep the musical-buildings game going.


Still Drumming Our Fingertips …



(Posted August 24, 2023) Thursdays in August have lost their razzmatazz. Another putative opinion day in the Supreme Court of Virginia has come and gone without any announced decisions – not even a summary unpub. The most recent opinion from the court arrived five weeks ago, on July 20; the last unpublished order was June 1.

We do, at least, have the September argument docket. There are five appeals on it, and the justices will convene Wednesday and Thursday, September 13-14, to receive oral arguments. I decided to conduct a quick check of the five to see what I could discern. Here’s what I found:

There are no purely civil appeals on the docket. All five cases are criminal or habeas. This is one of the consequences of CAV expansion; the civil cases are taking their time in getting through the lower appellate court before starting the writ process upstairs. In two of these five, the Commonwealth is the appellant, reflecting rare appellants’ victories in the Court of Appeals.

The “freshest” of these is Anderson v. Director, a habeas appeal that has, in relative terms, rocketed through the SCV’s system. The petitioner filed his petition on March 10 of this year; the Director replied three weeks later; and the court granted the writ on April 17, a scant 38 days after the appeal started.

In contrast, the petition arrived at Ninth and Franklin on November 23, 2021 – that’s not a typo; it’s almost two years ago – in Schmuhl v. Director, another habeas proceeding, and the justices granted a writ almost 14 months later, in January of this year. The Director didn’t file a brief in opp, but it still took the court over a year to decide to grant the petition.

Omitting Anderson as the lightning outlier, the other four appeals were awarded between last December and February. That gives us a range of roughly eight months between writ grant and merits argument. That’s useful if you’re wondering when the court will hear your appeal. Keep in mind that yours might be a tad quicker than that, because of the unique three-month gap in the court’s calendar between the June and September sessions. For other sessions, the best rule of thumb is probably around seven months, plus or minus one.

Again omitting the two outliers discussed above, I noticed a pleasant trend among the others: a quick turnaround at the petition stage. The court granted writs in those three cases about four months, on average, after the petition first hit the clerk’s office. I attribute that to fast work by the pros in Lori Lord’s office. She’s the Chief Staff Attorney, and her lawyers have the task of preparing appeals for review by the justices – analyzing the briefs, the records, the caselaw, and the issues, and preparing a bench memorandum for the use of the writ panels. It probably doesn’t hurt that filings are way-way down from 2021 (and before) levels; that suppresses the aggregate amount of work they have to get through. But the staff attorneys are, as usual, doing a great job for the court.


The Opinion Drought Continues



(Posted August 18, 2023) Another Thursday, another washout for those of you looking for fresh opinions from the Supreme Court of Virginia. More on that in a moment, but for now, let’s poke around and see what else is brewing.


A surprising summary affirmance

I learned yesterday about an unpub from the Court of Appeals of Virginia that merits mention here. I seldom address CAV rulings and almost never do so with unpubs, because they carry essentially zero precedential weight. But I’m led to believe that what happened in Medeiros v. Department of Wildlife Resources is becoming common in that court. It surprised me and should sound a warning alarm for the trial bar.

The underlying dispute is of secondary importance to the procedural aspect of the appeal. A group of landowners in Henrico County sued the Department, seeking to invalidate a statutory provision called the “Right to Retrieve Law.” That act relates to hunting dogs that may have wandered in pursuit of prey. It exonerates the owners from liability for criminal trespass when they enter private property to get the dogs back. The property owners alleged that expressly permitting entry onto private land constitutes a taking of property.

The Department demurred, arguing among other things that the statute only created an exception to the crime of criminal trespass, but left intact civil remedies for trespassing. That pleading persuaded the trial judge, who dismissed the claim. The landowners took the case to Eighth and Franklin.

Last month, in an unpublished order, the CAV summarily affirmed. The court’s reason was simple and familiar: The appellants had failed to file a transcript of the demurrer hearing. Far too many appeals die this same grisly death, as the appellate court holds that a transcript is essential to its review of the case.

Why is this decision, a lone unpub with an ocean of company, notable? Because the circuit court had decided the case on demurrer. In those hearings, the only issue is whether the complaint states a claim for which relief can be granted. That’s a matter of pure law, and the appellate court is in as good a position as the circuit court to decide the matter. This is why the appellate courts afford no deference to such rulings on appeal.

I’m on record, early and often, as being a big supporter of the use of court reporters to take down any hearing in which the judge is going to decide anything more momentous than what to order for lunch. Transcripts are the lifeblood of my practice, and I will maintain until my last breath that skimping on the court reporter is a false economy; you simply have to have one.

But demurrers are – or so I thought until now – decisively different because of their limited scope. The Code prohibits the circuit court from deciding them based on anything other than what’s in the eight corners of the complaint and the demurrer. That’s true for the circuit court and on appeal. Why does a transcript matter?

That was conventional appellate wisdom, as I’ve perceived it from my own musings and my conversations with my colleagues in the guild, for generations. But I’ve heard that Medeiros isn’t an outlier in the current Court of Appeals; this is happening with more frequency.

My advice to you, dear readers, is a turbo-charged version of my previous consistent advice: Always, always get a court reporter, even for a demurrer hearing. Personally, I believe that the CAV is mistaken here; I believe that it could easily evaluate the appeal without a transcript, though I express no opinion on the merits of the case because I don’t know enough about it. (You will note that I continue to exercise the same number of votes on the court as before, which is zero.) If you think that’s defensive lawyering, and perhaps the Supreme Court will step in and issue an opinion that agrees with my view, great; but as of now, going without a reporter is far too dangerous a course for me to recommend.


August writ panels

The Supreme Court of Virginia has notified its “customers” about arguments to the August 30 writ panels. As of a few days ago there were 47 petitions, divided among two panels of presumably three justices each, on the calendar that day. As I noted here on June 15, any appeals granted from these panels will likely find a home on the January session docket.

That means that the universe of potential merits appeals to be argued this year is probably set. I can’t give you a definitive number because of the several variables here, but my best guess is that we’ll see something like ten more merits arguments over the rest of the year. Note that that’s just two sessions – one in mid-September and one right around Halloween.


Whither Vlaming?

When I was a kid, I enjoyed putting together models from cheap plastic kits that you could buy at toy stores. I tried assembling one of an airplane but found it too complicated, and I never got into cars. No, I preferred superheroes and classic-movie monsters. You know: Frank, Drac, The Wolfman, The Mummy, those guys. I fondly recall one called The Forgotten Prisoner of Castel Mare – basically a clothed skeleton, chained to a dungeon wall. The concept, maybe borrowed from “A Cask of Amontillado” by Poe, was that a jailer had locked up some poor sinner in that dungeon and had then forgotten all about him.

I was reminded of The Forgotten Prisoner recently when I noted that the oldest argued but undecided appeal on the Supreme Court of Virginia’s docket, Vlaming v. West Point School Board, is still hanging there, 41 weeks after the oral argument, waiting forlornly for an adjudication. I imagine that the litigants in that appeal probably feel like the poor prisoner whom I so lovingly constructed back in the 1960s. They’re still out there, but it’s hard to tell if anyone at Ninth and Franklin remembers them.

We here at VANA remember them. The issues in the case are fascinating and the decision will be a difficult one. I gave you a thumbnail sketch at the end of July and won’t repeat that here. I look forward to seeing how it comes out.

The appeal is also the key to a trivia question that can win you bar bets in appellate dive bars across the commonwealth: Since the Supreme Court of Virginia went to rolling release dates in 2015, what’s the longest that any appeal has gone without a decision?

Vlaming now takes the prize. I’ve gone through my records to gather each decision that has taken 26 weeks – half a year – or more to arrive. I found 12, the longest delay of which was 35 weeks. Vlaming, the 13th, will take at least 42. If it arrives next Thursday, August 24, then in a cruel irony, the opinion will come down exactly one year from the date when briefing was complete. Another week’s delay would make it 18 months since the writ grant.

