NOTES ON APPELLATE DEVELOPMENTS

(Posted June 28, 2024) Today is the last business day of the second quarter, so it’s a good time to look around and see what’s been happening in the appellate world.

SCV whittles its docket

Yesterday’s decision in Powell v. Knoepfler-Powell reduces to four the number of argued-but-undecided appeals on the docket of the Supreme Court of Virginia. Here are capsule summaries of the appeals that are still “open”:

Page v. Norfolk RHA is a public-nuisance claim that implicates the governmental/proprietary distinction in municipal cases. It’s the oldest appeal on the docket in one sense, having been argued four months ago today.

Eckard v. Commonwealth, argued in April, addresses a claim of juror misconduct in a criminal trial.

Crumpler v. Stark and Durham v. Commonwealth comprised the June micro-docket, just three weeks ago. Crumpler appears to involve a series of disputes among residents of a community at Smith Mountain Lake, though it’s hard to get a full sense from just the assignments of error. Durham implicates a motion to suppress and a sufficiency challenge in a criminal prosecution.

As noted here recently, I’ll be following these cases to see if the Supreme Court will fully clear its argued-cases docket over the summer, before the September session.

2Q David-Goliath Index

Another calendar quarter’s worth of decisions are in, so let’s see how our big guys and little guys fared in the SCV. Counting published opinions and unpubs, our Davids prevailed three times, while Goliath came out ahead nine times. Added to the first quarter’s numbers, that gives us a D-GI of 30/70 for the first half of the year, as the little guy has won six of these appeals and the big guy 14.

An uptick in decisions

I also counted the number of merits decisions we’ve received in the first half of 2024. The court has handed down twenty published opinions/orders and five unpubs since the calendar turned. That’s not a lot by the standards of several years ago, but the pace is far ahead of last year, when we got only 28 published rulings and two unpubs all year. It’s worth mentioning that three of this year’s published rulings were three-sentence affirmances that merely adopt the CAV’s decision and analysis.

Back in January, I publicly wished for more writ grants. Early returns, measured by the future contents of Virginia Reports volumes, are encouraging.

Will the SCV follow SCOTUS?

In some respects, the question above might be considered impolite; Virginia maintains a firm sense of independence from those folks in Washington. I ask the question because this morning, Those Other Robes addressed a principle known as Chevron deference. The premise arose from the 1984 decision in Chevron USA v. Natural Resources Defense Council, which held that in evaluating ambiguities in statutes, courts should normally defer to interpretations by the relevant administrative agencies. The concept is that the agencies will normally have more technical expertise than will courts, which are by nature generalists.

If you’ve relied on this principle in federal court, please know that the medical examiner now has the body and will be signing the death certificate soon. SCOTUS today ended Chevron deference’s life at the tender age of 40, in Loper Bright Enterprises v. Raimondo. Henceforth, courts won’t defer to agencies, regardless of their expertise.

No, I haven’t transitioned to a federal appellate website; for coverage of SCOTUS, I cheerfully refer you to the folks at SCOTUSblog, who do a wonderful job of covering proceedings at One First Street. I mention this because Virginia has a version of the Chevron principle: It’s called the rule of practical construction, a premise that I learned many years ago when I literally worked in City Hall. Here’s a recent expression of it, and its limitations, from a 2018 SCV opinion:

Although the practical construction given to a statute by public officials charged with its enforcement is entitled to great weight by the courts and in doubtful cases will be regarded as decisive, when an issue involves a pure question of statutory interpretation, that issue does not invoke the agency’s specialized competence but is a question of law to be decided by the courts.

Jones v. Commonwealth ex rel. Moll, 295 Va. 497, 503 (2018), quoting Commonwealth v. Barker, 275 Va. 529, 536 (2008) (emphasis added in Jones).

In this sense, I perceive that Virginia courts have employed a watered-down version of Chevron deference. It remains to be seen whether our courts will follow the federal lead and send what remains of administrative-agency deference to a quiet cemetery somewhere.

SCV ANNOUNCES SIGNIFICANT RULE CHANGES

(Posted June 24, 2024) Professional journalists who cover government are fond of observing that when the government wants to hide news despite its being in plain view, they announce it on Friday afternoon. I am not about to ascribe any such ulterior motives to the Supreme Court of Virginia; it’s probably just a case of coincidental timing that the court on Friday afternoon announced entry of an order that makes significant changes to several Rules of Court.

By law, there’s a 60-day waiting period before the new rules take effect, so you have time to get used to the new provisions before August 20. Let’s take a peek at a few of the changes, with more emphasis on those in the appellate courts.

Rule 1:4 – General provisions as to pleadings. The order adds what I regard as a salutary provision to the paragraph on responsive pleadings, subparagraph (e). The new provision imports from the rule on requests for admission (Rule 4:11) language requiring a responding party to “fairly respond to the substance of” an allegation. It adds that “A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.”

This is as it should be. A responding party shouldn’t be able to deny an entire numbered paragraph merely because of a disagreement with one minor aspect of the pleading.

Rule 1:5 – Counsel and parties appearing without counsel. The court will now expressly authorize the signing of pleadings, notices, and briefs electronically or by a digital image of the signature. The current rule is a little ambiguous on whether counsel had to affix a handwritten signature every time. The new change also allows unrepresented parties to use e-signatures or digital images.

Rule 4:7A – Audio-visual depositions. There’s a simple adjustment here. After an A/V deposition, a witness now may read and sign (or try to correct) a transcript, though there’s still no provision for her approving or changing the video itself.

Rule 5:1B – Electronic filing. Rejoice! The old requirement for “a handwritten signature” will vanish in August, yielding to the steamroller of progress (and to e-signatures). In fairness, currently all e-filed document may be e-signed.

Rule 5:26 – General Requirements for all briefs. It’s here that we get a whopper of a change. For the first time – as far as I know, it’s the first time in the court’s history, going back to the 1770s – the Supreme Court has authorized the filing of sur-reply briefs. They’re limited to situations where the appellee has assigned cross-error and the appellant has filed a reply brief, so an appellee can’t file two briefs in a row.

