All posts by Developer

Update on SCV Dockets



(Posted May 19, 2023) Last week, I posted a short note on the coming June session docket in the Supreme Court of Virginia, guessing that it would contain just five granted appeals. I was overly optimistic; the docket is out, and there are only three cases on it. The court will convene and adjourn for the summer all within an hour and a half on the morning of June 7. This will be the second session this year with fewer than five appeals.

There’s hope on the horizon, though; based on the series of grants thus far this year, it now looks like we could see five or six – maybe even seven – appeals in the September session. But that’s probably the end of the good news, as November may well be barren.

How do I know this? Well, in truth, I don’t. But today is the Supreme Court’s May writ panel session. Appeals granted in this month’s Gathering of the Robes typically fuel the November argument docket. And the lineup for today is dismayingly small – just 24 hopeful appellants will seek precious grants today. For comparison, on April 4 the justices heard writ arguments in 36 cases and granted just one writ.

For those of you in the appellate guild, we are not in a growth industry these days. Let’s hope for a brighter 2024. It seems a little early to be looking to next year already, but that’s what we have to work with.


Analysis of May 18, 2023 Supreme Court Opinion



(Posted May 18, 2023) For the second time in three weeks, we get a significant decision interpreting Virginia’s Freedom of Information Act. The case is Gloss v. Wheeler and arises in Prince William County.

Wheeler chairs the County’s Board of Supervisors. When protests in Manassas and Gainesville arose – eventually growing into what county officials called riots – five days after the killing of George Floyd by a Minneapolis police officer in May 2020, county police officials notified members of the Board. The Board chair met with police shortly after noon the next day, May 31, and then attended a meeting of the police department’s Citizens’ Advisory Board at 1:00. Four other members of the Board also attended; the other three members weren’t made aware of the meeting.

At the CAB meeting, the Board of Supervisors chair addressed the audience and another Board member asked the police chief for an “after-action report” on events of the previous evening. At 4:00 that afternoon, all eight members attended a properly noticed emergency meeting of the Board to discuss the disturbance and the police response to it. At this meeting, the three excluded members of the Board learned of the CAB meeting that had begun just three hours earlier.

Several citizens sued the five attendees, claiming that their appearance at the CAB meeting violated the open-meetings requirement of FOIA. At the ensuing trial, the circuit court granted a motion to strike the citizens’ evidence, concluding that the CAB meeting was only for informational purposes and not for the conduct of public business.

That ruling draws spirited debate among the justices this morning. By a 5-2 vote, the Supreme Court reverses and sends the case back to circuit court for a retrial. Justice Russell, writing for the majority, cites the legislative presumption of openness and the required “thumb on the scale” in favor of expansive interpretation of FOIA protections. The majority rules that “a topic is ‘public business’ for the purpose of Code § 2.2-3701 if it is either ‘pending before’ the public body at the time or it is ‘likely to . . . come before it in the future.’”

The chief justice, joined by Justice Powell, reasons that the majority’s rule would stifle open discussions, not prompt them. The dissenters perceive that there’s a difference between public business and a mere topic of discussion, so even an expansive reading of FOIA wouldn’t encompass the meeting at issue here.

Here are a couple of things that caught my eye in my stroll through the opinions. First, the majority cites a concession by the supervisors’ lawyer in oral argument that the majority’s reasoning would “logically follow from a ‘literal reading’ of” prior caselaw. Appellate advocates are well aware of the dangers of concessions made at the lectern; many an appeal has found itself scuttled by a lawyer who wasn’t circumspect enough to decline to concede something.

But the dissent doesn’t see it as a concession at all. Here, judge for yourself:

The unprecedented definition which is being criticized in this dissent is the assertion that certain topics constitute public business. The response perceived and cited by the majority as a concession (to the majority’s assertion that a topic can be public business regardless of the context in which it is discussed or by whom) was in response to a question regarding whether business that was likely to be on the agenda in the future could be public business, and the defendants replied: “That is a literal reading of Beck and I urge the Court to look at that case and that context when evaluating this case because that was a very different . . . that was a very different set of circumstances there.” That statement by defendant Board members is not a concession that a general topic can be considered to be public business.

In fairness, I agree with the dissent that this is far from an unqualified concession; the lawyer for the supervisors did what he could to distinguish the prior caselaw. This highlights the risks attendant to answering “will you concede …” questions in oral argument with anything less than a robust refusal to concede.

One other significant point in my mind: The citizens brought this lawsuit in 2020, shortly after the CAB meeting. After the trial but before entry of final judgment, the supervisors moved the court to reconsider its ruling, which it had announced from the bench at trial. The circuit court entered an order on May 18, 2021 that denied the reconsideration motion; this was evidently the final order in the case.

I’ll do the math for you: May 18, 2021 is two years ago today. It took this case two full years to proceed from final judgment below to a final appellate judgment. Note that because the citizens appealed in 2021, this case didn’t get diverted to the Court of Appeals first; it went straight to the Supreme Court.

This, my treasured readers, is what I call a problem. Here’s the timeline, including the approximate time elapsed at each stage:

  • May 18, 2021 Circuit court enters final judgment
  • October 12, 2021 The record arrives in Richmond (5 months)
  • April 21, 2022 Writ granted (6 months)
  • July 7, 2022 Merits briefing complete (2½ months)
  • November 1, 2022 Oral argument in the November session (4 months)
  • May 18, 2023 Final appellate ruling (6½ months)

That’s how you get to two years. Most of the earlier entries on this list are fairly normal time spans, though they each – other than the merits briefing – seem to be toward the longer end of the normal range. The most significant outlier is the last one. The Supreme Court entertained oral argument in this appeal 28 weeks ago, one of the longest delays I’ve seen since the court moved to rolling release dates for opinions in 2015.

I hasten to add that this case has features that tend to lengthen the time for a decision. It’s a matter of significant public interest, and it features a lengthy dissent. Where there’s a split vote, the authors of the majority and dissenting opinions share their drafts with each other, allowing the other to respond in writing. That often generates new passages that themselves call for revisions in the opposite draft; the process goes back and forth until the two authors are satisfied with the product.

But make no mistake: Judging from the statistics that I keep, including a copy of each argument schedule going back almost eight years, a six-month delay is extraordinary. I mention this not to be critical but to inform my readers who advise appellate litigants. The time it takes to resolve an appeal can be quite long, and your clients will want to know that.


A Few Appellate Tidbits



(Posted May 11, 2023) The Supreme Court didn’t issue any published opinions this morning, so here are a few minor notes.


2023’s first unpub

The Robes issue the first unpublished order of the year today, in Little v. Clarke. It’s a habeas appeal in which the inmate appeals the dismissal of his petition. The justices reverse that order because the circuit court decided the petition without conducting an evidentiary hearing to resolve a factual question.


Shall goes down again

The court issued an order on Tuesday that addresses the use of the troublesome word shall in the rules relating to attorney-disciplinary proceedings. That, at least, is what the State Bar’s press release promises. But when I searched the new rule for the word shall, I got zero entries. There are, however, 331 uses of the word must, so that’s probably what’s going on here.


June session docket looms

The Supreme Court will convene the week of June 5-9 for the fourth session of the year. The argument docket should be out any time now, and we’ll see how full it is. Judging by the writs granted in February, I’m guessing we’ll have five appeals that week. The court may take up all five in one day, or break the docket into two days.

In the first three sessions of this year, the justices entertained oral argument in just 15 granted cases – four in January, eight in March, and three last month. If my guess about June is right, then with only two more sessions left to go, only twenty appeals will have been argued on the merits in 2023. And the September session might only have one case on it, based on the single writ grant in the April writ panels. We are in historically low territory.


Analysis of May 4, 2023 Supreme Court Opinions



(Posted May 4, 2023) Popular culture will focus today on the lighthearted Star Wars Day (May the Fourth be with you). I, too, mark this day, but for a very different reason. I ponder the seething fury in Neil Young’s mind as he penned these stirring words of accusation:

Gotta get down to it;
Soldiers are gunning us down.
Should have been done long ago.
What if you knew her and found her dead on the ground?
How can you run when you know?

RIP Allison Krause, Jeff Miller, Sandy Scheuer, and Bill Schroeder, the tragic Four Dead in Ohio.


Real property

Dirt lawyers will appreciate the important holding today in Oreze Healthcare LLC v. Eastern Shore CSB, from the Portsmouth Circuit Court. It’s a claim by a former landlord for water damages to leased property, asserted against the tenant.

Oreze owned the property and leased it to a local community services board to provide care for people with behavioral health issues. The property sustained damage when pipes froze in the cold winter of 2017-18. Shortly after the end of the tenancy, the owner sued the board to recover those damages.

While the case was pending, the owner sold the property, conveying title by general warranty deed. The tenant learned of the sale and moved for summary judgment, arguing that the broad language of the deed meant that the landlord had conveyed its damages claim and no longer had standing. The circuit court agreed and dismissed the case.

The Supreme Court today unanimously reverses that ruling and sends the case back for trial. Justice Chafin’s opinion notes that this isn’t a case of merger by deed, because those apply to claims between the parties to the deed. The tenant wasn’t a party to the conveyance. The court reaches back to English common law to conclude that the damages claim was a chose in action, not a part of the real estate, so it did not convey with the land unless the deed expressly so provided.


Attorney discipline

I’ve noted before that appeals in disciplinary proceedings against lawyers generate some of the most painful opinions for me to read. Today’s decision in Brown v. Virginia State Bar is no exception.

A client engaged the lawyer here to represent her in several matters arising from her marital difficulties. The client was particularly vulnerable, in that she was a substance and alcohol abuser. Her husband accused her of adultery, and today’s opinion from Justice Mann will lead you to conclude that she engaged in multiple adulterous relationships.

Early in the engagement, the lawyer appears to have provided some solid advice and representation; as I see it, he handled the early phase of the case capably. But the attorney-client relationship turned flirtatious and then salacious, as a string of text messages amply demonstrated. Things culminated with a lawyer-client meeting at a hotel – the lawyer declined to convene at his office because “I don’t want to be rushed” – that appears to have fulfilled their fantasies.

Alas, an employee at the hotel knew the client’s husband and alerted him. The husband quickly contacted a private investigator, and the PI obtained solid evidence of the tryst. The husband later confronted the lawyer with what he had and threatened a Bar complaint; the lawyer quickly withdrew from the representation, and the client proceeded through the divorce case, up to and including the final decree, pro se.

This disciplinary proceeding ensued, and the Bar certified charges of violations of Rule 1.7 (conflict of interest) and 2.1 (advisor’s independent professional judgment). A three-judge panel ruled in the lawyer’s favor on the second charge, but upheld the first one, imposing a public reprimand with terms.

The lawyer appealed and the Bar cross-appealed the finding on Rule 2.1. The Supreme Court today affirms the judgment, finding that the record amply supports a finding that the lawyer had a conflict of interest when he developed a sexual relationship with the client. In this context, the liaison exposed the client to a possible legal detriment, because it was adulterous. This would hurt her in her divorce proceeding, and (believe it or not) it’s still a crime in Virginia, albeit one for which prosecutions are quite rare. The court shrugs off the lawyer’s suggestion that the wife would have defenses in the divorce case, holding that it’s enough that he created a legal detriment.

On the Bar’s cross-appeal, the justices take an unusual approach. The Bar had asked the Supreme Court to impose a finding that the lawyer had violated Rule 2.1, but didn’t ask for any added sanction beyond the existing public reprimand. Justice Mann writes that this puts the court in a bind, because the absence of a different sanction means that nothing would change if it reversed the panel’s decision. The court thus declines to address the Bar’s cross-error. This is a good object lesson in shaping appellate briefs: Be careful what you ask for, and that you actually ask for something.

At the beginning of my legal career, I promised myself three things: I would never get romantically involved with a client, never get romantically involved with a coworker, and never drink while I was working. A dose of that policy might have helped the lawyer here; surely there had to be a point at which a voice in the back of his mind whispered, “You know, this might not be such a brilliant idea …” But he wasn’t listening.

That being said, I’ve long recognized the wisdom in a saying that my late father-in-law, Bob Gelb, was fond of: You can’t put your head on someone else’s shoulders. I accordingly will not pile on any condemnation here. Because the opinion is published, the lawyer’s temporary folly is something that he’ll have to live with, and that should be enough for anyone.

One final note: I saw that the lawyer was represented on appeal by my appellate pal Chris Holinger. From what I can see, Chris did a commendable and professional job here without a great deal of material to work with.


Appellate News and Notes



(Posted May 3, 2023) Here are a few tidbits that should get you through until tomorrow, when I hope to receive one or more love letters from Ninth and Franklin.


SCOTUS to reevaluate Chevron

Those Other Robes have granted cert in a case that may spell the end of a roughly 40-year-old doctrine known as Chevron deference. In the 1980s, the Supreme Court ruled that courts should defer to regulatory agencies’ interpretation of ambiguous statutes. That earlier Court noted that regulators have subject-matter expertise that judges, as legal generalists, do not, so better-informed opinions ought to prevail unless they’re unreasonable.

I’m not an admin-law geek, so mine may be one of the opinions that you should discount. But I’ve always been a bit leery of Chevron deference, because it looks to me like an abdication of the courts’ ultimate duty to “say what the law is,” to borrow a phrase from a famous Virginian. Resolving statutory ambiguities is a key part of every jurist’s job description; courts have tools (rules of statutory construction) to deal with those problems.

The new cert grant will be an exercise in delayed gratification for courtwatchers. Sittings for OT’22 are complete, so this new case – Loper Bright Enterprises v. Raimondo – will go on the argument document for the term that begins next October. That portends a ruling on the merits in the first half of 2024.


Glacial writ grants

My loyal readers know well that I’ve been following the slow pace of appeals awarded lately by the Supreme Court of Virginia. Part of the explanation – but only part! – is the recent creation of a universal appeal of right in the Court of Appeals of Virginia. That has interrupted the flow of incoming business in the Supreme Court.

In a January 25 post, I reported on the October and December writ panels, which generated only a handful of writs. I can now report that the February 14 panels awarded five appeals, while the April 4 panels appear to have granted only one petition for appeal out of the 36 on that docket, a grant rate of about 3%.

This means that one-third of the Supreme Court’s 2023 writ panels are in the books, and we have six writs to show for it. I still hold out hope that the pace will accelerate a bit in the second half of the year, but for now, that’s wishful thinking. We’re on pace for roughly 20 writ grants in calendar 2023. I’ve been following the court long enough to remember well when a single session featured 30 or more granted cases.


The other shoe drops in Raleigh

On March 9, I metaphorically crossed the Commonwealth’s southern border to report on developments in the North Carolina Supreme Court. In 2022, the court ruled by a 4-3 margin that the state’s legislative maps were improperly politically gerrymandered to favor Republicans. Those older maps allowed the GOP to win ten of the state’s 14 Congressional races, despite an almost even split in the statewide vote.

Last November, Republicans captured a 5-2 majority of the court in the general election. Shortly after the new justices were sworn in this past January, the losing litigants in the previous year’s appeal sought rehearing; by a 5-2 vote, the new court granted it. That strongly suggested a different outcome in the case, a change engendered solely by the electoral result.

Last week, the court issued an opinion holding that gerrymandering is exclusively a legislative function that’s beyond the reach of the courts. The vote was – no surprise here – 5-2, with all Republican jurists voting with the majority. The two dissenting Democratic justices issued a scathing dissent that concluded with a prediction that the majority holding won’t last forever.

I’ll repeat my conclusion from the March essay: This is a good reason to celebrate that we here in the Commonwealth don’t select our judges by popular election. These proceedings in the Tar Heel State fuel the firestorm of complaints about the politicization of the judiciary, a phenomenon that extends well beyond North Carolina’s borders.


Analysis of April 27, 2023 Supreme Court Opinion



(Posted April 27, 2023) Today is the “birthday” of one of my favorite short piano works. On this date in 1810, Ludwig von Beethoven sat down to compose a tune that he named “Für Elise,” honoring a woman whose identity is probably lost to history. Between this work and Debussy’s “Clair de Lune,” I find that I can derive immense pleasure in a short period of listening.


Freedom of Information

There’s one published opinion from the Supreme Court of Virginia today. In Suffolk School Board v. Wahlstrom, the justices address a citizen’s exclusion from a school board retreat.

The retreat was always supposed to be open to the public; the board’s public notice said so. Scheduled for July 22, 2021, it fell three weeks past the date when the Governor’s pandemic orders had expired, but the board still felt it necessary to ensure social distancing. The meeting occurred at a large room in a local school building, with well-spaced round tables spread through the room.

Wahlstrom is a citizen who came to the meeting. She discovered the tables in the designated room and sat down at one. A staffer then told her that the tables were reserved for staff; she accordingly walked over to a spare chair at the side of the room and sat there.

If that had sufficed, we wouldn’t have litigation and hence no opinion today. Someone from the board’s staff informed Wahlstrom that the pubic couldn’t sit in the meeting room; the board had instead arranged for a video feed of the meeting, broadcast into a nearby room. She was invited to go to that room to watch.

No dice, she said, insisting that FOIA permitted her to attend the meeting in person. That prompted the board chair and the division superintendent to approach her and order her out of the room. When she still resisted, a police officer was summoned to escort her, not merely to the other room but out of the building.

That predictably led to a lawsuit. Wahlstrom sued the board, the chair, and the superintendent, seeing injunctive relief, civil penalties, and attorney’s fees. She sued the two officers in their individual and official capacities.

The circuit court sustained a demurrer to the individual-capacity pleadings, holding that FOIA’s obligations run to public bodies, not to individuals. But it permitted the remaining claims to proceed to a bench trial. At the conclusion of that proceeding, the court ruled in Wahlstrom’s favor as against the board, but held that the officers, in their official capacities, had not willfully and knowingly violated FOIA. The court awarded $19,000 in fees against the board and enjoined it from future exclusions of citizens.

The Supreme Court affirms this judgment today. It adopts the trial court’s factual findings, including its conclusion that the board acted “shamefully” in having Wahlstrom escorted out of the building. The court notes that this very school board has had to answer for multiple previous FOIA violations, a fact that assuredly didn’t help its cause at trial or on appeal.

The primary ruling today for FOIA purposes is that the open-meeting requirements generally require – with some exceptions not relevant here – that the public be permitted to be physically present at these meetings. Providing a video feed in this situation didn’t suffice. As I read the opinion, I considered one reductio ad absurdum that the justices don’t mention today: If a video feed were permissible, what’s to stop a public body from prohibiting all in-person attendance, merely by broadcasting the meeting on television or a streaming service? After all, there’s no meaningful difference between watching a video feed from the next room and watching it in your living room.

The Supreme Court today approves of the circuit court’s findings and its imposition of an injunction against future violations. It next turns to Wahlstrom’s cross-error to the dismissal of the individual-capacity claims.

FOIA imposes certain obligations upon public bodies. The officials convinced the circuit court that, because individuals aren’t public bodies, there was no viable claim against them. The Supreme Court finds that this ruling was erroneous, because in its penalties section, FOIA refers to civil penalties against individual actors who are government officials, including members of public bodies. Thus, even though there’s no express obligation in the statute placed upon persons, they can be sued for FOIA violations.

Just as you’re thinking that this will mean a remand, the Supreme Court affirms anyway, thanks to our old pal, the harmless-error doctrine. In its final order adjudicating the official-capacity claims, the circuit court found, as a matter of fact, that the officials didn’t willfully and knowingly violate the act. The Supreme Court rules that that finding disposes of any individual-capacity claims that could have been tried.

Justice Wes Russell pens today’s opinion for a unanimous court.


Notes on Current Appellate Developments



(Posted April 26, 2023) I have time for three notes on appellate matters that have caught my eye recently.


New entry in the Virginia blawgosphere

My pal Juli Porto up in Fairfax has begun posting essays on appellate matters in the Commonwealth. She’s focusing on the Court of Appeals of Virginia for now, though she has a couple of entries on more general appellate topics.

Elsewhere, John Koehler continues to crank out solid and engagingly written prose on new CAV decisions. Jay O’Keeffe returned to action after a 17-month layoff with a flurry of fascinating posts in January and February, but has been quiet for maybe ten weeks now. I hope he’ll be able to return to the keyboard soon. The Virginia appellate scene is better off with a chorus of voices and opinions.


Interesting CAV order

A pal up in the State of Northern Virginia has sent me an unpublished order issued last week by the Court of Appeals of Virginia. The order rejects a mandamus petition filed by the Virginia Citizens Defense League, challenging a rule of the Fairfax County Circuit Court. The subject is one that will interest appellate lawyers: brief length.

Here’s the setup: Supreme Court Rule 4:15 deals with motions practice in the circuit courts. Subsection (b) includes this provision: “Absent leave of court, the length of a brief may not exceed 20 pages, double spaced.” The judges in Virginia’s most populous jurisdiction have decided to cut that back just a bit; by local rule, they impose a five-page maximum on briefs in the absence of leave to file a longer one.

How can they do that, you ask? Good question; Code §8.01-4 authorizes trial courts to prescribe rules, but bars any such rule from contravening a Rule of the Supreme Court of Virginia. The Fairfax judges appear to have countermanded Rule 4:15’s express 20-page limit.

The VCDL wanted to file a brief that exceeded five pages, but that would conflict with the local rule. In a mandamus petition filed in early January, it asked the Court of Appeals to strike down the local rule.

In the Court of Appeals, a curious thing happened: The panel assigned to decide the petition comprised three senior judges. No active member of the court participated. I don’t know if all 17 of them recused themselves, though I really doubt that. There’s no explanation in the unpub and no mention of a recusal order on the court’s case-information page. That curious descriptor will have to be the end of the story on this.

Last week, the panel handed down its unanimous decision, including this holding: “Upon consideration of the verified petition, we conclude that mandamus does not lie.” The panel rules that the local rule’s promulgation was a discretionary act by the circuit court’s judges, and mandamus only lies to address ministerial duties. Additionally, mandamus operates prospectively only, and the CAV panel perceives that what the petitioner seeks here is to undo a past act.

There’s one more basis for the ruling. The court cites well-established caselaw that an equitable remedy like mandamus isn’t available where the petitioner has an adequate remedy at law. “Petitioner’s clear legal remedy is to invoke the respondent’s established procedure for leave to file an over-sized brief, not mandamus.”

This is great stuff for rules geeks. One might wonder whether the petitioner might have had more luck with a prohibition petition, which asks a court to direct a lower tribunal to stop exceeding its jurisdiction. The VCDL might have characterized the promulgation of the local rule as acting in excess of the circuit court’s jurisdiction, and that, in turn, may have drawn a different view from the panel. For now, we’re left in the realm of speculation on that.

Because the order is unpublished and isn’t part of a normal appeal, it isn’t available on the court’s website. If any of you, my treasured readers, would like a copy, write to me and I’ll forward it to you.


SCOTUS ethical developments

The New York Times is reporting that the Chief Justice of the United States has declined an invitation to appear before the Senate Judiciary Committee to discuss ethics at the Supreme Court. The Chief cited separation of powers among the reasons why he wouldn’t attend the hearing.

I offer no opinion on the separation-of-powers issue; as far as I know, that’s a good enough reason to say no. But the article explains that the Chief went on to cite another reason. Here it is:

In an accompanying statement on ethics practices, all nine justices, under mounting pressure for more stringent reporting requirements at the court, insisted that the existing rules around gifts, travel and other financial disclosures are sufficient.

I don’t need to recount the source of the “mounting pressure”; you’ve read the recent stories about lavish gifts to Justice Thomas from a wealthy conservative donor. And there’s more: Politico reported yesterday that Justice Gorsuch made a substantial amount of money as soon as we learned that he would be joining the Court, from a surprising source:

For nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colo.

Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, the then-circuit court judge got one: The chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the high court.

The NYT story provides added historical background, noting Justice Kagan’s testimony that the Chief was considering whether to create a judicial code of conduct for the justices who, alone among American jurists, are currently unregulated. That was four years ago.

Now we learn that existing ethics rules “are sufficient.” That would be terrific, if there were any such rules.  But as I just finished typing a few moments ago, there is no code of judicial conduct for The Nine. They’re above mere Canons of Judicial Conduct.

In this context, the Chief’s statement comes across as tone-deaf. You don’t have to be an intense courtwatcher to know that the highest court in the land is hemorrhaging public credibility, a priceless juristic asset. Once among the most-respected governmental agencies, the Court now suffers from plummeting public-approval ratings. I acknowledge readily that they don’t do their jobs in pursuit of public approval. But the courts must, must command public respect as neutral arbiters of citizens’ disputes with each other and with their government. Insisting that there’s “no need” for the justices to create a code for their own conduct diminishes public trust in an institution that needs that trust if it’s going to function effectively.


Analysis of April 20, 2023 Supreme Court Order



(Posted April 20, 2023) The Supreme Court this morning turns to a statutory morass — or maybe desert is the better metaphor — in the field of expungement petitions. Williams v. Commonwealth highlights the lack of specificity in the Code for persons who seek to clear their arrest records.

The Commonwealth indicted Williams for being an accessory to a murder, but before trial, she agreed to plead to a reduced charge of obstruction of justice, a misdemeanor. She then sought expungement of her felony arrest. The prosecutor commendably had no objection.

But the judge did. The court concluded that because Williams had pleaded guilty to a crime related to her original arrest, she wasn’t one of those innocent citizens whom the expungement provisions undertake to protect. The court refused the petition. Last year, the justices decided to take a look.

Here’s the relevant passage from the statute: It applies after an acquittal, or where a “nolle prosequi is taken or the charge is otherwise dismissed ….” Williams contended on appeal, as she did below, that her felony indictment was “otherwise dismissed,” because the Commonwealth dropped that charge and allowed her to plead to a lesser offense. The question here is what that otherwise dismissed language means.

The legislature didn’t define the term or list a bunch of examples. That has left the courts to try to sort it out.

Existing precedent holds that where the subsequent charge is a lesser-included offense of the original, then the defendant isn’t innocent enough to warrant relief. But where the successor charge is “completely separate and unrelated,” the defendant can seek expungement. The justices today explain what that quoted phrase means: “a court should (1) compare the conceptual similarities and differences between the original charge and the amended charge and (2) examine whether the two charges share a common nucleus of operative facts.”

Today the Supreme Court sort-of unanimously rules that Williams is eligible for expungement consideration. At least as an abstract principle, obstruction of justice is completely separate from aiding in a murder, so six members of the court join in a published order — this means that we don’t know the identity of the author — that remands the case to allow a hearing on the merits of that request. (My barely educated guess, based solely on the writing style, is that Justice McCullough wrote this one. The bad news is that we’ll never know if I’m right or wrong.)

The order contains this language in a closing footnote: “The General Assembly, as the policy making body of our Commonwealth, remains free, of course, to narrow or to broaden the scope of the expungement statute. Whether it should do so is for that body to determine. It is not the province of the courts to ‘inquire into the wisdom of legislation.’” That’s the genteel and understated language of Supreme Courtese; the English translation is “Legislature, we can’t amend your botched wording in this statute; that’s your job.”

One member of the court isn’t content to be this discreet. Justice Mann pens a concurring opinion agreeing that Williams deserves a shot at expungement. His entreaty to the General Assembly lays out in detail the reasons why he perceives statutory guidance to be inadequate. He goes on to explain that in his view, the court’s two-part explanation, which I quote three paragraphs above this one, is unnecessary and actually adds complexity.

Will the 140 Troublemakers pick up the baton and run with it? Let’s hope so; by the narrow margin of seven-zip, the court today concludes that this statute needs major surgery. Keep in mind that it’ll be a different set of Troublemakers, as a slew of retirements and redistricting pair-ups will lead to a greatly altered General Assembly in January 2024.


Notes on Appellate Developments



(Posted April 18, 2023) Here are a couple of notes as we await the next SCV opinion day on Thursday.


Actually, about that opinion day …

This week continues a nagging trend in which I’ve had to be away from my office on several Thursday mornings, and thus unable to compose analysis of new opinions from Ninth and Franklin. That being said, in recent months that court has released new rulings early in the morning, well before the previous norm of 9:00 releases. If that happens this week, I might be able to post a quick essay before I leave my hotel and head out for my scheduled meeting. If not, I’ll post something when I can.


A short affirmance

Last Thursday the justices decided one appeal from the March docket, affirming a conviction in DeLuca v. Commonwealth. The Court of Appeals had handed down a published decision in the case, and rather than replowing the same ground, the Supreme Court merely affirms on the CAV’s reasoning. The lower appellate decision is here if you’d like to see what happened.

I’ll confess that the timeline of this appeal looks wrong to me. The CAV issued its opinion on October 26, 2021, and DeLuca didn’t seek rehearing there. That means that his petition for appeal in the Supreme Court would be due 30 days later, in late November of that year.

But the SCV’s case-information page shows that DeLuca filed his petition five months later, on March 24, 2022. I don’t know how he got past that 30-day jurisdictional deadline. The Commonwealth waived a brief in opp, and a panel of the SCV granted a writ in September 2022. The case made it onto the less-than-crowded March session docket, and we get a ruling six weeks later (which is fairly quick). That all adds up to a span of 18 months in which the case proceeded through the Supreme Court, after its taking roughly a year in the pre-expansion Court of Appeals.

I plan to post an essay in the near future about the pace of the appellate system in this new era. Anecdotally, I’m learning that things have slowed down noticeably downstairs, as the Court of Appeals and its estimable clerk’s office have dealt with the effects of Senate Bill 1261 and a correspondingly larger caseload.


An interesting Fourth Circuit ruling

I read with interest the majority and dissenting opinions in Davidson v. United Auto Credit, released last Wednesday. My fellow word nerds will enjoy the vigorous debate over the meaning of the phrase, “for the express purpose.” The case arises in the context of the federal Military Lending Act, which protects servicemembers from certain consumer practices that Congress saw fit to regulate.

The plaintiff was active-duty military; he went to a dealership in Spotsylvania County to buy a car. He financed the transaction by borrowing money from United Auto Credit: about $14,700 for the purchase price, $250 for a processing fee, and about $400 in gap insurance. If you haven’t bought a car in a while, gap coverage protects the buyer in case his car is stolen or totaled before he pays the loan down to the point where it’s less than the value of the now-used car. If misfortune like that strikes, basic insurance covers the value of the car and gap insurance pays off the rest of the loan.

The Military Lending Act covers many consumer transactions involving servicemembers, but there’s an exception for car loans. Applying that exception, the Act wouldn’t cover this transaction. But there’s a trick to the exception: it only applies where the lender makes a loan “for the express purpose of financing the purchase and is secured by the car.” The question here is whether a hybrid transaction like this, where the loan covers the car purchase and one or more ancillary items, is within those parameters.

Judge Richardson, joined by Judge Thacker, rules that it is. The majority finds that express purpose as used here means a specific purpose, and there’s no doubt that the stated purpose of the loan was to buy the car. Judge Wilkinson files a spirited dissent in which he argues that in this context is means the sole purpose, so that hybrid transactions take the loan out of the statute’s exception.

For those who love language, especially debates over words, this decision is great fun, and I won’t spoil it for you by laying out too much detail. I’ll only add that I can easily see an en banc grant on this one; this is a matter upon which I believe reasonable people, including reasonable jurists, can disagree.


Analysis of April 6, 2023 Supreme Court Opinion



(Posted April 6, 2023) Today brings one concise opinion from the Supreme Court of Virginia. Ranger v. Hyundai Motor America was argued in March; it arose in Accomack County and implicates Virginia’s motor vehicle Lemon Law.

Ranger bought a Hyundai that he felt was a lemon. This morning’s opinion recites that the car “had to be repeatedly repaired.” Ranger got himself a lawyer who wrote to demand Lemon Law relief: a refund of the price plus some assorted expenses. He added a demand for prelitigation attorney’s fees.

The manufacturer replied commendably, as I see it: It offered to buy the car back and to pay some of the legal fees. Because the offer didn’t cover all of those fees, Ranger directed his lawyer to head to court.

Because Ranger’s name is on the western side of the “v.” in this case, you know that this didn’t end well for him in circuit court. That court ruled that the manufacturer’s offer complied with the statute, so Ranger had no right to sue. The court granted summary judgment in Hyundai’s favor.

This case bears the Record Number 220058, meaning it was the 58th appeal filed in the Supreme Court last year. I infer that the final order came down before December 1, 2021, because otherwise Ranger would have been entitled to an appeal of right in the Court of Appeals, simply by filing his notice of appeal on the first business day of 2022. The earlier judgment date meant that he had to run the writ gantlet in the Supreme Court.

The good news for Ranger is that the justices awarded him one of the court’s precious writs. The bad news is that the Supreme Court today affirms. In a matter of first impression here in Virginia, the court holds that prelitigation attorney’s fees aren’t within the “collateral and incidental damages” that a buyer is entitled to under the Lemon Law. True, the act allows an award of fees to a successful litigant once he goes to court; but to avoid Lemon Law liability, a manufacturer need only tender an offer that meets the statutory requirements before a suit is filed, and those don’t include fees.

Justice McCullough pens today’s short opinion for a unanimous court.


Two Quick Appellate Notes



(Posted April 4, 2023) I have time for brief updates on a couple of matters here.


April SCV session announced

The Supreme Court of Virginia has released the argument docket for the April session, which will convene in two weeks. There are just three cases on it – two from writs granted from the October writ panels, and one attorney-discipline case. (Disciplinary appeals are of-right, so there’s no need for a writ grant.) The justices will gather on Thursday, April 20, to hear 90 minutes’ worth of oral arguments before calling it a month.

Now, lest you perceive that that’s a dig at the court, please think again. Justice-ing emphatically isn’t a part-time job, and it isn’t the court’s fault that most of its potential docket for this session got diverted to the Court of Appeals last year. I expect – I hope – that the level of business at Ninth and Franklin will return to near-normality later this year, or possibly early in 2024.

There’s a latent fear there: If the justices decide to cut back on writ grants, figuring that the CAV is handling error-correction, so the Supreme Court can limit itself to law development, then we might see perennially suppressed dockets – maybe not this small, but single digits per session. Nothing to do on that but wait and watch.


1Q David-Goliath Index

The first three months of 2023 are in the books, so let’s check to see how our big guys and little guys are doing thus far. The Supreme Court has released seven opinions this year, and five of those fit the criteria for my David/Goliath analysis. Of those five, I have our Davids winning twice and the Goliaths three times, for a first-quarter D/GI of 40-60.

You might think that this is looking to be a banner year for David; his success rate in recent years has been on the order of 28%, so 40% looks great by comparison. But I know enough about statistics to realize that you can’t draw any meaningful conclusions from a sample size of just five.

What about unpubs? I do include those in my calculations because they’re part of the caseload that the court decides. But all I can do is shrug this time, because the court has released no unpubs, none at all, since early December.


Analysis of March 23-30, 2023 Supreme Court Opinions



(Posted March 30, 2023) Today is one of the blessed days on the Emmert calendar, as fifteen men dressed in blue and spread across the continent will each pull a mask over his face and utter an especially sweet two-word phrase: “Play ball!” Life begins again after a long, cold winter without baseball.

I was absent last week, so let’s dive into two new SCV opinions, one from last Thursday and one from this morning.


Domestic relations

The justices today take up the meaning of provisions in the Uniformed Services Former Spouses Protection Act, relating to distribution of military pension benefits. The case is Yourko v. Yourko, and arose in the Circuit Court of Williamsburg and James City County

The parties entered into the military equivalent of a property settlement agreement that gave the wife 30% of the husband’s military retirement pay. It accordingly contained a provision that guaranteed her $1,200 per month, to be paid from the husband’s financial resources if his retirement pay dipped.

A quick aside about military law: The law allows disabled veterans to voluntarily forgo part of their retirement pay for an equal amount of disability pay. That’s a treasured right, because military disability pay, unlike retirement benefits, is untaxed. The husband chose this route, resulting in a reduction of his retirement pay from $4,000 a month to $844 a month. Thirty percent of that is just over $250 a month for the wife.

The husband accordingly moved the circuit court, long after final divorce, to reopen the case and modify the divorce decree and the settlement agreement. He pointed to a recent SCOTUS ruling that divorce courts can’t order military retirees to reimburse ex-spouses for reductions in benefits like this. He also argued that the settlement agreement was a product of mutual mistake of fact, specifically, the amount of the husband’s retirement benefits.

The circuit court dismissed the motion, holding that the 21-day rule deprived it of jurisdiction. It also found no mutual mistake of fact. But the Court of Appeals reversed late in 2021. It held that that SCOTUS decision established that federal law preempted a state court’s right to order this relief, so the equitable-distribution order was void ab initio. The CAV panel remanded the case for recalculation of the wife’s monthly benefit.

Today a unanimous Supreme Court reverses that finding and enters final judgment for the wife. In doing so, it distinguishes this situation from the facts in the SCOTUS case. The key difference is that the husband voluntarily agreed here to indemnify the wife; a court didn’t order it against his wishes. As today’s unanimous opinion notes, “a growing number of states” (three so far, plus now Virginia) hold that a voluntary agreement to indemnify doesn’t run afoul of the SCOTUS holding.

Justice Powell pens today’s opinion for a unanimous court. In a footnote, she mentions one tidbit that, in my view, decisively tilts the equities in favor of the wife. The husband’s unreduced military retirement benefits were $4,000 a month, but his overall monthly income was over $10,000. The court has little difficulty in concluding that he can easily make up the $950-a-month indemnification from his $6K in other income. Allowing him to collect $10K a month while paying his ex just $250 does, you will admit, seem a little unbalanced.

Justice Russell sits this one out, as the case came through the Court of Appeals while he was a judge there. Because it was a published opinion in that court, he got a chance to review the panel opinion and comment on it before publication. Justice Millette fills in to give the parties here a full set of fresh eyes on the case.


Freedom of Information

Last week, while I was out of the Commonwealth with my back turned, the justices couldn’t resist handing down an opinion, so they gave us Berry v. Fairfax County. This is an open-meeting dispute over a county board’s complete overhaul of its zoning ordinance during the pandemic.

On its face, you might find this to be an easy call. The legislature enacted pandemic-driven measures to enable local governments to carry on business at times like the ones we endured starting three years ago this month. The special legislation empowered local governing bodies to conduct meetings and vote on ordinances by remote means. In 2021, the Fairfax County Board used those procedures to finalize its comprehensive rezoning, a deliberative process that had started in 2016.

Several citizens who opposed the rezoning filed suit, challenging the process as violating FOIA. That act requires open and in-person meetings in the transaction of public business. A circuit-court judge ruled in favor of the county, first denying a request for a temporary injunction to stop the virtual meeting and then holding that, after enaction of the ordinance, the challenge was moot.

The challengers hopped on I-95 South. After granting a writ, The Robes unanimously reversed last week and – surprise! – enter final judgment in favor of the challengers, invalidating the ordinance in the process. In doing so, the court rules that the county board had to meet in person for this action.

But how can that be, you ask? How can the Supreme Court invalidate the comprehensive rezoning where the General Assembly has specifically authorized remote meetings? Hey, that’s why we’re here; let’s dig in.

First, know that the temporary legislative authorization was designed to enable local governments to continue to provide essential governmental services during an emergency. The precise language authorizes remote meetings for “business statutorily required or necessary to continue operations of the public body[.]”

The county board argued that this language empowered it to conduct any form of county business without convening in person, but the justices see it differently. The temporary exemption only covers actions necessary to continue operations of the local government, in addition to the limitation quoted in the previous paragraph. While a rezoning certainly is governmental in nature – indeed, you can’t get much more governmental than that – it isn’t necessary for continuation of government operations. Remember, this wasn’t an emergency act; the county had been contemplating this rezoning for almost five years.

The Supreme Court ultimately rules that “the phrase ‘necessary to continue operations’ … does not encompass all that the Board may lawfully do, and thus, the budget language cannot be construed as a wholesale license to ignore VFOIA’s open meeting requirements in conducting any and all business that the Board might wish to conduct.” This means that for business that doesn’t involve continuation of government services, FOIA still requires open, in-person meetings. That, in turn, means that the board approved the rezoning ordinance in a manner contrary to law.

This doesn’t end the matter; the board can now reconvene, after properly noticing the rezoning ordinance, and reenact it this spring or summer. But the challengers will have an opportunity to register their objections – openly, and in person.


The Supreme Court received oral arguments in both Yourko and Berry during the January micro-session, which featured just four appeals. That leaves us with one undecided case from that docket, two more from last November, and the full slate of eight appeals on the February/March argument docket.

In the next week or so, we’ll get a peek at the April argument docket, and I’m eager to see it. As I’ve noted here, that’s the court session when we’d normally get appeals granted after the October writ panels. But the court granted only two writs from those panels. The briefings in those two weren’t complete until early this month. That’s probably enough time for the court to prepare for a normal argument in mid-April. But I’ve never heard of a two-argument merits docket; I’ve never even conceived of one.

In theory, the court could fast-track the only other writ granted in 2022, a criminal appeal on whether excluded evidence was for alibi or impeachment purposes, to create at least a three-argument session. But the reply brief isn’t in on that one yet – it isn’t due until next week – so it might be hard to get that one ready. We’ll see shortly.

Analysis of March 16, 2023 Supreme Court Opinion



(Posted March 16, 2023) Everybody make it through yesterday okay? No stab wounds or anything? I ask because, at least in the legal profession, March 15 has been an unlucky day for over 2,000 years. (Gaius Julius Caesar was walking to court when he was murdered.)

On the assumption that all is well in your world, let’s take a look at a brand-new opinion from the Supreme Court of Virginia.


Criminal law

There’s no doubt that a woman named Kimberly Paul Barney robbed a drug store in Hampton early in the morning on Christmas Day in 2015. Here’s how today’s opinion describes the relatively simple factual setup; the person identified as Daugherty was the drug-store cashier:

Barney presented Daugherty with a box of candy and a handwritten note that stated: “[T]his is a robbery, stay calm, [and] don’t make a sound if you want to live.” Id. at 157. Mistakenly thinking the note was a shopping list, Daugherty initially ignored it, “rang up” the candy on the cash register, and put the candy in a bag. Id. Displeased by the oversight, Barney verbally commanded: “[G]ive me the money.” Id. at 158. Daugherty then read the note.

“[W]hen I saw the note,” Daugherty testified, “I looked and it appeared to me that she had a weapon in her pocket[,] and it was pointing at me in a motion for me to notice that she had what I believed to be a weapon.” Id. She continued, “I was being robbed at what I believed to be gunpoint.” Id. at 157.

I’ll quickly add that no one was physically harmed in this encounter. Barney got a fistful of cash and left the store without taking her right hand out of her sweatshirt pocket. The matter ended appropriately, with Barney’s arrest the next day by local police. Authorities never found a firearm.

The issue in Commonwealth v. Barney isn’t the robbery; Barney pleaded guilty to that charge, and is probably receiving a substantial period of free room and board with the compliments of the Director of Corrections. The issue today is Barney’s conviction for a companion firearm charge – use of a firearm in the commission of a felony. At trial, Barney admitted the robberies, but denied that she actually had a weapon at the time.

When it comes to victims, Virginia law emphatically is not heartless; you can be convicted of robbery even when you bluff your way through it by convincing a victim that her life really is in danger. The store clerk unquestionably feared for her life. But the companion-firearm statute is different: It affirmatively requires the use of a firearm, or a replica that looks enough like a firearm. The question in this appeal is whether the prosecution proved that Barney had a gun, and not merely an extended finger, in that pocket.

Although no one ever saw a gun and Barney never claimed that she had one, a jury was satisfied and convicted her of the firearm charge. A panel of the Court of Appeals semi-unanimously reversed that conviction, holding that the evidence didn’t establish the presence of a weapon beyond a reasonable doubt. (It was semi-unanimous because one judge concurred in the result.)

That made it the Commonwealth’s turn to appeal; it sought and obtained a writ. Today a sharply divided Supreme Court reverses the CAV, reinstates the conviction, and enters final judgment.

Justice Kelsey pens the majority opinion; he’s joined by Justices Powell, McCullough, and Chafin. The majority concludes that there was enough circumstantial evidence to enable the jury to find the presence of a weapon.

In a 2004 SCV decision, the robber had stated to his victim that he possessed a gun. The Dubya-era justices found that sufficient to establish possession of the weapon. In voting to reverse Barney’s conviction, the CAV had found this factual difference critical, but today’s majority calls it “a feather-weight distinction,” continuing,

Barney threatened to kill Daugherty. Barney made this threat while pointing at Daugherty what looked like the barrel of a handgun. The murder weapon in her pocket — Barney’s words and gestures obviously implied — was a handgun, not a finger. We thus see no persuasive value in the observation that unlike in Powell, Barney’s note “mentioned nothing of a weapon, let alone a firearm.”

I noticed a few other disputed angles in today’s opinions, but in my mind, this is the key dispute. Today’s dissenters – Justice Mann, joined by the chief justice and Senior Justice Mims – see things differently:

An affirmative inculpatory statement by a defendant that he or she possesses a firearm establishes an essential element of Code § 18.2-53.1. Without such an affirmative statement, to satisfy its burden of proof, the prosecution is required to present other evidence, which is sufficient to prove beyond a reasonable doubt, that a defendant did in fact possess a firearm.

The dissent adds, “Here, the feather is mighty when weighed against silence.”

It’s been a long, long time since I handled criminal work, so I know better than to start making broad pronouncements about that area of the law. I try to stay in my lane. But today’s opinion does pique my interest in an area that emphatically is in my lane: appellate review of jury findings.

Criminal prosecutions demand the strongest burden of proof known to the law: proof beyond a reasonable doubt. In this case, that means that the prosecution had to establish the presence of a weapon, and that proof had to be so strong that any doubt about its presence would be unreasonable.

If this had been a civil case, measured by a preponderance standard, then it would be easy to shrug and say that the jury could well have concluded that the robber probably had a gun. But in a criminal case, one must conclude that the possibility that Barney used only her finger is not only improbable; it’s unreasonable.

In that context, I invite you to envision yourself trying to explain to a layman the difference between this case, in which the Supreme Court defers wholly to the jury, and the recent civil ruling in Colas v. Tyree, where the justices on January 26th simply discarded a jury’s well-supported fact finding in favor of a little-used evidentiary presumption.

I encourage you to keep this conversation hypothetical. Don’t actually try to convince a real layman, because you won’t succeed. You will instead get a puzzled look and a question like, “So does the appellate court allow the jury to find the facts, or not?” In these two decisions, the majorities – Colas was 4-3, too, with the same four justices in the majority – defer to the jury in the case with the tougher burden of proof, and intervene on the more lenient one. That’s the reverse of what I would expect.

Today’s decision is the latest in a small number of rulings in which the Supreme Court ironically splits 4-3 on the question whether reasonable people can disagree on something.


Stare Decisis: Another Reason To Be Glad We’re Virginians



(Posted March 9, 2023) For the fourth consecutive Thursday, The Robes by the James leave us wanting in the opinions department. Let’s look instead to the south, where our Tar Heel cousins have been busy making news in the appellate arena.

Those of us with at least a passing interest in Those Other Robes, the ones across the Potomac, know that in December, SCOTUS heard oral argument in Moore v. Harper, an election-law case. The argument made news because it raised the issue of the “independent state legislature” theory of constitutional election law. Specifically, the petitioners there argued that the courts of North Carolina cannot review redistricting decisions, even where the gerrymanders are egregious, because (the argument goes) the Constitution consigns election issues to state legislatures; not to states. Under this concept, the legislature can do whatever it wants about districting, free from judicial review.

Early in 2022, the North Carolina Supreme Court affirmed a lower-court ruling that had struck down the district map passed by a legislature dominated by Republicans. Predictably, that map skewed rightward, paving a smooth electoral path for Republican candidates. In a 4-3 ruling, the North Carolina court ruled that such tactics were impermissible.

A word about that court: North Carolina is among those states that use what I regard as a singularly repugnant method of choosing jurists: popular election. What can be wrong with that, you wonder? Why shouldn’t governmental officials be chosen in the most democratic way possible?

Think about this from the perspective of an appellate advocate. Jurists have to interpret the law in ways that are occasionally unpopular; that’s why the United States insulates them from the winds of political change. (States, in contrast, aren’t required to do that.) Now, imagine yourself at the lectern, arguing for a politically unpopular ruling that you nevertheless believe is legally correct. As you argue, you imagine what thoughts are going through Justices Smith and Jones’s minds: If I rule the way Steve wants me to, I could lose my reelection bid next year. Our beloved Commonwealth takes such crass considerations away from our legal system. North Carolina’s doesn’t.

Last year, when the North Carolina Supreme Court handed down its ruling, Democrats held four seats and Republicans three. The issue was inherently political – the court was evaluating an effort to stuff legislative halls with a disproportionate number of Rs – and the vote came down along party lines.

But something significant happened last November: In the statewide election, Republicans gained two seats on the Supreme Court, giving them the prospect of a 5-2 majority. That majority came to fruition in January 2023 with the new jurists’ investiture. Three weeks later, the losing litigants, sensing an opportunity, filed a petition for rehearing. The new court granted that petition on February 3 by a vote of 5-2. I’ll let you guess the political lineup of the votes on that one.

The two justices in the new minority filed dissenting opinions, and they weren’t gentle. The majority cited a 1959 decision in which the court said this: “No petition to rehear was filed. That is the appropriate method of obtaining redress from errors committed by this Court.” The dissenters point out, in so many words, that this unremarkable statement doesn’t set up a decisional rubric for PFRs; and it’s just dicta, since “no petition to rehear was filed” anyway.

There’s more. The dissenters aren’t subtle about accusing their new brethren and sister of exercising raw political power. They note that the court grants rehearing extremely rarely – far less, it would seem, than do our Robes here in Virginia – and always with a specific reason, usually an uncontroversial one. But nothing has changed in the law or the facts; there is no suggestion that the 2022 decision overlooked an important legal issue or created an undesirable unintended consequence. There is one, and only one, reason, the dissenters charge, why the majority granted this petition: They have the votes now to change the outcome.

That prompts consideration of the doctrine of stare decisis, by which courts respect precedent. Once a decision comes down, subsequent courts are supposed to continue to adhere to it, even if they disagree with the ruling or its rationale. That rule of law promotes stability in the law and, concomitantly, in society. Overturning established precedent is supposed to happen very rarely, and then only when circumstances have changed to the point that the old law is no longer workable, or is subject to a major shift in public mores. Brown v. Board of Education is one example of the latter justification.

I’ve mused before that, too often, the strength of stare decisis turns on what’s on the other side. If it protects a decision that the court’s majority likes, it’s an impregnable stone wall, eight feet thick and twenty feet high. For decisions that a court doesn’t like, it’s more like a well-worn speed bump, now eroded down to less than an inch high. When courts want to overturn precedent, they usually cite holdings like Brown and quote language that stare decisis “is not an inexorable command.” (If you want a collection of cases where a given court has overturned established precedent, search for that two-word term.)

These grants generate some pointed language from the dissenters. Justice Earls accuses her colleagues of “raw partisanship”; Justice Morgan cites an 1898 decision where the court had said, “A partial change in the personnel of the Court affords no reason for a departure from the rule” of stare decisis. Justice Earls’s dissent concludes this way:

The consequences of this Court’s orders are grave. The judiciary’s “authority … depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 446 (2015). The public’s trust in this Court, in turn, depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes. Because this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve “impartially,” “without favoritism to anyone or to the State,” I dissent.

Well, now.

Last year, I cited Fourth Circuit Judge Jay Wilkinson’s warning that courts must avoid “the appearance of partisanship.” He continued that a descent into the politicization of the courts would “undermine our most valued asset, the public’s trust and confidence in the judiciary.” Middleton v. Andino, 990 F.3d 768, 773-74 (4th Cir. 2020).

But Judge Wilkinson was writing at a different time. Since Middleton came down, we’ve seen SCOTUS lead the charge away from stare decisis, valuing only the ability to count to five.

What about here in Virginia? The title of this essay is a clue; while precedent-shifting does sometimes occur here, I sense that it’s fairly rare. More likely, an appellate court here will grumble slightly about the precedent while upholding it. For one easy recent example, Justice McCullough’s opinion for a unanimous Supreme Court in Doe v. Baker, 299 Va. 628 (2021), expressed skepticism that a company could be vicariously liable for a criminal act by its employee, but concluded that “our precedent, … combined with the long-established standard under which we review the grant of a demurrer, constrains us to reverse and remand.” That patently reluctant conclusion echoes Justice Kelsey’s reversal-with-a-sigh opinion on the same issue in Our Lady of Peace v. Morgan two years earlier (297 Va. 832).

Stability in the law requires an approach like this. In contrast, then-presidential-candidate Donald Trump famously promised in 2016 that he would appoint Supreme Court justices who would vote to overturn Roe v. Wade. He delivered on that promise, as we saw in Dobbs v. Jackson Women’s Health last year; this ruling followed Justice Sotomayor’s warning about a “restless and newly constituted Court.” I don’t know if the new North Carolina justices campaigned on an overt promise to reverse Holmes v. Moore and Moore v. Harper, but deliver they did, just a few weeks into their terms on the court. These jurists either hadn’t seen Judge Wilkinson’s warning, or else they didn’t care.

As a result of this rehearing grant – oral argument in the NCSC will be next week, and the betting line on a different ruling is probably around -32000 – SCOTUS has asked the parties in that Court to brief whether it has appellate jurisdiction.

Back here in Virginia, our method of judicial selection isn’t perfect, or even close to it. But it brings to mind Winston Churchill’s bon mot about democracy, that it’s the very worst form of government, excepting only all the other ones that have been tried from time to time.


Four Quick Appellate Updates



(Posted February 28, 2023) The justices at Ninth and Franklin have declined to give us courtwatchers any new fodder for water-cooler gossip for a while, so let’s peek around and see what’s happening.


New Fourth Circuit judge

Last week the Senate confirmed Judge DeAndrea Gist Benjamin of South Carolina to a seat on the Fourth Circuit Court of Appeals. Judge Benjamin comes to the court from a Palmetto State trial court. She replaces Judge Floyd, who has taken senior status.


One more 2022 writ

The Supreme Court of Virginia’s website today announces the grant of one more appeal from last autumn’s writ panels. This one’s from the October panels. That brings the total number of writs granted from that month to two, with only three more granted from the December panels.

Early this month, I noted the paucity of late-2022 writs, and forecast a February/March session docket of eight appeals. Unlike some of my other brilliant predictions, I managed to get this one right; the Supreme Court convened this morning to hear arguments in four granted cases, and will hear four more tomorrow.

But I fear for the April session. The newly listed grant comes in a case where the appellee – in this instance, the Commonwealth, as it’s a criminal appeal – filed its merits brief just 2½ weeks ago, and the reply brief isn’t in the Clerk’s hands yet. That appeal might be ready for the April docket, but it might drop back to June. If it does fall back on the court’s calendar, the justices will have to decide whether to convene in April to hear a single appeal.


Virginia Appellate Summit date

Save the date, folks; the next Virginia Appellate Summit will convene in Richmond on Thursday, September 28. Current plans call for six hours of advanced MCLE training, plus a social hour after the program wraps up. If you’ve attended one or more of these gatherings, you’ll save the date immediately; if you haven’t, you need to be sure to attend. This is the best statewide assembly of the appellate bench and bar in the Commonwealth.


Even more appellate statistics

My long-time readers know about my interest in statistics about the appellate courts, and in what those stats can teach us. In the past, with the considerable help of the good folks in the State Law Library, I’ve amassed numbers going back to 1965. During a recent visit to Richmond, I stopped at the Library of Virginia – a wonderful institution that just celebrated its 200th “birthday” – and dug a little deeper.

Thanks to a librarian there who didn’t stop at the first brick wall, I now have some stats going back to 1951. The early numbers are rudimentary; there’s nothing like the detail we see in modern statistical reports. But I now know significantly more than I did before about the Supreme Court of Virginia’s 20th Century caseload.

As I type this, the Clerks of the SCV and CAV are preparing their courts’ 2022 stats reports; I hope to have those within a few weeks, and will report here on what they show.


Analysis of February 9, 2023 Supreme Court Opinion



(Posted February 9, 2023) The Supreme Court of Virginia hands down a single published opinion this morning. Horn v. Webb is primarily about easements by prescription, though there’s a side order of punitive damages on the menu.

This appeal relates to lakefront property in Fairfax County, designated as Lot 612. Back in the Johnson Administration – Lyndon; not Andrew – the owners of that lot reached an agreement with two landlocked neighbors. Lot 612’s owners would grant to the owners of Lots 613 and 615 a nonexclusive but still valuable easement of access to the lake. In exchange, the two neighbors agreed to build a retaining wall – I assume this is a bulkhead – along the lake frontage of Lot 612. The parties memorialized this agreement in a deed of easement.

The owners of the inland lots built the wall and a set of steps to allow access by all three owners to the lake; they also moored a pontoon boat along the frontage of Lot 612, and kept it there for many years. (The two inland neighbors jointly owned the boat. It sank about 50 years later, but was quickly replaced.) They also periodically stored canoes on Lot 612, presumably just landward of the bulkhead.

Gradually, title to all three properties changed hands. The current owners include the Webbs, who own the waterfront lot, and the Horns, who own Lot 615. The Webbs bought their lot in 2017 and wrote to the owners of the inland lots, asserting that the easement didn’t allow the mooring of the pontoon or the storing of the canoes on the site. The owners of the inland lots refused to change anything in response, citing their rights under the deed of easement.

Now we’re heading for court. The owners of Lot 613 sued the Webbs, seeking a declaratory judgment that they possessed the disputed rights; the Webbs counter-sued for trespass. (Justice McCullough, who pens today’s opinion for a unanimous court, helpfully calls this “Round 1.”) The circuit court ruled in favor of the Webbs, the owners of the servient tenement.

Instead of appealing, the losing owners of Lot 613, having had enough, sold their half interest in the boat to the Horns for the princely sum of one dollar, American. When the Horns still refused to remove the boat and the smaller craft, it was the Webbs’ turn to sue. They sought a declaration and punitive damages, asserting that in the wake of Round 1, the Horns could no longer plausibly claim the disputed rights. They asserted that the Horns were in privity with the owners of Lot 613, so they were bound by the earlier ruling.

The court convened a bench trial with a different judge. The result was favorable for the Webbs: judgment for compensatory and punitive damages, plus a declaration that the Horns’ use was in excess of the limited rights in the deed of easement. The Horns sought and received a writ.

Today’s opinion offers something for each side. The justices first affirm the circuit court’s holding that the Horns had not established a prescriptive right to store small watercraft on Lot 612. The evidence at trial established some periodic use like that, but not continuous use for the required 20-year period.

The Horns fare better when it comes to the mooring of the pontoon boat, as the court rules that the evidence established the requisites for a prescriptive easement: open, visible, exclusive, and continuous use under claim of right for the statutory period. The fact that the owners of Lot 613, plus the Webbs themselves, also had the right to use the space doesn’t make the Horns’ (and their predecessors’) use any less exclusive. That may sound counterintuitive, but there’s unambiguous SCV precedent to back it up.

The Supreme Court today rejects the Webbs’ claim that their neighbors’ use was permissive. That matters because a permissive use can never mature into a prescriptive easement. Here’s a key passage from this part of the opinion: “The fact that prior owners of these lots were on friendly terms does not establish a permissive use. Failure to object is acquiescence. Acquiescence is not the same as granting permission.” The court adds that there’s no “tacking” allowed of prior owners’ consent to use the easement, noting that once Lot 612’s original owners sold the lot, any permission that they may have granted must end. That means that the Webbs can’t establish that the Horns’ use was permissive, so that use can ripen into a prescriptive easement.

The court last takes up the punitive-damage award. After independently reviewing the record, the justices first hold that the Horns can’t be liable for punitives for the pontoon-boat mooring, because they’re now the prevailing parties. Even on the claim involving the canoes, the court today notes that the Horns had plausible evidence to support their defense. Although the circuit court ruled against them, there’s no ground to find that they acted maliciously. And the Horns weren’t parties to the Round 1 proceedings, so they can’t be bound by it. The punitive-damage award thus vanishes today.

In all, this probably makes the Horns, the owners of the dominant tenement, the primary victors today. They have to relocate their canoes and will owe $3,300 for trespass damages; but they retain the right to moor the pontoon boat and they escape liability for about $8,000 in damages on that claim. Most important, the justices vacate a $45,000 punitive-damage award.

Ah, but this is probably a Pyrrhic victory, you’re thinking, because the Horns must have incurred appellate legal fees that matched or exceeded the amount of the damages that they saved by appealing. Surprise! The Horns appeared in the Supreme Court pro se. That’s a rare victory for an uncounseled appellate litigant.

One last point: Today’s decision comes down after a quick turnaround. The justices entertained oral argument in this appeal on January 10, just over four weeks ago. This is thus the first appellate decision issued in an appeal argued in 2023. The Supreme Court’s docket now contains just five undecided appeals in argued cases – two from November and three from January. The February argument docket isn’t out yet, but as I’ve noted here, I expect approximately eight appeals to be argued when the full court next convenes in less than three weeks.


Appellate News and Notes



(Posted February 3, 2023) I’ve seen a couple of newsworthy tidbits and thought it wise to update you on them.


SCOTUS to review 4CA waiver rule

Fourth Circuit practitioners will be interested in the upcoming oral argument at One First Street of Dupree v. Younger. Those Other Robes will presumably resolve a split in the federal circuits over a vexing waiver rule. Here’s the setup:

Younger was a pretrial detainee in a Maryland lockup in 2013 when, without provocation, three corrections officers entered his cell as he slept and beat him savagely. The officers were themselves criminally convicted, and the warden ended up resigning.

The detainee sued Dupree, a supervisor who allegedly ordered the attack, in a federal court in Maryland. Before trial, the supervisor moved for summary judgment, alleging that the detainee had failed to exhaust available administrative remedies. The district court denied summary judgment and the case proceeded to a 10-day jury trial. The jury awarded the detainee $700,000 in damages.

The supervisor sought remittitur of the damages, but the district court denied that motion and entered judgment on the verdict. The supervisor appealed the exhaustion ruling, but a Fourth Circuit panel dismissed the appeal, holding that the supervisor hadn’t renewed his MSJ in his post-trial filing. Circuit precedent holds that an appellant waives appellate review of an issue where he loses in a pretrial summary-judgment motion and doesn’t assert the same issue after the verdict.

From this, you may be surprised to learn that SCOTUS granted cert. But as noted above, there’s a split in the circuits on one aspect of this rule. Eight circuits part company with the Fourth when the non-renewed argument is, as here, one of pure law, not one of fact; in such situations, they hold that post-verdict renewal isn’t required. The Fourth is admittedly – proudly, even – part of a small minority on this point.

The Supreme Court will entertain oral argument in the case on April 24. Because of the late-April argument date, I expect a ruling at the very end of June. For everyone except we cool people (who care about appellate-geek issues like waiver), this won’t be one of the hot-button, high-profile decisions that always come down at the very end of the term, so whenever it arrives, it might be lost in the noise of the media-magnet decisions.


A scientific wild guess at near-future SCV argument dockets

I’ve mentioned here recently that the writ mill at Ninth and Franklin appears to be broken, or at least dinged. We only have one appeal awarded from the Supreme Court’s October panels, and just three from the December gathering. Those writs are the fuel of future merits sessions. The typical delay from writ grant to merits argument is on the order of six months, give or take a couple.

This portends some tiny sessions in 2023. The February/March session convenes in just under four weeks, and I expect to see eight cases on it unless the court bumps one or two back to April. Those will be the appeals awarded back in September. The April session, in contrast, might only have a single appeal, or something like that paucity. It’s not unthinkable that the court could simply skip a session at some point for lack of matured business. And with only four appeals argued in the January session, we’re staring hard at historically low numbers for merits arguments and published opinions this year.

Why the crash in the writ market? I’ve speculated about this before. SB1261, mandating a detour to the Court of Appeals, is largely, though not completely, to blame. The Supreme Court simply has far less incoming business, as civil cases wend their way through the CAV.

Even so, the grant rate in petitions argued in October and December was just 5.3%, far lower than in past years. That may be because the cases that made their way through the SCV pipeline in 2022 were the ones that had visited the CAV the previous year. That means plenty of criminal petitions, and those historically have a very small grant rate.

The last likely suspect is that the Supreme Court might now perceive itself as a court purely of law development, in which case the grant rate will remain suppressed well into the future. This would mean that the justices will have made a conscious decision to grant fewer appeals.

Let’s return to the header for this section: These are scientific wild guesses. I don’t have any inside information on any of this. All I know is that statistics don’t lie, regardless of what Mark Twain or Benjamin Disraeli (nobody’s sure who said it first) noted about them.

Perhaps we should end this on a sunny note: I really do believe that the second half of 2023 will generate a brighter outlook for the appeals market in the Supreme Court. By then, the Court of Appeals will have fully processed a year’s worth of civil cases, and some of those will end up next door, in the justices’ laps. The year-long numbers will be a wreck, of course, but that was foreseeable.


Analysis of February 2, 2023 Supreme Court Opinion



(Posted February 2, 2023) Honestly, how could that blasted groundhog not see his shadow when countless floodlights rudely greet him first thing in the morning? All he wants to do on a cold, dreary winter day like this is get up and go out to the driveway to get his morning newspaper to enjoy with a cup of coffee in front of the fire, only to find a horde of media there waiting for him with cameras rolling. Of course there’ll be six more weeks of winter.

(Sigh) Let’s check in on today’s published opinion from the Supreme Court of Virginia.


Land use

I could just as easily have titled this section Standing, because that’s the dominant issue in Morgan v. Hanover County. The genesis of today’s dispute is the prospective development of a vacant site into a huge distribution facility in Hanover for the major retailer Wegmans.

This site was rezoned in 1995 for industrial use, but it was regarded as speculative zoning, because there wasn’t a concrete development plan. The land sat idle for a generation before Wegmans contracted to buy it from the owner, hoping to build the facility mentioned above. To do that, it needed to tweak the zoning a bit and get a special use permit.

The retailer sought such approval for those changes; the planning commission approved both applications. That sent the matter to the county’s board of supervisors for final action.

The board approved the applications in 2020. You’ll recall that public life sustained a major hit that year from the pandemic, so the board conducted its business under some form of Covid protocols.

These neighbors filed suit in circuit court to challenge the land-use decisions. They objected to the granting of the retailer’s requests, and to the manner in which the board of supervisors decided the matter. The circuit court eventually sustained demurrers and dismissed the action, concluding that the neighbors hadn’t established standing to sue.

Last year, the justices agreed to take a look, and today they reverse, sending the case back for a decision on the merits. Justice Kelsey, writing for a unanimous court, notes that standing is a threshold issue that requires two things in land-use challenges like this, to establish that the neighbors have a personal stake in the case. They have to own or occupy property that’s near the subject site, and they have to show that they would suffer a particularized harm that’s different from the development’s effect on the public generally.

The court today holds that the complaint here satisfied both of these requirements. The neighbors are all adjacent to or near the 200-acre site, and they alleged specific effects on their properties sufficient to enable them to bring these claims. They may or may not ultimately win on the merits – the Supreme Court today specifically declines to comment on the substantive issues of the case – but they’ll have a shot at trial now.

This is the latest in a recent string of significant SCV decisions on standing. The justices today warn trial courts not to “conflate the threshold standing inquiry with the merits of [a litigant’s] claim.” An energetic defendant might try to couch a merits defense in standing terms, hoping for a quick win on an issue that the justices have described as jurisdictional. But if the pleadings allege facts that would, if proved, establish the plaintiff’s right to sue, a resolution of the issue must await trial on the merits.


Analysis of January 26, 2023 Supreme Court Opinion



(Posted January 26, 2023) There’s universal agreement that the circumstances of Colas v. Tyree were tragic. Nor does anyone dispute that those circumstances wrought an irreparable loss. But today’s split decision from the Supreme Court of Virginia generates substantial disagreement as to the liability question, and a major debate about an arcane evidentiary rule.

The tragedy arose here in Virginia Beach, my hometown. It began when a 57-year-old man, Jeffrey Tyree, suffered what the court describes today as a mental breakdown while at his mother’s house. His sister described his behavior as crazy, angry, and erratic, a major change from his usual calm demeanor; he was usually “the most caring, giving person you could ever meet.”

I’ll interrupt this analysis to say that I anticipate your skepticism. Perhaps you believe that the sister’s laudatory description was hyperbole. But this case comes to the Supreme Court on a verdict in favor of the sister, as Tyree’s personal representative. Because of that verdict, we have to take the evidence, including the sister’s description of her brother, as true.

Tyree’s erratic behavior prompted a call to police; the goal was to get him to consent to mental-health treatment. When officers arrived – and they came in droves – they observed that he had a knife in his hand. This wasn’t a table knife; one officer described it as a military-style blade.

Because Tyree was inside a fenced yard, the officers began to speak with him in an extended effort to de-escalate the situation. The conversation lasted over two hours, during which time Tyree’s mood temporarily calmed, though he never did agree to receive treatment. He occasionally placed the knife down but didn’t surrender it. He told the officers that he had no desire to harm them and never threatened or lunged at any of them.

The officers designed a plan to get Tyree to drop the knife for a moment, at which point they’d fire rubber bullets at him to enable them to subdue him. Tyree dropped the knife as they had asked, but the careful plan vanished when one officer named Tuft-Williams, contrary to the established plan, charged Tyree and tackled him. (Today’s majority opinion describes this phase as “The Plan Goes Awry”; I think that’s a euphemism.)

Tyree and Tuft-Williams landed on the ground, near each other. The officer started to roll away, and Tyree picked up the knife and held it aloft. At this point – about two seconds after the tackle – a detective at the scene, Bradley Colas, fired a single shot, hitting Tyree. Despite receiving immediate medical attention, Tyree died.

Tyree’s personal rep sued for gross negligence and battery. At trial, the circuit court allowed the jury to decide both claims.

Detective Colas testified that the fired his weapon because he believed that Tyree was about to stab Officer Tuft-Williams. He said that he perceived that Tyree was moving the knife toward Tuft-Williams, though other officers at the scene saw no such movement; all they said was that Tyree held the knife in the air.

The jury sided with the personal rep, awarding her damages against Colas on the battery claim only; the circuit judge entered judgment on the verdict. The detective got a writ.

Today a bare majority of the Supreme Court votes to reverse and enter final judgment for the detective. Justice McCullough writes for Justices Powell, Kelsey, and Chafin; he concludes that the adverse-party-witness rule compels a finding that the detective acted in defense of another’s life.

Normally, a jury is free to accept or disregard any testimony in a trial. Credibility is purely a jury question, and appellate jurists have long shied away from second-guessing the body that got to hear witnesses testify live. But there’s a narrow exception to that principle: When a party calls an opponent as an adverse witness, the calling party is bound by that testimony unless it’s contradicted by other evidence or is inherently incredible.

Today the majority concludes that the detective’s testimony about his perception of danger is uncontradicted and is not inherently incredible. It thus finds that a finder of fact was effectively required to believe it, so the trial court should have struck the plaintiff’s evidence. That is, the justices rule that the detective’s testimony conclusively established the defense-of-another defense.

I mentioned a dissent, and it’s spirited. Not that one would expect a subdued dissent from Justice Russell, who writes for the chief justice and Justice Mann. The dissent acknowledges the evidence cited in the majority opinion, and concurs that the adverse-party-witness rule is an exception to the right of the jury to make unfettered credibility determinations. But in the dissenting justices’ view, the majority’s recitation of the facts is too breezy, and omits evidence that could entitle a reasonable jury to find that the detective’s version of the story ain’t necessarily so.

Here’s one key example. As I mentioned above, after the tackle the detective saw the knife in the air, analyzed the situation, and concluded that his law-enforcement partner was in grave danger, so he fired – all within two seconds. Part of that calculus was his testimony that Tyree was moving the knife toward the officer. But the other officers didn’t corroborate that perception, and a jury might not have found that Tyree was actually threatening anyone with it.

There’s more. Here’s a passage from the dissent:

Tyree was fifty-seven years old and suffered from physical disability that caused him to use a cane or walker to get around. Both the video evidence and the testimony established that his movements were not those of a physically vigorous person, with one police witness characterizing Tyree’s movements as “shuffling or stuttering[.]” This contrasts with Tuft-Williams, who was younger, an active member of the police force, and who, from the video evidence, did not suffer from a physical disability sufficient to impair his movements. Certainly, Tuft-Williams’ movements at the time of the tackle and immediately afterwards would not be characterized as “shuffling or stuttering.” A rational juror was entitled to consider the contrast in the physical condition of these two individuals in determining whether it was reasonable for Colas to conclude that Tyree posed a lethal threat to Tuft-Williams, even if Tyree fell in close proximity to Tuft-Williams after Tuft-Williams tackled Tyree by surprise.

The majority opinion mentions nothing about Tyree’s physical (as contrasted with mental) condition; the dissent has to drag these facts into the case long after the majority has rested. The majority doesn’t even touch this issue.

Note that there are two components to the detective’s defense. He had to establish that he actually perceived an imminent risk of serious harm or death, and that that perception was reasonable. The first of these is subjective while the second is objective. The dissent insists that his testimony can only establish, at best, the first component, and that assumes that the jury believes him; it was up to the jury, assessing all of the evidence, to decide the objective criterion. The Supreme Court has now countermanded the jury’s decision on that aspect of the defense.

This is the second consecutive SCV opinion to feature a troubling dynamic: The dissent raises important points that the majority decides not to touch. Last week, Justice Mann’s solo dissent in Forness v. Commonwealth contained multiple highly plausible arguments that the concise opinion of the court just ignored, without attempting to refute them. These objections aren’t surprises; the justices who write majority and dissenting opinions exchange drafts in advance, so each can see and address what the other is writing.

Justice Russell acknowledges that a reasonable jury, receiving testimony such as this, may well choose to accept the detective’s version and return a verdict accordingly. But that didn’t happen here; the jury saw the testimony the other way. The Supreme Court’s decision today, the dissent posits, amounts to a finding that no rational jury could have found otherwise.

O those among ye who try cases, harken to my warning: This opinion is a strong suggestion that you should call an adverse party as a witness only under extremely dire circumstances. The Supreme Court, normally deferential to jury verdicts, has signaled its willingness to take away a plaintiff’s verdict based on a defendant’s self-serving adverse-witness testimony. If you have other evidence that flatly contradicts the self-serving parts, then you can probably go ahead and force the Bad Guy to take the stand; but in my humble view, that’s still probably too risky now, in almost all circumstances.

For brevity’s sake, I haven’t discussed all of the disputed issues here. You’ll find disagreement over whether the plaintiff established that a battery had occurred, because that includes the component of whether a touching was justified or not. Under the law, the plaintiff has to prove a lack of justification to establish a battery; it’s essential to his case in chief. At trial, the detective’s lawyer admitted to the jury, “A battery occurred.” Despite that admission, the majority concludes that the plaintiff’s evidence establishes that the touching (here, by a bullet) was justified. The dissent just can’t stomach that inconsistency, making for very interesting reading for courtwatchers like us.

One last point. Citing the guaranty in Art. I, section 11 of our constitution, the Supreme Court often repeats the admonition that reviewing courts must accept the evidence in the light most favorable to the party who got the jury verdict. The dissent’s primary critique here is that the majority turns its back on that ancient principle, essentially reengineering the facts in favor of the detective.

After reading today’s opinions, you may agree or disagree with that criticism; I won’t try to steer you either way. Just don’t assume that fact-bending like that never happens on appeal. I can cite multiple occasions where appellate courts have rejiggered the facts to fit a desired conclusion. I’d prefer to believe otherwise, but having seen it before, I no longer subscribe to such a naïve perspective. It happens.


Va. Supreme Court reverses decision to award $1 million to family of man killed by VBPD

Va. Supreme Court reverses decision to award $1 million to family of man killed by VBPD

By Brian Reese & Brett Hall, WAVY-TV 10 – 1/26/2023

VIRGINIA BEACH, Va. (WAVY) — The Virginia Supreme Court has reversed a decision to award $1 million to the estate of Jeffrey Tyree, the man fatally shot by a Virginia Beach police officer in 2019.

It was a 4-3 vote, with Chief Justice Bernard Goodwyn, Justice Wesley G. Russell Jr. and Justice Thomas Mann in dissent. The decision means the jury’s $1 million award to the estate is effectively tossed out.

“We believe that the trial judge and jury got it right. We are deeply disappointed in the majority opinion and are considering a petition for hearing,” said Kevin Martingayle, the attorney for the Tyree estate, in response to the high court’s decision.

The City of Virginia Beach also released a statement on Thursday, saying they were “gratified” with the decision.

“The City and Detective Colas are gratified the Supreme Court of Virginia recognized that Detective Colas was justified in shooting Mr. Tyree in defense of Officer Tuft-Williams.”

Tyree’s family said the 57-year-old was experiencing a mental health crisis when police were called to his mother’s home in the the Arrowhead neighborhood, off Newtown Road, in February 2019. The family was trying to get him to consent to mental health treatment.

After several hours of negotiations, police said that Tyree, who’d been carrying a military-style knife, was tackled by an officer named Tuft-Williams. As Tuft-Williams rolled away after the tackle, police said Tyree picked the knife back up and approached Tuft-Williams in a “threatening manner.” That’s when Colas fired the single fatal shot.

Colas was eventually found to be justified in the shooting by Virginia Beach Commonwealth’s Attorney Colin Stolle, after a review of body camera evidence from the encounter.

Tyree’s family then sued for $15 million in civil court, saying what they really wanted was accountability. Colas was eventually found liable for battery by the jury and the family was awarded $1 million in damages. Colas then appealed, and the case reached the Virginia Supreme Court.

In writing the majority opinion for the Virginia Supreme Court in Thursday’s decision, Justice Stephen McCullough said that the estate for Tyree failed to provide evidence that contradicted VBPD officer Bradley Colas’ claim that he was acting in defense of another officer. The appeal came after Colas tried and failed in asking a lower court to strike the plaintiff’s evidence and to set aside the verdict.

The high court majority cited precedent with what’s called the adverse witness rule in their reasoning. The arcane rule says when a party calls an opposing witness, that witnesses’ testimony is “binding” on the calling party if that testimony isn’t contradicted by other evidence.

“Every human being is a creature of eternal moment and infinite worth,” McCullough wrote. “Tyree’s death constitutes an irreparable loss to his family and friends. Although the outcome was tragic, Detective Colas’ decision to fire his weapon, on these specific facts, constituted defense of another as a matter of law … nothing in this testimony was inherently incredible, nor was it contradicted by other evidence.”

In writing for the dissenting justices, Justice Wesley Russell Jr. said in fact there was contradicting evidence, such other officers not corroborating Colas’ underlying claim that Tyree was moving the knife toward one of the officers when Colas fired. Russell also says the majority left out key facts such as that Tyree was disabled and would normally required a cane or walker, and wouldn’t have been able to move quickly after he’d just been tackled.

“Viewed under the appropriate standard, the video, photographic, and testimonial evidence established that Tyree possessed the knife and held it aloft after being tackled by surprise, but nothing more,” Russell wrote.

The dissent said that a reasonable jury could have sided with Colas’ testimony, but they didn’t in this case, and the circuit court didn’t err in allowing evidence.

“The Supreme Court often repeats the admonition that reviewing courts must accept the evidence in the light most favorable to the party who got the jury verdict,” longtime Virginia lawyer L. Steven Emmert wrote in an analysis of the case. “The dissent’s primary critique here is that the majority turns its back on that ancient principle, essentially reengineering the facts in favor of the detective.”