If any litigants faced a delay like this in circuit court, they could use the procedure set out in Code §17.1-107. In that event, you send a confidential request to the chief justice, after which his Honor writes to the tardy judge to ask discreetly if he’d like a judge designate to help him clear his docket, since he seems to be having problems on his own. (This process is known colloquially as “a motion to nudge the judge.”) I assume that this procedure usually spurs action, though I’m confident that there are no statistics on it.

If you’re wondering what can be done about delays like this in an appellate court, I’m happy to be able to offer you a simple answer: nothing! Oh, the parties could settle the case, of course; litigants are always free to do that. But there is no mechanism, none, for thawing an appellate judicial freeze-out like this.

My earnest hope is that delays like this won’t become commonplace. I fear that I’m wrong. Exhibit A: Vlaming is the eighth appeal in just the last 36 months to stretch long enough to make my half-a-year list. This problem is becoming far too common, but waiting is the only approach available to the litigants.

Update August 21, 2023: I’ve heard from a few appellate pals after this post. John Koehler has an especially interesting take on the Medeiros case, insisting that dismissals for want of a transcript on pure-law appeals are nothing new. Others have written to point out the opposite, that appellate courts can and often do go ahead and evaluate the merits of a purely legal issue even without a transcript. For two examples, see Modern Environments v. Stinnett, 263 Va. 491 (2002) and Williams v. Legere, 77 Va.App. 422 (2023). I won’t pretend to be able to resolve the difference for you; I’ll just underscore the one bit of advice on which all appellate lawyers are in agreement: Just hire the %#&!! court reporter!

John’s essay also includes some wonderful detail of happenings behind the scenes at the Supreme Court. I’ve never been a court insider; my musings here at VANA come from publicly available materials and from conversations, plus a healthy dose of courtwatching over roughly twenty years. John’s post includes several details that I would have no way of knowing.


Sketches of Recent Appellate Decisions



(Posted August 10, 2023) Today is yet another dry well at Ninth and Franklin – no published opinions for the third straight Thursday, and no unpubs since the first of June – so let’s take a quick look at some interesting appellate decisions that have come down this week elsewhere. The summaries here won’t contain full analysis; just the key holdings and a link to the slip opinions.


A 21-year precedent falls

On Tuesday, the Fourth Circuit issued an en banc decision that addressed prior circuit precedent regarding fee-shifting awards. In Stinnie v. Holcomb, the full court overturns a panel decision from 2002 that had addressed when a plaintiff could receive a fee award under 42 USC §1988. That panel had ruled that the issuance of a preliminary injunction can never serve as a sufficient basis for a fee award, because no permanent relief was ordered.

That holding left the Fourth Circuit alone among the federal courts of appeal. Every other circuit that addressed this question had ruled that temporary injunctive relief can justify §1988 fees if it leads the defendant to change a challenged policy.

That’s what happened here; the plaintiffs challenged Aunt Virginia’s practice of suspending drivers’ licenses where the licensee had unpaid fines and costs. A district court ordered injunctive relief before trial. While the matter was pending, the General Assembly amended the Code to remove the suspension provision. That mooted the litigation, because the challenged legislation was no longer in force.

A panel of the Fourth, faithful to the interpanel accord doctrine, affirmed the district court’s refusal to award fees. But the court granted en banc review so it could reconsider the doctrine, and by a vote of 7-4, the court overturned the prior holding and joined its sister circuits. The court sends the case back down for an evaluation of the fee petition.


Educational due-process ruling

On Monday, a panel of the Fourth addressed the due-process rights of a student in disciplinary proceedings at a college. In Doe v. Virginia Tech, the panel unanimously affirmed a ruling in favor of the school, holding that the student received all of the process that he was due.

Because the district court had granted a motion to dismiss, the court sets out the facts as they’re alleged in the complaint. That recitation makes the school look bad, in my view, though I understand fully that a trial might well show the facts to be less favorable to the student. The court recognizes that a student in a disciplinary proceeding gets the right to notice, and opportunity to be heard, and the right to present a defense; but not the full protection that the law accords to, for example, a criminal defendant.


New guidance on defensive pleading

The Court of Appeals of Virginia offers defendants some useful advice in Tuesday’s published opinion in Willems v. Batcheller. It’s a trespass-and-nuisance claim, alleging that one neighbor’s bamboo plants encroached on another neighbor’s property, causing damages. The defendant neighbors filed an answer that included an affirmative defense of adverse possession for more than 15 years, pointing to a fence that their predecessor in title had built on the plaintiffs’ side of the lot line.

After a bench trial, the learned judge ruled that the bamboo was indeed a nuisance and the defendants had to address it. But he added a ruling that the defendants had proven their adverse-possession claim, so he fixed the boundary between the properties at the fence line.

There are several interesting rulings in this week’s published opinion from the Court of Appeals, but the one I commend to you here is the holding that raising adverse possession as an affirmative defense isn’t sufficient to state an affirmative claim for relief on that doctrine. Defenses operate to prevent relief that the plaintiff requests, not to request relief themselves. To do that, the defendant would have had to plead a cross-claim or specifically pray for relief. Because they didn’t do that, the circuit court’s order is reversed in that regard.


A Refreshing Read from the Fourth



(Posted August 3, 2023) The US Court of Appeals for the Fourth Circuit hands down a single published opinion today. United States v. Smith is fairly breezy; the “guts” of the opinion are just 14½ pages. It’s a review of a district court’s refusal to reduce a criminal sentence in light of new retroactivity provisions.

From the procedural recitation, Smith richly earned a 20-year prison sentence fifteen years ago. That, in fact, was the statutory minimum at the time. With the advent of the Fair Sentencing Act in 2010 and the First Step Act in 2018, Smith looked at his sentence and figured that he should be eligible for immediate release, so he sought that relief.

The district judge agreed that Smith was eligible to apply for relief, but declined to grant it, noting that the 20-year term was well within the statutory maximum. Smith had accumulated several violations in prison, though he noted that he’d been of good behavior for the last six years. All of that wasn’t enough in the court’s mind to warrant an early release.

Today a panel of the Fourth Circuit affirms. It concludes that the district court erroneously calculated the new guidelines range – but the court had erred in Smith’s favor on doing so. The appellate court rules that the district court would be unlikely to change its mind after correction of that error.

I’ll add two observations about the opinion. First, the government gets a mild admonition from the court in a footnote. Last year, the court decided a sentencing appeal, US v. Swain. In calendaring this appeal for argument, the court asked the parties to address “how Swain applied here.” Smith’s lawyers did as asked, citing Swain “repeatedly”; but somehow the government’s brief never touched the case. That prompted this rebuke: “We remind the government—and all other litigants—that when we ask for the parties’ views on the import of a case to the appeal, we expect the parties to address it.”

Second, I commend the opinion to you for the writing style of Chief Judge Diaz. As a professional consumer of appellate opinions, I find his style refreshing; it isn’t clogged with legalese and obsolete language. After some of his quotations, you’ll find the parenthetical, “(cleaned up).” This is a modernization of old-style legal writing, and I encourage it at this point., because it makes the cited authorities far more readable. Judge Diaz also uses contractions liberally, and that aids readability, too; it reflects the way people talk.

That being said, I hesitate to recommend the use of contractions in your briefwriting. That’s probably a tad too informal, at least for now. (Legal writing may evolve in the coming years to the point where it’s perfectly normal.) I’ll confess that I’ve used contractions three times in appellate briefs in my legal career. In each instance, I did it because I wanted the sentence to stick out. Thus far, I’ve received no admonitions from the courts.


Fourth Announces Significant Limitations Ruling



(Posted August 1, 2023) A panel of the Fourth Circuit has announced an important ruling involving Virginia’s statute-of-limitations tolling provision. The case is Massey v. Virginia Tech, and comes from the Western District of Virginia.

The plaintiff was a long-time employee of the university. He alleged in his suit that the school had laid him off in 2019 as a pretext; he contended that the real reason was his taking ten days’ leave to recover from surgery. He first sued in state court within a year after the school notified him of the personnel action, claiming a violation of the federal Rehabilitation Act.

Six months later, the employee nonsuited his case; he refiled, this time in federal court, eleven days later. The school moved to dismiss, arguing that the suit was time-barred.

