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 The most recent opinion from the court arrived five weeks ago, on July 20; the last unpublished order was June 1.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.