All posts by David Rourk

‘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.”

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.