This brings Virginia appellate practice roughly into conformity with the Federal Rules of Appellate Procedure (FRAP 28.1(c)(4)) on this point. The language of the new provision authorizes the filing “in support of the cross-error,” so I believe the appellee won’t get a second crack at the appellant’s assignments. The sur-reply is due 14 days after the appellant files the reply brief.

Rule 5:29 – Requirements for reply brief and reply brief in support of cross-error. This rule gets a new name and new provisions for the sur-reply. Heading off some appellees who might be a bit too clever, the court forbids the filing of a sur-reply unless the appellant has actually filed a reply brief. (Why would any appellee think to do such a thing, you ask? Why, to try to get around the page limits, of course.)

Rule 5A:1 – Scope, citation, applicability, filing and general provisions. Here the rules allow e-signatures in the Court of Appeals as well.

Rule 5A:10 – Record on appeal: preparation and transmission. The significant change to this rule is one of elision: Subparagraph (c), allowing for appeal on an abbreviated record, will vanish on August 20. This is probably a casualty of electronic transmission of the record, as it’s just as easy for the circuit-court clerk to transmit the whole record as it is to send up a portion of it. Candidly, I’m not sure how often parties used this procedure, so the elimination may not generate a noticeable change at ground level.

Rule 5A:12 – Petition for appeal and other petitions for discretionary review. The order inserts a new subparagraph (f) – thereby demoting the last two subparagraphs of the existing rule, which will now be (g) and (h) – that deals with the record. It requires the parties to cite to record pages in their briefs, assuming the trial court has sent that record up electronically. Currently, it’s permissible to cite documents descriptively, such as “defendant’s demurrer brief at 4,” but that’ll end soon. Petitions for interlocutory review must be accompanied by the relevant parts of the record, presumably because the circuit court won’t send the record up in those cases.

Rule 5A:13 – Brief in opposition. A new subparagraph (b)(3) now requires that the appellee also cite to pages of the record where it has arrived electronically, mirroring the provision in Rule 5A:12 for appellants.

Rule 5A:19 – General requirements for all briefs. The Supreme Court imports an existing requirement into this rule, where it’s more visible and hence more likely to be adhered to. New subsection (b)(1) sets out the appellant’s obligation to list assignments of error within 15 days after the clerk’s certificate of his receiving the record. The requirement exists now, but it’s buried in the middle of a long subparagraph of Rule 5A:25. I applaud its more prominent placement here. The rule also requires the inclusion of granted assignments of error and cross-error in the appellant’s opening brief.

Rule 5A:20 – Requirements for opening brief of appellant. In what every experienced advocate already knows, a new provision in subparagraph (c) states that assignments of error in the appellant’s brief “are binding on the appellant for substantive purposes, unless the Court has granted a motion to amend.” We all know not to change our assignments of error without the court’s permission, right?

Rule 5A:21 – Requirement for brief of appellee or guardian ad litem. This rule gets a parallel provision on the binding nature of assignments of cross-error. Not a surprise.

Rule 5A:22 – Requirements for reply brief and reply brief in support of cross-error. The sea-change of a sur-reply brief applies in the Court of Appeals, too. It has the same requirements and limitations as its SCV cousin in Part Five.

Rule 5A:25 – Appendix and preliminary designations of assignments of error. Here’s a belt to go with those Rule 5A:20 suspenders. Also in subparagraph (f), the court provides for the situation where the appellant submits preliminary assignments of error that prove, upon his filing the opening brief, to be misleading. The new provision allows the appellee in such a case to request leave to file a supplemental appendix, and pass that cost on to the appellant.

For our purposes, the major news item in this order is the provision for a sur-reply brief by the appellee to address her cross-error. Previously, she was limited to just one crack at briefing, while the appellant got two, even if the appellee raised a significant issue on cross-error. This is no doubt more equitable. My only wonder is how long it will take for an appellee to try to sneak in some arguments on the appellant’s assignments, and whether the court will smack the appellee down for that.

Meanwhile, the court continues to march into the Twenty-first Century by streamlining e-signing rules, and it sandpapers that one rough edge in the pleading rules, specifically Rule 1:4. I haven’t covered all of the changes here, so if you’re interested in agreements for payment of fines and costs over time (Rule 1:24) or specialty dockets (1:25), click on the link to the rule and check those out.

Between Friday’s notable changes and the court’s promulgation a couple of weeks ago of a long-overdue rule on preliminary injunctions, June 2024 is proving to be a watershed month for the Virginia Rules of Court.

PROGRAMMING NOTE – OT’23 SUNSET EDITION

(Posted June 12, 2024) Mid-June is here, and that means that SCOTUS is sandpapering the rough edges off opinions in its high-profile cases from October Term 2023. The Court traditionally clears its docket by approximately the end of June, though it peeked into July during pandemic times.

With just eleven more court days between now and the end of the month, and nearly half of the OT’23 appeals still undecided, courtwatchers will have plenty to anticipate. The next decisions will arrive tomorrow and Friday, June 13-14. While the Court hasn’t announced future opinion release dates yet, I expect to see them on the next two Thursdays, June 20 and 27, plus a smattering of additional days that we can’t predict now.

While I don’t normally cover decisions by Those Other Robes, I may offer analysis of one or two of the bigger decisions still to come. There’s plenty to choose from with multiple appeals on abortion, guns, and administrative law (sexier than the usual admin-law cases). The Court also faces tough choices in cases involving bankruptcy law, environmental protections, and localities’ efforts to address homelessness. There’s also that little question whether the President is above the criminal law. It won’t be a slow news month.

As usual, I’ll send you over to the good folks at SCOTUSblog for fuller treatment than I can provide of the Supreme Court of the United States. This time won’t be an exception, though SCOTUSblog has suffered from staff cuts this year and their coverage isn’t as robust as it has been in past years. Meanwhile, I’ll check the wire as usual tomorrow for any new decisions that may arrive from Ninth and Franklin. Hope to see you, if only metaphorically, then.