The employee pointed to the plain language of the tolling statute, Code §8.01-229. It says right there that his filing the first suit – the one in state court – tolls the running of the statute and gives him six months after the nonsuit to refile.

He’s right; it does say that. But the school had a different tack: It asserted that it enjoys the Commonwealth’s absolute sovereign immunity from being sued in state court. The Supreme Court of Virginia has described sovereign immunity as a jurisdictional defense – our courts don’t have jurisdiction to adjudicate claims against Aunt Virginia unless the Commonwealth has waived the immunity. Because Virginia has never waived its immunity from Rehabilitation Act claims brought here, that means that the state court didn’t have jurisdiction, even if a federal court would have.

That, in turn, could be case-dispositive because of this cite in the Fourth’s opinion: “The commencement of an action in a clearly inappropriate forum, a court that clearly lacks jurisdiction, will not toll the statute of limitations.” If the school is right, then the state court didn’t have jurisdiction to enter the nonsuit order; all it could do was enter an order dismissing the original case for lack of jurisdiction. And the absence of any tolling means that the employee’s federal suit came too late.

That line of argument convinced the district judge, who dismissed the suit. On appeal, a Fourth Circuit panel unanimously disagrees, vacating the judgment and remanding the case for further proceedings. In doing so, it separates two components of subject-matter jurisdiction, that fire-breathing dragon that cannot be waived.

The first component is potential jurisdiction – the power to adjudicate claims of a particular class. The court today finds that the state court did possess the power to adjudicate this kind of claim, as it sounded either in tort or contract. The second component is active jurisdiction, “the power to adjudicate a particular case upon the merits.”

The Fourth Circuit rules that even if the immunity deprived the state court of active jurisdiction, that court still had potential jurisdiction, which includes, for one ironic example, the power to ascertain whether it has jurisdiction. In exercising potential jurisdiction, a court may enter ancillary orders and issue rulings that stop short of “adjudicating a particular case upon the merits.” Because a nonsuit is one such ancillary matter – nonsuits aren’t judgments on the merits – the Virginia tolling statute protects the employee here.

Senior Judge Traxler writes today’s opinion, joined fully by Judges Wynn and Richardson.


A Return to Basic Math



(Posted July 31, 2023) I’ve mentioned here recently that the Supreme Court of Virginia has trimmed its undecided list of argued appeals down to three. For a guy who did really well at math in school, this represents an elementary error: One of my treasured, eagle-eyed, learned readers has pointed out to me very delicately that the correct count is two.

I went back and counted again, and he’s right. Of all the appeals argued on the merits to the Supreme Court, opinions or orders have come down in all but two of them. We’re still awaiting rulings in McKeithen v. Richmond, involving a city tax lien, and Vlaming v. West Point School Board, a claim by a teacher who was fired for declining to address a transgender student by that student’s preferred pronouns. The lawyers argued McKeithen in the June 7 micro-session, while the justices have been pondering Vlaming since its November 4 oral argument.

One last point on Vlaming: The delay between argument and decision is already a modern record in this court. The justices heard arguments roughly 39 weeks ago, so it exceeds the previous post-2015 record of 35 weeks. The previous record-holder was Baughman v. Commonwealth, a sexually violent predator appeal argued January 11, 2022 and decided September 15 of that year. Surprisingly (at least to me), that one came down as an unpublished order, not a published opinion.

I believe I’d be willing to wager a modest sum of American money that Vlaming will not come down as an unpub. Check back here on Thursday, and we’ll see if it arrives.


Some Current Appellate Developments



(Posted July 28, 2023) The opinion mill at Ninth and Franklin was quiet this week, so let’s see what else is happening on the appellate landscape.


Shadow-docket pipeline ruling

SCOTUS issued a short unsigned order yesterday that allows construction of the Mountain Valley Pipeline to proceed while the parties duke it out in the lower courts, thus vacating a stay issued by the Fourth Circuit. The order says nothing about dissents, so presumably the vote was unanimous. This stems from an emergency petition filed just two weeks ago. As with all such orders, there was no oral argument; the Court decided the petition on briefs alone as part of its “shadow docket.” Courtwatchers have noted the recent sharp uptick in such out-of-court proceedings.

Here in Virginia, there’s something like a shadow docket, but it’s nowhere near as busy as it is across the Potomac. Petitions for review of injunctions are easy examples of our version of this behind-the-scenes process. Because I agree that sunlight is a wonderful disinfectant when it comes to government operations, I’m glad that our Robes don’t follow the example of their federal brethren and sistren.


Diversity concerns in OSG

The Washington Post reported on Tuesday that US Solicitor General Elizabeth Prelogar, who unsuccessfully defended collegiate affirmative-action programs this past term, is having difficulty achieving diversity within her own office. The Office of the Solicitor General – which contains many of the very brightest lawyers in government service – overwhelmingly comprises white men.

She isn’t alone in her troubled efforts to diversify her appellate staff. I’ve talked with my pals in the appellate guild here about the largely monochromatic appellate bar. There are very, very few minority appellate lawyers in Virginia, despite there being no barriers to entry. Quite the contrary; many of us will cheerfully mentor a bright young minority lawyer if given the chance.

One lawyer who’s trying to do something about this is Juvaria Khan of The Appellate Project up in Washington. I haven’t seen any statistics on how effective the Project’s efforts have been, but I choose to be optimistic.


A nation ponders its highest court

You almost never read on this site about matters outside our nation’s borders, but events in Israel are hard for appellate lawyers to ignore. Earlier this week, the Knesset passed legislation that sharply curtailed the powers of Israel’s highest court. Depending upon your point of view, the legislation was either badly needed judicial reform or an outrageous power play designed to insulate the government from any real check on its power.

Unlike the United States, Israel doesn’t have a formal written constitution, so the nation lacks a touchstone like ours for determining whether the legislature can thus cut off the judiciary. I’ve read that a challenge to the new legislation was filed virtually immediately, and would reach the Supreme Court of Israel quickly. The biggest question there may be what happens if the court strikes down the very legislation that deprived it of power – presumably including the power to strike it down. In an interview on CNN yesterday, Prime Minister Netanyahu declined to commit to honoring any such possible judicial ruling.

I can’t look at this as anything other than a constitutional crisis without a constitutional anchor. When two branches of government disagree on an issue of separation of powers like this, how do you reach a reasoned answer? Because I don’t have the perspective necessary to assess this fully, I won’t wade in with any opinions, other than to say that the appellate lawyer in me is quietly rooting for the judiciary on this one.


Writ panels draw nigh

The Supreme Court of Virginia’s next public gathering will be for writ panels. Those convene in just under five weeks, on August 30. This is normally the season of road shows, where the court sends two panels off into the countryside, bringing the justices to the people. Alas, there won’t be any road shows this time around; in what I earnestly hope is a one-time arrangement, all of the panels will convene in Richmond. I expect that the Chief Staff Attorney’s Office will send out notices shortly, and I’ll look forward eagerly – and a little anxiously – to seeing how many petitions the justices will consider.

As I’ve reported previously, the writ process has slowed to a trickle. The court has issued only 13 writs all year – that’s not a typo; it’s thirteen – in all case types, and there are only three more writ sessions left in the year. Most of those are criminal or habeas cases; I see only two that are purely civil.

This will, by a comfortable margin, be the slowest year for merits decisions in Richmond in my lifetime. My best guess is that the last time the court issued fewer opinions than it will issue this year was during the Civil War, when the court all but shut down. (In the five-year period starting in January 1862, the court issued just 18 opinions. Given the other events of the day, I think we can cut that set of Robes some slack.) For a quick comparison, here’s a list of the number of appeals decided by published opinions and unpublished orders in single years with a ten-year interval:

2022: 70

2012: 188

2002: 210

1992: 274

1982: 258

1972: 242

At the pace we’re going now, we’ll probably see something like 25-30 merits decisions this year.


Analysis of July 20, 2023 Supreme Court Opinion



(Posted July 21, 2023) Are you one of those highly organized people who have an “inbox zero” policy for your e-mail accounts? Me, neither. But some people do, and a part of me admires that discipline. Yesterday, the Supreme Court of Virginia continued its efforts in this direction, reducing the number of argued but undecided merits cases on its docket to three by issuing a published opinion in Monroe v. Monroe, a case from Stafford County.