Several New Appellate Tidbits



(Posted January 25, 2023) Opinion day at Ninth and Franklin is tomorrow – maybe; there’s no assurance that we’ll get anything new – so let’s see what’s going on elsewhere in the appellate world.


Chief Judge Decker gets another term

The Supreme Court announced last week that Court of Appeals Chief Judge Marla Decker has been elected by the 17 CAV judges to a second term in the center chair. She’ll serve another four-year term as of January 1, 2023. No matter what happens between now and the dawn of 2027, it likely won’t be as eventful as her first term, when she oversaw the expansion of the court from 11 judges to 17 and the beginning of the court’s plenary appellate jurisdiction. I assure you that she wasn’t bored.


SCOTUS stumbles out of the gate – finally!

The Supreme Court of the United States handed down its first decision of OT’22 on Monday. That doesn’t seem like major news, especially where the ruling was 9-0 in a fairly arcane area of the law. The real news is that it took the Court over 100 days to announce its first decision of the term. We’ve never seen a pace this slow before. Don’t just take my word for it; the stats geeks at Empirical SCOTUS are backing me.

It isn’t as though the justices are overtaxed with merits cases; the granted docket is quite small as measured by the standards of just a few years ago. The delay might be a function of the leak last spring of the opinion in the Dobbs abortion appeal. That is, it might take longer because the Court has implemented security and secrecy precautions. But we can’t know, because any such secrecy measures are, appropriately enough, themselves secret.


The Case of the Missing Writs

This was probably the title of an obscure Hardy Boys book, or maybe Nancy Drew; I forget. If only we could set one of these youthful sleuths onto the trail of all those SCV appeals that just must have been granted over the past three months.

Wherever they’re hiding, the Supreme Court isn’t handing out any hints. As I’ve noted here recently, the justices have convened two sets of writ panels since last autumn. The December panels comprised just 26 appeals; I think I recall that the October panels included something on the order of 45, though my memory of that isn’t clear. (Update: I’ve checked, and have been informed that there were 50 petitions on the October writ panels dockets.) From that pool of roughly 70 petitions, the court has announced just four writ grants – one from the October panels and three from December.

In my previous musings on this worrisome subject, I’ve posited that the likely cause might be that the Clerk’s Office is backed up and is getting writs posted on the court’s website after a substantial delay. I no longer believe that that’s a likely explanation. Instead, I conclude that the Supreme Court simply decided to award only one appeal out of the 40-some petitions argued in October. One!

If you make your living at appellate lecterns, as I do, you should read this news and tremble. It’s nice to have an of-right appeal in the CAV, but if the justices will now be handing out writs with even tinier tweezers than before, that’s a bad sign – at least in my view.


A return to the blogosphere

I was delighted to learn over the weekend that Jay O’Keeffe has resumed posting commentary at his website De Novo, after an absence of almost a year and a half. Jay writes very well and offers wonderful insight on the appellate world.

This welcome development means that Jay is joining John Koehler and me as, I hope, regular contributors to the discussion of appellate matters here in the Commonwealth. We occasionally hear from John O’Herron (this is subtle encouragement for you to write more often, John) at ThompsonMcMullan, too.

Want to join us? There’s room! Don’t imagine for a moment that we’ve covered the waterfront on Virginia appellate matters. I’ll repeat my offer: If you’re publishing and I don’t know about you, or if you’re just jumping in, let me know and I’ll help spread the word for you.

One last point: On Saturday at the Virginia Bar Association’s annual meeting, a panel comprising CAV Judge Dan Ortiz and Jason Konvicka of Allen & Allen spoke for an hour about what we’ve learned from the first year of of-right appeals. Jay posted an excellent summary of the presentation, so rather than my duplicating his labors, I’ll just send you his way.


Tone deafness

This last point isn’t appellate, but I can’t stop myself. The American Bar Association – of which I’m a proud and happy member – will convene its Midyear Meeting next week. (The ABA’s calendar runs from August through July; that’s why February 1 counts as “midyear.”) A horde of lawyers will descend on New Orleans, Louisiana, for six days, ostensibly to talk law stuff but in reality to indulge in Louisiana’s incomparable cuisine. It’s just as well that I’m not going to this one, as I don’t need to gain 20+ pounds in a single week.

This is one of the association’s two biggest events of the year, so its numerous sections, conferences, and other subdivisions will be well-represented there. The host hotel, the Sheraton, is big but not big enough to house everyone, so a number of ABA subdivisions will gather at other nearby hotels. The one that caught my eye was the Forum on Affordable Housing. That body will meet, awkwardly enough, at the Ritz Carlton. You may insert your self-generated punch line here.


Analysis of January 19, 2023 Supreme Court Opinion



(Posted January 19, 2023) This morning brings the first decision of the year from the Supreme Court of Virginia. In Forness v. Commonwealth, the court addresses an expungement petition filed by a defendant who admittedly was accused of the wrong crime.

Forness was the involuntary recipient of a document entitled, “WARRANT OF ARREST – FELONY.” The charging language alleged that he “did unlawfully and feloniously in violation of Section 18.2-266 . . . drive or operate a motor vehicle while having a blood alcohol concentration of 0.08 percent or more by weight” and did so “after having committed one prior violation of § 18.2-266 or an offense set forth in subsection E of § 18.2-270 during a period of five to ten years from the date of the current offense and after having committed a previous violation of § 18.2-36.1, 18.2-36.2, 18.2-51.4, 18.2-51.5, or a felony violation of § 18.2-266.” The shortcut language for this is a felony charge of a second DUI after having previously been convicted of felony DUI.

Forness did indeed have a prior DUI conviction, but it wasn’t a felony. That led the local prosecutor to move the general district court to amend the charge to plain-vanilla DUI-second, which is a misdemeanor. The court granted that motion and then convicted Forness. An appeal to circuit got him nothing but another conviction. But that isn’t the heart of our tale.

Forness filed a petition to expunge records of the mistaken felony arrest. He pointed out that he works in the jewelry industry, and having a record that indicates falsely that he has a felony conviction can impair his ability to get work; he also might face an incorrect charge of carrying a firearm by a convicted felon. The arrest record is in state and national criminal databases, so this mistake will follow him everywhere.

At a hearing on the expungement petition, the circuit court ruled that he hadn’t established the required manifest injustice to justify judicial intervention. The court reasoned that Forness’s fears about employment opportunities were speculative.

Forness got a writ, and today a divided Supreme Court affirms the denial of expungement. Justice Powell writes the opinion of the court, and her reasoning is simple; indeed, the majority opinion is just 4½ pages. Applying the right-for-a-different-reason approach, the justices hold that Forness can’t establish that the original charge resulted in an acquittal or nolle prosequi, “or [was] otherwise dismissed.”

Citing a 2011 decision involving a conviction of a lesser included offense, the court reasons that the amendment of the original felony charge down to a misdemeanor won’t satisfy the threshold criterion for expungement relief. Justice Powell notes that there’s only one primary-offense DUI statute; the felony/misdemeanor distinction only appears in a separate statute that sets out the penalties for a conviction. Because the underlying charge didn’t change, the court concludes that it wasn’t “otherwise dismissed,” so Forness isn’t entitled to relief.

For the first time in over four months, we have a dissenting opinion. Justice Mann finds it “confounding” that this case before the court. “After all, there is no dispute that Forness was charged with the wrong crime.”

In contrast to the short majority, the dissent is expansive – 12 pages in all. Justice Mann points out that the majority’s reliance on the lesser included offense precedent is ill-advised, because the prosecution has the burden to prove each element of the offense, including prior convictions, beyond a reasonable doubt.

The majority had held that the greater charge – the felony prosecution – subsumed within it the lesser charge of second-offense DUI. Justice Mann’s rejoinder seems to make a solid point: A fictitious prior felony conviction is something entirely different from the prior misdemeanor conviction that the prosecution had to establish in the amended charge. He adds,

The majority’s line of reasoning implies that a DWI is a DWI, no matter the aggravating facts. If that were the case, Code § 18.2-270 would not exist, the Commonwealth would never have amended Forness’ original charge, and this appeal would likely not be before us. After all, why would the Commonwealth need to amend the charge if Forness’ prior offense was not an element of the crime? Under the majority’s analysis, it could simply address the issue during the sentencing phase.

You know what? Good point! The majority opinion doesn’t touch it, so this objection to the affirmance goes unanswered. He also notes, persuasively, that if the prosecutor had taken another approach in the GDC – nolle prosequi followed by issuance of a new arrest warrant, or even trial followed by acquittal, there would be no doubt of Forness’s right to expungement relief.

Justice Mann goes on to address the manifest-injustice prong, the basis for the judgment below, even though the opinion of the court found it unnecessary to address that component of the case. The dissent concludes that Forness did make out a case of manifest injustice, so the case should be remanded.

I found myself nodding in agreement as I read through the dissent here. The expungement statute is remedial, and courts are supposed to construe remedial statutes liberally in furtherance of their purposes. I believe it’s more than merely plausible to view these facts as a form of dismissal of the original, mistaken felony charge. As I see it, the Supreme Court today interprets the requirement of “otherwise dismissed” quite narrowly, limiting the reach of this remedial act by the legislature. Forness now gets to live with this too-narrow reading for the rest of his life.


This Week’s Appellate Developments



(Posted January 12, 2023) The printing presses at Ninth and Franklin are quiet again this week, so let’s check on a couple of new matters.


Three SGs to speak in Richmond

Please don’t suspect me of shilling for ticket sales when I tell you about next Thursday’s Marshall Scholar series lecture featuring three former Solicitors General of the United States. It’s at the Virginia Museum of History and Culture. The topic of the lecture should be of interest to all caring Americans: The State of the Supreme Court. I’m not shilling because the event is sold out.

Personally, I regard this sellout as an appellate victory. Many, maybe even most, Americans can name the Attorney General, but precious few of them can name the current Solicitor or even explain what she does. (Alas, the current SG, Elizabeth Prelogar, won’t be there unless she’s already scored a ticket.)


January SCV session

The Robes convened a micro-session this week, gathering to hear two oral arguments on Tuesday and two more yesterday. The four appeals’ audio recordings are up on the court’s website, if you’d like to listen in. Indeed, you can take in the entire session in just two hours and 20 minutes. The justices will next gather for writ panels on February 15, and for the March session two weeks after that.

The January session always coincides with the beginning of each regular General Assembly session – the second Wednesday of the year. This enables the justices to attend the State of the Commonwealth address, a ceremony that I’ve long revered. Oh, it has its disadvantages – primarily the numerous and obligatory standing ovations that must be hard on attendees who don’t have my current advantage of two cobalt-steel knees. But I love the low-level pageantry, and the knowledge that our governors have been delivering this report since the dawn of the Commonwealth.

In case you’re wondering, I watched it on a computer screen. Bigwigs get invited; midwigs like me have to settle for a remote feed.


Quick Appellate Updates



(Posted January 5, 2023) I see no new rulings on the Supreme Court of Virginia’s website today, so let’s see what else is cookin’ in the appellate field.


An important appellate vacancy

I had to read the notice from the Fourth Circuit twice to believe it: The judges are looking for a new Clerk of Court. That probably means that the wonderful Pat Connor is retiring after a long tenure as the court’s “senior operations officer,” as the job listing describes it.

Calling Pat wonderful, as I just did, is an understatement. She’s always been available to answer my broader questions about the court, and has been generous with her time when appellate CLE programs come along. Her cadre of case managers always do a terrific job of helping litigants and lawyers with questions about court procedures and specific appeals. I’m happy for her and sorry for the rest of us in the appellate guild.

If you want the job, click on this link to see if you’re qualified. You don’t need a law degree, but that credential is preferred. If you get the gig, promise me that you’ll be as helpful as Pat and her staff have always been.


Final D-GI for 2022

The old year is in the books, so it’s time for our quarterly visit to the stats vault. We’ll start with the 4th quarter David-Goliath Index, which tracks the Supreme Court’s rulings in appeals with an identifiable big-guy-vs.-little-guy dynamic. I’ll repeat my usual caveat, which is that there’s an element of subjectivity on my part in deciding which appeals count. I also exclude most appeals where the court affirms in part and reverses in part, unless one side has prevailed nearly totally.

In the last three months, I spotted only four qualifying opinions (none of the court’s four 4Q unpubs presented a David vs. Goliath scenario), and three of those came down in Goliath’s favor. That makes our final tally for the year 6 wins for our Davids and 19 for the Goliaths, for a year-end index of 24/76. For comparison’s sake, last year’s index was 28/72 and 2020’s was 30-70. I recommend that you not plot a gradual downward trend out of these numbers, because this year’s sample size – n=25 – is just too small for broad pronouncements.

It is, however, perfectly safe to conclude that the modern court is decidedly hostile territory for most of our Davids. A generation ago, the index approximated a 50/50 split. It’s been many, many years since David came anywhere close to winning half of the time. One other conclusion comes from raw numbers: only 25 qualifying decisions this year, down from last year’s total of 53.

As long as we’re on that subject …


Preliminary year-end caseload indicators

Please accept the following with a small grain of salt. I won’t have the official full-year stats reports from the SCV and the CAV for at least a couple of months. These figures are accordingly unofficial, though they should be very close.

Supreme Court Clerk Muriel Pitney opened 845 new files in 2022. That’s a huge, though entirely predictable, drop from the 2021 total of 1,239. Most of the decline is because almost all appeals now must stop first at the Court of Appeals, unlike in previous years. I expect this number to rise noticeably, though probably not to the 1,200 level, in 2023.

A block away, CAV Clerk John Vollino opened 2,009 new files last year. That’s a significant, though again predictable, rise from the 2021 total of 1,397. Let’s call it a 44% increase in caseload in one year.

Looks like a lot more work, right? But let’s add a little context: In 2019, the last pre-pandemic year, there were 2,090 new filings in the Court of Appeals. And back then, they only had eleven judges. Now they have 17, plus a larger Clerk’s Office (so I understand, at least). On a per-judge basis, the caseload has dropped from 209 four years ago to just 118 last year.

Anticipating these watershed changes, I posted an essay two years ago – March 18, 2021, if you want to check – in which I guessed what the 2022 stats would show. If you’re one of those folks who enjoy reading me say, “I got it wrong,” grab some popcorn and keep on reading; this ought to be fun. Back then, I anticipated that the CAV’s caseload might swell to perhaps 3,250 new filings in the calendar year that we’ve now just concluded. That is not a typographical error.

A few voices rose in dire warning when the General Assembly considered Senate Bill 1261 back in early 2021. Those voices feared that the CAV would be swamped with an avalanche of new work if appellants got an appeal of right (like every other jurisdiction in our fair nation provided back then; we were dead last to do so). I tried to calm those concerns by an estimate that proved to be wildly too high. Don’t cry for the CAV clerks; they’ll be fine.


A dismaying session schedule

The Supreme Court of Virginia convenes next week for the January session. That session always coincides with the beginning of the General Assembly session and the corresponding State of the Commonwealth address by the Governor. If you watch that speech – and, being a Virginia law geek, I always do – you’ll see several of the justices in the front row, off to the Governor’s right. You’ll be able to spot them in two ways: They’ll be the only ones wearing black robes, and they’ll be the only ones not applauding. (Impartiality has its price.)

Once again, the court will convene a micro-session. There are only four appeals on the docket. That matches the total from last year’s June session. For reasons that probably have to do with the availability of a senior justice, the court is splitting the docket into two days – two appeals on Tuesday, January 10, and two more the next day (which is the date of that speech).

For those of us who make our livings arguing appeals, this is a worrisome development. Five of the court’s seven most recent merits dockets (including next week’s session among those seven) have comprised ten or fewer appeals. Again for historical context, a generation ago a week’s session might well include 35 or more full appeals, spread over the full five days of session week.

Is this, too, one of the “victims” of SB 1261? I don’t think so; in fact, almost certainly not. Before 1261, it took a normal Supreme Court appeal perhaps 10-12 months to get from circuit-court judgment to Supreme Court argument. Of all the appeals argued on the merits to the Supreme Court in 2022, exactly one of those had a docket number beginning in 22 (referring to the year when the SCV Clerk got the record). All of the other ones came to the court in 2021, before the law changed to divert appeals to the CAV.

There’s more ominous news. Just three weeks ago, I noted with alarm that only one writ appeared on the SCV’s writs-granted web page in the fourth quarter of the year, despite the passage of 58 days after the October writ panels. Those writs tend to pop up two to three weeks after the panel date. It’s now January 5, and there’s still that one lonely writ on the page. None have appeared from the December 6 panels.

Maybe this is a temporary tech issue that the IT folks at Ninth and Franklin will fix. Maybe it reflects a slammed Clerk’s Office that’s impaired by its staff’s holiday travel schedules. Maybe there’s some other benign reason that evades the grasp of my imagination. In other words, maybe this doesn’t reflect a conscious decision by the justices to clamp down even further on the issuance of these precious writs. Maybe.


Analysis of December 29, 2022 Supreme Court Opinions



(Posted December 29, 2022) “There is no doubt that Marley was dead. This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.”

These lines appear near the opening of A Christmas Carol, Dickens’s wonderful holiday tale. It seems fitting to invoke them, because the Supreme Court of Virginia provides three hauntings (published opinions) this morning.


The First of the Three Spirits

Criminal law

The rule of lenity haunts us first, in Morgan v. Commonwealth. It’s a prosecution for carrying a concealed weapon while intoxicated. The statute in issue here is a cousin of the basic proscription of carrying a concealed weapon.

“There is no doubt that the weapon was concealed. This must be distinctly understood.” Morgan, who possessed a concealed-carry permit, was stopped for erratic driving one day here in my sunny home town of Virginia Beach. He immediately reported to the investigating officer that there was a handgun in the car, holstered and inside a zipped bag.

The officer eventually charged the driver with DUI and added other charges, including the one at stake here. At trial, the driver argued unsuccessfully that he wasn’t carrying the weapon; it was inside the bag and unavailable for use or surprise. That defense harks back over a century to a 1909 case in which a defendant was convicted of carrying a concealed weapon that was “encased in a scabbard that was concealed within a saddlebag.” The Supreme Court reversed that conviction, holding that the statute didn’t reach a weapon thus secured.

In 1979, the justices modified the holding of the saddlebags case, ruling that a pistol inside a woman’s purse was indeed a carried concealed weapon. After all, the owner could merely reach into the purse, grab the gun, and shoot right through the bottom of the purse. That set of Robes added that the saddlebags case could be factually distinguished, but in case of any conflict, it was overruled.

That brings us to the 21st Century. After a conviction at trial and an affirmance in the Court of Appeals, the justices – to my surprise – reverse and enter a final judgment of acquittal. Noting a difference in the language of this statute and the general prohibition of concealed-carrying, the court rules that there are two possible interpretations of the Code. When that happens, the rule of lenity dictates that a close call goes to the defendant, because we don’t want to punish people for violating ambiguous criminal statutes. The SCV rules today that the General Assembly didn’t intend to reach this conduct, based on the specific wording that it chose to enact.


The Second of the Three Spirits


The second spirit has haunted us before: The litigants in Isle of Wight County v. International Paper Company last appeared two years ago in an appeal that resulted in a remand, a trial judge’s worst nightmare. Today they return, hungry for more.

This, my loyal readers may recall, is a dispute over machinery and tools taxes for a large paper factory. The county assessed the machinery and tools at $139 million. In a prior challenge, the company obtained tax relief of $2.4 million for tax years 2012-14, and the county had to provide other M&T taxpayers with comparable relief.

This left the county with a real fiscal problem. Its solution was to jack up the tax rate – not the assessment values, but the ad valorem multiplier – for M&T taxes for the 2017 tax year only. The rate went from $1.75 per $100 of value to $4.25 per $100.

A jolt like that – perhaps combined with the knowledge that the county could in the future impose another short-term rate hike to raise funds – might foreseeably inspire some of the county’s large taxpayers to seek a friendlier home for their operations. The decisionmakers there accordingly fashioned a one-time tax-relief program to ease the burden of the new higher tax rate. This program allowed a credit to those taxpayers affected, capping their tax increase at the amount of the tax refund they had just received. In other words, they county designed the program to be tax-neutral for those taxpayers.

It didn’t work; International Paper sued and, after the circuit court struck its evidence, got that reversal and remand in 2020. In that reversal, the justices ruled that the company made out at least a prima facie case for relief.

On remand, the court conducted a hearing in which the county adduced almost no evidence; just an admission that the company owned machinery and tools that were subject to taxation. Deciding the case on the merits, the learned judge held that the company had rebutted the presumption of correctness and had shown that the tax was not uniform. He had evidence in the record to back that up, too; today’s opinion notes that International Paper paid an effective tax rate of $3.94 per $100, while another taxpayer’s rate was $2.76. The court ordered a refund of the entire tax payment of almost $6 million for that tax year.

Swallowing hard, the county petitioned for a second writ. The spirits of Christmas were merciful, and the justices agreed to revisit the dispute.

Today’s ruling will haunt the county – the Supreme Court holds that the circuit judge had ample grounds to find a lack of uniformity. It rejects the county’s fallback request to invalidate only the tax relief program and leave the $4.24 tax rate intact. In doing so, the court agrees with the company that the tax increase and the tax-relief program were “interrelated and serve complimentary purposes.” They were enacted in tandem and they work together. That means that the entire framework falls.

There’s one final nightmare for the county. In the Supreme Court, the county’s amici asked the justices, in the event they agreed with the circuit court, to impose at least the old $1.75 tax rate. The county’s lawyer echoed this request in oral argument. But he had to admit that he hadn’t made that request either at trial or in appellate briefing. That means that this ultimate fallback position is defaulted under Rule 5:25, and the county gets zero M&T tax dollars from International Paper’s $139 million worth of equipment for that tax year.

Now you see why I described it as a nightmare: The sudden loss of nearly $6 million has to be devastating for a rural county like Isle of Wight. In this litigation, the county chose to roll the dice, hoping to enhance its odds of a large payday by not inviting the courts to “compromise” on a lesser figure. The dice came up snake eyes this morning.


The Third of the Three Spirits


[I’ll confess that I’m tempted, out of a desire to be faithful to Dickens, not to provide any commentary here, to be like the third spirit in A Christmas Carol – mute and terrifying. But I can’t leave you to just read the opinion for yourself and deduce the scary parts, so I’ll go ahead and analyze it.]

The Uniform Commercial Code. There; I’ve said it, and have no doubt petrified some of my readers who grew to despise the UCC while in law school. But despite the minor-chord music that’s playing in the back of your mind, today’s ruling in Arch Insurance Company v. FVCbank is reasonably simple and easy to understand. Fear not; walk with me as we explore the snowy landscape of bank deposits.

The dramatis personae here include a subcontractor, its bank, and a surety company. The contractor set up accounts with the bank for three significant construction projects. The bank agreed to extend an $8 million credit line for the contractor’s operations, and extended payments accordingly. The agreement required the contractor to deposit its project receipts into something called a cash management account. Daily, the bank would grab (the technical banking term is “sweep”) the funds in this account to pay down the credit-line debt. The contractor granted a security interest to the bank over all of its deposits.

The next year, the contractor separately agreed with the surety company for payment and performance bonds for the contractor’s work. The contractor agreed that the surety would be subrogated to any of its claims in the event the surety had to bail it out of financial trouble.

If there were no ensuing financial trouble, we wouldn’t be having this conversation now; would we? The contractor ran into trouble and the surety agreed to deposit almost $4 million into the bank to help the struggling principal. The contractor asked the bank to accept the payment in trust, to protect the surety, but the bank never agreed to that. When things finally got bad enough, the bank swept $2.5 million to pay down its loans.

The contractor and the surety sued, claiming conversion and unjust enrichment. At trial in circuit court, the surety offered an expert witness in tracing the deposits. The court sustained the bank’s objection as to relevance and eventually dismissed the two claims, entering final judgment for the bank.

On appeal, the surety implored the Supreme Court, just as Ebenezer begged Jacob Marley’s ghost, “Speak comfort to me.” The court answers today, just as Marley did back then, “I have none to give.” The court affirms both trial-court rulings. The analysis in today’s 19-page opinion looks complex, but it really comes down to a simple principle: The bank had a perfected security interest in all of the deposits, so it acted well within its rights in sweeping the funds. The surety can rise no higher in its rights than its principal, and as Justice Mann’s opinion points out, “Regardless of the bonded or nonbonded character of Dominion’s funds, Arch only obtained Dominion’s right to the deposit accounts – a right Dominion had already signed away.”

*   *   *

In Dickens’s tale, a reformed Ebenezer observes that “The Spirits have done it all in one night. They can do anything they like. Of course they can. Of course they can.” The Robes today match that feat, doing it all in one morning for these three sets of litigants. With these rulings, there are only six unresolved appeals from among the 14 argued in the November session.

Will the court again clear its merits docket completely before the convening of the next session on January 10? I wouldn’t bet on that, as there’s only one more opinion day before then. But if you believe in Christmas miracles, who knows?


Notes as the Year Ebbs



(Posted December 15, 2022) This part of today’s post isn’t remotely appellate, but it matters to me. I hope you’ll forgive the intrusion.

Today marks the 99th anniversary of the birth of my stepfather, Johnnie Beachem. He married my widowed mother when I was five, and from then on, he was Dad. If I’ve achieved Southern gentlemanhood, it’s because of him. He died not quite fifteen years ago, with my prodigious debt to him still unpaid.

Today brings no new rulings from the Supreme Court of Virginia, so let’s scan the landscape for developments.


Where have all the writs gone?

Each year, the SCV calendars six of what I’ll call writ sessions, where panels of justices hear oral argument in support of petitions for appeal. These generally fall on Tuesdays, and come around either two or three weeks before a full session of the court.

On a separate page, the court lists the cases where it has awarded appeals; each such listing contains the wording of the granted assignments of error, so courtwatchers can get an idea of what questions the court will be answering in the reasonably near future. I checked that appeals-granted page this morning, and was surprised to note that only one appeal listed there postdates the October 18 panels.

Normally I would expect to see writs pop up on the granted page within two to three weeks, possibly four, after the panel date. The October panels are now eight-plus weeks in the rear-view mirror. This means one of two things: Either the Clerk’s Office is backed up and will get to the October grants shortly, or else (ulp!) The Robes said “No dice” to all but one petitioner that month. We’ll just have to wait and see.

The last writ session of the year was last week, so writs from that date should start appearing on the website soon.


Courts’ holiday closings

The Supreme Court and Court of Appeals of Virginia will both close their clerk’s offices at noon next Thursday, December 22, and will remain closed through an extended holiday weekend. They’ll reopen Tuesday, December 27. The following week, they’ll be closed Monday, January 2 to mark the New Year’s holiday.

I don’t have any word yet from the Fourth Circuit. Historically, that court has been less indulgent of its employees, usually closing only for one day per holiday. I’m guessing that they’ll be shuttered December 26 and January 2, and open during normal business hours during each weekday other than those. When I get definitive word on that, I’ll post an update here. Update Dec. 19: The Fourth Circuit will be closed Friday, December 23 and Monday, December 26 for the Christmas holiday. A week later, it’ll be closed on Monday, January 2.


SCOTUS giveth and taketh away

I’ve seen the news on SCOTUSblog that Those Other Robes will resume the time-honored but Covid-interrupted practice of handing down opinions live in open court. Since the pandemic began, opinions have arrived online only, issued at maddening ten-minute intervals when we got more than one in a given day. That practice will end.

Perhaps you’re salivating at the prospect of listening to these releases whenever the Court gets around to deciding appeals argued during OT22. Get used to disappointment. While the Court gratifyingly will continue to live-stream oral arguments, it has decided for some reason not to livestream opinion announcements. You can hear them if you wish; you just have to wait until the beginning of the following term, in the next October.


Analysis of December 8, 2022 Supreme Court Opinion



(Posted December 8, 2022) It’s Thursday, and The Robes don’t disappoint. The Supreme Court of Virginia hands down a single published opinion this morning. It’s a declaratory-judgment action between two insurance companies, fighting over the subrogation rights of a Workers’ Comp insurer against the insurer of a tortfeasor.

Okay, I’ll admit that this one isn’t going to generate a banner headline in tomorrow morning’s newspapers. It barely generates a banner headline here at VANA. But let’s plunge in and see what The Robes hath wrought.

Today’s appeal is styled Hartford Underwriters Insurance Company v. Allstate Insurance Company. Hartford is the Comp carrier and Allstate insures the tortfeasor. The dispute arose after a motorist crashed her car into a storefront, injuring an employee inside. The employee obtained Comp benefits and retained the right to sue the driver.

Except the Comp benefits greatly exceeded the available liability-insurance coverage. The liability carrier decided to tender its policy limits of $50,000. The injured employee wanted to accept the tender and pursue her own UIM coverage, but learned that doing so might funnel all of the proceeds directly to the Comp insurer, as subrogee. She understandably decided not to accept the tender.

What do you do when someone won’t do what you want him or her to do? You haul ‘em into court; that’s what. The liability carrier filed an interpleader action asking the circuit court to figure out who was entitled to what. The employee insisted that, by law, she was at least entitled to the amount of the attorney’s fee for pursuing a successful claim against the tortfeasor’s insurance.

Today’s opinion lists a fee of $16,667, or the classic contingent fee of one-third of the gross recovery, plus a bit over $200 in costs advanced. If I’m reading this opinion correctly, that means that the insurers sent some very capable lawyers – I’ve seen the listing of counsel, and these folks are very capable – to Richmond to argue over roughly $17,000.

Not that I mind! I like it when appellate lawyers get paid. Nevertheless, that relatively small sum is the playing field in this case.

The issue in circuit court was whether the Comp carrier could use intercompany arbitration to resolve the competing claims and distribute the money. That court ruled that the Comp carrier got only about $33,000 out of the $50K. The Comp carrier appealed and got a writ.

Today the justices affirm, holding that the employee did indeed retain the right to sue the tortfeasor, and that the Comp carrier was entitled to a lien on any recovery. The opinion goes on to cite a 2017 amendment to a subrogation statute. That amendment, the court holds today, effectively overruled a key holding of a 2016 Court of Appeals decision in this field. Now, arbitration can only determine “the amount and validity of the employer’s lien.” The previous version of the statute had allowed the Comp carrier to satisfy its lien through arbitration. That remedy isn’t available anymore.

As a practical matter, satisfaction of a Comp lien now must await “an additional event, a settlement or verdict in a claim” by the tort victim or its subrogee carrier. Until such an event, the Comp lien remains inchoate.

*   *   *

In addition to the published opinion in Hartford Underwriters, the Supreme Court decides three appeals by unpublished orders:

  • In Sasson v. Shenhar, the reprise of a dispute first decided by the Supreme Court 14 years ago, the court issues a right-for-a-different-reason ruling, holding that a DJ action is the wrong procedural vehicle to challenge an old contempt order.
  • Handberg v. The Morgan Center is, in a sense, another repeat appearance. It’s a sequel to Handberg v. Goldberg from three years ago. Today the justices affirm a mootness dismissal in a case involving convoluted facts over two corporations. The Supreme Court affirms the learned trial judge’s holding that the case is moot.
  • Finally, in Anderson v. Bowen, the justices reverse a distribution order for numerous guns in a decedent’s estate.

The Supreme Court has now decided five of the 14 appeals argued in the November session, just five weeks ago. A part of me is rooting for the court to again clear its argument docket before convening for the January session on January 10, though the holidays make that somewhat unlikely. But I won’t rule it out! The Robes have become very good at surprising me on little things like this.


Analysis of December 1, 2022 Supreme Court Opinion



(Posted December 1, 2022) I got one right! At the time of the Supreme Court’s November session four weeks ago, I gingerly predicted that today would be the first likely date on which we might see rulings from that session. Today the court hands down a single opinion in an insurance-coverage case.

The issue in Geico Advantage Insurance v. Miles is whether an insured can “stack” the uninsured coverage and the underinsured coverage in a single policy. Miles was injured in a collision caused by two other drivers. One of the others stopped at the scene; the other took the coward’s approach and fled. He thus became John Doe.

The driver who stopped at the scene had statutory minimum coverage of $25,000 per claimant. Miles’s special damages greatly exceeded that, so she turned to two insurance policies that protected her: her own vehicle’s policy, and one owned by her brother, with whom she lived. Each had $50,000 in UM/UIM coverage. Geico affiliates issued both of these policies.

The at-fault driver’s insurer tendered its $25K policy limits. Miles sought payment from the two Geico policies, asking for $75K from her own policy and $100K from her brother’s. She reasoned that she was injured by both an uninsured driver and an underinsured driver, so both coverages applied. Allowing a credit for the original $25K, that made her claims on the Geico policies $175,000.

Geico responded that it only owed $50,000 on each of the policies. That led Miles to head to court, where she filed a declaratory-judgment suit against the insurers. The circuit court agreed with Miles and found that both policies’ UM and UIM coverage were available to her. The court declared that Geico owed her another $75,000.

Today’s opinion from the Supreme Court notes that there’s a split in the circuits on this issue. Today the court comes down on the side of the insurer, holding that UIM coverage is derivative of uninsured coverage. It then rules that you can’t stack both, even where, as here, the injuries are caused by one uninsured and one underinsured driver.

My sense is that this may be a very significant ruling in tort law, as inflation has steadily eroded the value of statutory minimums.

A Quick Peek Around The Landscape



(Posted November 17, 2022) The Robes understandably have no opinions for us this morning – the oldest undecided merits appeal was argued just 16 days ago – so let’s survey the countryside for new developments.


Appellate holiday closings

The Fourth Circuit has announced that its clerk’s office will close next Thursday and Friday, November 24-25, for the Thanksgiving holiday. The Supreme Court and Court of Appeals of Virginia will lock the doors a little earlier, at noon on Wednesday the 23rd. All three courts will reopen the following Monday.

Here’s my usual addition and caveat about appellate deadlines: The closures automatically extend any deadlines that would otherwise expire during the period of closure (including November 23 in the state courts). That means that if you have a filing deadline of November 25, you automatically get an extra three days, and your new deadline is November 28. The caveat is that the automatic extension only applies to deadlines for actions in the appellate courts. If you have something to file in your local trial court – a notice of appeal, appeal bond, transcript, etc. – and that local court is open, then you don’t get the extra time and you must meet the original deadline.


A stinging per curiam

Yesterday a panel of the Fourth Circuit issued a published per curiam opinion. Most per curiams are fairly routine affairs; they don’t break any new ground and are usually of interest only to the immediate parties. But the court has some hot words for the lawyers in Capps v. Newmark Southern Region LLC. This is a dispute between a real-estate brokerage and one of its contractors.

While the lawsuit was about claimed breaches of contract, the real issue here is diversity jurisdiction. The case matured in district court. The court dismissed most of the independent contractor’s claims, but allowed a breach-of-contract claim, and the brokerage’s similar counterclaim, to proceed to a bench trial, in which the brokerage prevailed.

During oral argument in the Fourth two months ago, the panel asked the lawyers about the LLC’s citizenship. The court directed the company to file a statement describing its membership and citizenship. The lawyer for the company was happy to comply.

Unfortunately, that letter revealed the inconvenient truth that, through a complex set of LLC and partnership owners, at least one member of the LLC’s corporate parent – a limited partnership – shared a “home” state with the plaintiff. Federal practitioners know well that that destroys diversity, and the federal courts don’t have jurisdiction.

The order includes this short passage: “Overlapping citizenship between Capps and a limited partner of Newmark Holdings, L.P. is a purported revelation to the parties.” Uh-oh. The modifier purported in that sentence reveals a bit of judicial pique. The lawyers, this phrase implies, should have checked on this before the case blossomed and the district court expended its resources.

Given the citizenship revelation, the plaintiff moved, perhaps cheerfully, to vacate the judgment below and dismiss the case without prejudice. After all, if the district court didn’t have jurisdiction, then it didn’t have the right to dismiss most of his claims, and enter judgment on the merits of the contract claim. The brokerage sought to hold onto its judgment, asserting a couple of procedural contentions that the appellate court rejects.

The last two paragraphs of the order are worth quoting in their entirety, to show the court’s unwillingness to overlook this error and its irritation at the litigants’ failure to identify the problem early in the case:

Newmark contends that we should forgive the jurisdictional defect here in the interest of “finality, efficiency, and economy,” given that this matter proceeded to judgment. Resp. to Mot. to Vacate 14, ECF No. 71 (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 63 (1996)). To be sure, vacatur and remand for dismissal now could burden the parties and squander judicial resources already expended. But the profound burdens on parties and the judiciary, if we were to recognize convoluted jurisdictional exceptions, would greatly outweigh the prejudice to Capps and Newmark. See Grupo, 541 U.S. at 580–81 (“[T]he policy goal of minimizing litigation over jurisdiction is thwarted whenever a new exception to the time-of-filing rule is announced . . . .”); see also id. (concluding that re-litigation is not nearly as burdensome as one might think).

Neither side of this dispute lacked the means to ascertain Newmark’s citizenship at any point. Whether mutual contentment with the federal forum or genuine obliviousness brought the parties to this unfortunate juncture, this Court will not condone the exercise of jurisdiction where it did not truly exist. Accordingly, we vacate the district court’s judgment and remand with instructions to dismiss this matter without prejudice.


Is there a market for this?

This morning I saw an interesting op-ed essay (subscription required) in the Wall Street Journal by a retired history professor named Wight Martindale, Jr. Entitled, “This Old Man, He Teaches History,” the essay describes the author’s experience in teaching the subject to an evolving student body that now doesn’t learn in the same way as did previous generations.

At one point in the essay, he mentions an alternative teaching approach that he calls the Harkness method. Instead of a dry lecture to a classroom arrayed like a choir, this dynamic has the students and the instructor sit at a round or oval table and hash out the subject among themselves. There’s no place for a student to hide, and the discussion becomes organic, taking its own direction.

That sounds familiar, I thought. Perhaps fifteen years ago, I hosted a few gatherings like this to discuss appellate law, calling them symposia in a hat tip to Socrates and Plato. We held them in underserved locations in the Commonwealth; one was in a meeting room at Big Meadows Lodge in Shenandoah National Park. But the idea didn’t take, and no one has, to my knowledge, hosted a similar appellate symposium in many years.

Maybe it’s time. Interest in appellate practice has expanded considerably since that early attempt, and we may find more people now interested in the subject. If so, I invite you to let me know if you’d be interested in attending such a gathering. If there’s enough demand, I’ll be happy to arrange it, perhaps rotating around the Commonwealth’s population centers. I’m certain that I can convince one or two of my pals in the appellate guild to come along and join the discussion.

My concept is a two-hour (or thereabouts) afternoon meeting/discussion, followed by a social hour. Because it will be a free-form discussion, you shouldn’t expect MCLE credit; in my humble opinion, the MCLE Board has ossified in its approach to novel teaching methods. Attendees should come prepared to participate, not merely to listen.


Two notes of appreciation

These notes aren’t appellate, but they’re important to me.

This morning, as I was walking my beloved collie, Ardie, I heard the sad news that Washington Post columnist Mike Gerson died early today, at the far-too-young age of just 58. Gerson was a speechwriter for the younger President Bush, and crafted some of Dubya’s most memorable lines.

I got to meet Gerson 3½ years ago, when he appeared at a Law Day event sponsored by the Virginia Beach Bar Association. He gave an address in the Sandler Center, and I was assigned to be his Sherpa through the evening. That meant that I met him at his hotel, walked with him to the pre-event reception, escorted him to the Sandler’s green room, then to the wings of the stage when it was time for him to speak. Afterward we enjoyed an hour of conversation over a belated dinner at a local restaurant.

My initial impression of the man was that he was shy; surprisingly so for a man who had walked the halls of power in our government. He spoke softly, even during his speech, and was self-effacing. At dinner, he was just Mike and I was Steve; we chatted about his plans for an upcoming book, a project that excited him greatly. From what I could tell, he never did get around to finishing it, though perhaps time will prove me wrong; plenty of books have been published posthumously.

Mike Gerson had a terrific mind and a terrific pen, as this essay in The Atlantic describes. Agree with him or not, you had to respect his writing. And generations of students of American speeches will hear the wonderful words that he gave to President Bush, and thus to a grieving nation, in the wake of the 2001 terrorist attacks.

I have, since this morning, noted the painful irony of the fact that I learned of Mike’s death while I was walking Ardie. Just four months ago, on the Fourth of July, the Post had published his essay entitled, “Why I Will Never Live Without a Dog Again.” In it, he noted that he had recently endured the passing of a beloved dog, Latte, who had helped him through depression and cancer. After seeing his pain from losing Latte, his wife bought him a new “Havanese fuzzball” whom he named Jack. The joy that that new puppy brought to him answered the question he had posed earlier in the essay: “Why do we take new dogs into our lives, knowing we will be decimated by their deaths?”

At some point today – or maybe another day; I’m not sure if I can bring myself to do it just yet – I’ll take the sad step that I always dread when someone I know passes away. It’s a painful form of goodbye: I’ll open my cell phone, call up my contacts, and delete a phone number that I’ll never call again.

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I’ll also mark another life here: This week would have marked the 89th birthday of my first boss and my early-career mentor, Judge Marc Jacobson of Norfolk, who died four years ago. I attended the funeral along with a host of far more exalted mourners, including the mayor of Norfolk. In life, he was an incredible philanthropist and a true civic asset. Among a host of other accomplishments, he donated immense sums to arts programs in Tidewater and served as rector of the Board of Visitors at Old Dominion University here.

I’ll put it bluntly: I owe him exactly one career. Whatever I’ve achieved as a lawyer, I can trace to his guidance, his example, his good judgment. In the years during which I worked with him, I never heard him raise his voice in anger; I often heard him raise it in laughter. I’ve tried to model my own demeanor on that. And to this day, I believe that my esteem in the legal community, whatever level it may be, is higher merely because people knew that I was his protégé.

He rests now in Forest Lawn Cemetery, in the northern reaches of Norfolk. After posting this essay, I plan to travel there, pay him a visit, and leave a stone in honor of his memory.


Update on Recent Events



(Posted November 1, 2022) Despite last week’s surprise, I’m fairly confident that we won’t be seeing any opinions this week from the Supreme Court of Virginia. It’s time for a look around the Virginia appellate world.


November session

The justices convened this morning for the beginning of the final court session of 2022. The docket contains 14 appeals spread over four days. I noticed two familiar sets of names: Sasson v. Shenhar and Isle of Wight County v. International Paper return to Ninth and Franklin after previous SCV decisions involving the same parties. Sasson is an oldie: The Supreme Court announced its previous decision fourteen years ago yesterday. It involved the fugitive-disentitlement doctrine in a child-custody case. Today’s appeal may or may not be about the same child, but based on my review of the 2008 opinion, I see that he’s now 20 years old, so it may well be about something else.

International Paper, a machinery-and-tools-tax challenge, is far more recent; The Robes remanded the case two years ago for retrial on one aspect of the case. That second trial evidently didn’t go well for the county, because it’s now on the appellant’s side of the “v.”


First appeal-of-right opinion

Today the Court of Appeals of Virginia issues an opinion for the first time (as far as I can tell) in a civil case filed at Eighth and Franklin under the new appeal-of-right regime. Patel v. Rabinowitz is a debtor-creditor appeal that involves a subpoena from out of Virginia. This tells me that the timeline from notice of appeal to CAV decision is likely to be something on the order of ten months. I’ll let my pal John Koehler have the first crack at analyzing the opinion.

John, by the way, has found a new legal home in The Law Office of James Steele, out in Roanoke. I wish my brother success there, and I look forward to his resuming his entertaining and insightful essays on CAV decisions.


Appellate diversity

Multiple appellate-bar organizations to which I belong have lamented recently the fact that our congregations are overwhelmingly monochromatic. There are, sadly, few minorities among the appellate bar here in the Commonwealth. That bar is mostly (maybe 2/3) male and overwhelmingly white. This phenomenon isn’t restricted to Virginia; even nationwide organizations of appellate advocates number precious few minority members.

Yesterday the Washington Post published a front-page article that describes a similar phenomenon among the SCOTUS bar. The article is long, but I eagerly read the whole thing, hoping for insight into ways we, in my bar associations, can address the problem.

The article mentions a group in Washington calling itself The Appellate Project. A remarkable lawyer named Juvaria Khan spearheads it; its goal is to inspire more lawyers of color to consider appellate practice as a career focus. Ms. Khan spoke at the 2021 Virginia Appellate Summit and described the group’s work. She indicates that one strategy is to start early, reaching out to law students to explain the opportunity in the appellate world.

None of this will be a quick fix, but I’m hoping earnestly that she, and my bar associations, can make headway against what I see as an embarrassing problem. A big part of the challenge is convincing minority lawyers even to consider this field. To quote Yogi Berra, when asked about declining baseball attendance, “If people don’t want to come out to the ballpark, how are you gonna stop ‘em?”


A non-appellate note

Today is the first day in many years in which my pal Jim McCauley isn’t heading up the State Bar’s ethics lawyers. Jim called it a career yesterday after a long stretch at the post. His knowledge of legal ethics is encyclopedic; you could ask him a question on any ethics topic and within moments, he’d call up the number of the most relevant Legal Ethics Opinion. I’ll miss our conversations, in large part because, like me, he loves to laugh.

Analysis of October 27,2022 Supreme Court Opinion



(Posted October 27, 2022) They went and did it. All it took was for me to predict, in last week’s analysis, that the Supreme Court was highly unlikely to release a decision in its last remaining undecided appeal, and thereby completely clear its argument docket for the first time in years. Years!

I’ll never know if Justice Kelsey found that prediction to be a challenge: Oh, yeah? Watch this. Today the court hands down a published opinion in Appalachian Voices v. SCC, argued just six weeks ago in the September session. That means that the court has decided all of the appeals submitted to it, nearly a week before convening the November session next Tuesday. If you ever sought confirmation that I have no inside information on Supreme Court proceedings, this morning is Exhibit A.

My records indicate only one time in my nearly 18 years of covering the court when it has released opinions in all argued cases before convening the next session. That was the infamous “Roush to judgment” on February 12, 2016. Knowing that Justice Roush’s appointment was about to expire, and not wanting any legal wrangling over her participation in cases handed down after that expiration, the court labored to decide all pending merits appeals by that date. Before that it was … never, I suppose; before late 2015, the court always held opinions until the last day of the ensuing session. That became “opinion day,” and I knew to set aside those six days for analysis. Now we have 50 or so opinion days each year.

But I digress. We have an opinion! That being said, if you’re looking for fireworks, you may be waiting a while longer. This is a case over whether the law allows VEPCO to recoup its expenses to buy cap-and-trade allowances in the Regional Greenhouse Gas Initiative.

I’m genuinely grateful to Justice Kelsey for publishing an easy-to-understand two-paragraph summary of what cap-and-trade entails. I knew of the program, but never really appreciated the framework. Utilities have to purchase allowances – skeptics might call them “pollution indulgences,” channeling Martin Luther – for the right to release carbon dioxide into the atmosphere. These allowances become rarer as time goes by, so the price will rise. This is supposed to encourage utilities to pursue greener sources of energy.

VEPCO has bought these allowances – plus a small buffer, just in case – and sought State Corporation Commission approval for a rate adjustment to recover their cost. Yes, they can do that. Appalachian Voices, an environmental nonprofit, argued before the SCC that the utility bought more allowances than necessary, so it shouldn’t get a full reimbursement from utility customers.

As today’s opinion notes, the whole appeal turns on the definition of necessary. The nonprofit had argued for a strict interpretation, one that would deny reimbursement where, for example, the utility could have gone greener sooner, and thereby bought fewer allowances. The SCC didn’t buy that, and today, by unanimous vote, the Supreme Court agrees with the commission. It notes that Appalachian Voices can raise that kind of challenge in future reviews of VEPCO’s compliance with the new Virginia Clean Economy Act, which will govern future rate challenges.

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If you’re an appellate junkie who waits with bated breath each Thursday morning hoping for new love letters from The Robes, you’re going to have to be patient. There is almost no chance (note the adverb; last week taught me a lesson) that we’ll see any opinions next Thursday or the week after that; the appeals will simply be too new. November 17 is possible, now that the court has enacted its own rocket docket. If I were forced to make a wager, American money, I’d circle December 1 as the next likely day for opinions. But I was wrong before, and I could be wrong here.


Analysis of October 20, 2022 Supreme Court Opinions



(Posted October 20, 2022) The Supreme Court of Virginia continues its efforts to clear the decks of unresolved appeals, issuing three published opinions today in four argued cases.


Open government

While we do get one FOIA ruling today, the dominant news of this morning arises from a different context. The Daily Press, LLC v. Commonwealth implicates the public’s right of access to court proceedings.

This appeal arises from an ancillary proceeding to a criminal prosecution. The defendant is a Newport News police officer charged with murder in the course of his official duties. The officer was admitted to bail, but the prosecution subpoenaed certain records from the City, including its police internal-affairs investigation of the incident.

The City objected to the issuance of the subpoena, but the circuit court issued it anyway, directing that the subpoenaed documents be filed under seal until further court order. The City complied.

Upon reviewing the documents, the prosecutor moved the court to revoke the officer’s admission to bail, alleging that he was a danger to the community. This motion, also filed under seal, attached as exhibits many of the subpoenaed documents.

The court scheduled a hearing on the bail-revocation motion. Given the nature of the case and widespread public interest in police-involved homicides, the local newspaper sent a veteran reporter to cover the hearing. But at the outset of that hearing, the prosecutor moved the court to close the hearing to the public – specifically including the reporter – citing various concerns including the possibility of tainting a pool of veniremen.

The judge decided that this was an issue requiring some careful thought. The court continued the hearing and gave the reporter and his employer an opportunity to intervene and argue against closure. At a reconvened hearing, the court eventually granted the prosecutor’s request and gently invited the reporter to leave the room.

After the revocation hearing, the newspaper sought access to a transcript of what had transpired. No dice, the court ruled, also refusing to allow access to the bail-revocation motion and its many attachments.

That led to this appeal. The primary ruling today is that the circuit court erred by closing the revocation hearing to the public. Legal proceedings – and especially criminal proceedings – are matters of obvious public concern. As Justice Kelsey points out in today’s unanimous opinion, the public certainly has a right to know what’s going on when the issue is whether a person who might be a danger to the community should remain at large.

The justices today reject, one by one, the three grounds on which the circuit court had ruled as it had. The prosecution abandoned the first, an allegation that the pandemic had made summoning jurors problematic. By the time of this hearing, the courts were operating, if not normally be pre-pandemic standards, at least smoothly enough to make this a non-issue. For the second, the possibility of pretrial prejudice, the Supreme Court rules that lesser alternatives, such as extensive voir dire or even a change of venue, were preferable to denying the public’s right to know.

Finally, the circuit court had ruled that some of the subpoenaed documents, relating to previous incidents involving this police officer, had occurred before the time of the events charged in the indictment, and so were not relevant. Justice Kelsey’s riposte is worth quoting here: “This statement may be true, but it is answering the wrong question.” The trial court had held that prior incidents weren’t material to the pending criminal charge. But the Supreme Court rules today that they really-most-sincerely are relevant to whether the defendant should remain at large, especially if they might show him to be a danger to the community.

The ultimate ruling on the newspapers’ appeal is that the Supreme Court directs the unsealing of the sealed documents – it’s too late to allow the reporter into the hearing – and those documents will become public as soon as the SCV Clerk issues the mandate in this appeal. That should happen sometime in November, unless there’s a petition for rehearing.

This was a consolidated case, as the City filed an appeal of the circuit court’s ruling that it had no standing to participate in the decision whether to unseal the subpoenaed records. The City wasn’t the prosecuting authority – that was the Commonwealth – so the judge reasoned that it had no say in the proceedings. Not true, the Supreme Court rules today. The rules specifically permit a person or entity who produces records in response to a subpoena to try to prevent their disclosure.

The City thus wins the threshold issue, but that’s about it. On the merits – which the justices go ahead and reach, since the issues are purely legal – the Supreme Court holds that each of the lodged objections is insufficient to prevent disclosure. One of those arguments seemed quite promising: Internal affairs investigations, including interviews with the police officer involved, are traditionally regarded as confidential. That’s because officers must participate in the interviews, upon pain of losing their jobs. SCOTUS caselaw holds that that confidentiality can trump a judicial subpoena, because otherwise the officer would be compelled to give self-incriminating testimony.

But the court holds today that the City is the wrong party to assert this claim. The privilege belongs to the officer making the statements to internal-affairs investigators. The officer’s lawyer didn’t make an appearance in the appellate court, and the City can’t step into his shoes to raise this objection by proxy.

In a coda to these holdings, the justices note that while the case was pending in the Supreme Court, the circuit court went ahead and tried the officer on the murder charge. The jury found him guilty on at least one charge, but he hasn’t been sentenced yet. Today’s opinion directs the circuit court to go ahead and sentence him without waiting for the appellate mandate here. It specifically orders that any appeal of that conviction will run from the sentencing date, unaffected by this ancillary proceeding.


I promised you a FOIA decision. In Hawkins v. Town of South Hill, the justices interpret some relatively new language in the Virginia Freedom of Information Act.

This is the first opinion of the court written by the newest justice, Thomas Mann. In my humble opinion, he begins on a communicative high note. Here’s the first line of his opinion: “Our government belongs to the people it serves.” Well said. He goes on to note that information in the possession of the government likewise belongs to the people, unless a FOIA exemption applies. This appeal is about one such exemption.

The appellant here, Hawkins, is a Richmond attorney who sought certain documents from the Town, relating to what today’s opinion calls “employment disputes.” The Town responded, furnishing some documents and withholding others under a claim of exemption. Perceiving the responses as insufficient, the lawyer filed a mandamus petition seeking an order of disclosure, plus civil penalties and attorney’s fees.

The parties narrowed the dispute to seven documents. The circuit court reviewed the seven in camera before giving the lawyer a partial win in a letter opinion. It ruled that two of the documents could be disclosed, but the other five were exempt. Finding that the Town had won more issues than it lost, the court directed counsel for the Town to prepare a final order for endorsement and entry.

That counsel did so, but eventually had to report to the court that the petitioning lawyer “wants to address the issue of attorney’s fees.” The Town eventually moved the court to enter the order, and the petitioning lawyer didn’t oppose that motion. He instead endorsed the order, noting an objection to the failure to award fees.

The lawyer got a writ, and the Supreme Court received oral argument on the merits a scant five weeks ago. Today the justices reverse in part and remand. Noting that the trial judge didn’t have the benefit of an appellate interpretation of language inserted into FOIA in 2016, the opinion meticulously traces what FOIA means when it now exempts “personnel information concerning identifiable individuals.”

The current version of FOIA defines certain terms, but it leaves others maddeningly vague. The Supreme Court’s task here is to fill in the gaps in the statutory language. After explicating the words and the context, here’s what the court comes up with:

… we hold that “personnel information” for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.

This is a privacy-based interpretation that the court intends will enable courts to balance an individual government employee’s expectation of privacy against the public’s right to know. The justices remand the case for the circuit court to evaluate the FOIA request under this new guidance.

That leaves the issue of attorney’s fees. The Supreme Court ducks – well, let’s say that it declines to reach this issue by holding that the lawyer didn’t preserve it below. If you read my procedural recitation carefully, you might find that surprising: Emmert said a while back that the lawyer objected in his endorsement to the failure to award fees.

Today we get an important refinement in preservation jurisprudence. Yes, the lawyer included an objection in his endorsement; but he had never affirmatively asked the circuit court to award fees. In effect, the circuit court never ruled on a fee request because the lawyer never presented such a request (except in his original pleading). The letter opinion didn’t mention fees, and that issue only arose when the Town’s counsel mentioned that the lawyer wanted to address it. But he never did that, so there’s no real, live ruling for the court to review.

Can he make a fee request on remand? Maybe; I’m not sure. But I spotted an underlying issue that the court mentions obliquely today, in footnote 4: “Given our ruling today, we do not address the issue as to whether an attorney, who proceeds pro se, may be granted attorney fees.”

I don’t like to prejudge issues that may never arise, and even if they do, might never find their way into Virginia Reports. But I offer this tidbit of insight from SCOTUS, in a slightly different but highly analogous context:

Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. Ethical considerations may make it inappropriate for him to appear as a witness. He is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating legal arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom. The adage that “a lawyer who represents himself has a fool for a client” is the product of years of experience by seasoned litigators.

That’s from Kay v. Ehrler, 499 U. S. 432, 437-38 (1991), where Those Other Robes ruled that a pro se litigant – even one who’s a lawyer – can’t get an award of attorney’s fees under 42 U.S.C. §1988 when he represents himself in civil-rights litigation. I humbly forecast a similar outcome here, if this issue resurfaces.



This is a new heading in the VANA annals. I’ve never previously addressed the requirements for auctions, but today, Justice Powell does just that in Williams v. Janson.

The subject here is a voluntary auction by two owners of 31 acres in Mecklenburg County. They advertised the property for sale at auction on a date certain. On that date, a prospective buyer attended, interested in the property. He decided to record the proceedings.

One of the owners served as auctioneer. Before the bidding began, he made a public announcement:

All right, so we’re going to auction this off. The high bidder today will be required to pay a five thousand dollar deposit due today or at the time of the commencement of the sale. It has to be in cash and certified funds. They have fourteen days to complete the sale. There’s an agreement to be signed at the end of the sale.

The bidding started at $30,000. The auctioneer tried to get someone to bid $40,000, but silence ensued until our prospective buyer volunteered, “I’ll do thirty-five.” The auctioneer recognized this as a bid of $35,000, and continued to ask for higher bids. Crickets. Finally, the auctioneer, building the tension, cried out, “Going once, going twice, I guess we’re going to have to no sell it.” He then declared that the auction was canceled.

Wait, what? That, at least, was the prospective buyer’s reaction. He had just made a bid and the auctioneer had recognized it. No one had outbid him. When the owners wouldn’t budge, he went to court, seeking specific performance.

The circuit judge agreed with the prospective buyer that the auctioneer was obligated to award him a contract at $35,000. The court directed the owners to convey fee-simple title to him for that price.

On appeal, we learn the difference between an auction with reserve and an auction without one. The latter is usually known as an absolute auction. With a reserve, the seller has the right to decline to sell if the bids don’t reach a price that he or she finds acceptable. In absolute auctions, the property can’t be withdrawn as soon as the first bid arrives.

I learned today that the default rule is that an auction is with reserve unless its terms specify an absolute auction. Here, neither the advance notice of sale nor the auctioneer’s preliminary instructions indicated an intent to waive a reserve. That means that the circuit court erroneously ordered the sale, so the Supreme Court reverses and enters final judgment. The sellers get to keep the property, maybe to try again at another auction.


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The court also hands down an unpublished order today, in Dagvadorj v. Aljabi. It’s a will contest in which the testator decided to save himself some money. Instead of hiring a lawyer to prepare his will, he got a form off the Internet and filled it out himself.

You already know how this is going to turn out, right? The final version of the will contains inconsistent provisions. At one place, the testator appears to cut his wife and daughters out of the will; at another, he’s pretty clearly contemplating distributions to them. Alas, he’s no longer able to settle the ambiguity, having died three years ago. A circuit court judge was tasked to figure it all out.

The trial judge read the will and ruled that it unambiguously intended to cut the wife and children out. Today, the Supreme Court unanimously reverses, finding the language inherently ambiguous. Instead of ruling today who gets what, the justices remand the case for the circuit court to resolve the ambiguities.


The release of this unpub presents a remarkable situation. The Daily Press appeals were the last undecided cases argued in June. Hawkins, Williams, and the unpub were three of the four remaining undecided cases from the September session. That means that there is but one undecided appeal on which the court has received oral argument. If The Robes hand that one down next week, the court will have done something that I’ve never seen before in my 17+ years of covering this court: decide all of its argued cases before it convenes for the next argument docket. That may not mean much to casual observers, but a clearance rate of 100% is remarkable as far as I’m concerned.

Now that I’ve got your hopes up, it’s time to deflate them. The last remaining appeal is Appalachian Voices v. State Corporation Commission. I have zero, nada, no inside information on when this will come down, but SCC appeals tend to be complex, and complexity tends to mean longer delays before we see a ruling. One can dream, but I wouldn’t wager any actual American money that we’ll get the opinion next week. The next session, by the way, convenes Tuesday, November 1.

Interesting News on Appellate Dockets



(Posted October 17, 2022) A peek at the docket pages for the Supreme Court and Court of Appeals of Virginia reveals some interesting stuff. The lower appellate court’s page shows that we’re seeing the onset of oral arguments in new civil appeals under the current system of of-right proceedings. I see a smattering set for this month, and a stream beginning in November.

The timing of this matters, because we can now measure the rough span between the filing of the notice of appeal and the eventual oral-argument date: about ten months. These first few cases were those where the appellants noted appeals in January, thereby avoiding the SCV writ gantlet. Because the Court of Appeals has traditionally tried to clear (that is, to decide) appeals within about 60 days after oral argument, that means that we should start seeing merits opinions in these cases in December and January.

There’s news from the Supreme Court, too: The Robes have released the November argument docket, and it contains a healthy 14 appeals. Because the November session is the last one in 2022, this means that the court will entertain oral argument in just 61 appeals this year. (There were 10 in January, 17 in March, 9 in April, 4 in June, and 7 last month.)

That small total is only partly due to the change in appellate procedure, which now diverts all appeals to the CAV before appellants can even seek a writ upstairs. We’ll continue to see much smaller SCV dockets well into 2023. I suspect that the numbers in 2024 may return to something close to normal, though it’s hard to know what normal is nowadays. SCV Clerk Muriel Pitney has opened fewer than 660 new files this year, portending a full year’s docket of somewhere between 800 and 850 appeals filed.


Analysis of October 13, 2022 Supreme Court Opinions



(Posted October 13, 2022) Just four weeks after the September session, the Supreme Court of Virginia hands down rulings in nearly half of the appeals argued that week. I’ll confirm what you’re thinking: That’s fast work, measured by the court’s historical pace.



I could just as easily have classified Taylor v. Aids-Hilfe Koln E.V. as a foreign-judgments appeal. A man we’ll call Uncle James, who has dual German-US citizenship, makes a will in 2000 that leaves everything to Aids-Hilfe, a German charity. (My rudimentary recollection of the German language tells me that hilfe means help in that language, while Koln is the German spelling of the city we call Cologne, where Uncle James lived.) He also held a brokerage account here in the Commonwealth.

In 2018, Uncle James signed a TOD designation for his account, indicating that the account should be transferred on his death to his nephew and the nephew’s wife. Uncle James died a little under two years later.

The German charity sued in German courts, claiming that it was the sole heir of all of Uncle James’s assets, including the brokerage account. It alleged that Uncle James was incompetent when he signed the TOD designation. That court awarded the charity something called a certificate of heirship.

The charity then sued in Virginia, seeking to domesticate the German judgment here. A circuit court overruled the nephew’s demurrer and eventually awarded summary judgment to the charity. The nephew got a writ.

Today generates a split result, as the Supreme Court affirms in part and reverses in part. But make no mistake: The nephew emerges as the real winner here. The Supreme Court today affirms the decision to admit the will to probate and to appoint an administrator c.t.a., but rules that the charity doesn’t have standing to challenge the TOD designation. Only the estate, acting through its personal representative, can do that. It also rules that the German court didn’t “grant or deny recovery of a sum of money,” so the Uniform Foreign-Country Money Judgments Recognition Act doesn’t apply. The justices accordingly reverse the TOD ruling and enter final judgment for the nephew.

That doesn’t necessarily end things, though; the newly appointed administrator could move to invalidate the TOD designation, and a trial court (including a jury, if requested) could pass on Uncle James’s capacity. We’ll have to await further proceedings to learn what happens there.


Labor law

The Supreme Court interprets a new statute and provides a legal-writing milestone in Cornell v. Benedict, arising from my home town of Virginia Beach. It’s a suit for unpaid wages brought by counselors who worked for a group called Christian Psychotherapy Services. The group paid its clinicians every two weeks, based on moneys received for their work in a prior two-week billing period.

In 2020, the company found itself in financial distress. It hired an outside company as a “turnaround consultant”; I suppose that meant that they hoped that the outsiders would help them turn the business around and make it profitable. An employee of the consultant company served as president of Christian Psychotherapy’s newly established board of directors, and a long-time counselor acted as chair of the board.

As 2021 neared, dark clouds still overhung the company’s books. The board voted to cut costs by reducing its clinicians’ pay by 1%. The board chair communicated this to the employees, who probably grumbled a bit but didn’t overtly fuss.

As the ensuing pay period drew nigh, the company’s problems had worsened. The board voted to reduce pay by 30% and to pursue corporate bankruptcy. The board chair dutifully reported this to the clinicians and then promptly resigned, likely as a sign of solidarity with her co-workers.

The next day, the board reconvened to address its chair’s resignation. It collectively determined that the 30% reduction wasn’t workable, so it voted to fire every clinician, effective immediately. The president – the employee of the consultant hired to turn things around – carried out his instruction to notify the employees. That assuredly didn’t go over well.

Two days later, the president worked with Christian Psychotherapy’s staff to process final paychecks for the now-fired clinicians. Remember, they were paid in arrears for moneys brought in over a prior period, so the company emphatically owed them for their work. The president evidently figured out that the paycheck plan wouldn’t be feasible, so he, too, resigned immediately. The turnaround company terminated its contract the same day, leaving an empty therapy group with unpaid employees.

You can see that this is not going to end well. The clinicians sued to recover their pay. Perhaps sensing that Christian Psychotherapy might prove to be judgment-proof, they added claims against the president and the board chair, alleging that they were acting as employers in withholding paychecks. The suit cited a statute that defines employer to include companies, partnerships, etc., and “any similar entity acting directly or indirectly in the interest of an employer in relation to an employee.”

The president and board chair filed pleas in bar, asserting that “they were not employers, as that term is used in Code § 40.1-29(J), and that their resignations, before the wages were withheld, constituted an absolute bar to recovery” against them for the debt owed by the company. The learned judge heard evidence and then sustained the plea and dismissed the claims against the two individuals.

The Supreme Court awarded an appeal, presumably because the statute is quite new and hasn’t been interpreted yet. In a short opinion by the chief justice, the Supreme Court affirms, holding that the language of the statute doesn’t contemplate individual liability. That’s because it uses the word entity; the court rules today that that includes businesses but not humans. A similar statute expressly incorporates persons, so the legislature knew the difference.

The court’s analysis doesn’t address this, but I sense that the individual defendants’ actions played at least some role in this. The two defendants evidently were unwilling participants in corporate activity that they couldn’t stomach. They carried out the directives of the board, but then immediately resigned in what I assume was protest. The board had voted to withhold the final paychecks well after both individuals were gone. Note that the justices don’t reach this defense, but they had to know it.

I promised you a legal-writing milestone. There it is, on page 7 of the slip opinion:

“We believe it to be our duty to interpret the statute as written and when this is done our responsibility ceases.” Id. (internal quotation marks omitted). “The one canon of construction that precedes all others is that we presume that the legislature says what it means and means what it says.” Id. (cleaned up).

From what I can see, this is the first appellate opinion in the history of our fair Commonwealth that uses the relatively new parenthetical, “(cleaned up).” I first encountered this new practice a couple of years ago, when first advocates and then jurists took to removing all the editing clutter from truncated quotes. This method allows the writer to draft a normal-looking sentence while conveying to the reader that the original passage essentially says this, but that non-material changes have been made for ease of reading.

It may surprise my readers to learn that, in drafting briefs, I’m very conservative, stylistically speaking. For example, here at VANA, I routinely use contractions because that greatly aids readability for you. But in briefs, I almost never use them. (Once, perhaps ten years ago, I agonized for two days over whether to include one. I went ahead and did it, and the Supreme Court didn’t consign me to perdition for the sin. The next time, I pondered it for about two minutes before using one. Even so, I’ve probably used contractions three times in my entire briefwriting career.)

Now that we have what looks to me as judicial imprimatur for “(cleaned up),” I might consider using it, and you probably can, too.



A judicial turf war simmers beneath Ashland, LLC v. Virginia-American Water Company, from the Hopewell Circuit Court. The appellee is a water utility that operates in that city; the appellant is one of its customers, a manufacturer of chemicals.

In 2018, the utility performed maintenance that resulted in a ruptured water line. That caused an interruption in service. As a result, the manufacturer was shut down for a time. It sued the utility in Hopewell Circuit Court for about $500,000 in lost business and profits.

In response, the utility pointed to what looked like some solid affirmative defenses. Today’s opinion cites this language from the tariff – the “schedule of rates, rules, and regulations” issued by the SCC – that governs the utility’s provision of water service:

Virginia-American cited tariff Rule 8(f), which provides in part that Virginia-American “shall not, in any way or under any circumstances, be held liable or responsible to any party … for any losses or damage resulting from any … deficiency in … supply of water due to any cause whatsoever[,]” and Rule 17(a), which states that Virginia-American “does not guarantee a[n] … uninterrupted supply of water, and customers are cautioned to provide sufficient storage of water where an absolutely uninterrupted supply must be assured.”

The reader will immediately note that Justice Wes Russell, who pens this, his first opinion in his new billet, has not yet adopted the “(cleaned up)” protocol. But I digress.

The trial court asked the parties to brief a jurisdictional issue: Can a circuit court evaluate a case that’s based on an SCC tariff, or must these disputes be tried in that other tribunal? The parties evidently concurred that the circuit court was a perfectly appropriate forum for such a challenge. But the court ruled otherwise, holding that the Constitution of Virginia expressly provides that only the Supreme Court can review SCC decisions. The court accordingly dismissed the case.

Today’s opinion is notable for two things – something the court does, and something it doesn’t do. The SCV does reach the constitutional question, ruling that the circuit court wasn’t being asked to review the SCC tariff; just to apply it. Circuit courts can and do try such claims regularly. Indeed, in a footnote, Justice Russell points out that if a circuit court can’t hear such a case, then no tribunal can, because the SCC “lacks jurisdiction to resolve contract claims between utilities and their customers.”

The justices thus reverse the jurisdictional dismissal. The litigants here asked the Supreme Court to go ahead and address the demurrer, since that presents solely questions of law. In such situations, appellate courts – including the SCV – sometimes go ahead and decide the legal questions instead of remanding. That saves everyone time and expense, including the foreseeable expense of a second appeal by whichever party loses on remand.

No dice, the justices rule today. Acknowledging that the Supreme Court can do this, it nevertheless declines to do so. The opinion observes that the parties’ briefs focused on the jurisdictional issue instead of the affirmative defenses. The court accordingly remands to give the circuit court the first crack at the issues. Of course, subsequent legal proceedings will be all the longer now, because the losing party on remand will have an appeal of right in the Court of Appeals, followed, perhaps, by discretionary review in the SCV. This litigation will probably be ongoing for another two or three years.

*   *   *

Something in the Ashland opinion caught my eye. It observed that the circuit court entered final judgment on May 24, 2021. That means that about 17 months passed between circuit-court judgment and the final decision in the Supreme Court. I checked the other two appeals decided today, to see how long the gap was for them. Ashley v. Cornell, from Virginia Beach, came down June 23, 2021, so about 16 months ago; Taylor v. Aids-Hilfe Koln left the circuit court August 13, 2021, just 14 months ago. This confirms my general sense that an appeal under the old regime, directly to the Supreme Court, generally takes about 15-16 months. It’s a bit faster now in the Court of Appeals; perhaps 12-13 months. But if the CAV loser seeks discretionary review at Ninth and Franklin, the writ process alone will add probably 6-8 months.


3Q David-Goliath Index



(Posted September 30, 2022) Where has the time gone? We’re already at the end of the third quarter of the 2022 calendar, so it’s time to check the latest results from Ninth and Franklin. This quarter I counted two wins for our Davids and four for Goliath. That brings the annual totals to five wins for the little guy and 16 for the big guy, producing a year-to-date D-GI of 24/76.

In my mind, the most interesting aspect of this report isn’t the ratio but the raw numbers. I just checked my 3Q 2021 report, and back then, David had prevailed 15 times against 30 wins for Goliath. That was 45 decisions – including published opinions and unpubs decided on the merits – last year at this time, against only 21 this year. In 2020, we had received 39 “qualifying” rulings by this point.

Don’t expect a burst of activity as the year starts the gun lap. We have only nine appeals currently in the pipeline – two still pending from the June session and seven argued earlier this month. Some of those won’t qualify for David-Goliath analysis – no identifiable little-guy-vs.-big-guy dynamic—so we likely won’t see 30 such rulings in the entire year.

That matters because of the importance of sample size. Stats geeks will assure you that until you reach a meaningful number of entries, you’re more likely to get a skewed result, like the baseball player who goes 3-for-4 on Opening Day and then brags that he’s batting .750 for the season. That would be a record, but it won’t hold up over the course of a full season.

Even so, this year’s results are in line with what we’ve seen in the past several court terms: The modern court is far more likely to rule in favor of the Goliaths who appear before it. That means far more likely than 50-50, and far more likely than the current justices’ judicial ancestors of less than a generation ago. (From 2005-09, the D-GI was 49-51, almost dead even.)


Bond. Appellate Bond.



(Posted September 26, 2022) We unsurprisingly got no new opinions from Ninth and Franklin last week. (It’s unsurprising because there are only two undecided appeals left from those argued before the recent September session.) That gives us an opportunity to explore an essential but often misunderstood aspect of appellate practice: bonds.


Two types

The Code of Virginia provides for two distinct bonds in appeals, each set out in Code §8.01-676.1. The first, known simply as an appeal bond, is essential in almost every appeal. Its purpose is to secure payment of the appellee’s costs and damages in the event the appellate court affirms the judgment or dismisses the appeal. Those costs and damages are usually nominal, and the required bond is correspondingly small – just $500.

The other bond is for suspension of the judgment pending the appeal. It’s also known as a supersedeas bond, for those of you who like Latin; that word translates to “you must desist.” This halts any execution on the lower-court judgment until after the appeal. In contrast to the appeal bond, this can be quite large; see below.



The appeal bond is mandatory – the appellate court can dismiss the appeal if the appellant eschews filing it – and the appellant must file it no later than 30 days after final judgment in the circuit court. You file it with the clerk of the circuit court, usually at the same time as the notice of appeal.

This may come as a surprise, but the suspending bond is voluntary, and your appeal can proceed normally without one. No statute or rule sets a filing deadline. That being said, an appellant who genuinely fears a snap execution – a property seizure or a bank garnishment – should have it in place no later than 21 days after final trial-court judgment. That’s because a judgment creditor can obtain a writ of fieri facias after the 21st day. Code §8.01-466.


Effect of filing

For appeal bonds, this is simple: By filing it, an appellant avoids having his or her appeal dunked. This is a no-brainer.

For suspending bonds, the mere filing of the bond with the clerk – no judicial action necessary – automatically halts all efforts by the judgment creditor to enforce the lower-court judgment. That suspension continues through the course of the appeal, so the appellant doesn’t have to keep posting new bonds at each appellate stage. This bond, too, goes to the trial-court clerk.


Bond amount

As noted above, the appeal bond is $500. Governmental entities such as the Commonwealth don’t have to post it, because the appellate courts won’t award costs or damages against Aunt Virginia. Code §17.1-629.

The size of the suspending bond depends on the size of the judgment. If judgment is for a defendant in, say, a suit for money damages, then there’s no bond involved; defendants who escape tort or contract liability generally don’t have anything to execute. But when a plaintiff receives judgment, the suspending bond has to be large enough to ensure payment of the full judgment in the amount of an affirmance or dismissal.

By statute, the amount of the suspending bond must include one year’s interest, and is capped at $25 million, even if the judgment is for a higher amount. Interest is almost always at the statutory judgment rate, currently 6%. Code §6.2-302. If either party wants to modify the amount of the bond, the procedure is to file a motion, first in the trial court, for that relief. The circuit court has the power to fix the amount of the bond, subject to the requirements of the statute.


Bond forms

The Rules of Court include forms for both types of bonds. Form 1 is the appeal bond and Form 4 is for suspension. You can file both in one document; that’s Form 2. For all bonds, Form 8 sets out how the bond has to be executed.



Both types of bonds require some type of surety. For the $500 appeal bond, the simplest thing to do is use a cash bond. In that case, you prepare, execute, and file the bond form along with a check for $500 payable to “Clerk of Court.” Remember, this goes to the circuit court clerk. For cash bonds, I recommend that you add this language at the bottom of the form: “No surety required per Code §8.01-676.1(S).”

You can use a cash bond for suspension, too, but that can get expensive in large appeals. In many instances, the appellant will choose to employ a professional surety, usually an insurance company. That company will prepare and file the bond, charging the appellant a premium.

The paragraph immediately above this one may lead you to conclude that an appellant should never post a cash bond; just pay the premium and let the surety company take the risk of loss. Ah, but they’re too smart for that; most companies will require that the appellant put up something of equal or greater value, so the company won’t lose money on an affirmance.

To find a bonding company, you’ll probably want to consult an independent insurance agent who handles things like payment-and-performance bonds for businesses. If you go to a bail bondsman who’s hanging outside the City Jail, be prepared for a breathtaking premium for a bond like this. This company provides excellent bond service nationwide, and they’re not bail bondsmen.


Disposition of the bonds

If the appeal is successful, then the clerk of the trial court will return the appeal bond to the appellant. This requires a court order, which is usually by consent. If the appeal is unsuccessful and the appellee obtains an award of statutory damages or of appellate costs, then the bond exists as security for those awards. Upon application, the clerk will pay the bond unto the appellee. If the award is less than $500, the appellee gets his or her award and the remainder goes back to the appellant.

For suspending bonds, the same result occurs with a reversal – the money goes back to the appellant. If the bond is by surety company, the bond is canceled and the appellant is out only the premium paid. If the appellate court affirms, the appellee, as a judgment creditor, can obtain payment of the bond directly. Note that it’s far easier to collect on a bond than it is to execute against a judgment debtor; you just submit a court order and get paid.


What did I omit?

If you have appellate-bond questions that I haven’t anticipated, drop me a line and I’ll answer them. I’ll also update this essay with that answer, so others will get the information, too.


Analysis of September 15, 2022 Supreme Court Opinion



(Posted September 15, 2022) Today is a noteworthy day for appellate lawyers. It’s the 165th anniversary of the birth of William Howard Taft, 27th President of the United States and 10th Chief Justice of the United States. Many people with a passing knowledge of our nation’s early Twentieth Century recall that he’s the only person to have held both offices, being appointed to the Court eight years after leaving the Oval Office.

But this mention is for another reason: Taft is also the only former Solicitor General to be elected president. I read a book recently that asserted that Abraham Lincoln is the only president ever to have argued a case in the Supreme Court. Taft, had he lived long enough to have read that book, would likely have cleared his throat and pointed to his 15-3 record in SCOTUS appeals. (Abe lost his one and only case there.)



I consider myself a reasonably serious student of Virginia sanctions jurisprudence, and am always happy to see new material on this topic. T0day’s opinion in AV Automotive, LLC v. Gebreyessus brings that material and a dissent.

Gebreyessus worked for a car dealership, one affiliated with a manufacturer that had an incentive program for its staff, paying them bonuses. In a complaint filed by the dealer against the employee, it asserted that she had cooked the books, including customer reviews, to artificially inflate her own bonuses. The complaint asserted that the manufacturer had penalized the dealer $700,000 for these misstatements.

But that last part wasn’t true; the manufacturer soon revealed that it hadn’t imposed any penalty, and wouldn’t be doing so. (Ulp!) The employee sought sanctions for this false pleading. The circuit court agreed to impose sanctions for this and for other litigation conduct. It gave the employee an award of over $200,000 – all of her lawyers’ fees for the entire case.