DISTRIBUTING THE SUPREME COURT’S WORKLOAD

(Posted June 7, 2024) You know me; I see something that looks like a statistical anomaly and I’ve just got to check out the data to see if it pans out. Yesterday I decided to dig into the log of Supreme Court of Virginia decisions to see how The Robes are dividing the chores of writing published opinions.

This review is limited to published opinions because we can’t know who writes the unpubs; the court doesn’t reveal that information. I can figure out some of the authors based on their writing styles, but I’d prefer not to interject my deductions into an otherwise exact count. I started with the month of October 2022 because that’s when the court’s current lineup began to crank out opinions.

This isn’t something that I follow from month to month, but fortunately, it’s very easy to check the opinions. Here’s what I found over that span; these are the numbers of published opinions of the court – dissents not included – by author:

• Kelsey 11
• Russell 10
• McCullough 9
• Powell 8
• Mann 7
• Chafin 2
• Goodwyn 1

That’s 48 published opinions, about seven per justice on average. For the sake of completeness, we’ve seen eleven unpubs in the span I studied, and no opinions from senior justices.

For a long, long time, the court has insisted that opinion assignments are matters of pure chance. It starts with a random draw out of former clerk David Beach’s hat to see who gets the first case on the docket. After that, the appeals are distributed in the justices’ seating order around the conference-room table until all appeals on the docket are assigned to someone.

Let’s leave aside for now the fact that docket draw these days almost never gets all the way around the table because of the justices’ parsimony when it comes to issuing writs. This is an essay about distribution; not volume. The point is that, in theory, each justice should get a reasonably equal share of the workload.

I concluded several years ago that horse-trading goes on up there, as one justice swaps the Smith appeal for the Jones case because of an interest in the subject matter. Court insiders might fuss about that, but I’ve seen too much evidence to acknowledge the possibility that no such trades occur.

Yesterday’s counting process confirmed the bare suspicion that led me to review these numbers: The chief and Justice Chafin have been almost completely shut out of the opinion-writing process recently. Neither has written an opinion of the court this year, and the chief didn’t write one in 2023, either. He last spoke for the full court twenty months ago, at the very beginning of my survey.

I believe in coincidences only over a very short time frame. With a year and a half of data, this can’t be a matter of chance anymore. It’s certainly possible that those two drew some of the unpubs, and indeed, I believe that that’s the case. But even if they got all eleven – which I seriously doubt – they still got “skipped” multiple times on docket-draw day.

What gives? The candid response is that I don’t know. I see no statistics-based explanation for this much of an imbalance over this much time, and I firmly believe that there’s a subjective component that I, as a guy who’s always been outside looking in at the court, cannot describe. In theory, these two justices could be more likely than their colleagues to urge unpublished status for their assigned cases. That’s a plausible explanation, but I won’t insist that it’s true because I have no evidence for it.

TWO NEW SCV DEVELOPMENTS

(Posted June 5, 2024) Opinion day is still a number of hours away, but there’s news out of the Supreme Court Building that won’t wait.

New injunction rule

Back in March, I posted word that the Supreme Court of Virginia was considering adopting a rule to better define the principles underlying temporary-injunction analysis. The court received public comment through the beginning of May, and today it announces the promulgation of a new rule devoted to this very purpose.

Rule 3:26 uses terminology from federal practice, including preliminary injunction instead of merely temporary injunction, which has been the practice for generations. It adds that there’s no difference between the two phrases.

The rule also creates a category for temporary restraining orders, which are to be “of brief duration for the limited purpose of preserving the status quo” until the court can conduct a hearing on the preliminary injunction. If you want more certainty than that, such as the limits of “brief duration,” you’ll go hungry.

A quick skim of the new rule will show you familiar language and decisional factors. I regard this as a welcome development; as I wrote back in 2013, circuit courts and litigants have had to borrow from federal jurisprudence and hope that that suffices. The justices have done Virginia courts a favor here.

Slimming down

Just 12 days ago I reported on the Supreme Court’s June session argument docket, which featured just three appeals. Yesterday I learned that the session is now down to two cases, as the court removed King v. Commonwealth for an unreported reason. That means that court was in session for a little over an hour this morning before adjourning until the September session. The session was so short that audio recordings of the two oral arguments are already up on the court’s website.

The next gathering of justices will be August 28, for writ panels. If recent history is a reliable guide, we should see forty-ish appeals divided among two or three panels. I’ve learned that the court has yet to reinstitute the wonderful “road shows,” panels that convene in two locations outside Richmond over the summer. Those are wonderful engagements where the justices come to the people. I hope they’ll resume these panels someday soon; but for the August panels, counsel in the case will, like Mohammed, have to go to the mountain.

SOME QUICK APPELLATE NOTES

(Posted May 31, 2024) I’ve noticed a couple of anomalies recently and thought I’d mention them here.

Whither the seniors?

This year brings a noticeable drop-off in the use of senior justices in merits cases at the Supreme Court of Virginia. In only three appeals decided thus far in 2024 have senior justices stepped in – each time, a single substitute for one of the current justices.

Last year’s roll of decisions featured ten substitutions, but there was a good reason for that: Justice Wes Russell recused himself from seven appeals that had made their way through the Court of Appeals while he was there. Another fill-in was required for Justice Mann when the Robes considered an appeal from Fairfax County Circuit, where he presided until his elevation. As these jurists get further removed from their lower-court service, these recusals will become rare.

In years past, senior justices also helped when the court’s caseload was heavy; they stepped in to give the court’s active members a break. With today’s micro-dockets, that really isn’t an issue. Senior-justicehood is much more a part-time job now.

One last point: It’s now been over two years since a senior justice wrote an opinion of the court, or even a dissent. The last such was Senior Justice Charlie Russell’s opinion in Edwards v. Omni Services in May 2022.