The problem with being married to your business partner is that if the marriage goes south, you’ve got corporate problems, too. This appeal involves a close corporation owned by a husband and wife. The wife owned 51% of the company, possibly to take advantage of incentives for companies with majority female ownership. The husband’s consolation was that he was the sole director.

The husband sued for divorce five years ago. Along with that proceeding, he filed an action putatively in the name of the company against his wife, claiming that she engaged in self-dealing. The next year, he resigned as director “and then sought to convert the action … to a shareholder-derivative action pursuant to Code § 13.1-672.1,” relying on his 49% stock ownership. The circuit court was happy to oblige, making the husband a plaintiff in the case.

The trial didn’t go as well for the husband. The court found that he hadn’t filed the suit for the benefit of the company, but to advance his own interests. Reading between the lines here, I suspect that timing may have played a part in this ruling, considering that the corporate suit hit the clerk’s office a week after the divorce action.

The court granted the wife’s motion to strike. Justice Kelsey’s opinion for a unanimous Supreme Court explains what happened next:

“That will conclude this matter,” the court remarked after its ruling, “unless either of you has something else I need to address.” [The wife’s] counsel then requested “leave to file for post-judgment sanctions.” Acknowledging that the trial court “remains in jurisdiction over this matter for 21 days after it rules,” counsel stated, “I think we can get in here before then.” The trial court told [the wife’s] counsel to “file whatever motion you need.”“I’m not saying I’m going to grant it,” the trial court clarified, “I’m not saying I’ll even grant a hearing on it, but we’ll address it that way.”

If you’ve been reading this website for a few years, you can probably guess what train wreck is about to occur.

The trial judge entered an order, duly prepared by the wife’s lawyer, that entered final judgment in favor of the wife. That order added that the wife was “free to file post judgement [sic] motions for sanctions against [the husband]. Any such motion filed is to be set at the discretion of the Court.” The wife filed such a motion six days later — plenty early enough, right? — and the court heard argument on that motion three months later, eventually entering an order slapping $70K worth of sanctions on the husband.

Experienced appellate lawyers have averted their eyes by now, knowing that a sanction order entered months after final judgment is hopelessly late. The husband figured it was, too, so he perfected an appeal. Yesterday, the justices agree with the appellant’s learned counsel that the trial court lost jurisdiction 21 days after final judgment, so they vacate the sanction award.

Before reaching this conclusion, the court has to untangle a knotty procedural issue: Who’s the right appellant? The husband noted and pursued the appeal in his own name, not on behalf of the company. The wife insisted that he was the wrong appellant. The opinion holds that he was indeed the proper party to pursue the appeal, regardless of the original posture of the lawsuit.

Justice Kelsey’s analysis is, as usual, meticulous, but the Reader’s Digest version of the holding is that the person or entity who gets sanctioned plainly has the right to appeal. The belated sanction order didn’t impose sanctions upon the company. That means that it wouldn’t have standing to appeal a sanction order against the husband. And the fact that this is a shareholder-derivative action means that one of the husband’s objects in filing suit was to seek a ruling that he fairly represents the company’s interests. Until he got that ruling, the husband himself was the plaintiff, so he’s the right party to appeal.

My sense is that this opinion is published only because of the standing-to-appeal ruling. Opinions invoking the merciless 21-day rule are legion, but this is the first holding of which I’m aware that spells out why an unsuccessful individual suitor can have standing to appeal in his own name.


Interesting Published Opinion From CAV



(Posted July 12, 2023) My eye is usually on the Ninth Street façade of the building that houses the Supreme Court and the Court of Appeals of Virginia. But yesterday I noticed an interesting decision emerging from the Eighth Street entrance, and decided it was worth mention here.

The case is Blue Pearl Veterinary Partners, LLC v. Anderson. Blue Pearl operates a string of veterinary hospitals, including one here in Virginia Beach that has treated two of our beloved dogs. The company found itself on the receiving end of a lawsuit over injuries negligently inflicted upon Anderson’s dog during a CT scan.

At issue here is how much the plaintiff may be able to recover after an eventual trial. Anderson sued in an amount that isn’t specified in the opinion, but I infer that it was deep into six digits. The hospital moved the circuit court in limine to limit any evidence of damages beyond the dog’s value – measured by its $350 purchase price.

In Virginia, animals, however beloved, are considered personalty. That means that a dog owner can’t recover for mental anguish over something like the animal’s death at the hands of a tortfeasor. In theory, then, the most you should be able to recover for the loss of an animal is its fair-market value.

But Anderson’s suit was more creative: She claimed vet bills of $6,000 and change, plus future “adequate and necessary rehabilitative care” for the rest of the dog’s natural life. She noted that by law, she has a duty to provide that care; anything less, she felt, would be animal cruelty. The price tag on that care was staggering: well over $100,000 a year, presumably multiplied by the dog’s remaining life expectancy.

Hence the motion in limine. The hospital pointed to caselaw that measures damages according to the diminution of fair-market value when personalty is damaged, or in this case, injured. Because no one would pay less than zero for the injured dog, the hospital reasoned that damages should be capped at $350.

The learned trial judge didn’t see it that way. He denied the motion, holding that damage calculus is more nuanced in situations like this. Specifically, damages may include, in addition to any diminution in value, any “reasonable and necessary expenses incurred.” Because a jury might find the rehabilitative expenses to be reasonable, the court declined to cap those damages pretrial.

It gets procedurally interesting here: The parties asked the circuit court to certify the in-limine decision for an interlocutory appeal. That makes eminent sense; no one would want to go to trial if the eventual ruling is that the playing field is in three digits. The circuit court agreed, so we find ourselves in the Court of Appeals.

Yesterday a panel of that court released a published opinion that affirms the denial of the motion. Judge AtLee, writing for Judges Causey and Friedman, agrees that the possibility of recovering “reasonable and necessary expenses” exists here, so the plaintiff should have a fair chance to prove those damages. This is evidently a question of first impression in Virginia, so a petition for appeal to the Supreme Court is eminently foreseeable.

As a dog owner, I cheer this ruling. Virginia’s they’re-just-personalty rule is, in my view heartless, obviously drafted by someone who never owned a dog, or who perhaps was bitten by a mean one as a child. (My boy, Ardie, would never do that; the kids in the neighborhood love him.) I’m confident that the insurance industry would fight fiercely to retain the rule, but I hope someone in the legislature will tackle this uncaring doctrine.

This ruling brings to mind my all-time favorite footnote in the annals of Virginia jurisprudence. It comes from Kondaurov v. Kerdasha, 271 Va. 646 (2006), in which the Supreme Court reaffirmed the personalty rule. Senior Justice Russell, long one of my very favorite writers on the SCV, must have been smiling as he penned this footnote to the opinion of the court:

Sushi [the dog] attended the trial. Plaintiff’s counsel represented that she was a “service dog” as defined in Code § 51.5-44(E), and that the plaintiff relied on her for assistance. The court entered an order, to which the defense agreed, permitting her to accompany the plaintiff on condition that there would be “no growling or hostility toward the defense counsel.”

Because this case is in the Court of Appeals, two of my colleagues have already posted analysis of it. I commend to you the views of John Koehler and Juli Porto, who wrote ably yesterday about the ruling. John especially has gone above and beyond in researching stats on dog ownership and the cost of having one in the home. The value of having one is, of course, immeasurable. But I might be biased.

Update July 13: One of my pals has written to forecast that this ruling might cause the cost of insurance for veterinarians to rise (and, concomitantly, the cost to the consumer of vet care), as that kind of insurance likely is written with the FMV cap in mind. My background in economics tells me that he’s probably right. He also posits, horrifyingly, that it’s now economically less damaging to a vet to allow an animal to die rather than saving its life; as this case illustrates, long-term care like this will foreseeably exceed the animal’s purchase price. Yeesh! Thanks for the input, Rob … I think …


A Thought Experiment: VANA Via AI?



(Posted July 10, 2023) In the past couple of months, I’ve discussed with my partners the looming impact of generative artificial intelligence on our careers. Their reactions have varied: Some are intrigued by the possibilities, while others are utterly convinced that it won’t affect their practices at all.