A divided court today affirms in part and reverses in part. Justice McCullough writes for a five-justice majority, holding that the circuit court acted within its discretion in imposing sanctions for most of the conduct cited by the employee. But it holds that at least some of the other conduct wasn’t sanctionable. It goes on to hold that awarding all of the employee’s legal fees for the entire case was excessive, so the court remands the case for a recalculation of the amount of the sanction.

Justice Chafin pens a dissent, which Justice Kelsey joins. She points to an unusual circumstance – the employee’s legal fees were being paid by a fellow defendant in the trial court, who was not involved in this appeal. The dissent accordingly concludes that the employee didn’t “incur” any fees so it would be improper to award any to the victorious employee.

Here’s the relevant language, so you can see the nature of the dispute; I’m cleaning this up to avoid a lot of distracting ellipses: “the court shall impose an appropriate sanction, which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing, including reasonable attorney fees.”

The $200,000 question is what incurred means in this context. As it appears, it’s an implied passive voice, long derided by serious writers as indicating sloppy draftsmanship; it means, “the amount of reasonable expenses that are incurred,” etc. The passive voice is the use of a past participle, preceded by a to be or to get verb.

Slight digression: One classic use of the passive voice came on May 1, 1973, when Richard Nixon’s press secretary, Ron Ziegler had to backpedal from his previous unmistakable dismissive comments to Washington Post reporters Bob Woodward and Carl Bernstein. Ziegler had denied any wrongdoing by White House staffers in the Watergate affair and described the reporters’ stories to the contrary as “shabby journalism.”

Then, after Bob Haldeman and John Erlichman resigned on April 30, 1973, Ziegler had to face the press again. On that day, he couldn’t bring himself to come right out and say, “I was wrong,” a line familiar to virtually every husband. Instead, he turned to the passive voice, which conceals the identity of the actor: “Mistakes were made in terms of comments.”

Back to today’s decision: The dissent insists that the word incurred in this context must mean, “directly incurred by the other party.” Because the record contains nothing to indicate that the employee would have to reimburse her benefactor for the payment of fees, the dissent would reverse the fee award in its entirety. The majority is satisfied that someone incurred fees. The two sides accuse each other of inserting language into the statute.

A couple of quick notes about today’s ruling: I’m pleased to note that two of my pals, Monica Monday and George Peterson, argued the appeal back in April. This was at a time when the court was down to five active justices – the legislature had yet to elevate the court’s two newest Robes – so Senior Justices Russell and Millette sat in, both voting with the majority.

Because the parties argued it in April, this was the second-oldest undecided case on the court’s docket. The only older case, Baughman v. Commonwealth, also arrives today, though this one is by unpublished order. It’s a sexually violent predator appeal that also results in a remand, and also generates a spirited dissent. At the very end of the Baughman order, dissenting Justice Kelsey writes that, despite his disagreement with the majority’s rulings, the opinion should be published.

To that, I say, “Amen, brother.” The percentage of unpubs of the court’s merits rulings has risen in recent years, to the point that perhaps 60% of all merits cases end up in Virginia Reports.  While I can see my way to consigning a few merits cases to the unpubs pile, I believe that the court should publish more, not less.

Finally, the Baughman decision comes 34 weeks after the oral argument. I haven’t confirmed this yet, but that might be the longest delay between argument and decision in the 17+ years that I’ve been covering the court. As you might expect, opinions with dissents often take longer, because the two authors are exchanging drafts and then polishing their own.


Analysis of September 8, 2022 Supreme Court Opinion



(Posted September 8, 2022) After two “dry” Thursdays, the Supreme Court of Virginia hands down a single published opinion this morning. The dispositive issue in Fines v Rappahannock Area CSB is whether a regional community services board is entitled to immunity as a municipal corporation.

Fines received services from the board when he was a child. Years later, he filed suit against the board and the estate of one of its former employees, alleging that the employee had sexually assaulted him.

The board filed a plea in bar, asserting immunity. After an evidentiary hearing, the circuit court ruled that the board was a municipal corporation and was accordingly entitled to immunity.

Fines got a writ, and today the Supreme Court reverses and remands for trial. The court examines the six factors that determine whether a body is or is not a municipal corporation, and finds that the board doesn’t meet enough of them. Specifically, it doesn’t possess sufficient autonomy from the local governments that created it — in this case, that means the City of Fredericksburg plus Spotsylvania, Caroline, Stafford, and King George Counties — and it doesn’t possess the power of eminent domain, among others. That means that it isn’t entitled to governmental immunity.

Near the end of today’s opinion, authored for a unanimous court by Justice Powell, we get a ruling that appears to be of first impression in Virginia, though other courts have weighed in on it and are cited here. The justices rule that governmental immunity is a matter of substance, not procedure. That matters in this specific context because entities are more likely to be considered municipal corporations if the legal issue presented is one of procedure, not substance. Update: John Koehler has published some insightful analysis of today’s decision here.

Analysis of August 18, 2022 Supreme Court Opinions



(Posted August 18, 2022) Today is the 53rd anniversary of the closing of Woodstock. It was supposed to end the previous day, Sunday, August 17, 1969; but Zeus intervened, dumping rain throughout the weekend. That rain pushed the schedule back so that the final act, Jimi Hendrix, took the stage just after sunrise on Monday the 18th.

You can probably win a bar bet with this: Hendrix wasn’t the festival’s executive producer’s first choice to close the stage. That first choice turned down the opportunity, so those few fans left on Max Yasgur’s dairy farm that Monday morning heard Jimi perform “Hey Joe” as the last tune from the stage.

The producer’s preference was to have Roy Rogers take the stage at the very end and perform “Happy Trails.” No, really.


Declaratory judgments

I’ve mentioned here recently that most circuit court judges don’t mind so much if an appellate court reverses them. That’s part of the job. What they hate-hate-hate is a remand for further proceedings. Once they finish with a given case, they want to be done with it forever.

In that vein, a northern Virginia judge is probably kicking himself this morning after seeing the opinion in Ames Center, LC v. SOHO Arlington, LLC. It’s a declaratory-judgment action to ascertain what rights a neighbor has over adjacent hotel property in Arlington.

The hotel is run by a company that holds a ground lease on the land. The lease contains an unusual provision: If any neighboring properties plan to excavate nearby, the hotel operator has to allow that neighbor onto the hotel premises to permit the excavating activities.

The appellant here, Ames, is one such neighbor. It planned to develop its property with two 30-story buildings, and needed access to the hotel property to prepare its development plans. Ames notified the hotel’s owners of its intent to enter for this purpose. That generated this response:

After learning of Ames’s intentions, SOHO’s counsel informed Ames that “no one from your company is welcome within the hotel or on the grounds of the property, for any reason.” If any Ames representatives entered the SOHO property, counsel added, SOHO “will contact authorities to have such individuals removed for trespassing” and “will take full advantage of all actions available to it under the law, both civil and criminal.” A subsequent letter from SOHO’s counsel specifically warned Ames not to use a construction crane that may “swing” over SOHO’s airspace. SOHO further advised that it would be “vigilantly monitoring the project activities and [would] seek recompense for any trespass or damages that may occur.”

Well, now. Where I come from, we’d call that an “actual antagonistic assertion and denial of right.” The hotel warns the neighbor, “If you or your boys set one foot on our property, we’re gonna sic the law on ya.”

Hence the DJ proceeding. The neighbor sued to determine if it was indeed an intended third-party beneficiary of the lease provision and could enforce the right to enter. After a hearing, the circuit court ruled that the provision did protect the neighbor. But when the parties asked the court to declare what specific rights the neighbor enjoyed, the judge replied, “Not my job. This is just a suit to determine if you’re a 3PB, and I’ve made that decision.” The court then dismissed the suit without interpreting the contract.

I’ve telegraphed the result of the ensuing appeal: The Supreme Court sends the case back for a ruling on what rights the neighbor has. There’s no indication that the hotel owners cross-appealed the ruling that the judge did make. But the justices rule today that the circuit court stopped short of performing the function of DJ actions: to declare what the parties’ rights are.

In theory, the Supreme Court could have gone ahead and declared those rights itself instead of remanding. After all, the interpretation of a contract is a legal matter, to which a reviewing court affords no deference to the decision below. The Supreme Court often takes the initiative to enter final judgment instead of remanding for purely legal rulings. See, for example, McGinnis v. Commonwealth, 296 Va. 489, 501 (2018), and its many jurisprudential cousins.

Today’s opinion mentions the possibility of a jury trial, and if there truly are disputed fact issues, then remand is absolutely the correct course. I just don’t know what facts would be necessary to decide what rights a contract provision confers on a third-party beneficiary. At least one judge up in Arlington will find out.



I occasionally mention here that the subject matter of a given appellate decision is bone-dry, so I have to do what I can with the prose to hold your interest through the course of  a detailed trek through the rulings. This morning, the court hands down Appalachian Power Company v. State Corporation Commission, an appeal with lots of zeroes at stake and plenty of interest among those who advocate for consumers.

I know my own limitations. Having read the opinion, there’s no way I can do it expository justice in a reasonable number of words, and no meaningful way for me to hold your interest through a detailed discussion. Want proof? Behold this one paragraph, setting out what the SCC ruled in the rate-review process:

Following the evidentiary hearing on Appalachian’s triennial-review application, the Commission found that “Appalachian has not established that it was reasonable to conclude in December 2019 that the remaining costs of these retired units were no longer probable of future recovery” for the purposes of recording them as asset impairments. J.A. at 5914-15. The Commission also rejected Appalachian’s argument that the Commission had no discretion to review Appalachian’s decision to record the asset impairments. The Commission reasoned that “[i]n every historical earnings review under [Code § 56-585.1], the Commission has necessarily been required to rule on the reasonableness of the utility’s regulatory accounting entries, along with other proposed regulatory adjustments from both the utility and case participants.” Id. at 5914. After the Commission has determined the reasonableness of these entries and adjustments, Code § 56-585.1 dictates certain outcomes.

You got all that? Unless you’re an accountant or a tax jock, the rulings in today’s 43+-page opinion (including a short partial dissent by Justices Mims and Powell) will bring glazed, watery eyes. I therefore do not choose to inflict the appeal upon you. Instead, mourn for poor Justice Kelsey, who drew the short straw and had to write the majority opinion here. If you’re feeling mean and want to give it a try, have at it; the slip opinion is just a mouse click away.

The outcome of the appeal is a partial win for APCO on its appeal, and a wholesale loss for the OAG’s Division of Consumer Counsel on its separate appeal. (The court combines the two appeals into a single opinion.) The Supreme Court remands the case – that’s two remands in one day! – to the Commission to correct one error. That correction will presumably result in an outcome that’s more to APCO’s liking.

*   *   *

These two decisions reduce the court’s list of argued-and-undecided appeals to five. There are two outstanding from the June micro-session, plus one each from April, March, and January. The September docket, which currently lists just seven appeals, will add to this. But this is the closest that I can remember to the court’s fully clearing its argued cases since it transitioned to rolling release dates in late 2015.


Important New Finality Rule From Fourth Circuit



(Posted August 17, 2022) Finality, and hence appealability, can be tricky. Today’s published order in Britt v. DeJoy is thus vital news for practitioners. The remarkable thing is, we don’t even learn today who wins the appeal.

This is an employment-discrimination suit brought by a postal worker. She added a count for retaliation. The district court dismissed the discrimination count with prejudice for failure to state a claim. It then dismissed the retaliation claim without prejudice, but didn’t grant leave to amend. The employee appealed.

But can she? A dismissal with prejudice is plainly final, but when the district court declines to apply the bar of prejudice, that looks more like an interlocutory order that isn’t appealable. Most such orders give the pleader X days to file an amended pleading or accept the ruling under protest and appeal immediately. This order didn’t address amendment at all.

The appeal matured to the point of oral argument – lucky litigants; 90% of Fourth Circuit appeals end without a single “May it please the Court” – last autumn. That panel evidently picked up on the jurisdictional issue. We learn today that the court sua sponte polled itself and decided to ask the parties for supplemental briefing for an en banc ruling on jurisdiction.

In a published order, the court discards an earlier rule that it felt was unworkable, and adopts one that’s based on the approaches used in the D.C. and Sixth Circuits: “We now hold that when a district court dismisses a complaint or all claims without providing leave to amend, we need not evaluate the grounds for dismissal or do anything more—the order dismissing the complaint is final and appealable.” This means that if a district court does what the court had done in this appeal, dismissing without prejudice but saying nothing about amendment, the Fourth will consider it to be a final, appealable order.

The order notes that this new rule can create a trap where a plaintiff gets a dismissal-without-prejudice order but wants to amend. The new rule means that the dismissal order is immediately appealable, and the plaintiff has to act promptly. A vigilant plaintiff will move the district court to reopen or vacate the judgment (FRCivP 59, 60). That postpones finality and appealability until the court adjudicates those motions. A different plaintiff might want to stand on the original pleading and appeal immediately. “To do so, however, the plaintiff must waive her right to amend the complaint by requesting that the district court take further action to finalize its decision.”

I’ve omitted one key component of today’s order: the outcome. Applying this new rule, the full court rules that the employee can indeed appeal the judgment here because the district court’s order meets the finality requirements. The en banc court then does something truly rare: Having granted en banc review, it sends the appeal back to the three-judge panel for a decision on the merits. That’s one that you don’t see every day.

Ultimately, the best rule for advocates is the simplest: You don’t play around with finality, because getting it wrong can have fatal consequences. Be proactive and protect your client’s appeal rights.


Analysis of August 11, 2022 Supreme Court Opinions



(Posted August 11, 2022) The printing presses at Ninth and Franklin crank out two published opinions this morning.


Criminal procedure

The issue in Hill v. Commonwealth is narrow, in my view: When a circuit court revokes a suspended sentence and extends a period of probation, does that act necessarily resuspend the original sentence?  Hill received a three-year prison term in 2015, with 2½ years of that suspended. The circuit court later revoked the suspension for a probation violation and reimposed the three-year term, suspending two years. Effectively, the court gave him six more months to ponder his misdeeds.

A year after that, Hill landed in hot water again. The court issued a bench warrant, but Hill moved to dismiss it because his original three-year suspension had expired. He claimed that the court no longer had jurisdiction to act on his original sentence.

The circuit court disagreed and imposed the entire three-year term. The Court of Appeals affirmed in a published opinion last year. Today the Supreme Court agrees, so Hill has gone 0-for-appellate in this case.

In a short opinion by Justice Kelsey, the court reasons that “a revocation order that extends a period of probation necessarily extends the period of sentence suspension.” This is true even if the sentencing order doesn’t expressly say that.

Hill argued that the courts speak only through their orders, and that the law doesn’t read into those orders matters that aren’t stated there. Justice Kelsey offers this concise riposte: “In judicial orders, as in ordinary conversation, meaning can be clearly expressed and just as clearly implied.” Count me among those who foresee that this sentence will be among the most-cited future references to this morning’s opinion.


Attorney discipline

In the 17+ years that I’ve been posting essays on Supreme Court opinions, I’ve come to recognize categories of appeals that I find truly distasteful. Grisly murders, malicious assaults, and child-abuse cases clearly fit that bill, but among nonviolent cases, legal discipline proceedings may be the most demoralizing. That’s in part because they’re comparatively rare. There are over 30,000 active lawyers licensed in Virginia, and the State Bar has active investigations open on only about 1% of them. That means that 99% of lawyers play by the rules, including those governing honesty.

The public doesn’t know that. When word hits the newspapers about attorneys’ misconduct, it feeds the false narrative that our profession is inherently dishonest. This is the stereotype of the lawyer who will say anything, no matter how false, to secure a win for his client and a fee for himself. We know it’s false, but John Q. Public doesn’t.

In the first substantive paragraph of today’s opinion in Haley v. Virginia State Bar, we learn that the respondent lawyer bounced a trust account check that he had written to one of his employees. That’s two strikes; there’s not much defense to a rubber-check allegation, and what’s he doing paying an employee from the trust account?

In the next paragraph, we discover that the lawyer “regularly deposited unearned advance fees from his clients directly into his operating account,” and that he had bounced 53 checks over a 27-month period. That’s two a month.

In the next paragraph, the opinion reveals that the lawyer made false or misleading statements to a Bar investigator. Before the short facts section ends, we’ll find out that the lawyer had been disciplined by the North Carolina Bar, and hadn’t reported that sanction to the Virginia State Bar. The North Carolina discipline was for – get this – failing to report previous discipline when he filed a pro hac vice motion in the Tar Heel State. We ultimately learn that New York was investigating him for a similar omission in a PHV application filed up there.

In fairness to the lawyer, he admitted in the disciplinary proceeding that he had blown it regarding his trust account, and the Bar stipulated that he had taken steps to clean up his account-keeping act. But a subcommittee certified charges against him, and the Bar found the charges to be substantiated. It recommended an 18-month license suspension.

The lawyer exercised his automatic right of appeal – no writ required – to the Supreme Court. Today, the justices affirm the Bar’s decision. Justice Chafin’s opinion for a unanimous court lays out the evidence in the case and finds that the Bar’s finding and its recommended disposition are both appropriate.

The recitation of facts and the procedural history of the disciplinary proceeding is fairly straightforward, but I’ll mention one aspect that caught my eye – especially as I had read the Hill criminal decision just before this one.

One of the charges lodged against the attorney related to false statements to the Bar investigator about a client named Campbell. That client had paid a fee that the lawyer had deposited directly into his operating account, before the fee was earned. The lawyer, who is licensed here and in South Carolina, told the investigator that he represented multiple people with that exact name, and he believed that this fee came from a South Carolina client.

That matters because in the Palmetto State, bar regulations permit lawyers to deposit advance fees directly into an operating account, contrary to the rule here. As it turns out, the lawyer hadn’t represented the South Carolina Campbell for several years; this check came from his Virginia namesake, whom the lawyer was representing when the Bar investigation began.

When the disciplinary subcommittee certified the charges here, it mentioned the failure to report the NC discipline but didn’t specify the Campbell misstatement. It did state that, in the words of today’s opinion, the “false and material misstatements were ‘not limited’ to the statements that were expressly referenced in the certification.” The lawyer objected at the Bar hearing and again in the Supreme Court to any mention of the two-Campbells issue.

He may have a point here. Bar discipline is civil and administrative, not criminal; it exists to protect the public, not to punish lawyers. Even so, I believe that most lawyers would perceive that it’s a matter of fundamental fairness that the charging document should identify the specific misconduct at issue in the case. The lawyer should be properly informed of what he’s being accused of.

Today’s opinion notes that the Rules require that the certification “include sufficient facts to reasonably notify Bar Counsel and Respondent of the basis for such certification and the Disciplinary Rules alleged to have been violated.” In affirming the sanction today, the Supreme Court holds that while a specific mention of the Campbells incident would have been better practice, it’s close enough in this context, particularly because the certification included the “not limited to” reference.

Because of my sense of fair play, described two paragraphs above this one, that doesn’t quite sit well with me. In both of the decisions handed down today – Hill being the other one – the Supreme Court has ruled that it’s permissible to read unstated words into critical documents. The first case is a criminal matter, involving significant incarceration; the second implicates a person’s career. We aren’t talking about a $15,000 monetary judgment here.

Considering everything, I agree with the Supreme Court’s disposition of the disciplinary appeal. This morning’s opinion states that the 18-month suspension “was an appropriate sanction.” I might have phrased it slightly differently: “… was not excessive.” The combination of trust-account malfeasance and dishonesty fully justifies a significant response, and I see 18 months as being at the lower end of the proper spectrum.


Update on Appellate Developments




(Posted July 28, 2022) We see no new published rulings today from the SCV, so let’s take one of our periodic looks around the appellate milieu.


ABA Appellate Summit

Registration is open for the 2022 Appellate Judges Education Institute, better known to the appellate crowd as the ABA Appellate Summit. This year’s gathering will be in Scottsdale, Arizona, and will convene November 10-13. This is the best nationwide assembly of appellate judges and advocates; the level of CLE programming is always quite high. If you go, you will see me there.


Virginia Appellate Advocacy Academy

Speaking of legal education, the good folks at Virginia CLE will present a two-day program of intensive, one-on-one teaching just for appeals. The program is next Thursday and Friday in Charlottesville. It’s hopelessly late to register now, as the program, which maxes out at 24 participants, filled very quickly. If you’re interested in participating in a future academy, let Virginia CLE know, so they can judge demand and plan accordingly.


SCV posts September argument docket

The docket for the September session at the Supreme Court of Virginia is available. There are just seven appeals; the court will hear arguments over two days, September 14-15.

I’ll pause to note two things about this news. First, this is the earliest I can recall seeing a docket and schedule. I’m accustomed to seeing it perhaps three weeks before the session week; the courts website promises that it’ll appear “approximately two weeks before each session.” This docket arrived seven weeks in advance.

Second, these seven cases, added to the previous dockets this year, aggregate to 47 appellate arguments in 2022. This projects to somewhere around 55 for the year. (My best guess, based on the writs-granted page, is that seven more will be ready for argument in the November session, though the clerk may manage to squeeze in a couple more.) If you’re a long-time reader, I don’t have to tell you that that’s the lowest we’ve ever seen in a year, at least in our lifetimes.

This, of course, translates to a tiny number of published opinions. Of the previous 40 argued this year, the court has decided 18 by published rulings and eight by unpubs, and at least one has settled. (The other 13 haven’t come down yet.) This means that if you’re one of those folks, like me, who deliver CLE retrospectives on the year’s SCV decisions, you won’t have a lot of raw material next year.


VBA Summer Meeting programs

One such review came last Saturday, in the Virginia Bar Association’s gathering in Hot Springs. Two learned judges, Dan Ortiz of the Court of Appeals and Everett Martin of the Norfolk Circuit Court, reprised their annual presentation on SCV decisions over the past year. The VBA’s Appellate Practice Section was one of the co-sponsors.

The APS also co-sponsored another recurring program, a review of the Roberts Court’s October Term 2021. While the SCV’s yearly cases may have been relatively peaceful, the SCOTUS term was aflame, as you no doubt know. My pal Bill Hurd, now of Eckert Seamans, again capably moderated a discussion by three panelists, including the relatively new Solicitor General of the Commonwealth, Andrew Ferguson.

The meeting’s closing session was a thunder-and-lightning presentation on the January 6 insurrection and its aftermath. Those panelists included former Fourth Circuit Judge Mike Luttig, Jamie Raskin of the House of Representatives, former US Attorney Tim Heaphy, and journalist Betsy Woodruff Swan. Senior Justice Bill Mims was gracious and graceful as usual in moderating an edge-of-your-seat program over the course of 90 minutes. C-SPAN recorded the segment and broadcast it later that day; I don’t know if the network will re-air it, but I heartily recommend it if you can find it.


Not quite yet …

I’ve been keeping an eye on the docket postings for the Court of Appeals of Virginia, to see when the stream of new civil appeals will begin to appear. The latest docket that’s now on the court’s website is August 23, and I don’t see any civil cases (other than domestic relations and Workers’ Comp, which have been in the CAV’s bailiwick all along).  My best guess is that we’ll see some in September; I’m confident that they’ll arrive in force in October.

This leads to the question of the court’s workload, with all civil appeals heading there now before a possible discretionary appeal to the Supreme Court. I’ll want to see the 2023 stats, which won’t arrive until early in 2024, to assess the effect of a year’s worth of civil cases. I know better than to start guessing now.


A Note of Appreciation





(Posted July 19, 2022) I have too few competitors. Don’t misunderstand me; I’m not talking about the number of appellate lawyers in the Commonwealth. That number has grown from the low single digits, twenty years ago, to several dozen now, and I sense that it’s still expanding. It’s been gratifying to watch the rise and growth of the Virginia appellate bar in that time.

No, I’m talking about those among us who post appellate commentary. It is, as I’ve found, great fun, and I like to believe that I’m performing a public service of sorts, by letting my readers know about new developments in the appellate milieu. I can also warn advocates about where at least some of the landmines are in the appellate labyrinth.

Others have discovered this fun, too. Early in my tenure at this post, one of my friendly competitors was not a lawyer but a jurist: Have Opinion, Will Travel was published by an unidentified Virginia appellate judge. It was pointed and insightful and witty and always a great read. The site folded many years ago, and I’ve mourned its absence ever since.

A few lawyers have taken up the challenge. My pal Jay O’Keeffe began publishing De Novo about thirteen years ago, and it immediately jumped onto my must-read list. Jay is an outstanding writer who, like another appellate publisher of your cyber-acquaintance, likes to add the occasional dose of spice to his writings. His posts were consistently interesting and informative.

Alas, as far as I can tell, I had to use the past tense there, as his last post is now almost a year old. I’ll do what I can to persuade him to return to the keyboard, no matter how busy his caseload keeps him. We’re better off with him active.

John O’Herron at Thompson McMullan occasionally posts essays on his firm’s website. John’s a very capable advocate and a good writer. Maybe I can needle him into posting essays more often, too; his latest substantive post is about five months old.

Today I write to note that John Koehler, over at Roanoke Appellate Law Blog, has been churning out some great stuff lately. His recent posts, primarily focusing on the Court of Appeals of Virginia, include statistical analyses (something of which I’m particularly fond); a new feature called the Icarus Index, tracking the number and degree of affirmances and reversals in that court; and a terrific description of an oral argument that he and another appellate pro, Deputy Solicitor General Graham Bryant, experienced last week. Just read that last essay, posted July 15, and see if you aren’t hooked.

Who’s next? You can do it, too, as long as you’re willing to commit to maintaining an active website. Yes, it takes time, but you’ll find that it increases your visibility (which is good for paying business), it improves the quality of your writing, and it’s a wonderful creative outlet. If you’re starting a blog or website like this, or if you’ve already started and I just don’t know about you, let me know and I’ll help spread the word about your site. C’mon; I need more competitors!


Analysis of July 14, 2022 Supreme Court Opinion




(Posted July 14, 2022) As I see it, there are several ways to make a given Supreme Court opinion sexy. The easiest is a high-profile appeal such as Taylor v. Northam, involving the fate of the statue of Gen. Lee on Monument Avenue in Richmond. That one was a media magnet from the moment the petitioner filed it in circuit court. Another is a case with a particularly interesting set of facts – things you don’t see every day, and that gather attention because of what happened. Among these, my favorites are the stupid-criminal stories that we see here from time to time.

For some appeals, the only path to that coveted sexiness is that they involve a lot of zeroes. That’s about the only thing that can light a bonfire in Coxcom, LLC v. Fairfax County. It’s a challenge to a Business and Professional Occupational License tax imposed by Fairfax on an Internet service provider located up there. To be sure, tax jocks will salivate at a new BPOL opinion. For the rest of you, I’ll have to try to make the prose sparkle.

Coxcom is, as you might expect, a subsidiary of Cox Communications. It provides subscription cable and Internet services to customers in Virginia and elsewhere. If you have an e-mail address that ends in, I suspect that you’re a customer.

In 1994, the county enacted an ordinance to create a BPOL tax. One of the categories of taxed industries is “business service occupations,” and that includes “On-line computer services.” The primary target of this tax appears to have been America Online, which was located in the county at the time. After paying a year or two of the tax, the company perceived that life would be better with a different corporate HQ, so it moved out in 1996 and stopped paying.

Ah, if only it had waited. In 1998, Congress stepped in to encourage the provision of Internet service. It passed, and President Clinton signed, the Internet Tax Freedom Act, which barred state and local taxation of Internet services. The act contained a clause that permitted preexisting taxes to continue if one of two circumstances existed: (1) an administrative agency had issued in interpretation that the BPOL tax would be assessed against such services, or (2) the locality “generally collected such charges for Internet access.”

Two more years later, in 2000, Coxcom arrived in Fairfax and set up shop. It didn’t pay the BPOL tax until 2013. In 2016, after paying four years’ worth of the tax, the company requested a refund of what it had paid, claiming that the federal act applied and neither of the preexisting conditions helped the county. The county’s tax department decided that the federal act didn’t apply because it was “a general tax on a business’s entire gross receipts” instead of a tax on Internet revenue. It further ruled that the preexisting-conditions exemption would cover this situation anyway.

Coxcom appealed to the state’s Tax Commissioner. That official dropped back 15 and punted. From today’s opinion:

The Commissioner found that ITFA generally prohibited the imposition of the BPOL tax on internet access services. The Commissioner concluded that the case turned on whether the grandfather clause applied and he declined to opine on that question.

He declined to opine? In tax appeals, I figured that was his job. That non-decision left both parties to appeal to circuit court. There, the court gave Coxcom a pyrrhic victory, ruling that the federal act does apply, and that the county had the burden to prove that the preexisting-conditions exception applied. It even ruled that the county hadn’t proved that the second exemption condition, the general collection of such taxes in the past, applied. But the court ruled that the first prong did apply, and the county had publicized the tax ordinance merely by enacting it and making it generally known. It accordingly upheld the tax on the company’s income.

Coxcom got a writ, and today the Supreme Court reverses. The court agrees that the federal act applies. In doing so, it takes definitional guidance from the act and not from Virginia caselaw. The broad language of the statute brought the county’s tax within its coverage. The court also agrees that the county bears the burden to prove that one of the exceptions applies.

Turning to the two exceptions, the court determines that the mere passage of the ordinance can’t qualify as an administrative agency’s interpretation. The county board itself isn’t an agency; it’s a governing body. And enacting an ordinance isn’t the same as a formal interpretation of it.

Turning to the second prong, the justices today accept the circuit court’s factual finding that the county didn’t prove that it generally collected taxes before 1998. The only taxpayer about which the court heard evidence of payment was AOL, and that ended years before Coxcom arrived. There was no evidence that the county collected the tax from a couple of other companies who provided services there. That means that the federal act governs and the exceptions don’t apply, so the Supreme Court remands the case for a calculation of the amount of the refund due to Coxcom.

Now, that wasn’t so bad, was it?


A David-Goliath Index for SCOTUS? Who Knew?




(Posted July 8, 2022) My long-time readers know that for several years now, I’ve compiled the David-Goliath Index, classifying certain decisions from the Supreme Court of Virginia as favoring either the little guy or the big guy. It isn’t an exact science; there’s often a bit of subjective interpretation involved, so I know not to get too cocky when describing my findings. Even so, I’ve noticed a clear rightward shift in the court in the past decade; the years-long trend in the index is unmistakable. Goliath used to win about 50% of the time; now he wins four out of five appeals here.

I learned recently that someone with more access to statistics than I do has been keeping tabs on the Supreme Court of the United States in a similar vein. Last weekend, I saw an article in The New York Times from the veteran Supreme Court correspondent Adam Liptak. He’s one of a handful of courtwatchers whose stories always catch my eye; I trust his perspective because of how long he’s been doing it, and because of the quality of the writing I see.

Liptak’s story, posted just two days after the end of a highly consequential SCOTUS term, reports that the new six-member conservative majority has steered the Court rightward and lit the afterburners. Citing analysis by two professors, Andrew Martin of Washington University and Kevin Quinn at the University of Michigan, Liptak reports that OT ‘21 was one of only four terms in the past century in which divided opinions tilted to the right more than 70% of the time. The Court’s three liberals, rarely joined by one of the six conservatives, could only post dissents filled with dire warnings of what was to come.

The Martin-Quinn score, as the paper calls it, for the term just completed was 73.8%. This means that nearly three of every four split decisions came down on the conservative side. That eclipsed the 73.5% for OT ‘05, Chief Justice Roberts’s first year on the Court. For historical context, the only previous times the Court exceeded a 70% annual rating were long, long ago, in the Lochner era, when the Court twice handed down conservative decisions above 70% — one of those comfortably above 80%. As SCOTUS jurisprudence goes, we in the 21st Century are in historically conservative territory.

Whether this development is good or bad depends on your own political perspective. If you’re a Republican, you’re cheering the majority that Justice Sotomayor called a “restless and newly constituted court.” This came in her June 8 dissent in Egbert v. Boule, the latest SCOTUS ruling to whittle away at plaintiffs’ rights in Bivens actions. The passage was a warning of rulings to come.

And come they did. In the most prominent example, Dobbs v. Jackson Women’s Health, the Court’s five most conservative justices famously reversed Roe v. Wade in a case where neither party asked the Court to do that. Five conservative justices simply picked up the appeal and took it where they wanted to go. The Chief Justice tried to steer a more moderate course, but could recruit no one at all to join him.

Liptak’s story notes that many highly consequential decisions on OT ‘21 came down to 6-3 votes, with the liberals always in the minority. “Those cases included ones on abortion, gun rights, climate change, school prayer, government aid to religious schools, the death penalty, campaign finance and limits on suits against government officials.”

Plenty of courtwatchers are taking note. Kelsey Reichmann of Courthouse News Service reported on June 7 that before Justice Kavanaugh’s arrival, the Court’s rulings were “mostly in line with average American attitudes.” That has plainly changed; now, the story reports, the Court’s philosophical center is far to the right of the American center. This, Reichmann predicts, may enhance calls for court reforms such as adding more justices.

Others have predicted different consequences. The St. Louis Post-Dispatch’s editorial board warned of what it saw as the “breakdown of U.S. Supreme Court legitimacy” due to its perceived lack of respect for historical precedent. The board forecast a time in the near future where states simply defy SCOTUS rulings, the way some states are turning their backs on federal legislative mandates.

It’s worth noting that both of these views hit the cyber-airwaves well before the Court’s most controversial decisions arrived in the last few days of June. The same is true for an early June Gallup survey reflecting that a mere 25% of Americans have confidence in the Court. I haven’t seen a post-Dobbs poll, but I suspect that one is already underway.

Justice Alito’s opinion of the Court in Dobbs notes that the justices can’t succumb to the pressures of public opinion in making their decisions. Agreed, to a point. The Court has to make unpopular rulings from time to time in the interest of a robust and vibrant body of law. But when the rulings stray too far from the mainstream public view — for example, some 70-80% of Americans supported the Roe decision — the Court then risks the kind of legitimacy crisis that the Post-Dispatch foretold.

* * *

Let’s examine just one thread that runs through a number of these significant rulings: religion. As noted in Kennedy v. Bremerton School District, there’s “play in the joints” between the two Religion Clauses in the First Amendment. The government can’t establish religion, and can’t prohibit its free exercise. Thomas Jefferson first wrote of a “wall of separation” between church and state, and generations of Americans have accepted that separation as a good thing.

Not so much anymore, at least in the Court’s perspective. Over the past several years, the Free Exercise Clause has become dominant, to the point that the Establishment Clause is a mere gossamer now. Recent rulings have legitimized overtly religious prayer to begin meetings of a town council in New York, and allowed prominent display of a huge symbol of one of the world’s major religions — Christianity, of course — on public property in Maryland.

This past term, the Court ruled that if a state provides financial support to secular private schools, it must provide support to religious ones, upon pain of a constitutional violation. That is, avoiding an Establishment violation is now a Free Exercise violation. Forcing citizens to pay for someone else’s religious education would have left the Founders aghast, but not this Court.

In the same term, the Court approved highly visible school prayer by a public high school’s football coach, effectively holding that his Free Exercise rights are more important than the Establishment rights of everyone else. Perhaps the justices don’t recall the power of peer pressure from their high school days, but there’s a reason why we enforce the Establishment Clause keenly when it comes to juveniles.

Religion underlies other rulings in a less obvious way. The abortion debate features, at its core, a question for which there can be no objective answer: When does an individual human life begin? After all, if life begins at conception, then the state should be able to intervene to prevent what is effectively homicide, the termination of a life that has already begun. But if it begins at birth, then the state has no right to tell a woman what to do with her body. Because this question can have no objective answer, many people turn to their religions for subjective guidance. Justice Alito acknowledges as much when, in the first sentence of the Dobbs opinion, he observes that abortion “presents a profound moral issue ….”

In Roe, 49 years ago, the Court tried to steer a middle course between the views embraced in Christianity — life begins at conception — and those held by other faiths and many nonbelievers — at birth — by holding that states may proscribe abortions after fetal viability, but not before. This was as close to a secular ruling as possible, in that it drew the line based on practicalities instead of religious beliefs. Of the seven votes that constituted the Roe majority, five came from Republican appointees. Today’s cadre of Republican appointees finds its predecessors’ conclusion “egregiously wrong,” and for the first time rescinds a constitutional right that the Court had once announced.

It wasn’t always like this. In 1879, the Supreme Court ruled that Mormons didn’t have a Free Exercise right to ignore a state law banning polygamy. A century later, in 1990, it rejected a Free Exercise claim by Native Americans who wanted to use peyote, a controlled substance, in their religious ceremonies. In those days, Free Exercise had limits, and in cases of conflict between the two, individual Free Exercise Clause claims yielded to the public’s greater Establishment Clause guaranty.

My best guess is that the current Supreme Court would rule the opposite way on both these cases. That’s how powerful the Free Exercise Clause has become. The Establishment Clause is but an empty shell in comparison. (Side note: Justice Thomas has publicly taken the position that the Establishment Clause binds only Congress, not the states. So while Congress may not be able to establish an official United States religion, in his view any state can freely declare an official state religion. The Fourteenth Amendment, which extends the protections in the Bill of Rights to cover state as well as federal actions, can only look on in silent protest. So do legions of religious minorities.)

* * *

Where are we headed next? Justice Sotomayor’s warning about the “restless and newly constituted court” foretold the next seven weeks’ worth of momentous decisions, but the end of the term doesn’t mean the Court’s heading will change. Yes, we have a new justice, but substituting Justice Jackson for Justice Breyer won’t affect the Court’s ideological center; not one bit.

The fulcrum justice was once Justice Kennedy. I mused in those days that he was the most powerful man in America, because on a closely divided Court, his vote determined what American law was. His retirement and replacement with the more-conservative Justice Kavanaugh meant that the Chief was in the Court’s center, figuratively as well as literally.

Justice Ginsburg’s death and the investiture of Justice Barrett changed all that, of course. The solidly conservative Roberts now finds himself to the left of the Court’s philosophical center. Kavanaugh is probably the fulcrum justice now, and he’s a more reliably conservative vote than is the Chief. We see occasional exceptions to the left-to-right lineup; the easiest to list is probably Justice Gorsuch’s writings in the Native American reservations cases, where he votes with the liberals. But there are six firmly conservative justices who can now rule without regard for the concerns of a three-justice minority.

* * *

For a full answer to the question of where we’re likely headed, I won’t be able to keep my personal opinions out of the discussion. If you disagree with these, I’ll understand. We’ll still be friends, I hope.

Into this discussion I bring the perspective of those among us who greatly esteem personal privacy. I know that modern commentators insist that the old-school concept of privacy is obsolete because too many actors, governmental and otherwise, have too many ways to discover all of our deep, dark secrets. Maybe so; but I preserve the notion that I can at least minimize that intrusion.

Privacy is one of the core values of libertarianism, which Republicans once embraced but have had to discard because of the party’s uneasy coalition with the religious Right. It’s at the core of several important Supreme Court doctrines, usually stemming from the legal concept of substantive due process.

In November 2020, I wrote an essay about that doctrine, in which essay I listed several cherished modern rights that depend on SDP and privacy — the freedom to love and to marry whomever you wish; the freedom to send children to private school; the freedom of families to live together, even when they contain three generations under one roof. In past decisions, the Supreme Court has protected each of these rights, specifically because of a fundamental right to privacy, a crop grown in the fertile field of substantive due process.

As I noted in that essay, Justice Steve McCullough of the SCV had posted a concurrence in which he sharply criticized the substantive component of due process, including a reference to its “shabby and disorganized baggage train.” No surprise here: Don’t expect the SCV justices to recognize a substantive component to the Due Process Clause in the Constitution of Virginia. But that means no constitutional guaranty of privacy here. And I find that concept unpalatable. (The word unpalatable there was a euphemism; my feelings on this point are stronger than that.)

I accordingly support substantive due process, enthusiastically. That means that I supported Roe and its sequel, Casey. I believe that, at least until fetal viability, the decision whether to have an abortion should be between a woman and her doctor, not between a woman and her government. I don’t believe that the government has any right to tell Americans what they can and cannot do in areas such as reproductive health, marriage, and the right to die. (Yes, I have a living will, thanks to Cruzan v. Director from 1990.) The government should stay out of private decisions in doctors’ offices and keep its hands off what goes on in private homes between consenting adults. Third-world surveillance states engage in that kind of prying; but not the greatest constitutional democratic republic that the world has known.

So, which rights might the “restless and newly constituted Court” target next? It isn’t a secret; Justice Thomas said the quiet part out loud in his Dobbs concurrence. He ticked off same-sex marriage and private homosexual conduct and even the right to use contraception as wrongly recognized rights. Why aren’t living wills and private-school choice on that list? They, too, sprouted from the concept of substantive due process.

Justice Alito’s opinion of the Court seeks to defuse this bomb with a promise. Those other rights aren’t in jeopardy, he assures us; only abortion. Only that one; because this is the only one that ends a human life. (He’s forgetting Cruzan, of course; a living will allows a patient to refuse life-prolonging medical care and thereby bring on death, when the patient would still be a vegetable if the care succeeded.) Only this one right will vanish, and the others will remain, protected by this Court.

I believe two things about this promise. First, I believe that it is false. Second, I believe that Alito knew that it was false when he wrote it. You cannot execute substantive due process by a five-justice firing squad, and then insist that rights that expressly depend on it will magically retain vitality. One should never underestimate the creativity of lawyers, and I find the odds overwhelming that even now, some lawyers are musing about how to weaponize the fiery rhetoric in Dobbs, to launch an attack on the SDP right they most abhor. The Court’s decisions this term, including its disdain for stare decisis, portend that some or even most of those challenges will succeed, despite that promise.

No, I’m not truly capable of reading Justice Alito’s mind. This is just what I believe. I perceive that my taking his promise at face value would make me the equivalent of Sens. Collins and Murkowski, who blithely accepted assurances from Gorsuch and Kavanaugh that Roe is “settled law.” (Here’s what I see as the fingers-crossed-behind-my-back explanation for that: Yes, Roe was settled law. And lower-court judges — which Gorsuch and Kavanaugh both were at the time of their confirmation hearings — aren’t free to overrule settled law; they have to respect and adhere to SCOTUS’s rulings, no matter what those judges’ views are. All that changes when you reach One First Street and can freely vote to overturn SCOTUS precedent; at that point, even settled law is fair game for reversal. But the two nominees didn’t tell the senators that last part in the confirmation hearings.)

The ultimate question, in the event the Court starts wiping these other rights off the jurisprudential map, is the one posited by the Post-Dispatch: How low can the Court’s institutional legitimacy sink before consequences arise that we, as lawyers in a nation of laws, will find horrifying?


Analysis of July 7,2022 Supreme Court Opinion




(Posted July 7, 2022) For the first time in four weeks, we have a new published decision from the Supreme Court of Virginia. Patterson v. City of Danville is a medical negligence action, a claim for the wrongful death of an inmate at a minimum-security corrections facility. The appeal implicates derivative sovereign immunity.

The facility employed a doctor to see and treat all inmates; detailed regulations governed his actions. Today’s opinion notes that the doctor had no discretion to refuse to treat an inmate, and inmates had no choice of another doctor.

This inmate began to receive care from the staff doctor within days of his incarceration. The facts section of today’s opinion recites several instances of such treatment for conditions ranging from confusion to hyponatremia (a dangerously low level of sodium in the blood) to gastric reflux. Each time, the doctor prescribed a course of treatment, usually including medication.

Three months after his admission the inmate suffered a heart attack. He was resuscitated “but he never regained consciousness” before dying five months later in a local hospital.

His estate filed a medical-malpractice action against several defendants including the doctor. The suit alleged simple and gross negligence. The case proceeded to a bench trial on the defendants’ immunity pleas. At that trial, the circuit court sustained the pleas and dismissed the action.

The Supreme Court awarded the estate an appeal, and today it affirms the dismissal. Today’s opinion notes that “Only the claims against [the doctor] remain in contest on appeal.” In that light, I’m a bit surprised that the caption of the case lists the City as the primary appellee; but that doesn’t affect the analysis.

The court reviews sovereign-immunity jurisprudence in medical actions and concludes that this case most resembles Lohr v. Larsen, a 1993 decision involving a doctor at a public health clinic. The court today examines the four factors in the familiar James v. Jane test: the nature of the function, the government’s involvement and interest, the degree of governmental control over the employee, and the presence (or absence) of judgment and discretion by the employee.

Justice Kelsey, writing for a unanimous court, holds that the first two tests are uncontroversial and easily satisfied. The key to today’s analysis is the interplay of the third and fourth. The government exercised significant control over the doctor’s actions, and doctors necessarily exercise inherent discretion in caring for patients. This leads the court to conclude that the doctor is, indeed, immune from ordinary negligence.

The discussion of the gross-negligence claims is swift and predictable. Because gross negligence is the want of even scant care, and the estate pleaded that this doctor cared for the patient on multiple occasions during the inmate’s incarceration, the Supreme Court agrees with the circuit court’s decision to sustain a demurrer to that count. It cites a number of past decisions that honor this boundary, including one that held, “The standard is indifference, not inadequacy.”

Today’s opinion is of particular note because Justice Kelsey takes time to observe the ongoing debate over the continuation of sovereign immunity. He cites multiple Boyd Graves Conference studies that observe sharp disagreement over whether the Commonwealth’s laws should continue to honor this old principle. After all, the original basis for immunity was the concept that “you can’t sue the King in the King’s court.” We fought a revolution to rid ourselves of a king, but this vestige of royal privilege endures.

The justices today “do not contest” the assertion that the sovereign-immunity debate is “worth having in modern times.” But the court draws the line at the proper actor for any change to this judge-made doctrine, holding that the ball is in the legislature’s court to consider and adopt any needed changes. It quotes this passage from a recent SCV opinion, citing St. George Tucker, one of the early lions of Virginia jurisprudence: “In Virginia, it would be a violation of the constitution for the courts to undertake to supply all defects of the common law not already supplied by statute. That is the exclusive province of the legislature.”

If it seems incongruous to you that the courts should shrug off the need to address their own judicially created legal doctrines, placing that responsibility on another branch of government, then you’re not alone. But for now, sovereign immunity remains “alive and well” in the Commonwealth.


Notes at the Year’s Halfway Mark




(Posted June 30, 2022) For the third straight Thursday, we get no published rulings from the Supreme Court of Virginia, so let’s examine the appellate terrain as we close the year’s second quarter.


State appellate filings

SCV Clerk Muriel Pitney has opened 392 files as of this morning. The court might see 800 for the year, as I expect the pace to pick up, just a bit, in the last couple of months of 2022. That will be the smallest number in decades, by far. This is, of course, the handiwork of SB 1261, which detoured all appeals through the Court of Appeals of Virginia.

Meanwhile, CAV Clerk John Vollino has opened 968 records so far. That’s a pace of almost 2,000 per year. Last year he opened just under 1,400, so this year’s pace would be an increase of a bit over 40% from last year. This is hardly the flood of business that some observers feared with the advent of an appeal of right in all cases. I spoke with John a few weeks ago, and he reports that his staff – which I’ve always found to be terrific – had adapted well to the new normal.


2Q David-Goliath Index

With no opinions (and probably no unpubs) today, the second quarter is in the books. That makes it time to check on the rulings from the Supreme Court in David-v.-Goliath settings. I count two wins for David and five for Goliath. For the year, David has 3 decisions in the win column and Goliath has 12. The D-GI thus stands at 20-80 at the year’s halfway point.


SCV argument docket clearance

For the year, the justices have entertained oral argument in 40 appeals. Don’t be fooled by the calendar; while we’re halfway through the year, the court has already concluded four of its six sessions. That means that you shouldn’t expect 80 arguments, or even 70, by the end of the November session.

From those, the court has cleared 26. Four of the undecided cases were argued three weeks ago in the June session, so it’s too early to expect rulings; they should start coming down in July. There are four left undecided from the April session, five from March, and one still pending from the January session.


SCOTUS concludes OT’21

This morning, the Supreme Court of the Unites States handed down its last decisions from appeals argued in October Term 2021. At noon today, Justice Breyer’s retirement takes effect, and Ketanji Brown Jackson will take the oath as an associate justice.

This has been an enormously consequential term, even in comparison with earlier ones. I sometimes post commentary at this time of year, and I’ll probably do so next week, after allowing time to digest some of my thoughts about it.


Last day on the job

Tomorrow, Judge Wes Russell of the Court of Appeals of Virginia becomes Justice Russell of the Supreme Court. His successor on the CAV, Judge Kimberley White, will be sworn in tomorrow, too. That will leave the CAV fully staffed with jurists, while Judge Thomas Mann will fill the SCV’s final vacancy on August 1.


Appeals court denies Mountain Valley Pipeline’s request for new judges

Appeals court denies Mountain Valley Pipeline’s request for new judges

By Laurence Hammack, The Roanoke Times – 6/23/2022

In five words, the 4th U.S. Circuit Court of Appeals ruled on Mountain Valley Pipeline’s request that it draw a new three-judge panel to reconsider permits for the embattled project that have repeatedly been struck down.

“The court denies the motion,” read a one-sentence order filed late Wednesday.

In a highly unusual move, the company building a natural gas pipeline through Southwest Virginia asked the Fourth Circuit in May for the random selection of a panel to hear the latest challenge of its permits, made by a coalition of environmental groups and local opponents.

Mountain Valley contended that public confidence in the court is threatened by its continued rejection of government approvals for the 303-mile pipeline, often by the same trio of judges.

“The public has certainly noticed these exceptional results and has zeroed in on the peculiarity that each case involving an authorization for Mountain Valley draws the same three-judge panel,” the motion stated.

The Richmond-based Fourth Circuit, which consists of 15 active judges and three senior judges to hear appeals from five states, has a computer program that randomly assigns three-member panels for incoming cases.

However, the court’s rules allow for the same judges initially appointed at random to remain with a case when it comes up again, under certain circumstances.

When the first lawsuit involving Mountain Valley reached the court in 2018, the computer program indiscriminately picked three names — Chief Judge Roger Gregory and Judges Stephanie Thacker and James Wynn.

That led to their assignment to most, but not all, of the dozen or so future cases in which federal and state permits issued to Mountain Valley were contested.

Supporters of keeping the same judges on similar cases say it improves judicial efficiency, as the panel gains knowledge of past history and familiarity with complex issues.

Lawyers for a coalition headed by the Sierra Club argued that it was the facts of the cases — not the judges who heard them — that led to Mountain Valley’s losing record.

Those facts show “systemic flaws in the permitting of MVP’s pipeline, rather than ‘a deck stacked against it,’” read a brief filed by Appalachian Mountain Advocates and the Southern Environmental Law Center, two groups that represent the petitioners.

Many of the cases decided by the panel involved what it found to be inadequate oversight by government agencies to control muddy runoff from the massive construction project. Mountain Valley has been cited nearly 400 times by Virginia regulators for violating erosion and sedimentation control regulations since work began in 2018.

Officials with the Sierra Club and Appalachian Voices, which are part of the group that is fighting the permits, declined to comment Thursday. A spokeswoman for Mountain Valley also had no comment.

The cases involve the latest challenge of stream crossing permits — one issued by Virginia’s State Water Control Board last December and a similar authorization by West Virginia — where the pipeline starts.

Generally, it is not known which Fourth Circuit judges will hear a case until the day of oral arguments before the court. No date has been scheduled in the stream crossing cases, which will likely not be heard until the court’s September term, at the earliest.

Steve Emmert, an authority on state and federal appeals who has never seen a motion like the one filed by Mountain Valley, said the brevity of the Fourth Circuit’s ruling was not unusual.

Unlike formal opinions in which the court explains its reasoning and cites case law, rulings on motions usually contain little detail, according to Emmert, a Virginia Beach attorney who is not involved in the pipeline litigation.

“I imagine that this is a disheartening ruling for the pipeline, but the court absolutely has the discretion to control its case assignments,” he said.

The remaining crossings of streams, rivers and wetlands is not the only obstacle Mountain Valley must overcome to meet its target of completing the long-delayed, $6.6 billion infrastructure project by late 2023.

Earlier this year, the Fourth Circuit — again represented by Gregory, Thacker and Wynn — struck down for the second time two other authorizations: One for the pipeline to pass through the Jefferson National Forest and the second a finding by the U.S. Fish and Wildlife Service that endangered species would not by jeopardized.

Mountain Valley is applying for renewed permits yet again.

In a filing this week with the Federal Energy Regulatory Commission, the lead agency overseeing the pipeline, the company submitted details on its application to the U.S. Forest Service for approval to pass through public woodlands in Giles and Montgomery counties and Monroe County, West Virginia.

All of the trees have been felled along a 125-foot wide right of way through 3.5 miles of the Jefferson National Forest, according to the documents.

About half of the land along Sinking Creek and Brush Mountain has been cleared and graded, but no pipe has been installed in the forest.

The pipeline will cross under the Appalachian Trail as it traverses Peters Mountain. Plans call for Mountain Valley to bore a tunnel for the pipe about 90 feet below the trail, leaving a buffer of about 300 feet on either side of the scenic foot path.

Critics of the pipeline say its corridor will still be visible from the trail for miles away.

Legislature Fills Appellate Benches




(Posted June 20, 2022) After an impasse that lasted about three months, Virginia’s appellate courts will again be fully staffed with Robes this summer. On Friday, the General Assembly elected two jurists to fill the current vacancies on the Supreme Court of Virginia, elevating Judge Wes Russell from the Court of Appeals and Judge Thomas Mann from the Fairfax Circuit Court. The legislature chose Halifax Circuit Court Judge Kimberley White to fill Judge Russell’s seat. Judges Russell and White will step up July 1; Judge Mann will take his new seat a month later.

These elections bring the Supreme Court back to its full complement of seven for the first time since Senior Justice Don Lemons stepped down on February 1. The court’s website notes that he’s serving as a senior justice; I expect that the court will approve Justice Bill Mims as a senior, probably upon his 65th birthday, which is … oh, right about now. That will max out the number of senior justices at five. In my recollection, it’s been quite a while since the Supreme Court featured seven active justices and five senior justices at the same time.


An Appellate Glossary




(Posted June 16, 2022) The appellate world has a language all its own. So does this website; you’ll see here a few terms that most non-lawyers, and even some lawyers who don’t handle appeals, wouldn’t immediately recognize, at least without substantial context. To ensure that everyone can be on the same page, here’s a list of some of the more common terms in these milieus. Italicized terms are more or less unique to this website and can be a bit tongue-in-cheek; others are typical for all discussions of appeals.


Across the river – Washington, DC, just across the Potomac from the Commonwealth of Virginia, and home to the Supreme Court of the United States.

Activist judge – I’m going to give you the definition that Ambrose Bierce would have included in The Devil’s Dictionary: An activist judge is a jurist who strikes down a law that you like. A wonderful judge is a jurist who strikes down a law that you dislike.

Age off – In Virginia, judges must retire from active service after reaching their 73rd birthday. A judge thus “ages off” the court by reaching that milestone, thereby creating a vacancy for the next General Assembly to fill.

Appellate guild – The cadre of appellate practitioners in Virginia, including advocates, clerks, staff attorneys, and even the appellate judiciary; an extraordinarily collegial group of professionals who regard each other as treasured siblings, and treat each other with that degree of kindness.

CAV – The Court of Appeals of Virginia, the Commonwealth’s intermediate appellate court. It dates to 1985, and got a major jolt in the past year thanks to Senate Bill 1261 (q.v.).

Center chair – This is another term for the chief justice of a given court, since that jurist sits in the center seat on a multi-judge bench, with other jurists arrayed around him or her in order of seniority. The center chair at One First Street (q.v.) is officially the Chief Justice of the United States, not the Chief Justice of the Supreme Court.

Cert – Short for certiorari, the process by which an appellate court chooses cases for merits review in discretionary appeals. There are about eight different ways to pronounce the longer word, with no consensus, so it’s safest to stick with just “cert.” When SCOTUS (q.v.) decides to accept an appeal for merits review (q.v.), it “grants cert.”

Certworthy – A petition for discretionary review that looks meritorious, or worthy of a cert grant.

Clearance rate – This quotient results from dividing the number of appeals acted on by a particular court in a given time period by the number of cases filed there. A court with a clearance rate above 100% is cranking out more rulings than there are incoming appeals; it’s making fast work of its docket. A sustained clearance rate below 100% means that a court’s backlog of undecided cases is growing. SCOTUS traditionally clears exactly 100% of its argued cases by the end of its term in late June.

David-Goliath Index – This one’s unique to this website, as far as I know. Once a quarter I publish a listing of recent decisions from the Supreme Court of Virginia that have an identifiable big-guy-vs.-little-guy dynamic. It’s a rough measure of the court’s composite ideological position in such cases.

Docket draw – In the Supreme Court of Virginia, the justices gather privately six times a year to select at random which justice will have the primary obligation to write the opinion of the court in each case on the upcoming argument docket. This assumes that the chosen justice is in the eventual majority. Docket draw is about three weeks before each session. At these meetings, the court also takes up matters such as petitions for rehearing.

Dunked – This unceremonious term is one I use to report that an appellate court has summarily dismissed or otherwise rejected an appellate challenge. It’s a bad sign.

The Easter Island argument – An experienced advocate’s bane; this is the unfortunate experience of delivering an oral argument to an appellate court and getting no, or painfully few, questions from the panel. You get the same degree of feedback as if you’d delivered a speech to the moai on Easter Island.

Eighth and Franklin – Another term for the Court of Appeals of Virginia, taken from the location of the Rose Lafoon Building, the court’s headquarters in downtown Richmond. Compare Ninth and Franklin.

En banc – Some appellate courts, such as the US Court of Appeals for the Fourth Circuit and the Court of Appeals of Virginia, primarily decide appeals in panels of three judges. A party who’s aggrieved by a panel decision can seek en banc rehearing, asking the entire court to decide the case and thus supersede the panel’s decision. The translation from Latin is “on the bench,” reflecting that the whole court is sitting there, listening. Some courts regard en banc rulings as a sort of super-precedent.

Error correction – One of the two basic appellate functions, the other being law development. The appellate court reviews a lower tribunal’s ruling to see if it conflicts with established law in some way. If the lower court has committed an error, the appellate court can reverse and either remand (q.v.) the case for more proceedings, or enter final judgment itself.

The Fourth – A shortened name for the United States Court of Appeals for the Fourth Circuit. The court’s headquarters are in downtown Richmond, across a corner of Capitol Square from the Supreme Court of Virginia.

Grant rate – The percentage of petitions in which an appellate court awards discretionary review. The Supreme Court of Virginia has granted civil petitions for appeal at a rate of roughly 16% for the past several years. Another quarter of them are dunked (q.v.), and the court refuses the remainder. This means that 84% of all such appeals have died without merits briefing or arguments. But see SB 1261.

The Highest Court in the Land – I have no personal knowledge of this, but I understand that this is the name that insiders have given to the basketball court at One First Street (q.v.).

Hot bench – This can mean one of two things (sometimes both at the same time). The more typical understanding is an appellate panel that asks the lawyers plenty of questions. Its antonym, a cold bench, results in the Easter Island argument (q.v.). A secondary meaning is an appellate court that’s thoroughly familiar with the record, so the advocate doesn’t have to spend much time bringing the court up to speed on what the appeal is about. Either way, unless you’re chickenhearted, you want a hot bench.

Interpanel accord doctrine – I know that the Court of Appeals of Virginia applies this, and I believe that the Fourth Circuit does, too. When a panel of either court issues a published opinion, the remainder of that court regards it as authoritative and binding in subsequent appeals. The only ways it can be overturned are by an en banc (q.v.) decision or by the Supreme Court. Note that this only applies to published decisions; unpubs (q.v.) get no such love from subsequent panels.

Law development – The fraternal twin sister to error correction, this is the appellate function of filling out the interstices of the law with published decisions that govern statewide. Some discretionary appellate courts may grant a writ (q.v.) where they don’t believe that the judgment under review is incorrect; they grant it because there’s a new, previously uninterpreted statute, or perhaps a split in the circuits, and bench and bar need a definitive answer.

The learned judge – This term, while italicized, is by no means unique to VANA; you’ll find it in appellate opinions dating deep into the nation’s legal history. I italicized it because it has a special meaning here when I’m composing analysis of appellate decisions. If you see my analysis refer to proceedings in a circuit court hearing or trial, and I mention something that “the learned judge” did, that almost always means that the judge is a pal of mine. It emphatically is not sarcastic; it just indicates that the decisionmaker is someone I know well.

The lectern – The correct term for what many people mistakenly call a podium, the location whence an advocate delivers an oral argument in an appellate court. (A podium is a usually wide platform that’s raised so an audience can see the speakers better. You can stand on a podium without causing a ruckus, but don’t try standing on a lectern unless you need to change a light bulb.)

Merits docket – In an appellate court of discretionary review, this is the list of cases in which the court has awarded an appellant that review.

Ninth and Franklin – Shorthand for the Supreme Court of Virginia, derived from the courthouse’s location in downtown Richmond. This term now has a shelf life: Plans are afoot to move the courthouse in the next few years to the Pocahontas Building, a block and a half away. At that, I suppose I’ll have to start referring to the court as Tenth and Main, which isn’t nearly as poetic.

OJ case – This is a kind of proceeding in an appellate court. It isn’t truly an appeal, because it invokes the court’s original jurisdiction (OJ). For example, the Supreme Court of the United States has original jurisdiction over disputes between states. The dispute between Virginia and Maryland over which state owns the Potomac River bed is one easy example. (Maryland won, the ratfinks, though Virginia still retains riparian rights. 540 U.S. 56) In the Virginia court system, each appellate court has original jurisdiction over petitions for writs of actual innocence, among others. In these proceedings, the original filing goes to the appellate clerk of court, not to a trial court.

One First Street – Shorthand for the Supreme Court of the United States, which is located at this address in Washington DC.

The 140 Troublemakers – A tongue-in-cheek nickname for the General Assembly of Virginia, comprising the 40 members of the Senate and the 100 in the House of Delegates. In theory, a member of the legislature could take offense at this, but I’ve never heard anyone complain when the term appears here; they must know I’m using it light-heartedly.

Opinion day – A day on which an appellate court releases one or more opinions or orders disposing of appeals. Here in Virginia, The Supreme Court issues almost all of them on Thursdays, while the Court of Appeals does so on Tuesdays. The Fourth Circuit issues opinions on almost every business day.

OT – Shorthand for “October Term.” The Supreme Court of the United States traditionally begins its annual terms on the first Monday in October. The cases considered in the ensuing nine months, ending in late June, are designated as occurring in the term that began on that October date. Thus, a case decided in June 2022 is part of OT’21, for October Term 2021.

PFR – The ultimate Hail-Mary pass, where a losing litigant files a petition for rehearing, seeking to reverse an appellate ruling. The grant rate for these is tiny, but it isn’t zero.

Remand – A trial judge’s classic profanity; this is an order from an appellate court to resume control over the case and to try again where once the lower court has erred. In my experience, trial judges don’t mind it so much when they’re reversed, but they hate remands, because once they enter judgment, they want to be forever done with the case.

Road shows – Once a year, the Supreme Court of Virginia convenes two writ panels in a place other than its courthouse in Richmond. In this way, the court comes to the people (or at least to the lawyers). In my experience, the localities that host these events regard them as great honors; the local bar association usually hosts a reception for the justices the night before, and lawyers without cases to argue sometimes attend just to watch. This term is italicized even though it isn’t one of my invention; I learned that court insiders use it, and I thought it cool enough to perpetuate.

The Robes – Shorthand here for the justices of the Supreme Court of Virginia, or more loosely, any set of appellate jurists. Compare Those Other Robes.

SCOTUS – The Supreme Court of the United States. You pronounce it as an acronym, as though it were a word, and not as an initialism.: SCOH-tiss.

SB 1261 – This Senate bill rocked the Virginia appellate world over the past year. It expands the jurisdiction of the Court of Appeals of Virginia to almost every case type, and provides for discretionary review thereafter in the Supreme Court of Virginia. It also gives every appellant an appeal of right – Virginia was the last state in the nation to provide that – and enlarges the intermediate court from 11 judges to 17. For at least the next few years, the appellate guild (q.v.) will probably speak in terms of “before 1261” and “after 1261” – or something like that – and we’re not talking about a year in the Thirteenth Century. This is the most significant appellate legislation of this generation.

SCV – The predictable shorthand for the Supreme Court of Virginia. Note that the name is not “Virginia Supreme Court.” Its seal depicts, among other things, an ostrich. I’m not kidding; you can see the bird on the courtroom wall.

Session – A period in which an appellate court is sitting to hear arguments. In the Supreme Court of Virginia, each occupies no more than four days, usually starting on a Tuesday, to hear the merits docket (q.v.). That court meets for six sessions per year; the first is in January and coincides with the week in which the General Assembly session begins. Ensuing sessions are at seven-week intervals until early June. The court then recesses for the summer and resumes with two final sessions in September and at the end of October. The CAV usually convenes one-day sessions for panels (and, very rarely, en banc arguments) throughout the year. In SCOTUS (q.v.), these are called sittings and usually last for about six days spread over two weeks, from October through April.

Summit – We cover two Summits here. The older is commonly known as the ABA Appellate Summit, formally the Appellate Judges Education Institute, and is presented annually by the American Bar Association. It moves around the nation, but usually returns to the District of Columbia at least every fourth year. Here in the Commonwealth, the Virginia Appellate Summit will soon transition from a triennial affair to biennial. It’s a customarily sold-out gathering of the Virginia appellate guild (q.v.) for advanced-level appellate education and a chance to rub shoulders with the core of the guild, to say nothing of a handful of appellate jurists.

Those Other Robes – These are the Chief Justice and Associate Justices across the river (q.v.).

Unpubs – Shorthand for unpublished orders (in the Supreme Court of Virginia) or opinions (in the Fourth Circuit and in the Court of Appeals of Virginia). There are sharp limitations on your ability to cite unpubs as authoritative, at least in the appellate courts.

VACES – The Virginia Appellate Courts Electronic System is the modern means of filing appellate documents in the courts of the Commonwealth. Once upon a time, filers had to physically lug several copies of all required documents to the clerk’s offices, where a deputy clerk duly datestamped them in: kaCHUNKitta. No more; it’s all done with electrons now. I understand that this, too, is pronounced as an acronym: “VAY-siss.” The federal parallel is the unpronounceable CM/ECF system, which stands for Case Management/Electronic Case Files. You should probably leave that one as an initialism.

VANA – Virginia Appellate News & Analysis, the first and finest website dedicated to appellate matters in Virginia. You’re reading it right now.

Writ – Literally, a document; metaphorically, an award of an appeal by a court of discretionary review. Writs are precious and rare: “We got a writ!” Across the river (q.v.), it’s more often called cert (q.v.).


Book Review: An Academic Look at the Qualified Immunity Debate


The collapse of Constitutional Remedies

An Academic Look at the Qualified Immunity Debate

by L. Steven Emmert, Virginia Lawyer – June 2022

Modern discussion of qualified-immunity jurisprudence usually focuses on sociological issues, especially racial inequality and police misconduct. In a new book, University of Chicago Law Professor Aziz Z. Huq casts a scholar’s eye on the development of this doctrine.

This book is about a somewhat wider topic – it traces the process by which the courts have gradually strangled remedies overall – but qualified immunity is the star of the production. After opening chapters that describe the concept and construction of a legal system to provide redress for wrongs, Huq describes that system’s eventual dismantling of that means of redress.

The concept that “a right implies a remedy” has been part of American legal thought since, at the latest, January 1788, when that phrase appeared in The Federalist No. 43. Congress provided a remedy for civil rights violations in the Civil Rights Act of 1871. This survives today as 42 U.S.C. §1983: “Every person who, under color of any [state law], subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….” This familiar language contains no good-faith exception; no unreasonableness requirement; and certainly, no grant of immunity, qualified or otherwise.

It took courts to do that. Beginning nearly a century after the statute’s passage, the Supreme Court of the United States began to fashion exceptions to Congress’s unconditional system of liability. In Pierson v. Ray, 386 U.S. 547 (1967), the Court imported a “good faith and probable cause” defense from the common law of torts and applied it to a §1983 action. Eight years later, it extended the Pierson rule – previously applied only in the limited context of false imprisonment – to §1983 claims generally.1

Another seven years brought the watershed decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which mandated a finding of qualified immunity from suit unless the defendant violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” This transformed Pierson’s subjective good-faith test into an objective one. The Court then required a more or less exact match between the defendant’s conduct and a previous judicial opinion before a court could find that a right was “clearly established.”2

The reader will note that each of these changes waters down the unqualified right to relief that Congress specified in 1871. But the Court wasn’t done; it inserted a malicious-intent requirement into the statute, so negligent acts were no longer within its purview.3  And Huq notes that this inexorable limiting of remedies isn’t restricted to claims for money damages. In United States v. Leon, 468 U.S. 897 (1984), the Court established a qualified-immunity exception to the exclusionary rule for illegally obtained evidence in criminal prosecutions.

Huq’s narrative explores these legal evolutions, all pointed in the same direction (which changes he calls “remedial recessions”), from the standpoint of the litigants, especially those plaintiffs who placed inadvisable hope in the plain text of §1983. Those litigants, he feels, were swimming toward an ever-retreating shore, as the Supreme Court devised over time a string of exclusions from the statute’s promise of redress.

To identify a culprit for what he sees as this one-way rush to limit remedies, Huq looks past the identities of jurists and points to increases in judicial independence. That, he claims, has fostered an environment in which courts engage in value judgments over social policy, instead of leaving those questions to the elected branches. This realization belies the assurances of then-Judge John Roberts that judges are like umpires who “merely call balls and strikes.” In qualified immunity, we see an entire legal doctrine created, out of whole cloth, by judges.

Huq’s thesis underscores the separation-of-powers component of this debate. Congress passed a law, and the Supreme Court has effectively amended it to the point that the relief promised in the act is now a phantom. In theory, Congress could legislatively repeal, or at least restrict, these holdings. That “remedy” is probably unrealistic in today’s political climate, so this and other complaints of legislating from the bench will continue.

This book is one of the latest entries in law-related literature – scholarly or otherwise – focusing on qualified immunity. Make no mistake: Huq writes very much like a law professor, so the prose is at times quite dense. For nonlawyers, Ben Cohen’s Above the Law – How “Qualified Immunity” Protects Violent Police will be a far easier read that points the reader in the same direction. One may also find a middle ground by following the published articles of William & Mary Law Professor Katherine Mims Crocker, who has written extensive and highly readable commentary on qualified immunity.

1 Wood v. Strickland, 420 U.S. 308 (1975).
2 Anderson v. Creighton, 483 U.S. 635 (1987).
3 Daniels v. Williams, 474 U.S. 327 (1986).

Steve Emmert of Sykes, Bourdon, Ahern & Levy, P.C. in Virginia Beach limits his practice to appellate advocacy in the state and federal courts.  He has briefed and argued numerous significant cases that have resulted in published opinions in a variety of fields of the law.

The Collapse of Constitutional Remedies
By Aziz Z. Huq
Oxford University Press, 2021
160 pages plus endnotes and index

Analysis of June 9, 2022 Supreme Court Decisions




(Posted June 9, 2022) Today is an anniversary of one of the proudest moments for lawyers in our nation’s history. There are many such moments, but today a lawyer had the courage to take on a bully who had become a powerful demagogue. On this date in 1954, an Army lawyer named Joseph Welch dared to fight back against powerful Senator Joseph McCarthy. With the twice-stated question, “Have you no sense of decency, sir?” Welch brought down an entire movement that had been built on fear and hatred.

We lawyers occasionally suffer from a bad public image. Moments like this remind us that we can be among society’s best, especially when we act with courage.



The primary theme of City of Charlottesville v. Regulus Books, LLC is the question whether a holding company that owns and licenses intellectual-property rights is subject to local business taxation. But the side issue of taxation of costs provides the real news, in my view.

A Charlottesville lawyer has, for some time now, enjoyed a successful career as a fiction writer. He created the holding company and assigned his intellectual property rights to it; the company in turn grants publication rights to various publishers. The lawyer filed tax returns reporting business income under Schedule C. The City picked up on that; a search revealed no business license issued to the lawyer or to the holding company.

Tax bills followed, as they are wont to do wherever there’s money. The lawyer paid one bill under protest and challenged the next one in a lawsuit. The parties filed cross-motions for summary judgment.

The circuit court ruled in favor of the lawyer, holding that the tax ordinance was unconstitutionally vague. Today the Supreme Court affirms, though on different grounds. It holds that the holding company – the entity that had filed the suit – didn’t fall within a proper local-taxation category. The company doesn’t publish and it doesn’t offer a product. Nor does it offer a service to others. It merely holds rights and licenses them to others. The justices thus affirm under the right-for-a-different-reason doctrine.

The side issue that I mentioned relates to a small amount of money: $767.20. The circuit court had awarded that amount for costs, based on an itemized list containing entries for “the cost of filing, process service fees, transcript fees, transcript shipping fees, pro hac vice admission fees, and fees for case file copy requests.”

Here, the City gets at least some relief; the Supreme Court rules that some of these entries weren’t “essential for the prosecution of the suit.” The court thus remands for recalculation of the cost award.

But this victory may prove to be short-lived. It’s true that the costs statute doesn’t allow an award in the trial court for costs that aren’t necessary for the trial. A transcript – probably the largest component of this modest award – isn’t essential if all you want to do is try the case. But it really-most-sincerely is essential for an appeal, and Code §17.1-128 authorizes taxation of transcript costs in the appellate court. Rule 5:35(c) confirms that. Thus, the holding company may get an award of some of these struck costs merely by filing a verified bill in the Supreme Court.



As an alumnus of the Virginia Beach City Attorney’s Office, I’m well aware that a locality’s governing board is a different entity from the locality itself. This distinction is case-dispositive in Marsh v. Roanoke City, a zoning appeal brought by several neighbors of a Roanoke halfway house. The neighbors sought to prohibit the operation of the house in their figurative back yard.

The zoning-appeal statute requires that any court action must name the governing body of the locality as a necessary party. But the neighbors listed only “Roanoke City,” which I take to be a shorthand reference to the City itself. The circuit court noted the difference and dismissed the case. It refused to allow correction of a misnomer, because even the correct name – the City of Roanoke – isn’t the proper party. The neighbors’ petition never even uses the word council.

Based on this reasoning, the Supreme Court affirms today in a published order. It notes the difference between misnomer and misjoinder, and finds that this is plainly a misjoinder – the neighbors simply sued the wrong party.



Let’s check next into another land-use case, where this time the petitioners sued the right governmental body. Seymour v. Roanoke County Board involves a special use permit to operate a facility dedicated to a noble purpose – caring for injured animals. The facility is at the end of a private easement that runs across several residential properties. The owners sought the permit to build a new structure to house and rehabilitate injured birds of prey.

While reviewing the application, County planning officials discovered that several structures on the site were unpermitted. They told the applicant that those structures would need to be included in the permitting process. The County Board eventually granted the permit, including retroactively for the previous structures.

This permit engendered opposition from nearby landowners – specifically, those who owned property crossed by the easement, an unimproved road not maintained by any government. The neighbors here sued in circuit court, alleging that the existing and projected use of the easement greatly increased traffic, impaired their quiet enjoyment of their properties, and required them to expend money to maintain the easement – their only means of access to public roads. Two neighbors also objected that their children, who used the lane to get to school, had nearly been struck by speeding traffic on the way to the center.

The circuit court eventually sustained the applicant’s demurrer, ruling that the neighbors had failed to establish standing under the Friends of the Rappahannock doctrine from 2013. That analysis requires two components: proximity and an individualized harm, one not shared by the public generally.

On appeal, the Supreme Court today notes that no one doubts the neighbors’ proximity to the easement; it runs across their land. On the second prong, the justices part ways with the trial judge. They rule today that the kind of harms claimed here, viewed in a light most favorable to the neighbors, can establish harms not shared by members of the public. The court thus remands the case.

One portion of this opinion gave me pause. On pages 12-13, the court takes pains to distinguish its holding from the facts of Friends of the Rappahannock. In the earlier case, the court ruled that nearby landowners didn’t have standing to object to a proposed sand-and-gravel-mining operation, despite their complaints of impaired hunting rights, noise, air particulates, and increased traffic.

The Supreme Court finds those earlier claims distinguishable from today’s circumstances, but my reading of the case didn’t convince me of the distinctions. For example, here’s one offered today:

Significantly, Friends of the Rappahannock involved more speculative allegations of harm. The property owners in Friends of the Rappahannock asserted that the operation of the sand and gravel mine may result in the alleged forms of harm. In contrast, the appellants in the present case have alleged that they have already been harmed by the traffic on the easement

Okay, I understand that. But the court today then goes on – in the very next sentences of the opinion, no less – to acknowledge that “Generally, a plaintiff is not required to allege that it has already incurred ‘particularized’ harm in order to satisfy the second prong of the Friends of the Rappahannock test. The second prong of the Friends of the Rappahannock test requires an ‘allegation of injury or potential injury not shared by the general public.’” (Emphasis original in today’s slip opinion)

Now, I’m satisfied that today’s ruling is the correct one; these landowners should have a day in court. What this unconvincing distinction does convince me is that Friends of the Rappahannock may have been incorrectly decided. Today’s opinion doesn’t come right out and say that – the justices seldom outright overrule their previous holdings – but that’s the conclusion that I reach. I hasten to add that on the seven-member Supreme Court, I have zero votes.


Mountain Valley Pipeline seeks new appellate court panel to hear legal challenges

Mountain Valley Pipeline seeks new appellate court panel to hear legal challenges

By Laurence Hammack, The Roanoke Times – 6/5/2022

Unhappy with the way it has been treated by a three-judge panel of an appellate court, Mountain Valley Pipeline is asking for a new slate of judges to hear the next round of its long-running legal battle with environmentalists.

In an unusual move, the company building a natural gas pipeline through Southwest Virginia filed a motion last month requesting the 4th U.S. Circuit Court of Appeals to assign a new panel at random.

Mountain Valley is hoping for better luck than it had with a panel that presided over 12 earlier challenges of government approvals for it and the now-defunct Atlantic Coast Pipeline. Those three judges, it says, vacated or stayed all but two of the permits, effectively killing Atlantic Coast and threatening to do the same for Mountain Valley.

“The perception created by this Court’s deliberate formation of a special ‘pipeline panel’ – actually a ‘Mountain Valley panel’ – threatens public confidence in the Court’s legitimacy,” the motion reads.

The Richmond-based Fourth Circuit, which consists of 15 active judges and three senior judges to hear appeals from five states, has a computer program that randomly assigns three-member panels for incoming cases.

However, the court’s rules allow for the same judges initially appointed at random to remain with a case when it comes up again, under certain circumstances.

When the Fourth Circuit was first asked to decide a case involving Mountain Valley – an appeal of a Roanoke judge’s 2017 decision on the company’s powers of eminent domain – the court’s program indiscriminately selected three judges.

The luck of the draw went to Chief Judge Roger Gregory and Judges Stephanie Thacker and James Wynn. That led to their assignment to most, but not all, of the future cases in which federal and state permits issued to Mountain Valley were contested repeatedly by environmental groups and local opponents.

But the Fourth Circuit did not follow its internal operating procedures, which only allow such assignments in limited cases, Mountain Valley asserts.

The rule states, in part: “Every effort is made to assign cases for oral argument to judges who have had previous involvement with the case” to preside over a motion made before oral arguments or a prior appeal in the matter.

Mountain Valley contends that the current cases – which involve petitions from environmental groups seeking the reversal of approvals for the 303-mile pipeline to cross streams and wetlands in Virginia and West Virginia – involve neither a pre-argument motion nor a prior appeal.