A drought across the river, too

I’ve reported here often about the recent collapse of the writ market at Ninth and Franklin, but Those Other Robes have cut back on grants, too. Right now there are only nine granted cases for October Term 2024, which begins in just over four months. That’s surprisingly, even alarmingly, low. (I suppose that the political left is quietly rejoicing that the new sharply conservative Court is taking on less new business, and can thus wreak less mischief.) There are four more order days before the end of OT’23, so the Court may pad its merits docket in the coming month.

As long as we’re on the subject of SCOTUS, I’ll mention one tidbit to counter some popular wisdom that isn’t so accurate after all. I’ve read multiple critiques of the high Court’s alleged decision to slow-walk Trump v. US, the absolute immunity case, on its way to decision. The critics complain that the Court is making us wait all the way unto (presumptively) the end of June for a decision, cutting things perilously close to early November.

But the Court granted cert in the appeal on February 28. Normally an appeal granted at that point wouldn’t be calendared for oral argument until well into the following term – sometime after the First Monday in October. As I see it, the Court accelerated its consideration of the appeal by setting it for oral argument in late April, just eight weeks after the grant. That, folks, is fast work. For comparison’s sake, the usual delay between writ grant and oral argument in the Supreme Court of Virginia is 4-6 months.

Update June 3: My appellate pal George Somerville — now enduring the rigors of a relentless 9-to-5 retirement, seven days a week — has written with a different perspective on the pace of SCOTUS’s work in the case. His views are important enough that I’ve solicited and received his consent to publish those comments here.

I think I understand (at least generally) the impulse that led you to defend the USSCt’s expedited handling of the presidential immunity case; but a more complete analysis would compare its treatment of the insurrectionist disqualification case. When it was important for the electorate to know whether [Trump] could be disqualified for instigating the acts of January 6, the Court moved quickly. But in the view of at least some members (I nominate Thomas & Alito), the electorate does not need to know before November whether he is guilty of genuinely serious felonies; and they will do all that they can to protect us from that knowledge.

Let’s get real for a moment. The arguments for absolute immunity from prosecution on January 6 matters are about as flimsy as can be; and​ to the extent that they have any possible merit, they could best have been adjudicated on a full record, after trial. As is, it appears likely that there will be numerous separate opinions and that all of them (majority included) will address a congeries of hypotheticals.  That’s not how it is supposed to work. The Court should have refused the cert petition or, alternatively, treated the moving papers as merits briefs and summarily affirmed per curiam.

For additional context, I decided to check the dates for two other major appeals involving presidents. In US v. Nixon, the Court received a cert petition on May 24, 1974 and granted it seven days later, on May 31. Oral argument occurred on July 8 and the Court announced its ruling on July 24. That’s two months from cert petition to published opinion.

The all-time record, though, has to be Bush v. Gore. The Court received a cert petition on Friday, December 8, 2000. It granted the petition the next day  — yes, a Saturday — and directed the filing of briefs by Sunday, December 10. The Court convened on Monday, December 11 for oral arguments, and issued the opinion of the court and the dissent on Tuesday, December 12. That’s four days from cert petition to final decision. When the Court wants to accelerate proceedings, it can.

APPELLATE NEWS ITEMS

(Posted May 24, 2024) It’s another quiet week at the Supreme Court of Virginia, so let’s look around for other newsworthy items.

June argument docket

The SCV’s June session schedule is out:

Wednesday, June 5, 2024 9:00 a.m.

230606         Crumpler v. Stark, et al. (30 minutes)

230483         King v. Commonwealth (30 minutes)

230599         Durham v. Commonwealth (30 minutes)

As the saying goes, “That’s it; that’s the list.” The Supreme Court will convene for 90 minutes on a single day in two weeks to hear three arguments, and then adjourn for the summer. The court’s next session is in September.

Looking back at the list of writs granted, and considering the usual gestation period for a merits appeal, my best guess is that the September session – which was once the busiest on the court’s calendar – will have something like six appeals on it this year. If that estimate bears out, the court will have heard 32 merits arguments by the time the September session ends with just one more gathering left in 2024, right around Hallowe’en.

In case you’re wondering, no; this isn’t the smallest docket we’ve seen in the recent collapse of the writ market. The June 2023 argument docket featured just two cases.

Good news and bad news

Last week I received a copy of the alumni magazine from my law school, which shall remain nameless, but it’s U.Va. There’s a nice cover story about the dean, Risa Goluboff, who’s stepping aside in favor of Prof. Leslie Kendrick, a recent (2006) graduate of the law school.

Quickly skimming the table of contents, my eyes stopped when it promised a story on p. 32, “Preparing Students for Appellate, Supreme Court Practice.” I turned immediately to that one to see how the school is polishing the next-next generation of appellate lawyers.

The story reported two students’ success in a Ninth Circuit immigration appeal. They filed an opening appellant’s brief seeking remand, and that was evidently enough to convince the government. Instead of a brief of appellee, they got the government’s consent to remand.

Touchdown, right? Time to line up for the extra point? Yes, absolutely; but something about the story made me gasp audibly. Here’s a sentence from a caption accompanying a photo of the two successful students and their faculty adviser: “The team filed a 14,000-word opening brief and began preparing for the next steps ….”

Fourteen thousand words? Why on Earth would you do something like that? The simplistic answer may be that the Ninth Circuit’s local rules permit you to file a principal brief of that length. The Federal Rules of Appellate Procedure contain a shorter limit of 13,000 words – FRAP 32(a)(7)(B)(i) – but the Ninth is a more forgiving place, it would seem.

And yet appellate lawyers must, must pause to consider whether doing something that the rules permit is a good idea. I recognize that that may sound counterintuitive. In one sense, it certainly looks like a green light from the court: The rule permits you to do that, so you can’t get in trouble for obeying the rule.

But if you talk to enough appellate jurists about this topic, you’ll soon gather a consensus: Briefs, in their view, should be shorter than they are. I’ve talked to dozens and dozens of them, have asked questions like that, and have received a uniform answer: Lawyers’ briefs are too long. If your job is to persuade the consumer of your briefs, why wouldn’t you give that consumer what she wants? What she says openly that she wants?