I’m in the camp that regards this new tech as transformative, and I’m doing what I can to educate myself about it. Our legal-research provider – we use Lexis – will roll out its version of AI for lawyers in September, and I’d like to know in advance how it’ll change what I do.

I decided to try a thought experiment, and you get to “grade” the test. I downloaded ChatGPT this past Spring before teaching an Ethics segment about it. Just now, I fed into it the text of last week’s SCV opinion in the habeas appeal Prease v. Clarke and asked it to generate a summary of the case and its holdings. I asked it to limit the summary to 375 words, roughly the length of the analysis that I posted that day.

I invite you to compare what follows – the ChatGPT version of an essay from Virginia’s Finest Appellate Website – with last week’s essay here. If you choose to follow through with this experiment, I’d be grateful to know what you think. You should not expect appellate wit; for that you’ll need to read the genuine article.

*   *   *

In the case of Prease v. Clarke, Steven Patrick Prease filed a petition for a writ of habeas corpus, claiming that he was wrongfully denied earned sentence credits on his convictions for attempted aggravated murder. He argued that these credits would result in his immediate release from incarceration. The Supreme Court of Virginia reviewed the case and issued an opinion on July 6, 2023.

The background of the case involves Virginia’s system for earning sentence credits. In 1994, the General Assembly established a system where prisoners could earn credits for good behavior and rehabilitation. In 2020, the statute was amended, creating a two-tier system. Certain offenses were eligible for expanded earned sentence credits, while others were limited to 4.5 credits per 30 days served.

Former Attorney General Mark Herring opined that prisoners convicted of inchoate offenses associated with the enumerated offenses were eligible for the expanded credits. However, the new Attorney General Jason Miyares disagreed, arguing that inchoate offenses should also be excluded.

VDOC determined that Prease, convicted of attempted aggravated murder, was ineligible for expanded earned sentence credits based on Miyares’ opinion. Prease then petitioned the Supreme Court of Virginia, arguing that VDOC’s denial was improper.

The court interpreted the statute and concluded that attempted aggravated murder was not among the enumerated offenses ineligible for the credits. They found that the plain language of the statute only applied to convictions for Class 1 felonies, whereas Prease was convicted of a Class 2 felony. Therefore, Prease was entitled to the expanded earned sentence credits.

The court rejected the Commonwealth’s arguments, stating that their role was to interpret the statute as written, and public policy implications should not factor into the interpretation.

Based on their analysis, the Supreme Court of Virginia granted Prease’s petition and issued a writ of habeas corpus, ordering his release from custody.


Trust, and How to Squander It



(Posted July 7, 2023) By accident of birth, I was a boy in the 1960s and came of age in the ‘70s. As quaint as it may seem now, the ethos of my household as I grew up was that we may disagree with the government from time to time, but we can trust that it’s at least doing the responsible thing, and is being straight with us.

If you’re Gen X or younger, that paragraph may come across as somewhere between naïve and bizarre. But if you factor in the era, I perceive that views like this weren’t rare. As I consider the history that unfolded during my youth, a story emerges – one of official betrayal and dishonesty and savagery that previous generations may have regarded as unthinkable. Here’s what happened:

In November 1969, when I was an 11-year-old, news reports emerged that American soldiers had senselessly massacred hundreds of unarmed Vietnamese civilians in a village called My Lai. I knew Vietnam to be a faraway place where bad things happened, but we were there to help the Vietnamese resist communism, and I knew that that was an important national objective. I might have even doubted the reports because they were so far removed from my view of America.

Six months later, on May 4, 1970, during antiwar protests at Kent State University in Ohio, National Guardsmen opened fire with military-grade M-1 rifles on unarmed students who were protesting escalation of the war. Four students died and several more sustained serious wounds. I was still naïve at the age of 12; I remember even now that my initial thought upon learning of the killings was that the students must have done something very bad, because they had to be shot. (In my own retroactive defense, I hadn’t quite begun to think for myself yet about such matters.)

A year later, in June 1971, The New York Times and The Washington Post published a series of stories about a set of documents that came to be known as the Pentagon Papers. By then I was a grizzled 13-year-old, but I have no recollection of paying any attention to this news; the prospect of reading a bunch of boring documents – right around the liberation date of the last day of school! – would not have interested me. I didn’t know then, but these papers revealed widespread systematic lying by the American government to the nation, painting a far rosier picture of things in Vietnam than the truth would indicate. Multiple presidential administrations had long known that the war was unwinnable, but they kept sending young American men halfway across the world to be slaughtered anyway.

Another year forward brings us to June 17, 1972, when an alert night watchman noticed suspicious activity in the headquarters of the Democratic National Committee in the Watergate Hotel in Washington; you know the story. Another four months would pass until The Washington Post reported in October that the break-in had been ordered by the White House. A year after that came the Saturday Night Massacre, in which the president ordered the firing of lawyers who were investigating him – a classic conflict of interest that I recognize now, but that I probably missed back then at age 15. The president managed to cling to office for another several months before giving up and resigning, several months after his vice president had left in shame due to his own criminal conduct.

I’ve singled out these particular events for a reason. I didn’t include the political assassinations and the race unrest and the other problems of the day, because these listed events all represented acts by our government. These were the things that our elected officials, that the United States of America, had undertaken.

I don’t know how to quantify public trust in government in those days, but my best guess is that it plummeted at some time in the period between 1969 and 1973. To be sure, plenty of folks didn’t trust the government from the outset. Racial minorities in particular had good reason to doubt America’s bona fides. But I sense that events like these convinced many people – maybe even a silent majority – that faith in government was unjustified. By these acts, our government had squandered that trust and its immense value.

*   *   *

What do all these things have to do with the modern appellate system? As I see it, the most visible element of the American judicial branch – specifically, the Supreme Court of the United States – is throwing away its once-enviable public regard. Americans have long recognized that partisan bickering is one of the hallmarks of the elected branches, but have felt that the justices are above that pettiness. Once sworn in, they can be trusted to do the right thing. Oh, we may disagree with some of their decisions, but the Supreme Court as an institution was safe from the scorn that many of us felt for those who demagogically campaign for votes.

For many Americans, their views of the Court may still be transactional: Love ‘em or hate ‘em depending on the outcome of the most recent media-magnet opinion. But for us – for bench and bar – we insist that the Supreme Court must be above that. A constitutional democratic republic without a well-respected high court is operating under a serious impairment.

You’ve seen the recent news stories about lavish gifts given to SCOTUS justices who fail to report them as other jurists must, and then decline to recuse themselves from appeals involving their benefactors. With any other jurist, recusal would be an easy decision, because the gifts create an unmistakable appearance of impropriety, one that seriously diminishes the court’s ability to dispense equal justice under law.

But the jurists whom I call Those Other Robes have resisted any check on their own conduct, other than informal self-policing on an individual basis. If any such constraints are in place now, the public cannot know, because the entire process is wholly opaque.

It’s worse than that. Faced in June with a string of pointed questions after a ProPublica investigation, Justice Alito gave that organization the silent treatment and instead unwisely penned a preemptive op-ed defense of his actions for a more sympathetic outlet: The Wall Street Journal. His Honor then got to read the accusatory story run in newspapers across America below a color photo of him smilingly holding a trophy king salmon next to his billionaire pal.

We’ve seen more stories that drain the Court’s institutional legitimacy: Justice Thomas’s cordial relationship with a billionaire donor, or the overt political involvement of his wife in matters that have come before the Court; Justice Gorsuch’s sale of real property to a senior partner at a law firm with frequent appearances at One First Street. [Update: A few days after I published this essay, another story emerged about Justice Sotomayor’s efforts to push sales of her book as a part of any public appearance. This comes across as, if not corrupt, at least crass.] Assuming that you charitably maintain that some or even all of these actions don’t constitute actual conflicts, they unquestionably create appearances of impropriety. A jurist, like Caesar’s wife, must be above suspicion if the Court is to maintain public trust.