The company “therefore respectfully asks the Court to correct this departure from its own procedures,” George Sibley, a Richmond attorney who represents Mountain Valley, wrote in court papers.

Not only does the Fourth Circuit’s repeated reliance on the same three judges run counter to its rules, Mountain Valley argues, it also has created a public perception “of a deck stacked against large infrastructure projects in general and one private party specifically.”

The motion cites reports in The Roanoke Times about how the court’s overall record has evoked a saying by pipeline opponents: “May the Fourth be with you.”

Also included is an editorial from The Wall Street Journal, which opined that “oddly, repeated challenges keep landing before the same three-judge panel of Roger Gregory, James Wynn and Stephanie Thacker even though cases are supposed to by assigned to judges at random.”

Steve Emmert, a Virginia Beach lawyer and an authority on state and federal appeals who publishes the online Virginia Appellate News & Analysis, said he has never seen a motion like the one filed by Mountain Valley.

“To me, it’s very, very unusual,” Emmert said.

The most recent actions by Judges Gregory, Thacker and Wynn came earlier this year, when they cited environmental concerns in rejecting two permits – for the second time – that had been issued to Mountain Valley.

One of the authorizations allowed the pipeline to cross through a 3 1/2 mile segment of the Jefferson National Forest in Giles and Montgomery counties; the other was a biological opinion by the U.S. Fish and Wildlife Service that found endangered species would not be jeopardized by construction of the buried pipeline.

Mountain Valley then asked the full Fourth Circuit to reconsider the panel’s decisions, which it declined to do.

“That tells me it is unlikely that the court will grant them the relief that they are now seeking,” Emmert said.

The Sierra Club and other environmental groups, which are contesting the latest permits for water crossings, urged the court not to grant Mountain Valley’s request.

“The crux of MVP’s motion is that MVP has grown dissatisfied with that initial assignment because it has lost more often than it thinks it should have,” wrote attorneys Derek Teaney and Spencer Gall, who represent the coalition.

They say Mountain Valley voiced no objections to the Gregory-Thacker-Wynn trio when it was first appointed at random. In that case, the panel upheld a decision from U.S. District Judge Elizabeth Dillon that favored the pipeline. Dillon ruled that she lacked jurisdiction to hear opponent’s challenges of the company’s use of eminent domain to take property for the controversial project.

Most of the approximately half-dozen cases that involved eminent domain were omitted from Mountain Valley’s calculations that it won only two of the 12 cases decided by the panel.

In so doing, “MVP distorts [the panel’s] actual track record,” the Sierra Club’s motion states.

There is no reason to disqualify the three judges for making rulings that were clearly supported by the facts, the motion continues. Those facts show “systemic flaws in the permitting of MVP’s pipeline, rather than ‘a deck stacked against it,’ “ Teaney and Gall wrote.

Many of the cases decided by the panel involved what it found to be inadequate oversight by government agencies to control muddy runoff from the massive construction project. Mountain Valley has been cited nearly 400 times by Virginia regulators for violating erosion and sedimentation control regulations since work began in 2018.

In support of the Fourth Circuit’s process of assigning three-judge panels, the Sierra Club cited an article from the Texas Law Review. Two law professors noted that having the same judges hear similar cases “arises out of notions of judicial efficiency, allowing those already familiar with a case to remain involved.”

Legal battles have delayed completion of the pipeline by nearly four years and doubled its cost, now estimated at $6.6 billion.

Mountain Valley spokeswoman Natalie Cox said the company “respects the judicial system,” and accordingly is requesting a new panel selection. She declined to comment further. Teaney, an attorney with Appalachian Mountain Advocates, declined to comment.

The future of the project could rest on what the Fourth Circuit does next.

Challenges of a Virginia State Water Control Board approval for stream crossings, and a similar authorization by West Virginia, are now before the court.

Mountain Valley is also seeking, for the third time, a permit struck down earlier by the court for the pipeline to pass through the national forest and an opinion from the Fish and Wildlife Service that construction would not jeopardize endangered species. Should those approvals be re-issued later this year, additional lawsuits would likely follow.

The last brief due in Mountain Valley’s request for the random selection of a new panel was filed last week. A decision is expected in the coming weeks or months.

Amber Heard is ‘broke’ due to mounting legal fees, lavish spending: sources

Amber Heard is ‘broke’ due to mounting legal fees, lavish spending: sources

By Elizabeth Rosner, Priscilla DeGregory and Emily Crane, New York Post – 6/2/2022

Amber Heard can’t pay the $10.4 million she owes Johnny Depp, her lawyer revealed Thursday — as sources told The Post the actress is “broke” due to hefty legal fees associated with the bombshell defamation trial.

“Oh, no, absolutely not,” Heard’s attorney Elaine Bredehoft told NBC’s “Today” when asked if the actress had the means to cover the hefty judgment handed down by the jury on Wednesday.

The high-profile court battle with her ex-husband has left the 36-year-old actress hurting for cash, according to sources, including one who also placed the blame on Heard’s past lavish spending, on travel, clothes, gifts and wine.

Multiple sources said the “Aquaman” star had to switch legal representation and is relying on her homeowner’s insurance policy to cover the cost of her current attorneys in the case.

The bill for Heard’s attorney has mostly been footed by The Travelers Companies under terms of the actress’s insurance policy, sources said.

A vice president of the insurance firm, Pamela Johnson, was spotted in the Fairfax, Virginia, court with Heard multiple times throughout her trial. Neither Johnson nor Travelers returned calls from The Post.

Legal experts said using homeowner’s insurance policies is common in defamation cases.

“It’s a little oddity that most people don’t know. In most homeowner insurance policies, there is coverage if you are sued for defamation based on how much you pay through coverage,” Heather Heidelbaugh, a Pennsylvania trial attorney, told The Post.

While the insurance company then hires and pays for the attorney, Virginia lawyer Jeremiah Denton said most policies have a clause that stipulates that judgment costs won’t be covered.

“The insurance company will keep in its back pocket the option of denying coverage at the end of the day — denying coverage means refusing to pay the plaintiff, in this case Mr. Depp,” Denton said.

“A lot of insurance policies provide coverage for defamation but they have an exclusion in, which says ‘We will not cover any intentional wrongdoing,’ ” Denton said. “In order to win a defamation case against a public figure, you have to show intentional wrongdoing. Sometimes what it requires to get the judgment kicks you out of the policy that may pay for the judgment. That’s the dilemma.”

Representatives for Heard and Bredehoft also didn’t respond to The Post’s request for comment about the star’s financial situation.

Heard’s net worth has been estimated at between $1.5 million and $2.5 million as of Thursday, according to the Celebrity Net Worth site and other outlets — a far cry from what she owes Depp in the wake of the jury’s ruling.

Amid the lurid, six-week defamation trial, Heard and multiple witnesses had testified that the actress might not have the funds to actually pay her ex-husband.

Court testimony revealed that Heard was paid $1 million for 2018’s “Aquaman” and another $2 million for the sequel, which is due out next year. Her role in that movie has been significantly reduced.

Witnesses testified about how Heard lost several brand endorsements — including one with L’Oreal — after Depp’s lawyer launched a smear campaign against her.

Heard also never made good on her promise to donate the $7 million she received from Depp in their 2016 divorce settlement to the American Civil Liberties Union and the Children’s Hospital of Los Angeles.

She testified the donations were delayed because of her legal fees and bills.

A representative for the ACLU told jurors that the actress cut the last check for the charity in 2018 but then stopped making payments because “we learned she was having financial difficulties.”

Depp sued Heard in 2019. She testified that she had every intention of still making the donations, telling jurors: “I would love him to stop suing me so I can.”

Depp could still potentially claim the money he was awarded by garnishing his ex-wife’s wages from her two upcoming movies, levy her assets or even seize her house in California’s Yucca Valley, experts told The Post.

The three-bedroom, three-bathroom desert oasis has been valued at $1 million. Heard purchased it in 2019 for $570,000 under a private trust in the name of her accountant, according to property records seen by The Post.

“If she doesn’t have the money, then his avenue, while she’s pursuing an appeal, is to try to execute on property she owns,” or her bank accounts, Virginia appellate lawyer Steven Emmert said.

He added that if Depp wants to find out where Heard’s assets are, he could serve her with a summons for debtors interrogatories “where you summon the debtor to come to a court and his lawyer would get to ask her questions saying ‘What property do you own, what real estate do you own, what vehicles do you own, what jewelry do you own, what art collections’ — anything else that they could use to grab and sell at auction to try to pay down and pay off, ultimately, this judgment.”

Denton said that if Heard doesn’t turn over the judgment money, “[Depp] can institute collection proceedings so he can garnish [Heard’s] pay, if she has a salary or wage-type income.”

“He can attach her assets which basically means seize them. He can get to her assets, sell them and take cash,” Denton said.

Litigator Brett Turnbull said judgements in Virginia are good for 10 years and have the ability to be extended.

“[Heard] could be subject to this judgment for up to 30 years. If she suddenly had a new infusion of money — that can be discovered by [Depp] and pursued,” said Turnbull, a founding partner at Turnbull Holcomb & Lemoine.

Reps for Depp didn’t comment.


Analysis of June 2, 2022 Supreme Court Opinion




(Posted June 2, 2022) The Supreme Court of Virginia decides one of its oldest undecided appeals this morning. Albemarle County v. Route 29, LLC is a land-use appeal that addresses an interesting question: Can a developer make a voluntary proffer, get a rezoning based on that proffer, and later challenge enforcement of the proffer as an unconstitutional exaction?

The property is part of the Hollymead Town Center area, near the Charlottesville airport. It’s a few miles north of Charlottesville proper, and features a shopping mall anchored by a large department store. Fifteen years ago, the property’s owner sought a rezoning to develop it into that shopping center.

To persuade the County to grant the rezoning, the developer proffered the payment of up to half a million dollars, paid $50K a year, if and when the County extended public transportation to the site. The County agreed; the result is the shopping center that you can see today.

Eight years later, the County evaluated the prospect of expanding bus service to the site. That service had run in the past but was discontinued for lack of ridership. The County accordingly settled on a slimmed-down plan: a commuter shuttle that would operate during weekday morning and evening rush hours only. The County announced that it was relying on funds from the proffer to make this service financially viable.

The shopping center’s owner rebelled; it noted that this service would do nothing for its customers. It would instead serve folks who lived in northern Albemarle and worked in the City. There would be no service during the mall’s busiest times: midday on weekdays and all day Saturdays. The owner refused to pay the demanded proffers. That eventually led to a notice of zoning violation and a trip to circuit court.

The parties proceeded to a streamlined trial, providing the judge with stipulated facts and documents. The court considered the matter and ruled in favor of the owner, holding that the monetary demand was an unconstitutional application of the proffer: “there must be some nexus roughly relatable to the thing that you want to exercise the proffer for.” Because the commuter service addressed the needs of nearby citizens and not the shopping mall, the court held that the County could not collect the demanded money.

Today the Supreme Court unanimously agrees with the circuit court. This kind of condition amounts to an exaction: an agreement to permit development only if the owner surrenders a constitutional right. Here, the money demanded arose from a situation – the growth of residential communities in that area of Albemarle – that didn’t stem from the mall’s development. The Supreme Court rules that the voluntary nature of the proffer doesn’t deprive the owner of the right to challenge this proposed application of it. The court adds today that if the County ever does start offering real public transportation to the site, then the owner will have to start paying.

Today’s opinion comes from the January argument docket. There’s one undecided appeal left from that session; eight appeals remain from the March session and eight more from April. The June session begins next Wednesday and ends the next morning, with a forlorn four appeals on the argument docket. It should be a quiet summer at Ninth and Franklin.


Analysis of May 26, 2022 Supreme Court Opinions




(Posted May 26, 2022) I learned this morning that today is the birthday of sportscaster Brent Musburger. I’ve long admired his work, but one phrase that he uttered has always stood out in my mind. It was several years ago, at the beginning of the broadcast of the one football game that I never miss: Army vs. Navy. (I’m not much of an NFL fan, so I don’t usually watch the Super Bowl. Yes, I’m an American citizen.) Musburger began the broadcast this way:

This game has no national championship implications. There are no conference championships or bowl bids at stake, and there are no Heisman Trophy candidates on either team.

This is MUCH more important than all that.



This morning, the Supreme Court of Virginia issues the latest in a significant recent flurry of decisions involving standing. Anders Larsen Trust v. Fairfax County involves a challenge to a land-use decision affecting residentially zoned property in McLean.

An entity named Newport Academy bought a house in an established residential neighborhood, and sought permission from the Zoning Administrator to open a residential treatment facility for girls there. The plan was to allow up to eight teenage girls to live there, though the applicant insisted that it wasn’t a drug-treatment program. The facility would employ a staff of professionals who live off-site. To minimize traffic, it planned to use shuttles and off-site parking.

The next-door neighbors of the house complained that the planned use was incompatible with current zoning, and argued that their properties would be impaired in use and in value. They “fear that drug addicts will populate the treatment center and that the center will, in fact, provide treatment for drug addiction.”

The Zoning Administrator sided with the applicant, finding that the use was a “Group Residential Facility,” a permitted use in the zoning district. The Board of Zoning Appeals agreed with the Administrator.

That led the neighbors to circuit court. They showed the court photos of 12 cars parked on the property, and of a Newport Academy van stuck in a ditch in front of another home. They argued that their homes would lose value if the court allowed the treatment center to continue operations.

The circuit court dismissed the case sua sponte by holding that the neighbors didn’t have standing to challenge the BZA’s decision. The justices granted a writ, and today they rule in favor of the neighbors. The SCV finds that they satisfy the two tests needed to show standing in zoning appeals: They own nearby property – the two petitioners here owned lots directly adjacent to this house – and they alleged a particularized harm that’s “different from that suffered by the public generally.”

This conclusion requires some fine line-drawing. Today’s opinion, from the pen of Justice McCullough, goes to some length to distinguish a 2013 ruling that seemed on all fours but reached the opposite conclusion. The property in that older case was along the Rappahannock River; the neighbors there raised comparable challenges to a proposed sand/gravel mining operation. The primary distinctions today are distance and zoning: the 2013 case’s challengers were some distance away from the large subject tract of 500 acres, and the site was already zoned industrial. Here, next-door neighbors in a residential subdivision were complaining, and the proposed use would bring “a commercial establishment [into] a residential neighborhood.”

Today’s opinion doesn’t mention the other major recent decision that went the other way: VMRC v. Clark from 2011. There, neighbors in a residential area objected to the Virginia Marine Resources Commission’s plan to insert a pipeline adjacent to their homes, running in to the Atlantic Ocean. That edition of the Supreme Court found their arguments too tenuous to establish standing, in language that stands in contrast to the court’s ruling today.

It all ends well, as far as I’m concerned, because my sentiments lie with the neighbors here, and I believe that Clark was incorrectly decided. The court today remands the Fairfax action so the circuit court can evaluate the neighbors’ objections on the merits.


Misnomer and misjoinder

Here’s another area where we’ve received a relative wealth of recent SCV decisions: In Edwards v. Omni International Services, the court takes up another case where the plaintiff misnamed the defendant in the case.

This is a personal injury action arising from a resort guest’s fall at Lake Gaston. The plaintiff’s research indicated that a corporation with the curious name of Company X – I assume that’s a real company name, and not a corporate equivalent to “John Doe” – operated the resort. That’s who she sued. During the pendency of the case, she learned that Company X only provided publicity for the resort; the real owner was Omni.

She accordingly nonsuited and refiled, this time correctly naming Omni as the defendant. But the new suit hit the clerk’s office over 2 ½ years after the injury. Omni pleaded the statute of limitations; the plaintiff claimed protection from the misnomer statute and cited Hampton v. Meyer from 2020.

The circuit court ruled that this was a case of misjoinder, not misnomer. That is, the plaintiff sued the wrong defendant; she hadn’t sued the right defendant but made a mistake in its name. The court accordingly dismissed the case, citing the expired statute of limitations. The plaintiff got a writ.

The justices today affirm, though their reasoning is a bit fractured. A majority of four justices hold that under Hampton, this was indeed a misnomer, but the plaintiff – who has the burden of proof to bring herself within the aegis of the misnomer statute – failed to establish one of the four prongs of that doctrine. Specifically, she failed to establish a lack of prejudice to the defendant from the mistake. The court finds that, unlike the proper defendant in Hampton, Omni would have no idea that an injury had occurred. (In Hampton, the proper defendant had been driving a car involved in an accident. You have to agree that a person like that wouldn’t exactly be surprised that someone would sue.)

This requires a bit of explanation. The original suit papers named Company X as the sole defendant, and called for service of process on its registered agent. You’ll never guess who the registered agent was, so I’ll go ahead and blab. It was Omni! Omni thus received an actual copy of the suit papers and passed that copy along to Company X.

Senior Justice Russell, who authors today’s opinion of the court, explains this away:

A registered agent’s sole duty is to forward to its principal, at its last known address, any process served upon it as registered agent. Code § 50-73.135(B). The registered agent has no duty to read or interpret any attached pleadings or warn or give legal advice to the principal. An inference that Omni was made aware of the plaintiff’s claim when her first action was filed would be conjecture at best.

I’ll confess that I found this reasoning to be somewhat incongruous with what I know about the legal principal of notice; but that’s the ruling of the court today. Because Omni didn’t have notice of the claim until well past the limitations date, the court finds that it would be prejudiced by the delay.

Two justices would affirm on different grounds. Justice Kelsey, writing for Justice Chafin, would find that this isn’t a misnomer but a misjoinder, for which no relation-back relief is available. These two, along with former Chief Justice Lemons, dissented in Hampton, and today they stick to the views expressed back then. The concurring opinion acknowledges that today’s opinion of the court is faithful to the Hampton holding, but argues that the facts of Hampton compel the conclusion that that pleading error was a misjoinder.

To me, this appears to be setting the table for a future appeal involving similar facts. The Supreme Court is about to get two new justices – assuming the General Assembly can agree on them – and those might theoretically join today’s dissenters and overrule Hampton. We’ll see.


Analysis of May 19, 2022 Supreme Court Opinions




(Posted May 19, 2022) The Supreme Court of Virginia issues two published opinions this morning. Both cases come to us from the March session’s argument docket.


Public employees

An interesting procedural issue is at the heart of LaRock v. City of Norfolk. This is an employee grievance after the City terminated an employee. A grievance panel reversed the firing and ordered the employee reinstated with back pay.

Three days before the panel issued its decision, the City learned that, after the termination date, the former employee had accessed confidential computer files in a City system, using her employee ID. The City Manager decided that this new information would be enough to impose serious discipline, including termination, so he refused to reinstate her.

Can he do that? The employee decided to ask the local circuit court. She petitioned the court to compel her reinstatement. At a hearing there, she acknowledged the computer access, but argued that this information was immaterial to the grievance process. She urged the court to reinstate her and allow a future grievance panel to address the later conduct, if necessary.

The circuit judge was having none of it. The court refused the petition, holding that the reinstatement would be against public policy, and noted that reinstatement would be improper because the City was likely to go ahead and re-fire her.

The employee got a writ, and today a divided Supreme Court sides with her. Senior Justice Millette, writing for the chief justice and Justices Powell and McCullough, concludes that this judicial action short-circuited the employee’s right to a second grievance process. In such cases, the Code charges courts to implement the grievance panel’s decision; not second-guess it. The court accordingly orders reinstatement with back pay to the original firing date, now 3½ years in the rear-view mirror.

Two justices can’t stomach this relief. Justice Kelsey, writing on behalf of Justice Chafin, argues that these circumstances show that the employee sought equitable judicial relief despite her patently having unclean hands. The dissenters perceive that circuit courts in these proceedings have the power and duty to observe principles like this, just as in other legal contexts. They conclude that the circuit court was right in refusing to order relief that runs counter to equity.

This is one appeal in which only six justices participated. If the vote had been 3-3 instead of 4-2, the circuit court’s ruling would have been affirmed without an opinion.


Administrative law

The court takes up the question of harmless-error analysis in Chesapeake Hospital Authority v. State Health Comm’r, involving a certificate of public need for a new open-heart surgery and cardiac-catheterization unit in Virginia’s second most populous city.

The Authority operates what’s now called Chesapeake Regional Medical Center. That hospital is about 800 yards through the forest from the house where I grew up; I can recall selling tee-shirts back around 1970 to help raise money to build it. The facility has grown enormously since then, and it contains many state-of-the-art units and new buildings.

What it doesn’t have is an open-heart cath and surgery unit. People in that city, and in northeastern North Carolina (also part of the hospital’s service area), who need the procedure must travel past the Chesapeake hospital to get to other, more distant facilities in Norfolk or Virginia Beach. As I understand it, the Chesapeake facility is the largest holdout in Tidewater from the Sentara near-monopoly on hospital care. (Riverside has facilities across the James, but being an old-time Tidewater resident, I call that the Peninsula.)

To build the new unit, the Authority had to seek and obtain a certificate of public need from the State Health Commissioner. You can’t just build healthcare facilities like this, despite what you might think about the free-enterprise system; state law protects existing providers from the competition because of the enormous startup costs involved in hospital construction and operation.

When the Authority applied for the certificate, a hearing officer initially indicated that it should be granted. But Sentara got wind of that and obtained leave to intervene as an interested party. After receiving Sentara’s input and arguments, the officer recommended denial of the certificate. The Commissioner agreed and refused to issue one.

The Authority went to circuit court and pointed out that the Commissioner’s report included a legal error that it felt significantly affected the legal analysis. The court agreed that this was a mistake by the Commissioner, but ruled that the error was harmless, so it affirmed the no-certificate decision. The Court of Appeals agreed.

Today, in the final step of legal review, the Authority finally finds succor. The Supreme Court today unanimously reverses and remands to the Commissioner for reconsideration of the application. The key holding is one that will interest admin-law practitioners and those of us in the appellate guild.

By statute, a court reviewing an administrative agency’s case decision must abide by these principles:

The burden shall be upon the party complaining of agency action to designate and demonstrate an error of law subject to review by the court. Such issues of law include: (i) accordance with constitutional right, power, privilege, or immunity, (ii) compliance with statutory authority, jurisdiction limitations, or right as provided in the basic laws as to subject matter, the stated objectives for which regulations may be made, and the factual showing respecting violations or entitlement in connection with case decisions, (iii) observance of required procedure where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact.

I’ve italicized the key provision there. The Authority argued that the general statutory requirement for harmless-error analysis doesn’t apply in admin-law proceedings, because this more specific provision limits that doctrine to “observance of required procedure,” not errors of substance. The justices agree and hold that the courts must reverse in the event of a substantial error.

One justice offers an aside, in the form of a short concurrence. Justice McCullough notes that this is indeed the statutory framework, and the courts aren’t free to override the process that the General Assembly established. He senses, though, that perhaps the legislature should modify the statute to provide for the broader harmless-error review that Code §8.01-678 otherwise requires. He observes that Virginia is apparently alone in requiring remand for all but procedural errors.

The legislature may or may not accept this invitation. But for these parties, it’s back to the administrative hearing stage. In the meantime, the legal landscape has improved somewhat for the Authority, as a recent change to the COPN statute makes it somewhat easier for an applicant in this position. The people in Chesapeake will now get a new chance to persuade the Commissioner that they aren’t second-class patients.


Some Appellate News and Notes




(Posted May 18, 2022) Tomorrow is opinion day, maybe, at Ninth and Franklin. We’ll see in 24 hours if the Robes will give us any published rulings for the first time in almost a month. Meanwhile, here are a few developments that have caught my eye.


A legislative fix to a legislative quirk

Late last month, the General Assembly agreed to a Governor’s recommendation on Senate Bill 143, known to many of us as the Court of Appeals Cleanup Bill. This proposal would fix some bugs in last year’s landmark Senate Bill 1261, which expanded the jurisdiction of the Court of Appeals of Virginia.

The 2021 act had changed the standard for granting extensions of time from “good cause shown” to “ends of justice.” Appellate lawyers recognize that these two standards differ markedly; the latter is far stricter. After SB 1261’s passage, the court had to apply a nearly impossible standard to grant even routine deadline extensions.

Enter SB 143, which cleaned up several quirks in the previous legislation. The bill passed the Senate on a vote of 25-13, but sailed through the House on a block vote. The Governor recommended the addition of emergency language, so the new provisions would take place immediately; both chambers agreed to that on April 27, so last year’s mistake is gone now. Last week, the Supreme Court amended five appellate rules to comply with the new, relaxed standard.


An appellate fix to a staggering ruling

Last August, a divided CAV panel handed down a decision that left me aghast. In Jacks v. Commonwealth, the panel left in place a criminal conviction despite what I saw as two obvious errors, primarily related to the tolling orders entered in response to the pandemic. John Koehler’s excellent website, which covers the CAV, notes that the court granted en banc rehearing, and yesterday it corrected that misstep, overturning the conviction and sending the case back for trial. Judge Huff, who dissented from the panel decision, pens the opinion for a unanimous court.

So how did two votes to affirm turn into a unanimous ruling the other way? As John’s essay observes, one member of the previous majority was a senior judge, and they don’t vote in en banc cases. The other judge who signed on to that earlier holding evidently decided not to raise a fuss this time.


May writ panels in the books

Last Friday, the Supreme Court of Virginia convened its third writ panels of 2022. The docket comprised 46 petitioners. That’s a slight uptick over the February and April writ panels, which considered 42 and 36 petitions, respectively. You should expect the number of writ arguments to decline noticeably in the second half of this year, because for appeals noted after January 1, there’s a mandatory trip to the CAV before anyone can petition the Supreme Court. Something like the usual pace of filings should return starting in late Autumn, but those appeals probably won’t make it onto 2022 writ panels.

I’ll decline to muse on the wisdom of scheduling writ panels on Friday the Thirteenth. Perhaps luckily, I didn’t have a petition on the docket that day.


New Appellate Advocacy Academy

Virginia CLE will offer a new training program for handling appeals. On August 4-5, 2022, the Appellate Advocacy Academy will do for appeals what the Trial Advocacy College has done for trial lawyers for decades now. The faculty is dazzling, and attendees will prepare a brief and argue a hypothetical appeal to a panel of judges, getting individualized feedback on both components of appellate advocacy.

This is the first time this program has ever been presented in Virginia. Registrations are limited to 24, and I understand that roughly half of those slots are already booked. If you’re looking to develop and appellate practice, or just polish the skills that you have now, check it out; I’ll be there, and will hope to see you.


Are There Fewer Dissents Now?




(Posted May 13, 2022) The most recent SCV rulings are starting to get a little dusty – three weeks since the last opinion; seven since the last unpub – so let’s examine a subject that a reader asked me about recently. He perceived that the Supreme Court’s opinions are increasingly unanimous, with fewer of the spirited dissents that spice up the reading process.

I had a general sense of this based on my practice of reading each opinion on its day of release, but I preferred to base my answer on a bit of research. Fortunately, this isn’t hard; you just look through the pages of Virginia Reports and count. Here’s what I found:

  • 295 – 36 unanimous; 5 dissents; 88% unanimous
  • 296 – 34 unanimous; 3 dissents; 92% unanimous
  • 297 – 46 unanimous; 11 dissents; 81% unanimous
  • 298 – 48 unanimous; 2 dissents; 96% unanimous
  • 299 – 46 unanimous; 6 dissents; 88% unanimous
  • 300 – 29 unanimous; 2 dissents; 94% unanimous

With the exception of vol. 297, these all fall in a relatively narrow range from 88% to 94%. The overall average over these six volumes is 89%.

For comparison, I grabbed two adjacent volumes of older reports. I chose volumes 257 and 258, because they predate all of the justices who participated in the six volumes that I surveyed here. In those two volumes, comprising all of the decisions handed down in 1999, there were 117 unanimous rulings and 15 dissents, for a unanimity percentage of – wait for it – 89%!

Let me add the caveat here: I’d far prefer another three-year survey for a better measure, but this will do for a rough comparison. The answer to my pal’s question is no; it looks like the rate of dissents is largely unchanged between these two periods. Of course, volume 297 is a bit of an outlier, but that’s why we use multiple volumes, to normalize short-term aberrations.

This topic suggests a related question: How does the unanimity rate at Ninth and Franklin compare with SCOTUS? That one’s easy, because our estimable pals at SCOTUSblog publish those statistics. In OT20, there were 29 unanimous decisions and 38 with one or more dissents. That’s a unanimity rate of 43%. In OT19, the unanimity rate was 36%, and it was 39% in OT18. That’s a far, far cry from what we see here in Virginia. What gives?

I see several likely explanations for the difference. In no particular order, they include:

  • There are nine Robes in Washington and only seven in Richmond, so there are more opportunities for a justice to disagree with his or her colleagues.
  • The SCV’s justices are vastly more homogeneous in outlook than are their counterparts across the Potomac. In Washington, the high Court features six conservative justices, no moderates, and three liberals. In Richmond, there are no liberals on the Supreme Court; none. One or two of the justices might plausibly be described as right-leaning moderates, but as a whole, the court is uniformly conservative, as measured by the ultimate yardstick: their votes. More ideological homogeneity means more agreement on rulings.
  • The SCV sees far fewer truly hot-button issues than their pals across the river. SCOTUS routinely deals with major political flashpoints – abortion, voting rights, race and sex discrimination, etc. The SCV is much more likely to decide whether a circuit court correctly interpreted a contract provision between a buyer and a purchaser, or whether a judge correctly refused a jury instruction in an eminent-domain appeal.
  • This one’s speculation, but there may be a culture of “agreement whenever possible” in the Supreme Court of Virginia. I’m aware that some justices occasionally choose to go along with the majority rather than write a dissent that won’t likely make a difference in Virginia law. That culture of agreement, made famous in reports of the days leading up to the issuance of Brown v. Board of Education, may not exist anymore in Washington. This is a guess because I am not and have never been a court insider.

There may be another explanation that I’m not thinking of, and what I’ve written here is admittedly tea-leaf reading. But there’s no arguing with the stark contrast between the dissent rates in the two courts.


Some Appellate Observations




(Posted April 28, 2022) We get no new decisions today from the Supreme Court of Virginia, so here are a few notes on what’s going on in the appellate world.


No new Robes

The General Assembly met yesterday for the veto session, but didn’t fill the two vacancies on the SCV. As I understand it, that session still hasn’t adjourned sine die, so those seats will remain vacant for now; the Governor can’t fill them as long as the legislature is still technically in session. I have no word yet on when they’ll next gather.

This means that the Supreme Court is operating close to the minimum number of justices to constitute a full court. We have five active justices and three senior justices for now; I strongly suspect that Justice Mims will join the latter group shortly. In last week’s April session, all three senior justices took part, so there were, as far as I know, no appeals argued to a six-member court.

In case you’re wondering, it only takes four justices to meet the Code’s quorum requirement, so they’re not really skating on thin ice. But a smaller court means more work for each justice. I’m confident that the current justices are eager to have the two vacancies filled.


No civil arguments yet in CAV

The Court of Appeals of Virginia continues to periodically update its argument dockets. From this web page you can click and see which appeals will come before the court on given dates. The latest date currently scheduled is in June. As far as I can tell, it doesn’t include any appeals filed under the new appeal-of-right system.

This was entirely predictable. It takes time for an appeal to mature to the point where the Clerk can calendar it for argument. There are briefs to file and bench memoranda to prepare. I expect to see the first of these appeals on an argument docket this summer or in the early autumn.


SCOTUS completes April sitting

The Supreme Court of the United States has heard its last oral arguments of October Term 2021. The Court closed the argument docket yesterday, and now has 37 undecided appeals argued in this term. I count nine more weeks between now and the end of June, when the Court traditionally completes its term by handing down decisions in all cases submitted.

The math is pretty easy; that’s four decisions per week to clear out the docket. But if you expect a steady diet of four opinions per week, you’ll be in famine mode for a time. The past few years teach us that the Court will hold many of the decisions until the second half of June, at which point we’ll get them in a rush. Expect the hot-button decisions, such as Dobbs v. Jackson Women’s Health (abortion) and Carson v. Makin (public funding of religious schools) to arrive at or near the end of that month.


A few scattered statistics

My readers know that I can’t resist peering at tables and charts to see what useful items I can glean from them. I checked the two Virginia appellate case-information web pages yesterday, and saw that business is down significantly in the SCV and up significantly in the CAV. This fact is about as surprising as the time of today’s sunrise; we all knew to expect these trends.

CAV Clerk John Vollino had opened 642 new files as of this week, portending something on the order of 2,000 for the year. That’s up significantly over 2020 (the last year for which I have a stats report), but only by something like 45%; it isn’t the doubling that some doomsayers foretold. The increase in the size of the court will more than make up for that rise in incoming cases.

Meanwhile, SCV Clerk Muriel Pitney has opened only 246 files this year. We’re almost 1/3 through the year, so that projects to a yearly total of somewhere in the 750-800 range. I suspect that the eventual total will be at or above 800, because some CAV appeals will make their way through a merits decision by late autumn, and from those, some disgruntled litigants – God, how I love disgruntled litigants – will choose to try to hit the writ lottery in the Supreme Court. I perceive that their success rate will be tiny, but where there’s appellate life, there’s hope.

Meanwhile, the justices have granted 15 petitions for appeal thus far in 2022. That’s through two of the court’s six writ-panel dockets, so I suspect that we really are looking at something close to 50 merits decisions in 2022 — easily the smallest number going back as far as I have statistics, which is to 1965.


Analysis of April 21, 2022 Supreme Court Order




(Posted April 25, 2022) My travel last week kept me away from the keyboard longer than I had expected, so I’m late in getting this report to you. On Thursday, the Supreme Court handed down a published order in a mandamus case, In re Bennett.

The petitioner is a judge here in Virginia Beach who found herself on the wrong end of a Judicial Inquiry and Review Commission proceeding. Last year, she filed a petition in the Supreme Court for mandamus and prohibition, seeking an order to JIRC to reinstate her to the bench. Because she filed it under the Supreme Court’s original jurisdiction, this wasn’t an appeal; it instead invoked the court’s original jurisdiction (an “OJ proceeding,” in court-insider parlance).

The Supreme Court rejected the petition the next day. But because JIRC proceedings are confidential by statute, the justices sealed the records of the mandamus case. They even sealed the sealing order, which we learn today might be unprecedented here.

A month and a half later, the publisher of the Richmond Times-Dispatch filed a motion for leave to intervene in the case because it wanted access to the records of the JIRC proceeding. The paper cited a provision in the JIRC-confidentiality statute that seems on its face to be fairly helpful: “the record of any proceeding filed with the Supreme Court shall lose its confidential character.”

Today, a slightly short-staffed Supreme Court – five active justices plus Senior Justice Millette decide the petition – affords the paper partial relief. The court unseals the records of the mandamus petition, because there’s nothing in the confidentiality statute that authorizes the sealing. But a majority of the justices stop short of ordering the unsealing of the JIRC materials in the mandamus petition. The majority holds that while mandamus petitions are traditionally open to the public, judicial-discipline proceedings aren’t.

What about that excerpt that I quoted above? Four justices find that it doesn’t apply here:

[T]he statute provides that “the record of any proceeding filed with the Supreme Court shall lose its confidential character.” Id. Any “proceeding,” in context, refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one. Code § 17.1-913(A) specifies that “[a]ll records of proceedings before the Commission which are not filed with the Supreme Court in connection with a formal complaint filed with that tribunal, shall be kept in the confidential files of the Commission.” Id. (emphasis added). The mandamus filed by Judge Bennett is not “a formal complaint filed with” this Court. Therefore, the exception does not apply, and the mandate of confidentiality does apply.

Accordingly, the newspaper gets to see what the judge put in her mandamus petition, but not the underlying JIRC record, which is probably where the juicy stuff is.

Two justices can’t abide this result. Justice Kelsey, writing on behalf of Justice Chafin, offers a partial dissent in which he argues that the quoted passage commands disclosure. He adds, “This is one of those occasions in which, despite the sometimes anfractuous lexicon of the law, simple words have simple meanings.”

Okay; the word anfractuous is a bit jarring in a sentence that extols the virtue of simplicity in language. But his point is that while language can be complex, here it ought to be simple. Here’s the remainder of his argument on this point, in full:

Any JIRC proceeding includes the one involving Judge Bennett. Filed includes the JIRC documents she filed with the Supreme Court. And shall lose its confidential character means that the JIRC record cannot (as opposed to may or may not) be hidden from the public. The plain meaning of Code § 17.1- 913(A) thus maintains the confidentiality of JIRC records in disciplinary proceedings “before the Commission” but removes any secrecy surrounding these records when they are filed in a judicial proceeding before the Supreme Court of Virginia. That conclusion should be particularly true where, as here, the party clinging to the confidentiality of these documents is the very party filing them in the most public of forums.

The backdrop for this argument is that the Constitution of Virginia once mandated secrecy in judicial-discipline proceedings, but the citizens changed the constitution a generation ago. What once read, “Proceedings before [JIRC] shall be confidential” then became permissive: “”Proceedings and documents before the Commission may be confidential as provided by the General Assembly in general law.” (I’ve added emphasis both times.) The legislature then passed the statute providing that JIRC documents lose their confidential character once they land in the SCV Clerk’s inbox.

Today, a majority of the Supreme Court effectively writes that mandated transparency right out of the Code. That’s the dissenters’ conclusion. The distinction in the unsigned majority opinion rests on the definition of a proceeding; the majority rules that, in context, it refers to judicial-discipline proceedings. This was a mandamus case, so the majority finds that the statutory exception doesn’t cover it.

After pondering this ruling over the weekend, I agree wholeheartedly with the dissenters. My view might be colored by my firm support for openness in government – I’m a big FOIA advocate, for example – but it also rests on that simplicity of language that Justice Kelsey advocates. Even though it isn’t a disciplinary action, there’s no question that the mandamus petition included the filing of the entire JIRC record. In my view, the simplest and most natural interpretation of the statutory exception is that it covers “the record of [a JIRC] proceeding” that was filed in the SCV Clerk’s Office. I believe that the majority has applied a contorted interpretation of the statute, to permit it to reach this result.

Judge J. Harvie Wilkinson III of the Fourth Circuit penned a different dissent in an election-law case a year and a half ago, just before the 2020 general election. He included this warning: “More and more it appears, political parties seem to be bringing these election law challenges in an effort to gain partisan advantage. This trend is deeply disturbing. Selective interventions by the courts in these cases will create the appearance of partisanship. They undermine our most valued asset, the public’s trust and confidence in the judiciary.” Middleton v. Andino, 990 F.3d 768, 773-74 (4th Cir. 2020).

I agree with Judge Wilkinson’s assessment of the importance of public confidence in our court system. Today’s ruling is one of many, too many, where plain language seems to counsel one result, but a court rules the opposite way. John Q. and Jane Q. Public assuredly won’t understand the fine distinction that the majority draws today. They will instead chalk this up as one more example of verbal contortions, all too typical of our profession.


Analysis of April 14, 2022 Supreme Court Opinions




(Posted April 14, 2022) Harvey Penick, the author of the celebrated collection of golf instruction entitled, Harvey Penick’s Little Red Book, once aspired to play professional golf. As he tells the tale, he entered a tournament and on the first day of competition, went to the registration table to check in. After doing so, he went over to the practice range to get ready for his round.

There, he passed by Sam Snead’s practice station. The greatest Virginia golfer of all time was already in his warmup session. Penick paused to watch as Snead launched a series of beautiful four-iron shots that soared majestically off into the distance. After a few minutes, Penick turned around, walked back to the registration table, and withdrew from the tournament, reckoning that he could never compete against a golfer of Snead’s skill.

In a separate genre, a Scottish guitarist named Ian Anderson was eager to make a name for himself in the 1960s rock genre. He practiced and played in clubs, fancying that a profitable career might await him. Then one day, he heard Eric Clapton play. That was enough to convince him that he could never thrive as a guitarist; Clapton’s genius at the instrument greatly exceeded Anderson’s.

But each story has a happy ending. After jettisoning the idea of a career as a Tour pro, Penick turned to teaching. He went on to become the most famous golf teacher of the Twentieth Century, providing gentle, effective guidance to young golfers who would become major stars on the PGA Tour. After abandoning the guitar as a primary instrument, Anderson saw a shiny object in the window as he passed a music store, and decided to give the flute a try. The result, the eventual development of Jethro Tull, changed rock history, adding a new sound that dazzled audiences around the world.

These parallel tales have nothing to do with this morning’s two published opinions from the Supreme Court of Virginia. But they teach that, no matter how frustrated you might be, you can always choose to adapt and thrive. Both Penick and Anderson achieved far more success in their altered careers than they probably would have if they had stubbornly clung to their initial plans. Keep this in mind in your life, and remember that you’re never trapped as long as you have imagination.



We get two rulings – one procedural; the other substantive – in Erie Insurance Exchange v. Jones. This arises from a declaratory-judgment action on a homeowner’s policy. The underlying claim stems from an injury sustained by a girl who was a passenger on a four-wheel all-terrain vehicle. The girl’s mother sued the parents of the driver. Erie disavowed coverage, so the mother filed the DJ action.

Because this is a homeowner’s policy and not a vehicular policy, it contains an exclusion for claims arising from the use of motor vehicles. The issue in this appeal is whether either of two exceptions to that exclusion applies. The first is for recreational land motor vehicles “not designed for use on public roads while at the insured location.” The other provides that “lawn or farm type vehicles” get coverage.

This injury happened off the homeowners’ property, so the first exception didn’t apply. Today, the Supreme Court ponders whether an ATV is a farm-type vehicle. The circuit court found the language ambiguous, because the policy didn’t define farm-type vehicle. Resolving the ambiguity against the insurer, that court ruled that the insurer was liable to cover the claim.

The justices disagree. In a short opinion from the pen of Justice McCullough, the court rules as a matter of law that an ATV, while it may be used on a farm, still isn’t a farm-type vehicle. That clearly isn’t the ATV’s primary purpose, so there’s no coverage.

The procedural ruling stems from the mother’s request that the Supreme Court dismiss the appeal because the insurer didn’t name the homeowners – the original defendants in the tort suit – or the injured girl’s guardian ad litem as parties to the appeal. The justices reject this contention, ruling that those litigants aren’t necessary parties. They certainly knew about the appeal, and the mother adequately represented their interest in the appeal because each of them wanted to secure full insurance coverage.



The all-too-familiar specter of an intra-family estate dispute returns to haunt us yet again, this time in Boyle v. Anderson. A man whom we’ll call Dad created an inter vivos trust that directed distribution of the trust property into three shares for his three offspring. He built a mandatory arbitration clause into the trust: “Any dispute that is not amicably resolved, by mediation or otherwise, shall be resolved by arbitration….”

After Dad died, a dispute arose between two of the three branches of beneficiaries. The simplified version is that a son, John, sued to remove his sister, Sarah, from her position as successor trustee. Sarah sought to invoke the arbitration provision, but the circuit court refused to do so.

Arbitration law is one of those areas where certain rights run in one direction only. The Supreme Court (now, starting in 2022, it’s the Court of Appeals) has jurisdiction to hear an appeal of an order that refuses to compel arbitration, though not over an order that compels it. This situation fit, so the justices today take up the primary question whether this trust language forces John to arbitrate.

The short answer is no. The slightly longer answer is that our arbitration statutes require arbitration where there’s (1) a contract containing an arbitration clause, or (2) a written agreement to arbitrate. The court rules today that a trust isn’t a contract; it’s a conveyance. There are several differences between the two in law, and the court refuses to apply contract law to something that isn’t a contract.

As for the agreement trigger, the court finds that the very word agreement requires two parties each to consent to something. Dad may have intended arbitration, but John never agreed to it; he didn’t sign the trust agreement. In the absence of that agreement, the arbitration language isn’t enforceable against him.

The court also rules that the Federal Arbitration Act’s provisions similarly apply to contracts, so that statute doesn’t help Sarah either. The justices thus affirm the interlocutory ruling and send the case back for trial.


SCV Issues Short Published Ruling




(Posted April 7, 2022) Today is an immensely important day. In eastern Georgia, The Masters has begun; this afternoon, in ballparks across America, Major League Baseball celebrates Opening Day – a bit late; but that’s better than not at all. At Ninth and Franklin, we get one of the shortest rulings that you’re likely to see in Virginia Reports.

In Wills v. Wills, the court issues a one-page published order that adopts and affirms the ruling of the Court of Appeals in a domestic-relations appeal. The court’s write-up on its Opinions and Published Orders page contains detail that the order itself does not, including the fact that the parties “presented 18 assignments of error and cross-error” in the appeal, only to receive what amounts to a summary affirmance.

There’s an interesting quirk for those of us who read opinions for a living. In a footnote, the justices state that the circuit court erroneously calculated prejudgment interest on what I take to be a retroactive award of child support. The note concludes with this sentence: “The Court takes no position regarding whether prejudgment interest could be awarded as part of a retroactive child support award under Code § 8.01-382.”

I couldn’t help but check: At 98 words, the footnote is 18 words longer than the body of the order. You don’t see that very often. And for what it’s worth, this short essay is 237 words, excluding the headline.


Notes from the Appellate Landscape




(Posted March 31, 2022) The cyber-printing presses at Ninth and Franklin are quiet today; the Supreme Court issues no new opinions or published orders. That gives us time to take a furtive look around and see what’s happening in the appellate world.


An era ends

Today marks the close of Justice Bill Mims’s illustrious tenure on the Supreme Court. Last year, he notified the Governor that he wouldn’t seek reelection at the expiration of his current term, which is today. Justice Mims reached the pinnacle of all three branches of Virginia government – he served with distinction and integrity as a state senator, as Attorney General of the Commonwealth, and on our highest court. I’m not aware of anyone else who has achieved that trifecta, though Lindsay Almond came close (AG, SCV justice, and member of Congress). [Update: One of my pals has pointed out that I’m mistaken about Almond. He was an appellate judge in the federal system and didn’t serve on the SCV.]

As I mentioned here earlier, former Chief Justice Don Lemons has also left the bench, after serving at every level of our court system. The General Assembly will, in a special session beginning next week, elect two new justices to succeed them. I used the word succeed and not replace because you cannot simply replace two men like this. They are both uncommonly gracious, and the Commonwealth is better for their having served.


Some caseload statistics (and a couple of anecdotal observations)

I’ve mused in this space about the probable drop-off in new filings in the Supreme Court for 2022, primarily a product of the expansion of the Court of Appeals’ jurisdiction. I checked the SCV’s online case-information page just now and noticed that the clerk has opened – or at least logged into the case-information page – just 194 new appeals for the year. Since we’re at the one-quarter point for the year, that portends something like 800 new filings at this pace.

According to the statistics I have, the last time the court took in fewer than 1,000 new appeals in a year was 1966. Twenty years ago, the average was around 3,000 a year. Here are the last three years’ totals: 1,760 (2019), 1,571 (2020), 1,233 (2021). As I mentioned just now, this year’s decline is largely because the Court of Appeals will be vacuuming up all of the new appeals now. I foresee an uptick in SCV filings in the fourth quarter of this year as new appeals emerge from the CAV and aggrieved litigants decide to take one more appellate crack at it. But I don’t think we’ll see Record No. 221000, which would be the 1,000th record opened in 2022.

Other tidbits hint at the decline, and these don’t trace to the CAV expansion. The Supreme Court entertained writ-panel arguments in just 42 appeals in February, and the April writ docket features just 36 petitions. In even the recent past, I’ve been accustomed to seeing 65 or so petitions on each of the court’s six panel dockets each year; the average thus far is under 40.

One last observation about writs, and my appellate pal John Koehler has already noted it: We aren’t seeing many writ grants. There are eight thus far in 2022, or about 19% of the petitions argued on February 15. In fairness, that’s slightly higher pace than the normal writ-granted rate. And it reflects only one of the court’s six panel sessions, so the theoretical pace would extrapolate to something close to 50 writ grants over the course of the entire year.

Even so, fifty?? That’s a tiny number of merits reviews for a full year. And all of these appeals arose under the pre-2022 protocol, so Senate Bill 1261 has nothing to do with this decline.

What about the merits cases? The justices heard oral argument in ten appeals in the January session and a robust 17 in the March session. I’ve seen the April session docket, and it includes just nine appeals. That means that when the court completes the April session, it will be halfway through the year’s merits docket and will have heard just 36 appeals. These, too, are unaffected thus far by the new CAV procedures, as all of these appeals matured last year.

The effects of SB 1261 probably won’t show up in the Supreme Court’s merits docket until 2023. These days, it takes roughly a year, possibly a bit more, for an appeal to progress from final judgment below to oral argument after a writ grant. This means that the early 2023 SCV sessions will probably feature a very small number of appeals, and those will be in cases that went through the Court of Appeals before the switchover. That translates to domestic relations, Workers’ Comp, and criminal cases. In terms of the SCV’s pre-2022 docket, those numbers are tiny.

Eventually – and in my mind, that translates to 2024 – these things will return to some semblance of normality, in terms of docket statistics. But much of that depends on our next topic.


Will the SCV’s writ thinking evolve?

Appellate practitioners know that in the federal system, the Supreme Court doesn’t play much, if any, of a role in appellate error correction. The justices figure that that’s the Court of Appeals’ role; SCOTUS accepts cases on certiorari only, where at least four justices believe that the appealed issue is of significant national import. For most litigants, appealing to SCOTUS by arguing that a court of appeals made a simple mistake is a losing approach.

For a long time – actually, that means forever in the appellate context – the SCV performed both error correction and law-development roles here in Virginia. That’s because for most case types, an appeal to the Supreme Court of Virginia was the only available appellate avenue. Now, with the expansion of the Court of Appeals’ jurisdiction, we have a system that mirrors the federal system.

The question becomes whether the SCV will follow the lead of Those Other Robes and decline to engage in error correction. No one has suggested to me that the court will take that route; I’m just musing and wondering. But if that comes to pass, we may continue to see very small merits dockets well into the future. While I believe that the justices have in recent years shifted toward a law-development role at the expense of certain appellants with legitimate error-correction grievances, the court still undeniably engages in some error correction. That is, the SCV has granted a fair number of writs simply to correct patent (or sometimes latent) mistakes by trial courts. If that function goes away, we’ll see very small law-development-only dockets starting in 2023.


1Q David-Goliath Index

Admit it; you’ve been wondering when I’d get around to this, right? I made you wade through all that other stuff instead of giving you dessert first. All I can say is that I hope the prose sparkled, so it wasn’t too much of an ordeal.

In the first three months of 2022, the Supreme Court of Virginia has issued ten published opinions, one published order, and eight unpublished orders. Not all of these fit the David-Goliath dynamic: an identifiable little-guy-vs.-big-guy setup, such as a tort victim vs. an insurance company, a criminal appellant vs. the Commonwealth, and the like. It excludes things like boundary disputes, domestic relations, and one corporation suing another.

I’ll freely admit that in classifying these cases, I sometimes have to make judgment calls. For example, I usually include tax cases in the index, with the tax man as Goliath. But if the taxpayer is, as we saw this time, R. J. Reynolds Tobacco, I don’t include it. That’s Goliath vs. Goliath. I also usually exclude split decisions, where the SCV affirms in part and reverses in part, because it’s often impossible to tell who’s “won.”

Here’s the tally for the first quarter of this year: David wins one and Goliath takes seven, for an initial D-GI of 12/88. That’s more lopsided than usual, but I have enough background in statistics to know that it’s skewed by its small sample size. We’ll check back again after the June 30 opinion day to see how things go in the second quarter.


Analysis of March 24, 2022 Supreme Court Opinions




(Posted March 24, 2022) It’s a fine, soft day here in Tidewater – translation: it’s raining – and it’s opinion day at Ninth and Franklin in Richmond. The Supreme Court of Virginia hands down two published rulings this morning, one opinion and one order.



The sadness of an intra-family dispute gives us Kittrell v. Fowler, from Middlesex County. The facts are quite complex, a labyrinth of family trusts and large financial transactions, punctuated by the abrupt suicide of one beneficiary/trustee.

But the ruling is quite simple, so I’ll spare you the intricate details. (If you really want those details, scroll up just a tad; they’re only a mouse click away.) The Supreme Court reaffirms that only the personal representative of an estate can pursue a claim that accrued to the decedent during her lifetime. Beneficiaries to the estate cannot sue in their own names to vindicate rights belonging to the testator or settlor.

There’s one interesting procedural point in today’s published order. This is an interlocutory appeal, and it isn’t the parties’ first trip to the Supreme Court. In 2019, one set of parties sought an interlocutory appeal. Their opponents objected, and under the law that existed at the time, that prevented the appeal. Back then, all parties had to consent to interlocutory review, so either party had veto power. That led the opponents to file a prohibition/mandamus petition in the Supreme Court in early 2020, but that petition died later that year.

Meanwhile, the legislature amended Code §8.01-670.1 to remove the requirement for universal consent. Today’s appellants then moved again for certification, and the circuit court agreed, leading to today’s decision.

I don’t have a rooting interest between the parties to this appeal, but I do appreciate this first (as far as I know) use of the amended certification statute. The General Assembly acted on the recommendation of the Boyd Graves Conference to remove the veto provision. I was a strong backer of that change in the Conference, and I’m glad that it resulted in what I regard as a salutary change in the Code.


Business torts

The justices address some familiar customers in Sidya v. World Telecom Exchange Communications, LLC. This litigation, involving claims of conspiracy, interference with contract expectancies, and appropriation of trade secrets, has been to the SCV twice before.

World Telecom sued Sidya, the owner of its former vendor company, alleging that he and World Telecom’s then-CEO conspired to undercut World Telecom’s business to benefit a new company that the two men were creating. At a jury trial, the plaintiff adduced plenty of smoking-gun testimony to prove the torts, and the jury responded with a sizable verdict.

The Supreme Court today analyzes the evidence to conclude that the jury had a solid basis to impose liability. It accordingly affirms the principal damage award. In a previous appeal, the justices had directed the circuit court to allocate the unitary verdict against Sidya, one of multiple defendants. After a hearing, the circuit court determined that amount to be $1.3 million and then trebled that to about $4 million. The justices find no fault with these rulings.

The news for Sidya gets a bit better; the Supreme Court reverses a $1.6 million attorney’s fee award allocated to matters before and during trial, finding insufficient evidentiary support. It leaves intact a separate $500,000 fee award for post-trial work, because World Telecom’s lawyers offered far more billing detail on those.

Finally, the justices weigh in on a little-explicated but important statutory provision: judgment interest on a compound damage award. The justices hold that despite the five-year gap between the jury verdict and the judgment appealed here, judgment interest began to run on the date of the verdict. That’s consistent with the court’s ruling in the Upper Occoquan case 14 years ago.

But there’s more: Sidya argued that the interest should only run against the primary $1.3 million award, and not on the trebled damages or the $350,000 punitives award. Here, the justices agree with him in what looks to me to be a ruling of first impression. Henceforth, we know that only the primary compensatory award gets post-judgment interest.

I’ll do the math for you; I was always pretty good at math, though I mostly jettisoned that when I chose a legal career. As of yesterday, World Telecom was hoping to receive (in round numbers) $4 million in trebled compensatory damages, plus $350K in punitives, plus about $2.2 million in attorney’s fees, plus $1.7 million in judgment interest. That’s a bit over $8.2 million. With today’s rulings, that total expectation is down to $5.4 million or so. That’s still lot of money, but Sidya’s appellate lawyer succeeded in carving almost $3 million off his judgment liability – before considering her appellate fees, of course.

Justice Kelsey authors today’s opinion for a unanimous court. This was the last undecided appeal argued in 2021; the lawyers appeared before the court on November 9, and had to wait 19 weeks for today’s ruling. Given the complexity of the case and the legal issues, that delay is hardy unreasonable.


Analysis of March 17, 2022 Supreme Court Opinion




(Posted March 18, 2022) I was away from the keyboard yesterday, when the Robes slipped in one short published opinion. Let’s take a look and see what they have wrought. In doing so, I’ll be careful to type quietly, for the benefit of those of you who may be suffering from too much partying yesterday. I’m referring to the Richmond Spiders’ latest upset win in the NCAA Tournament, of course; not that other holiday.


Pleas in bar

The court takes up a challenge to a collection action in California Condominium Ass’n v. Peterson, from here in Virginia Beach. It relates to some old unpaid condo assessment fees. Peterson and his wife didn’t pay the assessment back in 2006, so the association slapped liens against their properties and allowed the matter to lie fallow for an extended amount of time.

In 2015, the husband and wife reached agreement on a divorce agreement. The husband got the condo units and agreed to hold his soon-to-be-ex harmless from “any liability, costs, and expenses she may incur as a result of Husband’s failure to pay the mortgage and all other expenses related to the property.”

The condo association somehow got wind of this agreement and sued the husband for nonpayment of the old assessment. The suit sought money damages for his breach of the condo declaration. The husband filed a special plea, asserting that two statutes of limitations shielded him from liability: the three-year limit for suing to enforce condo liens, and the general five-year limitation for breach of written contracts. Both of those deadlines had long expired by the time the association went to court.

The association replied that the husband’s agreement with his wife was a fresh undertaking to pay the debt, and it filed suit well within the limitations period after he signed it. It also pointed to a provision that required payment in full of unpaid fees and assessments whenever the property was sold.

While these are interesting legal and factual issues, this case turns on the procedure used in the ensuing plea-in-bar hearing. There, the association handed up a binder with numerous documents. The husband’s lawyer agreed that the lawyers could refer to these documents while examining witnesses, but reserved objections to their admission in evidence. The judge agreed to “simply lodge” the binder and to take up later the admission of exhibits into evidence.

Except no one ever got around to moving to admit the documents – other than the lien memoranda – into evidence. In a subsequent letter opinion, the judge noted this failure and ruled that he accordingly couldn’t consider the condo declaration in making his ruling. The court accordingly ruled in favor of the husband, sustaining the plea in bar and dismissing the case.

The justices today reverse this ruling and send the case back for reevaluation. They hold that while this was calendared as an evidentiary hearing on the plea in bar, in reality it asserted that the suit was legally nonmeritorious, regardless of the evidence. The justices today elect to treat this as effectively a demurrer – the husband called no witnesses at the hearing and asserted that he should win as a matter of law.

This means that the court reads the case with the exhibits attached to the complaint, and those included the declaration, the deed, and the settlement statement. Viewing these, a circuit court can indeed evaluate whether, as the association insists, the pay-on-sale language in the condo declaration constitutes a new undertaking. The court remands the case for that hearing, declining to make the judgment call in the first instance. It includes a subtle reference to an earlier opinion – like today’s, authored by Justice Kelsey – in which it evaluated similar issues.

Alas, that hearing will occur before a different jurist of the Virginia Beach Circuit Court. The judge who originally decided this case was Glenn Croshaw, a long-time friend of mine who died late last year after an extended illness. Glenn was a true gentleman who served the Commonwealth with distinction as a citizen legislator and then as a jurist. We here in Virginia Beach are the poorer for his passing.


A Peak at Two Coming SCOTUS Quandaries





(Posted March 10, 2022) We got no new decisions from the Supreme Court of Virginia today, so let’s wander across the Potomac and explore two issues that Those Other Robes will be deciding soon.

You should never underestimate the creativity of lawyers. We get paid to advance our clients’ interests, and when a legal canon stands in the way, we’re supposed to be inventive. A novel argument might win the day; an obscure statute or case decision might provide unexpected support. The unimaginative advocate will always be at a disadvantage.

In that vein, I give you the lawyers who advised Republicans in the Texas legislature. The lawmakers badly wanted to avoid the holding of Roe v. Wade and ban abortion statewide, but the federal courts stood in the way. The lawyers came up with a creative solution: Deprive the courts of an official defendant who could be enjoined.

Hence, the now-famous Texas statute that authorizes private civil suits by any person, against any person who provides any assistance to a woman who obtains an abortion. Never mind long-accepted principles of standing to sue; the statute simply grants such standing, and authorizes a civil judgment up to $10,000 against even the most tangential participant, such as a taxi driver, or a clerk who books appointments. Because state officials wouldn’t be enforcing the law, the courts couldn’t enjoin anyone.

A challenge to the statute made its way to One First Street last year, and a divided Supreme Court refused to block the law’s effect pending the outcome of further legal proceedings that will eventually arrive at the Court’s door. Since then, other states have seized on this procedural quirk to delegate law enforcement in other contexts. California explored a similar approach to threaten gun sellers and manufacturers. The idea is to permit a civil lawsuit against anyone involved in a transaction that ends with a shooting by a ghost gun. Second Amendment advocates were aghast, but it’s the same principle; the same creative approach.

This morning I read an article explaining how a Missouri state legislator wants to implement a similar deputized-enforcement strategy to Missouri women who travel to another state to obtain an abortion. The law would similarly permit civil suits against anyone who aids such a patient, even where that aid occurs elsewhere. The lawmaker there sees no impediment to projecting Missouri’s laws beyond the state’s boundaries. Based on what I know about the geographical limits of a state’s powers, she probably reached that conclusion solely because it’s the one she wanted to reach; not based on something as troublesome as legal research.

Where does this end? If SCOTUS legitimizes this strategy of privatizing public policy by turning citizens into vigilantes to carry out the will of the state’s legislative majority, then any constitutional right, no matter how well-established, can be infringed without recourse. We all know how divided America has become, but just wait’ll you get a view of the Balkanization of numerous constitutional rights across the land.

I earnestly hope that the high Court will crush this novel effort to evade the Constitution and established law. Regardless of which side of the philosophical aisle you occupy, you should, too. Vigilantism – government by bounty hunter – is a poor way to run a constitutional democratic republic. And while I generally respect lawyers’ robust imaginations when addressing legal problems, this solution is unhealthy for that republic.

 *   *   *

I promised you two quandaries. The second arose last week, in a widely reported opinion that reinstated the death sentence for convicted Boston Marathon bomber Dzokhar Tsarnaev. By a vote of 6-3, the justices reversed a First Circuit ruling that had vacated the death sentence.

Most of the media coverage of the decision focused on the substance of the ruling, or on the 6-3 conservative-liberal split among the justices. I saw something else that sparked my interest in another direction. Justice Barrett penned a concurring opinion in which she and Justice Gorsuch question an established federal appellate practice. Specifically, she doubts whether the federal courts of appeals possess supervisory power over the district courts, sufficient to allow the appellate courts to impose procedural rules.

I hasten to add that the existence, or not, of such powers wasn’t at stake in this appeal. Neither the government nor Tsarnaev challenged it. The opinion of the Court, authored by Justice Thomas, discusses the authority issue, talking all around it without actually condemning it. He ultimately concludes, “Whatever the ‘supervisory power’ entails, it does not countenance the Court of Appeals’ use of it.” Justice Breyer’s dissent points to specific SCOTUS decisions that recognize such authority.

But the concurring justices plainly want a wholesale reexamination of the premise. They acknowledge that SCOTUS itself has that power, though they cite the flimsiest of justifications: the Constitution’s description of the Court as “supreme.” (Even Justice Barrett admits that this is merely an arguable basis for a power that she nevertheless takes as firmly established.) But the premise that the courts of appeals can actually supervise district courts, they reason, is nowhere supported in law, despite previous SCOTUS caselaw’s express endorsement of that very power. The concurrence uses the oldest trick in the casebook to criticize those rulings, calling them dicta.

I mention this because this is likely to come across as a foreign concept to most appellate practitioners. Of course appellate courts can supervise the operation of trial courts; that’s their job, right? Well, we now have an open invitation to future litigants to challenge that power, knowing that they’ll already have two advocates on the Court.

How about in state court? I cannot recall a suggestion that, say, the Court of Appeals of Virginia has no power to supervise the circuit courts. Perhaps someone will make that argument now that it’s on the table in plain sight, albeit across the Potomac.


Update on Appellate Events




(Posted March 4, 2022) Let’s catch up on some happenings in the appellate field, starting, as I must, with …


I was wrong

These, I have come to appreciate, are the three little words that every wife yearns to hear her husband utter. I make sure to speak them from time to time within earshot of The Boss. Today, I offer them to you. Last week, I noted the retirement of Bill Hurd, an outstanding appellate advocate and a treasured friend. That was based on information I received from someone at his firm, Troutman Pepper.

I was wrong! He’s merely shifted from one tall-building firm to another, landing at Eckert Seamans, a highly respectable firm in Richmond. I’m delighted to be mistaken and look forward to seeing him in an appellate courtroom again soon.


Inside an actual courtroom

As I noted yesterday, I appeared in the Supreme Court on Wednesday to argue an appeal. This was my first in-person oral argument since October 2019. Here are a few things that occurred to me.

There were nine seats set for the justices. No, the court hasn’t expanded while you slept; there are still seven slots and six active justices after Justice Lemons’s retirement last month. I learned that the court has set up the extra spots for when senior justices participate. In the past, they’ve performed a sort of musical-justices pas de deux whenever a senior justice will sit in on a given argument. Now, instead of swapping seats, the senior justice will just have a seat on one of the wings.

Those lawyers who argued on Wednesday got a hybrid experience: Six justices sat at the court’s long, elegant bench, and Senior Justice Koontz appeared remotely on a video screen. In the three appeals argued while I was there, including mine, he never asked a single question.

For those of you who have grown accustomed to a particular lineup at the bench, things have changed, and this week marks the first and last actual seating of the court under the new alignment. You probably know that the chief justice occupies the center chair, and the rest of the justices are arrayed around him by seniority – the second-most senior to the chief’s immediate right, the third-most senior to the chief’s left, fourth-most to the right of the second-most, and so on. The more senior a justice is, the closer he or she is to the center chair.

For the active justices, this week’s lineup, from the perspective of the advocate, was Chafin-Kelsey-Mims-Goodwyn-Powell-McCullough.

That will change the next time the court convenes, because Justice Mims, now in the #2 slot, will take senior-justice status at the end of this month. That will produce the following array, once the General Assembly fills the court with two new justices:

New justice-McCullough-Powell-Goodwyn-Kelsey-Chafin-New justice

This reflects significant turnover in the court in the past few years, when five members of the court have stepped down.

Interruptions are still down. My appellate pals and I noticed an unmistakable trend during the many months of remote oral argument: The court asked far fewer questions of advocates. I’m not sure why, and I hesitate to speculate. This week I got the sense that there were still fewer interruptions than was typical before the pandemic, though I saw more than in the days of audio-visual or telephonic argument.

Finally, it felt great to be in the courtroom again. Remote argument just isn’t the same dynamic, and I found that I enjoyed it far less. I made note of that when I closed my argument with these lines: “Thank you for hearing me today. Thank you also for reopening this courtroom; I’ve missed this.” I got a few smiles in return, telling me that the justices were glad to be back, too.


An oft-repeated question

“How are things going in the Court of Appeals now that they’re hearing everything?” I’ve fielded this question three or four times now, so I may as well post this: No significant change yet from the judges’ perspective. That’s because the new-generation appeals haven’t matured to the point where they’re ready to be argued. The CAV now has jurisdiction over all appeals where the appellant noted an appeal on or after January 1. Because of the time it takes the circuit-court clerk to assemble and transmit the record, and the ensuing 40-day deadline for the first brief, the Robes assuredly haven’t received any briefs yet under the new protocol. That’ll take perhaps another month or two.

I’ve mentioned this before, but it bears repeating: I don’t expect an avalanche of business at Eighth and Franklin. If you were to take the roughly 500 appeals in civil cases that the SCV Clerk received in pre-pandemic years, add that to the CAV’s prior docket, and divide by the new number of judges, I doubt that the caseload per judge will change significantly. The experience of this year, and especially 2023 when we get a full cycle of by-right appeals, might tell a different story. We’ll see.


Analysis of March 3, 2022 Supreme Court Opinion




(Posted March 3, 2022) I’ll confess that I was hoping that the Supreme Court wouldn’t issue any opinions this morning. That’s because I got to argue an appeal in the Supreme Court – that means inside the actual courtroom – for the first time in two years yesterday, and if there had been no opinions to analyze, I planned to post an essay about the experience. That one will have to wait; the court hands down a single opinion today in an appeal argued in January.

Yet another confession: When I learned that Stahl v. Stitt involved the midnight-deadline requirement in the banking provisions of the Uniform Commercial Code, I was excited. One of my poorly kept secrets is that in law school – a long time ago in a galaxy far, far away – I was a UCC jock. Perhaps because of my college Economics major, I took to commercial law in a manner that probably caused my pals’ eyes to roll. This morning, I looked forward to a rare discourse on this little-known provision.

Today’s opinion, penned by Justice Chafin, addresses an ancillary issue to commercial law: standing. I sense that the Supreme Court has decided a larger number of standing rulings in recent years than it handed down in years past, reflecting a greater modern emphasis on the issue if not an actual change in jurisprudence.

Here’s the setup: A lady whom we’ll call Aunt Ivory lived in Lynchburg, having moved there a few years before from her previous home in West Virginia. She held a bank account in West Virginia with about a quarter-million dollars. She also held an account here in Virginia.

In March 2016, Aunt Ivory was in rapidly failing health, so she moved in with a lady we’ll call Niece #1, who provided hospice care to her aunt. Niece #1 was the pay-on-death beneficiary of Aunt Ivory’s Virginia bank account.

Now we get to the point where individual dates matter, so I’ll lay them out here:

  • Tuesday, March 15 – Niece #1 requests an electronic transfer of the entire balance of the West Virginia bank account to the Virginia bank. Today’s opinion tells us that the niece was assisting Aunt Ivory in this task.
  • Friday, March 18 – The West Virginia bank issues a check for the full balance in the account, payable to the Virginia bank account.
  • Monday, March 21 – The Virginia bank receives the check and provisionally credits Aunt Ivory’s account with the amount of the deposit.
  • Tuesday, March 22 – The Virginia bank electronically presents the check to the West Virginia bank for payment. The West Virginia bank, having issued the check four days earlier, decides not to honor it.
  • Friday, March 25 – The West Virginia bank allegedly mails the check back to the Federal Reserve.
  • Saturday, March 26 – Aunt Ivory dies, leaving no will; the West Virginia bank freezes the account, which still shows a balance of almost a quarter-million dollars.

Uh-oh. We have a problem. At some point before Aunt Ivory’s death, Niece #2 contacted both banks and asserted that the transaction was fraudulent. After the death, Niece #2 qualified to administer her late aunt’s estate, and obtained the money in the West Virginia account.

Now we have an intra-family squabble over a sizeable amount of liquid assets. Niece #1 sued both banks and Niece #2 in Lynchburg Circuit Court. That court dismissed all of the claims except the one against the West Virginia bank, and that’s the issue that the Supreme Court decides today.

The first time I heard about a midnight deadline was in my Commercial Transactions class in law school. It sounded eerie when the professor mentioned it – after all, it has the words midnight and dead in it – but in practice it’s mundane. When a drawee bank – the one holding the funds to be transferred – receives a check, it has a deadline to act on it. It can accept it for payment, or dishonor it. The deadline for the bank to take one of those actions is midnight on the next business day after the bank receives the check. If the deadline passes without either of those actions, then under the UCC the bank “is accountable” for it; that is, the bank is on the hook for the payment.

A quick peek up at the timeline above will tell you that the West Virginia bank missed the midnight deadline. It received the check on a Tuesday and sent it back on a Friday, despite its need to act no later than 11:59 pm on Wednesday. Under essentially identical provisions of the Virginia and West Virginia Commercial Codes, that bank now has to pay it.

But that’s not how this case came out in the circuit court. There, a judge held that Niece #1 didn’t have standing to enforce the midnight-deadline requirement. How can that be, you ask? Because when the deadline expired very late on Wednesday night, March 23, Aunt Ivory was still alive. It was her bank account; not her niece’s. By law, a POD beneficiary has no legal rights to an account while the primary depositor is still alive.

The circuit court thus sustained the bank’s demurrer, holding that Niece #1 had no right to complain about the missed deadline, despite her later acquisition of the Virginia account under the POD provision. In so holding, the court adopted the reasoning of a federal decision from the Eastern District of Virginia, the only decision the court could find that interpreted standing in this context. The justices agree today and adopt this as the standing rule in Virginia.

Does this mean that no one can enforce the deadline requirement? Does the bank get off scot-free? Today’s opinion doesn’t mention this, but I suppose it would be possible for the decedent’s personal representative to sue, asserting a claim that the aunt had in life. I’m not sure how that would play out in the law, but in the world of fact, remember that Niece #2 was the personal rep, and she wasn’t likely to file such an action. After all, she now has the money.

We can’t know the equities of this situation, whether Niece #1 acted in good faith or, as Niece #2 asserted, committed fraud. If you developed a rooting interest in our exploration of this case, it had to arise from the mundane world of commercial transactions and not from family relationships.


Schapiro: Jury’s out on whether lawmakers can agree on judges

Schapiro: Jury’s out on whether lawmakers can agree on judges

By Jeff E. Schapiro, Richmond Times-Dispatch – 3/2/2022

For the past couple of weeks, about 10 legislators from both parties and both chambers have been meeting privately, taking baby steps toward closing another, albeit overlooked, divide separating House Republicans and Senate Democrats: picking judges — most significantly, two for the Virginia Supreme Court.

The Republican-dominated House of Delegates and the Democrat-controlled Virginia Senate have had their differences since the legislature convened in January. Some have been especially bitter and they are rippling through talks over how a split General Assembly, scheduled to adjourn March 12, fulfills a constitutional duty lawmakers take very personally.

“I know legislators love handing out robes,” says Steve Emmert, a Virginia Beach lawyer and authority on the appellate courts — the Virginia Court of Appeals and the Supreme Court, both of which have been the source of nasty tussles among delegates and senators for whom control of judgeships and control of political patronage are one and the same.

Indeed, when lawmakers talk about “my judges” — a term often heard in floor debates and committee hearings — they are just as often referring to the jurists they have personally selected as they are underscoring the concerns those enrobed men and women may have about the outsize impact of a wrinkle in state law.

While judgeship fights might seem routine — giving rise to Byzantine machinations, particularly in the closing hours of a General Assembly, when they often occur — the brewing brawl over vacancies on the Supreme Court is not just a partisan spat. It is one unfolding at an intriguing point for a court with a long tradition of conservative jurisprudence.

With the recent expansion of the appeals court — the legislature’s former Democratic majority added judges, many more moderate in their outlook; broadened the court’s jurisdiction to civil matters and guaranteed review of possible trial error — the Supreme Court, as the last stop for legal disputes, could be handling cases of greater consequence.

Court-watchers say that likely includes possible limits on police searches of stopped vehicles — an issue that can have a racial component because Black motorists have said they often are pulled over for reasons that have nothing to do with suspected criminal wrongdoing.

On civil issues, the seven-member court — currently, with a Black chief justice and with two women justices, one of whom is Black — may have to weigh in on the application of federal law to how a divorced couple in Virginia shares a military pension.

With the departures of former Chief Justice Don Lemons and Justice Bill Mims — it is rare the General Assembly fills two Supreme Court seats in a single session — logic would dictate each chamber gets one pick. Judicial selections are, at bottom line, the sole prerogative of the majority party. That’s 52 Republicans in the House; 21 Democrats in the Senate.

Logic, however, may have nothing to do with this exercise. That apparently is complicating discussions — within the House Republican Caucus and the Senate Democratic Caucus — and with each other, though those conversations, so far, have involved only the leadership. Talks, at this point, have been more about procedure than possible candidates.

That said, names are in circulation.

House Republicans have mentioned two appeals court judges, Randy Beales and Wesley Russell, both alums of the attorney general’s office and viewed as tough on law and order. Senate Democrats are floating the names of Stuart Raphael, an appellate judge who also worked in the AG’s office, and Fairfax circuit judges David Bernhard and Tom Mann.

The cascading effect of bumping judges from one court to another creates more opportunities to name more judges. For some legislators, that’s dessert’s dessert — too delicious to pass up.

Because at the legislature, as the old-timers say, everything is connected to everything else, it is difficult not to assess the maneuvering over judgeships without considering the backdrop.

Government is again divided and the early consequences have been somewhat poisonous. There are sharp disagreements between the House and Senate over policy — tax cuts, race teaching and voting and civil rights — as well as personnel, with appointees of Gov. Glenn Youngkin and Democratic predecessor Ralph Northam rejected in an escalating tit-for-tat.

Republicans believe they have the upper hand in the three-dimensional chess game that can be judicial appointments. Should the General Assembly fail to agree on Supreme Court picks — appellate and circuit judgeships, too — Youngkin would make interim appointments that ultimately would be subject to the legislature’s approval.

But Senate Democrats have signaled to Youngkin they’ll reject his selections if only out of revenge for what a Republican General Assembly did in 2015: It removed from the Supreme Court Jane Marum Roush, a respected Fairfax circuit judge, out of spite for the Democratic governor who appointed her, Terry McAuliffe, narrowly defeated by Youngkin in 2021.

A rerun of that episode may dampen the enthusiasm of some for a gubernatorial appointment to the high court, knowing they could be out of work in a year or less.

But there are trade-offs that could cause or clear a judicial muddle.

For example, might the House GOP restore Democrat Angela Navarro to the State Corporation Commission? In return for what?

It’s some of the stuff that judicial dreams are made of.

On Tuesday afternoon, in his office overlooking the state Capitol, House Speaker Todd Gilbert, R-Shenandoah, conferred with aides on judgeships. There had been speculation that both sides, which met for the first time about two weeks ago, would convene Tuesday evening, but the get-together was canceled because of a scheduling conflict.

“It’s a small subset of members in the majority parties trying to create some dialogue,” says Sen. Scott Surovell, D-Fairfax, a Senate negotiator. “You can’t have 52 Republicans and 21 Democrats in the same room. That would be a pretty thick soup.”

A House counterpart, Del. Rob Bell, R-Albemarle, chairman of the Courts Committee, says the talks “are not that far along.” And the House Republican majority leader, Terry Kilgore of Scott, says the inter-chamber negotiations had begun only recently because “you never do anything down here before the deadline.”

Guilty as charged.

Appellate News and Notes




(Posted February 18, 2022) Here are a few current tidbits from the appellate landscape.


Former Acting Solicitor dies

The appellate world lost a master advocate recently with the passing of Walter Dellinger of O’Melveny & Myers in Washington. Dellinger served as Acting Solicitor General beginning in 1996, and previously headed the Office of Legal Counsel, the president’s team of senior legal advisors. In case you don’t recognize them, both of these positions require outstanding legal skills, which Dellinger unquestionably possessed. He was 80.


A notable retirement

Speaking of Solicitors General, I learned only yesterday that former Virginia Solicitor General Bill Hurd retired from the practice of law at the end of last year. I’m lucky enough to call Bill my friend; he was Virginia’s first Solicitor and a truly outstanding advocate. He’s also an extraordinarily gracious person; I’ve never heard him utter an unkind word, though I’ve heard lots of kind ones. As with similar retirements, I’ll offer to him the classic Navy wish, since I live in a Navy town: Fair winds and following seas, my brother.


A subtle change

The Supreme Court of Virginia’s website contains a page that lists the active and senior justices. I noticed today for the first time that it no longer lists the name of Justice Don Lemons, who retired February 1. His name remained on the site for a couple of weeks after his retirement date, but the court’s staff has updated it now.

The important point about this is that he isn’t listed among the court’s senior justices. His retirement letter said nothing about his willingness (or not) to serve in a senior capacity. He may want to take some time away from the court before deciding on that.


More on senior justicehood

As we learned last year, Justice Bill Mims’s term will expire at the end of next month, and he’ll step down from the court then. In an earlier post on this development, I mentioned what I saw as a procedural quirk that would require him to sit idly for 2½ months before assuming the position of senior justice. By statute, senior justices must be “eligible for retirement,” and regular retirement eligibility occurs on a person’s 65th birthday. Justice Mims won’t turn 65 until mid-June.