I’ll quickly add that one appellate jurist of my acquaintance – I’ll go ahead and say that he’s a learned judge; you know what that term means here at VANA – prefers more fulsome briefs that flesh out every possible issue, leaving him to decide which aspects are crucial to the case. If you want to write long briefs to please that one judge, go ahead. But his colleagues, all of them, are silently begging you to file short briefs.

Again, I’m very happy for these students. The brief that they filed was enough to convince a government lawyer and his or her supervisor, in this one case. But if the law school is teaching them that it’s good advocacy to file page-limits briefs, then it’s failing them in their practical education. That isn’t the way things work in the real appellate world.

If you want to please a law professor, then go ahead and file the long one. But if you want to please a judge, you must learn the self-discipline of paring your argument down so that it’s as concise as it is clear. Page limits are for suckers, and a 45-page brief is not three times as persuasive as a 15-pager.

The CAV says, “Tough”

My appellate pals Juli Porto and John Koehler reported last month about a published opinion from the Court of Appeals that contains a troubling ruling. The issue in Sidar v. Doe is when and how a party must file a Rule 1:1A fee petition. Here’s the setup:

Doe secured a sanction award in circuit court. Sidar appealed but lost in the Supreme Court. That court issued the standard writ-refusal order. Within 30 days thereafter, Doe’s lawyer showed up in the circuit court clerk’s office to file a petition for appellate legal fees – now, there’s a sweet three-word phrase for you – under Rule 1:1A.

The local clerk looked at the court’s file and noticed that the record was still in Richmond. “You can’t file this yet,” the clerk told Doe’s lawyer. “You have to wait until we get the record back.” The lawyer evidently shrugged and said, “Okay; I’ll see you then.”

The record arrived a couple of weeks later, and Doe refiled the fee petition within 30 days after that. The circuit court awarded Doe $35,000 in fees. Sidar appealed.

On April 16, a panel of the Court of Appeals unanimously reversed the award, holding that the petition had to be filed within 30 days after the writ-refusal order. You’ll recall that the winning appellant litigant set out to meet that deadline, only to be stymied by a clerk who didn’t know what he didn’t know, and insisted on enforcing his own misunderstanding of the law.

The CAV panel isn’t heartless; it acknowledges that the clerk’s error “created a substantial hardship for Doe.” That’s the empathy. The next sentence delivers the bad news: “The unfortunate circumstances, however, do not entitle her to relief in this Court.”

What’s a litigant to do? The CAV isn’t touching that problematic query. John Kohler’s essay opines that the lawyer “should have insisted that the clerk accept the filing”; Juli Porto’s recommends pointing out to the clerk the mandatory language of Rule 3:3(a) (“The clerk must receive and file all pleadings when tendered, without order of the court.”).

That’s all correct advice, of course; but what happens if the clerk is both wrong and intransigent? Don’t think for a moment that that doesn’t happen. I’ve experienced it personally, though without the fatal consequences that Doe suffered. For an easy example, one of the local circuit court clerks here in Tidewater demands a personal appearance by the appellant for the filing of an ordinary appeal bond. This is despite the unambiguous language in Code §8.01-676.1(I) to the contrary (“It shall be sufficient if the bond … when executed as required, is filed with the trial court … and no personal appearance in the trial court … shall be required as a condition precedent to its filing.”). When I’m filing a bond in that jurisdiction, I suck it up, climb into my Pony, and drive out there to file the bond personally.

The lesson of the previous paragraph is easy. If the clerk insists on doing it his way, you can choose to duke it out in a legal proceeding, or else let the lord of the manor win the small dispute in his own fiefdom even though you know he’s wrong, and find another way to accomplish your task.

I shouldn’t end this essay without spelling out what your recourse is if you find yourself at a complete impasse with an elected clerk of court in a situation such as Doe’s. Here are the steps that I recommend:

1. Do not blow your cool. If you get angry, the person you’re dealing with is likely to get defensive. A pleasant approach might convince that person to at least listen to your reasons.
2. Don’t do anything on the last possible day. If you know you’re going to file something – especially a jurisdictional something – there’s almost never an excuse for doing it on the deadline day. File it early! That leads to …
3. If a clerk is flatly refusing to do something like this, you may need to get a judge involved. That may involve communicating with a law clerk or a docket clerk in chambers to tell the court that your client is about to lose a legal right because the clerk of court is mistaken on the law. If you start this process before the last day, you can make a record of your attempts to meet the deadline. If the judge won’t intervene, you can undertake to appeal that ruling.
4. Get to know the clerks of court in the jurisdictions where you typically practice. If you’ve met with the clerk personally, and have asked her what she sees as the best ways to handle your docket most efficiently and how you can make her staff’s life easier, that clerk may well recognize that you’re not just another demanding lawyer who insists that mere functionaries must do as he or she directs. You’re catching flies with honey instead of vinegar, and doing so in advance. Don’t scoff at this advice; just do it.
5. In a true emergency, where you just hit a brick wall, consider a petition for a writ of mandamus to require the clerk to accept the filing. The language of Rule 3:3(a) is plainly mandatory; the clerk has no discretion to refuse your pleading. The Court of Appeals may well issue a writ to the clerk, who may no longer like you, but will have to accept your filing.

There may be another method or two that you can use in these situations. If any of my readers have a simple, effective approach, please send ‘em in and I’ll update this essay.

NOTE ON APPELLATE HAPPENINGS

(Posted May 16, 2024) With nothing new from the opinion mill on Ninth Street today, let’s see what’s happening in the appellate world.

New treatise

I learned this week that Justice Steve McCullough has written a book, Virginia Constitutional Law. It’s published by Lexis and is available in hard copy, as an e-book, or as part of your Lexis subscription. As I understand it, the last treatise to cover our constitution was Prof. Dick Howard’s, written half a century ago, so this comes at a good time.

I couldn’t resist checking to see if the book contains a section on substantive due process, a topic on which Justice McCullough’s views and mine diverge. He had some sharp words for the doctrine in a concurring opinion in Palmer v. Atlantic Coast Pipeline, 293 Va. 573 (2017), underscoring that while federal law may recognize the doctrine, the Virginia constitution doesn’t. I noted that while the book does cite Palmer, that passage isn’t in the section on SDP and he doesn’t repeat the critique here.

