NEWS AND NOTES FROM A TROUBLED LANDSCAPE
(Posted March 24, 2020) Here are some musings on matters that affect the appellate world, as we all struggle to find some semblance of normalcy in life.
CAV livestreams oral arguments
The Court of Appeals of Virginia has convened a panel today to consider one merits argument and several writ arguments. The court has decided to livestream those arguments, and presumably all such teleconference arguments going forward, so you can listen in on the proceedings. Here’s a link to the site.
Next week’s SCV writ panels
As I reported recently, the Supreme Court of Virginia has given petitioners a choice for the March 31 writ panels: accept a teleconference argument, or waive your argument. Counsel for those petitioners received a notice to that effect last week, and were given until today to notify the court of their choice.
For those lawyers who have chosen to argue remotely, there are precious few details for now. I believe that the court will likely send out a notice tomorrow, after it knows how many telecom arguments will be needed, giving everyone details. This will be a new experience for me; I have a writ argument next week, and I’ve chosen to argue it remotely. This will be the first time I’ve ever argued to the justices without being able to see their faces.
Fourth Circuit suspends argument requirement
The Fourth Circuit yesterday issued a standing order yesterday relating to its oral arguments, in light of the court’s cancellation of those arguments for March and April. By local rule, the court won’t issue a published opinion unless it has received oral argument. Yesterday’s order suspends that requirement, thus enabling the court, if it chooses to do so, to issue published opinions in some or all of those docketed appeals without argument.
Questions pend on appellate tolling
You’ll recall that the Supreme Court declared a judicial emergency on March 16 – can that have been only eight days ago? – by an order that governed proceedings in trial courts only. The order said nothing about proceedings in Virginia’s appellate courts. A few days later, the court posted an undated two-paragraph statement providing that the tolling applies to “filings related to appeals under Part 5 of the Rules of Court ….” It gives nonexclusive examples of the notice of appeal and of transcripts and written statements, both of which are filed in the trial-court clerk’s office. It then adds that it includes the filing of the petition for appeal, which goes to the appellate court. This is the first mention of a tolling provision for any filing in the appellate court.
I’ve received multiple queries from lawyers who wonder whether they have to file a brief in opposition that falls due in the next couple of weeks. My best answer is, “Probably not, but why take the chance? File it if you can.”
I begin with “probably not” because the statement says that the tolling applies to filings related to appeals, “including but not limited to” the list above. For most readers, that phrase clearly connotes a nonexclusive list. See A. Scalia and B. Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West 2012) at 132-33. But as the cited book indicates, some courts limit the list anyway, and you don’t want to become a test case here.
I’ve sought guidance from the court on this, since plenty of people are worried. There’s no further word thus far, but the court may issue something soon if it gets enough inquiries like mine.
More questions on SoL tolling
Back to the judicial-emergency declaration: Does it toll statutes of limitations? The document doesn’t say so, and I believe that the best reading of its language is that it does not. Clerk’s offices around the Commonwealth are still accepting filings, and because the order suspends “proceedings in all circuit and district courts,” I don’t believe it applies to suits that haven’t been filed yet. If you have a looming deadline, go ahead and file it now; statutes of limitations are ruthless, and there’s no safe-harbor provision for missing one, even for good cause.
And in non-Coronavirus news …
You may have seen that the General Assembly adjourned sine die without filling the Court of Appeals seat vacated by Virginia’s newest U.S. District Judge, Rossie Alston. That means that the Governor gets to fill the position. The last time that happened, in 2015, was a fiasco that I’d prefer to forget. This time, I strongly suspect that the Governor will consult with legislative leaders before announcing his choice. His appointment lasts until 30 days after the next General Assembly session convenes.