Ah, but I missed another provision in the VRS laws: Early retirement is permissible at age 55 with at least five years of service. Given his 14 years as a legislator, four years in the Office of the Attorney General, and now 12 years on the Supreme Court, it’s safe to say that he’s eligible for that retirement. He has indicated his desire to so serve, and I believe that the court will instantly convert his status to senior justice.


In-person sessions

The courthouses are reopening! The Fourth Circuit will convene in-person oral arguments in the second week of March; the Supreme Court of Virginia will do the same the week before that; and the Court of Appeals of Virginia will leave it up to individual panels to decide. I sense that most of those panels will do what they can to accommodate in-person argument. This is a singularly welcome development. Remote oral arguments are, in my humble view, acceptable as a stopgap, but are nowhere near as effective as being there in person.


Analysis of February 17, 2022 Supreme Court Opinion




(Posted February 17, 2022) The Supreme Court of Virginia hands down a single opinion today, addressing the calculation of the state’s Medicaid lien against the proceeds of a tort settlement. The case is Farah v. Commonwealth, and arises in Fairfax County.

The tort plaintiff is a taxi driver who was struck head-on by a wrong-way driver. He suffered catastrophic injuries and sued for $3 million. The at-fault driver had only $350,000 in insurance coverage; the insurer tendered its policy limits and the driver kicked in $25,000 of his own money. The plaintiff reluctantly agreed to settle for that sum, recognizing that even a full $3 million judgment would only result in the defendant’s bankruptcy.

The Commonwealth asserted a lien of $92K for Medicaid benefits it had paid for the taxi driver’s extensive care. The parties eventually appeared before a circuit court for a hearing to apportion the lien.

The court acknowledged the taxi driver’s substantial damage claim, including future lost wages of over $800,000. A tort lawyer testified at the hearing that the value of the claim if fully insured was $4 million. The plaintiff asked the court to apply a formula to apportion the Medicaid lien: The recovery, divided by the actual case value, multiplied by the amount paid for Medicaid. As I read things, that would have resulted in a Medicaid lien of around $9,000.

The circuit court declined to use that formula. It apportioned $85K to reimburse the Commonwealth and divided the remainder between the taxi driver and his lawyer. The taxi driver got a writ to review the apportionment method and calculation.

Justice McCullough writes today’s opinion for a unanimous Supreme Court. Citing two seminal decisions from the Supreme Court of the United States, he concludes that federal law imposes no specific apportionment formula, and states are free to design their apportionment methods individually within certain constraints. Virginia has done so by statute, empowering the courts to consider the equities of the situation before making subjective judgment calls.

There are two key rulings here today. First, the court rejects the Commonwealth’s contention that courts should calculate the lien by considering the total amount of the medical expenses, not merely a reduced amount actually paid by Medicaid after discounts and write-offs. This is a victory for the plaintiffs’ bar, as the amount paid is usually far lower than the “rack rate” for medical services.

The justices next rule that the circuit court acted within its discretion here in fixing the amount of the lien at $85K. The Supreme Court defers to the circuit judge’s decision on this point, noting that he explained the factors that he considered in reaching his conclusion, even though he didn’t specify an amount of the settlement that he regarded as attributable to medical expenses. Because this is an abuse-of-discretion review, the SCV affirms the judgment, even while giving future tort plaintiffs an important procedural victory.


Analysis of February 10, 2022 Supreme Court Opinion




(Posted February 10, 2022) Many years ago, when I was a brand-new baby lawyer, I touched base with one of my law-school pals. We chatted and described our respective practices. I told him that I was in a very small firm that handled a varied civil and occasional criminal docket. He replied that he was handling rate cases before the Federal Energy Commission.

I blurted out that that sounded awfully boring. I’ve never forgotten his reply: “Steve, you wouldn’t believe how many zeroes there are in these cases.” He told me that his client was negotiating fractions of a cent per cubic foot of natural gas, but the size of the order was in trillions of cf. That adds up to billions of dollars.

I humbly agreed with him that a practice like that was plenty exciting enough.

Today the Supreme Court of Virginia issues an opinion that sort of rhymes with my pal’s long-ago caseload. In Department of Taxation v. RJ Reynolds Tobacco Co., the court takes up a challenge to a corporate income tax assessment against aging tobacco leaves – lots of them.

RJR owns a warehouse in Danville where it stores tobacco leaves for 13-23 months before shipping them to North Carolina for processing into cigarettes. The Department included the value of the leaves in its calculation of the company’s income, according to a formula that considers where a multistate company earns its income.

The company challenged the assessment and sought a correction that eventually encompassed five years’ worth of taxes, running to $11 million. In circuit court, the issue was whether the company “used” the tobacco in its business while it lay peacefully in the warehouse. The company adduced evidence that it didn’t do anything at all to the tobacco during the aging process; Mother Nature did all the work, and the company just kept the product safe and relatively dry.

The court decided that RJR was right and directed a refund of the challenged taxes. On appeal, the Supreme Court unanimously agrees. In an opinion by the chief justice, the SCV holds that the statute unambiguously requires that inventory be used here in Virginia to trigger taxes, and merely allowing it to lie tranquilly in the shade doesn’t rise to that level.

The unambiguously part matters in one important respect: The Department had argued that one of its regulations compelled the opposite conclusion. But the justices today reaffirm that regulations are subordinate to statutes, and you can’t resort to the regs where – as both sides here agreed – the statute is clear.


SCV Rules on Mask Mandates




(Posted February 7, 2022) The Supreme Court of Virginia has issued a short, unsigned order that refuses a petition seeking prohibition or mandamus relief against the Governor’s Executive Order 2, which barred mask mandates in local schools. The order comes roughly three weeks after the petitioners filed this original-jurisdiction proceeding.

Parents of several students in the City of Chesapeake filed the petition last month, acting on the first business day after the Governor signed the order. The Attorney General filed a motion to dismiss, and today the court grants that motion. Here are the key rulings:

Prohibition isn’t available here because that lies from a higher tribunal (court) to a lower tribunal, directing the lower court to stop exceeding its jurisdiction. For an easy example, if a juvenile court were to start issuing divorce decrees, a higher court could order it to stop, because circuit courts alone have that power. The Governor isn’t a tribunal, as the justices ruled most recently 5½ years ago in Howell v. McAuliffe, so prohibition is the wrong remedy.

Mandamus is available to compel a state actor to perform a ministerial duty. The parents had asserted that a statute passed last year requires school boards to adhere, “to the maximum extent practicable,” currently applicable CD guidelines. Beyond question, the Governor’s order doesn’t do that; CD guidelines nowadays still call for masking in schools.

But the phrase maximum extent practicable indicates that local school boards will necessarily exercise some discretion in deciding what, precisely, is practicable in their jurisdictions. The need for that discretion is fatal to mandamus, which addresses only ministerial, mandatory actions.

The court goes out of its way not to sanction the executive order. In a closing footnote, it expressly declines to rule on the order’s legality. Elsewhere, it notes that mandamus isn’t available to compel discretionary acts even if they’re unlawful.

So if there’s no mandamus and no prohibition, how can parents like this protect their interest in their children’s health? The opinion offers a broad hint of that, contrasting mandamus with an injunction, which can “restrain motion and enforce inaction.”

That brings us to a separate proceeding up in Northern Virginia, where a judge last week issued a temporary injunction against the executive order. The court ruled that the Governor can’t remove the local discretion that last year’s statute grants to school boards.

What does today’s ruling portend for that injunction? Well, the Code permits the Governor to file a snap appeal – a petition for review that will now go first to the Court of Appeals. I expect the Governor to cite today’s order liberally in such a petition, but the issues are different. The justices specifically rule today that the Chesapeake petitioners’ chosen remedies of mandamus and prohibition didn’t fit this situation. The court expressly didn’t rule on the propriety of injunctive relief.

Reading between the lines, I sense that the Supreme Court may recognize a court’s right to impose an injunction to correct what it sees as unlawful act. Indeed, today’s SCV order uses the word unlawful twice. I tend to doubt that the justices will rule that an unlawful governmental act is wholly beyond the reach of the law.

Today’s order notes that “All the Justices” participated. I don’t know whether that includes Justice Lemons, whose retirement took effect between the petition’s filing date and today. And because it’s unpublished, we don’t know who wrote it. For now at least, the order doesn’t appear on the court’s website; if you’re interested and want a copy, let me know and I’ll forward it.

I offer my gratitude to Ned Oliver of Virginia Mercury, who let me know about an hour ago about this order. Ned’s story on the decision is here.


Supreme Court of Virginia punts on first school mask lawsuit

Supreme Court of Virginia punts on first school mask lawsuit

By Ned Oliver, Virginia Mercury – 2/7/2022

The Supreme Court of Virginia denied a petition Monday filed by parents in Chesapeake seeking to overturn Gov. Glenn Youngkin’s executive order ending mask mandates in public schools.

The ruling fell on procedural grounds, with the justices writing in a footnote that, “by this dismissal, we offer no opinion on the legality of EO 2 or any other issue pertaining to petitioners’ claims.”

Likewise, legal experts said the decision offered no obvious clues as to how the court might rule should one of several other pending lawsuits addressing Youngkin’s executive order make its way to the court.

“This is an extremely technical ruling,” said Carl Tobias, a professor at University of Richmond School of Law. “This is not a merits ruling.”

Instead, the justices wrote that their decision came down to the legal relief the group of parents sought, which is called a writ of mandamus — a mechanism in which a court directs a lower court or public official to perform a statutory duty.

The justices wrote that they could only issue such a writ in situations where a public official’s role is purely ministerial. And in the case of mask mandates in school, they wrote that a state law passed last year requiring school districts to adhere to CDC guidelines “to the maximum extent practicable” leaves school leaders with at least some discretion regarding how to act.

The line of reasoning would seem to poke holes in former Gov. Ralph Northam’s assertion that the law required mask mandates stay in place as long as they are recommended by the Centers for Disease Control and Prevention. It also appears to cut against Youngkin’s assertion that he has the authority to overrule local mandates via executive order.

Steve Emmert, an appellate lawyer in Virginia who writes about legal issues in the state, said it would be unwise to read too much into either line of reasoning given the broader context of the order.

The only hint he said he reads in the order about the court’s thinking on the issue has to do with process: that the court would be more likely to issue a ruling on the merits of the case in a lawsuit seeking injunctive relief, such as the lawsuit filed by seven school districts that have chosen to keep their mask mandates in place.

A lower court judge in Arlington ruled Friday that the districts may keep their mask mandates in place while the case advances. Attorney General Jason Miyares said he will appeal the ruling.

Emmert said that under judicial reforms passed last year, it would next go to the Virginia Court of Appeals. He said it could be as long as a month and a half until the appeal is heard.

Analysis of February 3, 2022 Supreme Court Opinions




(Posted February 3, 2022) Brevity, the Bard assures us, is the soul of wit; Dorothy Parker adds that it’s also the soul of lingerie. Today that justices take that advice – well, Shakespeare’s, anyway – by issuing two of the shortest published opinions you’ll ever see.


Criminal law

The Constitution requires that a criminal defendant “be confronted with” the witnesses against him. In Cortez-Rivas v. Commonwealth, the court “confronts” a contention that the language translator in a police interrogation must be called as a witness at trial. A detective questioned Cortez-Rivas in connection with a sexual-abuse investigation. Because the suspect was a native Spanish-speaker, a police officer who spoke that language attended and translated the questions to the suspect and the answers to the detective. A police body camera recorded the entire interview.

At a subsequent trial, a different translator, fluent in Spanish, testified. She had viewed the video and had produced a transcript, without any input from the original translator. Cortez-Rivas objected that the prosecution hadn’t confronted him with the original translator. The trial court shrugged off that objection and a jury convicted the defendant; the Court of Appeals refused a petition for appeal.

Today, the Supreme Court affirms. The original translator wasn’t a witness against the defendant. His absence was thus immaterial to the case. The jury only heard from one translator, and she testified and was subject to cross-examination at trial.

In a footnote, Justice McCullough, who authors this three-page opinion for a unanimous court, observes that there’s a split of authority over whether a translator must testify to satisfy the constitutional requirements of the Sixth Amendment. But because of the posture of this case, the court need not confr-

Oh, I can’t say it again. The court reserves this question for another day.



A rare procedural development is at the heart of Godlove v. Rothstein, from Shenandoah County. This was a suit to establish an easement, and specifically the right of the dominant-estate owner to build a driveway across the servient tract. The circuit court ruled that Rothstein, who owned the dominant tract, did have such a right. The servient owners got a writ.

While the case was on appeal, Rothstein sold his property. He then did what I consider an admirable thing: He moved the Supreme Court to dismiss the appeal and vacate his victory below.

The court is happy to oblige him; it agrees that the case is now moot. This decision reflects the importance of the appellate process: Until and unless the appellate court issues a final judgment, the case isn’t over yet, because appellants have a right to have their challenges heard. Otherwise, the appellee could win below and then prevent any effective review of a judgment that the losing litigants might not want to be saddled with.

But there’s more. The appellants asked the Supreme Court to tax almost $3,000 in costs against Rothstein, claiming that they had prevailed in the case. Oh, no, you didn’t, the court explains today. When an appellate court dismisses an appeal as moot, the court regards neither party as substantially prevailing. No reversal, no costs. Each side must bear its own litigation expenses here.

Justice Kelsey pens this short decision, also just three pages long. For curiosity’s sake, I counted the number of words in each opinion to see which one was more concise. (Actually, I cut and pasted them, and Microsoft Word did the counting for me.) Justice McCullough wins the brevity sweepstakes with an opinion that comes in at a bit over 800 words; Justice Kelsey manages to squeeze in over 950 in his three pages. (In fairness to him, he had to resolve two legal issues, not just one as in Cortez-Rivas.) Speaking as a consumer of the court’s opinions, I can say that this is my kind of opinion day.


Seven school boards sue to stop Gov. Youngkin’s mask-optional order on the day it takes effect

Seven school boards sue to stop Gov. Youngkin’s mask-optional order on the day it takes effect

By Hannah Natanson and Nicole Asbury, The Washington Post – 1/25/2022

Monday was a day of discord for Virginia schools as seven school boards sued to stop the mask-optional order by Gov. Glenn Youngkin (R) on the day it took effect. At the same time, some parents brought maskless children to school and picketed outside when administrators isolated unmasked students from their peers.

The school boards — led by the board for Fairfax County Public Schools, the largest, most prominent district in the state — argue that Youngkin’s order violates the Virginia Constitution. Their lawsuit, filed Monday morning in Arlington Circuit Court, asks for an immediate injunction barring enforcement of the order, which seeks to leave masking decisions to parents, contravening federal health guidance and the masking mandates that most Virginia school districts have maintained throughout the coronavirus pandemic.

It is the second lawsuit the governor has faced over his mask-optional order since he announced it in mid-January on his first day in office. In its brief existence, according to a Washington Post tally, the order has also drawn promises of defiance from more than 50 of Virginia’s roughly 130 school districts, whose boards voted at meetings — or whose superintendents announced in statements — that they intended to keep requiring face coverings for students. By contrast, boards in more rural and conservative areas swiftly adopted mask-optional policies in obedience to Youngkin’s order.

The battle puts Virginia at the center of a turbulent national debate over masking in schools that has pitted Republican governors against school systems, and the White House against Republican governors, in states including Iowa, Oklahoma and Tennessee. Last week, Arizona Gov. Doug Ducey (R) sued the Biden administration over its demand that the state stop sending coronavirus relief money to school districts that lack mask mandates — and President Biden’s Education Department is pursuing civil rights investigations into five states for banning mask requirements in schools.

But the turmoil in Virginia is commanding special attention, coming as it does after Youngkin gained office in a tight, two-point victory that experts say hinged on his ability to mine a national vein of parent grievance over pandemic-era schooling and curricular issues. How Youngkin — a former business executive who began his term with a flurry of executive orders focused on education — performs in office is seen as a key test of whether Republicans can continue leaning in to educational issues to mobilize and satisfy their base.

In the school boards’ lawsuit, their lawyers write that Youngkin’s executive order goes against Article 8, Section 7 of Virginia’s Constitution, which asserts that “the supervision of schools in each school division shall be vested in a school board.” The lawyers also say the order contradicts a state law passed last year that requires Virginia school districts to follow federal health guidelines to the “maximum extent practicable.” The Centers for Disease Control and Prevention recommends masking inside K-12 schools for everyone over age 2, regardless of vaccination status.

The school boards joining Fairfax’s suit include those for Alexandria City Public Schools, Arlington Public Schools, Falls Church City Public Schools, Hampton City Schools, Prince William County Public Schools and Richmond Public Schools, all of which currently require masks. The seven boards said in a statement Monday that “school divisions need to continue to preserve their authority to protect and serve all students, including our most vulnerable,” so they can keep attending school in person.

“Without today’s action, school boards are placed in a legally untenable position,” the school boards said in the statement. “Today’s action is not politically motivated … the lawsuit is not brought out of choice but out of necessity.”

Youngkin spokeswoman Macaulay Porter said in a statement Monday morning that “the governor and attorney general are in coordination and are committed to aggressively defending parents’ fundamental right to make decisions with regard to their child’s upbringing, education and care, as the legal process plays out.”

Porter added, “We are disappointed that these school boards are ignoring parent’s rights.”

 ‘Donuts for the Defiant’

In many Virginia classrooms Monday, things played out calmly, with students sitting down for their lessons either masked or mask-free depending on which policy their school district had adopted and how their parents felt about the matter. Spokespeople for the school systems in Richmond and Arlington, for example, said they saw no parent demonstrations and no teachers walking out of school to protest masking requirements, as social media rumors had suggested would happen.

Arlington spokesman Frank Bellavia said he received a handful of anecdotal reports of students refusing to mask at school, causing officials to send home “a very small number” of children with take-home assignments. Alesandra Bakaj, a high school teacher in the district of 23,000, said her day was exceedingly normal.

“The same kids had their noses out [of masks] and were pushing the envelope, but nobody was taking some sort of major stand,” she said. “My students were respectful, they were great, I have no complaints.”

But in some places, messier scenes developed, with parents showing up to school maskless and determined to send their children into class without masks, too. In response, administrators sent children into confined rooms or asked that parents come pick them up.

A particular hot spot was Loudoun County, a wealthy and politically divided district that has been in the national spotlight for more than a year because of its persistent educational culture wars. The battles have spanned issues including critical race theory, sexually explicit texts and the rights of transgender students, and on Monday settled firmly around the mask debate.

Youngkin frequently referenced Loudoun County on the campaign trail, and he announced an investigation of the school district’s bungled handling of two sexual assault cases on the same day he debuted his mask-optional order. Early Monday morning, in an interview with conservative radio host Hugh Hewitt, Youngkin took the opportunity to criticize Loudoun yet again.

“They do not respect parents,” he said of the school district of 81,000 students, invoking a crusade for parents’ rights in education that was key to his election and has become a conservative rallying cry nationwide.

Elicia Brand, a Loudoun County parent and co-founder of the advocacy group Army of Parents, said Monday that anti-mask parent activity was planned for 31 campuses in her school district. Loudoun schools spokesman Wayde Byard said the district saw parent demonstrations outside at least one high school and a middle school in Purcellville, where parents handed out doughnuts to students walking to school if the students promised not to wear masks. Parent Heather West, who participated, said this event was called “Donuts for the Defiant.”

Close to 9:30 a.m. outside Loudoun’s Woodgrove High School, a group of parents circled about 20 students who were preparing to walk into the building without masks. As the students went through the front door just in time for the first bell, the parents began yelling, “Free your faces!”

Once inside, some students informed their parents via phone that they were being placed in an auditorium, away from other students. Clint Thomas, one of the parents, pressed the intercom button at the school’s front doors repeatedly to demand a meeting with the principal, William Shipp. About 15 minutes later, Shipp walked outside, removing his mask as he did so.

He told the group that an assistant principal was watching over maskless students in the auditorium, where they would remain all day or until they put masks back on. He said that the students had access to a restroom and that they would eat lunch by themselves, earlier than the rest of the masked student body.

Byard, the system spokesman, said Loudoun officials sent 30 maskless children into isolation in the auditorium at Woodgrove, in addition to isolating about 30 students across at least three other campuses throughout the county. He said officials offered these students instruction through the online platform Schoology, with teachers visiting them to offer help as needed. He said any students who opted to go home were allowed to do so.

‘We’re not going to have masks forever’

In their suit, the school boards assert that Youngkin’s mask-optional order threatens to destroy a so-far successful year of in-person learning by creating a high risk of outbreaks.

They are asking the court to declare Youngkin’s mask-optional order “invalid” and “void” according to state law. They are further requesting that the court enjoin the governor from taking any actions to enforce his order, including “withholding any funding, service, or other resource from any or all of the School Boards.”

Youngkin has said he will use every resource at his disposal to enforce his order, and his spokeswoman did not rule out yanking funding from disobedient districts. The governor tweeted over the weekend that parents should listen to their school principals while his order faces challenges in court.

The seven school boards are also requesting that the court award them “costs and fees expended in connection with this action” as well as any extra relief deemed appropriate.

Fairfax School Board Chair Stella Pekarsky said in an interview Sunday that the lawsuit boils down to an issue of local control: “Can we make policies for our school system, or does the governor get to come and do that for us?”

Youngkin, Pekarsky added, “does not tell us what to do.”

Stephen Farnsworth, a political science professor at the University of Mary Washington, said the twin lawsuits place significant pressure on Virginia’s court system to step in quickly to resolve the debate.

“In situations like this, where there is no middle ground and where neither side has any interest in backing down, only judges can be the necessary umpires,” Farnsworth said. “The sooner they do so, the better for all concerned.”

But nobody knows when that will happen.

Youngkin told radio host Hewitt on Monday that “the legal process is going to take a little bit of time,” although he has asked to speed things up. The parent lawsuit, filed in Chesapeake before the Virginia Supreme Court last week, alleges that the governor’s executive order violates state law and the constitution, for the same reasons the school boards’ suit lists.

Christine Thompson, one of the Chesapeake plaintiffs, said she and like-minded parents originally planned to sue only their school board — which was leaning toward making masks optional even before Youngkin’s executive order, she said. But when Youngkin signed his mask-optional order on Jan. 15, they decided to target the governor himself in the state Supreme Court, hoping for a quick resolution.

“This was not political,” Thompson said. “This is all about keeping our families safe.”

Steven Emmert, a partner at Sykes, Bourdon, Ahern & Levy who analyzes appellate decisions in Virginia, said the Chesapeake plaintiffs “have a very plausible claim” that Youngkin’s order violates the state law requiring compliance with federal guidelines. But he said there is a strong possibility the court decides that suit without addressing issues of constitutionality, as is its typical preference.

That would allow the school boards’ suit to proceed in Arlington court, although Emmert said he is unsure whether a county circuit court could issue a statewide injunction.

Pekarsky of the Fairfax board said that masking, combined with other precautions, has kept students learning safely in person throughout this academic year. She said the district has not once been forced to shut down a school because of high transmission of coronavirus cases.

Youngkin’s predecessor, Ralph Northam (D), issued a public health order last summer requiring masking inside schools — which bears superficial similarity, Pekarsky acknowledged, to Youngkin’s attempt to tell school districts what to do about masking.

But Pekarsky said Northam’s order was acceptable because it did not go against what Fairfax had already decided to do — require masks — or against federal health guidance or Virginia state law.

Northam’s mask mandate “was in accordance with what we needed to do to keep our students safe,” she said.

Pekarsky said her message to parents who do not want to mask their children at school is to have patience. She said that Fairfax wants to find an “off-ramp for masks” but that the board is unwilling to jeopardize student and staff safety.

State Sen. Chap Petersen (D-Fairfax City) also called for a mask “off ramp” in a message to constituents Monday, although he said he views Youngkin’s order as unconstitutional and does not support it.

“All I’m saying is — and I don’t see how anyone can disagree with this — we’re not going to have masks forever,” Petersen said in an interview.

 ‘A political divide’

Drastically different emotions and experiences unspooled in Loudoun over the course of the day Monday, reflecting deep divisions both in pandemic-era Virginia and in the nation.

In one part of the county, 10-year-old Noah Rafalski began the day by asking a friend to walk into Banneker Elementary beside him. Both were maskless and thought walking together would boost their courage.

Once inside, Rafalski, a fifth-grader, was pulled aside by the principal and left mostly alone in a room for about an hour, he said. Adults told him he could go to class if he put on a mask, but he decided to stay put.

“I was trying to hope,” Noah said. “But I just got fed up.”

Eventually his mom, Megan Rafalski, came to pick him up early.

Elsewhere in Loudoun, parent Jeanne Meyer began the day by sending a warning message to her daughter’s school administrators: “My child is authorized for early dismissal … today if she feels there is too large a population of maskless fellow students.”

But as the day stretched on, the 17-year-old never called to request a pickup. And after arriving home, the teen said all the other students stayed masked. Meyer was thrilled.

“I do understand other parts of the county might have had different experiences,” she said. “There is a little bit of a political divide.”

Rachel Weiner and Laura Vozzella contributed to this report.

Analysis of January 13, 2022 Supreme Court Opinion




(Posted January 13, 2022) The Supreme Court of Virginia today steps into a controversial fray with a dispassionate analysis of statutory and contract principles. The case is Smallwood v. Commonwealth, and involves the question whether a criminal defendant can be convicted of an underlying crime for failure to pay court costs.

The underlying crime here is heroin possession. Smallwood obtained court-appointed counsel due to his indigency, and from the looks of it, that lawyer did a good job. The circuit court approved a plea agreement that called for Smallwood to meet several conditions, and if he complied, the court would dismiss the charges under the first-offender statute at the end of a year. One of the conditions was the payment of court costs.

Smallwood obtained a one-year extension of the deadline, but when he appeared in court on the new date, he still hadn’t paid the costs, which topped $1,300. That, you will appreciate, is a lot of money for someone who’s indigent. He told the court, “I just haven’t had any money yet.” The judge knew about Smallwood’s limited income and his monthly expenses, but found that he hadn’t complied with the agreed terms. The court accordingly convicted him and imposed a suspended two-year prison term.

On appeal, Smallwood was unable to convince the Court of Appeals to intervene. The justices granted a writ, but today they, too, find nothing wrong with the conviction. Citing a 1983 SCOTUS ruling, the SCV today observes that in revocation proceedings, courts must “inquire into the reasons for the failure to pay.” If the defendant is doing everything that he can – in the words of the opinion, making “sufficient bona fide efforts to acquire the resources” to pay the costs – then the court has to look into alternatives to incarceration.

The reason for this is that we don’t want to incarcerate people for debt. The legislature has wrestled recently with a parallel problem, the suspension of drivers’ licenses for failure to pay fines. A system that allows the state to impose some type of adverse consequence upon someone who can’t pay, is punishing poverty, threatening to create a bifurcated system of justice, divided between rich and poor.

In a unanimous opinion written by Justice Powell, the Supreme Court rules today that the circuit court did inquire into the reasons for Smallwood’s failure to pay. It holds that in an inquiry like this, the defendant bears the burden to establish those bona fide efforts. Finding that Smallwood “did not present any evidence in support of his claims” of continuing indigency, the Supreme Court affirms the conviction. This, the court writes, “supports a finding that he willfully refused or failed to make sufficient bona fide efforts to pay his court costs.”

If that seems harsh, I invite you to consider the context. Today’s ruling may not reflect what the justices would do if they were drafting the Code. They may, individually and collectively, feel that this setup comes too close to debtor’s prison for their taste. But remember, they aren’t writing the statutes; they’re interpreting the Code (and, to be fair, applying that SCOTUS precedent).

I don’t practice in the criminal-law field, so others may have a more informed view on this. I plan to ask my appellate pal John Koehler for his thoughts on it, and I hope he’ll post those so you can read them, too. But I’m aware that there is at present a move away from adverse legal consequences for failure to pay fines and costs. This ruling might add fuel to that fire. Update January 17: John has now posted some insightful commentary on the case; you can read his analysis here.


Analysis of January 6, 2022 Supreme Court Opinions




(Posted January 6, 2022) On a day when most of America focuses on last year’s assault on our constitutional democratic republic, the Supreme Court of Virginia gives courtwatchers like us a welcome distraction in the form of two published opinions.



I encountered an old friend in Emmanuel Worship Center v. Petersburg. The dispute here is local taxation of church property, and the old friend is Code §58.1-3984. This is the statute that allows a taxpayer to challenge a real-estate tax assessment.

The city sued the church in 2018 to collect unpaid real-estate taxes. The suit sought a decree to sell the property to pay off the taxes. At a trial the next year, the church challenged the assessment, even though it was more than three years old (the maximum extent of relief under the statute).

The circuit court rejected this defense as untimely and found the church liable for about $30,000 in back taxes plus a host of penalties and interest. The court decreed the sale of the property. To avoid that sale, the church paid the amount due – now well into six figures – under protest and filed a bill of review.

A bill of review, you ask? Why not an ordinary appeal? Because the church missed the deadline to note and perfect an ordinary appeal. For generations, the bill-of-review process has afforded certain litigants this safety valve for missed appellate deadlines. Such persons may file the bill within six months of the previous judgment.

The city replied to the bill by moving to dismiss it, contending that such bills relate only to equitable proceedings, and by the terms of my old statute pal, “all proceedings pursuant to this section shall be conducted as an action at law.” The circuit court found this persuasive and refused the bill. The church got a writ to review that decision, which brings us to today’s opinion.

The justices resolve two issues today. First, they hold that the original suit filed by the City was in equity. Code §58.1-3965 authorizes tax sales, and those are definitely equitable proceedings. That means that the bill of review is available to challenge the underlying judgment.

The Supreme Court next goes on to evaluate the circuit court’s supplemental finding that the prior judgment was legally correct. The lower court had held that the three-year limitation barred the church’s defense. Today, the SCV unanimously holds that the church’s defense – the constitutional exemption from taxation on church property – is self-executing, and the church wasn’t obligated to file suit within three years. The court remands the case to the circuit court for an initial determination of whether the subject property is “used for religious worship.” If it is, then it’s exempt.


Attorney discipline

As you can probably tell, I usually enjoy posting these analyses. There are exceptions – particularly savage crimes or cases involving cruelty to children or animals – but for the most part, I like the challenge of digesting each new decision when it comes in.

Attorney-discipline cases are one of the exceptions. These cases impugn the standing of the bar as a whole; attorney misconduct impairs our profession’s image in the eyes of the public. Today’s decision in Robol v. Virginia State Bar is such a case.

The factual backdrop is complex; the facts occupy about 60% of today’s opinion, which comes in at just over 20 pages. The short-form version of the facts is that the lawyer made a number of statements in an Ohio federal court that the Ohio Bar found to violate that state’s Rules of Professional Conduct. Specifically, he was found to have made false statements to the federal court and to have actively concealed evidence in pending litigation. The lawyer was allowed under Ohio law to retire or resign from the Ohio Bar with disciplinary charges pending.

While this was happening, the lawyer – who was originally licensed here in Virginia – had converted his VSB status to associate. That means that you can’t practice law here; you pay reduced Bar dues; and you can reinstate your active membership fairly easily.

The Virginia State Bar got wind of the Ohio action and initiated disciplinary proceedings here against the lawyer’s Virginia license. The lawyer responded that the Bar couldn’t discipline him because, as an associate member, he wasn’t subject to VSB regulation. The justices swat this argument aside, noting that by rule, “every person licensed by the Virginia Board of Bar Examiners or admitted by the Supreme Court of Virginia is a member of the Virginia State Bar.” This lawyer undeniably met this definition, so he’s subject to Bar discipline here.

The court also notes today that if the lawyer were correct, then any lawyer could convert to associate status, engage in any sort of unethical conduct elsewhere, and then reinstate his active membership, free of any Virginia consequences for his actions. The court calls that an absurdity.

The court next addresses the sufficiency of the evidence. As noted above, the facts are complex, so I won’t review them here to illustrate the court’s conclusion; a review of them will convince you that they warrant disciplinary action.

The lawyer has one final argument: He contended that the VSB couldn’t impose a sanction beyond what the Ohio Bar had found appropriate. The conduct was, after all, in Ohio. The VSB Disciplinary Board had imposed a four-year license suspension; the lawyer contended that he should have been allowed to resign or retire, just as in Ohio.

The justices find this argument to be procedurally defaulted. In arguing to the board, the lawyer had urged a suspension of no more than six months, but never urged the same-as-Ohio argument. Because Rule 5:25, the contemporaneous-objection rule, applies in attorney-discipline proceedings, too, the court refuses to consider this one.

Justice Mims writes both of today’s opinions. In the VSB appeal, he notes that the Ohio court turned aside the lawyer’s assertion that in making the false statements, he was relying in good faith on representations from his client. In doing so, that court had cited Lewis Carroll’s Through the Looking Glass, and What Alice Found There: “not even believing in ‘six impossible things before breakfast’” could the lawyer have reasonably believed what he was saying.

This passage illustrates that a lawyer can’t turn a blind eye to his client’s lies, and expect to retain a clean Bar record. This is one of the reasons why the New York Appellate Division suspended the license of former presidential legal adviser Rudy Giuliani last year, with a broad hint that the suspension would soon evolve into a permanent revocation. Today is an appropriate anniversary to reflect on the danger of following a road that’s paved with lies.


Report on Appellate Developments




(Posted January 4, 2022) You may be just returning to speed after the holidays, but things are already moving apace in the appellate world. Here are a few noteworthy items.


Your rulebook is (somewhat) obsolete

With the dawn of the new year, the new appellate rulebook sprang to life. Most of the changes accommodated the new setup whereby every appellant gets an appeal of right in the Court of Appeals, a phenomenon that I’ve reported eagerly ever since SB 1261 emerged from the legislature and the Governor signed it.

Here’s a link to the online rules from the courts’ website. Until you receive a new rulebook in the mail – assuming that, like me, you continue to consult printed books – you need to check this site for the most current version of the rules.


No in-person oral arguments after all

It wasn’t that long ago that the Fourth Circuit and the Supreme Court of Virginia released the wonderful news that the courthouse doors would be thrown open to welcome advocates (but no one else) for oral arguments in January 2022. Alas, these announcements have fallen to the scythe that is the omicron variant of the novel coronavirus. Yesterday the SCV issued a notice that the January session will be argued remotely next week; the Fourth followed suit today for its January sitting. As has been the case for almost two years now, you can follow the arguments in real time, but not in-person.

The SCV’s notice mentions that the court will be in session next Tuesday through Thursday, January 11-13. Surprisingly, the court’s website doesn’t yet list next week’s docket or argument schedule. That’s usually posted a couple of weeks before the argument dates. But appellate clerks had holidays, too, and that’s assuredly why there’s been a short delay. I’m looking forward to seeing how many appeals are on the docket.

One last point: The SCV’s January session always coincides with the opening of the General Assembly, and every fourth year it coincides with the inauguration of a new Governor. In the past, this has allowed some or all of the justices to attend the State of the Commonwealth address. In this pandemic environment, I’m not sure what festivities will occur, or who will attend.


A historic first

The SCV’s announcement about the January session is printed on the court’s stationery, with the names of the justices listed in the upper left as always. This is the first released letterhead document of which I’m aware in which Chief Justice Bernard Goodwyn’s name appears first. He thus becomes the fifth person to occupy the center chair in this century.

The real historical oddity, in my opinion, is the listing of Justice Lemons among the other six justices. His name is first on that list, of course, because he arrived at Ninth and Franklin earlier than any of his colleagues. But he’s done something here that no Virginian has ever done before him: He’s stepped away from the chief justice’s center chair to become an active justice. That will last a good, solid four more weeks before his retirement takes effect and he presumably joins Senior Justices Russell, Koontz, and Millette in that role.

How has this never happened before? Until 2003, the chief justice was the member of the court with the most seniority. It was an automatic process requiring no special arrangements. When Chief Justice Harry Carrico became a senior justice in 2003, the court modified its protocol so that it would select a chief from among its own number by majority vote.

The next chief, Leroy Hassell, was set to move one seat to his right at the end of his two four-year terms as chief. (The two-term limit is a court norm; not imposed by statue or rule of court.) But he died in office in February 2011, just before his term as chief ended. Justice Cynthia Kinser became the next chief, but she retired fully from the court while still in office; no senior status for her. Justice Lemons took over from her, and is retiring a year before the Code’s mandatory retirement provision would have required it.


A very temporary issue

I’ve received a question recently about notices of appeal that merits at least a mention here. The Court of Appeals’ new plenary authority over appeals began on January 1. Where a circuit court entered an appealable order in December 2021, which appellate court does the appellant steer toward?

The answer is that any notice of appeal that an appellant files in 2022 and beyond goes straight to the CAV. The decisive event is the filing of the notice of appeal; not the date of the final order.

This issue is “very temporary” because in a year or so – really, just a month or so – this changeover will be far back in the rear-view mirror.


Weather Shutters Appellate Courthouses




(Posted January 3, 2022) On this first business day of the year and the first day of a wholly revamped appellate system in Virginia, Boreas has intervened. Heavy, wet snowfall in central Virginia has forced the state and federal appellate courts in Richmond to close for the day. This means that any appellate deadlines that would have expired today are automatically extended unto tomorrow.

As always, this comes with a major note of caution: The extension comes only for documents that you file in the appellate court’s clerk’s office. Some documents go to the trial court clerk’s office. The most significant of these are the notice of appeal, an appeal bond, and any required transcripts. If today is your deadline to file these, you must check with your local clerk’s office to find out if they’re open. Here by the beautiful banks of Thalia Creek in Virginia Beach, for example, Boreas and Poseidon are combining for a wet, blustery day; it’s 45° outside my office, with no snow anywhere.

Here’s a link to the Virginia courts’ web page, listing individual closings. The US District Courthouses in Alexandria, Richmond, and Harrisonburg are closed; those elsewhere in the Western District will open late. The Norfolk and Newport News Divisions are operating normally, as far as I can tell. I still urge that you call to confirm before you rely on this one day’s deadline succor.


A Quick Year-End Stats Report




(Posted December 30, 2021) With the Virginia appellate courts closed today, it’s safe to report on some preliminary numbers. I’ll have a fuller stats essay when I get the courts’ caseload reports in two or three months.


Supreme Court of Virginia

In an update that I posted back on January 7, I noted that the Supreme Court had opened just 1,571 new files. That was a decline of about 10% from 2019, when the total was 1,760. I predicted then that 2021 would be an even leaner year.

I got this one right (relax; I’ll tell you about my less-than-accurate prediction in a moment). From what I can discern from the court’s case-information web page, the Clerk opened just 1,233 records this year. That’s a drop of 21.5% from last year’s depressed total, and of 30% over the past two years.

I expect next year’s total to decline, too, but for a different reason. Starting with next week’s notice-of-appeal filings, civil appeals go to the Court of Appeals of Virginia first. Only after the CAV acts on those cases will we likely see some of these appeals in the Supreme Court. That means that we’ll probably experience a one-time delay of eight or nine months with effectively no civil petitions coming into SCV Clerk Muriel Pitney’s office. My best estimate is that the 2022 total, for all case types, will be somewhere around 1,000, after which it will start to rebound in 2023.

In the humility column, I incorrectly forecast that the justices would issue noticeably fewer merits decisions in 2021. They handed down 84, comprising 46 published opinions, 9 published orders, and 29 unpubs. That’s essentially unchanged from 2020, when the total was 83. And the court received oral argument in 89 merits appeals this year, up seven from the previous year.

Given this year’s significant decline in new filings, the only way the court can keep hearing 80-90 merits appeals per year is to grant a higher percentage of writs in deciding petitions for appeal. I know better than to start dishing out predictions on that one.


Court of Appeals of Virginia

The CAV’s published-opinion count dropped again this year, falling to 61 from 2020’s total of 71. The 2019 spike to 86 continues to look like an anomaly.

This, too, will change. With the Commonwealth’s overhaul of the appellate system, I expect a sharp increase in the number of published opinions, starting somewhere in the middle of 2022 and carrying into the following years. For courtwatchers, 2022 will be a year unlike any we’ve seen since 1985, when the Court of Appeals was born.

I’ll wait for the Spring stats report before checking to see if the court modifies its tiny reversal rate in criminal cases. Given the way the stats report reads, I may not be able to discern that reversal rate easily starting in 2023.


David-Goliath Index

The Supreme Court decided nine appeals that meet the criteria for a David v. Goliath appeal in the final quarter of 2021. Actually, it was ten, but one of them, Stoots v. Marion Life Saving Crew, ended as a mixed result, with a partial victory for each side. I elected to disregard that one instead of awarding each side half a victory.

That means that 4Q 2021 was a clean sweep for Goliath: Nine victories (five opinions; four unpubs) and no losses. That brings our year-end total to 15 wins for our Davids and 38 for the Goliaths, for a final D-GI of 28/72. That’s almost identical to the 2020 index of 30/70.

Many years ago, the index usually came out within a very few points of 50/50. Those days are gone. It’s possible that the looming retirements of the chief justice and Justice Mims, and the elections of their successors, might bring back some semblance of balance starting next year; but I tend to doubt it.


Analysis of December 29, 2021 Supreme Court Opinion




(Posted December 30, 2021) My travel schedule kept me away from the keyboard for yesterday’s announcement of the final published opinion of the year from the Supreme Court of Virginia. In Commonwealth v. Richard, the justices take up a criminal-law principle known as Wharton’s Rule.

This is a prosecution for conspiracy to distribute methamphetamine. The prospective seller was a man named Harris. The prospective buyer, alas for Harris, was an undercover investigator for the local sheriff’s office. The two arranged by text messages to meet and exchange about ten grams of meth for a car.

This meant that Harris needed the meth for the trade. He called an acquaintance, Richard, and asked if he could get some from her. No dice, she replied; the police recently raided my home and cleaned me out. But she did want that car, “to leave and start a new life.”

Good for her. Unfortunately, she didn’t hang up the phone; she and Harris concocted an arrangement for him to advance the drugs for her, with her repaying him the value over time. In the interim, they agreed that Harris would own half of the car.

If you’ve thought about this, there are about a dozen ways that this could go wrong. I’ll advance the plot a bit by saying that no one gets hurt in a fiery blaze of weapons; deputies peacefully took both Harris and Richard, plus a pal they had brought along, into custody.

Richard didn’t try to cover anything up; she freely admitted to the arresting deputies what the details of the planned transaction were. That got her indicted for possession with intent to distribute and conspiracy to distribute.

This is where Wharton’s Rule comes in. For those of you who don’t swim in the waters of criminal procedure, the rule provides that when it takes two to complete a crime, you don’t add a conspiracy count. The best example is one listed in today’s opinion: dueling. Precedent establishes that in such situations, the substantive offense and the conspiracy merge when the prosecution proves the substantive offense.

For today’s purposes, involving drug distribution, “when a single buyer and a single seller agree to a drug exchange, that agreement does not constitute a conspiracy, only an illegal sale of drugs.” At trial, Richard asked the judge to give an instruction on this doctrine. The court said no and a jury convicted her. The Court of Appeals reversed, holding that there was enough evidence in the record for a jury plausibly to conclude that the rule applied.

The problem with this is that we didn’t have a single buyer and a single seller. We had one (admittedly phantom) buyer and two sellers. There was plenty of evidence, including Richard’s own candid testimony at trial, that she and Harris had arranged a complex deal for the transaction. That established “preconcert and connivance” between the two, the predicate acts for conspiracy. The justices thus reverse the CAV and reinstate the conviction.

Much of the caselaw in today’s opinion from Justice Goodwyn, writing for a unanimous bench, comes from federal courts. I ran a quick search and found only one previous SCV opinion that mentions the rule, plus five published CAV opinions (in addition to one unpub) mentioning it. This isn’t an issue of first impression in the Supreme Court, but it’s close.


Analysis of December 22, 2021 Supreme Court Opinions




(Posted December 22, 2021) As Christmas draws nigh and the Big Guy draws a bead on your chimney, the justices give you some leisure reading to pass the time. We get two published opinions from the Supreme Court of Virginia this morning.


Criminal law

Justice McCullough pens the court’s short opinion in Carter v. Commonwealth, a prosecution for battery of a police officer. This one comes to us from Lynchburg Circuit Court, by way of the Court of Appeals.

Late one night in January 2018, a police officer answered a dispatch for a disturbance in the City of the Seven Hills. He arrived at the scene and saw “several individuals screaming at each other” in front of a home. The primary contestants appear from today’s description to be a woman named Carter and a man named Penicks. The officer learned from Penicks that he lived at the home and needed to retrieve some of his property. “Carter yelled that Penicks had put his hands on her and needed to go.”

The officer, standing in the threshold of the open front door, heard Carter scream that Penicks “is not coming in here.” The officer pointed out the obvious: “I’m standing right in front of you,” presumably an indication that Penicks couldn’t get past the officer while he was investigating.

This wasn’t good enough for Carter; she cursed at the officer and repeatedly tried to slam the door shut, each time striking the officer’s foot in the doorway. Carter then backed into the home; the officer followed her. At that point she screamed at him; he placed her in handcuffs for an investigative detention. She elbowed him thrice but evidently didn’t do much damage …

… other than earning herself a felony prosecution for assault and battery of a police officer. At a bench trial, her defense was that the officer was a trespasser and she had a right to use force to expel him from her home. The judge wasn’t having any of it; Carter was convicted, and the Court of Appeals affirmed.

The Supreme Court unanimously affirms the conviction today. The court holds that the record doesn’t indicate that Carter ever told the officer to leave before she started ramming his foot with the door. One cannot be a trespasser until and unless the possessor of property conveys instructions to leave. And under prior caselaw, Carter can’t simply retreat into her home from the admittedly public space of her open doorway, and thereby insulate her from arrest for a crime committed in public.


Tort immunity

The justices take up the statutory immunity afforded by Virginia’s Good Samaritan statute in Stoots v. Marion Life Saving Crew, Inc. This is a wrongful-death claim against three rescue workers and the rescue squad for which they worked.

This appeal turns on the meaning of an advance medical directive. When two members of the rescue squad responded to a call for help, they found a 43-year-old diabetic who was experiencing breathing difficulties. They observed that he “was still breathing with a normal resting heart rate.” The patient’s sister handed the crew the advance directive; one member scanned it quickly and noticed that it directed “no extraordinary methods.” He concluded that the patient had signed a Do Not Resuscitate document and handed it back before taking the patient to the hospital. The crew didn’t administer any lifesaving means, though they did stop on the way to pick up a paramedic who could assist if necessary.

The patient died en route to the hospital. As for the directive, it didn’t contain the “no extraordinary methods” language; the staffer’s quick scan had given him the wrong impression. Instead, it called for treatment for two days to see if his condition improved.

The sister qualified as the patient’s personal representative and sued for wrongful death. The circuit court sustained a plea in bar, finding that the rescue workers were “clearly negligent, and probably grossly negligent,” but that they were immune from liability under the statute. Because the workers were immune, the court found that the rescue squad was immune, too, so it dismissed the case.

Justice Powell’s opinion for a unanimous court notes that at common law, a person who provided emergency services could be liable for ordinary negligence. Because this was a strong disincentive to provide such care, the legislature provided for statutory immunity. The criteria for the immunity at issue here include:

  • A licensed EMS provider;
  • Rendering emergency care in good faith;
  • Without compensation;
  • To any injured or ill person.

In this situation, the care-provider isn’t liable in damages for the services rendered. The personal rep argued that the immunity didn’t apply here for three reasons.

First, she contended that the EMS providers violated statutory duties, and the Good Samaritan statute only covers violations of Health Department regulations. The justices reject this argument because most of the statutes that she cited create no affirmative duty. As for the one that arguably does, the court observes that the act’s phrasing – “including but in no way limited to” regulations – means that it can apply to statutory violations.

Second, she argued that the gross negligence of the rescue workers meant that they didn’t deliver services in good faith. In what I see as a significant precedential ruling, the Supreme Court holds today that good faith and gross negligence can coexist. Because the General Assembly treated gross negligence differently in a separate subsection of the statute than here, the court rules that merely proving gross negligence doesn’t establish a lack of good faith. It also rejects the contention that the law judges the rescue workers’ actions by a standard of objective reasonableness. Doing that, the court rules today, would essentially wipe out the statute by reinstating the common-law liability standard.

Third, the justices agree with the trial court that the rescue workers weren’t paid for this work. The squad had a program that allowed volunteers to receive pay for each shift worked beyond the first three. Each could designate at the end of the month which shifts would be volunteer and which would be for pay. Two of the three individual defendants had designated this as an unpaid shift; the third didn’t participate in the program, so this issue didn’t apply to him.

The personal rep makes a plausible argument here: By allowing the members to designate which shifts were unpaid, they could game the system by electing not to receive pay for any problematic shifts, while getting paid for others where no problems arose. The Supreme Court rejects this contention, holding that the plain language of the statute grants immunity for any work that was actually unpaid; it doesn’t turn on whether the worker could be paid.

The justices thus affirm the dismissal of the claims against the rescue workers. The personal rep wins a lesser victory, as the court remands the case to determine whether the rescue squad itself was paid. It billed the patient’s insurer, which paid “an undisclosed amount” to the squad. The justices can’t determine on this record whether the insurance payment was for the rescue services (in which case it’s compensation, and would defeat the statutory immunity) or for reimbursement of costs (which isn’t compensation).

On remand, the circuit court will need to revisit one other issue: whether this is a medical-malpractice case. The personal rep didn’t plead it as one, and didn’t get the required certification for those claims. If this qualifies as a med-mal claim and the alleged negligence doesn’t “lay within the range of a jury’s common knowledge and experience,” that could be another tough hurdle for the remainder of the case.


Chief Justice of Va. Supreme Court says he’s retiring Feb. 1, days after announcing he’s stepping down as top justice

Chief Justice of Va. Supreme Court says he’s retiring Feb. 1, days after announcing he’s stepping down as top justice

By Mark Bowes, Richmond Times-Dispatch – 12/22/2021

Chief Justice Donald W. Lemons on Wednesday advised Gov. Ralph Northam and Gov.-elect Glenn Youngkin, along with top legislative leaders in the General Assembly, that he plans to retire Feb. 1 from the Virginia Supreme Court, just two days after the court announced he’ll step down as chief justice at year’s end.

“It has been my honor and privilege to serve the judiciary and the citizens of the Commonwealth of Virginia for more than 25 years,” Lemons, 72, said in a letter dated Wednesday and copied to Lt. Gov. Justin Fairfax, Lt. Gov.-elect Winsome Sears and the outgoing and incoming Speakers of the House of Delegates, among others.

Lemons has not stated publicly why he is retiring, but he will reach the mandatory retirement age for state judges and justices when he turns 73 on Feb. 22. But he could serve for 11 more months after turning 73, according to state law, which says any judge or justice who turns 73 “shall be retired 20 days after the convening of the next regular session of the General Assembly.”

The legislature already will have commenced its 2022 session in January before Lemons turns 73. “So the next General Assembly session wouldn’t begin for 11 more months — in January 2023,” said L. Steven Emmert, a Virginia Beach appellate attorney and publisher who focuses on the Virginia Supreme Court. “So if he wanted to [stay], he could.”

“My best guess is that he just decided it was time” to leave, Emmert said. Several efforts to reach Lemons for comment have been unsuccessful.

Emmert said Justice Lawrence L. Koontz Jr. was the last member of the court to have “aged off,” leaving in February 2011 after he turned 70 — which at the time was the mandatory retirement age. The law changed in 2015, boosting the age to 73. Koontz remains a senior justice of the Supreme Court and can serve in a temporary capacity.

On Monday, the court announced that Lemons was stepping down Dec. 31 as chief justice, and that his colleagues had elected Justice S. Bernard Goodwyn, 60, to succeed him on Jan. 1. At the time, it appeared Lemons would stay on the court and take the unprecedented step of being the first person ever to leave the chief’s seat and move to the second-most-senior position on the court.

Lemons was first elected to the court in 2000 and has served as chief justice for seven years.

Emmert noted that Lemons had the difficult task of presiding over all of Virginia’s judicial systems during the on-going COVID-19 pandemic and administering its effect on the courts statewide.

“The court had to sort of manage the closure of courthouses and then the process of resuming jury trials, without bringing jurors into a pandemic situation,” Emmert said. “So [Lemons] is ultimately responsible for that. He’s not just the titular head of the court systems, he’s the actual head of all judicial systems in Virginia. So he’s had that on his shoulders.”

Emmert said Lemons’ legacy, in terms of what he chose to emphasize as chief judge, could be summarized in one word: professionalism.

“That was his primary consideration in terms of the things he wanted to emphasize the most,” Emmert said. “You can hear what the [chief] justice cares the most about if you attend a court session in which new members of the court are sworn in. With Chief Justice Lemons, he always emphasized the importance of professionalism.”

“Not just ethics — not just not stealing from the client or not lying to the court — but being a real professional,” he added. “It will be interesting to see what the next chief justice” emphasizes.

Update On Chief Justice Lemons’s Announcement




(Posted December 22, 2021) On Monday, I reported on the press release from the Supreme Court announcing that Chief Justice Don Lemons will step aside at the end of the year, making way for the next chief justice, Bernard Goodwyn of Chesapeake. In that report, I mentioned that the current chief wasn’t leaving the court; just the center chair.

The other shoe has dropped. I’ve just learned that Chief Justice Lemons has notified the Governor of his retirement from the court, effective February 1, 2022. This means that the next session of the General Assembly will choose two new justices – this impending vacancy, and another new jurist to succeed Justice Bill Mims, who isn’t seeking another term.

As I mentioned Monday, the divided control of the legislature means that the two parties will have to agree on candidates for the seats. Our judicial-selection setup requires that judges be elected by both chambers of the legislature. That means that the Democratic-controlled Senate and the new Republican majority in the House of Delegates will have some conferring to do.

This will truly be the end of an era. The current chief is the last remaining justice appointed in the Twentieth Century, as he joined the court in 2000. If you’ve met him, you’ll know that he’s an extraordinarily gracious person. If you’ve followed his career, you’ll respect his commitment to the professionalism of our guild.

I’m grateful to Mark Bowes of the Richmond Times-Dispatch for this information. His story on the chief’s decision is here.


Lemons To Step Aside; Goodwyn To Take SCV Gavel




(Posted December 20, 2021) The Supreme Court of Virginia has announced that Chief Justice Don Lemons will leave the center chair at the end of this month. The announcement doesn’t say that he’s leaving the court; he’s only stepping down as chief justice. If I’m reading the announcement right, and he’ll stay on the court, he’ll take the unprecedented step of being the first person ever to leave the chief’s seat and move to the second-most-senior position on the court.

The chief took the center seat in January 2015 with the retirement of his predecessor, Chief Justice Cynthia Kinser. The court’s custom has been to elect chief justices to four-year terms, with a norm of two terms. This announcement will cap his tenure at seven years.

The court has announced the election of Justice Bernard Goodwyn as the new chief justice, effective January 1, 2022. Justice Goodwyn is currently second in seniority. One thing that I’ll be listening for is how the new chief justice will welcome new admittees to the bar of the court during swearing-in ceremonies. The late Chief Justice Leroy Hassell encouraged them to perform pro bono service; Chief Justice Lemons has emphasized the importance of professionalism. This is one way that each chief can put his or her own flair into a ceremonial occasion.


Analysis of December 16, 2021 Supreme Court Opinion




(Posted December 16, 2021) As the year winds down, the Robes by the James give us a new published opinion. Garner v. Joseph involves the question whether the holder of an easement is an indispensable party to a boundary-line adjustment suit between fee-simple owners.

The property in issue here is in Newport News, adjacent to a body of tidal water named Deep Creek. From what I can tell by looking at satellite images, it looks like a very nice neighborhood with what I take to be expensive homes. Homeowners named Edwards own a parcel that fronts on the water. This lot separates their neighbors to the east, the Garners, from the waterfront, but an Eisenhower era deed to the Garner property creates a 6’ easement in their favor over the Edwards lot, so the Garners can reach the creek. As expressly allowed by the deed, the Garners built a pier out over the water along that 6’ strip.

In 2018, the Edwardses entered into what I perceive was a friendly lawsuit with their waterfront neighbors to the south, the Josephs. The suit was intended to fix the boundary line between the Edwards lot and the Joseph lot. As usually happens in suits like this, the circuit court entered the parties’ desired order to carry out their agreement on the boundary’s location.

This order generated a problem: The new boundary placed the Garners’ pier partly in the Josephs’ riparian area. No one had thought it necessary to name the Garners in the friendly suit, so they had no opportunity to participate and protect their easement interest.

That wouldn’t have mattered if the Josephs hadn’t then sent a no-trespassing notice to the Garners, telling them to stop using “the illegal pier construction and applicable riparian waters.” The Garners responded by filing a suit to invalidate the 2018 consent decree.

The issue in the case quickly turned to whether the Garners were proper, necessary, or indispensable parties to the boundary-line suit. Proper parties are those who may, but need not, be joined in a lawsuit. Necessary parties should be joined except in two limited situations: (1) where it’s practically impossible to join everyone, and existing parties have the same interests; or (2) the absent party’s interests “are separable from those of the parties before the court, so that the court may enter a decree without prejudice to the rights of the absent party.”

The third category, indispensable parties, comprises those without whom the court cannot adjudicate the case. The question here is whether the Garners were necessary or indispensable parties. If they were, then they can sue to canopener the 2018 judgment.

The circuit court ruled that the Garners weren’t necessary parties, so it dismissed the suit. Today the Supreme Court reverses, finding that an easement is a sufficient interest to make it necessary to include them in any adjudication of the property boundary. Because the relocation effectively deprived them of material rights, expressly including riparian rights, other parties couldn’t sue without bringing the easement holders into the suit.

Justice McCullough pens today’s opinion for a unanimous court. He distinguishes a previous decision in which the court had ruled that easement holders weren’t necessary, because their interests had been adequately represented by others in the suit whose position substantially matched theirs. Here, no one stood in the position of the Garners; no one even tried to protect their rights.

I’m grateful to the court for including a boundary survey in today’s opinion, setting out the parties’ lot lines. I tend to be visually oriented, and I greatly appreciated this visual aid. I’m also profoundly grateful to the Wolfcales and the Van Slykes and the Reeders and the Clarks and the Stoopses and the Simses and the Danos. These are my treasured neighbors adjacent to Stately Emmert Manor. I’m confident that none of them would think of doing anything so unneighborly as sending the trespassing notice that we saw here. There’s a lot to be said for treating your neighbors with kindness.


Analysis of December 2, 2021 Supreme Court Opinion




(Posted December 2, 2021) The Supreme Court issues its first published opinion in five weeks today. Ehrhardt v. SustainedMED, LLC involves an indemnity provision buried in a stock-purchase agreement.

Our tale begins 12 years ago, when six individuals contracted to sell their shares in a company called Cyfluent. The sellers told the buyer, SustainedMED, that Cyfluent had contracts with 165,000 doctors and that monthly revenues exceeded $800,000 per month. The buyer was happy to acquire an asset like that for $4.9 million, comprising $2.1 million in cash and notes for the remainder.

The stock-purchase agreement contained indemnity language that obligated the sellers to make the buyer whole in the event of inaccuracies in any pre-sale representations. The provision limited total indemnity to $4.9 million, the amount of the purchase price, subject to a $25,000 deductible.

Alas, Cyfluent was nowhere near as affluent as the sellers had promised. Instead of 165,000 doctors, it had contracts with only about 100. That’s one hundred; not one hundred thousand. The buyer soon figured out that revenues were only a trickle, and the company’s worth was tiny in comparison with what the sellers had indicated.

The buyer then invoked the indemnity provision, indicating that it was using the promissory notes to set off part of its losses and demanding payment for the rest. The sellers refused, so the buyer went to court.

After a bench trial, the court ruled in favor of the buyer, awarding judgment for $2.775 million and declaring that the promissory notes were extinguished. The buyer then filed a claim for its attorney fees and costs. The sellers claimed that their maximum liability for fees was $25,000, because of the $4.9 million cap. The buyer replied that the note extinguishment didn’t count against that cap, so there was plenty of room left for a fee award.

The circuit court took the matter under advisement for what turned out to be a very long time – three years. It then issued an order that granted fees of $972,000 and a smaller costs award. The order didn’t contain any explanation for the ruling.

That brings us to Ninth and Franklin, where the justices consider only one issue: whether the fee award should be capped at $25,000. In a unanimous ruling, the Supreme Court agrees with the sellers that attorney fees are within the indemnity cap, and that the cancellation of the notes counts as compensation, too. The court accordingly reverses the million-dollar award and enters final judgment of $25,000 in fees to the buyer.

As I see it, the court’s ruling here makes perfect sense. I’ve long known that, for example, cancellation of indebtedness is a taxable event to the debtor, and it follows that that should be counted as part of the buyer’s recovery.

The only thing that surprises me about this is that the opinion is published. I have no insider knowledge as to how the court chooses which rulings to publish and which ones come down by unpubs. I’ve assumed that the court almost always publishes those holdings that have broader precedential value, and the ones that contain, say, narrow and unusual facts are decided without publication.

The language in this contract may not be unique, but I doubt that this precise setup is widespread in stock purchases and other contracts containing indemnity provisions. My best guess on this one is that the court publishes the holding that cancellation of indebtedness is indeed part of a plaintiff’s recovery; but that’s not entirely satisfying.


Virginia Supreme Court takes up court access case in fatal police shooting

Virginia Supreme Court takes up court access case in fatal police shooting

By Frank Green, Richmond Times-Dispatch – 11/26/2021

The Virginia Supreme Court has taken up a case that centers on balancing the rights of the accused versus the public’s access to criminal trials that stems from a fatal police shooting and the confidentiality of police internal affairs records.

The appeal was filed by the Daily Press, the Norfolk Virginian-Pilot and reporter Peter Dujardin against the state over decisions made by a circuit court judge to close a hearing and to seal documents in the pending second-degree murder trial of Albin Trevor Pearson, a Newport News police officer who allegedly killed a man in 2019 while attempting to make an arrest for a nonviolent crime.

“The Commonwealth’s motion to close proceedings involving murder charges brought against a police officer and its filing of related judicial records under seal raise issues of the utmost importance to the public, particularly given the ongoing national debate about the use of force by police,” argued the newspapers’ lawyers, Brett A. Spain and Bethany Fogerty, in their petition to the state Supreme Court.

They cited a 1980 U.S. Supreme Court case brought by Richmond Newspapers that held the First Amendment guarantees the right of the public to attend criminal trials.

Brandon T. Wrobleski, a prosecutor in the case, countered in a brief opposing the petition that, “The Commonwealth’s goal was not to deprive the public of access or to conduct proceedings in secret, but to protect … Pearson’s right to a fair trial.”

“The public release of the documents at issue would cause actual, not speculative, prejudice to the defendant. The Commonwealth submits that the trial [judge] was in the best position to evaluate that claim and the effect that unsealing would have on the fair conduct of the … trial,” Wrobleski wrote.

Newport News authorities stepped out of the case that involves a city police officer. It is being prosecuted by the Suffolk Commonwealth’s Attorney’s office and presided over by Judge Margaret Spencer, a retired Richmond Circuit Court judge.

Newspaper accounts said police were attempting to arrest Henry Kistler Berry III in his home for abusing the 911 phone system — a misdemeanor — when Berry was shot and killed during a struggle.

According to pleadings filed with the state Supreme Court, after a Nov. 13, 2020, probable cause hearing, Pearson was indicted and his trial set for October 2021.

The city of Newport News opposed a request from prosecutors to turn over records including police internal affairs documents. But Spencer denied the city’s request to not produce the records.

Then on March 2, prosecutors filed under seal a 91-page motion to Spencer asking she revoke Pearson’s bond. And on March 18, they filed a motion asking that the judge preclude Pearson’s lawyers from using certain defenses accompanied by 356 pages of exhibits also filed under seal.

“The Commonwealth did not provide public notice of the proposed sealing in either instance,” complained the newspapers’ lawyers. The April 5 bond revocation hearing was closed at the request of the commonwealth’s attorney’s office citing the need to talk about sealed documents attached to its motion.

No written request for closing it had been made beforehand, said the newspapers’ petition. Dujardin objected to the closing, and the hearing was delayed until April 26 to allow the public to be heard on whether the closing was appropriate.

At the April 26 hearing, prosecutors argued they needed a closed proceeding because they needed to reference the sealed material.

They claimed the defendant could be prejudiced if the public had access to the documents and that the court would not be able to seat an impartial jury given the nature of the case and publicity about unrelated police shootings.

Spencer expressed concern about possible difficulties in seating an impartial jury and denied public access to the bond hearing, which was held on April 30. Ultimately, she allowed Pearson to remain free on bond. She later denied public access to the sealed motions to revoke bond and to preclude certain defenses.

Among other things, the newspapers contend that Spencer erred by: granting an oral motion to close the courtroom and denying access to the documents without notice of the proposed sealing or closing or evidence of a compelling interest to do so; finding there were no less restrictive alternatives to closure and sealing; and failing to analyze the prosecutors’ documents to determine if any of them justified closure or continued sealing.

The Suffolk Commonwealth’s Attorney’s office disputed those contentions and contends the sealing and hearings closure were all done properly and in the interest of protecting Pearson’s right to a fair trial.

L.Steven Emmert, a Virginia Beach lawyer who writes for the Virginia Appellate News & Analysis website, said that if the justices follow the usual protocol, the case may not be argued until the April session.

“But the court can expedite matters where, as here, the right may be lost due to delay if the court doesn’t speak immediately,” he said.

Note on Appellate Court’s Holiday Closings




(Posted November 24, 2021) It’s that time of the year, when I can inform you about the holiday-closing schedules of the appellate courts here, and mention how that affects your filing deadlines.


State courts

The clerk’s offices of the Supreme Court and Court of Appeals of Virginia will close today at noon and will remain closed the rest of this week, reopening Monday, November 29. By operation of law, all filing deadlines that would fall between today and Sunday are automatically extended unto Monday. Here’s the statutory language:

When the last day for performing an act during the course of a judicial proceeding falls on a Saturday, Sunday, legal holiday, or any day or part of a day on which the clerk’s office is closed as authorized by an act of the General Assembly, the act may be performed on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk’s office is closed as authorized by an act of the General Assembly.

Code §1-210(B).

There’s more, and this year it has special meaning. The clerk’s offices will also be closed December 23 and 24 for the Christmas holiday, and December 30-31 for New Year’s. This last part is legally significant because of the pending change to an appeal-of-right system. Here’s why:

The upcoming trigger for an appeal that goes straight to the Court of Appeals for that of-right proceeding is the date of filing of the notice of appeal; not the date of entry of the appealable order. Without the court closures, the first trigger day when an appellant could go to the CAV would be December 2. But the closures mean that an appellant who gets an unfavorable appealable order next Tuesday, November 30, can legally file a notice of appeal on Monday, January 3, and get that appeal of right.

Two caveats here: First, if you want to take advantage of this, you must wait until January 3 to file your notice. I normally advocate filing things before the last possible day – I firmly believe that deadline days are for suckers – but here, it’s essential to do so. If you file a notice of appeal in late December for an appealable order that comes down, say, on December 15, you’ve waived your right to go to the CAV.

Second, please keep in mind that you file a notice of appeal in the trial court clerk’s office and not with the appellate Court. I accordingly caution you to check with your local clerk to find out if that office will be open on December 30. If it is, you have to file by the December 30 deadline, even if the appellate courts are closed.

I need to point out a rules quirk. In current appeals to both appellate courts from circuit courts, you file the notice in the circuit court. Rules 5:9(a), 5A:6(a). But in appeals to the CAV, you must also file the notice with the Clerk of the Court of Appeals. Rule 5A:6(c). This CAV rule doesn’t specify a deadline for filing, so I doubt that it’s jurisdictional. That also means that you probably can’t take advantage of this one-time quirk in the admittedly unlikely event that your local court is open on Thursday, December 30.


Fourth Circuit

The Fourth has announced that its clerk’s office will be closed tomorrow and Friday for Thanksgiving, with all deadlines kicked over to Monday, November 29. The court hasn’t mentioned anything about any December closings, but history suggests that that office will probably be shuttered for a single day for each holiday: December 24 and 31.


What, Oh, What Shall We Do About The Problem Child?




(Posted November 18, 2021) From time to time — not every week or even every month, but on repeated occasions — I get a question from a trial lawyer about the waiver-of-endorsement provisions in Rule 1:13. This is the rule that mandates endorsement by counsel of record of all orders, and then allows the trial judge the discretion to simply ignore the rule:

Drafts of orders and decrees must be endorsed by counsel of record, or reasonable notice of the time and place of presenting such drafts together with copies thereof must be served pursuant to Rule 1:12 upon all counsel of record who have not endorsed them.

Compliance with this Rule … may be modified or dispensed with by the court in its discretion.

The questions I get are surprisingly consistent. They almost always describe a situation where a judge has entered an order without providing advance notice or an opportunity for the lawyers to endorse, or provide input on the contents of, the draft. “The Court dispenses with endorsements of counsel pursuant to Rule 1:13.” Now the aggrieved lawyer wants to know how to object to the order, in a manner that’s sufficient to preserve the objections for appellate review.

It’s trickier than you think. Some judges may expressly permit lawyers to file objections within X days after entry. But given the terrifying ruling several years ago in Brandon v. Cox, filing objections with the clerk of court probably won’t protect you. The record must indicate that the trial judge had the opportunity to rule on objections; not merely that they appear in the record. If the lawyer files objections with the clerk but there’s nothing to show that the judge knew about them, then even timely, meticulous objections could turn out to be useless.

Hence this essay. I figure that multiple lawyers asking the same question — one that doesn’t have an obvious answer — merits discussion and a stab at providing a solution for the problems that arise in such situations.

We’ll start with the easy part. If the objections that you want to append are already in the record — in a motion, brief, or pleading, or in a transcript that someone has filed — and the judge has ruled on them, then you’re safe. Code §8.01-384 provides that you don’t need to repeat your objections, even in endorsements on the final order, once you’ve obtained a ruling. If that’s the case, you don’t need to do anything, because your objections are preserved.

But that’s cold comfort if the judge has inserted a nuance into the order that the lawyers hadn’t anticipated, or has issued a ruling out of the blue that no one saw coming. In that instance, the lawyer has to act.

The first and easiest approach is to contact the clerk or chambers and obtain a hearing date that falls within 21 days after the date when the judge entered the final order. You’ll then file your objections and a hearing notice, along with a letter to the judge, copying the clerk. In that letter, you’ll indicate that you need the court to enter an order ruling on your objections by the 21st day. I recommend that you bring two orders to the hearing. One states that the court has considered your objections and overrules them; the other says that the court agrees with you and orders whatever relief that ruling would entail. The odds are that the judge will enter the first one, but why give up hope?

One note of caution here: Don’t say to the judge, “I’m not asking you to change your ruling; I just want to protect the record.” We learned several years ago in Nusbaum v. Berlin that language like that won’t preserve an issue for appeal. Ask the judge to rule in your favor but say that you’ve brought an order for each possible outcome, and ask the court to enter whichever one fits the judicial ruling. Now you’re protected.

As is inevitable with simple solutions, some cases will produce problems even here. Maybe your judge rides circuit and won’t be back in your jurisdiction for a month. (You can bring your two orders to the next county, leaving a request with chambers that the court enter one or the other. The judge doesn’t have to be sitting in a given county to enter orders for its circuit court.) Maybe your Bad Guy intends to fight you and says that his trial calendar means that he won’t be available for a month. (You can and should ask for a suspending order that allows you time to schedule the hearing on a date that accommodates the rascal.)

Here are a few other ideas:

  • Make a record of your attempts to get the judge to rule in a timely fashion on your objections. That can take the form of a motion to rehear or simply a motion for a written ruling on your objections, as noted above. The caveat on rehearing is that you can’t automatically get a hearing on that, per Rule 4:15(d); only the judge can order that.
  • Be sure to state in writing your objection to the judge’s refusing to allow you an opportunity to get a timely ruling. I also recommend that you object to the judge’s using Rule 1:13 to dispense with endorsements, especially when issuing a ruling that no one anticipated. That may allow you to challenge the practice on appeal.
  • Don’t assume that the clerk of court will follow through on presenting competing orders to the judge. Drop off copies at chambers along with an explanatory letter, mentioning that under Brandon, you need to secure court action within 21 days. You should address your correspondence, with copies of the motions attached, to the judge, delivering it to chambers, with a copy to the clerk of court. Doing this makes it clear that you’ve given the court an opportunity to rule on your motion, which is all that the preservation rules require.
  • If your trial judge isn’t available within 21 days, you can always ask a different judge of the same court to enter a suspending order. Most judges won’t make substantive rulings in another judge’s case; but if you can explain to the court that you’re about to lose a legal right and you just want to preserve the status quo for a short time until Judge X can act, you may get a friendly ear.
  • If you get nowhere with the judge, consider preparing a written statement under Rules 5:11 or 5A:8 that outlines your efforts to get a ruling on the objections. That way, the appellate court can see the efforts you’ve undertaken.
  • You have one other avenue of relief under 8.01-384. That statute separately provides that if you had no opportunity to object to the court’s ruling, then you won’t be held to have waived the issue for review. I advise you to regard this as a last resort, but if the appellate court sees that the judge has slipped in a ruling and then has made himself unavailable for proper preservation, you may well get a favorable appellate reception.

While these ideas may help you to avoid a waiver in this situation, in my opinion the problem is deeper than that. Rule 1:13’s modify-or-dispense provision is a bad idea that the Supreme Court should remove from the rule. This problem child doesn’t deserve a spot in the rulebook. At a minimum, the court should amend the rule to provide that a trial court may not modify or dispense with the notice-or-endorsement requirement when entering a final order.

You think I’m overreacting? Let’s take a hypothetical to illustrate how this problem can go nuclear. Suppose a judge wants to avoid appellate scrutiny on a given case. Perhaps the jurist, in a rash moment, has done something out of anger at or frustration with a lawyer, and fears reversal and remand. (Trial judges don’t like reversals, but they really-most-sincerely hate remands.) Simple solution: The judge drafts and enters a final order that contains language dispensing with endorsement. He next opens a desk drawer, slides the newly entered order inside, and closes it.

Nine weeks later, with the parties waiting patiently for word on the ruling, the judge opens the drawer, removes the order, and hands it to the clerk of court for placement in the file. Under Rule 1:1, the date of entry of an order is the date when the judge actually signs the document. That’s now 63 days past. This means that it’s too late to file a notice of appeal (30 days after entry) and too late for relief under Code §8.01-428 (60 days). The aggrieved party is pretty much helpless; the only theoretical solution I can see is to file an independent action for relief from a judgment, also under §8.01-428. That’s a real long shot.

Perhaps you’ve concluded that I have a hyperactive imagination, or a bad case of paranoia. Maybe. You think I should trust trial judges to do the right thing? I do, almost always; the overwhelming majority of them are conscientious public servants. But the Judicial Inquiry and Review Commission will confirm that a tiny few of them aren’t. And even without the sinister tableau of my hypothetical, some trial judges simply may not know that, in exercising a right that the rules expressly give them, they’re depriving litigants of a meaningful right.

As lawyers, we need to anticipate adverse developments, prepare for them, and be ready to act. This essay should help you if you find yourself in this difficult position. You want the appellate court to understand that you did everything humanly possible to preserve your appellate issue.

A note of thanks: Some of the suggestions above come not just from me; several of my pals in the appellate guild, including Kyle McNew, Monica Monday, and Norman Thomas, offered creative solutions that have gone into this essay. (The sinister hypothetical comes from me alone. Don’t blame them.)


Analysis of October 28, 2021 Supreme Court Opinion




(Posted October 28, 2021) The Supreme Court of Virginia closes out October by handing down one published opinion today. Commonwealth v. Cady is an appeal that follows a reversal of a criminal conviction. A jury found Cady guilty of reckless driving, stemming from a fatal collision in which the car that he was driving struck a motorcyclist who was stopped in the roadway, waiting to make a left turn.

The evidence at trial was damning. The skies were clear and the collision occurred on a straight stretch of roadway where Cady should have been able to see the large motorcycle from far off. There was no evidence that Cady suffered a medical emergency. All of the evidence seemed to point to inattentiveness as the cause of the collision.

A jury saw it that way and convicted Cady. But a divided panel of the Court of Appeals reversed, holding that no rational trier of fact could have found him guilty beyond a reasonable doubt. The Commonwealth sought and got review in the Supreme Court.

Justice Kelsey pens today’s short opinion for a unanimous court. He first notes that the appropriate standard of appellate review requires the court to accept the evidence in the light most favorable to the Commonwealth, because the jury resolved the facts against Cady. Through that lens, the court today finds that the trier of fact could well have concluded that the only explanation for the collision was Cady’s reckless actions:

Based upon this evidence, a rational trier of fact could reasonably infer that the accident in this case was not the result of a “split-second, momentary failure to keep a lookout,” constituting only simple negligence, but rather a “lengthy, total, and complete” failure to keep a lookout, satisfying the mens rea requirement for reckless driving in violation of Code § 46.2-852.

Today’s opinion explores the difference between simple negligence and the reckless behavior that’s necessary to convict here.


Some Appellate Miscellany



(Posted October 22, 2021) I’ve seen just enough odds and ends recently to fill a respectable-length post.

Lee statue rehearing
The Supreme Court has refused a petition to rehear the appeal over the equestrian statue of Gen. Robert E. Lee in Richmond. Here’s the timeline on that:

• September 2 – SCV issues its unanimous opinion
• September 7 – The appellants give notice of intent to seek rehearing
• September 8 – The Commonwealth dismantles the statue and removes it
• September 29 – The appellants file a petition for rehearing
• October 21 – The court refuses the rehearing petition

I recall discussing this PFR with some of my appellate pals (no court insiders, of course). The unanimous view was that, once the statue had been removed, the rehearing petition was moot. You can’t get an injunction to prohibit something that’s already happened. I’m told that the appellants sought a return of the statue in the PFR, but I don’t know whether they had pleaded that relief in circuit court.

While this should end proceedings over the statue, I think I recall a statement in a news story where one of the lawyers in the case mentioned the possibility of a SCOTUS petition, citing an unspecified federal issue. That means we wait three months to see if it’s truly over.

A lightning disposition
The Robes convened writ panels on Tuesday, October 19, when they heard arguments from about 50 petitioners. Then late on Tuesday afternoon, I got an unusual automated e-mail from the court, calendaring another writ panel for Thursday the 21st – that’s yesterday – for a single appeal. What? I had never heard of such a thing.

A peek at the docket gives us a hint at the reason. The appeal is styled Perry-Bey v. Piper. Mr. Piper is the Commissioner of the Department of Elections. That can only indicate that the justices felt it necessary to address the petition before the November 2 Election Day.

This appeal rocketed its way through the SCV. The case-information page indicates that the court got the petition for appeal on October 12 and received the record from the Richmond Circuit Court two days later. One week after receiving the record, a writ panel heard oral argument before quickly refusing the petition the same day. That’s what we call prompt, courteous service. Update October 28: The mystery revealed! This was a proceeding seeking a declaration that former Gov. Terry McAuliffe wasn’t eligible to run for a second term. The petitioners cited an alleged paperwork error in his candidacy filing. That explains why the justices had to resolve this case quickly, before the general election next week.