The stabilizing influence here is supposed to be the Chief Justice of the United States. John Roberts is well-known as an institutionalist who reportedly cares more deeply about the Court than about any individual appeal. Public trust and confidence – which Judge Jay Wilkinson of the Fourth Circuit correctly called “our most valued asset” – isn’t eternal, and if damaged, it will wither, just as public trust and confidence in America’s government did fifty years ago in response to a string of damning revelations.

Surveys tell us that public confidence in the Supreme Court is collapsing. The Gallup organization reported yesterday that just 27% of Americans have either a great deal or a fair amount of confidence in the Court. The math here is easy: 73% of us don’t have even a fair amount of confidence in the ultimate arbiter of American law.

I recognize that the views of John Q. and Jane Q. Public might turn on matters that we lawyers might see through. In that light, another survey came as a shock to me: The National Judicial College surveyed its members – jurists all – and learned that just 32% had either a great deal of confidence or quite a lot of confidence in the high Court; 26% had some confidence; 41% had “very little.” These are judges!

The causes for this collapse of confidence are probably multiple, but the justices’ utter disdain for a code of conduct has to be a major part of it.

I was naïve in the late 60s and early 70s; please forgive me for that. I’m not naïve now. The Chief Justice should take a strong lead in implementing a code of conduct for Supreme Court justices. If he does so against some of their wishes, let them dissent – preferably publicly, so America can see who the holdouts are and what rationalizations they offer for their being above mere canons of judicial ethics.


Analysis of July 6, 2023 Supreme Court Opinion



(Posted July 6, 2023) Today we mark the passing of two of history’s most famous lawyers. Thomas More was executed on this date in 1535 after having offended Henry VIII once too often; and Chief Justice of the United States John Marshall of Virginia passed away exactly 300 years later, in 1835.

*   *   *

The Supreme Court of Virginia hands down a single published opinion this morning. Prease v. Clarke is a habeas corpus case invoking the Supreme Court’s original jurisdiction.

Prease has been a prisoner since his 2013 conviction for attempted aggravated murder. He received a lengthy prison sentence, but most of that was suspended, giving him 14 years of active prison time.

This appeal is about a Department of Corrections policy that allows prisoners to accumulate good-behavior credits during their time in custody. The General Assembly modified the policy recently, expanding the credit that certain prisoners may earn.

Concerned that the new statute wasn’t clear, the Department asked then-Attorney General Mark Herring for an opinion on whether certain offenses, including those for which Prease had been sentenced, qualified for the expanded credit. A month before leaving office in the wake of the 2021 general election, the AG opined that those offenses did qualify for the credit.

But as soon as current AG Jason Miyares took office, the Department asked him to reconsider his predecessor’s conclusion. Miyares obliged and reported in April 2022 that the offenses involved here did not qualify.

But before that opinion came down, the Department, relying on Herring’s opinion, told Prease in March 2022 to get ready for release, indicating an end date for his imprisonment of July or August of 2022. When the new opinion dropped, the Department backed off, telling Prease that his earliest release date would be in June 2024.

In October 2022, Prease filed this petition, asking for immediate release. Today the justices grant the requested writ and direct the Director to release him. The statutory analysis isn’t complex, and candidly it isn’t the most interesting part of today’s opinion, which Justice Powell pens for a unanimous Supreme Court. I found the political backstory fascinating, with a Republican AG issuing an opinion that’s more consistent with a tough-on-crime policy, countermanding a Democratic AG’s earlier view.


2Q David-Goliath Index



(Posted July 5, 2023) The second quarter is in the books, so it’s time to check on how our big guys and little guys are doing at Ninth and Franklin. I count four victories for our Davids and seven for our Goliaths in published and unpublished rulings from the Supreme Court of Virginia. That gives us a quarterly D-GI of 36/64 and an aggregate for the year of 38/62 (six wins for David and ten for Goliath).

If you’ve followed the D-GI in the past few years, you’ll note that David is doing quite well in comparison with his recent dismal showings. I encourage you not to rush to judgment; the court’s output this year has been tiny, so it’s difficult to call 16 decisions in half a year a statistically meaningful sample size.

As I reported here recently, the rest of the year promises very few merits decisions. I expect roughly 15 opinions and unpubs, at most – and maybe closer to nine or ten – between now and the end of December, and some of those won’t feature a David/Goliath dynamic. This will probably be the smallest set of merits decisions in all the years for which I have records. And that goes back to the early 1950s.


Analysis of June 29, 2023 Supreme Court Opinion



(Posted June 29, 2023) After two dry Thursdays, the Supreme Court resumes today the process of clearing its argument docket. The court decides a criminal appeal, Tomlin v. Commonwealth, that focuses on statutory construction.

I try to be as dispassionate as the next lawyer when evaluating appeals, but I’m not perfect. Here, see if you have the same reaction that I had upon reading this passage from today’s opinion describing the facts:

On April 24, 2020, an exterminator called 911 after he arrived at the Tomlin home to treat a bed-bug infestation and saw that Betty Tomlin, the defendant’s mother, needed urgent medical attention. He told the dispatcher that she was “in pretty bad shape” and was “being eat[en] up with bed bugs.”

First responder and firefighter Andy Tanner arrived shortly thereafter with another firefighter, and they entered the home where they found Betty lying on the floor just inside the door. Tomlin was standing nearby in the kitchen. Betty was “on her left side covered in feces and urine” with “what looked to be bed bugs crawling on her.” She had visible bug bites on her legs, and there was excrement on her nightgown and the floor nearby. Tanner asked Tomlin how long her mother had been lying there, and she said, “about two days.” When Tanner asked Tomlin why she hadn’t cleaned her mother up, she said, “I do not have time.” After removing her clothing and Depends, which were “well over saturated” with “urine and feces,” the firefighters wrapped her in a sheet and transferred her to the ambulance.

(Record citations omitted) At this point in the slip opinion – about halfway down page 2 – I’m already rooting hard against this defendant.

After a bench trial, a circuit court convicted the daughter of abuse or neglect of an incapacitated adult resulting in serious bodily injury. The daughter appealed to the Court of Appeals, which affirmed the conviction. Today the justices make it unanimous, holding that the evidence, in a light most favorable to the prosecution, made out a satisfactory case.

Justice Kelsey walks us through the statutory analysis in his opinion for the court. The issue is whether the language of the statute covers the kind of injuries that the mother sustained here. Here’s the relevant language: “‘Serious bodily injury or disease’ shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.”

The daughter admitted neglecting her mother, but argued that her mother’s injuries didn’t fall within the listed classes. She invoked familiar interpretive canons such as ejusdem generis and noscitur a sociis to argue that she couldn’t be found guilty of this felony.

Justice Kelsey points to the key statutory language that makes those canons inapplicable: shall include but not be limited to. This means that other kinds of serious injuries – even if they don’t include broken bones or mutilation – can support a conviction. The circuit court heard testimony from the first responder and from a physician’s assistant at the hospital; the latter witness explained how serious the mother’s ulcerated bedbug bites were. Today’s opinion lays out the Supreme Court’s view of this kind of statutory construction and the nuances implicit in phrases like “including but not limited to.”

The court received argument in the case in the February/March session. This opinion leaves undecided just four argued cases: two from the June micro-session, just three weeks ago, plus Monroe v. Monroe from March and Vlaming v. West Point School Board from way back in November. I fully expect a 100% clearance rate by the time The Robes reconvene for the September session.


Update on Appellate Happenings



(Posted June 15, 2023) With no new opinions today from the good folks at Ninth and Franklin, we have time to check on a few related items.


Courts’ holiday closings

The arrival of Juneteenth as a recognized holiday means that we now have a holiday season when the sun is warm, and not just toward the end of the year. The clerk’s offices of the Supreme Court and Court of Appeals of Virginia will be closed on Monday, June 19, and again on Monday and Tuesday, July 3 and 4.

Under Virginia law, the closing of these clerk’s offices automatically extends any deadline that would expire on any of these three dates. If your current deadline for something is already July 5, then you don’t get any extra time. Also, please be careful with the July 3 date; if you have a deadline to file something in the circuit court, then you must check with that court to see if its clerk’s office will be open for some reason. If it is, and July 3 is your deadline for something, then you don’t get any relief here.