I commend the book to you, but I have one bit of practical advice. If you choose to cite it in an appeal to the Supreme Court of Virginia, resist the urge to look at him in oral argument and remind him that he wrote the text that you’re relying on. He already knows who wrote the book, and you’ll come across as pandering.

Those sexy appellate bonds

Dan Huckabay of Court Surety Bond Agency has posted a short essay on common problems with appellate bonds. It’s unmistakably a marketing piece for his (quite excellent) company, but I recommend that you read it anyway, for some added perspective on this under-discussed topic.

Recent SCV writ grants

If you look carefully at what at first seems like dry material, you can sometimes find some interesting stories. In this vein, I bring you the writs-granted page of the SCV’s website.

The most recent set of writ panels convened on April 2. Since then, the court has posted eight writ grants on its web page.

One of these, Cridler-Smith v. Director, comes from a habeas-appeal petition filed way back in late June 2023. The Supreme Court heard the writ argument in February and granted the appeal a week ago, on May 9. Most of that long delay resulted from slow work by the Loudoun County Circuit Court Clerk, who didn’t forward the record to Richmond for almost nine months.

Another recent grant, Josephson v. Commonwealth, received a writ on April 30 without, as far as I can tell, appearing on the writ-panel docket. It looks like the court reviewed the petition for appeal and decided immediately that it was worth granting.

The justices also granted an appeal in the unemployment-insurance case of Amazon Logistics v. VEC, on the question whether Amazon’s flex drivers – folks who supplement normal truck-based Amazon deliveries – are employees or independent contractors.

I was surprised to note that the Supreme Court’s case-information page shows that in four of the six criminal writ grants, the Commonwealth didn’t file a brief in opposition. That may be a system glitch, because in my experience, the OAG is careful to file briefs at the stage where the appellee has the most leverage.

Finally, one of the appeals, Baez v. Commonwealth, portends a ruling on the admissibility of police body-camera footage. I’m definitely not a criminal-law jock, but this looks to me like an interesting question.

The historical context of writ grants

Of the eight recent grants, six appear to be either criminal or habeas appeals. For the year, we’ve seen nine criminal/habeas writs and six in civil appeals. I note that we thus have 15 grants from the first two (out of six) writ-panel sessions of the year. That extrapolates to something like 45 grants over the course of the year.

I’ll post a more fulsome essay on the SCV’s statistics soon, but for now, I’ll put that pace of 45 grants in context. Last year, the court received 956 new filings and granted 36 writs, an overall grant rate of 3.8%. Ten years ago, in 2014, we saw 1,918 new filings and 131 grants, for 6.8%. Twenty years ago, in 2004, there were 2,976 new filings and 174 grants, which comes to 5.8%. And thirty years ago, we saw 2,240 new cases and 337 grants – a whopping 15% grant rate.

You want more numbers? I’m your man. In 1984, the court received 1,582 new cases and granted 259 writs (16.4%). In 1974, the numbers were 212 grants out of 1,256 filings, for 16.9%. In 1964, there were 798 filings and 229 grants, or 28.7%. And 1954 – that’s as far as I can go back on this ten-year cycle – the court took in just 304 new filings and granted 132 writs for an astounding 43.4% grant rate.

I emphatically do not have the power of foresight; if I did, I’d be picking lottery numbers instead of posting this analysis, and I’d get far fewer Death Stares from The Boss. But my imperfect future vision tells me that you should expect this tiny grant rate to become the new normal. The justices of the Supreme Court of Virginia have simply decided to grant fewer appeals; they’ve chosen to hear fewer cases on the merits. If you’re appealing to the Court of Appeals of Virginia, you’d better make the most of that opportunity, because the SCV is handing out writs with historically small tweezers now.

APPELLATE MUSINGS ON A SIGNAL DAY

(Posted March 28, 2024) The weather here in Tidewater is dreary; an enduring, driving rain with no meaningful sign of Apollo all day. But it’s still a happy day because several men around the continent will utter the priceless phrase “Play ball!” today. My beloved Dodgers entertain a certain avian group from eastern Missouri. I know better than to start dreaming of the postseason already; I’m just delighted that baseball is back.

I’ve long thought that Opening Day should be a national holiday. I infer that The Robes have declared an informal one, because we have nothing new today out of the Supreme Court of Virginia. Let’s take a look at some other happenings in our field.

Whither 302 Va.?

Some of us dinosaurs still subscribe to print editions of Virginia Reports. I prefer to read cases in a physical book, and you have to admit that a bookcase full of the reporters looks prettier than its cyber-parallel, whatever that is.

In addition to getting the hardbound volumes, we also receive their paperback predecessors: the advance sheets. These are preliminary publications that give you an early look at the reporter’s paginations for the reported cases. Traditionally, three sets of advance sheets make up a single hardback volume.

I’m now wondering whether the most recent sets of advance sheets have fallen into the Appellate Bermuda Triangle. My office has received the hardbound volume 301 of Virginia Reports, but no advance sheets for anything since. The most recent reported decision we have is Arch Insurance v. FCVbank, 301 Va. 503, decided December 29, 2022 – fifteen months ago.

Several years ago, the former publisher of the advance sheets abruptly stopped publishing them. We subscriber/dinosaurs were left in limbo for a time, but Thomson Reuters picked up the contract and has published them ever since. Now I’m wondering if something comparable has happened.

Before posting a bold note of warning like this, I decided to check another source to be sure. I ran a Lexis search for “302 Va. 1” but got no results. That tells me that there’s no official-reporter pagination yet for the first case decided in 2023, Forness v. Commonwealth, handed down January 19 of that year. Even if you solely use online legal research, the best you can do for that case now is to cite it as 882 S.E.2d 201.

If any of my readers are heading off on a cruise to Bermuda anytime soon, I’d be grateful if you’d keep an eye out for those missing advance sheets. Tell them I miss them.