Foreseeably gloomy caseload numbers
On a few occasions, I’ve reported here that the Supreme Court’s incoming caseload will decline significantly this year. That’s primarily due to the major drop-off in jury trials, a casualty of the pandemic. I decided to check this morning to see how many files the Clerk has opened thus far. According to the court’s case-management page, the Clerk logged Record No. 210994 yesterday. The first two digits are the year; the next four indicate the chronological entry of the number of filings.

It’s late October and we aren’t up to a thousand yet. At this pace, the final tally will probably reach about 1,200, down from last year’s pandemic-depressed total of 1,571. The last pre-pandemic year, 2019, saw 1,760.

I couldn’t tell you when the business was this slow before now; probably sometime in the early 19th Century. But take heart: I expect the pace to pick up in the last third of 2022. It’ll be depressed a bit before then while the Court of Appeals gobbles all the new appellate filings.

A new clerk
Well, sort-of new. The justices have named Muriel-Theresa Pitney as the Clerk of Court, removing the word Acting from her title. Muriel was the Chief Deputy Clerk until Doug Robelen’s untimely passing earlier this year. She’s also one of the cool people, as you’ll learn if you interact with her.


Va. high court will do what panel wouldn’t, lawmakers couldn’t

Schapiro: Va. high court will do what panel wouldn’t, lawmakers couldn’t

By Jeff E. Schapiro, Richmond Times-Dispatch – 10/22/2021

In stripping most lawmakers of their power to draw legislative and congressional boundaries, Virginians last year believed they were dragging the dark art of redistricting into the sunlight. It’s about to be dragged back into the shadows.

It will probably be tossed to a handful of judges whose jobs hang on the whim of legislators. And their careers could depend the lines the judges draw.

The 16-member bipartisan commission created to depoliticize redistricting is a partisan train wreck, derailed by the intractability of Democrats and Republicans. Having quit on setting new boundaries for General Assembly seats, the commission appears likely to do the same on lines for U.S. House districts.

This means the job of — and the last word on, barring a lawsuit or two — resetting 100 seats in the House of Delegates, 40 in the Virginia Senate and 11 in the U.S. House of Representatives will fall to the seven justices of the Virginia Supreme Court, all of whom, because they are selected by legislators, are largely spared direct public accountability.

This Supreme Court is, as were many of its predecessors, conservative. That means it shows great deference to the General Assembly, presuming its handiwork to be constitutional. In redistricting cases, the court has largely affirmed lines set by lawmakers, even those that, from all appearances, qualify as a gerrymander.

The court now faces a different task: It will be judge and jury, fashioning districts that must comport with state and federal standards by reflecting shared regional interests and protecting minorities and that are sufficiently compact to ensure they contain equal numbers of residents.

This could mean the court is also executioner, perhaps lumping multiple incumbents in the same districts, triggering nomination contests and elections in which someone’s political life abruptly ends. Such scenarios contributed to the collapse of the redistricting commission.

The constitutional amendment Virginia’s voters overwhelmingly approved in 2020, creating the commission, requires the court take over mapmaking as a last resort. Of 21 states with bipartisan or independent redistricting, four include judicial remedies.

Many members in the General Assembly’s new Democratic majority, having initially backed the amendment, later opposed it, arguing maps drawn by the current justices would guarantee a Republican takeback of the legislature because all of the jurists are creatures of the old GOP majority.

Steve Emmert, a Virginia Beach lawyer and authority on the state’s appellate courts, says Democratic fears of Republican partisanship — disguised as judicial dispassion — are misplaced, and that carving districts is not an assignment the justices relish, though they barely grumbled about it as the amendment moved through the legislature.

“The justices’ reaction when they learned they were going to have to draw maps was, ‘Oh, criminy!’ ” Emmert said. “This was a task that the legislature forced upon the court … It’s my sense that they’ll do anything they can to avoid the appearance of partiality.”

Might the federal courts provide a clue to the Supreme Court’s direction? They unpacked multiple gerrymanders in response to Democratic challenges to GOP House of Delegates and congressional maps. Democrats would score big gains on revised maps that Republicans dismissed as the fancy of Democrat-dominated courts.

The justices would be on a tight timetable, possibly taking over from the commission in the week ahead. The court would select two redistricting experts — one Democrat, one Republican — from a pool of 12 candidates submitted by the General Assembly. Such experts were enlisted by the federal courts.

The fine print that guides redistricting requires these experts to work together, which could mean the justices demand they set aside partisan differences to produce compromise maps. This could take place out of view, as redistricting long has, because the court is not obligated to hold public hearings, though written comments would be allowed.

The entire process, which could conclude by the end of the year, may be colored — in the minds of legislators, reporters and political operatives — by personal factors unique to each justice, most notably when he or she is up for re-election by the General Assembly. More than a job, there’s a sweet judicial pension to protect.

Analysis of October 21, 2021 Supreme Court Opinions




(Posted October 21, 2021) The Supreme Court today issues two published rulings, including a decision in the court’s oldest previously undecided appeal.


Civil procedure

The justices take up seemingly contrary statutory provisions relating to confessed judgments in Ayers v. Brooke Road, LLC. Ayers was one of several borrowers on bank loans about 15 years ago. In 2009, the loans went into default. The bank utilized the notes’ confessed-judgment provisions, and got immediate judgments. Two weeks later, it tendered to the clerk of court returns from a process server, showing personal service of the judgments on Ayers at a location in Orange County.

The judgments evidently languished for nine years before the bank sold the judgments to Brooke Road, LLC. That company filed suit against Ayers in an attempt to collect the judgments. A bit over seven weeks after being served with the new complaint, Ayers filed his own action to set aside the underlying default judgments. He alleged that he was never served in 2009, and the returns of service were false. He attached copies of several criminal convictions suffered by the process server for dishonesty.

Brooke Road demurred to Ayers’s suit, citing a statute that requires a challenge to a default judgment to be filed within 21 days after the debtor is served. Ayers responded that under another statute, the failure to serve a default judgment within 60 days renders the judgment void ab initio, so the 21-day limit doesn’t apply.

The circuit court agreed that Ayers had a valid claim on the facts, because a return of service isn’t conclusive; only prima facie evidence of service, and that can be rebutted. But the court agreed that Ayers did have a 21-day window within which to challenge the judgments, and he missed that. The court thus sustained the LLC’s demurrer.

Today the justices unanimously reverse and remand the case for trial. A judgment that’s void ab initio is a legal nullity, and the plaintiff can retroactively reincarnate it by subsequent action. Once that 60 days passed, assuming (as the court must at the demurrer stage) that Yates wasn’t actually served, the judgment simply vaporized and the creditor has to start over again. Yates doesn’t get a final judgment in his favor, but he now gets to prove that he really wasn’t served. As an aside, if he succeeds in doing so, I might anticipate that the court may have something to discuss with the process server thereafter.



The other opinion issued today also takes up the interplay between related statutes. Phillips v. Rohrbaugh is a suit by one beneficiary, a decedent’s daughter, against her brother, who is a co-executor of the decedent’s estate. The daughter perceived that her brother’s handling of their late father’s affairs – before death under a power of attorney, and after death in estate administration – were suspicious or constituted self-dealing.

The daughter requested certain documents from her brother; the brother gave her some of what she sought. She decided that what he sent her was insufficient, so she filed a suit in equity seeking an equitable accounting and a statutory accounting. Her brother replied that neither option was available. The circuit court agreed with the brother and dismissed the case.

The power of attorney had some language that I found remarkable, and the Supreme Court today finds dispositive. I’ll italicize the most relevant text, but the bolding is in the original:

Pursuant to the provisions of section 11-9.6 of the Code of Virginia of 1950, as amended, it is my intention that, except as specifically provided for herein, my agent shall never be required to make disclosure or inspection of my affairs, or their actions as my agent, either under this instrument or otherwise, to any third party. I authorize my agent to refuse any request for disclosure or inspection, and they have the sole discretion to determine the scope, if any, of disclosure or inspection they may wish to permit. I authorize my agent as an expense of the agency to resist any proceeding to compel such disclosure or inspection. . . . Without limitation of the foregoing sentences in this paragraph, I specifically intend that my agent shall never be required to make disclosure of their actions or permit inspection of my affairs under this instrument, pursuant to section 11-9.1, section 11-9.6, section 37.1-134.22 of the Code of Virginia of 1950, as amended, or any other statute.

Well, that seems definitive enough to get the point across. Citing this provision, the Supreme Court today honors the decedent’s wishes. The court rules that under the power, the brother had no obligation to disclose anything to his sister, in that she wasn’t his agent. That duty runs to the principal, not a relative. An equitable accounting is thus a matter of the chancellor’s discretion.

Turning to the daughter’s claims under the will, the justices today find that she does indeed have standing to raise such a claim, but it has to come in an estate proceeding before the commissioner of accounts (and eventually the circuit court), not in this collateral action.

The court also rejects the daughter’s statutory claims for relief under the Power of Attorney Act. While a general provision of the Act permits a relative of the principal to petition a court to “construe a power of attorney or review the agent’s conduct,” other related statutes narrow the scope of such petitions. The daughter finds herself on the outside of these provisions, as the Supreme Court rules that she cannot compel a statutory review at this point, in this proceeding.

Today’s ruling disposes of this lawsuit but doesn’t close the book on this sibling dispute. It’s eminently foreseeable that the same parties may revisit the Supreme Court at some point down the line.

As I mentioned above, this appeal is the oldest on the court’s current calendar. The advocates argued the appeal to the justices in April; they had to wait six months to get today’s unanimous ruling. Waits like that are agonizing, but there’s nothing to be done but to be patient.


Analysis of October 14, 2021 Supreme Court Opinions




(Posted October 14, 2021) For those of us who follow appellate decisions, a long drought ends today as the Supreme Court of Virginia hands down its first published opinions in six weeks.



The justices take up several dirt-law claims in Givago Growth, LLC v. iTech AG, LLC, from Fairfax County. It’s a suit by an LLC that owns land up there, filed against a lender that sued and slapped a lis pendens notice in the local land records.

When the plaintiff in that action nonsuited and withdrew the lis pendens, the property owner sued the lender for a host of claims: malicious abuse of process, slander of title, tortious interference with contract, and civil conspiracy. The lender demurred, claiming that the lis pendens was entitled to the absolute privilege that protects assertions made in the course of litigation.

The learned judge considered this argument, and agreed with the lender. He dismissed the action with prejudice. A Supreme Court writ panel decided to take up the issue.

Today’s opinion, written by Justice Mims, first addresses the propriety of a court’s deciding a defense like privilege on demurrer. The court rules that that’s improper, as affirmative defenses have to be raised by pleas or an answer. While that might have been the end of today’s decision, the court goes on to examine the merits of the defense.

If you find that unusual, I agree with you. By evaluating an affirmative defense that has yet to be properly raised, the court issues something that looks a lot like an advisory opinion. But it’s entirely foreseeable to me that the circuit court will eventually have to make this call, so the justices decided to weigh in on it in the interest of judicial economy. After all, there’s no need to make the parties try the case, only to come back to the appellate courts (it would be the CAV by then) to get a legal ruling on an issue that the parties have already framed well.

Today’s opinion analogizes this situation to the filing of a mechanic’s lien. Both that lien and a lis pendens are ancillary to the main object of the litigation. They serve to notify potential purchasers that the plaintiff has a claim against the subject property, thereby protecting the person or entity who asserts that claim. The justices note that prior caselaw has protected a mechanic’s lienor from defamation liability by the privilege defense.

At this point, it looks like the Robes are about to hand the lender a delayed-onset victory. But then we see this paragraph:

However, the circuit court went further and held that the defense of absolute privilege applies to all four causes of action alleged in the petitioners’ complaint: slander of title, malicious abuse of process, tortious interference with contractual relations, and civil conspiracy. This Court has never extended this defense to non-defamation torts, such as the latter three listed above, and we decline the invitation to do so today.

The court thus rules that while the privilege defense may bar an action for slander of title, it won’t apply to the other three, non-defamation claims.

Okay, now it looks like the slander claim is going down (eventually), and the other three will proceed at least through the pleading stage. But wait; there’s more! Justice Mims then adds that even the absolute pleading privilege is subject to a requirement of relevancy. If the allegations in the lis pendens are “palpably wanting in relation to the subject matter of the controversy” as to make them irrelevant or improper, then the property owner can fend off the privilege defense.

I learned long ago that merely having a monetary claim against John Q. Defendant isn’t enough to warrant the filing of a lis pendens against his property; that requires a claim to ownership of that specific property. That might be the reason why Justice Mims adds this ominous language at the end of today’s discussion: “we note that the facts alleged in the complaint, if proven true, are concerning and may not satisfy even this ‘liberal rule’ regarding relevancy.” The justices thus remand the case so the circuit judge can make that evaluation.


Criminal law

The court takes up a certified question from the Fourth Circuit in White v. US. The appeal arises from a criminal prosecution in which the government managed to obtain an enhanced sentence under the Armed Career Criminal Act, successfully convincing the district judge that White had three prior violent felonies. That led to a significantly stiffer sentence than White would have received otherwise.

On appeal to the Fourth, White claimed that one of his three prior convictions, a Virginia proceeding for robbery, didn’t qualify as a violent felony. That argument led the Fourth to certify this question to the SCV: “Under Virginia common law, can an individual be convicted of robbery by means of threatening to accuse the victim of having committed sodomy?”

This issue likely triggers an I-thought-I’d-seen-it-all reaction. I had never heard of a robbery conviction for threatening to out someone. Extortion, maybe; but then, I don’t handle criminal litigation.

It turns out that the highest court in the Commonwealth has decided this issue on four previous occasions – once in 1890; the other three in the 1930s – and has always said that it’s possible to base a robbery conviction on this precise threat. Who knew?

Well, White’s lawyers knew, for one. They raised the issue that physical force – the predicate act of violence for an ACCA sentence enhancement – isn’t always necessary for a robbery conviction. If White is right, he should be entitled to a new sentencing, and a shorter stay as the guest of the Attorney General of the United States.

Justice Kelsey authors today’s opinion, I found it to be one part appellate ruling and about eight parts legal history lesson. Another jurist would have cited the four SCV opinions and let it rest there; a nice, short opinion that’s beloved by working-class scribes like me. But Justice Kelsey wanted to firmly establish the precedent, so he examines English common law decisions stretching back into history. He cites numerous English opinions, all finding this precise exception to the physical-force requirement.

With this line of caselaw, the only thing that can interrupt it is legislation. The General Assembly, in its wisdom, has declined to step in and abolish this exception, so the court answers the certified question in the affirmative. That’s a victory for White.

This ruling isn’t entirely unanimous. Two members of the court – Justice Mims and Powell, can’t stomach the labyrinth of English legal history, so they file a short concurrence, based on the four SCV decisions already in Virginia Reports.

I’m of two minds about this. Like Justice Kelsey, I appreciate legal history. I’m always interested in an exposition on a subject of which I’m ill-informed. But this was a remarkable, extensive digression that, in my view, really wasn’t necessary to decide the certified question. It reminds me of another digression, this one from one of my three favorite novels, Les Misérables by Victor Hugo. The book is ponderous at roughly 1,200 pages, though I love it anyway.

In the novel, Hugo spends 100 pages describing the Battle of Waterloo. The sole story-based purpose for this overlong detour is to make the point that a really-really good guy mistakenly believes that a really-really bad guy is actually really-really good. (He isn’t. Sorry if I spoiled the novel for you.) The real purpose, I suspect, was for Hugo to express his patriotism and his admiration for Napoleon Bonaparte. The battle occurred when Hugo was 13 years old, and it must have shaped his views of what it meant to be a Frenchman.

Enough speculation; I can’t offer an informed view on why Justice Kelsey took us on this long tour into Eighteenth Century England. But the answer to the Fourth’s certified question is now chiseled deeply in the annals of our jurisprudence.


Note on Appellate Developments




(Posted October 6, 2021) As we look forward to tomorrow, and the chance of our first published opinions from the Supreme Court of Virginia in over a month, let’s take a look around at the landscape.


3Q David-Goliath Index

Another quarter is in the books, so let’s see how our big guys and little guys fared against each other in the SCV. As you’ll recall, in the past several years, our Davids have been taking a pounding in merits decisions. This time, the results are much more balanced: Considering published opinions and orders plus unpubs, David won six times in the third quarter against eight wins for Goliath. The resulting 43/57 index, while still favoring Goliath, is the best that David has done in a long time. These newest decisions mean that over the course of 2021, David has won 15 times and Goliath 30, producing a 33/67 D-GI. Back to you at the end of the year.


Pace of filings

In my first essay of 2021, I noted the 10% decline in new-case filings in the Supreme Court Clerk’s Office, measured from 2019 to 2020. I forecast a larger drop-off in 2021 as the full effect of the pandemic and the jury-trial moratorium materialized.

Last year, the Clerk received 1,571 new records – a bit under 400 per calendar quarter. Thus far in 2021, the Clerk has opened only 935, just over 300 per quarter. It’s possible that the resumption of jury trials will cause the pace to pick up between now and the end of the year, but failing that, my best guess is that we’ll see about 350 fewer new filings at Ninth and Franklin – perhaps somewhere between 1,200 and 1,250. That would be a decline of about 25%.

The crystal ball gives me a cloudy picture of what to expect in 2022. The immediate effect will be a reduction in the number of direct appeals from circuit courts in civil cases, because those appeals will now stop first in the Court of Appeals. That will produce a noticeable decline in the SCV’s incoming traffic in the first roughly eight months of the calendar year.

The wild card here is that most of the justices’ caseload – slightly more than half – is criminal petitions from final decisions in the Court of Appeals. Those, in theory, should remain relatively constant, especially because the CAV has done such a good job in keeping its docket cranking despite the pandemic.


One Summit down; one to go

The Virginia Appellate Summit last month was, from what I can tell, a major success. It was a hybrid program, allowing in-person attendance as well as remote access. It wouldn’t have happened if not for the generosity of McGuireWoods, which donated the meeting space in its downtown Richmond offices.

There’s one more Summit on the horizon: The ABA Appellate Summit will convene November 11 through 14 at the Hyatt Regency in Austin, Texas. This is the biggest and best nationwide appellate bench-bar conference, with hundreds of appellate advocates and jurists, plenty of advanced-level CLE programming, and lots of time for socializing and excursions in the city.

Early bird pricing was set to expire September 30, but the program planners decided to extend that to October 15, to allow potential attendees to evaluate pandemic conditions before deciding whether to come. I learned today that the room block at the Hyatt may be full, so it may not be possible to stay at the host hotel. But I understand that the Summit planners anticipated this when choosing the venue; there are several other hotels within walking distance.

One final perk: The Texas Longhorns entertain the Kansas Jayhawks on Saturday afternoon, November 13. I have no idea whether you can get tickets, but if you’re a college football fan, it doesn’t get much better than a Texas home game.


Still remote arguments for now

In a bow to pandemic realities, all three appellate courts that convene in Richmond are still entertaining oral arguments remotely. The Supreme Court of Virginia will host virtual oral arguments in its November session and telephonic arguments for the October 19 writ panels. It’s conceivable that the December 7 writ panels might be in-person, but I wouldn’t wager my mortgage on that.

Meanwhile, the Court of Appeals of Virginia will use remote arguments for the rest of 2021, and the Fourth Circuit will conduct them remotely for the October 26-29 sitting. The court hasn’t made an announcement yet about its final sitting of the year in early December.

I unashamedly yearn for the day when the courtrooms open again. I miss the majesty of the pillars, the drapes, the judicial portraits in the SCV’s main courtroom. It’s okay to dream; the Robes across the Potomac have convened in-person oral arguments starting this week, so anything’s possible.


Rehearing sought from Virginia Supreme Court in Lee monument removal case

Rehearing sought from Virginia Supreme Court in Lee monument removal case; Gov.’s office: ‘This is truly a lost cause’

By Frank Green, Richmond Times-Dispatch -9/30/2021

The plaintiffs who fought for more than a year to keep the Robert E. Lee statue on Monument Avenue are asking the Virginia Supreme Court to reconsider its unanimous decision earlier this month that permitted its removal.

With the dust barely settled since Sept. 8 when the 12-ton bronze statue of the Confederate general on his horse was lifted from its pedestal and removed to an undisclosed site, four property owners Wednesday filed a request with the high court for a rehearing alleging the justices made “several fundamental errors” in their Sept. 2 decision.

“If those errors are allowed to stand uncorrected, the damage to the rule of law, the authority of the General Assembly, and the credibility of the Court will be profound and lasting,” they contend in an 11-page petition.

Patrick M. McSweeney, one of the lawyers filing the petition, said restoring the monument would be the ideal outcome for his clients. “But as an alternative, they certainly don’t think the state owns and controls the monument,” he said Wednesday.

Among other things, the petition complains that the justices ignored the contention that the state cannot continue to benefit from an agreement it has repudiated. In this case, the state wants to keep ownership of the monument and land while disavowing the promises it made to obtain them. “Such a result allows the Commonwealth to take property without compensation,” argues the petition.

After it was lifted off the pedestal, the statue was cut into two pieces, an action McSweeney said Wednesday was punitive. “There was no need to cut it up,” he said.

The petition also asserts that the high court failed to address claims the state could transfer the monument and Lee Circle to a private party if, after 130 years, the state decides it does not want to be associated with any message the monument conveys.

Alena Yarmosky, a spokesperson for Gov. Ralph Northam, said, “This is truly a lost cause. Every branch of government has spoken — including a unanimous ruling from the Supreme Court — in support of a more inclusive, just Virginia. It’s time to move on.”

Charlotte Gomer, a spokesperson for Virginia Attorney General Mark Herring, wrote in an email that, “We just received the request for rehearing and are currently looking over the filing, but I’m not exactly sure what the plaintiffs hope to achieve with this move.”

“It is time for the Commonwealth to move away from a past when leaders of a racist insurrection were glorified to a future that tells our whole history fully and truthfully,” said Gomer.

Under state law it would take just one of the justices who ruled against the petitioners to grant a rehearing. L. Steven Emmert, a Virginia Beach lawyer who writes the “Virginia Appellate News & Analysis” website, said rehearings are seldom granted. “Probably one grant in almost 100 filed in the past five or so years,” he said.

Emmert had not seen the filing Wednesday, but said, “because the statue has already been removed, this petition is an even greater long shot than normal.”

McSweeney, however, said, “the injunction remains in play in the circuit court where it was entered until … the final disposition of the appeal, which by rule does not occur until the rehearing petition is disposed of.”

“In our view, the governor was in contempt of the circuit court by removing the statue when he did. The opinion of the Supreme Court cannot terminate the circuit court injunction until the procedure prescribed by its rules has been concluded,” added McSweeney.

Northam ordered the statue removed last year during protests in Richmond following the death of George Floyd. The monument was located at Lee Circle on land given to the state by 1887 and 1890 deeds.

Five area residents filed suit in Richmond Circuit Court to block the removal, arguing that the deeds require that the monument be held “perpetually sacred” by the state. A Richmond circuit judge ruled against them, holding that arguments to keep the statue in place were contrary to current public policy as established by the General Assembly last year.

An injunction was put in place barring the monument’s removal pending the appeal to the Virginia Supreme Court.

On Sept. 2, the justices sided with the judge, ruled against the plaintiffs and dissolved the injunction. In a separate case, the court also ruled against an heir of those who donated the property.

The justices wrote: “Those restrictive covenants are unenforceable as contrary to public policy and for being unreasonable because their effect is to compel government speech, by forcing the Commonwealth to express, in perpetuity, a message with which it now disagrees.”

The petition for a rehearing argues among other things that the 1889 joint resolution passed by the General Assembly accepting the Lee monument, its pedestal and Lee Circle upon “‘the guarantee of the state that it would hold said statue and pedestal and ground perpetually sacred to the monumental purpose to which they have been devoted’” set state policy.

That policy cannot be repealed unless a new law is enacted explicitly or by necessary implication does so, the property owners contend.

In holding that public policy had changed since 1889, the justices cited major U.S. Supreme Court cases of Brown v. Board of Education, on segregated public schools, and Loving v. Virginia, on interracial marriage, as well as the 1970 revision of Virginia’s 1902 Constitution, which reflected the 1890s public policy.

The rehearing petition noted that the justices considered actions such as the elimination of the state holiday honoring Lee, the removal of Confederate monuments on city property in Richmond and the General Assembly’s decision to remove other Confederate monuments when deciding that public policy had changed.

However, the petition argues, the justices failed to acknowledge: that the state issues license plates honoring Lee; that in 1970 the state obtained the designation of the Monument Avenue Historic District and that in 1997 the district was designated a National Historic Landmark; and that in 2006 the Lee monument was included in the National Register of Historic Places.

The justices also ignored that the 1970 revision of the state Constitution established public policy that the state preserve and protect historic sites.

“It was arbitrary, for example, for the Court to rely upon the 1970 ratification of the general prohibition against racial discrimination in the revised Constitution of Virginia and the ratification of the Thirteenth, Fourteenth and Fifteenth Amendments to the U.S. Constitution while refusing to consider the 1970 ratification of the historic preservation provision of the Constitution of Virginia,” says the petition.

The petition for a rehearing asserts that the state Supreme Court’s opinion, “creates an entirely novel legal doctrine — that the government cannot make binding agreements that require it to continue or take any actions that can be construed as engaging in government speech.”

“Will this doctrine allow a governor to cancel construction contracts for facilities that he concludes convey a message contrary to the Commonwealth’s public policy? Would it preclude the Museum of Fine Arts from agreeing to conditions on a donation of a work of art?” asks the petition.

Fourth Circuit Vacates Hirschfeld Gun Ruling


(Posted September 22, 2021) Back in July, I reported on a significant Second Amendment decision out of the Fourth Circuit. In Hirschfeld v. ATF, a divided panel of the court struck down a 1968 federal statute that barred persons aged 18 through 20 from buying guns. The panel majority ruled that the statute didn’t survive intermediate scrutiny. A lone dissenter felt that it did. The opinions were long, accumulating to well over 100 pages.

Today, that ruling comes tumbling down, without so much as a rehearing grant. What happened? Why, the original petitioner, Ms. Marshall, reached her 21st birthday. That means she can go out and buy a gun now; the statute no longer affects her.

The three judges from the original panel unanimously agree that Ms. Marshall’s majority moots the appeal and hence the litigation. Even so, that same 2-1 split persists, albeit in a muted fashion. That’s because Judge Richardson, who writes today’s majority opinion, tosses in this passage at the end:

Finally, we note that the public and the “legal community as a whole” will still retain some benefit from the panel opinion even if vacated, because the exchange of ideas between the panel and dissent will remain available as a persuasive source. (internal citation omitted)

“Oh, no, you don’t,” Judge Wynn retorts in a concurrence. (Well, he didn’t use those words; I’m borrowing some literary license here.) Here’s the essence of his riposte to the majority’s effort to give the previous long majority opinion some enduring life after its death by vacatur:

To be sure, vacated opinions do not even bear the label of dicta. So if there is any persuasive value arising from vacated opinions, it can be no more than the value of newspaper editorials. Thus, my fine colleagues’ statement that “the panel and dissent will remain available as a persuasive source” means, like newspaper editorials, readers may themselves be persuaded one way or the other by our exchanges, but these vacated opinions have no persuasive value whatsoever as to how this Court would decide this issue.

Judge Wynn notes that a ruling like this one was highly likely to be reheard en banc, and allowing lawyers and judges to cite it without that layer of screening would be unwise.

Judge Wynn is right, of course; a vacated panel opinion carries no precedential weight at all, but it’s foreseeable that someone may want to cite it. The issues here may lie fallow for quite some time, until a suitable 18-year-old can be found to file a new action. Perhaps that litigation can wend its way through the federal system in less than the three years that it takes for an 18-year-old to turn 21.


Virginia is set to remove Richmond’s Lee statue on Wednesday

Virginia is set to remove Richmond’s Lee statue on Wednesday

By Denise Lavoie, AP – 9/7/2021

RICHMOND, Va. (AP) — A towering statue of Confederate Gen. Robert E. Lee in Richmond, Virginia, is expected to be taken down on Wednesday as a symbol of racial injustice, more than 130 years after it was erected in tribute to the South’s Civil War leader.

While many other Confederate symbols across the South have been removed without public announcements beforehand to avoid unruly crowds, Gov. Ralph Northam’s office is expecting a multitude and plans to livestream the event on social media.

Northam announced plans to take down the statue in June 2020, 10 days after George Floyd died under the knee of a Minneapolis police officer, sparking nationwide protests against police brutality and racism. The plans were stalled for more than a year by two lawsuits filed by residents opposed to its removal, but rulings last week by the Supreme Court of Virginia cleared the way for the work to proceed.

Patrick McSweeney, an attorney for the plaintiffs in one of the lawsuits, said Tuesday he had notified the high court that he will ask for a rehearing, but such requests are rarely granted. From 2016 through 2020, the court granted rehearings in just two of the 86 requests it received, said L. Steven Emmert, an appellate attorney who publishes a website focusing on appellate rulings in Virginia.

“The chances are extremely remote,” Emmert said.

McSweeney also filed a motion seeking clarification from the court about its order last week, which dissolved an injunction preventing the statue’s removal. He wanted to known when it takes effect.

Attorney General Mark Herring argued the matter needed no further clarification, saying the court order “stated plainly that the prior injunction pending appeal was dissolved ‘immediately.’”

It was not immediately clear if or when the court would respond.

The imposing, 21-foot (6.4-meter) tall bronze likeness of Lee on a horse sits atop a granite pedestal nearly twice that high in the grassy center of a traffic circle on Richmond’s famed Monument Avenue

“Virginia’s largest monument to the Confederate insurrection will come down this week,” Northam said in news release on Monday. “This is an important step in showing who we are and what we value as a commonwealth.”

In Monday’s news release, state officials said that preparations for the statue’s removal will began at 6 p.m. Tuesday when crews will install protective fencing.

Once the statue is hoisted off the pedestal, it’s expected to be cut into two pieces for transport, although the final plan is subject to change, said Dena Potter, a spokeswoman for the state’s Department of General Services.

After the statue is taken down Wednesday, crews on Thursday will remove plaques from the base of the monument and will replace a time capsule that is believed to be there.

In Richmond, a city that was the capital of the Confederacy for much of the Civil War, the Lee statue became the epicenter of last summer’s protest movement. The city has removed more than a dozen other pieces of Confederate statuary on city land since Floyd’s death.

The Lee statue is one of the largest and most recognizable Confederate statues in the country, and its removal is expected to draw large crowds.

Limited viewing opportunities will be available on a first‐come, first‐served basis, state officials said in Monday’s news release. The removal also will be livestreamed through the governor’s Facebook and Twitter accounts.

The Lee statue was created by the internationally renowned French sculptor Marius-Jean-Antonin Mercie and is considered a “masterpiece,” according to its nomination to the National Register of Historic Places, where it has been listed since 2007.

When the statue arrived in 1890 from France, an estimated 10,000 Virginians used wagons to haul its pieces more than a mile to where it now stands. White residents celebrated the statue, but many Black residents have long seen it as a monument glorifying slavery.

The Northam administration has said it would seek public input on the statue’s future. The 40-foot granite pedestal will be left behind for now amid efforts to rethink the design of Monument Avenue. Some racial justice advocates don’t want it removed, seeing the graffiti-covered pedestal as a symbol of the protest movement that followed Floyd’s killing.

Lawrence West, 38, member of BLM RVA, an activist group that’s been occupying the transformed space at the Lee monument, said he believes the decision to remove the statue was fueled by the work of protesters.

“I mean, it hadn’t come down before. They (Democrats in charge of state government) had all the opportunities in the world.”

West said he would like to see the statue site turned into a community space “to cultivate all types of connections between different people.”

Supreme Court Permits Removal of Lee Monument




(Posted September 2, 2021) In two rulings handed down this morning, the Supreme Court of Virginia affirms lower-court judgments that permit the Governor to remove the statue of Gen. Lee on Monument Avenue in Richmond.

In a short published order in Gregory v. Northam, the court affirms the denial of declaratory-judgment relief to the descendants of the Nineteenth Century donors of the land on which the monument now rests. There are no sweeping public-policy pronouncements in the order; in the end, it turns on principles of real-property law.

In 1890, the Commonwealth accepted a deed to the site containing this language:

The State of Virginia, party of the third part acting by and through the Governor of the Commonwealth and pursuant to the terms and provisions of the Special Statute herein before mentioned executes this instrument in token of her acceptance of the gift and of her guarantee that she will hold said Statue and pedestal and Circle of ground perpetually sacred to the Monumental purpose to which they have been devoted and that she will faithfully guard it and affectionately protect it.

The modern heir to those grantors sought to enforce the rights that the Commonwealth thereby granted to his ancestors, as the language quoted above unmistakably creates a perpetual obligation on the part of the Commonwealth.

The justices rule that any rights reserved by the grantors created an easement appurtenant – that is, an easement that benefits a particular parcel of land – and not an easement in gross, which benefits one or more individuals. That’s dispositive here because the heir doesn’t allege that he owns any particular parcel of land that this language was intended to benefit. This means that the heir doesn’t have a property interest that gives him the right to enforce the language against the Governor.

*   *   *

The discussion in Taylor v. Northam is more sweeping and will be cited liberally in many future cases involving public policy. This appeal stems from litigation brought by property owners in the vicinity of the monument. They, too, sought a declaration that the Governor had no right to repudiate the promise made by the 1889 General Assembly when it adopted a joint resolution. This resolution authorized the Governor at that time to accept the gift and guarantee that the Commonwealth would hold the monument “perpetually sacred to the monumental purpose to which it has been devoted.”

A circuit court judge considered the matter in a bench trial. After receiving evidence and arguments, the court took the case under advisement before issuing a letter opinion last October. The court noted that a restrictive covenant like this can be enforced only if it’s consistent with public policy. The burden to establish a contrary public policy fell on the Governor here.

At trial, the evidence on this point was lopsided, judging from the recitation in today’s opinion. The Governor called two expert witnesses, eminent historians both, who told the court about the variance in public policy between the 1890 Commonwealth and today’s. The monument rose at a time when white Virginians, stung by the pain of what they saw as a punitive Reconstruction, sought to affirm their pre-war dominant position in society. The statue was for them a symbol of what we now refer to as the Lost Cause myth.

Modern society is, as we all know, quite different. The subjugation of one race by another is anathema to all but a few modern-day fringe groups. The decision to remove the statue is in line with other current legislative actions and public-policy statements.

As today’s opinion explains, the circuit court noticed “the lack of any evidence” from the plaintiffs on public policy other than those from the Nineteenth Century. They had claimed that these declarations survive today as modern public policy.

The circuit court disagreed with the plaintiffs, finding the covenants repugnant to modern public policy. It accordingly refused to enforce them and granted judgment in favor of the Governor. When the plaintiffs appealed, the circuit court sua sponte entered an order granting a temporary injunction against the statue’s removal, pending resolution of the appeal.

By current standards, that resolution was quite swift. Today, ten or eleven months after the final order below, the Supreme Court issues a 26-page opinion that affirms the judgment below, albeit on slightly different grounds. In contrast, what I’ll describe as garden-variety appellate litigation takes a year and a half or more from circuit-court judgment to SCV merits decision. This appeal was fast-tracked.

Justice Goodwyn pens today’s opinion. He begins his analysis by noting that the plaintiffs’ claims rest on two assumptions. The first is that they have an enforceable property right to control the use of land owned by the Commonwealth. The second is that the Constitution of Virginia bars the Governor from removing the statue because the legislature passed that joint resolution. He concludes, “Rightfully, neither premise survived the [circuit] court’s scrutiny.”

The monument is a form of government speech, and government speech “is a vital power of the Commonwealth.” The plaintiffs were claiming the right to force the government to embrace a particular message, one that Nineteenth Century white Virginians sought to perpetuate.

But as the Governor’s experts explained, times change. And one generation of Virginians – those with political power, anyway – cannot force later generations to agree with a message that is no longer widely held. This is all the more true of a public-policy statement in a joint resolution, a lesser form of legislative pronouncement than an enactment. That joint resolution is not, and never was, binding law; it was merely an expression of the post-Reconstruction legislature’s desires.

The Governor pointed to a budget amendment passed by the 2020 General Assembly, expressly repealing the 1889 resolution. The plaintiffs asserted that this action was unconstitutional. Today’s opinion finds that even without the 2020 act, it’s clear that the language in the resolution and the deeds violates modern public policy.

Justice Goodwyn also invokes a doctrine that I learned perhaps 30 years ago when I worked in City Hall: A government cannot contract away the power to govern. That includes the right to decide what form of public speech it will embrace. The Nineteenth Century legislature could no more bind the modern Commonwealth to express this view than it could contract away the right to set any speed limit for the new invention, the automobile, above ten miles per hour. Times have changed in the field of transportation, too.

The Supreme Court thus rules that the Governor in 1890 had no power to contract away future generations’ right to decide for themselves what forms of government speech could be expressed. The restrictive covenant is thus unenforceable.

In a short passage, Justice Goodwyn dispatches the plaintiffs’ claim that historic-preservation statutes also bar removal of the statue. He concludes that those statutes make the Governor the final authority on whether to remove memorials.

In a concluding paragraph, the Supreme Court affirms the judgment below and “immediately dissolve[s] all injunctions imposed by the circuit court.” So is the Governor free to schedule removal of the statue this afternoon? Technically, he has to await the issuance of a mandate, the formal order that carries out the Supreme Court’s opinion; but the word immediately suggests otherwise. It’s conceivable that the losing parties in today’s two decisions could petition the court for rehearing, but that would be a futile gesture that would only buy time, and very little time at that. Both of today’s rulings are unanimous.

Between the June session, when the Supreme Court heard oral argument in this case, and now, I’ve read a book entitled Robert E. Lee and Me by a retired brigadier general, Ty Seidule, who’s a historian on the faculty at West Point. The young Ty Seidule, four years younger than me, grew up in northern Virginia and received the same formal education that I got in southeastern Virginia. Our school teachers, in our fourth- and seventh-grade Virginia History classes, taught us that the Civil War was a noble effort by the South to preserve states’ rights to decide their own affairs, rather than having a federal government tell them what to do; it wasn’t about slavery. They taught us that Confederate generals and soldiers were better than their Northern adversaries; the Yankees only won because of great advantages in manpower and matériel. We learned that Reconstruction was as cruel and vengeful as I’ve described above, and that slaves were happy with their lots in antebellum life, preferring that to the savagery of their lives back in Africa.

Yes, we who grew up here in the 60s and 70s really did learn that in public school. We were tested on it to ensure that we had mastered what was in the official school textbooks. Ty Seidule got even more indoctrination in the Lost Cause myth when he went to college at Washington & Lee, where Gen. Lee was revered – in his words, on a par with Jesus himself. Only after he began his military career did he begin to question what he and I had been taught.

This essay is about two Supreme Court decisions, so I won’t spend too much time waxing eloquent about history. All I’ll say is that generations of Virginians, including me, received this set of myths as education. We absorbed it and accepted it – as fourth graders are wont to do; we didn’t talk back to our teachers, especially in the days when corporal punishment was still around – and carried it into adulthood. Some of us have realized over time that we were being lied to, and have cast off those lies. Today the Commonwealth may finally cast off one more prominent postwar lie.


SCV Panel Affirms Injunction in School’s Transgender-Policy Appeal




(Posted August 31, 2021) The Supreme Court of Virginia yesterday issued an unpublished order in an injunction appeal. The case is Loudoun County School Board v. Cross, and stems from a schoolteacher’s First Amendment suit against his employer.

Three months ago, in late May, the school board calendared discussion of a proposed policy relating to transgender students. The proposed policy came up for discussion in what I assume was a regular school board meeting. Cross, an elementary-school gym teacher, registered to speak at the meeting. When he rose and took the lectern, he told his ultimate bosses that he didn’t agree with the proposed action. Here’s what he told the board, after introducing himself:

I am speaking out of love for those who suffer with gender dysphoria. 60 Minutes, this past Sunday, interviewed over 30 young people who transitioned. But they felt led astray because lack of pushback, or how easy it was to make physical changes to their bodies in just 3 months. They are now de-transitioning. It is not my intention to hurt anyone. But there are certain truths that we must face when ready. We condemn school policies like 8040 and 8035 because it will damage children, defile the holy image of God. I love all of my students, but I will never lie to them regardless of the consequences. I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The next day was normal; the teacher came to work and conducted an ordinary day of teaching his students. But the next morning, a supervisor told the teacher that he was being placed on administrative suspension due to his comments. As today’s order reports, he was “banned from all Loudoun County Public Schools property and events.” The division memorialized this action later that day by e-mailing all parents and staff of the elementary school to describe the suspension.

The following day, a lawyer representing the teacher contacted the assistant division superintendent to demand the teacher’s reinstatement. A school board lawyer replied that no reinstatement was forthcoming. The lawyer explained that the suspension stemmed from “significant disruption” at the school and requests by several parents that their children be shielded from the teacher.

The teacher sued the school board in Loudoun County Circuit Court, alleging two claims for deprivation of his freedom of speech and two more for a denial of his right to free exercise of his religion. He sought temporary and permanent injunctive relief, among other remedies. After what looks like a hotly contested hearing, a circuit-court judge agreed with the teacher and entered a temporarily injunction directing the school to reinstate the teacher and remove its ban on his coming to division functions. This last provision is significant because the teacher had indicated that he wished to speak publicly again should this subject arise on a future school board agenda.

The board filed a petition for review under Code §8.01-626 on June 23. That, my faithful readers will recall, permits a snap appeal from the grant or denial of injunctive relief. A week later, the teacher filed a brief in response. Yesterday, the Supreme Court issued an unpublished order that decides the appeal. A panel comprising Justices Kelsey, McCullough, and Chafin unanimously affirms the grant of injunctive relief. The panel rules that, given the wide latitude exercised by trial judges considering injunctive relief, the circuit court here didn’t abuse its discretion in ordering relief.

There are some tantalizing procedural aspects to this ruling. Because the SCV has never expressly laid out a set of factors for trial courts to consider in deciding whether to award temporary injunctions, the parties below had agreed to use the federal standard set out in Winter v. Natural Resources Defense Council from 2008. The circuit court accordingly considered the teacher’s likelihood of success on the merits, his irreparable harm if an injunction were refused, the balance of equities, and the public interest. It ruled that the complaints of a few parents (the school housed almost 400 students) didn’t outweigh the teacher’s valid First Amendment right to speak on a matter of public concern.

If you were hoping for a full-throated endorsement of the Winter approach from today’s panel, take a deep breath and get used to a little disappointment. First, this is an unpub –principally because it’s the work of a three-justice panel, and only the decisions of the full court get the published treatment. Second, the panel today cites the Supreme Court’s previous guidance on temporary injunctions. I believe I’m safe in describing that guidance as vague, at least in comparison with the robust federal decisional law on the topic: “sound judicial discretion”; “preserve the status quo”; “the court shall be satisfied of the plaintiff’s equity”; “veracity and magnitude of the asserted harm.”

The panel cites the teacher’s unquestioned right to speak on matters of public concern, and then agrees that the circuit court appropriately found that the harm claimed by the division didn’t outweigh this right. The panel accordingly affirms the award of the injunction.

While it doesn’t figure in yesterday’s ruling, I invite you to consider this hypothetical scenario: Suppose that a teacher had spoken at the school board meeting, in favor of the policy. Suppose then that a few parents who objected to it on philosophical or religious grounds had called the school to complain about that public comment, and ask that our hypothetical teacher be kept away from their children. Can those parents’ complaints become the foundation for a school-division decision to suspend the teacher? Remember, governments put themselves in a bad legal position when they enact content-based restrictions on speech: Advocating for Position A is good; advocating for Position B will get you suspended.

Back to our tale: If you’re wondering whether the school board can seek rehearing from the full Supreme Court, the answer is no. It’s right there in Rule 5:20(h), which says that you can’t file a PFR after a ruling like this. The losing party after a full trial can appeal, of course. That will foreseeably come next year, when the losing party can get plenary by-right review in the newly expanded Court of Appeals.

This order comprises part of the court’s shadow docket. You won’t find a listing for it on the court’s “Appeals Granted” web page. There was no oral argument on the petition, so you can’t listen to anything meaningful to ascertain how things went. And while yesterday’s ruling is an unpublished order, it is not – at least, not yet – posted on the court’s “Unpublished Orders” web page. All of the parties’ submissions were on metaphorical paper (we’re in the age of e-filing now); all of the court’s actions in the case were conducted behind closed doors.

I’m grateful to Virginia Lawyers Weekly and to Loudoun Now for alerting me to the order. It’s so invisible that, if not for their publications, I wouldn’t have known about it, either.


Analysis of August 26, 2021 Supreme Court Opinion




(Posted August 26, 2021) After the whiz-bang developments in the last two days, it’s nice to return to the placid normalcy of a relatively low-profile opinion day. This morning, the Supreme Court of Virginia hands down a single published opinion in a Workers’ Compensation case. City of Charlottesville v. Sclafani involves an award of medical benefits and temporary total disability.

The claimant is a police officer who sustained shoulder injuries during a day of training. The training called for him to play the part of an arrestee; other officers repeatedly took turns subduing him, handcuffing him while he lay prone, and raising him off the ground. Here’s how Justice Powell, the author of today’s opinion, describes what happened:

During the training, Sclafani experienced some discomfort but there was never any significant pain. However, at the end of the day he discovered that he could not straighten his left arm to reach the steering wheel of his car and go home. As the evening progressed, Sclafani found that he could no longer move his arm up or down. According to Sclafani, he did not feel any pain until the next morning.

A few days later, the officer sought medical treatment. He was eventually diagnosed with two shoulder injuries, including a torn rotator cuff, requiring surgery. He later returned to light-duty work and eventually to his regular duties.

At a hearing before a deputy commissioner, the officer acknowledged that he didn’t feel a sudden onset of pain, but noted that at one point late in the day, he “was picked up a little weird” and felt discomfort. He identified that event as the cause of his injury.

The deputy commissioner ruled that the officer had not established an injury by accident. Specifically, the deputy found no sudden precipitating event that caused the injury. The full commission reversed and awarded benefits, saying that the day’s training session “provided the necessary rigidity of temporal precision to constitute one event.”

As a big advocate of simplicity in language, the ponderousness of that phrase caused me to shudder; but I’ll let it pass.

The City appealed to the CAV, which reversed in 2019 and sent the case back to the commission. The appellate court ruled that there wasn’t enough “temporal precision” to establish an injury by accident when the relevant window was eight hours long.

On remand, the commission, duly chastened, found that the injury necessarily happened after lunch, because the officer noted no problems before then. Reasoning that a four-hour period was sufficiently exact, the commission awarded the same benefits as before.

Now we’re headed back to the CAV, where the City argued that four hours wasn’t tight enough, either. But the court had a rude shock in store: It ruled that the court’s previous findings were the law of the case because, instead of appealing the earlier CAV judgment to the Supreme Court, the City had accepted remand to the commission. The court refused to reconsider its previous holdings and affirmed the award.

That brings us to the current appeal. The justices begin by reversing the law-of-the-case ruling. In a 1998 decision, the Supreme Court had held that a party may accept remand from the CAV without waiving the right to appeal the ultimate ruling to the SCV. The justices find these circumstances to be indistinguishable from that 1998 decision.

The justices next disagree that a four-hour window is precise enough to prove an injury by accident. They do acknowledge that an injury needn’t be instantaneous, citing a 2016 decision where they approved benefits for an injury sustained during the course of a 45-minute rescue. But they can’t stomach four hours.

Just when it looks like the officer’s claim is going down in flames, the right-for-the-wrong-reason doctrine rides in and saves the day for him. The justices recount the officer’s testimony that he had been picked up once “a little weird” and that he felt discomfort after that. This evidence, they rule today, is sufficient support for an award of benefits when considering the evidence in a light most favorable to the officer, who prevailed in the commission. The City thus wins two battles but loses the war, as the Supreme Court unanimously affirms the award of benefits.

There’s a small but interesting tidbit for appellate geeks in the congregation. What’s the difference between “right for the wrong reason” and “right for a different reason”? In a footnote on page 9 of today’s slip opinion, we learn that the court employs the former name when it expressly disapproves of the reasoning below. That’s what happened in the case decided today. In other instances, the justices may express no opinion on the reasoning below, but simply choose a different route to get to the same destination. In cases like that, they note that their reasoning is different, though the lower court’s isn’t necessarily wrong.


Fourth Circuit Affirms Death Sentence in SC Shooting



(Posted August 25, 2021) A panel of three circuit judges sitting by designation has affirmed the convictions and death sentences of Dylann Roof, who murdered nine clergymembers and parishioners in Charleston, South Carolina in June 2015. The slip opinion comprises 149 pages, so it will take me some time to finish reading it and posting commentary. I’ll do that over the course of the afternoon.

 *   *   *

The panel that considered Roof’s appeal comprised three judges designate from other circuits, as all members of the Fourth Circuit had recused themselves. The panel consisted of judges from the Third, Sixth, and Eighth Circuits.

This raises a troublesome procedural issue: If Roof wishes to seek en banc rehearing of today’s decision, can the Fourth Circuit accommodate him? I’ve never seen an en banc proceeding where all judges on the court are recused. In theory, fifteen judges designate – including the three who heard this case as a panel – could be appointed; but that’s a tremendously unwieldy prospect.

  *   *   *

The court first considers Roof’s challenge to the district court’s ruling that he was competent to stand trial. Both sides offered expert testimony, and the court eventually agreed with the prosecution’s principal expert that Roof was capable of understanding the proceedings and participating in his defense.

Interestingly, Roof fought his appointed trial team, including a highly qualified capital defender, on whether to challenge his mental state. He told his lawyers that he didn’t want his acts attributed to autism, as he meant them as a political statement. This is what he told the district court: “I get that. But the problem is … if the price is that people think I’m autistic, then it’s not worth it.” The context makes it clear that the it in the phrase “it’s not worth it” represents the murders. He elaborated, “if people think I have autism, … [i]t discredits the reason why I did the crime.”

Roof’s IQ scores indicate that he possessed above-average intelligence. The district court allowed him to testify at the competency hearing, and considered his statements in finding him competent. On appeal, Roof argued that the evidence at that stage didn’t establish that he had both rational and cognitive abilities. The Fourth Circuit panel turns that argument aside with this memorable observation: “The [district] court did not fail to consider the possibility that a cognitively capable person could act irrationally; instead, it reasonably relied on expert testimony that Roof was both cognitively capable and acting in a manner that was logically consistent, even if despicable.”

The prosecution of this case included two competency hearings – one in November 2017 before trial, and the second during the trial, when Roof sought to represent himself. For the second hearing, the district court insisted upon hearing about only matters developing after the first hearing, perceiving that the earlier competency ruling was “the law of the case.” In a technical sense, the district judge was mistaken in using this expression, because that doctrine applies to findings of law, not fact. But the Fourth Circuit panel concludes that the court acted within its discretion in so limiting the second-hearing evidence.

*   *   *

The second major category of appellate issues relates to that request by Roof to represent himself. There might conceivably be a circumstance in which a decision by a criminal defendant to represent himself is wise, but the limits of my own imagination leave me unable to conceive of such a situation, especially when, as here, the lawyer is highly capable. Nevertheless, Roof perceived that his lawyers were trying to sabotage his case, so he sought to take the helm.

The district court allowed it, directing his appointed counsel to serve in a standby capacity. Roof then conducted his own voir dire examination, and apparently did a capable job for a layman. He later agreed to allow his lawyers to resume control of his case during the guilt phase, expressly demanding to self-represent during the penalty phase. The court did as he asked.

On appeal, Roof insists that it was error to allow this procedure. He wished to prevent his lawyers from adducing mental-health evidence, and based on the court’s admonitions to him, perceived that the only way to do that was to assume control of his own defense. Relying on the recent decision in McCoy v. Louisiana, he argued that he, the client, had a right to determine the objective of his defense.

The Fourth Circuit rejects this contention, holding that the avoidance of mental-health evidence isn’t an “objective” but a tactic, and that’s a decision for the lawyers, not the client.

Roof next argued that the district court should have refused his request to represent himself at the sentencing phase. He contends that this phase is equivalent to an appeal (where you don’t have the right to self-represent under federal law) and that the Sixth Amendment assured him the right of effective assistance. The appellate panel has little difficulty in turning these arguments aside.

The panel next considers the argument that the Eighth Amendment requires consideration of mitigating evidence, so the district court erred in allowing Roof, serving as his own lawyer, to “do nothing.” This argument fails on the facts; as today’s opinion points out, Roof did plenty in the sentencing phase, including submitting “nine mitigating factors to the jury, which found six in his favor.” The court accordingly finds, as a matter of first impression in this circuit, that the Eighth Amendment provision cannot overcome the Sixth Amendment right to counsel, which includes the right of self-representation.

*   *   *

The appellate court next turns to the death sentence itself. The district court allowed the prosecution to introduce a letter that Roof wrote from prison with inflammatory language. Here; judge for yourself: “I realized it was worth it. … I did what I thought could make the biggest wave, and now the fate of our race is in the hands of our brothers to continue to live freely.” Elsewhere he expressed his hope that a race war would emerge. The prosecution called this letter “the jailhouse manifesto” and urged the jury to find future dangerousness from it, as Roof could continue to fan the flames of a hoped-for race war even from prison.

The jury seized on this, sending two questions to the court from the jury room. Both addressed whether the ability to write from prison would constitute future dangerousness (as contrasted with, say physical violence directed toward other inmates). The court declined to answer these questions, instructing the jury to use its common sense in interpreting the aggravating and mitigating factors listed in the instructions. Thus instructed, the jury returned guilty verdicts and recommended sentences of death.

Roof appealed several sentencing-phase rulings. First, he argued that the district court improperly refused two mitigating-factor instructions. These would have invited the jury to find that Roof would be in grave danger during a long prison term, and might have to serve long stretches in solitary confinement. The court found those to be too speculative: “It is inappropriate to ask the jury to imagine conditions at some imaginary prison.”

These factors don’t relate to Roof’s character, the Fourth Circuit rules today. It agrees with the Seventh Circuit that the harshness of prison conditions isn’t an appropriate mitigating factor. It also rejects a challenge to the district judge’s decision to admonish the jury to use its common sense instead of defining categories of future dangerousness. Today’s panel finds that the curt properly refused to “pick sides” in the parties’ dispute over these factors.

Next, the court considers Roof’s objections to items of evidence. He argued that a witness, one of the survivors of the mass shooting, tainted the trial when, at the end of a long answer in the guilt phase, she called Roof “Evil. Evil as can be.” But Roof didn’t object at the time of the testimony; only doing so after the court had taken a ten-minute recess. The lawyers responded that the witness was crying and “it seemed inappropriate to respond.”

The Fourth Circuit rules today that, tears or no tears, the contemporaneous-objection rule (FRE 103) requires a timely objection. By waiting to object later, the defense consigned this issue to plain-error review. Unsurprisingly, the panel finds no plain error.

Roof argued that the death penalty was cruel and unusual when applied to him because of his age and mental capacity. As for age, he cites the recent line of cases that ban the imposition of death sentences upon defendants who were juveniles at the time of the crimes. But Roof was 21 on the night of these murders. He asked the appellate court to apply the juvenile-sentencing holdings expansively, but today the fourth Circuit declines to draw the line at a point where the Supreme Court did not.

As for mental incapacity, the panel today need only cite Roof’s IQ of 125 to note that he hardly suffers from an intellectual disability.

*   *   *

The Fourth Circuit then rejects facial and as-applied challenges to some of the federal statutes under which he was prosecuted – those criminalizing obstruction with religious observances and those describing hate crimes. For the latter, the court cites what might seem at first glance to be an unusual authority: the Thirteenth Amendment. That, as even casual students of the law will know, prohibits slavery. But in 1968, SCOTUS ruled that it was a sufficient constitutional basis for law prohibiting discrimination in housing. That’s because the second section of that amendment gave Congress the “power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” The court today rules that if housing discrimination is within that ambit, then so are hate crimes.

Roof’s lawyers mount what looks like a plausible challenge to this approach. While there are no decisions limiting Congress’s power to enact appropriate legislation to carry out the Thirteenth Amendment, there is such caselaw for the next two amendments, both of which contain comparable enforcement-power sections. The most famous of these rulings is Shelby County v. Holder, in which the Supreme Court struck down Congress’s attempt to limit racial discrimination in voting issues. To this, the panel today has a simple riposte: We can’t extend these exceptions to a different amendment. Only SCOTUS can do that.

*   *   *

Roof’s lawyers aren’t through. They argued that the federal government improperly certified these crimes for federal prosecution, when the cases properly belonged in South Carolina state courts. The appellate panel assumed without deciding that the issue is justiciable and proceeded to the merits.

The court rules today that the federal government had a legitimate basis to certify the case, for two reasons. First, South Carolina doesn’t have a hate-crimes law, so that couldn’t be prosecuted outside federal court. Second, as the district court observed, this was “a mass murder at a historic African-American church for the avowed purpose of reestablishing the white supremacy that was the foremost badge of slavery in America.” That, the panel finds today, makes it entirely appropriate for federal prosecutors to take the wheel.

  *   *   *

There’s one more set of substantive rulings, but they won’t be surprising. The court rules that both of the primary offenses, prosecuted under the Hate Crimes Act and that laws forbidding interference with religious observations, are violent crimes that justify companion firearms convictions. That’s because the sections under which the government prosecuted Roof provide that if the offense results in death, the maximum penalty is life in prison. That makes these crimes of violence, and that, in turn, triggers the firearm charges.

*   *   *

Today’s opinion, at 149 pages, is one of the longest single opinions that I’ve analyzed for this website, now in its 17th year. The longest one that I can recall with certainty is Muhammad v. Commonwealth, the DC sniper appeal decided in April 2005, when this site was barely three months old. The slip opinion was 139 pages. Back then, I wrote that “I’ve read the whole thing, so you won’t have to.”

I recall well the extraordinary pain that reading the Muhammad decision brought, as the Supreme Court of Virginia recites, in dozens of pages, Muhammad’s long, malevolent campaign of terror against the citizens of Virginia.

Today’s opinion recalls the coldness of that earlier case. Roof made a conscious decision to kill other human beings, selected his target with care, and publicly declared himself a righteous warrior in a hoped-for race war before setting out for the church. It doesn’t carry quite the prolonged agony and sustained outrage of reading the Muhammad opinion – not because Roof’s murders were any less horrific, but because the court’s description of the undisputed crimes is astonishingly short – just two paragraphs, contained on a single page. The rest of the opinion is about criminal procedure.

But that visceral sense cannot diminish the enormity of Roof’s savage actions here. Because the appellate panel crafted a suitable summary of the case on the last page of the opinion, I’ll set that conclusion out here, in full.

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America. He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.) When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself. For the reasons given, we will affirm.


More Appellate News and Notes (Already!)




(Posted August 24, 2021) It was only five days ago that I posted a set of news items about the appellate world; but things haven’t stopped happening since then. Here are a couple of updates.


Fourth reopens webinar registration

I noted last week that the Fourth Circuit has scheduled a September 8 webinar on appellate practice, but that the program had filled already. The powers that be up there have heard your plaintive cries for mercy and have expanded and reopened registration. You can sign up here. Given the earlier demand leading to a quick sell-out, I would encourage you to register now.


New digs (long-term) for the state appellate courts

Here’s an interesting article from Richmond BizSense, with news of the planned relocation of the Supreme Court and Court of Appeals of Virginia. The story notes that the Commonwealth has received responses to requests for proposals to move the courts into the space now occupied by the Pocahontas Building at Ninth and Main Streets, about a block south of the current courthouse. The project would likely raze the building and construct the courthouse afresh on the site.

The project is still subject to approval and funding by the General Assembly, but if things go according to current plans, the new courthouse could be ready by about 2026. The article includes an interesting component: The original RFP described the needs of the new courthouse in terms of the current size of the Court of Appeals. As you know well, because you’ve been reading about it here for months, the CAV will grow from 11 to 17 judges in about a week. That means that the designers will have to tweak the plans a bit to accommodate six more judges (plus their law clerks, legal assistants, and so forth). Those folks will need chambers space, too.

The article prompted one musing from me on a topic than it didn’t address: Whom did the architects consult before designing the new courthouse? The Robes, of course, had to have substantial input, as did folks like the Office of the Executive Secretary, the Law Librarian, the Chief Staff Attorneys for the two courts, and the like. But did anyone consult the building’s patrons? Specifically, did they get input from the lawyers who practice there, to find out what features might be useful for those who come to conduct business in the people’s courthouse? I’m going to assume that the answer is yes, but I’d prefer to know that for sure.


A delayed arrival

Last year, I forecast that one of the Supreme Court’s opinions released in the August/September 2020 time frame would be the first case reported in volume 300 of Virginia Reports. I was wrong; the court (or possibly the reporter of decisions) slowed the pace noticeably.

This week’s arrival of the third and final set of advance sheets for volume 299 portends the delayed arrival of our nice, round number. The last case reported in that volume is Norton v. Fairfax County, 299 Va. 749 (2021). That decision came down on May 27 along with several others. That means that presumptively, Galiotos v. Galiotos, which was the only opinion to arrive on June 3, will serve as 300 Va. 1.

I got advance word of this development yesterday from a fellow rules/procedure geek, a learned trial judge who would probably prefer to remain nameless. I’ll preserve that anonymity, while noting that the arrival of the case that’ll be reported at 333 Va. 333 will assuredly postdate my legal career. Because I won’t be around to mark the occasion, you’ll have to be on the lookout for it yourself.


CAV Issues Staggering Waiver Ruling




(Posted August 24, 2021) I’ve just finished reading the newest published opinion from the Court of Appeals of Virginia, Jacks v. Commonwealth. With the great majority of the opinions I cover, I fully accept and agree with the outcome. In other appeals, some rulings cause me to squirm, and I usually say so here; in a few, I’m convinced that a dissenting opinion has the better of the debate.

Once every few years or so, I read an opinion that I find horrifying. Jacks is one of those. It’s a triumphal moment for waiver hawks, and a stunning loss for those jurists and advocates who champion stare decisis and the plain meaning of statutes.

The case started as a DUI prosecution in Rockbridge County. We don’t know much about the underlying facts, but the defendant and his lawyer appeared for trial in general district court, where the court entered a judgment of conviction on March 16, 2020.

If that date sounds familiar, it’s because it’s the exact date of the first declaration of judicial emergency by the chief justice in response to the Covid pandemic. That declaration and a series of subsequent orders from the Supreme Court tolled all case-related deadlines in district- and circuit-court litigation. The tolling period ran from March 16 to July 19, a period of 126 days.

To appeal a GDC conviction to circuit court, a defendant has to note an appeal within ten days. Jacks’s lawyer noted such an appeal on June 3, well beyond the ten-day limit, but well within the tolling period. Because the ten-day provision is unquestionably a case-related deadline, the appeal was timely.

Except that wasn’t how the court upstairs saw it. On June 10, the file arrived in circuit court from GDC; six days later, a circuit-court judge entered an order without notice to any party. The order denied the appeal as untimely, remanded the case to GDC, and dispensed with endorsements of counsel under the provisions of Rule 1:13.

This reference triggers a side rant: The more I see it in use, the more I’m convinced that this waiver provision in Rule 1:13 must die. In the interest of expediting the entry of orders, the rule allows a court to take over the steering wheel and enter any order it wants, without giving the parties a say in how it’s phrased or what it achieves. It also eliminates the chance to make a contemporaneous objection.

Here’s a worst-case example of how the rule invites abuse: A judge who desires to avoid appellate scrutiny can quietly enter a final order dismissing a case – or granting millions of dollars in damages – and then put the document in a desk drawer for nine weeks before forwarding it to the clerk. At that point, the mandatory 30-day deadline for noting an appeal has passed, as has the 60-day safe harbor in Code §8.01-428(C).

No, this nightmare isn’t likely to happen. But it can, and there’s no relief available for the unknowing victim.

Less malevolent problems can crop up, such as where a judge enters a Rule 1:13 endorsement-waiver order that contains inadvisable language, words that the lawyers would never have agreed upon. And I’ve actually seen this one in one of my appeals: A judge takes a matter under advisement and then quietly enters an interlocutory order with no notice to anyone. The parties later submit a final order in the case that assumes that the judge never entered the previous order, so the appellant appeals that “refusal.” Imagine what happens in the appellate court in that situation.

There’s far too much room for mischief here to warrant continuation of such a rule. The parties, through their lawyers, deserve to be heard on the content of court orders. The minor timing advantage of allowing a judge to short-circuit the process like this isn’t worth the damage that this rule can do.

Back to our tale. Jacks learned about the dismissal order and timely appealed to the Court of Appeals. In a published opinion handed down this morning, a majority of the CAV panel affirms, holding that Jacks didn’t preserve his objections below. Senior Judge Annunziata, writing for Judge Malveaux, notes that Jacks didn’t object to the dismissal in circuit court.

In oral argument, Jacks pointed to Code §8.01-384(A), which contains this helpful language: “[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him … on appeal.” He argued that he had no idea that a circuit-court judge had his file in the judicial lap with pen in hand, poised to strike. This statutory language is there to provide some succor to an appellant in Jacks’s position.

The majority was unmoved; it holds that Jacks didn’t file a motion to rehear that could be adjudicated within 21 days. That, the court rules, was his “opportunity to object.” The opinion goes on to state that if the reverse were true, any Rule 1:13 endorsement-waiver order could be appealed without any contemporaneous objection.

The majority also rules that Jacks has waived the statutory argument because he didn’t raise it in his opening brief as Rule 5A:20 requires. That rule is designed to give the court and the appellee fair notice of exactly what the appellant is appealing.

After reading this summary, you may be wondering what’s so horrifying about this ruling. Judge Huff, writing in dissent, fills in that blank. He notes that the literal wording of the statute protects an appellant who isn’t able to object “at the time [the ruling] is made,” not at some undefined later point. That unquestionably applies here, as neither Jacks nor his lawyer were anywhere in the vicinity when the trial judge took pen to paper to dunk the case. The majority opinion admits as much, but then goes on to rule against Jacks anyway.

But Judge Huff is right on this point: If applying the statute’s words literally may have uncomfortable consequences for other appeals, it’s the legislature’s job to address that, not the judiciary’s. The majority has today rewritten the statute so that it reads, “no opportunity to object to a ruling or order at any time before the court loses jurisdiction.” This strained reading provides less protection than the legislature had intended.

There’s more. Judge Huff quotes this compelling passage in a Supreme Court opinion: “The statute imposes no requirement that when the contemporaneous objection exception applies, a party, if able, must file a post-conviction objection or otherwise bring the objection to the court’s attention at a later point in the proceedings.” The justices have expressly rejected the path that the majority takes today.

Judge Huff also disagrees with the Rule 5A:20 holding, noting that exactly no one was surprised by the statutory issue. The AAG who argued the appeal preemptively and forcefully argued against it in the Court of Appeals, and no member of the panel raised the rule as a bar to considering the appeal, so as to give Jacks the opportunity to explain why it shouldn’t be a fatal bar. (This is a nonjurisdictional briefing requirement, so a waiver isn’t mandatory.)

True confession time: Over the course of my appellate career, I’ve made a substantial amount of money by pointing out my opponents’ waiver mistakes. But we all prefer that appeals be decided on the merits instead of on procedural default. This statute plainly covered Jacks’s situation, but the CAV majority essentially edited the law so as to limit its effectiveness. That’s not the way you’re supposed to interpret remedial statutes like this.

Ponder the fate of a defendant in Jacks’s position. The judicial-emergency tolling orders plainly stopped the clock in his GDC appeal, so the circuit court committed an obvious error in dismissing the case. He loses anyway. In the CAV, the plain language of the remedial statute directly protects him. He loses anyway.

Rulings like this can only impair Virginians’ confidence in the judicial system. When an appellate court rewrites a statute to embalm and preserve a plainly erroneous ruling, what’s John Q. Public to think?

Update August 25: My pal John Koehler has posted an essay about this decision on his blog. He offers some additional insights that I commend to you. Because John is a former court insider, a career appellate judicial law clerk, I pay attention when he offers his views of matters like this. Further update: The Court of Appeals has done the right thing. The court granted en banc rehearing, and on August 24, 2021, issued a unanimous opinion that reverses the judgment and remands the case. Senior Judge Annunziata doesn’t take part in the rehearing, as only active judges of the court participate in those. Judge Malveaux changes her vote.


A Scan of the Appellate Landscape




(Posted August 19, 2021) Looks like no new opinions from the Robes by the James today, so let’s scan the horizon to see what’s happening in the appellate world.


More remote arguments

No doubt courtesy of the Delta variant of Covid, all three appellate courts that convene in Virginia will continue to receive oral arguments remotely for now. A couple of months ago, I entertained hopes that the courtroom doors might reopen for the argument dockets in September. In the interim, an undeniable spike in the pandemic, here in Virginia and elsewhere, has made that hope a fleeting dream.

The Court of Appeals of Virginia – with seven new judges – will continue remote writ arguments through the end of the year. That court’s June 29 order states that it will try to convene in-person merits arguments depending on a number of factors, specifically including the availability of courthouse space in the southwest, northern Virginia, and Tidewater. I haven’t seen a more recent order that modifies that, but at this point, I seriously doubt that we’ll see in-person arguments on Tuesdays starting September 14.

The Fourth Circuit and the Supreme Court of Virginia have recently confirmed by orders that advocates in the September sittings will have to log in and argue remotely.

I long for a return to in-person arguments. Arguing to a camera feels different, and I miss the majesty of the columns and the drapes and the arced bench in the SCV’s main courtroom.


New acting Solicitor General

I missed this press release when it arrived two weeks ago: Virginia Solicitor General Toby Heytens, recently nominated for a seat on the Fourth Circuit, has stepped down as SG to return, for now, to his previous teaching gig at my alma mater, U.Va. Law. His deputy, Michelle Kallen, will serve as Acting SG for now. The release notes that Virginia now has, for the first time, an all-female Office of the Solicitor General.

This is a big deal. I’m fond of noting that there are no schnooks at the Solicitor General’s Office. I’m usually referring to the one in Washington, but it’s true in Richmond, too. The Solicitor is the highest-ranking practicing lawyer in government. The only higher-ranking lawyers are the Attorney General and the Chief Deputy AG, and both of those are administrators. The Solicitor is the one who advances to a lectern – assuming we ever get to approach a lectern again; see the previous entry here – and says, “May it please the Court …”

If you follow matters of sex diversity, you’ll note that this continues a now-obvious trend. In addition to Michelle, you’ll find a woman as acting Clerk of the Supreme Court (Muriel Pitney), as Clerk of the Fourth Circuit (Pat Connor), and as Clerk of the CAV (Cyndi McCoy, who will retire next month in favor of her long-time chief deputy, John Vollino). Four of the newly elected CAV judges are women. And in Washington, the President has nominated Elizabeth Prelogar as Solicitor General of the United States. She’s currently filling that role in an acting capacity, but I expect the Senate to confirm her.


Appellate training

Looking to up your game? Are you interested in becoming one of the 50 or so new appellate lawyers that Virginia will need by the end of the year, if not sooner, but you want a bit more training? If that strikes you as interesting, now’s your time. Here’s what’s coming up:

September 8 – The Fourth Circuit will present a three-hour webinar on appellate practice. Bad news: The seminar is now fully subscribed, so you can no longer register. Good news: The court indicates that it will post online the course materials and recordings of the first two hours.

September 9 – The fifth Virginia Appellate Summit will convene in Richmond, live for now. This is the preeminent gathering of Virginia’s appellate bench and bar; if you miss this one, you’ll have to wait another three years or so. Discounted early-bird registration ends August 31.

November 11-14 – The ABA Appellate Summit, formally known as the Appellate Judges Education Institute, will meet in Austin, Texas. This is the biggest and best nationwide gathering in the appellate realm. As with its Virginia cousin, the current plan is to meet in-person, subject to pandemic developments between now and November. Reduced-cost registration is available until September 30, but I wouldn’t wait; the last Summit, held in Washington DC in 2019, sold out and registration was cut off.


New home for JAPP

Here’s another instance of my being late to the party. For years now, I’ve been a member of the ABA’s Council of Appellate Lawyers. I’m on the national Executive Board, but somehow, important news about one of my favorite CAL perks had escaped me.

For many years, each member of CAL received a free subscription to the Journal of Appellate Practice and Process, published at the law school at the University of Arizona Little Rock. We only got two issues a year, Spring and Fall, but for appellate geeks, there’s always something cool to read.

Because it came so seldom, I hadn’t noticed that I hadn’t received a new issue in almost three years. In that time, the journal found a new home, at the University of Arizona. There’s more: The new publishers decided to end the printed copies I had been used to receiving, and go fully online.

And there’s even more: The new publishers have decided to abandon the subscription model. The journal is now available online to anyone, free, at this link. Fair warning: If you’re part of the appellate guild, you need to be careful lest the journal become a time vampire for you. There’s so much great stuff there, you can get sucked in and lose contact with real life. You have been warned.


A horror story from the commonwealth to our west

This one comes courtesy of my pal Steve Minor, the Sage of Bristol. The Kentucky Supreme Court has dismissed an appeal of a $1.2 million judgment against Metropolitan Louisville. A police lieutenant obtained the judgment against the municipality in a case involving a “sexting” text from another lieutenant.

Louisville appealed to Kentucky’s intermediate court, which affirmed. The county attorney decided to appeal onward, seeking discretionary review in the state supreme court. He prepared the motion and an office manager dropped the package off in a FedEx pickup box before the June 1 filing deadline.

Alas, FedEx delivered the package on June 3. In Kentucky, no deadline extensions are available in discretionary-review appeals. Because the motion hit the clerk’s office two days late, the supreme court summarily dunked the case.

At the risk of having half of you accuse me of plagiarizing my own previous posts, today’s lesson is that you must never play around with jurisdictional deadlines. Always assume that something will go wrong, even in a ministerial process, and plan for that.

The county attorney here figured it would be safe to assume that all processes would flow smoothly, and got caught when one of them didn’t. The article mentions near the end that two easy means were available to ensure a timely filing. One is registered mail, which under state law means the document is considered filed on the day of mailing. The article doesn’t disclose why the attorney eschewed this safe method.

The other safe approach is hand-delivery in the clerk’s office. That is, someone in the office gets into a car and drives the 50 miles to the state capital and walks the motion up to a counter; that person walks away with a date-stamped copy that should be ironclad dismissal insurance. This time, we have an explanation why no one did that: The county attorney’s office forbids its law clerks to make such deliveries because of limitations in auto-liability insurance.

Isn’t this one of the reasons why God invented brief-printing consultants? Here in our Commonwealth, several such vendors, skilled professionals all, maintain offices within a three-block walk of the Supreme Court Building. In a pinch, any of them (this one’s mine) will send a courier to hand-file a document that isn’t required to be e-filed. I’d wager a modest sum, American money, that consultants are similarly available in Frankfort; but no one thought to use one.

Don’t let this be you. File early, as early as practicable. Use a means that assures you of proof of timely filing. Now you can get a good night’s sleep.


Schapiro: It’s not exactly the ‘People’s Court’ — yet

Schapiro: It’s not exactly the ‘People’s Court’ — yet

By Jeff Schapiro, Richmond Times-Dispatch – 8/12/2021

The Virginia Court of Appeals was invented in 1985 — largely a clunky compromise among the lawyers, nearly all of them centrist and right-leaning Democrats, who guaranteed that their profession and their party was in the majority in the legislature.

These lawyers — folksy types with general practices in the countryside, blustery urban litigators specializing in personal injury cases and business-oriented hustlers from the suburbs — wanted a court with limited jurisdiction, handling criminal, domestic and administrative issues. Their livings depended on it.

Thirty-six years later — and on a single afternoon — Virginia’s intermediate court was reinvented.

It was the doing again of Democrats, many of them well left of their forebears and in lines of work other than the law. With its new, near-universal jurisdiction and expanded membership, the court — a tier below the Virginia Supreme Court — could do what courts here rarely do: Shake things up.

It comes down to the appeals court’s new faces: among them four women and four Blacks, a Latino and a Jew. Half are from Northern Virginia, a Democratic stronghold that went begging for seats on the top courts when Republicans controlled judicial patronage. Beyond demographics, though, is a diversity of experience.

Two are trial judges, in Norfolk and Fairfax. Two are premier appellate practitioners from white-shoe law firms. Another is a family law specialist who was a clerk to a former appeals court judge. Several have been public defenders in the state and federal courts or spent their careers providing legal services for the poor.

This doesn’t mean the court is about to become the “People’s Court.”

It does mean a slice of the legal community often ignored by the former Republican majority is poised to exert unprecedented influence. Its presence is a signal to minorities for whom the courts can seem mysterious if not menacing. Its rulings could affirm criminal justice reforms hastened by the police killing of George Floyd.

Those lawyering on behalf of those often overlooked by the law were largely shut out of the judiciary by Republicans, who, during their almost-uninterrupted control the General Assembly from 2000 until 2020, stacked the courts with local prosecutors happy to carry out the GOP majority’s tough line on law and order.

“A judge’s decision comes, in part, from his or her background,” said Steve Emmert, a Virginia Beach lawyer and authority on the state’s two appellate courts. And that “different background,” he said, can have a “multiple effect on the entire breadth of Virginia law.”

Nearly all of the appeals court’s current judges were county or city prosecutors or senior lawyers in the attorney general’s office. According to Emmert, the court — he referred to it as the “former government lawyers’ club” — ensured criminal convictions were routinely affirmed, at a rate of nine in 10.

The court is increasing from 11 to 17 judges. Democrats selected eight — six newbies, two replacements. It will fall to the court’s chief, Marla Decker, to bring old and new together. A Republican former public safety secretary and deputy attorney general, Decker has a history of working with both parties and the affability that makes it easier.

The rulings and the case law that emerge from the expanded appeals court could be very different, shaped by the very different attitude of the legislature’s new Democratic majority, one that Republicans aim to topple in November’s elections for the House of Delegates.

With the end of jury sentencing and judges now determining penalties for convicted criminals, trial courts could come under closer scrutiny by the appeals court. This is guaranteed by the elimination of an only-in-Virginia procedural barrier. Democrats this year pushed through a right of appeal in all criminal and civil cases.

The upshot: Virginia’s court system will more closely resemble its federal counterpart, with appellate judges considering nuts-and-bolts matters, such as errors at the trial level, and the state Supreme Court — through an increasingly selective docket — addressing the loftier concerns of law and constitutionality.

For Republicans who fume Democrats are packing the appeals bench with liberals, the Supreme Court remains their ace. Republicans packed it with conservatives. And even with the retirement next year of Justice Bill Mims, an independent-minded former legislator and attorney general, the court will still lean right.

Elections this year for the House and in 2023 for the Virginia Senate will determine the arc of the state’s courts for decades. Though the state constitution requires judges be picked by the legislature, ultimately, it’s the whim of the majority party, making for secretive horse-trading. That clearly shaped the selection of the new appeals judges.

Carl Tobias, a law professor at the University of Richmond who studies the intersection of the courts and politics, wonders if a remedy for the opacity of judicial screening in Virginia might be found in the federal system, with nominees not just publicly considered by lawmakers from the get-go, but vetted by an independent agency, much as the FBI does.

That might be good government. However, it could diminish — slightly — the legislature’s grip on judgeships.

And Democrats have been out of power too long to consider giving up any of it.

Virginia’s Appellate Bench Swells




(Posted August 12, 2021) This has been a signal week in the appellate world here in the Commonwealth. On Tuesday, the General Assembly selected eight new judges for the newly expanded Court of Appeals of Virginia. As promised, the Democratic majority greatly expanded the court’s diversity in a number of respects, including race, sex, geography, and practice area. The court is getting its first-ever jurist who comes from a domestic-relations practice, a prominent legal-aid director, and multiple members who handled criminal defense. Who would have imagined that, even three years ago?