Turning to the federal milieu, the Fourth Circuit will be closed on Monday, June 19, and on Tuesday, July 4. It’s conceivable that the court may eventually shutter the courthouse on the 3rd, too, to give its employees a long weekend. But I doubt it.


A salutary pay increase

The state courts have issued a press release noting that the rate of pay for court-appointed criminal-defense lawyers in the Court of Appeals of Virginia is getting a boost. You can see the new rates here; they kick in on July 1.


SCV writs and merit sessions

I’ve written recently about the slow pace of writ grants in the Supreme Court of Virginia. The court convened writ panels on May 23, hearing 24 petitions for appeal that day, and has yet to announce any writs from that gathering. In my experience, I believe we’ll receive word of any such grants in the next couple of weeks – probably next Tuesday, June 20. I’m tempering my expectations. (Update June 27 — The court has awarded three new appeals — two from the May panels and one apparently without oral argument. Those three, plus the two granted in April, give us a fair estimate, but only an estimate, of the November argument docket.)

The court schedules six writ panels and six merits sessions each year. There’s a rhythm to the panel/session process. What follows is very rough; there are a few exceptions, but this reflects general practice:

  • Writs granted after the February panels generally “feed” the September merits session.
  • Writs granted in the April and May panels lead to merits arguments in October/November.
  • Writs arising from the late August panels usually land on the next year’s January and February/March session dockets.
  • Writs from the October panels are usually heard on the merits in the next year’s April session.
  • Those writs granted from the December panels generally land on the following June’s full session docket.

This should give you a general idea of when to expect an oral-argument notice if the court has awarded an appeal in your case. There are normally six or seven months between a panel date and an argument session to the full Supreme Court.

This also gives us a rough idea of what to expect for merits dockets for the remainder of 2023. The court awarded five appeals in the February writ panels, so that’s a rough estimate of the size of the September docket.

I expect the actual September docket to vary from that guess by one or two. For one reason, the court removed the Moison v. Commonwealth appeal from the June session docket, and it might resurface in September. And it’s always possible to see an OJ case arrive; proceedings invoking the Supreme Court’s original jurisdiction don’t show up on the “Appeals Granted” web page because there’s no writ process there. Think attorney-discipline or State Corporation Commission cases.

What I can’t do yet is estimate the size of this year’s October/November docket. The April writ session was almost barren – just two writs granted. As noted above, we haven’t seen any from last month’s panels yet, though those might hit the website next week or the week after. If the court awards only an appeal or two out of the 24 petitions heard in May – roughly the same grant rate as in April – then the last session of the year may well be another one-day affair.

Analysis of June 8, 2023 Supreme Court Opinion



(Posted June 8, 2023) I need each of you to bear with me through the ensuing sentence, which I insist is true: The Supreme Court of Virginia this morning hands down an absolutely fascinating employee-grievance decision. The opinion has it all: fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, miracles…

Oh, wait; that’s The Princess Bride. Stick with me anyway. In City of Hampton v. Williamson, the justices evaluate the question whether an employee has the right to obtain documents relevant to his case before the grievance hearing.

The employee, Williamson, was an officer in Hampton’s fire department. Today’s opinion recites that one day three years ago, he “made a remark while watching a recap of the nightly news with a colleague. Another firefighter, who was not present at the time, learned of Williamson’s comment and interpreted it as offensive and racist.” The City eventually fired Williamson.

Perceiving that he’d been set up, the employee pursued relief through the City’s grievance procedures. That process led to the ultimate administrative step, a grievance-panel hearing.

Before that hearing, the employee’s lawyer asked the City for copies of “all correspondence, emails, or texts” received by “any city employee from any source complaining about the statement Mr. Williamson allegedly made which forms the basis for this disciplinary action,” and “any document which formed the basis for the disciplinary action” against him. The City admitted that it had 17 pages’ worth of relevant documents, and that some of them formed the basis for the firing, but it refused to produce them because the City didn’t intend to use them in the hearing. It gave the employee a list of intended witnesses instead.

That led the employee to sue in circuit court, seeking a writ of mandamus to produce the withheld documents. The City filed a demurrer, but the court overruled it, perceiving that the grievance procedure was remedial and should be interpreted liberally. In the absence of any other defense, the court entered final judgment in favor of the employee, ordering the City to turn over the documents under seal. The City sought and received a writ.

Today’s decision is split. Justice Powell writes for the chief justice and Justices McCullough, Russell, and Mann in holding that the grievance procedures available to local-government employees aren’t as broad as those for state employees. The relevant statute requires localities to

provide the panel or hearing officer with copies of the grievance record prior to the hearing, and provide the grievant with a list of the documents furnished to the panel or hearing officer, and the grievant and his attorney, at least 10 days prior to the scheduled hearing, shall be allowed access to and copies of all relevant files intended to be used in the grievance proceeding[.]

The last clause is the battleground today. The question here is which documents, exactly, are “intended to be used” in the hearing. The use of the passive voice here conceals the identity of the actor, a rhetorical trick that writers and speakers have been using for generations. (See, e.g., presidential Press Secretary Ron Nessen’s strategic retreat 50 years ago from his previous outraged accusations against Washington Post reporters as the Watergate affair unraveled: “Mistakes were made …”)

The court’s majority rules that the most natural reading of the statute is that it requires disclosure of documents that the City intends to use. The City expressly disavowed any intention to use these documents, and it normally would have no way of divining what documents the employee would intend to use. A broader reading, the majority concludes, would enable employees to launch a fishing expedition for all sorts of tangentially germane documents, and the statute simply isn’t that broadly worded. The court thus reverses the grant of the mandamus writ and enters final judgment for the City.

When I tell you that Justice Kelsey pens the dissent, you know we’re in for a fun ride. He and Justice Chafin read the same statutory language and reach the opposite conclusion. That’s largely because of the purpose of the entire grievance process: to provide a form of due process of law for employees, giving them, among other things, “oral or written notice of the charges against [them], an explanation of the employer’s evidence, and an opportunity to present [their] side of the story.”

Let me cut to the chase here: The dissent concludes that the majority’s ruling permits a glaring perversion of the statute’s purpose, as illustrated in a footnote in the dissent. Suppose one of the 17 pages turned out to be a smoking-gun document that absolutely won the case for the employee here; if it were to come into evidence, there would be no doubt as to the outcome. Asked in oral argument if the City could shield such a game-changing document simply by deciding not to use it, the City’s lawyer told the justices, “That would be our position, if we just chose not to use that document.”

WHAT??!! To lawyers, who are accustomed to principles of fair play in litigation, this result is an abomination, allowing one party to game the system to win a losing case. Justice Kelsey makes this point forcefully, concluding that such documents have to be disclosed if either party intends to use them (as the employee’s lawyer had clearly communicated to the City’s lawyer beforehand here). But only Justice Chafin joins him in seeing it this way.

I noticed one other troubling aspect to this case. Think back to that short description of the underlying statement, which one of the employee’s co-workers found offensive. The majority opinion gives no more explanation than that. The dissent fills in the details:

One evening, Lt. Williamson and a fellow supervisory firefighter watched a news program reporting on a violent attack on firefighters in another city who were attempting to extinguish burning buildings and cars lit on fire by protestors. The protesters pelted the firefighters with Molotov cocktails, rocks, bricks, and bottles. Finding themselves defenseless, the firefighters used their fire hoses to push the violent mob away from the scene in order to continue fighting the fires.

While watching the news program, Lt. Williamson and his colleague discussed what they might do if they were to find themselves in such a situation. During that conversation, Lt. Williamson said, “I would only do that if ordered to.” Lt. Williamson forthrightly admits that he made that remark and stands by it. The remark “was predicated solely in the context of the previous night’s news coverage,” which as Lt. Williamson points out, “depicted protesters violently attacking unarmed and unprotected firefighters who were attempting to extinguish fires set by those protesters, and who, lacking any other means of protection, utilized fire hoses as non-lethal means of self-defense from ongoing violent attack and injury.”