Update April 2: Never doubt the potential for a well-timed VANA post to shake up the powers that be. Four days after I posted this note, Advance Sheets #1 for 302 Va. arrived. I, of course, take full credit. Sure enough, the volume begins with Forness; it includes the first 11 published decisions of last year, running through Suffolk School Board v. Wahlstrom, decided April 27, 2023.

This raises the question of how many months’ worth of decisions volume 302 will contain. In recent years, we’d get two hardbound volumes per year. My best guess right now is that 302 Va. will cover all 28 of the published opinions released in 2023. How rare is it to get a full year’s’ worth of opinions in a single volume of the reporter? Once upon a time — specifically, from the late 1950s through 1981 — it happened quite frequently But starting with 222 Va., the reporter segregated a year’s worth of rulings into two volumes. A peek at the hardbound volumes on the library shelf will tell you why: The books were getting so large as to be unwieldy. Volumes 219 through 221 averaged over 1,200 pages per book.

First Quarter D-GI

New year; new David-Goliath Index. The quiet passing of today’s opinion day means that we have three months’ worth of decisions in the books. (Given the note immediately above this one, I use the term books loosely.) It’s time to see how our familiar litigation adversaries have done in the first quarter.

Among the published and unpublished decisions of the Supreme Court this year, I count three wins for our Davids and five for our Goliaths, for a very preliminary D-GI of 37/62. I offer three observations about this: Goliath is still winning most of the SCV appeals; David is doing a little better than usual, in that he isn’t losing quite as often as before; and you can’t draw any meaningful conclusions where the sample size is just eight decisions. This last point essentially erases the first two. Let’s see how things develop as the year unfolds.

State court stats are out

I am, as usual, very grateful to the clerks of the two Virginia appellate courts – Muriel Pitney in the SCV and John Vollino in the CAV – for sending me copies of the courts’ year-end statistical reports, now hot off the electronic presses. For a stats geek like me, this is a wonderful trove of analytical goodies. I’ll take the time to go through them, glean what I can, and post a plain-English report here in the coming days.

TWO SHORT APPELLATE NOTES

(Posted March 22, 2024) With no new business in the opinion mill at Ninth and Franklin this week, let’s take a look at a couple of developments this week.

April writ panels

The Supreme Court has posted a list of cases on the April 2 writ-panel docket. There are 46 appeals on the list, a healthy uptick from recent panels. (There were 29 cases in February, 28 in December, and 36 in October.) The number of appeals on panel dockets is a fair indicator of appellate business overall at the court, so this jump is nice to see.

A return to the keyboard

I was delighted to note yesterday that my appellate colleague and friendly competitor, John Koehler, has returned to posting analysis of CAV decisions after an absence of several weeks. John is a former court insider – something I never was – and he writes engagingly, making you want to come back. Instead of declaring analysis bankruptcy and just starting afresh, he’s catching up on the decisions that he missed. Welcome back, my brother.

This raises a question that I get occasionally: How do we appellate blawgers make time for analysis while handling a caseload? Contrary to the usual phrasing, you can’t “make time”; Chronos has stopped manufacturing that, and we get the same 24 hours in a day that you, the king of England, and every one of his lords and commoners get. Nor can you “find time.” The only way to do this right is to set the time aside, preferably in advance; you “block time.”

There will be occasions where life intervenes. Someone schedules a hearing for an opinion day and you can’t move the argument date; you get an invitation for an irresistible speaking engagement; you need to attend a memorial service (preferably not your own). In those situations, you shrug and resolve to make it up, just as John is commendably doing here.

Elsewhere, Juli Porto continues to provide her readers with terrific nutshell summaries of new CAV decisions; Thomas Chappell, a former law clerk to the current SCV chief justice, posts an occasional essay on highly useful topics; Jay O’Keeffe posts dazzling notes when he can. John O’Herron posted actively through last summer; I hope he’ll resume analysis soon. Here at VANA, the next post is always just an opinion day away.

REPORT ON TWO IMPORTANT APPELLATE ITEMS

(Posted March 18, 2024) There’s significant appellate news out of Richmond, coming from opposite sides of Ninth Street.

A tweak to the preservation-rescue statute

I learned today that the General Assembly has passed, and the Governor has signed, a bill that expands slightly the wording of the appellant’s old friend, Code §8.01-384. For years now, that statute has eliminated the need for a party to keep renewing arguments on each adverse ruling again and again until final judgment. The general premise is that once a judge rules against you, you aren’t deemed to have waived the argument unless you expressly do so.

Supreme Court caselaw has generally embraced this lifeline against a ghastly Rule 5:25 death. There are commonsense exceptions: A litigant can still waive an argument where he “has abandoned the objection or has demonstrated by his conduct the intent to abandon that objection.” That’s from Kellermann v. McDonough in 2009. But generally, the court has applied the saving provision where the appellant has received an unmistakable adverse ruling and hasn’t backed off.

Three years ago, the Supreme Court issued a remarkable opinion that shouldered aside the statute. In Lucas v. Riverhill Poultry, 300 Va. 78 (2021), a judge ruled in limine that the plaintiff could not use a proposed expert witness at the eventual trial. The circuit court added, in language that I found superfluous, that its order was “without prejudice to plaintiff, by counsel, moving the Court to reconsider its ruling based on developments at trial.”

How is that superfluous? Because rulings made days or weeks before trial – come to think of it, even rulings made during trial – are interlocutory, meaning the court can always revisit them until 21 days after final judgment. A ruling like that is by definition without prejudice to a party’s right to ask the court to rehear the matter while it retains jurisdiction.

At the Lucas trial, the plaintiff didn’t renew the objection, knowing that he had the protection of §8.01-384 in his back pocket. He never expressly withdrew or waived the earlier argument, so the statute should allow him to appeal the exclusion of the expert.

Except the Supreme Court didn’t see it that way. It described the original ruling as “preliminary” and held that the plaintiff “deprived the circuit court of an opportunity to make a final ruling on the admissibility ….” That resulted in a Rule 5:25 waiver.