The court gets one more valuable asset: Three appellate lawyers will receive robes. Frank Friedman of Roanoke, Lisa Lorish of Charlottesville, and Stuart Raphael of Arlington are all seasoned appellate advocates who will bring that perspective to the bench. Among Virginia’s current appellate jurists, only Justice Steve McCullough of the Supreme Court and Chief Judge Marla Decker of the Court of Appeals can claim that background.

Why does this matter? For one thing, those three will have a shorter learning curve in adapting to the job. For an easy example, they’re already attuned to the importance of the standard of appellate review, which in my opinion is case-dispositive in about 85% of all appeals. They’re also accustomed to reviewing the trial record the way appellate justices and judges do, focusing on exactly what’s in the record instead of what a trial lawyer recalls.

I also believe that a judge who’s spent plenty of time on the other side of the lectern may be a tad more understanding of what it means to practice appellate advocacy, of what life is like in our trenches. They may see things from the practitioner’s perspective, and that can’t hurt.

There’s a down side to this: These three appointments in particular carve a deep gouge out of the pinnacle of Virginia’s appellate bar. All three of these new judges were unmistakably among the top tier of their trade. When added to last December’s retirement of my pal George Somerville and the recent nomination of Solicitor General Toby Heytens to a seat on the Fourth Circuit, the cadre of elite appellate advocates is noticeably smaller now. There’s even more room at the top now, folks; as I preached here recently, there’s never been a better time to be an appellate lawyer in Virginia.

I understand that the new judges will take office in the September-to November time frame, so they’ll have time to get acclimated before business starts booming on January 1. I wish them all well, and I look forward to following this wholly remade court.


Analysis of August 5, 2021 Supreme Court Opinions



(Posted August 5, 2021) The Supreme Court issues three published rulings this morning.


For the second time in four weeks, we get a ruling in a malicious-prosecution appeal. Last month, in Dill v. Kroger LP, the justices reinstated a struck malicious-pros claim while affirming the dismissal of a companion count for abuse of process.

Today the court takes up Eubank v. Thomas, where a couple faced a short-lived prosecution for alleged zoning violations at their home in Mathews County. When the local prosecutor dismissed or withdrew all charges, the couple filed suit against the county administrator and two planning and zoning employees. The action asserted that the county wanted to acquire the couple’s land cheaply, so the defendants field sham violation notices, hoping to force the couple to demolish their home and thereby reduce the property value. This would permit the county to condemn the land at a cheaper price.

The defendants demurred, noting that the couple hadn’t appealed the zoning administrator’s determination that their house was nonconforming. They claimed that this determination was accordingly a “thing decided” that cannot be collaterally attacked.

The circuit court sustained the demurrer and dismissed the action. Today, in what will seem eerily familiar to fans of last month’s Dill decision, the Supreme Court reinstates the malicious-pros claim, holding that the couple alleged actions by the county-employee defendants that, if proved, would support such a claim. The court affirms the dismissal of the abuse-of-process count, again holding that there was nothing irregular about the process used in the prosecution.

Because the ink on Dill is still fresh, this might have come down as an unpub if not for the “thing decided” issue. The court rules today that a zoning administrator’s decision is not a “thing decided” in a tort action like this — remember, this is no longer a land-use proceeding or even a criminal prosecution — so it isn’t a bar to maintaining this action.

Tragedy underlies today’s decision in Lopez v. Intercept Youth Services. Intercept operates something called a “YouthQuest Independent Living program for at-risk youth” in Prince William County. This case involves the murder of an Intercept employee by one of those at-risk youths, a resident at the facility. The decedent worked as an evening support counselor, which required her presence at the site. She kept her door locked, but residents were allowed to knock and ask permission to enter.

The assailant here asked for entry to the counselor’s office to get some medications. Because administering those meds was part of her job, she allowed the resident inside, where he strangled her to death.

The decedent’s personal rep sued Intercept for wrongful death, alleging that several of the employer’s actions or inactions proximately led to the death. The employer pleaded the benefit of the Workers’ Compensation bar, asserting that the personal rep’s sole remedy was a Comp claim. The circuit court agreed and dismissed the action.

Today, the Supreme Court affirms. The only disputed issue here is whether the death arose out of the employment. This morning’s meticulous opinion from Justice Kelsey, writing for a unanimous court, lays out allegations in the complaint to establish that the risks that resulted in this death related to the counselor’s employment; she didn’t endure a risk common to others in the area. In essence, she was chosen for this terrible crime because her job placed her there.

Comp bar cases cut both ways. Sometimes an employer tries to establish that the Act doesn’t cover a specific injury, so it asserts that the injury doesn’t arise out of and in the course of the employment. Other times, as here, an employer fully embraces the Act’s coverage so it can avoid exposure to enormous tort damages.


Domestic relations

There’s a very short published order in Barnes v. Berry, an adoption case from the Court of Appeals. The CAV found last year that a circuit court had erroneously ruled that a putative father hadn’t timely registered as such. The circuit court had held that the father thus had no standing to participate in adoption proceedings. The CAV sent the case back.

The case took a detour upstairs after that, as the justices agreed to take a look; but today they affirm on the same reasoning in the CAV’s opinion. Justice Mims appends a dissenting opinion in which he argues that the statute creating a deadline for fathers to register is ambiguous. He doesn’t argue in detail that the case should come out a particular way; he instead calls on the legislature to sharpen the wording to eliminate the ambiguity. This emphatically isn’t my usual swimmin’ hole, but I sense that this should be a fairly easy legislative fix — something that probably occurred immediately to the court’s only former state legislator.


Justice Mims to Leave SCV Bench




(Posted July 28, 2021) Paul Fletcher of Virginia Lawyers Weekly has just broken the story that Justice Bill Mims of the Supreme Court of Virginia will step down from the court next year. The justice, who turns 65 next summer, wants to pursue other things after a very lengthy career of public service in all three branches of Virginia government. (Let’s just say that he has plenty of credits in the Virginia Retirement System.)

As usual, I’m not going to list here the many career milestones of the former legislator and Attorney General. You can find that elsewhere. My take on him is that he’s an unfailingly polite jurist with a devilish sense of humor, and is absolutely delightful in private conversation. I’ve spoken with him at bar functions and have always come away with a smile. He is, however, a bulldog questioner; if he senses that a lawyer is being evasive with a tough question, he won’t let go.

One technical point about this timing: Because his current term ends about three months before his 65th birthday, there will be a short period in which he isn’t able to serve as a senior justice. He would be eligible to do so after he turns 65. But eligible doesn’t mean will, and Paul’s story doesn’t indicate whether Justice Mims will choose to continue to serve the court in this fashion.

The number of pending and foreseeable judicial vacancies in Virginia’s appellate courts is almost unparalleled in the Commonwealth’s history. The only year like one this was 1984, when the legislature got to choose ten judges of the brand-new Court of Appeals of Virginia (birthdate January 1, 1985). In the next several months, the General Assembly will select seven new CAV judges plus Justice Mims’ successor. In 2023, Chief Justice Don Lemons will face a mandatory retirement, as will a couple more judges from the CAV. And if the legislature promotes lower-court judges to those seats, there will be even more robes to hand out. I’ve previously opined that it’s a good time to be an appellate lawyer in Virginia, with all the new hires in the very near future; it also seems to be a good time to be a judicial candidate.


Virginia’s Appellate Guild Sighs




(Posted July 26, 2021) We are all a little poorer today. Supreme Court of Virginia Clerk Doug Robelen’s years-long battle with cancer has ended. On Friday morning, Doug drew his last breath.

Others will recount his professional accomplishments, culminating in his appointment as Clerk a bit over two years ago. I choose instead to mention his unfailing professionalism, usually accompanied by a reserved but playful sense of humor. I’ll miss our conversations in which we asked about each other’s daughters, both of whom had the same name. “How’s your Caroline doing?”

When, as here, a ruthless disease claims a 55-year-old with much more life due to him, we naturally reflect on the tragedy of his family’s loss and on the pleasant memories of our interactions with a friend, now beyond our reach. As I’ve noted on this site, none of us are truly gone, even in death, as long as there’s someone out there who remembers us, and cherishes the memories.

I’ll add that a time like this is a good reminder to reach out to those you care about. Don’t wait. Don’t ever put yourself in a position where you have to say, “Thank you,” or “I apologize,” or “I love you” to a tombstone. Convey it now.

Doug Robelen’s style included one nod to tradition: He predominantly wore bow ties. A couple of generations ago, bow ties were the mark of the three professions: doctors, lawyers, and architects. My grandfather, Stan Emmert, was an architect and I always saw him wearing one; I always wear one on his birthday. Today I’m wearing such a tie in Doug’s honor.

On February 25, 2019, the Supreme Court held a ceremony to mark Doug’s elevation from Chief Deputy Clerk to Clerk of Court. A few of his friends managed a low-level conspiracy – we wore bow ties to the event. Someone had the foresight to snap a photo of those conspirators; it’s reproduced below, with Doug occupying the place of honor in the center. Rest well, my brother; your pain is at an end.


Analysis of July 22, 2021 Supreme Court Opinion




(Posted July 22, 2021) The Supreme Court hands down a single published opinion this morning. Potter v. BFK, Inc. is a wrongful-death action; the primary issue is the statute of repose.

Potter is the personal representative of his late son’s estate. The son, a truck driver, was killed on the site of a stone quarry where a stone company manufactured sand from crushed stone. The company’s system employs a silo to store the sand and a product called a Buell Classifier to separate fine sand from super-fine, and convey the resulting material into the silo. The son was killed when the classifier malfunctioned, causing him to be buried in the material.

The father sued several defendants, including the manufacturer of the classifier. The manufacturer raised the bar of the statute, noting that the classifier had been installed onsite eight years before the death and ten years before the father filed suit. The circuit court conducted a hearing and ruled in favor of the manufacturer.

Today the Supreme Court reverses and remands the case for trial. The dispositive issue is whether the classifier is equipment or ordinary building materials. The statute expressly excludes equipment from its coverage; if the classifier is equipment, the suit is timely.

Justice Powell, writing for a unanimous court, surveys the court’s previous holdings on the seemingly fuzzy boundary between equipment and ordinary building materials, and finds that the classifier is indeed equipment. In her summary, she notes that the classifier “has several qualities that we have recognized as being characteristic of equipment: the manufacturer exerts some degree of control over its installation and maintenance, it is not required for the operation of the building, and it is neither fungible nor generic.” She also points out in a footnote that the manufacturer itself regularly refers to the classifier as equipment – a factor that, while not dispositive, certainly looks like a smoking gun in a dispute like this.

If you’ve litigated statute-of-repose cases before, you may have raised a mental objection that the statute excludes “equipment or machinery,” and the opinion doesn’t address the second of these key words. That’s because the father’s assignment of error didn’t assign error to the circuit court’s refusal to find that the classifier was machinery. In the end, it doesn’t matter.

Finally, if you were hoping for a new bright-line test to establish the boundary between those products that fall within and without the statute, get ready for disappointment. The justices decline to do so, meaning that you’re left with the existing patchwork quilt of caselaw to sort out on which side of the boundary your case belongs.


Analysis of July 15, 2021 Supreme Court Opinions




(Posted July 15, 2021) The Supreme Court of Virginia hands down three published opinions this morning. Two of those involve the Commonwealth’s dominant provider of electric power, Virginia Electric and Power Company.


Service of process

The primary issue in Evans v. Evans is service of process under Virginia’s longarm jurisdiction statute. It’s a suit challenging a final divorce decree on the grounds that the divorce court didn’t acquire personal jurisdiction over the husband.

The spouses married near the turn of the millennium and lived together here in Virginia Beach for five years before separating. The next year, they executed a property settlement agreement that obligated the husband to pay $1,000 per month in child support starting in July 2005.

The wife moved to Martinsville during their separation, and eventually sued for divorce there. Her complaint stated that she last had contact with him about a month earlier, and stated that his last known residence was in Virginia Beach. She attached an affidavit asserting that the husband couldn’t be found despite due diligence. In a later deposition, she explained the diligence that she had used: She called his family members.

The clerk of court in Henry County issued an order of publication that ran for four weeks in the newspaper there. The husband didn’t appear in response to the publication, so the Henry County Circuit Court shortly thereafter entered a final decree of divorce in which it ratified and confirmed the PSA and incorporated it into the March 2006 final decree.

Time passed; a lot of it. In 2019, the husband went to Henry County and moved the court to reopen the case. He asserted that the court hadn’t validly obtained personal jurisdiction over him, so the support order was void.

The issue here is whether this was an appropriate use of the longarm jurisdiction statute. For those of you who endured Civil Procedure in law school, your first thought must be that this procedure only governs suits against nonresidents. But a line of caselaw indicates that it can apply to Virginians, too.

The circuit court considered the matter and agreed with the husband. On appeal, the Court of Appeals agreed, but the justices decided to review the question.

The Supreme Court’s docket comprises two kinds of cases: We call them error correction and law development. The latter category includes appeals that raise previously undecided issues of significance to the field of law. In my judgment, the SCV writ panel took this case for that reason. Justice Kelsey’s opinion for a unanimous Supreme Court fully agrees with the underlying judgment, and explores why this form of substituted service won’t do in a case like this.

First, please understand that a circuit court can enter a divorce decree, one that dissolves the bonds of matrimony, without acquiring personal jurisdiction over a defendant. Dissolving a marriage is an in rem proceeding. But an award of support is in personam; for that, you have to tag the defendant somehow with process.

The court notes today that in the spectrum of process service, an order of publication is the least satisfying, the “lowest quality of notice.” The court rules today that it’s usable only as a tertiary approach. The first and best method is by personal service; the second is substituted service, such as by delivery to a family member or by posting at the defendant’s home. Here, the wife went straight to the least effective means, and didn’t even list the parties’ marital home as a last-known address for the husband.

There’s some important language in today’s opinion that challenges the efficacy of service by publication unless “all other alternatives have been diligently exhausted.”

The wife had one arrow left in her quiver. She argued that by statute, a divorce court is empowered to incorporate PSAs, including support awards, into divorce decrees, even when service is by publication. This looks promising, but the argument dies at the hands of a familiar executioner. The wife hadn’t made this argument in circuit court or in the Court of Appeals, so the justices decline to consider it.

Finally, a closing footnote refuses the husband’s request for attorney’s fees, finding that “he has no just basis for seeking an award” of them. The footnote is very short and doesn’t go into detail. The only hint that we get is that the husband’s appellate counsel shares the same name as the husband; the husband’s name includes a “Jr.” It’s possible that the Robes decided not to award fees where the representation was within the family.



A short opinion from the chief justice decides Kinsey v. VEPCO, from the April session. This is a claim by a mother and daughter in Rockingham County, alleging that they suffered a number of debilitating personal injuries when VEPCO placed an experimental smart meter on their home. The description of their symptoms is alarming: major moods swings, hair loss, insomnia, an endocrine disorder, and even epilepsy, among other things.

The two eventually figured out that the utility had installed the meters without notice to them, and contacted VEPCO to seek their removal. The utility wouldn’t budge, insisting that the meters were safe. It eventually offered to move the meters to a pole several feet away from the home, adding the condition, “but you’ll have to pay for the move.”

VEPCO eventually offered customers the opportunity to opt out of the experimental program. The mother and daughter speedily took the utility up on that, but the utility still refused. It eventually replaced the meter with another one, which had its transmitter disabled.

The mother and daughter sued for damages; VEPCO demurred and filed a special plea, claiming federal preemption. After argument, the circuit court granted the plea and dismissed both lawsuits.

The Supreme Court affirms that ruling today. The court finds that FCC regulations cover this turf. The other and daughter argued that the original smart meters were defectively installed and operated, but the Supreme Court rules that that wasn’t the basis of their complaints. They instead alleged that the ordinary radio frequency emissions from the device caused their injuries. Since those emissions are governed by the FCC regs, this state tort claim is barred.



Have you ever wanted to compete against one of the dominant electric-power providers in Virginia, VEPCO or Appalachian Power Company? The General Assembly is looking out for you. Despite the big companies’ huge head start and protected market position, you can offer competing services to customers. You just have to satisfy one little requirement: You have to offer 100% renewable-source energy.

A company called Constellation NewEnergy, Inc. decided to do just that. To generate the energy, it used something called a pumped storage hydroelectric facility. Today’s opinion in VEPCO v. State Corporation Commission describes what this setup entails: “a configuration of two water reservoirs at different elevations that can generate power (discharge) as water moves down through a turbine” and then “draws power as it pumps water (recharge) to the upper reservoir.”

It seems complex to me; but usually in these utility cases, there are a lot of zeroes, so I have no doubt that it made good economic sense for Constellation to do it. Having received some ominous throat-clearing noises from VEPCO about its setup, the company petitioned the SCC for a declaration that its process was indeed renewable energy.

To complicate matters, the 2020 General Assembly stepped in and amended its statutory definition of renewable energy. This amendment expressly excluded pumped storage hydroelectric facilities. VEPCO’s lawyers no doubt licked their metaphorical chops as the parties drew battle lines.

The SCC conducted a hearing and ruled that the Constellation generation was “derived from falling water” and thus met the pre-2020 statutory definition. It handed Constellation an even greater victory by ruling that the new definition wouldn’t apply to Constellation’s contracts entered into before the effective date of the amendment.

VEPCO did the natural, the commendable, thing by appealing. (We here at VANA always appreciate it when someone appeals.) In doing so, it didn’t have to run the writ-stage gantlet; SCC appeals are of right in the Supreme Court of Virginia. Today we get that rare treat, a divided opinion with a compelling dissent to challenge the majority.

Justice Chafin writes for three other justices in accepting the SCC’s rulings. The court finds that the plain meaning of “falling water” is good enough to decide the first issue in the case. There’s no obligation in the statute that the water has to be part of a normal watercourse – what you might think of when you envision a waterfall or water running through turbines in a dam.

The court then finds that where Constellation had entered into contracts before the effective date of the statute, the old definition should continue to govern. Holding otherwise would impair existing contract rights. For future contracts, Constellation has to arrange for a qualifying renewable-energy source; but for its preexisting contracts, it’s good to go with this facility.

Perhaps you’ve been reading along and nodding in agreement. If so, you need to heed the admonition that trial judges administer to jurors: Wait to hear both sides before you make up your mind.

Justice Kelsey writs today’s dissent on behalf of the chief justice and Justice McCullough. The dissent agrees about the first issue: Under the old statutory definition, the pumped storage hydroelectric facility meets the definition of renewable energy. But the dissent offers a decisively different take on the second question.

The dissent concludes that the prospective-only application of the statutory change applies to services provided after the July 1, 2020 effective date of the new act. That is, the new act has no effect on past sales, but governs all sales that occur thereafter.

Under this analysis, Constellation sells electricity to its customers on a monthly basis. The contract doesn’t contemplate an advance purchase, but ongoing monthly purchases of power. This is the way you pay your electric bill, right?

Every contract is subject to the possibility of future changes in law. No one can insulate himself from a change in law by contracting for the perpetual application of prior or existing law.

Turning to the impairment-of-contract issue, the dissent notes that it can still deliver electricity to its customers; the General Assembly “simply took one renewable-energy option off the table.” And when the legislature modifies a law like this, it uses the police power to do so, and every contract is subject to the exercise of that power.

The caption of this appeal might have portended a dry discussion of arcane principles of little interest to those outside the energy-regulation field. But it turns out to contain a spirited debate about the effect of statutory change.


Fourth Circuit Issues Major Gun Decision




(Posted July 13, 2021) Because the subject of today’s sermon begins in the Johnson Administration, I think it’s fitting to recount a story — perhaps apocryphal, but too good not to share — from that era. In 1964, when President Johnson decided to run for a full term as president, he needed to find a vice-presidential candidate. (The 25th Amendment, which provides for filling a vacancy in the vice presidency, didn’t pass until 1967.)

Johnson called Hubert Humphrey and asked in his slow Texas drawl, “Hubert, if I pick you for my vice president, can you keep your mouth shut for four years?” “Yes, sir, Mr. President,” came the answer, “you can count on me, sir.” There was a pause before Johnson resumed, “There you go … interruptin’ me already …”

In 1968, Congress passed legislation that prohibited persons aged 18 through 20 from buying handguns. In Hirschfeld v. ATF, a panel of the Fourth Circuit evaluates whether that statute infringes the Second Amendment right to keep and bear arms.

The opening paragraph of Judge Richardson’s majority opinion telegraphs the answer, and the result of this appeal:

When do constitutional rights vest? At 18 or 21? 16 or 25? Why not 13 or 33? In the law, a line must sometimes be drawn. But there must be a reason why constitutional rights cannot be enjoyed until a certain age. Our nation’s most cherished constitutional rights vest no later than 18. And the Second Amendment’s right to keep and bear arms is no different.

This is a challenge to that 1968 law by a Virginia resident who, according to today’s opinion, has a fairly compelling reason to carry a handgun. She had obtained a protective order against her abusive ex-boyfriend, but he failed to show for court. He had a prior arrest for unlawful possession of a firearm, so it’s a fair inference that he’d have one if he came after her.

The young lady wanted the security of buying a gun from a licensed gun dealer; not the risk of buying from a private owner. But that federal law prevented any such dealer from selling to her. Hence this litigation.

A district court upheld the statute, applying intermediate scrutiny; but today a majority of the Fourth Circuit panel strikes it down. Judge Richardson, joined by Judge Agee, holds that this situation calls for at least intermediate scrutiny, as it effectively prevents 18-20 year olds from buying a gun at all. This isn’t the equivalent of a time, place, or manner restriction for speech; it’s a complete shutoff.

The majority holds that this complete ban isn’t “a reasonable fit between the challenged regulation and a substantial government objective.” The stated purpose of the law was to control crime, but the court today holds that this doesn’t justify a categorical ban, especially where there’s little or no evidence of a causal link between the gun sales and the perceived crime levels.

In reviewing Judge Richardson’s analysis, you’ll probably find his evaluation of the early Republic’s militia laws most enlightening. Courts in these cases look to the meaning of the words (here, of the Second Amendment) at the time they were used. That means 1791, the date of ratification. And back then, 18-year-olds were expected to answer the call to join a militia.

This law, then, infringes on the constitutional right to keep and bear arms, and the majority finds that it isn’t narrowly tailored to achieve a compelling government need.

Arguing in dissent, Judge Wynn urges that the courts leave this question to the democratically elected branches of government. He notes that Congress saw a problem of gun violence by young adults in the 1960s, and after extensive legislative hearings, chose a means to deal with it.

Judge Wynn’s approach is to accept the majority’s two-prong test – first, whether the law burdens a constitutional right, and if so, whether the law survives intermediate scrutiny. He assumes the first prong, but parts ways with the majority on the second. He notes that the two major recent Second Amendment decisions from SCOTUS – DC v. Heller and McDonald v. Chicago – each retained a number of undefined limitations on their holdings. Both of those decisions had struck down gun limitations, but each contained language assuring readers that reasonable limitations on gun ownership were still permissible.

Judge Wynn finds this statute to be one such reasonable limitation. He cites decisions affirming longstanding conditions and qualifications on the commercial sale of arms, and would hold that this is just such a restriction. This, in turn, prompts a riposte from Judge Richardson, who notes that the restrictions in those cases applied to sellers, while this one is a wholesale ban on buyers.

A few idle notes about this decision: First, it’s long. The majority opinion is 83 pages and is followed by several pages’ worth of tables, setting out the militia laws in the colonies both before and after ratification of the Constitution. He includes 77 footnotes, many of which are quite detailed. Judge Wynn’s dissent exceeds 50 pages and includes 34 footnotes.

By Fourth Circuit standards, this decision has been quite a while in coming. The parties argued it at the end of October, 8½ months ago. For comparison’s sake, the median time between oral argument and decision in the court is 2.8 months. The complexity of the dueling opinions is a good explanation for the delay.

Assuredly, this isn’t the last word; ATF will likely seek en banc rehearing or petition the Supreme Court for cert. While the grant rates for either petition are dauntingly small – 0.3% for en banc rehearing and single digits in SCOTUS – the issues here make a grant more likely.

Finally, I write to note with admiration the tone of these two opinions. They’re respectful, cordial, and civil toward each other. Judge Wynn has long been an advocate of such civility. In his relatively short time on the court, I’ve noticed the same kind of respectful differences of opinion in Judge Richardson’s writings. As a professional consumer of appellate opinions, I appreciate that. There’s none of the flame-war language of other Fourth Circuit judges who shall remain nameless, but whose initials are Judge Wilkinson and Judge Niemeyer. To be sure, those unnamed jurists’ opinions make for entertaining and usually compelling reading; but I prefer the gentle form of disagreement that we see today.


Supreme Court relaxes pandemic restrictions

Supreme Court relaxes pandemic restrictions

By Jason Boleman, Virginia Lawyers Weekly – 7/12/2021

In extending the declaration of judicial emergency on June 29, the Supreme Court of Virginia marked a milestone in the commonwealth’s legal system’s response to COVID-19.

For the first time in more than a year, circuit courts do not need an approved plan by a panel of Supreme Court justices in order to conduct jury trials.

“Chief judges and presiding judges of all courts should exercise their discretion in determining how best to safely operate their respective courts, including how to safely conduct jury trials,” the court said. Additionally, the order recommends judges follow the guidance of the Centers of Disease Control and Prevention and the Virginia Department of Health in deciding how to best operate their respective courthouses.

The shift in policy represents the end of the most visible and major effect of the judicial emergency after more than a year. Prior to the June 29 order, circuit courts had to submit plans on how their courts were going to resume jury trials to a panel of Supreme Court justices for approval. Once approved, the court had to adhere to the approved plan – any edits to the plan required re-approval from a panel of justices.

“The most dramatic effect of the judicial emergency, the sharp statewide curtailment of jury trials, is over; that decision is now in local judges’ hands,” Virginia Beach attorney L. Steven Emmert said via email. Emmert added that the change in policy marked “a major milestone in the judicial emergency.”

In an order on June 22, 2020, the Supreme Court of Virginia initially announced the creation of a “Jury Task Force” to address the reinstatement of jury trials in Virginia. Prior to then, jury trials had been effectively halted since the judicial emergency first went into effect in March 2020. The order also asked chief circuit court judges to create a plan to be reviewed by the panel on how the court would safely conduct jury trials. The first plans were reviewed and approved in August 2020.

Currently, the Virginia courts website lists 119 approved circuit court plans for jury trials. The Henrico County Circuit Court conducted the first jury trial during the COVID-19 pandemic, a criminal trial held Sept. 15, 2020.

Virginia Lawyers Weekly previously reported on the resumption of jury trials in the spring, finding that many locales had similar rules requiring mandatory masking, social distancing and physical barriers to attempt to reduce the transmission of COVID-19. Additionally, some courts reported having trouble filling juries and holding trials despite having approved plans, citing the worsening of the pandemic during the fall and winter months.

The high court had already begun relaxing restrictions in recent extensions of the judicial emergency. On May 17, the court amended its 21st order extending the judicial emergency by allowing judges to modify restrictions related to masks without seeking further review.  The change was made after Gov. Ralph Northam lifted Virginia’s universal mask mandate due to updated CDC guidance allowing vaccinated individuals to go without masks in most settings.

The most recent order, the 25th extension of the judicial emergency, is effective through Aug. 11. Despite the change in jury trial policy, courts are still required to screen people entering the courthouse for illness as long as the VDH recommends. Additionally, the tolling of Speedy Trial Act deadlines continues through the judicial emergency.

“The ongoing judicial emergency caused by the COVID-19 pandemic continues to impede the operation of Virginia’s courts,” the order states.

Court of Appeals
On June 29, the Court of Appeals of Virginia also released an order on operations during the pandemic. The order, the court’s sixth, extended in part a Feb. 22 order on the operations of the court during the public health emergency.

“Going forward into the ‘new normal,’ the Court’s goal remains to balance vital health and safety concerns with the critical need to ensure access to justice for all and to continue to provide essential services to those with business before the Court,” the order states.

The order from the Court of Appeals stated that the court will conduct its upcoming oral argument writ dockets via videoconference through the end of 2021. The court also said it will continue “its liberal extension of time policy” for pleadings due to be filed where persons are impacted by the pandemic. Like the Supreme Court order, the Court of Appeals left decisions on safety protocols in the hands of local courthouses and chief judges.

The order from the Court of Appeals is effective “until further order of the Court.”

Analysis of July 8, 2021 Supreme Court Opinions




(Posted July 8, 2021) A peek at the National Hurricane Center’s website tells me that I have just enough time to sneak in analysis of this morning’s two published opinions from the SCV before we get an unwelcome visit from an intruder named Elsa.


Criminal law

The claim-of-right defense to a robbery charge is at the heart of Pena Pinedo v. Commonwealth, from Rockingham County by way of the Court of Appeals. The defendant here was a partner in crime, literally, with another man; the two went into “business” selling drugs and guns. The partner’s paramour stole over $5,000 of the proceeds of this enterprise, and the two businessmen decided to get it back.

The two used an intermediary to set up a charade drug deal with the paramour. She, her current boyfriend, and a third person showed up at the appointed location, at which point the two businessmen pointed a gun at the paramour’s boyfriend, demanding money. Pena Pinedo took “a wad” of money from the boyfriend, and then shot him. The boyfriend died a few months later of his wounds.

A grand jury indicted Pena Pinedo for murder and robbery, among other things. The defense asked the circuit court for an instruction on claim of right: “If you believe the defendant took the property he is charged with stealing under a belief that he had a good faith claim of right to take it, then, even though his belief was mistaken, you shall find the defendant not guilty of robbery.”

The trial judge refused the instruction, finding that there was no meaningful evidence that any claimed belief was in good faith, and expressing doubt “whether an individual could have a good faith claim of right to recover stolen contraband.”

The jury convicted Pena Pinedo of all charges. He appealed, but the CAV affirmed in a published opinion. The justices decided to take a look, but today they, too, unanimously affirm. Justice Chafin’s opinion notes that a claim of right can’t be a dishonest pretense. She also writes that the money was “a form of derivative contraband. Therefore, Pena Pinedo could not have possessed the money in good faith.”


In Dill v. Kroger LP I, the justices take up malicious-prosecution and false-imprisonment claims filed by a shopper who was abortively prosecuted for shoplifting. A store manager saw a woman place an unscanned package of fruit into a shopping bag. She walked over and notified the shopper that the package hadn’t been scanned; the shopper took it out, scanned, it, and replaced it in her bag before paying and leaving.

This inspires a slight digression. You’ve probably noticed that grocery stores are increasingly steering customers toward self-service checkout lanes. This cuts down on the number of cashiers on the payroll, passing onto the customer the work of checking out. Accordingly, you’ll frequently see stores with a dozen or more cash registers, only about two of which are manned (usually with a queue of shoppers waiting in them, thus leading some of them to give up and head for the self-serve lane). I’ve wondered how stores control shoplifting in such situations; they likely perceive that the payroll savings will outweigh the losses from theft. I guess that’s business.

Back to our tale: The manager believed the shopper to be one Shirley Dill. She consulted an “asset-protection specialist” with a report of what she thought was an attempted theft. The specialist looked into the transaction and learned that the shopper used a loyalty card registered to another person; not to Dill. (Side note: Who uses a loyalty card when shoplifting? Isn’t that like handing a bank teller a stickup note written on the back of your own deposit slip?) This discovery led to further evidence: Video recordings of the same shopper stealing about $40 worth of stuff.

The specialist went to the police, relating – based on the manager’s report – that the shopper was Dill. A police investigator went to a magistrate and obtained warrants charging Dill with petty larceny. He then called Dill and invited her to come in to be booked. She professed her innocence, but did as she was asked the next day.

Here’s where the lawyers ride in and save the day. Dill borrowed money to hire a defense lawyer. He looked at the video and called the prosecutor, saying, “you would have to be blind to think that that was Shirley Dill.” The prosecutor agreed and dropped the charges.

The next step in our saga is a civil suit against Kroger and the store manager, claiming malicious prosecution and false imprisonment. The circuit court overruled the defendants’ demurrers and the case proceeded to a jury trial.

That process stopped short after Dill presented her evidence and rested. The circuit court granted a motion to strike, concluding that “this is a mistake case.” The court found that neither the manager nor the store acted with malice; they were just trying to prevent crime. The court also ruled that the defendants weren’t liable for false imprisonment because they didn’t participate in the arrest. The proceedings ended there; the court dismissed the case.

Today the Supreme Court begs to differ with the judge on malicious prosecution. It rules that the questions of probable cause and malice should have gone to the jury. In ruling that the whole thing was just a mistake, the trial judge had weighed the evidence and decided the case instead of allowing the jury to do its job. The court also failed to view the evidence in a light mot favorable to Dill, the nonmoving party.

The Supreme Court affirms the dismissal of the false-imprisonment claim, because regardless of probable cause, Dill was arrested pursuant to a valid warrant. But the court sends the case back to Staunton Circuit Court for retrial on malicious prosecution.


The Giuliani ruling

The Giuliani ruling

Letter to the Editor, The Washington Post – 7/7/2021

Regarding the June 29 Tuesday Opinion column by Bruce A. Green and Rebecca Roiphe, “You can suspend Giuliani’s law license, but not his First Amendment rights”:

I’m an unhesitating advocate of lawyer honesty, for the good of our profession, and I read with astonishment this patently incorrect passage: “It is unlikely that . . . when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession.”

Any dishonesty by lawyers fuels the false narrative that all lawyers are dishonest, willing to do anything to gain an advantage for themselves or their clients. The professors’ later assertion that “lawyers have the right as private citizens . . . to lie about the government” is one of the most irresponsible things I’ve ever heard from anyone with a law degree. Any such lie damages the fabric of our constitutional democratic republic, because faith in the legal system is essential to the functioning of our society. The courts exist as a nonviolent alternative for the resolution of disputes.

Finally, though I agree that John Q. Citizen has a First Amendment right to lie — see the recent Supreme Court decision over the Stolen Valor Act — nonlawyers don’t take an oath of office and subject themselves to disciplinary regulation by the state bar. In Virginia, where I practice, the oath includes an undertaking to conduct ourselves “faithfully, honestly, professionally and courteously” in our practices. A lawyer should expect it to be enforced against him if necessary.

Steve Emmert, Virginia Beach

Analysis of July 1, 2021 Supreme Court Opinions




(Posted July 1, 2021) The Robes by the James hand down two published rulings this morning. The first, Merid v. Commonwealth, comes down in a short order that affirms a CAV decision without any independent reasoning. It’s probably published solely because of a footnote that observes, “The Supreme Court of the United States decided Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596 (2021), after the Court heard oral argument in this case. The Court finds that the judgment of the Court of Appeals is consistent with Caniglia.”

The other decision comes in a wrongful-death appeal. Lucas v. Riverhill Poultry, Inc. generates mainly evidentiary issues and one thermonuclear waiver ruling.

This litigation relates to a single-vehicle, double-fatality crash. The two victims occupied the cab of a tractor-trailer that ran off the roadway on Interstate 81 and crashed in the median. One victim, named Hilliard, was found dead in the cab, his body between the driver’s and passenger’s seats and his left hand on the steering wheel. The other victim, Lucas, was found outside the truck.

The passenger’s personal rep filed suit, claiming that Hilliard had fallen asleep at the wheel. One of the primary issues at trial was which one of the two was driving the truck. Hilliard was employed as a truck driver by Riverhill Poultry, the truck’s owner; Lucas was Hilliard’s “friend and neighbor.” Despite this, the defense contended at trial that Lucas was driving at the time of the crash.

The State Police investigative report and the medical examiner’s report seemed helpful to the plaintiff here. The examiner reported that Hilliard had been driving the truck, and that his blood indicated the presence of drowsiness-inducing medications. But in discovery, she acknowledged that she was relying on the State Police report to tell her who was driving. She acknowledged that “she could only speculate about what occurred” and about whether the medications affected Hilliard that fateful morning.

Ah; the S-word. Where expert opinion is concerned, any acknowledgement of speculation in the opinion-formulating process is usually deadly. But the plaintiff had an answer for any such objection: By statute, medical examiner’s reports “shall be received as evidence in any court or other proceeding ….”

The trial judge didn’t bite; he excluded the medical report on hearsay grounds. He also excluded other expert testimony from the plaintiff and refused to instruct the jury on the fact that falling asleep at the wheel is negligence. That jury returned a defense verdict. The personal rep got a writ.

Today, in a unanimous opinion from the pen of Senior Justice Millette, the Supreme Court affirms. As for the statute, the court rules that it only applies to factual statements in the report, and even then, only those that were within the observation of the preparer. The purpose of the statute is to avoid having the subpoena a public official to authenticate an official document; not to throw out the hearsay rule entirely. In reaching this conclusion, the court cites decisions interpreting the criminal-procedure parallel statute, all of which had come down this way.

The court also affirms the exclusion of the plaintiff’s other two experts, finding that the trial court acted within its discretion in so ruling. For one of those experts, the plaintiff falls victim to a deadly waiver trap that looks brand-new to me. I believe that this one deserves extensive discussion.

The plaintiff offered testimony from Hilliard’s family doctor. That evidence looked pretty damning: abnormal results from a sleep study just two months before the crash. The doctor urged Hilliard to follow up with a sleep specialist to evaluate sleep apnea, but he never did that.

In a pretrial hearing, the circuit court found that this evidence was “too attenuated.” It ruled that the testimony was inadmissible at trial, “without prejudice to [the plaintiff], by counsel, moving the court to reconsider its ruling based on developments at trial.”

Now, what does that mean? Is the evidence excluded, or not? Suppose nothing does change at trial; has the plaintiff preserved the issue for review without making that motion to reconsider?

This landmine explodes today. The personal rep didn’t renew the motion at trial, and today the justices rule that that waives the issue for review.

I believe that this waiver ruling is incorrect. By definition, a trial judge makes an interlocutory ruling whenever he enters any order except one that enters final judgment. The court can’t convert an interlocutory ruling into a final one by, for example, titling it, “Final Order,” or by stating that the ruling is final. The court always has the power to revisit interlocutory rulings until 21 days after entry of final judgment. This is true no matter how loud a thunderbolt accompanied his honor’s ruling before trial.

This pretrial ruling was interlocutory, too. The judge didn’t have to add the “without prejudice” baggage train to make it so. But if he hadn’t added that, can we all agree that the exclusion of the expert before trial would be fully reviewable on appeal?

Absolutely, it would. Now, if some major development at trial makes the calculus suddenly and dispositively different, I can see a waiver. For example, if a trial court sustains a motion in limine in a criminal case to exclude certain exculpatory evidence based on a lack of foundation, and the prosecution’s evidence at trial later provides that foundation, then the defendant has to raise the issue at trial; he can’t rest on his pretrial argument.

But that’s not what happened here. Nothing changed. Today’s opinion doesn’t identify anything like that, anyway. This ruling essentially converts the trial court’s pretrial ruling into a non-ruling – the functional equivalent of declining to rule. It also means that a litigant must move at trial to reconsider every adverse pretrial ruling, on pain of losing the issue for appellate review. (Remember, all pretrial rulings are interlocutory, whether the judge describes them as such or not.) That may not have been what the Supreme Court had in mind today, but it’s unmistakable from pages 13-14 of today’s slip opinion.

In the past several minutes, as I’ve been composing this essay, I’ve heard from several of my appellate pals, thoroughly professional and highly experienced practitioners all, who are puzzled by this holding. They agree that it does more than break new ground in waiver jurisprudence, already a dangerous labyrinth. It arguably makes all pretrial rulings subject to a mandatory requirement of reasserting them at trial, on pain of waiver. That’s never been the rule here in Virginia. It looks like it is now. (My pals also had other pertinent observations. Rather than steal their ideas for my essay, I’ll let them wade in separately.) (Update July 9: My pal Jay O’Keeffe has now done just that, in this essay.)

Because one of my goals on this site is to protect you, my dear reader, from falling into hidden traps, I here offer you the following advice: At trial, you must formally move the circuit court to reconsider any adverse pretrial rulings, and ask the court to change those to rulings in your favor.

I note that this advice can have impractical consequences. This case provides an easy example. Let’s suppose that the plaintiff here had moved the trial court to reconsider the exclusion of the primary-care doctor. Suppose that the court thinks better of its pretrial ruling and decides to allow the testimony after all. That means that the plaintiff now has to get the doctor into court on a few hours’ notice (unless the plaintiff had gone to the expense of subpoenaing him and holding him on a very expensive standby pending a ruling on the reconsideration motion). Now the defense lawyer is hollering, complaining that she hadn’t prepared a cross-examination for this witness. She also insists that if she’d known that the family doctor would testify, she’d have brought in a counter-expert. Now it’s too late to do that; she wants a continuance of the trial. You see where this is going?

This ruling is wrong. It will lead to confusion and mischief in the future. The Supreme Court should at least have evaluated the issue on the merits instead of interposing an inadvisable waiver holding that will dramatically affect an enormous number of future lawsuits and appeals.

One other ruling sticks out in my mind from today’s opinion. The justices find that the trial court acted within its discretion in refusing an asleep-at-the-wheel instruction: “A person who falls asleep at the wheel is negligent.” The court first rules that there’s insufficient evidence to make out a jury issue on whether Hilliard fell asleep while driving. At least in the absence of the excluded expert testimony on this issue, that’s a reasonably close call and I won’t fuss.

But the court unfortunately adds a belt to the suspenders by ruling that another jury instruction adequately covered the issue – the familiar duty-of-lookout instruction. The court then cites a 1943 SCV holding that “To fall asleep at the steering wheel is a clear violation of the duty to keep a proper lookout.”

I wholeheartedly agree; but the point is that the jury doesn’t read SCV opinions from 1943, or any other year. The plaintiff’s proposed instruction would have told the jury what the law is. That’s an instruction’s job. This isn’t as glaring an issue as the waiver ruling discussed above, but I believe that today’s opinion would have been better without the second line of reasoning on the instruction.


Update on Appellate Events




(Posted June 30, 2021) With the close of the year’s second quarter, let’s take a moment to see what’s happening in the greater appellate landscape.


ABA Appellate Summit

Registration is now open for the preeminent nationwide gathering of appellate jurists and advocates. The Appellate Judges Education Institute will convene November 11-14 in Austin, Texas. I’ve attended several ABA Appellate Summits (as AJEI is informally known) and have enjoyed each one immensely. Here’s a clue: I get the great majority of my annual MCLE credits by teaching; this is where I go to learn. You’ll also find a terrific, collegial atmosphere and an opportunity to socialize with colleagues from across the nation.


A Virginia Summit, too

This year will also feature an appellate summit here in the Commonwealth. The triennial Virginia Appellate Summit will meet September 9 at McGuire Woods’s beautiful offices in downtown Richmond. The Virginia Bar Association sponsors the full-day program. Registration isn’t open yet, but here’s a link to the event page. If you attend, then yes, I’ll see you there.


SCOTUS OT’20 winds down

The traditional end of the US Supreme Court’s term, and the beginning of the summer recess, is June 30. Last year, the justices had to nose into July to finish issuing opinions because of a later-than-usual final sitting. This year, the Court has handed down 64 opinions; the final two will come tomorrow, July 1.

Last evening the Court made news by not issuing a published opinion. In a shadow-docket ruling, a bare majority of the Court refused to lift a stay of the CDC’s nationwide moratorium on evictions. Justice Kavanaugh filed a concurrence in which he agreed with the dissenting justices – Thomas, Alito, Gorsuch, and Barrett – that the CDC exceeded its authority in imposing the moratorium. But he reasons that it’s about to expire anyway. That will come as cold comfort to the group of real-estate agents who had sued.

While I don’t have an informed view on the basis for the Court’s ruling, I do believe that the moratorium is a taking of private property – here, a contract enforcement right – for a public purpose without just compensation. The nation’s landowners, in my opinion, have a colossal takings claim in inverse condemnation.


2Q David-Goliath Index

Because the next possible opinion day for the SCV comes after the calendar turns to July, let’s look back at how the Supreme Court of Virginia has decided those merits appeals with a big-guy-vs.-little-guy dynamic. In the past few years, we’ve seen the balance of those decisions shift from roughly 50-50 to a wholly lopsided set of outcomes, with our Goliaths repeatedly whomping poor David for quite a while now.

In the second quarter, the battle was almost even in published opinions. Our Davids won six times against seven for our Goliaths. But before you sense a turning of the tide in favor of the little guy, we have to add in the unpubs, and those fell 8-1 in favor of the big guys. That gives us a D-GI for the second quarter of 32/68 – that is, Davids have won 32% and Goliaths 68%. For the year, the index stands at 28/72. That’s fairly close to last year’s final index, which had Goliaths winning 70% of appeals.


CAV news

Yesterday, the Court of Appeals of Virginia issued its sixth operations order under pandemic conditions. The order provides that the court will continue to receive writ-panel arguments by videoconference through the end of the year. But there’s a ray of sunlight: Beginning September 1, the court will endeavor to convene in-person merits arguments. This assumes that neither the Governor nor the Supreme Court will withdraw permission for that. Importantly, it also turns on the availability of local courts for appellate panels. The judges hear arguments regionally, and for those regions outside the Richmond area, the court depends on the hospitality of local circuit courts. Those courts may be struggling to find room, as they’re no doubt busy trying to clear out their own trial-docket backlog.

The CAV is also in the news in the Governor’s summoning the legislature to a special session in early August. One of the items of business will be “appointing judges.” The Governor’s proclamation doesn’t specify which judges, but filling the seven vacancies in the CAV has to be a priority. The court begins to exercise plenary appellate jurisdiction January 1, and the new judges will need to be in place and settled into their chambers before then.


One more program note

On July 22, I’ll be moderating a small-panel discussion on appellate mediation. The American Bar Association is producing the webinar in which Brendon Ishikawa of the California Court of Appeal and Dana Curtis, a former Ninth Circuit Mediator, are the speakers.

I could call each of them mediation gurus, but I continue to believe that you need a beard and a mountaintop to be one of those. Neither Brendon nor Dana has a beard, and I don’t think they hang out on mountains. What I can tell you is that they literally wrote the book on appellate mediation. Having met them in our preparatory session, I can assure you that they’re both engaging speakers, so you won’t endure 90 minutes of droning lectures. Registration is open; ABA members get a sharply discounted rate.


On Professionalism, Part 2




(Posted June 25, 2021) Early in this site’s history, I posted an essay entitled, “On Professionalism.” It’s a reasonably close transcript of a speech I had given at the Wiggins School of Law, part of its series of professionalism lectures. It remains one of the handful of essays of which I’m proudest.

Developments this week move me to address this topic again, as one key aspect of professionalism is very much in the news. I recognize that you come here for news and analysis relating to appeals; but man (and woman) does not live by appeals alone.

*   *   *

Here’s the oath that we attorneys commit to when we’re admitted to practice law: “I do solemnly swear or affirm that I will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia, and that I will faithfully, honestly, professionally, and courteously demean myself in the practice of law and execute my office of attorney at law to the best of my ability.”

Look at that string of adverbs. Look carefully. If you’re a practicing lawyer here, you swore to meet each of those obligations. It isn’t a conditional obligation – “I’ll behave courteously unless I can get away with being a jerk” – it’s mandatory.

One of the adverbs is honestly. Honesty is one of the foundations of professionalism. Of all professional oaths, ours is one of the few of which I’m aware that require honesty. It isn’t in the Hippocratic Oath that physicians embrace. Certified public accountants promise to “be straightforward and honest” in their professional and business relationships, and military enlistees and officers arguably accept a duty of honesty, as their oath refers to the Uniform Code of Military Justice. But there are very few others, at least as far as I’m aware.

Honesty is a requirement in the Rules of Professional Conduct, too. It’s right there in Rule 4.1: “In the course of representing a client a lawyer shall not knowingly … make a false statement of fact or law ….” Note that this isn’t limited to in-court situations – it applies wherever you’re representing a client. That can include talking to a reporter on the sidewalk outside the courthouse, or giving an interview on television. You’re expected to be honest. Always.

Despite this, the world is full of crooked-lawyer jokes, giving society the impression that a lawyer will lie whenever it’s advantageous for him or his client. But this, for the most part, is fiction. Dishonest lawyers make news precisely because they’re so rare. Sensible lawyers understand that their personal credibility is essential to the practice of law. Your believability puts a ceiling on your effectiveness as an advocate. You want that ceiling to be sky-high, and lying only lowers it.

Here’s an illustration, courtesy of my appellate pal George Somerville, now basking comfortably in the confines of a 9-to-5 retirement. He tells the tale of an oral argument in the Supreme Court of Virginia in the early 1990s. Justice Barbara Keenan was the new justice on the block back then, and occupied the far right seat on the bench (from our perspective, anyway). A few moments after a lawyer rose to argue a case, Justice Keenan felt a nudge; the justice next to her handed her a note. It was from Chief Justice Harry Carrico, and read, “This lawyer misrepresented the facts in a case in this Court in 1962.”

As I said, sensible lawyers know never to burn their personal credibility. This is part of the reason why State Bar ethics investigations are comparatively rare. Of the roughly 32,000 active members of the Virginia State Bar, there are active Bar investigations on only about 1%. The other 99% of us manage to steer a straight course, including being honest.

And that brings us to Rudy Giuliani. You’ve seen the news that yesterday, an appellate court in his home State of New York handed down a unanimous ruling that suspends his license to practice law, pending the outcome of a full disciplinary trial. A pendente lite suspension is a rare thing; in most cases that don’t involve criminal conduct by the lawyer, the accused is allowed to continue to practice while the disciplinary proceeding unfolds.

But here, the court rules that the Attorney Grievance Committee “has made a showing of an immediate threat to the public, justifying respondent’s interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”

That’s powerful language. What was the underlying “incredibly serious” offense? Dishonesty. The court lays out a string of false statements that Giuliani issued in a variety of forums. It finds that he lied on the radio, that he lied in podcasts, that he lied in the famous Four Seasons Landscaping press conference, that he lied in an appearance before a state legislative committee, and that he lied in court proceedings, all in the course of his representation of his clients: the former president and the Trump campaign. The court turns aside a destined-to-fail effort by Giuliani to claim that he has a First Amendment right to say what he said.

While the First Amendment permits lying without criminal sanction – see the Stolen Valor Act decision from SCOTUS a few years ago – it’s different with lawyers. Ordinary citizens don’t voluntarily take an oath of honesty, and subject themselves to the jurisdiction of State Bar ethics investigators.

Giuliani’s very public misconduct hurts us; all of us. It fuels the false narrative that ours is a dishonest profession. This is entirely aside from the “immediate threat to the public” that the court found; the judges there refer to the tendency for Giuliani’s words to cause unrest or worse, such as what we saw on January 6 at the Capitol. I’m talking about a lesser but still important danger, as it affects how society views our profession.

This case illustrates the boundary between practicing in the court of public opinion and practicing in a court of law. For nonlawyers, it’s possible to say anything you want, no matter how daffy or detached from the truth, in the court of public opinion. There, the worst that can happen to such a speaker is that he’ll be disbelieved or maybe ostracized. In a court of law, though, there are penalties for not telling the truth: contempt, sanctions, even a perjury prosecution.

Yesterday’s ruling illustrates that we lawyers are bound by our oaths of honesty even when we appear in that court of public opinion. If we’re to be effective as a profession, it has to be that way. Our commitment to professionalism isn’t situational; for the public to have confidence in us, we have to behave as professionals everywhere, all the time. This includes honesty in public settings.

“Be the change that you wish to see in the world.” This wonderful advice is incorrectly attributed to a lawyer named Mohandas Gandhi, the Mahatma. What he actually said is more nuanced, but let’s go with that original text for our purposes. If you want the legal profession to get the respect that it deserves, that the nation needs it to have, start within. Recall those adverbs, and commit to living them – not just in court; not just in pleadings and briefs; but in your contacts with society. This is how we rinse the foul taste of the Giuliani affair from our mouths.


Two Significant Rulings from the Fourth Circuit




(Posted June 24, 2021) June often turns out to be high season for major rulings, and today is no exception. The Fourth Circuit Court of Appeals hands down two interesting decisions today that share a common theme.

In Courthouse News Service v. Schaefer, a panel of the court affirms a declaratory judgment in favor of a news service. The service alleged that two Virginia circuit court clerks – one in Norfolk and one in Prince William County – unreasonably delayed public access to newly filed lawsuits. The opinion recites testimony in the district court that Norfolk made only 19% of complaints available on the filing date, and 22% took two or more days to release. In Prince William, 42% of the complaints were accessible on the filing date, and a comparable percentage took two or more days.

The service sued the two clerks, at which point a remarkable thing happened: The clerks sped things up admirably. Norfolk began to make 92% of its complaints available on the filing date, and all of them by the next day; Prince William’s figures were 88% and 96%, respectively.

This increased efficiency backfires on the clerks. They acknowledged that they hadn’t hired anyone or changed hours of operation. All it took, it seems, was the gentle cattle prod of a federal lawsuit. Why is this a backfire? Because it demonstrated that the earlier lack of access was essentially voluntary.

The Fourth today considers a number of challenges to the district court’s declaratory order before rejecting each of them and affirming in a unanimous opinion by Judge Motz. Judges King and Wynn join her fully.

The other decision is a bolt of lightning: Leaders of a Beautiful Struggle v. Baltimore Police Department implicates a pilot program by the department to operate aerial surveillance in the city, using airplanes that circled the city, taking pictures. The planes flew about 40 hours a week during daylight, and their images covered almost all of the City. The plaintiff, a group of community advocates, sued the department, claiming that this surveillance violates the Fourth Amendment. They sought declaratory and injunctive relief.

The district court held a hearing on the request for a preliminary injunction, and denied that relief in April 2020. A week later, the surveillance program started.

Meanwhile, the plaintiff had noted an appeal of the injunction denial. A divided panel of the Fourth affirmed, but the court granted that rare treat, en banc rehearing. By now we’re in December, and the City has operated the program for almost eight months.

At this point, we get a surprise: “Based on the pilot’s mixed results, the City ultimately decided not to continue the AIR program. BPD initially continued storing the data that it had retained to that point; 1,916.6 hours of coverage comprised of 6,683,312 images. Then, over two weeks in January 2021, BPD and PSS deleted most of the data.”

Having discontinued the program, the department moved the Fourth to dismiss the case as moot. That argument was one of the issues that the entire court took up in oral argument in March of this year.

Today a sharply divided court reverses and remands the case to the district court. Eight judges hold that the case isn’t moot: “While the planes have stopped flying, the fruits of the AIR program persist. BPD stores AIR program images and reports and is free to access them at any time. The information relates to around 200 criminal cases, roughly 150 of which remain open investigations.” Because those cases are still “alive,” injunctive relief can address an ongoing legal issue.

The majority – penned by Chief Judge Gregory – concludes that the surveillance program impinges the reasonable expectations of privacy of residents and visitors in the City. Use of the data “is a search, and its warrantless operation violates the Fourth Amendment.” With a warrant, of course, everything changes; but this program effectively surveils everyone outside during daylight hours in the City.

Judge Wilkinson authors a strongly worded dissent, joined in parts by six other judges. He feels that the simple response to the appeal should be “a brief order dismissing the appeal as moot.” But because the majority “is determined to puff this case up, to keep it going at all costs,” he embraces the merits, seeing dire consequences.

The dissent focuses on the underlying problem of violent crime in the City. It accuses the majority of prioritizing concerns about over-surveillance despite the plague of murders there – nearly one per day in each of the past two years. Judge Wilkinson believes that the police department should be free to choose suitable policing tactics to combat this terrible scourge, and the courts shouldn’t engage in second-guessing law-enforcement pros.

The dissent next notes a procedural anomaly: This is an appeal of the denial of a preliminary injunction. In essence, the majority holds that the district court had no discretion on these facts to refuse the injunction. Judge Wilkinson insists that “the majority’s rush to judgment leaves only hopelessness in the face of rising violent crime.” As usual, his prose soars.

Judge Niemeyer is more blunt. His one-paragraph dissenting opinion begins, “Our court’s majority opinion in this case is the most stunning example of judicial overreach that I have ever witnessed on this court.” Well, now. He goes on to join Judge Wilkinson in full, and concludes with a plea that The Robes across the Potomac step in. Judge Diaz files a short dissent on the grounds of mootness.

Today’s opinions run long – 76 pages in all – but the legal discussion is fascinating and I encourage you to click on the link and read them. I particularly encourage you to read two relatively short concurrences, one by Judge Gregory – yes, he files a concurring opinion even though he writes the majority – and one by Judge Wynn. These opinions begin at page 33, and are well worth your attention because of their discussion of the modern social problems facing the City and the Nation.


The common theme in these two decisions is the mootness challenge. In both cases, the court rules that despite the termination of the offending program, the appellate challenges can continue.


Analysis of June 24, 2021 Supreme Court Opinion




(Posted June 24, 2021) The Supreme Court of Virginia clears out the oldest undecided appeals on its docket by handing down a consolidated opinion styled Grayson v. Westwood Buildings, LP. It’s a debtor-creditor dispute on steroids, and arises in Fairfax.

The facts of this case are uncommonly complex. Justice Kelsey’s meticulous opinion takes ten pages to describe the facts and another 4½ to lay out the procedural posture. He notes that the trial record runs to almost 6,000 pages. The opinion of the court is a full 46 pages long.

With a case like this, if I were to describe the facts in detail, I’d lose half of you before getting to any of the holdings. The Reader’s Digest version of the case is that it’s a claim by a landlord that one of its tenants, a law firm, had made several voluntary and fraudulent conveyances that deprived the landlord of the opportunity to collect six figures in rent. The trial court agreed and entered personal judgments against several defendants, including the two lawyers in the firm, some entities associated with one of them, and even the firm’s bookkeeper.

I’ll summarize the significant holdings here, safe in the knowledge that if you really want the Encyclopedia Britannica version of the case, the slip opinion is just a mouse click away.

The Supreme Court begins its rulings by observing that the fraudulent and voluntary conveyance statutes specify a particular remedy, and it isn’t a money judgment against those persons or entities who received the property or money. That remedy is a declaration that the transfer shall be void. That remedy legally puts the transferred goods or money back into the debtor’s possession so priority creditors can execute on it.

Justice Kelsey observes that courts have “supplemented these statutory remedies” by allowing, in certain circumstances, “an in personam judgment directly against the transferee of an unlawful conveyance.” Today’s opinion states that “truly exceptional circumstances” are necessary to justify such a remedy.

The court then goes on to indicate that, under well-established law, there’s no prohibition against a debtor’s preferring one creditor over others, even when the debtor is insolvent. This factor unravels most of the circuit court’s judgment, because a creditor without a perfected lien can’t insist on a priority or even pro rata payment. The debtor can even make a payment to a company insider – a form of self-dealing – as long as the payee’s claim is valid. (I hasten to add that this isn’t a bankruptcy case, where a trustee can void certain transfers that prefer one or more creditors over others.)

There’s an interesting holding about the burden of proof and the standard for reviewing that burden. Last month, in White v. Llewellyn, the court specified that when a plaintiff in a fraudulent-conveyance case establishes certain badges of fraud, the burden of persuasion in the case shifts to the defendant, and stays there for the duration of the case.

The parties tried this case in 2018 or 2019, long before White v. Llewellyn came down. Both parties and the circuit court assumed that the shifted burden was of the “bursting bubble” variety, so the ultimate burden remained on the landlord to prove that the transfers were improper.

White v. Llewellyn was a decision of first impression, so you can’t fault the parties and the trial judge for getting this wrong. Importantly, the Supreme Court today goes ahead and decides the appeal under what we now know to be the wrong burden. Here’s Justice Kelsey’s explanation of that decision:

We will not ex post facto change on appeal the burden of proof applied in a civil case when no party asks us to do so and when the trial court adopted it as the governing standard with both parties’ apparent agreement. This situation is the bench-trial equivalent of a civil case tried to a jury on burden-of-proof jury instructions that the successful party does not challenge on appeal.

At the end of the opinion, the court takes up each of the five challenged transfers and finds that none was improper. The court accordingly reverses and enters final judgment in favor of the defendants.

I noted at the outset that these consolidated appeals were the oldest undecided cases on the Supreme Court’s docket. The SCV Clerk got the record in the case in October 2019; a panel granted the petitions for appeal last June (one year ago yesterday), and the lawyers argued the merits to the full court on November 5, 2020. The 7½ month span between oral argument and decision is the longest I’ve ever seen since I started covering the court in 2005. In most instances, the likeliest explanation for a significant delay is that someone is polishing a dissent. Not so today; this ruling is unanimous. Here, the explanation is simpler: This is a very, very complicated case that results in a highly detailed opinion. Given what I’ve just read over 46 pages, the delay doesn’t surprise me.


Note on Cedar Point Nursery V. Hassid




(Posted June 23, 2021) I don’t normally cover proceedings at SCOTUS, but let’s take a metaphorical short stroll across the Potomac to note today’s decision in Cedar Point Nursery v. Hassid. It’s an inverse-condemnation case from California. (Side note: If you instead crave analysis of the sexy news item of the day, the cussin’ cheerleader case, check SCOTUSblog instead.)

State law there allows unions to enter certain agricultural property on a limited basis to talk with farmworkers. They’re allowed onsite for three hours per day – one hour before the work shift, one hour at lunchtime, and one hour after work – on up to 120 days per year.

The owners of two such properties sued, claiming that the regulation effected a taking of their private property without just compensation. They claimed that this was a form of physical invasion, and thus a categorical taking that requires such compensation.

A district court and the Ninth Circuit upheld the regulation, finding the regulation’s imposition to be more modest – a temporary entry that should be evaluated under the totality-of-circumstances test from Penn Central Transp. v. New York City. The landowners obtained cert, and today, the Supreme Court reverses.

The chief justice pens the opinion of the Court. He and five other justices conclude that the California regulation indeed constitutes a physical invasion. He cites the ordinary right of a landowner to exclude others from his property, and notes that this regulation forces such landowners to admit persons onto their land against the owners’ will.

Justice Breyer, writing for Justices Sotomayor and Kagan, dissents. The dissenters would find this to be a more modest imposition, as the union organizers don’t have unfettered and unlimited access. They conclude that Penn Central analysis is the better way to approach this issue, and because the landowners didn’t even attempt to establish a compensable taking under that approach, the challenge to the regulation should fail.

The majority and dissent are both well-written, and I commend them to you. I regard the chief as one of the three best writers on the Court – Kagan and Gorsuch are the others – and because much of my living turns on reading judicial opinions, good writing matters to me. As for the merits, I tend to agree with the majority. The dissent relies in part on a prior case where the Court upheld a requirement that a shopping center allow First Amendment activity on its private property. The majority notes that that space was open to the public; not closed like private agricultural property.

As you know, I don’t focus on SCOTUS often, so what follows is my general sense, and is not the result of a comprehensive survey. After the public outcry over the Court’s 2005 decision in Kelo v. New London – a resentment that I shared, as I thought the Kelo decision was ill-advised – I believe that the Supreme Court has turned in the general direction of landowners in eminent-domain appeals. There are outliers, such as Murr v. Wisconsin – a narrow and fractured technical loss for the landowner – and Stop the Beach Renourishment v. Florida DEP in 2010. But look at the decisions that have gone the landowners’ way: Arkansas Game & Fish v. US (2012), Koontz v. St John’s River WMD (2013), Horne v. Dep’t of Agriculture (2015), Weyerhaeuser v. Fish & Wildlife (2018), Knick v. Township of Scott (2019), and now this. The Court’s recent jurisprudence has tended to favor private property rights.

In contrast, the Supreme Court of Virginia’s recent decisions in this field have overwhelmingly favored the condemnor. Of the SCV’s last ten published rulings in condemnation cases, landowners have lost nine times. By what’s supposed to be coincidence, but surely isn’t, Justice McCullough has authored each of the most recent five in that series. And the landowner’s only win in all that time, stretching back to late 2017, is the 4-3 decision in Helmick Family Farm two years ago, giving the landowner a partial victory.

The two appellate courts thus appear to be facing opposite directions when they receive eminent-domain appeals. This is one of those areas of the law where your rights – and your chances on appeal – likely differ depending on whether you’re in state or federal court.


Analysis of June 17, 2021 Supreme Court Opinion




(Posted June 17, 2021) Some appellate decisions are hair-on-fire occurrences. “Alert the major media!” Today’s ruling in Nicholson v. Commonwealth will trigger a more modest response: “Alert the appellate geeks!”

This is an appeal of a conviction for driving on a suspended license, fifth offense. (Side note from a former prosecutor: At what point does a frequent flier like that get the message?)  Nicholson received a summons for the offense in Albemarle County, and the GDC and then circuit court both got ‘er on the charge. In circuit, various orders referred to the proceeding as “Commonwealth v. Nicholson,” and when she noted an appeal to the CAV, she did so with that as the style of the case.

Alas; the proper prosecuting authority looks to have been the county, although the local Commonwealth’s Attorney evidently handled the case at trial. The sentencing order – for those civil lawyers among you, that’s the final order in any criminal prosecution – listed the case as “Albemarle v. Nicholson.”

The Court of Appeals noted the discrepancy and remanded the case to circuit court to determine what the proper prosecuting entity was. “The County,” came back the answer, though the circuit court’s nunc pro tunc order also modified the reference to the law violated, noting both the state Code and its parallel in the County Code.

Now what? Back upstairs, the Court of Appeals directed supplemental briefing on the issue. Nicholson and the Commonwealth filed briefs, but this time the County filed one, too, acknowledging that it had received notice of the appeal and consenting to Nicholson’s request for leave to amend. (I commend the County Attorneys for doing the right thing.) Nicholson’s prospects brightened accordingly.

No dice, the CAV ruled. It dismissed the appeal by finding that the notice of appeal was “fatally defective” for misidentifying the offense being appealed. Today the justices unanimously reverse and send the appeal back to the CAV for a decision on the merits. Prior caselaw indicates that a notice of appeal doesn’t have to be perfect; just sufficient. The Supreme Court rules that this notice did its job despite the inconsistency in the identity of the appellee.

There’s a significant paragraph on page 6 of this short opinion from the efficient pen of Justice McCullough. In Roberson v. Commonwealth from 2009, the Supreme Court had belittled – maybe that’s too strong a word, but you get the message – the importance of the trial court’s docket number in identifying the judgment that’s being appealed. The court reconsiders that and holds today that that number can be an important factor in identifying the exact case that’s being appealed. As Justice McCullough points out in a footnote, it’s still important for counsel to list the correct docket number.

Today’s opinion cites two seminal decisions on this issue, Roberson and Ghameshlouy v. Commonwealth decided the following year. This opinion may join them as the decisionmaking triad on questions like this.


The Courthouse Doors Start To Creak Open …




(Posted June 11, 2021) The word normalcy sounds quaint now, inured as we are to the many adjustments of pandemic life. But I’ve seen the first sign that the appellate world might be returning to the old ways. The Fourth Circuit today announces that it will reopen the Powell Courthouse in Richmond beginning Tuesday, July 6.

The court’s bulletin isn’t a complete return to life as we knew it a year and a half ago. Anyone who enters the building must still wear a mask, pass a temperature check, and answer a series of Covid-related questions. But starting next month, if you want to hand-file a document at the clerk’s desk instead of at the first-floor drop box, you can do that. For those who aren’t yet ready to reenter an enclosed space like this, the court will retain the drop box, though it will move one block east, to the annex entrance at 1100 East Main Street.

What about oral arguments? The notice offers this tantalizing hint: “Face coverings during Court proceedings are required as directed by the Court.” There’s one argument date over the summer months, a single criminal appeal on July 16, and the court’s website doesn’t yet indicate whether the court will hear that argument remotely. The ensuing session is in late September, and if I were forced to wager on it, I’d place two American dollars on the court’s allowing lawyers the option of in-person or remote argument then. I believe that the court will be ready to open its courtrooms, but might not force a lawyer to appear in-person if he or she doesn’t feel safe in doing so.

Fine, you’re thinking; but what about the state courts? There’s no formal word out of Ninth and Franklin yet, but let me see what the ol’ crystal ball shows …

Not much. We do know that the most recent order extended the judicial emergency another 21 days, to June 20. That order came down a bit later than I was used to seeing; previous orders had something of a rhythm, and this one missed its usual cue.

But I’ll add two things. First, the current order – the 22nd in the series – allowed trial courts far more discretion in allowing proceedings, so long as the judge deems them safe. Second, the Governor has indicated that he will allow the state of emergency to expire at the end of June. The terms of Code §17.1-330 give the Supreme Court, not the Governor, the final say over whether there’s a judicial emergency, but the justices will likely weigh the public end of the formal emergency when deciding whether to extend the judicial one.

We might accordingly see a 23rd order that extends the judicial emergency only to June 30. But candidly, I doubt that the justices will do that and allow trial judges carte blanche to summon venires, select juries, and conduct trials any way they wish. I believe that the Supreme Court will want to retain at least some control over local proceedings, and the only way to do that is to continue the judicial emergency.


News and Notes from the Appellate World




(Posted June 10, 2021) The Robes by the James don’t have any new published opinions today, so let’s take a look around and see what’s happening across the appellate landscape.


SCOTUS term winds down

While I don’t usually cover appellate issues arising on the incorrect side of the Potomac, things always get interesting up there as June unfolds. The end of June is the traditional end of the Supreme Court’s terms, and it always seems that the Court holds the major news-item decisions for late in the month. That makes it worth a look, even for folks who don’t have Virginia-related business up there.

In normal years, the Court clears its docket by the last day of June and heads into a summer recess. Last year, the justices entertained delayed oral arguments in May because of the courthouse’s closing during the pandemic. That led to the latest announcement of SCOTUS decisions in a given Term in recent memory, on July 9, 2020. These were the first July announcements from the Court since the 1980s.

True to form, the last decisions of that Term were hot-button cases: Trump v. Mazars USA and Trump v. Vance, on subpoenas for the former president’s financial records; and McGirt v. Oklahoma, in which the Court ruled that a vast section of that state, including part of the City of Tulsa, was sovereign turf for the Creek Indian Tribe. I commend to you Justice Gorsuch’s almost poetic opening to the McGirt majority opinion, which begins with, “On the far end of the Trail of Tears was a promise. …”

This year, one of the most interesting aspects of Courtwatching is the number of still-undecided appeals argued during OT20. The Court hands down one opinion this morning, leaving a whopping 21 still to be decided.

For most of the year, the Court announces opinions on scattered Mondays. Once June arrives, it customarily adds Thursday opinion days, rather than drop a front-end loaderful of opinions on a single day. And in the last week of the month, it sometimes adds a Wednesday opinion day.

I don’t know if the Court will again dip a toe into July’s waters, but if not, it has a lot of opinions to hand down in very few potential likely days. There are three Mondays and two Thursdays left in this month. If the Court decides to clear its docket on those days, we’re looking at four opinions per day, which is a whopper of an average. And yes, there are still some major-news-item cases left to be decided.


Some interesting essays

My appellate pal John Koehler has posted a non-appellate, but still interesting, essay on the labor-market dynamic. Perhaps it’s the Econ-major geek in me, but I found his views to be fascinating.

Elsewhere, Jay O’Keeffe posted several interesting essays on his site, De Novo, in May. Jay writes very well, and I always enjoy a venture to his site.


The latest on CAV expansion

As noted in this space recently, the General Assembly has some important summertime homework this year, as it’ll fill seven vacancies on the Court of Appeals of Virginia. The legislature reopened the application process some time ago because it felt that the previous window was too short and the applicant pool wasn’t exactly diverse. I haven’t heard any word as to when the Governor will call a special session to choose the new Robes, but it can’t drag out too long; the Court of Appeals will have a significantly increased workload starting in January, and those new judges will need time to get judge training and get up to speed on the court.

Lest we forget, there’s much more that has to happen before January 1 besides choosing judges. A committee even now is poring over the Rules of Court to determine what amendments will need to be made before the CAV’s jurisdiction expands. The Attorney General will hire 27 new lawyers – appellate lawyers, all! – to handle the anticipated uptick in merits appeals on the criminal side. The Indigent Defense Commission gets seven more appellate lawyers, too. I expect that both Chief Staff Attorneys – in the Supreme Court and the Court of Appeals – will add more staff, too. And even all of this says nothing about the private sector. John’s essay on the labor market is looking to be more topical than you might think.


Final SCV argument session of 20-21 term

If you blinked, you missed this week’s argument docket in the Supreme Court of Virginia. The justices entertained just ten appeals over two court days in the June session.

Unlike their colleagues in Washington, Virginia’s Robes don’t save their sexiest appeals for the end of June … but sometimes it works out that way. Two of this week’s ten were appeals about the statue of General Lee on Monument Avenue in Richmond. A circuit court had ruled that citizens, including those who live near the statue and at least one descendant of the original donor, couldn’t prevent the Commonwealth from removing the monument. Despite this ruling, the court enjoined the Commonwealth from proceeding with the removal pending an appeal.

This last part seems incongruous to me; if a court rules that a petitioner doesn’t make out a case for an injunction, but then orders the injunction anyway, what’s the basis for that order? I don’t know if the parties addressed that on appeal.

What I do know is that the justices allotted 70 minutes for oral argument in the two appeals, but the lawyers used only 30; 20 in the first appeal and 10 in the second. This was no doubt due in large part to an astonishing development: No member of the court asked a single question of any of the lawyers, in either appeal. Not a peep from the court.

Personally, I never enjoy delivering what I call the Easter Island argument, where I give a speech to silent, stone-faced justices. I want them to interrupt me, early and often, so I can find out what’s on their minds, and then address those concerns. This week’s advocates may have felt similarly frustrated, or they may just have been relieved that they were able to finish their arguments and get away from the lectern with all their limbs still attached to their torsos. (Oral arguments these days are much safer in this respect, because the justices can’t maim you when they’re only watching you on a computer screen.)

I normally stay out of the prognostication racket with undecided appeals, because it’s devilishly hard to make a good living by wagering on the outcome of these cases. Oh, you could generate a fair return by always betting on affirmance in criminal appeals, here and in the CAV; but you’d get such poor betting odds (because of the lopsided outcomes) that it would take you a long time to amass a substantial bankroll. Besides, I know of no one who makes book on SCV rulings.

Here, though, if I had to place a gentleman’s wager, I’d bet that the court will affirm. The issue here is whether one generation of Virginians can bind all future generations to do something that those future Virginians may find uncomfortable or even abhorrent. Yes, it looks like the Commonwealth entered into a contract in the Nineteenth Century to keep and honor the Lee statue. But this is a matter of compelled speech – compelled government speech, no less. Do modern Virginians have a say in this, to allow their Commonwealth’s public speech to reflect modern mores?

Let’s take an easy example to show why today’s Virginians have that right to decide for themselves. If you posit the opposite conclusion, that a contract is a contract and we just have to live with what our ancestors agreed to do, we can explore how far that principle goes. Hypothetically, suppose that instead of an equestrian statue, the Nineteenth Century Commonwealth accepted one that depicted a snarling overseer, holding a whip and standing menacingly over two cowering slaves. The engraved base of the monument contains the words, “To the Eternal Subjugation of the Negro.” Maybe the last word is less benign; you get the idea. In accepting the monument, those Nineteenth Century Virginians, acting through their government, contracted that the statue would stand, preserved, protected, and honored, for all time.

I’m not a Supreme Court insider and never have been, but I’m confident that it would take the modern court all of two and a half seconds to rule that a contract like that is repugnant to modern public policy. Such a statue would be gone in no time.

You may posit that the Lee statue isn’t like that; you may perceive that it’s an honorable depiction of one of Virginia’s most prominent native sons. But the point in this litigation – as contrasted with the entirely separate political debate over the statue’s fate – isn’t whether the monument is or isn’t tasteful, or whether Lee is or isn’t worth honoring. The issue is whether a contract like this is enforceable against modern mores, when the Commonwealth has moved on.

I expect the court to affirm, and to do it unanimously. The decision could come at any time; this may be one of those appeals where the court won’t wait until a Thursday.


Fate of Lee monument in Richmond to be argued Tuesday before Virginia Supreme Court

Fate of Lee monument in Richmond to be argued Tuesday before Virginia Supreme Court

By Frank Green, Richmond Times-Dispatch – 6/4/2021

The Virginia Supreme Court will hear arguments Tuesday in two cases aimed at barring the removal of Richmond’s Robert E. Lee monument, the last Confederate memorial remaining on Monument Avenue in the wake of George Floyd’s death.

Last June, Gov. Ralph Northam ordered the monument moved from state property at North Allen and Monument avenues. The General Assembly appropriated money to do so and in a budget amendment repealed the 1889 law that accepted the deed for the land and agreed to protect the monument in perpetuity.

The iconic bronze statue of Lee on a horse gained national attention last year as a focus of racial justice protests in Richmond. The base of the 60-foot-tall monument, now famously covered with graffiti, was illuminated at night with holographic images. A year ago, demonstrators at the circle — now surrounded by fencing — were tear gassed by police.

“This is the heart of the Confederacy, Richmond, and this is the central symbol of that,” said Richard Schragger, a professor at the University of Virginia School of Law and one of a number of property law professors who signed a friend of the court brief siding with the state.

Monuments to Lee have been at issue in Charlottesville and elsewhere. But Schragger said that as a result of its location, “this particular Robert E. Lee statue has been quite a symbol of the objection to Confederate monuments more generally across the South and in other places.”

A few days after Northam’s June 4, 2020 removal order, William C. Gregory, a descendant of two of the people who donated the land to the state, filed suit in Richmond Circuit Court to block it.

Gregory alleged that the 1887 and 1890 deeds giving the land to the state created a perpetual covenant prohibiting removal of the Lee statue, which he had a right to enforce as an heir to the original land donors.

When that suit failed, five area residents, two of them residents of the Monument Avenue Historic District, also sued, arguing that the 1887 and 1890 deeds require that the monument be held “perpetually sacred” by the state.

Richmond Circuit Court Judge W. Reilly Marchant ruled against them, holding that arguments to keep it in place were contrary to current public policy as established by the General Assembly last year. An injunction is in place barring the monument’s removal pending the appeal to the Virginia Supreme Court, which is also considering an appeal in the Gregory case.

The supreme court has set aside 40 minutes for arguments in the property owners’ case and 30 minutes for Gregory starting at 9 a.m. Tuesday. The cases will be argued and heard remotely. A link to the virtual proceedings will go live at 9 a.m. at

Virginia Solicitor General Toby J. Heytens will argue for the state and Patrick M. McSweeney will argue for the plaintiffs in the property owners’ case, and Joseph E. Blackburn Jr. in the Gregory case.

Other Confederate statues and memorials along Monument Avenue, including those of Thomas “Stonewall” Jackson and J.E.B. Stuart, came down following Black Lives Matter protests. But those monuments were on city, not state, property.

A brief filed in the Virginia Supreme Court by Virginia Attorney General Mark Herring’s office argues that the governor indisputably has the authority to relocate the Lee monument.

“In 1890, the then-Governor of Virginia accepted a statue from a nominally private organization of which that same Governor was also, simultaneously, the president. More than 130 years later, a different Governor decided that the statue — a piece of Commonwealth-owned property — should be relocated from one area of Commonwealth ownership and control to another. The General Assembly has agreed.

“That should be the end of the matter,” contends the brief.

Herring complains that, “In these two cases … a handful of private individuals claim a judicially enforceable right to veto the shared decision of the political branches. As plaintiffs see it, the people of 2021 may not take down a divisive symbol that those who held power in 1890 decided to put up.”