“I would only do that if ordered to.” That’s it; that’s the entire statement that the City concluded was so racist that one of its lieutenants had to go. Both of today’s opinions report that the lieutenant approached the complaining colleague – who didn’t even hear the statement directly – and apologized for inadvertently giving offense.

I don’t mention this to insist that the City was dead wrong. I have no experience in running a fire department and I would never try to force my personnel conclusions on them, however misguided the City’s actions might appear to me. My beef is instead with the court. Not the circuit court; the Supreme Court.

Back on January 26, I reported on the justices’ divided ruling in Colas v. Tyree, a police shooting case. I noticed then that the majority opinion, which reversed a judgment for a decedent’s estate, had omitted some highly relevant facts that had supported the jury’s verdict for the personal rep. A week earlier, the same thing happened in Forness v. Commonwealth, where the majority had swept uncomfortable facts into the shadows, leaving the dissent to drag them out into the open.

I believe that today’s majority commits the same sin of omission. If you read only the majority opinion, you might come away subtly rooting against the lieutenant. After all, he did something racist, right? Surely, he deserves what he got …

But the actual statement looks far more benign to me than the majority’s condensed factual report would lead you to believe. In this context, it’s highly plausible that the lieutenant said something innocuous, that a co-worker decided for his own reasons to try to turn it into something explosive, and the City then hid potentially exculpatory evidence from the lieutenant in the ensuing hearing, which must have appeared to him to be a Star Chamber proceeding. The court’s opinion now legitimizes that concealment, holding that that’s what the General Assembly must have meant would happen.

This is three times now, in just the last 4½ months, where a majority opinion deals with troublesome facts by the simple expedient of ignoring them. At least we had dissents in these three appeals, so someone on the court was able to point out what the majorities were evading in the way of inconvenient facts. I earnestly hope that the court doesn’t continue to utilize the ostrich approach in drafting opinions. Virginians deserve better.


Analysis of June 1, 2023 Supreme Court Opinion



(Posted June 1, 2023) New day, new month … new opinion! This morning the Supreme Court of Virginia hands down a published opinion plus a single unpub, just the second of those this year. Both rulings are in appeals argued during the April micro-session, meaning that the court has now decided all three appeals argued that month.


Criminal procedure

The published opinion comes in Walker v. Commonwealth, involving a prosecution for a bank robbery and associated charges. The robber entered a bank wearing a mask, and –

As an aside, you don’t have to think back too long to recall that if a guy entered a bank wearing a mask, all hell would break loose. Then for a time during the pandemic, if someone walked in without one, he got sideways looks as if to convey, ‘Smatter, Mac? You don’t have the good sense to mask up?

But let’s return to our tale, which actually predates the pandemic by several years. The masked robber displayed a gun and angrily demanded cash from several tellers. He got away with $15,000 in currency and stepped into the passenger seat of a white Acura, which sped off.

Alas for our hapless perpetrator, ensuing circumstances conspired against him. A concerned citizen at another bank received word of the suspicious activity and noticed a white Acura. That person notified police, providing a description that included the license plate. Alas, the car was registered to our appellant, Walker.

The bad news is just starting. The efficient thing about stealing currency is that it’s more portable than, say, a boatload of dimes of the same value. (Fans of Blazing Saddles and the William J. LePetomane Memorial Thruway are going to have to forgive me for the edit there.) The drawback is that banks wrap bills of a single denomination with identifiable wrappers that a bank manager initials, providing a handy way to identify specific bills.

Two days later, police stopped our familiar white Acura doing 91 mph in Maryland, where the speed limit is somewhat lower than that. The officers found a bag in the back seat with lots of currency, including a bunch of bills that were – uh-oh – still in wrapped, marked, and initialed packs. Walker, who was in the passenger seat at the time of the traffic stop, eventually “testified that he had no idea there was money in the car when it was pulled over in Maryland. He blamed the robbery on his brother.”

But prosecutors had done their homework, and they called one of the bank tellers at the jury trial. That teller told the jury that while the robber wore a mask, she got a good look at his eyes, from close enough that she could have reached out and touched him. She identified Walker as the robber.

To get to our first appellate issue, I need to backtrack just a bit. Walker, acting pro se with standby counsel, moved the circuit court in limine to exclude any in-court identification by a witness unless the court had first “vetted [the witness] in their ability to identify the suspect in a blind 6-man photo lineup with only their eyes showing, because the suspect wore a ski mask.” In my uneducated view – I don’t hold myself out as an expert of any degree in criminal cases – I’d say that that’s not bad for a pro se. The circuit court denied the motion.

On appeal, Walker (this time aided by highly capable appellate counsel) asked the justices to rule that the inherently suggestive nature of in-court identification requires a prior ruling by the trial judge that the evidence is trustworthy – essentially asking the court to impose a Daubert-like threshold finding by the trial court before the jury can hear this kind of evidence. The Supreme Court notes the genuine risks attendant to in-court identifications, but declines to impose such a requirement. Justice McCullough’s opinion for a unanimous court observes that Virginia thus joins the majority of courts that have ruled on this issue.

The foundation for such a holding is an imposing one – the Due Process Clause of the federal Constitution. (Virginia’s constitution contains a nearly identical clause, but a footnote tells us that the litigants here “do not ask us to construe that Clause.”) Ultimately, the court holds that the proper place to test the reliability of this kind of evidence is “the crucible of cross-examination.” That means that the jury itself is the proper body to determine the reliability of an identification. We have model jury instructions that can warn juries about the possibility of unreliable identifications, and the court today rules that this safeguard is sufficient.

In an unrelated finding, the court confirms that a defendant can suffer a “second or subsequent” conviction – here, the issue is firearm charges, with their mandatory minimums and enhanced sentences for second and subsequent convictions – even when the events happened all at once. The jury convicted Walker of multiple firearms offenses, one for each victim in the bank at the time.

Today’s opinion notes that someone who robs multiple people deserves a worse fate than a crook who robs only one. I’ll admit that it’s hard to argue with that conclusion, and prior caselaw seems to indicate that someone who commits a string of crimes in rapid sequence is indeed liable for multiple firearms offenses. Here, we see that even simultaneous events can justify “subsequent” convictions.

Here are a couple of items that caught my eye in today’s decision. First, in a couple of places, I thought I detected a surprising measure of scorn for the appellant. For one example, here’s part of the last paragraph of the facts section:

Walker offered alibi evidence from a “good friend” and five-time convicted felon, who testified that Walker worked on the moving job all day, from around noon to about 6:00 p.m. Walker himself testified to that effect. However, this evidence differed in a number of ways from the alibi he provided to a detective just days after the robbery. Walker also offered evidence from another convicted felon that a man named “Mike” may have committed the robbery.

As I see it, the entire alibi issue is a red herring in today’s analysis, which has little or nothing to do with the strength of Walker’s defense. Even if it’s more germane than I perceive, I can see little justification for including the felony history of the alibi witnesses, other than to convince the reader – and remember, this will enter the annals of Virginia Reports, so “the reader” means posterity – that Walker is guilty as charged, because his alibi evidence leaks like a ’73 Chevy Vega. If this were a harmless-error opinion, I might see the relevance; but as it stands, it looks merely inflammatory. So does the recitation on p. 5 that the motion in limine, seeking to exclude the in-court ID, was handwritten. That fact has no relevance to today’s discussion; it merely makes the defense look amateurish.

The other glaring aspect of this opinion comes in the passage on p. 14 in which the court rules that juries alone should have the power to decide what evidence is reliable:

Of course, a defendant can make use of the traditional safeguards of the right to counsel, the right to present evidence, and cross-examination to expose mistaken eyewitness testimony. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (concluding that “[t]he[ ] conventional devices” of “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence … rather than [its] wholesale exclusion.”).

Daubert? DAUBERT? Of all the case cites in all the courts in all the world, that one walks into mine …. The irony here is that while the opinion today cites Daubert for the premise that the opponent of challenged evidence can attack it in court, the major holding of Daubert is very different: It directs federal judges to assess the reliability of expert testimony before a jury can hear it, and to exclude it if the judge concludes that it’s unreliable. With this incongruous citation, the Virginia court, while attempting to extol the sanctity of trial by jury here, has embraced one of the primary federal anti-jury-trial decisions.