I recall being astounded at this opinion, and my pals in the appellate guild were, too. We foresaw the need, after Lucas, for each trial litigant to reassert at trial each issue on which the court had ruled before trial, on pain of a waiver ruling that seemed to fly in the face of the statute.

But now the legislative cavalry has ridden to the rescue. The new law, HB901, adds a provision that a litigant need not “move for reconsideration in order to preserve his right to appeal a ruling, order, or action of the court, even if such ruling, order, or action is without prejudice to a motion to reconsider.” The specific language makes it unmistakable that the bill was expressly designed to reverse the Lucas ruling.

My one caution is that there’s no emergency clause in the bill, so the new terms in the statute won’t take effect until July 1, 2024.

New proposed rule on temporary injunctions

As I noted in an essay here back in 2013, Virginia has never adhered to a specific set of rules, or even guidelines, for a trial court to consider in deciding whether to award temporary injunctive relief. We have an unhelpfully vague statute that requires the chancellor to be “satisfied of the plaintiff’s equity,” but nothing like the specificity of the Winter v. NRDC doctrine in federal courts. That’s left lawyers and circuit court judges trying their best to divine a Virginia standard.

If you’re one of those frustrated litigants or jurists, be of good cheer: The Robes have heard your cries of anguish. The Supreme Court of Virginia has posted to its website a proposed new Rule of Court that would specify the factors that go into temporary-injunction analysis. In reviewing it, you’ll see a lot of highly familiar language, especially if you’ve litigated injunctions in federal courts.

The court has set a deadline of May 1, 2024 to receive public comment on the draft rule. This is what you’ve been waiting for; take them up on the offer to participate in the decisionmaking process by submitting your comments. Here, I’ll even make it easy for you: The e-address for comments is scvclerk[AT]vacourts.gov, with the @ symbol in place of the bracketed characters. You’ll need to insert, “Draft Rule 3:26” in the subject line.

REPORT ON APPELLATE DEVELOPMENTS

(Posted March 9, 2024) A quiet week at Ninth and Franklin gives us time to once again scan the appellate landscape for news.

Legislature fills appellate seats

On Thursday, the General Assembly elected two new judges to seats on the Court of Appeals of Virginia. Judge Bob Humphreys retired at the end of 2023 and Judge Glen Huff will do the same at the end of this year. That, in case you’re keeping score, would deprive the Commonwealth’s largest city, my beloved Virginia Beach, of 100% of its representation on the court. Fortunately, it’s not to be: The legislature has chosen Circuit Court Judges Steve Frucci (also from Virginia Beach) and David Bernhard (Fairfax) to fill the vacancies. Judge Frucci will start his new job later this month, while Judge Bernhard will step up next January. I know both men and am very happy at this news.

Appellate bonds in the news

Level with me: Did you ever expect to see a header like that? Suspending bonds generally occupy one of the dusty sub-basements of public attention, far from the public eye. We appellate geeks know about them, but the knowledge that we have is arcane by public standards.

These days I find that I’m answering questions from my pals about the purpose, effect, and workings of these bonds. The bonds are in the news because of former President Trump, of course; he has recently suffered adverse monetary judgments aggregating to nearly half a billion dollars. I read yesterday that he has secured a bond for the smaller of the two judgments, posting one with a penalty of around $90 million. The larger judgment, in the $400 million range, will present greater difficulty, in part because few bonding companies will be willing to take a risk like that.

In one important respect, the bonding situation would be different if the judgments had come down in our fair Commonwealth. Code section 8.01-676.1(J) caps suspending bonds at $25 million. That’s per judgment, of course, so if the two cases had both arisen in Virginia, he’d still be on the hook for $50 million worth of security. But not a half-billion. 

My best guess is that this limitation was part of Aunt Virginia’s efforts to be seen as a business-friendly state. The Trump judgments illustrate the weakness of this provision, perhaps unforeseen by the 2000 General Assembly that inserted the cap. A judgment creditor should be entitled to adequate security if the debtor wants the privilege of appealing without paying the judgment (or being subject to execution). The Virginia system would allow a judgment debtor in this situation to bond off a tiny portion of a huge judgment, giving the creditor no security at all for the remainder of what the trial court says it’s entitled to recover.

A bittersweet moment

A week and a half ago, I appeared in the Supreme Court of Virginia to argue a merits case. It was a medical-malpractice appeal about a refused jury instruction. The primary questions are preservation of the appellate issue and whether the subject of the offered instruction was covered by other instructions.

As appeals go, that doesn’t sound all that unusual. It’s significant for me because, in all likelihood, that will be my last argument to the full court before I call it a career early next year. I foreseeably may rise to argue a petition or two to writ panels later this year, but given the time it takes for an appeal to mature to a merits argument these days, I can’t see another one on a short-enough horizon.

I owe a debt of gratitude to the Chief Deputy Clerk, Basil Tsimpris. He was kind enough to place the case in a privileged position, the last case of the day. That meant that I got to experience the honor accorded to last-case advocates: The justices came down from the bench to shake hands with counsel at the end of the argument. The other two appellate courts in Richmond — the Court of Appeals of Virginia and the Fourth Circuit — do that after each oral argument; but the justices do so only at day’s end.

As I’ve mentioned often, the justices are all very pleasant people, and they were enormously gracious to me when they greeted me on this occasion. For a very long time, I’ll treasure the memory of those two or three minutes.

After the justices filed out, heading back toward their robing room, I packed up my satchel and then stepped briefly back to the lectern, lingering for a moment. I thought of the roughly two dozen justices before whom I’ve appeared over the years — many of them even then gazing down wordlessly from the walls beside and behind me — and remembered their consistent courtesy to me.

The six square feet behind that lectern — a space roughly three feet wide by two feet deep — really are the best place I know to practice law.

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

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

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

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

Federal appellate webinar

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

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

New hope for the demurrer appeal

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

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

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

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

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

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.

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-19^th 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.

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 …

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 13^th, 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 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.

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.

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.

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 3^rd, 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.