McSweeney said that a U.S. constitutional issue is in play and there could be a potential appeal of a Virginia Supreme Court decision to the U.S. Supreme Court.

In the event the state wins and the plaintiffs appeal to the U.S. Supreme Court, Herring’s office is asking the justices to immediately dissolve the injunction so the statue can be removed.

“If plaintiffs want to continue their fight beyond the Commonwealth’s own highest court, it should be their burden to convince the U.S. Supreme Court to grant a further injunction,” argues the attorney general’s office.

The plaintiffs contend among other things that Marchant erred in finding that the 1887 and 1889 deeds were contrary to public policy because the 2020 General Assembly legislation is unconstitutional and, therefore, cannot establish public policy.

Last year’s budget amendment, they argue, is a “special” law and not a general law as was found by Marchant. Impermissible “special” laws specifically target a locality or small group rather than an entire class.

The plaintiffs also argue the judge should have found, as they argued, that the General Assembly’s actions violated the state and U.S. constitutions’ contract clause.

Their appeal states that “the Robert E. Lee Monument was erected for two purposes. The first was to honor Lee and the men he led in battle. The second was to attract buyers to a real estate development just beyond the boundary of the City of Richmond.”

The plaintiffs complain that “it was not until 2020 that any Virginia official contended that the 1890 Deed was void from the date of its execution. Instead, the Commonwealth stood by silently for 130 years as lots were transferred in reliance upon the restrictive covenant, and accepted the benefits of having a major historic landmark and tourist attraction in its capital.”

“The Governor now claims the prerogative to disavow the commitment made by the Commonwealth in 1890,” they complain.

The plaintiffs noted in their brief that Northam contends that they “ignore the shameful history that gave rise to the Lee Monument and the ongoing pain caused by forcing the Commonwealth of 2021 to leave it up one moment longer.”

They responded that the residents are making legal claims based on deed covenants and constitutional rights. “It is unnecessary that they ‘win’ legally irrelevant historical debates about the Civil War, Robert E. Lee, and the motivations of those who erected the Lee Monument in order to show that they are entitled to prevail in this case,” they wrote.

Nevertheless, the brief says the plaintiffs “strongly” disagree with the characterization of the history surrounding the statue as shameful.

“As for the ‘ongoing pain’ allegedly caused by the continuing existence of the Lee Monument, if the Governor is sincerely concerned about pain, he should not be indifferent to the pain and sadness that a great many people will feel if the Lee Monument comes down,” concludes their appeal.

They are asking the justices to reverse Marchant’s judgment and order the state to permanently bar the removal of the Lee monument.

One of several briefs in support of Northam’s position was written by A.E. Dick Howard, a professor at the University of Virginia School of Law, who more than half a century ago was the executive director of the Commission on Constitutional Revision that rewrote Virginia’s Jim Crow constitution of 1902 and replaced it with one adopted by voters in 1970.

Howard argues that the General Assembly must have the power to declare the Commonwealth’s public policy. “That principle is at the core of this case,” he added.

“The General Assembly’s instruction to remove the Lee Monument is but one part of a larger policy movement to reckon with manifestations of white supremacy in the public sphere. The Circuit Court properly considered the 2020 law as evidence of the Commonwealth’s public policy position. The 2020 law is a permissible exercise of the General Assembly’s legislative power,” concluded Howard.

Carl Tobias, a professor at the University of Richmond School of Law, agreed. He added, “The supreme court is often deferential to the General Assembly when it has spoken clearly on an issue of public policy. I think that is what is critical to this case.”

L. Steven Emmert, a Virginia Beach lawyer and Virginia appellate court expert, said that in light of the pandemic, it would be difficult to know when the justices might rule on the cases after Tuesday’s arguments.

He said that prior to COVID-19, “the sweet spot for published opinions was six to nine weeks after the session week … nowadays, it’s become wholly unpredictable.”

“Of course, this isn’t the average case. The court expedited its placement … and it’s now being argued just 4 ½ months after the petition for appeal hit the clerk’s office. That’s somewhere on the order of half the usual time,” Emmert said.

“That might indicate that the justices will expedite the decision in the case, too, though there’s no way for an outsider like me to know that.”

Analysis of June 3, 2021 Supreme Court Opinion



(Posted June 3, 2021) After last week’s deluge of decisions, the Robes by the James return to a more sedate pace this morning, issuing a single published opinion in an appeal argued in the March session. Galiotos v. Galiotos is, as the caption suggests, a dispute between family members, and involves estate administration.

Two brothers, named as co-executors of their late mother’s will, developed differences of opinion on numerous aspects of estate administration. Brother A accused Brother B of self-dealing regarding one of the estate’s numerous valuable properties; B made parallel allegations against A about other matters. The matter inevitably wound up in circuit court, with each brother asking the court to remove the other from office.

When the parties appeared for a bench trial, Brother C was in the courtroom. Brother B moved to separate witnesses, including Brother C, since he wasn’t a co-executor and wasn’t a party to the litigation. Brother C claimed that he was indeed a party; Brother A shrugged and said he didn’t care. The court allowed him to remain.

Each party presented evidence of differences that the court eventually found were irreconcilable. Brother C, who testified early in the case, merely authenticated a batch of e-mails and explained his efforts to pour oil on his warring brothers’ troubled waters.

At the conclusion of the evidence, the learned judge decided that the only workable approach was to remove both brothers and appoint a neutral fiduciary in their place. The court denied both brothers’ requests for attorneys’ fees.

The brothers filed cross-appeals, and today the Supreme Court unanimously affirms the judgment. I’ll insert an editorial comment here: I can’t figure out why this opinion is published. The justices’ rulings all turn on whether the circuit court abused its discretion in various rulings, and each time the court finds no abuse.

 The one ruling that may have made this proper material for Virginia Reports is the court’s affirmance of the decision to allow Brother C to remain in the courtroom. Statutorily, he should have been excluded. Code section 8.01-375 mandates exclusion of nonparty witnesses on motion of any party, and Brother C unquestionably wasn’t a party.

The justices nevertheless affirm the judgment despite this mandate, finding that any error was harmless. The purpose of the statute is to prevent the nonparty witness from conforming his testimony to that of a supposed collaborator. But Brother C testified before his ostensible collaborator, Brother A, and even then offered noncontroversial evidence, such as document authentication. That isn’t enough to warrant a reversal.


Senator John Warner – The Appellate Connection




(Posted May 28, 2021) Virginians joined the nation this week in marking the passing of Senator John Warner, who died Tuesday at the age of 94. Other stories have marked the many waypoints of his life and career, and I won’t replow that field. I have only one memory to share, and because it has a connection with the appellate world, it’s appropriate to set it down here.

To the best of my knowledge, I was in the same room with the senator only once. It was a large room, so I can’t say that I met him. It was a meeting of a bar association of some sort, probably 30-35 years ago, back when I was a baby lawyer. The senator was the keynote speaker for the gathering.

Unfortunately, he was late; possibly gobbled up by some committee meeting in Washington. The hosts of the meeting periodically announced that he was on his way and would arrive shortly. We finished our salads and then our lunches and even desserts, and still waited.

Eventually he did arrive and was ushered to the front of the room where he sat at a table, listening to a slightly overlong introduction from what was probably the president of that bar association. I recall watching with fascination as he sat there, not eating the lunch set before him, but biting into several lemon wedges. It was almost as though lemon juice was his lunch, bringing to mind the song lyrics, “Lemon tree, very pretty, with the blossoms oh, so sweet; but the fruit of the poor lemon is impossible to eat.” I wondered how anyone could give a speech with the taste of lemon juice in his mouth.

Eventually he rose to speak. He was courtly, as always, and spoke engagingly for perhaps 30 minutes. He used no notes. I don’t know if he had delivered that speech a dozen times before in other venues, or if he merely made off-the-cuff remarks based on a profound repository of knowledge. Still, it was impressive to hear what seemed like a polished speech, delivered extemporaneously.

The only tidbit from the text of that speech that survives in my memory is his report that he wasn’t at the top of his law school class, so when he applied for clerkships afterward, he figured he was already a step or two behind those who had received higher grades than he did. He described his approach to his real target – a jurist I now know to have been Judge E. Barrett Prettyman of the prestigious DC Circuit. When Warner arrived for that interview and was shown into the judge’s presence, he acknowledged that his grades probably weren’t equal to the last candidate’s. “But I’ve studied your work, and I’ve read every decision that you’ve ever authored. If you ask me about any of them, I can tell you any details you want, right here and right now.”

It worked; Prettyman hired him and the young lawyer and Korean War veteran got his first exposure to the law in the world of appeals. He would go on to be an assistant US Attorney, the Secretary of the Navy, and … well, you know.

The senator’s admission about his grades resonated with me. Did you perceive that I was at the top of my class? Law review? Order of the Coif? Not even close. If you’ll permit me an oxymoron, I was an extraordinarily average law student. I think I know which hallway the law review’s office was on, but I’m not sure because I never walked down there; and I didn’t even know what a coif was back then, or how to pronounce it.

I learned from the senator that being an ordinary law student wasn’t a career-ender. It just meant that I had to work a bit harder to ensure that I wouldn’t be an ordinary lawyer. Whether I’ve succeeded or not isn’t up to me. But I got the roadmap from a courtly, silver-haired senator who didn’t know I was in the room. I’m still grateful to him for showing me the way.


Analysis of May 27, 2021 Supreme Court Opinions




(Posted May 27, 2021) We get six published rulings today – four opinions and two orders – from the Supreme Court of Virginia.



On average, the SCV issues decisions that turn on standing to sue perhaps once every year or two. Today we get three. Added to the two standing decisions earlier this year, Plofchan v. Plofchan in April and Platt v. Griffith in January – that makes five in the first five months of 2021. That probably isn’t coincidence; it likely reflects the justices’ greater focus on the right of parties to sue.

Our first decision is a published order in Historic Alexandria Foundation v. City of Alexandria. This is the litigation relating to the last home of the late SCOTUS Justice Hugo Black, in the Old Town section of that city. An open-space easement covers the property, preventing most types of development.

The foundation was established to advocate for preservation of historic sites and structures in the city. It appeared at public hearings to oppose planned renovations of the Black homesite. The local board of architectural review and then the city council both approved the plans over the foundation’s objections.

Citing a City Code provision that allows aggrieved persons to appeal adverse decisions, the foundation took its grievance to circuit court. There, a judge ruled that while the foundation had standing to appear before the city council, it didn’t meet the definition of an aggrieved party, so as to allow it to appeal in court. The circuit court dismissed the case for lack of standing.

Today the Supreme Court unanimously agrees. While the foundation may, due to its purpose, be interested in the outcome of the application process, it didn’t suffer a discrete, particularized harm. This is so even though the foundation owns property 1,500 feet away, and has itself given and received comparable preservation easements.

This has to be regarded as a major blow to the foundation, and to similar organizations elsewhere. It retains the right to urge specific courses of preservation in the city, but it now has no teeth; no right to seek court action to block development that it opposes.

The next standing decision is a whopper. In Bonanno v. Quinn, we get a landmark ruling as the court backs away from some memorable language in several past published opinions.

This is a step-parent adoption case. In 2013, a woman with a daughter married a husband who thus became the girl’s stepfather. The next year, a JDR court awarded the woman and her mother – this would be the girl’s grandmother – joint custody of the girl. The grandmother received scheduled visitation rights. Reading between the lines of today’s opinion, it appears that the grandmother wasn’t diligent in exercising those rights.

Four years later, the girl’s mother died. The stepfather filed a petition in circuit court to adopt the girl. The trial judge referred the matter to the local DSS for an investigation.

The task proved difficult when it came to the grandmother. The social worker tried several times to make contact, but the best she achieved was an exchange of voice mails. Being favorably impressed with the girl’s relationship with her stepfather, the worker recommended that the court approve the adoption.

Shortly after this, the grandmother contacted the social worker; they spoke on the phone after the worker’s report but before any action on it. In a supplemental report two days after this call, the worker reported that the grandmother “denied knowledge of [the stepfather’s] petition to adopt the child and denied consent to the adoption.”

This account would prove fateful in the appeal. On April 30, 2019, the circuit court entered a final adoption order as the stepfather had requested. The stepfather waited 21 days before e-mailing a copy of the order to the grandmother. She responded by doing two things, both on May 30: She noted an appeal of the adoption order, and she moved the circuit court to unseal the record and vacate the final order.

How can she do that, you ask? After all, the circuit court loses jurisdiction 21 days after final judgment. It can no longer vacate or modify its order at that point. The grandmother addressed this concern by observing that, by statute, a circuit court retains jurisdiction over an adoption for six months.

Two months later, the grandmother filed another motion, this one asserting that the adoption order was void ab initio because the stepfather hadn’t filed the right procedures.

Law professors and procedure geeks will immediately recognize that this situation is simply pregnant with many legal issues. Does the circuit court really have continuing jurisdiction? Did the grandmother’s noting of an appeal deprive the circuit court of any power to act on her motion to vacate and unseal? Was the adoption order really void ab initio?

Okay; I’ve asked enough questions for now. Here’s what happened with the case: The circuit court issued an order refusing the motion to vacate because the Court of Appeals had exclusive jurisdiction. The Court of Appeals later granted the stepfather’s motion to dismiss the appeal, holding that the grandmother didn’t have standing to appeal. This was because she wasn’t a party in the circuit-court proceeding. The court granted the stepfather’s request for appellate attorney’s fees, and remanded the case so the circuit court could calculate those.

A writ panel of the Supreme Court evidently couldn’t resist all of the goodies in this case, so it awarded the grandmother an appeal. The fundamental ruling today is that while some rights inure to persons, only an aggrieved party may appeal a judgment. Those two words aren’t synonymous (and the SCV expressly rejects a Black’s Law Dictionary definition that says that they are), and so only a person who was actually a party below can take the case up.

As a side note, todays’ opinion observes that an unsuccessful intervenor can appeal the denial of the intervention motion. That person is obviously a party to his own motion. But the appeal of that denial only brings the intervention motion to the appellate court; not the merits of the case.

Back to our tale: The justices agree that the circuit court got it right when it ruled that the filing of the notice of appeal had divested it of power over the case. This litigation preceded the 2019 amendment of Rule 1:1B, which now governs situations like this.

The court then turns to the void ab initio issue. It’s here that a time-tested phrase from many previous opinions dies an ignoble death. In prior holdings, the court has ruled that a void order is a nullity, and may be challenged “directly or collaterally by all persons, anywhere, at any time, or in any manner,” “before any court, or by the court itself.”

Let us begin by noting that this language is categorical and unconditional. It’s an open invitation to collateral attack on an order, without time limitation. The theory is that a nullity can’t be enforced.

The court started to back away from this broad language two years ago, in Watson v. Commonwealth. There, the court held that a challenge to a criminal sentence as void must come from a person with standing to raise it. Thus, a nosy busybody couldn’t comb through courts’ records in search of invalid sentencing orders, and then bring suit to declare them void.

The Watson court watered down the previous absolute rule – in effect, “We may have said any person, but we really meant any person with standing” – but today the justices drive a stake through the phrase’s heart:

We go still further today, declaring that the language in Barnes that orders void even for lack of subject-matter jurisdiction may be challenged “by all persons, anywhere, at any time, or in any manner,” 144 Va. at 705, is a rhetorical flourish that does not accurately state the law, now or at the time Barnes was decided.

The discussion section of this part of the opinion concludes, “we strongly discourage litigants from invoking that language in future proceedings.”

There it is; you have been warned. It won’t do you any good to complain that you only cited the language because that’s what the court had said before. This is an emphatic closing of that door.

The justices finally remand the case for calculation of appellate attorney’s fees. The grandmother had objected to the CAV’s award, arguing that her appeal wasn’t frivolous or interposed for an improper purpose. The riposte is simple: Rule 5A:30 fee awards don’t require a frivolous proceeding. That’s the standard for sanctions under Code §8.01-271.1. The rule, in contrast, expressly provides that the court isn’t limited to considering whether the appeal was frivolous or meritless.

This may be one of the cases where troublesome facts help to drive the decision in directions other than those first intended. Specifically, the grandmother argued that, because the proceeding was sealed, she didn’t know about the adoption until she received the final order, coincidentally 21 days after final judgment. You have to admit that she has a point: Interested persons can’t be held to this tough standard when the entire proceeding is conducted in secret.

But the social worker’s report indicated that the grandmother knew about the case dispositively earlier; the phone call between the two women preceded entry of the order by about three weeks. The grandmother didn’t move to intervene in that time. A helpful hint: Don’t make demonstrably inaccurate claims of fact. That won’t help you in any court.

As I promised, this is a whopper of a case. Its tendrils will reach far beyond the realm of adoption cases. This is an important holding in several regards, and will reward careful study.

The third standing decision is another published order: Machen v. Williams involves a challenge to a will on the grounds of fraud and undue influence. The testator, aged 93 at death, had never married and had no children. What she did have was an investment account worth $1.3 million.

The testator had befriended an attorney who “had helped her in the past.” He held her power of attorney. When he learned of the account in 2018, he urged her to make a will. She agreed.

The lawyer then drew the will to give almost all of the money to himself. He arranged for individual bequests of $10,000 each to several nieces and nephews, related by blood or marriage, and included an in terrorem clause that would cut them out of the will if they contested it. The lawyer came to the rehab center where the testator spent her final weeks and had her execute three copies of the will, using strangers as witnesses. No one knew then that she had but ten days left to live.

A week after the testator died, the lawyer presented the will for probate. He qualified as executor. Another lawyer, acting as his counsel, sent letters to the several nieces and nephews, telling them about their modest bequests. The letter promised them “that he would expedite their payments if all of them signed and promptly returned a release form enclosed in his letter.”

All of them signed the releases; all but one. That one, joined by his wife, sued to impeach the will, claiming fraud, undue influence, and lack of testamentary capacity. The lawyer filed a plea in bar against the wife, because she had signed a release. The court took that plea under advisement and convened a jury trial.

The jury found that there was no will. Based on his comments, the judge was probably only too happy to enter judgment on the verdict. He denied the plea in bar, holding that the release was a product of the lawyer’s fraud.

On appeal, the lawyer claimed that the husband who had sued had no standing to bring the action, because he wasn’t a blood relative of the testator. His wife was, the lawyer pointed out, and she had signed a release in exchange for valuable consideration.

Alas for the lawyer, the justices had awarded him an appeal on only one of his eight assignments of error, that relating to the husband. That meant that the circuit court’s ruling setting aside the wife’s release was final, and the law of the case. Prior caselaw establishes that as long as one party has standing, another party’s lack of standing won’t defeat the action. This means that any claimed error regarding the husband was harmless.

This ruling comes in an order. In another context, or perhaps at another time, that order might have been unpublished. But today’s order ends with a directive that it be published in Virginia Reports. I sense that the justices were offended by the lawyer’s actions, and decided to impose publication as a form of sanction.


Criminal law

Had enough of standing? Let’s go to another hotbed of controversy: returns on service of process. The case is Logan v. Commonwealth, and it’s sexier than that introduction would make it seem. Because the dates matter here, I’ll set them out exactly.

July 24: A GDC judge enters an order extending a previous preliminary protective order against Logan. The complainant is the mother of Logan’s girlfriend. The order extends the provisions until the following January, and sets a hearing date on whether to make the order permanent.

July 25: A deputy sheriff files a signed return of service with the court, certifying service of the order on both Logan and the complainant. The form indicates that the deputy personally served both persons at the same time, one minute before the deputy filed the return.

July 27: Logan goes into a pawn shop and tries to buy a gun. He fills out a form that asks if he’s under a protective order; he answers no. The pawn shop owner sends the form to the Stat Police.

August 1: The State Police rejects the application, presumably after checking a database of persons subject to protective orders.

An officer met with Logan sometime thereafter and showed him the GDC’s extension order. Logan answered that he knew that he had previously been under a protective order, but believed that it had expired by the time he entered the pawn shop. He denied any knowledge of the extension order.

I infer that the original order was one of very limited duration, designed to freeze the status quo until the court can consider making it more permanent. Nevertheless, the Commonwealth prosecuted Logan for a felony (the false statement) and a misdemeanor (the attempted purchase).

The case proceeded to a bench trial. The complainant testified that the deputy never served her with the extension order. That seems to matter a lot to the case, because the deputy’s return indicated service on both her and Logan at the same minute. This testimony called into question the accuracy of the return of service.

The real fireworks arrived when the prosecution offered the return of service into evidence. Logan objected that the return was an out-of-court statement offered against him to prove the truth of the matter asserted. He raised both hearsay and Confrontation Clause objections (good for his lawyer; you have to raise those separately).

The circuit court overruled the objection and admitted the extension order and the return of service into evidence. The court eventually shook Logan loose on the felony charge, but convicted him of the misdemeanor.

On appeal, a CAV panel affirmed, holding that the primary purpose of the return was administrative, not testimonial. The full court took up the case after granting en banc rehearing; a plurality of the court agreed with the panel, holding that signing the return was a ministerial duty performed by the deputy that “was functionally different from live testimony.”

Today, in a short opinion by Justice Mims, the Supreme Court agrees with the CAV and affirms. The court turns to the primary-purpose test and concurs that, at the time the deputy signed the document, there was no reasonable expectation that there would be litigation over the return. Citing decisions from elsewhere, the Supreme Court concludes that the return “performs a record-keeping function, documenting that the ministerial duty of service of process was executed.”

I don’t handle criminal work, so I don’t have a fully informed view on this. But speaking as a quasi-outsider, this ruling makes me uneasy. I follow the court’s reasoning, and the caselaw is unmistakably there. But one of my tests for a given ruling is whether you can explain it to a nonlawyers in a way that makes that person nod and say, “Okay, I understand.”

In this case, the information on the return was an essential part of the case against Logan. If he had never been served with the order, then he would have entirely innocently tried to buy the gun. That means that what appears on that paper is crucial to the prosecution.

There’s more. On its face, the paper seems incongruous: The deputy asserted in the return that he had served both the complainant – the person who asked for the protective order – and the respondent – the person whom she was ostensibly afraid of – at the same minute. If her object was to keep Logan away from her, why would she be so close to him that they were both served at the same moment?

Finally, the complainant testified that, contrary to what it says on the return, she was not, in fact, served. That calls into question the accuracy of the return on Logan. Yet the courts have ruled that he can’t ask questions of the person who signed the statement that gets Logan convicted.

To a layman, that can’t sound right. To a civil lawyer like me, it seems … well, I’ll say uncomfortable. The law is supposed to give a criminal defendant a fair shot, and this ruling seems to deprive Logan of one.


Workers’ Compensation

In Merck & Co. v. Vincent, the court takes up the compensable-consequence doctrine. That holds that where an employee sustains a compensable work-related injury, and later sustains another injury that’s traceable to the first one, the second one may be compensable, too.

Vincent sustained injuries while on the job and received an award of temporary total benefits. Sometime later, he fell down a flight of stairs. Doctors attributed the fall to the effect of medications to treat his initial injury. He got an award for that, too.

Eight years after the first incident, the employee applied for permanent total disability benefits, citing a change in condition. A deputy commissioner awarded the benefits, rejecting the employer’s contention that the injuries hadn’t occurred in the same accident. The full commission and the Court of Appeals affirmed.

The Supreme Court today reverses and remands the case. It holds that under current law, “in the same accident” means just what it says, and an employee can’t rely on the compensable-consequence doctrine to stretch his claim. The opinion explains in detail the court’s conclusion that an earlier decision in 1945 hadn’t meant quite what the Court of Appeals had thought. And the statutory underpinning for the doctrine didn’t survive the recodification of Workers’ Comp statutes.


Land use

From Fairfax we get a hot-topic issue, the taxation of short-term home rentals. The growth of Airbnb and related sites has led some jurisdictions to take a closer look at their zoning laws. In Norton v. Fairfax County, we see where the county acted, and the homeowners howled.

In 2018, the county adopted a resolution noting the proliferation of these rentals. To address these, it passed two amendments to its zoning ordinance. The first redefined a dwelling in a way that excluded short-term rentals from the definition. The second imposed a 2% tax on such rentals.

Several homeowners rebelled and filed a declaratory-judgment action, seeking a ruling that the amendments were arbitrary and capricious, or that they violated the Dillon rule. The case went to a bench trial, where the circuit court dismissed the claims with prejudice. The court noted that before the amendments, short-term rental wasn’t a by-right use in the residential zoning classifications. It further found that the county’s decision was anything but arbitrary, and ruled that a statute gave the county the right to impose the tax.

The homeowners got a writ, but today the Supreme Court agrees with the circuit court and affirms the judgment. This is the second decision of which I’m aware in which the Robes have weighed in on rentals like those facilitated by Airbnb. The first, Haynes-Garrett v. Dunn in 2018, held that rentals like these don’t create a landlord-tenant situation, so the owner doesn’t owe that level of duty of care to the renter.


Analysis of May 20, 2021 Supreme Court Opinion




(Posted May 20, 2021) The Supreme Court of Virginia issues one published opinion today. It’s concise – just 4 ½ pages – and my sense is that experienced appellate lawyers would see the ruling coming from a mile away.

Kosko v. Ramser is a medical-malpractice action. At trial, the circuit court sustained the doctor’s motion to strike the testimony of a key expert witness for the patient. The patient’s lawyer knew what to do in the event of a full-blown legal emergency like that: “We nonsuit.” The judge has no real discretion to refuse that, so the parties and the jury packed up and went home.

Two days after the court entered the nonsuit order, the doctor filed a motion for costs under Code §8.01-380(C). The court scheduled a hearing on that motion for twenty days after entry of the nonsuit order. At that hearing, the court announced that it was granting the motion and awarding $20,000 in costs to the doctor.

So far, so good; but the doctor’s lawyer made one key mistake. At hearings like this, I’ve always found it wisest to bring a draft order in case the court rules in your favor. That way, if you get a favorable ruling, you can hand up the order for entry immediately.

I believe that that’s good advice generally, but it’s absolutely crucial when the hearing is on the twentieth day after final judgment. Alas, there was no such order in the courtroom, so the judge asked the doctor’s lawyer to prepare and circulate one. By the time the court got around to entering the costs order, five more weeks had expired.

The issue in this appeal is whether the circuit court retained jurisdiction to enter the order more than 21 days after final judgment. A long line of cases stretching back at least to Lyle v. Ekleberry in 1968 – a decision that I discussed in detail here – holds that the trial court retains jurisdiction for only 21 days after final judgment, as Rule 1:1 provides, and only entry of an order that suspends, modifies, or vacates that order can interrupt the running of the 21- days. The circuit court had entered no such order, so its power over the case ended on the 22nd dawn.

The justices today – unsurprisingly, in my view – unanimously reverse the costs award, holding that there’s nothing in the costs-award provisions of the nonsuit statute that extends the time for entry of the order.

The easy lesson is to bring an order to every hearing, as I advise above. The hard lesson is that you never, ever play around with finality.


I’ll add two quick notes here. First, the court also hands down a published order in a criminal appeal, Rompalo v. Commonwealth. It’s a prosecution for destroying public records, and the Supreme Court, in a one-page order, affirms the Court of Appeals on that court’s reasoning.

Second, in my May 6 essay, I noted that a few appeals remained undecided from earlier sessions in 2021. I had failed to recall that there are still a couple of unresolved appeals argued in the November 2020 session, now more than six months ago. Those folks have had an agonizing wait. But there’s no way for them to hasten this process (unless they want to settle the case); they just have to be patient. Today’s two published decisions both came from the April session, just four weeks ago.

  *   *   *

After I posted the essay above, the Supreme Court posted two unpubs to its website. One is a land-use appeal that hurt my head to try to read, so I’ll just give you the link here and invite you to review it if you wish; it’s Dulles Professional Center Condominium Unit Owners Ass’n v. Fairfax County. Be ready for a mind-numbing alphabet soup of initials and defined terms.


The other unpub is a short affirmance in a habeas appeal, Fair v. Director. Fair, a long-term guest of the Director of the Department of Corrections, filed a petition in Stafford County Circuit, alleging ineffective assistance of counsel. He contended that his lawyer failed to advise him of his right to appeal his convictions, founded on a guilty plea, of second-degree murder, attempted robbery, and companion firearm charges.

The trial court received some unusual evidence: an affidavit from the trial lawyer, setting out his private conversations with Fair in jail after sentencing. The lawyer reported that he did, in fact, inform Fair about this right, but that Fair’s reply stopped him short: “This is God’s will and it’s in his hands now. I’m good.”

The lawyer presumably closed his file, but a call from Fair’s father a few weeks later prompted the lawyer to visit his client again, this time in prison. Fair replied that he would handle his father, and indicated no interest in an appeal. Based in large part on this report, the circuit court dismissed the habeas petition.

Fair then did something that hundreds of folks do: He filed a pro se petition for appeal. But this was that rare case where a panel of the Supreme Court decided to grant the writ. The court then appointed counsel to represent the lucky appellant on the merits.

In today’s order, the court sets out a number of interesting arguments that the appointed lawyer – my appellate pal John Jones – raised. But the court rules today that those arguments don’t fall within the parameters of the single assignment of error crafted by the erstwhile pro se appellant. The justices accordingly decline to address these significant arguments, and summarily affirm the dismissal.

Normally I’d just let a ruling like this pass; it creates no new precedent, breaks no new ground, and really applies only to the immediate litigants. But something about the court’s rationale warrants mention here.

We know from oodles of experience that the Supreme Court regards assignments of error as inflexible, once granted. The court has often taken pains to criticize appellants for filing opening briefs that purport to change the wording of the assignments. Sometimes those changes are benign – correcting an unmistakable and unambiguous typographical error, for example. Those are no big deal. Rarely, a litigant will redraft the assignments after the grant, to try to beef them up or make them more persuasive. That’s always a mistake. In my briefs, I never allow myself to even think of modifying assignments after a grant.

Here’s the problem: My pal John identified some interesting arguments that might conceivably have justified a reversal and remand. But the client, a nonlawyer, wasn’t skilled in legal writing and didn’t know how to phrase assignments of error optimally. John was stuck with the cards he was dealt, making the outcome of the appeal almost a foregone conclusion.

What can be done about this, assuming you don’t like the status quo? Well, first of all, you’re dealing with the Virginia judiciary, where the status quo is usually revered; they don’t usually like changing things up. But if you could change something about the procedure to give these appellants a fighting chance, what would you do?

I can envision two approaches to this. The first is to permit an appointed advocate to rewrite the assignments after a writ grant, to formulate issues that fairly represent the appellant’s best case. In theory, newly appointed counsel could even now move for leave of court to do that, though I believe that the court would almost never grant such relief, citing fairness to the appellee.

The only alternative I can think of is one that’s likely to find even less favor at Ninth and Franklin: a civil Gideon right of counsel in civil appeals. Perhaps you could restrict it to habeas cases, if you aren’t comfortable with giving free lawyers to garden-variety civil litigants who are squabbling over dollars or silverware or the family dog. But where a person’s liberty is at stake, there’s a more compelling reason to consider this approach.

No, I don’t think that a change like that is imminent. Nor will I see it in my lifetime.


Analysis of May 13, 2021 Supreme Court Opinion




(Posted May 13, 2021) Today VANA marks the birth of the greatest living musical genius of our age. Stevie Wonder turns 71 today. (If Jimi Hendrix had lived this long, I might have had a different candidate for that honor.) As the wise saying goes, “Talent hits a target that others can’t hit. Genius hits a target that others can’t see.” It’s ironic that a blind man has seen so much that we sighted folks haven’t.


Criminal law

The Supreme Court decides a single appeal by published opinion today. In Myers v. Commonwealth, the justices take up a conviction for carrying a concealed weapon. The weapon, a handgun, was contained inside a fully-zipped backpack on the passenger floorboard of a car. Myers sat in the driver’s seat when law enforcement confronted him. When they conducted a search and found the weapon, he eventually admitted that it belonged to him.

Indicted for carrying a concealed weapon, Myers insisted at trial that a statutory exception applied to him. Specifically, he cited Code §18.2-308(C)(8), which excludes convictions of a person “who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”

The judge wasn’t having any of it; the circuit court convicted Myers after a bench trial, and a panel of the Court of Appeals affirmed. But the justices granted a writ to consider the statute and decide whether it applies in this situation.

Justice Kelsey writes a short opinion for a unanimous Supreme Court. The court reviews its prior decision on carrying concealed weapons, starting with the famous saddlebags case, Sutherland v. Commonwealth from 1909. There, the court had held that a weapon contained in a saddlebag with a closed flap wasn’t being “carried about the person” as contemplated in the statute because it wasn’t “readily accessible for use or surprise” by the owner.

More recently the court peeled back that holding a bit in Schaaf v. Commonwealth, from 1979. There, the court upheld a conviction for carrying a handgun into a courthouse, contained in a woman’s purse. Justice Kelsey’s unease with this distinction is obvious; he describes the Schaaf ruling as an attempt to distinguish the earlier holding, adding that the 1979 court may have been “wincing a bit from this scant distinction.”

Today the court sides with its Taft-era judicial ancestors, holding as a matter of law that a gun in a zipped-up backpack is secured within the meaning of the statutory exception. The court holds that this is akin to the situation in Sutherland: A modern backpack is analogous to a set of saddlebags. It’s unnecessary to overrule Schaaf because of at least one glaring distinction: Ms. Schaaf wasn’t in a private vehicle or vessel. The court accordingly reverses the conviction and dismisses the indictment.

In case you’re wondering, the answer is yes: Reversals in criminal appeals are rare birds indeed. One possible explanation for the court’s comparative leniency here may be the subtext of the Second Amendment. Justice Kelsey doesn’t mention the amendment in today’s opinion, but I think I see its tincture in the holding.


Analysis of May 6, 2021 Supreme Court Opinion




(Posted May 6, 2021) Evidence geeks will appreciate today’s ruling from the Supreme Court of Virginia in White v. Llewellyn, a fraudulent-conveyance suit that turns on the durability of a presumption.

The procedural posture here involves two lawsuits. Mr. and Mrs. Homeowner owned Blackacre, presumably as tenants by the entireties. One day Mrs. Homeowner drove out of the driveway and clobbered another vehicle. The driver of the other car sued both Mr. and Mrs. Homeowner, asserting what I see as a creative premises-liability claim against the husband. The injured party eventually got a jury verdict and a final judgment against Mrs. Homeowner only, for $1.5 million.

If the spouses did indeed hold title as tenants by the entireties, then a judgment against the wife only wouldn’t impair the title. But all was not blissful in the halls of Blackacre; the spouses executed separation agreements as a precursor to an eventual divorce. A final divorce decree would sever the entireties and entitle the tort plaintiff to execute on the wife’s half of the property.

The separation agreement helpfully provided that the husband would receive Blackacre as part of the equitable distribution of the spouses’ marital property. That would thwart any collection efforts against the home. Pursuant to the agreement, the parties executed a deed of gift, conveying title to Mr. Homeowner. Mrs. Homeowner and the couple’s school-age children continued to live in the property.

The tort creditor smelled a rat. She filed a second suit, seeking to set aside the deed of gift as a fraudulent conveyance. At a bench trial, she established to the judge’s satisfaction multiple badges of fraud. Under established Virginia law, that triggered a presumption that the conveyance was fraudulent. The unhappy couple testified as to non-fraudulent reasons for the transfer, noting among other things that they negotiated the settlement at a time when Mr. Homeowner was still a defendant in the tort suit. They explained that the wife and children still lived in the home “to help them deal with any anxiety and depression brought about by the divorce.”

Hearing this, the judge concluded that the couple had met their burden of production by adducing competent evidence that the transfer was not fraudulent. The court concluded that once they did that, the presumption burst, as the plaintiff in the suit always retained the ultimate burden of persuasion. The court entered judgment for the Homeowners, finding that the plaintiff hadn’t met that ultimate burden.

This case implicates the distinction between the two types of presumptions. The first, which I alluded to above, is formally known as the Thayer theory, and informally called “bursting bubble.” It’s called that because of the dynamic that the trial judge employed here: Once the opponent meets the burden of going forward with evidence to refute the presumption, is “bursts” and disappears from the legal analysis.

The other approach is formally the Morgan theory; I regard it as a durable presumption. That is, the presumption endures even after the opponent introduces evidence. In this form, the opponent of the presumption bears the twin burdens of going forward with the evidence and of persuasion.

This litigation turns on whether the presumption of fraudulent conveyance is bursting or durable. Today’s opinion from Justice Goodwyn assures us that this is a question of first impression in the Commonwealth. The court rules today that it’s durable, so the circuit-court judge erred when he ruled that the tort creditor hadn’t overcome the burden of proof. The court unanimously sends the case back so the trial court can decide whether the Homeowners established the good faith of the deed of gift.

My pal John Koehler has posted an interesting essay about this decision on his blog, The Soap Box.

The justices received oral argument on this appeal in the January session. That leaves one appeal still pending from that session, a criminal case styled Myers v. Commonwealth. There are seven undecided appeals from the March session, including a pair of reciprocal appeals that the court will likely decide together.


Hire away: New laws create job openings across Virginia

Hire away: New laws create job openings across Virginia

By Jason Boleman, Virginia Lawyers Weekly – 5/3/ 2021

The 2021 General Assembly session was a successful one for advocates of judicial reform, with several bills passing that affect elements of the justice system in Virginia.

One notable effect of the latest round of legislation is an increase in positions for lawyers, namely in the appellate field.

“It’s a great time to be an appellate lawyer in Virginia,” Virginia Beach attorney Steve Emmert said. Emmert wrote on his website earlier this month about “an expanding market for appellate talent” in the commonwealth, stemming from the expansion of the Court of Appeals of Virginia from 11 to 17 judges.

The bill, Senate Bill 1261, passed both chambers on party lines and was signed into law by Gov. Ralph Northam on March 31. In addition to adding six new judges, once the legislation goes into effect on Jan. 1, 2022, the jurisdiction of the Court of Appeals will expand by providing an appeal of right in all civil cases.

“Starting on Jan. 1 I’ll be going to the Court of Appeals a whole lot more,” Emmert said. Emmert, who primarily handles civil appeals, said almost all of his practice is in the Supreme Court of Virginia presently.

“It makes the system better, because everybody gets an explanation for why the court has ruled the way it has,” Emmert said. “The Court of Appeals, by statute, has to explain in writing the reasons for each of its rulings, the Supreme Court does not.”

In addition, SB 1261 “provides that the Attorney General shall represent the Commonwealth in criminal appeals,” unless the attorney that prosecuted the case files a notice of appearance.  To account for this, the General Assembly budgeted for “30-plus” additional assistant attorneys general and seven new lawyer positions at the Virginia Indigent Defense Commission.  In addition, the new judges at the Court of Appeals will each need law clerks.

All told, while there is no concrete number of positions opened in appellate work, Emmert estimates the number of new appellate positions will be “up over 50.” Emmert anticipates sufficient demand for these positions.

“There are probably a number of young lawyers or mid-career lawyers who are looking for a career change who might see these want ads to hire a bunch of appellate lawyers and think, ‘That sounds like fun,’” Emmert said.

Along with the Court of Appeals expansion came the passage of SB 1442, which establishes a public defender office in Chesterfield County. Introduced by Sen. Joseph Morrissey, D-Richmond, the bill received vast bipartisan support.

Maria Jankowski, deputy executive director of the Virginia Indigent Defense Commission, said the new office will have 22 attorneys, along with a paralegal, two mitigation specialists and other support staff. The Chesterfield Observer reported that the Virginia Indigent Defense Commission has been budgeted $3.16 million to hire 34 employees and lease office space in Chesterfield. The office is expected to be open by the end of the year.

Outside of direct action from the General Assembly, some commonwealth’s attorneys’ offices are proposing staff increases. Ben Shnider, Deputy Chief of Staff and Public Information Officer for Fairfax County Commonwealth’s Attorney Steve Descano, said their office is proposing 15 additional positions. The proposal is in the Fairfax County advertised budget, which was set to get marked up the week of April 26.

Prince William County Commonwealth’s Attorney Amy Ashworth could not confirm new positions, but wrote that new positions at her office “are anticipated to be part of an overall budget increase” voted on by the Prince William County Board of County Supervisors.

“Our office has advocated for an increase in positions due in part to the anticipated growing number of jury trials following changes in sentencing laws, as well as an overall lack of personnel growth over the last few years,” Ashworth wrote.

By the time the new legislation goes into full effect, Sen. Scott Surovell, D-Fairfax County, estimates the number of new entry-level and mid-level openings could approach triple digits. Surovell called the amount of new positions created “pretty unprecedented.”

“I think that it shows that we’re finally making some investments in the justice system. And I think we’re making some long overdue investments in our justice system,” Surovell said. “If you want to do justice correctly and in a fair way, it requires lawyers looking at and working on cases.”

Emmert noted the closest comparison he could recall to this “unique situation” was 1985, when the Court of Appeals of Virginia was first established.

“I’m sure that there were a lot more lawyers that were hired in the appellate sector back in 1985, and this is going to be kind of parallel to that,” Emmert said.

Noting that the openings can help “get people experience in a lot of different areas,” Surovell said he believes the positions created by the new legislation will be filled relatively quickly.

“I think it’s a good time to be a lawyer coming out of law school,” Surovell said.

Analysis of April 29, 2021 Supreme Court Opinion




(Posted April 29, 2021) The Supreme Court announces one published ruling today. In Doe v. Baker, the court takes up claims arising from alleged sexual misconduct of a retired church pastor.

The plaintiff was a minor in 2016 when, she alleges, the retired pastor committed acts of sexual battery upon her. The pastor had remained with the Waynesboro church after his 2011 retirement; the complaint alleged that he stayed on as a spiritual advisor to congregants.

The plaintiff alleged that the pastor had a history of inappropriate conduct before and during his active tenure at the church. She claimed that the church and its Overseers – members of its governing body – knew about the pastor’s history but hired and retained him anyway.

A circuit court dismissed the complaint on demurrer – sort of. Today’s opinion notes that the trial court effectively treated a motion for summary judgment as a demurrer. That means that the justices take the same approach.

Today’s ruling represents a mixed result. The appellees win most of the battles, as the Supreme Court affirms the dismissal of most of the counts. But it reverses and remands on three claims. First, it holds that the complaint fails to state a claim for negligent hiring at the time of the pastor’s original hiring in 1996. But to the extent that the complaint alleges negligent hiring or retention after 2011, that claim can go forward. By that point, numerous reports had reached the church to put it on notice of the danger of keeping the pastor on.

Second, the court agrees that the plaintiff stated a claim for vicarious liability. When you read today’s ruling, you’ll read plain skepticism between the lines of Justice McCullough’s opinion for a unanimous court. The court feels constrained by precedent to allow the vicarious-liability claim to go forward. Today’s opinion repeats the musing from the 2019 decision in Our Lady of Peace v. Morgan that it’s hard to see how an employer can be vicariously liable for conduct like rape, because that’s plainly outside the bounds of any reasonable delegation of authority to an employee or agent.

Third, the court sends a claim of negligent infliction of emotional distress back for trial. The court affirms the dismissal of a host of other claims: “willful and wanton negligence, intentional infliction of emotional distress, fraud, and for failure to warn and failure to protect.” It importantly also affirms the dismissal of all claims against individual defendants, ruling that the proper defendant is the church.

Of these claims, the idea of a fraud count struck me as unusual. The plaintiff alleged that the defendants breached a duty to warn congregants, including the plaintiff, about what the defendants knew of the pastor’s misconduct. The basis for this claim is that the plaintiff relied on the church’s silence to her detriment. The justices reject this claim for two reasons. First, there’s nothing in the complaint alleging that the individual defendants intentionally withheld the information. It accordingly can’t be actual fraud.

The second reason will raise some eyebrows: “the defendants did not owe a duty to warn Jane or the other congregants about the complaints against King, so their silence cannot constitute concealment.” For this holding, the court cites a Fourth Circuit decision from 1999 in a breach-of-contract case between two banks. There, the Fourth had held that “Silence does not constitute concealment in the absence of a duty to disclose.”

Applying this ruling in the context of sexual molestation of a juvenile is enough to cause me to squirm just a bit. The Supreme Court today holds that church defendants who know about a pastor’s propensity to commit acts of sexual misconduct owe no duty of disclosure to persons who may be endangered by the pastor. My best guess is that John Q. and Jane Q. Citizen would be surprised by this, even if lawyers understand that there’s judicial precedent for the holding. Those laymen will likely regard this ruling as a way to protect sexual predators.


Analysis of April 22, 2021 Supreme Court Order




(Posted April 22, 2021) There are no published opinions or orders from the Supreme Court today, but we do get an interesting unpub. On the likely chance that some of you will find it worthwhile, here’s a report.

McMurtrie v. McMurtrie comes to us from Chesterfield County. There, a settlor created a revocable trust. The declaration contained an in terrorem clause, stating that any beneficiary of the trust who sought to impair or invalidate it would thereby forfeit any interest in it. The declaration named three co-trustees, two of whom I infer are the settlor’s sons.

In 2019, the settlor asked the trustees to distribute the trust principal to him. Hey, he’s the only beneficiary, so he should be allowed to do that, right? But one of the three trustees balked, claiming that he, the co-trustee, had “absolute discretion as to distribution.”

The settlor then sued, asking for a declaratory judgment that the no-contest clause didn’t apply to him because, well, it was his trust. The trustees answered, and then the settlor sought summary judgment. He specifically requested a declaration that (1) the no-contest clause didn’t apply to him at all, or (2) if it did apply to him, it didn’t impair his ability to terminate the trust as allowed by statute, or to sue the trustees for breach of fiduciary duty.

The circuit court was obliging; it gave the settlor about as complete a victory as he could wish for. The court ruled that the clause didn’t apply to the settlor, and that the settlor could terminate the trust and sue for breach of fiduciary duty.

After a clobbering like that, the trustees were relieved to get a writ. Today, the Supreme Court reverses on the only appealed issue. It rules that under the plain language of the trust declaration, the no-contest clause does apply to the settlor, even though it’s his own trust, because he’s plainly a beneficiary. During his lifetime, he’s the beneficiary; the only others are contingent upon his death. The courts don’t get to rewrite unambiguous trust language.

This looks like a complete win for the trustees. Ah, but note the way I phrased that line above: The justices reverse on the only appealed issue. The trustees hadn’t appealed the findings that the settlor could terminate the trust and sue them for breach of duty.

Uh-oh. That means that the settlor has an easy way to get his way: He just files a petition under the statute to terminate the trust. That statute provides that the circuit court shall enter an order modifying the trust, and the circuit court here has already ruled, in an unappealed finding, that the settlor has the right to do that. Whether the settlor chooses to go ahead and sue for breach of fiduciary duty is up to him, though it might in theory be a way for him to recoup his attorney’s fees for this case and appeal.

This ruling is a second-cousin of the Manchester Oaks doctrine, which refers to a 2012 SCV decision. There, the Robes held that if a judgment rests upon two or more independent grounds, and the appellant appeals only one of those, the Supreme Court will summarily affirm on the unappealed ground. McMurtrie is a cousin and not an identical twin because the relief requested isn’t identical for the three claims. Today’s order gives the settlor an easy roadmap to a victory, despite his technical loss today.


Appellate News and Notes




(Posted April 20, 2021) Here are a couple of quick notes on recent developments in the appellate arena.


SCV’s April session begins

I’ll begin with a slight digression. Having been happily married now for 32 years, 11 months, and 13 days, I’ve learned a few things about marriage. I will accordingly employ here the three little words that every wife yearns to hear her husband utter:

I was wrong. (You were expecting three other words? Then you must be male. Ask any wife.) This morning, the Supreme Court of Virginia gathers for the April session. To my great surprise, there are 20 appeals on it. That’s twenty; it wasn’t a typo. This is the session in which I expected pandemic-driven scarcity to strike the justices’ merit docket. With the abrupt halt of jury trials last year, I figured that final judgments would drop off a cliff, and given the lead time between circuit-court final judgment and Supreme Court merits argument, a major slowdown right about now was inevitable.

It was plenty evitable, as this week’s docket shows. The court has scheduled four days’ worth of arguments for the second straight session.

What happened? Did the justices suddenly become writ spendthrifts, awarding appeals with a front-end loader? (I doubt it; they still use tweezers, from what I can tell.) Did circuit-court judges start making lots of obvious mistakes? (I’m not going there.) Is the dropoff in circuit-court judgments not as steep as I had figured?

Actually, that one’s the likeliest explanation, though I’m quietly rooting for the first one. According to 2020 caseload statistics for the circuit courts, the number of final civil judgments in those courts dropped 12% last year, a far smaller reduction than I had expected. Criminal convictions – where the sentencing order is the final judgment – were down 25%. The only category where business was up was – get this – concealed handgun permits. Those blew the roof off the courthouses, rising 63% over 2019 levels.

Here’s yet another digression, because these matters almost never wind up in appellate courts: I see two likely explanations for the spike in gun-permit applications. First, a new law requires that applicants after January 1, 2021 complete an educational course first. Many folks no doubt wanted to get the permit before that requirement kicked in. (The Governor pushed the deadline back by a couple of months, but I think it’s in effect now.) The second reason is that Joe Biden won the presidential election, and some folks evidently worried that he would try to take away their guns, no matter what the Second Amendment says. For the last two months of 2020, circuit courts received over 45,000 permit applications; over a similar period in 2019, only about 20,000 citizens applied.

On March 18, I posted a prediction that 2021 would see a dramatic reduction in the Supreme Court’s yearlong caseload. It’s too early to print those three little magic words about that forecast, as the year’s three final sessions may or may not show such a drop. But I remain confident about my 2022 prediction. With Virginia’s shift to a system of of-right appeals in the Court of Appeals before one may petition the justices, there’s almost no way to avoid a significant drop in the SCV’s incoming caseload next year.


An expanding market for appellate talent

Recently I participated in a chat with some pals in the ABA’s Council of Appellate Lawyers about how to develop an appellate practice. My colleagues and I gave the congregation dozens of ideas, but I was sure to include this one for folks looking for more appellate experience: “Move to Virginia.”

The expansion of the CAV won’t just generate the need for seven new judges. Think of all the appellate-lawyer jobs that will sprout here. For one easy example, the new law calls for the Office of the Attorney General to handle all criminal appeals from the start. Right now, Commonwealths’ Attorneys prepare and file briefs in opposition to criminal petitions for appeal; the AG only steps in if the CAV or the SCV grants a writ.

Starting next year, an appellate lawyer will get a file as soon as a criminal defendant notes an appeal. This means that the OAG will need plenty of new lawyers to handle the increased workload. I’ve seen one estimate as high as 50 new AAGs, all handling appellate work.

It doesn’t end there. Seven new appellate judges will need two law clerks each. The Chief Staff Attorney in the Court of Appeals will need more lawyers, too, to process civil and criminal filings. I don’t know whether the legislature budgeted for additional Appellate Defenders, but that would be a logical move, especially with the end of jury sentencing on July 1. (Update April 22: I’ve learned that the General Assembly has budgeted for an additional 27 Assistant Attorneys General and eight additional lawyers for the Indigent Defense Commissions, presumably to handle appeals.)

One last angle on this: In the course of this year, ten Virginians will be appointed to existing vacancies in the CAV (seven seats), the Fourth Circuit (one), and the Eastern and Western Districts (one each). Those ten people will either be current lawyers or current lower-court judges, and lawyers will eventually replace any elevated judges. Not all of the ten lawyers who thus remove themselves from the pool of practitioners will have been appellate lawyers, but I foresee that at least some will. That, too, will contribute to the appellate-lawyer deficit here in the Commonwealth. It’s a good time to be carrying an appellate briefcase in Virginia.


Analysis of April 15, 2021 Supreme Court Opinions




(Posted April 15, 2021) Today is the traditional deadline for filing federal income tax returns. It’s different this year, as so many other things are different this year; the government has given taxpayers another month. But in my childhood, this was an important day because my late father was an accountant. This meant that for the last half of March and the first half of April, he usually worked 100-hour weeks, coming home well after midnight six days a week, and at dinnertime on Sundays. I only dimly appreciated back then how grueling that was.

The day after the tax deadline was important, too. On that morning, my family was careful to make as little noise as possible, “so Daddy can sleep.”



The Supreme Court today provides guidance on what a plaintiff must establish to prove damages. The case is Northern Virginia Kitchen, Bath & Basement, Inc. v. Ellis, and comes to us from the Loudoun County Circuit Court. The appellant is a company that specializes in remodeling homes. It employed the appellee, Ellis, as an independent contractor to perform that kind of work.

Shortly after Ellis started work, the company assigned him to install a bathroom for a homeowner. The relationship between the homeowner and the company soured, and she canceled the contract. But she seemed to like Ellis, so she asked him to continue to perform the work. He agreed to do so.

When the company’s owner found out about this, he angrily left voice mails on Ellis’s phone. It wasn’t pretty:

He left two angry voicemails on Ellis’s cellular telephone stating, among other things, that Ellis had made “a ni***er move” that would not work out well for him; that “we don’t play that s**t down here in Virginia, boy;” that he had “better not see [Ellis] over there [at Ms. C’s house];” and he had “motorcycle clubs and gangs around” and that Ellis was in “the wrong part of town to be playing that dirty s**t . . . .” Powell also said that he had hired Ellis “for his color;” because he is “black” and “a minority,” but that Ellis had “pulled the same s**t that f***ing black people around here do” and had “ruined it for the next black man.”

Ellis told the president to stop calling him, but the calls continued.

The company eventually sued the homeowner because she had posted online copies of the president’s messages to Ellis. Perceiving that suing the homeowner alone wasn’t enough, he added a claim against Ellis for defamation and conspiracy. Ellis countersued for racial harassment and stalking.

The circuit court dismissed the company’s suit, leaving the counterclaim for adjudication. The company eventually admitted liability, leaving only the issue of damages for trial. A jury awarded Ellis $100,000 in compensatory damages and $150,000 in punitives. The trial judge denied a motion to set the verdict aside and entered judgment on the verdict.

On appeal, the Supreme Court evaluates the company’s argument that Ellis’s testimony wasn’t sufficient to support a compensatory award, and that without a valid compensatory award, punitives were impermissible. The justices note that while Ellis didn’t call the police or incur any medical expenses. Citing a string of earlier decisions, they hold that mental anguish alone is enough to create a jury issue on damages.

The court specifically rejects the company’s argument that a single line of testimony by Ellis should scuttle his case. He testified on cross-examination that the company involved him in a lawsuit that he had nothing to do with, so he filed a counterclaim.

The company argued that under Massie v. Firmstone – the venerable decision holding that a plaintiff can’t rise above his own testimony – the motive for the suit wasn’t to redress emotional distress, but as retribution for getting sued. The justices don’t buy into this, noting that a person’s motive for filing suit is immaterial to whether he has sustained compensable damages.

I caution my readers about reading too much into this ruling. It’s important, of course – published opinions generally are – but please remember that Ellis stated statutory causes of action that expressly provide for damages for violation. The court might not be as expansive in its views of some common-law claims.


Real estate

It all started in 1875. In that year, 15 horses ran the first Kentucky Derby; Henry Morton Stanley, having found Dr. Livingstone four years earlier, continued a grueling transect of central Africa; and a couple named Edna and Levi Lynn took $5 in exchange for an acre of land, conveying it to a church in Prince William County. While the first two items made all the news that year, it took 145 years for the Lynns’ deed to become controversial.

Canova Land and Investment Co. v. Lynn relates the tale of the deed, in which the couple gave the land to the church “to use it for the worship of God,” expressly noting that the property would “revert to the grantors or their heirs if it ceases to be used for the purposes expressed in the deed.” For over a century, that use continued without incident.

In the 21st Century, the corporate successor to the original unincorporated church took out a $1.37 million loan, giving the one-acre tract plus another four acres as collateral. Alas, the timing was poor; the loan occurred in 2007, just before the great recession humbled the American economy. The modern church did what it could, but default followed in 2011. The bank foreclosed.

At the sale, Canova Land, a subsidiary company of the bank, bought the five acres. At that point, someone did what the bank should have done back at the loan-processing stage: a full title examination. That exam showed the conditions set forth in the 1875 deed.

As a former title examiner myself – baby lawyers used to do that kind of stuff back in the medieval period, when I started practicing – I’ll offer this defense of the examiner: He or she traced the title all the way back to 1900. Most title exams go back about 60 years, so this was arguably diligent. But missing the deed into the mortgagor’s grantor was a vital oversight here.

Canova Land did the sensible thing: It filed a suit to quiet title, asking for a judicial declaration that it had fee simple title. The Lynns’ heirs replied that the limiting language in the old deed was perfectly permissible and entirely enforceable. They cited the Commonwealth’s strong preference for charitable donations, and asked the court to rule that if Canova Land were to use the land for a purpose other than “the worship of God,” then title to the acre would revert to them.

The circuit court held that the deed created the complicated beast known as a fee simple determinable subject to a possibility of reverter. This passage will no doubt stir dim, nauseating memories for my readers who hated taking Property in law school. Bear with me, folks; I’ll sandpaper the rough edges for you.

The judge ruled that the restrictions on the use of the land were permissible, so the Lynn family still could claim the land if the use changed. On appeal, the Supreme Court unanimously agrees. This isn’t a restraint on alienation, which is disfavored; it’s a restraint on use, which can be upheld if it’s reasonable. The court sees nothing unreasonable about this limitation.

Justice Mims’s opinion contains this wonderful passage: “Canova claims that upholding the restraint would significantly limit its ability to develop the land for arguably more efficient purposes, and would, to quote Minor [on Real Property], ‘put the lands of the living in the cold grip of the hands of the dead.’” The court sympathizes, but rules that the interest in promoting charitable giving outweighs the company’s interest in developing the property.

So what happens now? Presumably the company can offer the Lynn family enough money to purchase their interest in the reversion. If it can do that inexpensively enough to go on with its unspecified development plans, then the project will be a go. In the meantime, the property is still used for religious purposes, and will continue to be so used until and unless such a deal blooms.


Unreasonable refusal

The water, not the roads, is the tableau for today’s ruling in Green v. Commonwealth, a civil conviction for unreasonable refusal to take a breath or blood test after an arrest for boating under the influence of alcohol. The principles are the same, though, so this decision will apply to DUI refusals, too.

A VMRC patrol tried to stop Green while he was boating one evening. He tried to bolt, but as so often happens, he was caught and charged with boating under the influence. He refused to take a breath or blood test after failing a preliminary test.

At the ensuing trial, Green tried to cross-examine the arresting officer about the claimed probable cause for the arrest. The circuit court sustained an objection to this testimony because Green hadn’t brought a suppression motion before trial, as required by statute. Green – no doubt a faithful reader of VANA, and up on his preservation requirements – sensibly proffered the evidence that he would have adduced to show that the arrest was without probable cause. At the close of the case, the trial judge got ‘im, so Green appealed.

Because this is a civil charge, the appeal went straight to the Supreme Court. (This path will be overtaken by events starting in January 2022.) Today a bare majority of the court reverses and sends the case back for a retrial. We don’t know the identity of the author of today’s order, but it must have been one among Justices Goodwyn, Mims, Powell, and McCullough.

The majority rules that the statute only requires a pretrial motion when the defendant seeks to suppress evidence. Green, the opinion points out, wasn’t trying to suppress anything and wasn’t making a constitutional challenge. He was offering evidence against one of the elements of the charge, a valid arrest. Because the trial court prohibited him from introducing that evidence, the court remands so the circuit court can consider that evidence in the first instance.

Justice Kelsey, joined by the chief justice and Justice Chafin, pens a dissent in which he argues that the name of the motion isn’t the issue; its substance was identical to the argument that would be made on an ordinary suppression motion. The dissent scoffs at the suggestion that there was no constitutional issue here, because the validity of an arrest is measured by Fourth Amendment standards.

I’m a little surprised that this is a published order instead of an opinion. It still carries precedential weight; that’s what publishing something gives you. But the court, as usual, offers no explanation for the distinction.


Analysis of April 8, 2021 Supreme Court Opinion and Orders




(Posted April 8, 2021) The Supreme Court of Virginia decides one appeal by published opinion this morning. Bryant-Shannon v. Hampton Roads Community Action Program, Inc. rises from a defamation suit filed by a former executive-level employee of an organization that addresses poverty-related problems in the southeastern corner of the state.

The employee sued the organization based on statements placed in her personnel file and on statements made in a Virginia Employment Commission proceeding after her termination. The circuit court sustained a demurrer and dismissed the suit.

Today the Supreme Court unanimously affirms the dismissal. The court reviews the statements in the personnel record and agrees with the trial court that they don’t contain the requisite sting to maintain a defamation action. Here’s one example:

[O]n September 9, 2015, you . . . engaged in several email messages concerning the minutes of one of our board meetings. You also emailed Mrs. Ben Shalom about the status of one of the agency vans. You were engaging in these activities while you were on vacation. I am requesting that when you are on vacation, please refrain from any communication with staff unless it is an emergency.

The justices today hold that this isn’t defamatory; it’s a request for future actions.

The issue that probably gets this opinion published relates to the second class of claimed defamation, the statements in the VEC proceeding. A statute bars the use of information provided to the VEC in judicial or administrative proceeding. In a ruling of first impression at this level, the court holds that this statute confers absolute privilege to those statements.


*   *   *


In an unpublished order, the Supreme Court also dismisses Sheehy v. Williams, an appeal that I discussed here back in November. There, a plaintiff got a money judgment for about $50,000. The defendant noted an appeal and got a writ. During the pendency of the appeal, the defendant sold her home. To enable her to convey good title, the settlement agent paid off the judgment, which would otherwise have impaired the buyer’s title.

The judgment creditor then moved the Supreme Court to dismiss the appeal as moot, because the appellant had paid the judgment voluntarily. Because these facts occurred after the record was finalized, the justices remanded the case to the circuit court for factfinding on what had happened.

The learned judge duly answered the justices’ questions. That told the Supreme Court that the appellant had known about the judgment payoff and hadn’t objected to it. The Supreme Court today rules that this indeed moots the appeal.


In another unpublished order, the justices address an unusual procedural quirk arising from a Batson challenge. In Bryant v. Commonwealth, the defendant demanded a jury trial on a charge of unreasonable refusal to take a breath test.

After voir dire and just before the jury was seated, Bryant’s lawyer noticed that the only black member of the venire had been struck by the prosecution, and requested the opportunity to make a motion outside the jury’s presence. The court accordingly directed the selected jurors to wait in the jury room and the other veniremen to wait in another area.

Bryant’s lawyer noted that his client was black, and the Commonwealth had removed the only black venireman with a peremptory strike. After argument, the court ruled that the strike was impermissible, but doubted that enough veniremen was present to start the selection process anew. Bryant’s lawyer told the court that the only remedy he sought was to restore the struck black venireman, expressly adding that the request didn’t include empaneling a new jury.

The court decided to fashion what it thought was an appropriate remedy: It added new veniremen and gave each party one more strike. The ensuing jury convicted Bryant.

After trial, Bryant’s lawyer renewed the motion to reseat the struck juror, this time arguing that the only legitimate option was to empanel a new jury. In oral argument, though, the lawyer only argued for reinstatement of the black venireman.

On appeal, Bryant urged the Supreme Court to hold that the circuit court should have either reinstated the struck venireman or empaneled a new jury. But because the lawyer had disavowed the new-jury alternative when it mattered – at the time of the Batson challenge – the justices refuse to consider it.

That means that the only issue on appeal is whether the court abused its discretion in using the approach described above. The justices today agree with the trial judge that merely reseating that venireman would be problematic because it was clear that she had initially been struck – remember, she was part of the group that had been set apart from the initially selected jury – and might foreseeably hold that against the Commonwealth in the trial.

In a footnote at the end of today’s order, the justices note that the question of whether the circuit court’s approach was proper or not isn’t before them, because no one assigned error to it. Today’s ruling is limited to the question whether the circuit court acted within the bounds of its discretion in not reseating the struck venireman.


Notes on an Eventful Week




(Posted April 2, 2021) As we endure one last assault from Old Man Winter – the temperatures here are typical of mid-January – let’s reflect on developments in an especially meaningful week in the Virginia appellate world.


An appellate revolution

It’s happening. On Wednesday, the Governor signed Senate Bill 1261, creating an appeal of right in all cases. Virginia has finally caught up with the rest of America after having been left behind for years.

Effective January 1, 2022, all appeals from Virginia courts of record will go directly to the Court of Appeals. The Supreme Court of Virginia will become a court of pure certiorari, reviewing CAV appellate decisions (with very few exceptions, such as attorney discipline proceedings). This is a massive change, at least as significant as the creation of the CAV back in the 1980s. It will require a host of new jurists – the plan adds six seats to the CAV – plus more support staff, assistant attorneys general, and so forth. It’s a good time to be an appellate lawyer in Virginia.

I’ve heard that CAV Chief Judge Marla Decker has asked that the General Assembly expand the court as of July 1, 2021, so the newly configured court can get up to speed. Some of the new appellate judges may come from trial benches, creating a ripple effect of new appointments downstairs, too. (Legislators love handing out robes.)

You should expect the newly elected judges to better reflect the diversity of Virginians as a whole. The current set of judges is overwhelmingly white (9 out of 10) and almost as male (7 of 10). Significant geographic areas of the state are underrepresented or wholly unrepresented; you should expect new judges from those areas.

The legislature will probably also seek more diversity in practice areas. Eight of the current judges are former Commonwealth’s Attorneys or AAGs; the other two handled insurance defense. There are no former public defenders, plaintiff’s tort lawyers, Workers’ Comp practitioners, divorce lawyers, condemnation lawyers; and the list goes on. That’s about to change.

The practice of appellate law will change, too. Getting an immediate merits review, without having to pursue a writ, will make appeals more attractive. You still won’t see a huge reversal rate, but the Supreme Court now grants so very few writs that most circuit court judges can feel confident now that the odds are small that their rulings will ever be reviewed on the merits. That, too, will change, as an appellee must deal with the fact that there’s going to be a written opinion in every case that’s appealed.


E-filing is here to stay

Yesterday the Supreme Court announced significant rule changes, effective June 1. The main thrust of them is that the courts will stop accepting paper filings of pleadings, briefs, and motions. Everything will be filed electronically now through VACES. The only exception is the trial-court record, and you as practitioners don’t have control of that anyway. Oh, you can get an exemption to file paper documents if you can convince the court to give you one, but don’t expect that. Inmates filing pro se can file by paper, but if you’re willing to commit a felony just to be able to file on paper, well …

This change is likely to reduce the costs of appealing. The current rules allow costs for brief printing, but what will those costs be now? Code §17.1-605 provides for taxation of costs for the actual cost incurred “in printing or otherwise reproducing” briefs and the appendix. SB 1261 didn’t change that; but where nothing actually gets printed, will the appellate courts allow anything?

If you’ve invested money in brief-printing consultants, it’s now too late to sell your stock; it’s probably already tanked. I strongly suspect that all such companies have reworked their billing model so that it’s no longer based on the number of pages printed. Those companies that still bill by the reproduced page will be scrambling now.


First Quarter David-Goliath Index

With three months in the books, it’s time to see how our little guys and big guys fared in Supreme Court litigation so far this year. The court handed down ten published or unpublished merits rulings that fit our criteria: an identifiable big guy/little guy dispute. That means no divorces, no intercorporate squabbles, and no boundary-line suits.

In published opinions, our Davids won twice and Goliaths four times. For unpubs, Goliath was undefeated, 4-0. That gives us an inaugural D-GI of 2021 of 20/80. David is off to a slow start, but with a small sample size like this, that could change. Back to you in early July.


Virginia Supreme Court clears the way for Charlottesville to take down statue of Robert E. Lee

Virginia Supreme Court clears the way for Charlottesville to take down statue of Robert E. Lee

By Gregory S. Schneider, The Washington Post – 4/1/2021

RICHMOND — The Supreme Court of Virginia has cleared the way for the city of Charlottesville to take down the statue of Confederate Gen. Robert E. Lee that was the focus of 2017’s deadly Unite the Right rally, and the ruling appears to open the door for statue removals around the state.

The Charlottesville City Council voted to take down both the Lee and a nearby statue of Stonewall Jackson shortly after the rally in which white supremacists defended Confederate iconography, with one of them driving his car through a crowd of counterprotesters and killing a young woman.

But several local residents sued to prevent the statues from coming down. They argued that a state law passed in 1997 prohibited localities from removing Confederate war memorials.

A circuit court judge agreed and placed an injunction against any removal, even ordering the city to pay court costs.

The city appealed, and Thursday the Supreme Court of Virginia ruled that the 1997 state statute applies only to monuments erected after the law was adopted.

That law provides authority for localities to create war memorials and monuments, and the prohibition on taking them down “only applies to monuments and memorials erected prospectively under that statute’s grant of authority,” the court wrote.

“The statute has no language which imposes regulation upon the movement or covering of war monuments and memorials erected before [the law] was enacted,” the justices ruled.

The court found that Charlottesville is free to take down its statues, which were erected in the 1920s.

But L. Steven Emmert, a Virginia Supreme Court analyst, said the ruling appears to clear the way for such statues to come down statewide.

“Most of the statues that were erected for Civil War leaders or veterans were put up in a period roughly between the 1880s and 1920s. What this means is that none of those monuments are governed by this statute,” Emmert said. “That means localities are free to consider whether they want to continue to display them. It means they can take them down if they want.”

The General Assembly passed a law last year that set up a mechanism for localities to take down statues after a lengthy public review process. Emmert said he was uncertain how Thursday’s ruling affects that law.

Amid last summer’s protests over racial inequity, triggered by the killing of George Floyd while in police custody in Minneapolis, one of the localities that used the new law to take down a statue was Albemarle County.

Supervisors voted to remove a statue of a Confederate soldier outside its courthouse, which is in downtown Charlottesville, a short distance from the Lee statue.

Analysis of April 1, 2021 Supreme Court Opinions




(Posted April 1, 2021) On this national holiday – it is a holiday for baseball fans, anyway – the Supreme Court of Virginia hands down rulings in seven argued appeals. Five of those are published opinions.


Local government

Cue the battalions! Line up the partisans on both sides! Today the Supreme Court decides City of Charlottesville v. Payne, the litigation over Charlottesville’s decision to remove statues from and rename parks dedicated to Generals Lee and Jackson, of Civil War fame. In such litigation, we may justifiably expect stirring discussions of political and military history and a highly charged discussion of the place of such monuments in modern society.

Well, actually, this ruling is about grammar. That’s all. No fireworks; no cannon; no stirring speeches.

After Charlottesville decided, in the wake of the August 2017 civil disturbance in the City, to remove the Lee and Jackson statues, several local citizens sued to enjoin the removal. They cited a 1997 statute that allows localities to erect war memorials, and bars anyone, including the locality itself, from disturbing or interfering with them thereafter. (Do you realize how hard it is to distinguish between statue and statute while typing? Gives me yet another round of respect for my capable legal assistant, the estimable Cathryn Chitty, who types my briefs and pleadings.)

The circuit court agreed with the plaintiffs; it declared the removal resolution to be in contravention of the 1997 statute, enjoined any removal or disturbance, and awarded the plaintiffs attorneys’ fees. The justices agreed to take a look at the case.

Justice Goodwyn pens today’s unanimous opinion. As noted above, the decision comes down to parsing the language of the statue – I mean, statute – and the court finds that all of the provisions therein are in the present tense. That means that the statute only applies prospectively: It only governs monuments erected pursuant to the statutory grant of authority.

The Jackson statue first rose in 1921; the monument to Lee came three years later. That means that the City isn’t bound by the 1997 act, at least for the purposes of these pre-1997 monuments. The court thus reverses and enters final judgment for the City.

You were expecting fireworks?


Attorneys’ fees

We’re all familiar with the American rule on fees. That rule states that each party generally must bear its own legal expenses. There are few exceptions: fee-shifting statutes or contract provisions, plus the occasional fraud award. Today the court considers whether to add another exception. The case is Bolton v. McKinney, and comes from Rockingham County.

The warring parties here are former business partners. When the relationship soured and they partners separated, McKinney filed lawsuits against Bolton. These actions led to the collapse of the business and Bolton’s bankruptcy.

In bankruptcy court, the two entered into an agreement. In exchange for $25,000, McKinney gave Bolton a covenant not to sue for any matters within the scope of the agreement.

That didn’t end well; McKinney sued Bolton anyway; three times, in fact. The courts dismissed those suits, citing the covenant. Bolton then sued McKinney for breach-of-contract damages. The damages that he claimed were his attorneys’ fees in defending the three actions.

A judge designate heard the matter and ruled that McKinney had indeed breached the covenant. But after pondering the matter, he ruled that the American rule barred an award of fees as damages. Bolton got a writ.

Justice Mims turns his efficient pen to the task of drafting today’s unanimous opinion. (Careful courtwatchers know that Justice Mims is one of the two most concise writers on the court, along with Senior Justice Russell.) The justices acknowledge that the question presented here – whether attorneys’ fees are recoverable as damages in a suit for breach of a covenant not to sue – is one of first impression in Virginia.

Courts elsewhere have come down on both sides of this question. Some rigorously apply the American rule, while others have held that in suits like this, fees are the damages; they’re the only thing that will make the wronged plaintiff whole. The Supreme Court today agrees with the latter approach, holding that attorneys’ fees may be awarded in suits like this. The court remands to circuit court for calculation of those damages – and, presumably, appellate attorneys’ fees.


Expert-witness disclosures

One of the happiest aspects of an all-appellate practice is that I don’t have to fill out disclosures under pretrial scheduling orders. I’ve never prepared one in my entire career; nor have I ever litigated a John Crane motion. The disclosures of two experts form the backdrop for Galloway v. Northampton County, involving a challenge to real-estate tax assessments by a county and town.

Galloway owns property near the Town of Cape Charles, a beautiful spot off the shores of the Chesapeake Bay on Virginia’s Eastern Shore. The property spans the town/county line. Galloway sued both jurisdictions, claiming that they had overvalued his property in the wake of the 2008 recession and its concomitant depression of land values.

I tried a number of these challenges in my previous life in the City Attorney’s Office here in Virginia Beach, so I can tell you that you absolutely, positively need expert witnesses – specifically, real-estate appraisers – to prove your case. Galloway identified two, and the circuit court struck them both, leaving him powerless to prove his case. The court accordingly dismissed the lawsuit. Here’s what happened to prompt those rulings.

Galloway identified Expert #1 back in 2015, just before an unexplained three-year pause in the proceedings. He did so in interrogatory answers, specifying the expert’s name, credentials, opinions, and the basis for those views. This document was a unified response: It began with interrogatory answers, then set out responses to document requests. The client signed the interrogatory answers under oath, as required; the lawyer signed the RPD answers but not the interrogatories. He also signed the certificate of service at the very end.

Years later, just before trial, Galloway’s lawyer noticed that he hadn’t signed the interrogatory answers. Without prompting, he signed them and filed that. The circuit court ruled that his eleventh-hour signature made the disclosure of Expert #1 effective on that date, well beyond the 90-day disclosure deadline. The court accordingly excluded that expert.

The problem with Expert #2 was far simpler; Galloway first identified him roughly 100 days before trial, saying only that he would provide testimony details later. But he didn’t provide those details for two months, well after the 90-day cutoff. The court struck this expert, too.

On appeal, the Supreme Court analyzes the two exclusions separately. For Expert #2, the court has little trouble in affirming. The localities didn’t receive any details about the expert’s opinions until about a month before trial. Under circumstances like these, circuit courts have the discretion to exclude the witness, to avoid surprises just before trial.

Expert #1 is different. The localities knew four years before trial what he would say. The signature omission was a minor matter in circumstances like this. The justices note that the lawyer signed the discovery-response document elsewhere. This brings to mind the Supreme Court’s 2008 ruling in Hampton Roads Seventh Day Adventist Church v. Stevens, where the court ruled that a testator who forgot to sign the signature line on a will, but had signed the self-proving affidavit on the next age, had “subscribed” the will.

Today’s opinion also notes that the remedy for an unsigned document like this is that it must be corrected “promptly after the omission is called to the attention” of the party. Galloway’s lawyer corrected it before anyone else noticed.

This is a no-harm-no-foul situation, and the Supreme Court today reverses the exclusion of Expert #1, holding that the exclusion was an abuse of discretion. And because Galloway asserted that he could make out his case with either expert, that means the suit goes back to circuit court for trial.



As I’ve noted before, I always find it dismaying when you find the same surname on both sides of the v. in litigation. Plofchan v. Plofchan is a contest over the trust of a family matriarch. It’s a complex factual and procedural setup, so I’ll just focus on the key rulings. If you want more detail on the facts and posture, click on the link; Justice Goodwyn does a good job of spelling everything out in understandable, though necessarily lengthy, terms.

There are two primary issues here. First, the court addresses a collateral-estoppel challenge to the lawsuit. Similar legal proceedings had made their way through the New York court system, leading to a final judgment. Today, the justices rule that collateral estoppel doesn’t bar this action because the issues aren’t the same, and the issue in the Virginia case wasn’t specifically decided in the New York trial.

Second, the justices take up the always-touchy issue of standing. The plaintiffs in the suit were the named trustees of the trust. The settlor – that would be the matriarch – had terminated the trust and “fired” the trustees (two of her children). When they sued to enforce the trust, the matriarch filed a plea in bar asserting that since they had been fired and the trust terminated, they had no standing to sue. After a non-evidentiary hearing, the circuit court agreed and dismissed the suit.

The justices reverse this ruling, too. They turn to elementary pleading concepts to do so. Because the circuit court decided the plea without evidence, the Supreme Court accepts the facts as pleaded in the complaint. That pleading asserted that the plaintiffs were in “office” and had the right to enforce the terms of the trust. The trial court had to accept that in deciding the plea.

The justices accordingly return the matter to circuit court for further proceedings. Note that that’s not necessarily a trial; I suspect that the matriarch can employ other procedural tools to defend this case short of a trial.


The court announces one other published opinion and two unpublished orders today. Each of these appears to me to be highly fact-specific, with little in the way of general application. As such, I’ll list them here so you can review them if you want.

Stafford County v. D.R. Horton, Inc. is a land-use decision where the court rules that a county can require new planning commission approval for a revised cluster development.

Bustos v. Commonwealth addresses a criminal defendant’s request to instruct the jury that Virginia’s geriatric-release statute is so little used as to be essentially ineffective. Predictably, the justices refuse to require an instruction like that.

Jung v. Park leads to reinstatement of a jury verdict in a fraud case. The circuit court had set aside most of a jury’s award of damages. In my experience, setting aside a jury verdict is the surest way for a judge to draw appellate scrutiny.


Analysis of March 25, 2021 Supreme Court Opinion




(Posted March 25, 2021) It’s a notable day in the appellate field. On a day when SCOTUS turns back a major challenge to the venerable International Shoe doctrine (see Ford Motor Co. v. Montana 8th Judicial Dist. Ct.), the Supreme Court of Virginia hands down a long-awaited decision in a significant tort case.

Today’s decision in Shoemaker v. Funkhouser addresses a form of vicarious liability. This is a tragic wrongful-death action in which the defendants gave their adult grandson permission to engage in target shooting on their 8-acre property in Shenandoah County. The shooter’s angle of firing was such that a stray shot hit a neighboring house, striking and killing a person inside.

The estate sued the grandparents alleging that they gave their grandson that permission knowing that he’d be shooting toward a house. The suit claimed that they had a duty to others to prevent this dangerous use of their property. A circuit court sustained the grandparents’ demurrer, citing lack of a duty and Virginia’s Recreational Use statute, Code §29.1-