NEWS FROM THE APPELLATE MILIEU
(Posted June 9, 2020) There’s plenty going on in the world, and appellate events might be overshadowed in the media. But not here! Let’s see what’s developing these days in the world of writs and reversals.
A new experience at the SCV
The Supreme Court of Virginia will convene its June session next week with the smallest docket I’ve seen in my career – just five appeals. The most recent session, in April, broke new ground by being the court’s first all-telephonic session, where no advocate got to see the justices. Next week’s will be a new experience, too, as the court will entertain audiovisual arguments for the first time. I don’t know if they’ll convene by Skype or Zoom or some other platform.
One interesting component that I don’t know yet is how the court will enable public access to the arguments. It is, after all, a public court, and whether you know it or not, you have a First Amendment right to watch (or, as in April, listen). The court livestreamed the audio of oral arguments in April, and presumably it’ll make some sort of arrangement for the public to follow this session, too.
The court has divided the docket into two days. The justices will hear two arguments on Tuesday, June 16, and three the next day.
A new judicial-emergency order
You may have seen word yesterday that the court issued another in its series of orders relating to the pandemic. This one responds to a request from the Governor for time to allow the Commonwealth to implement its rent-relief program. The order stays all eviction proceedings through June 28 – the last day of the current judicial-emergency declaration – for that purpose.
But there’s something unique about this one. This order has “the agreement of a majority of the Justices” of the Supreme Court. To the best of my knowledge, this is the first order that hasn’t been unanimous, though the very first one, on March 16, came from the chief justice alone. This means either that one or more justices couldn’t be reached to get consent, or that someone silently dissents from this grant.
If I had inside information on this, I’d … well, I probably wouldn’t blab. But I don’t, so I can only offer you my speculation: I think that someone refused to go along with this, probably for a reason like the absence of a case or controversy. No, I don’t know who the dissenter(s) might be.
Still a trickle of writs
I’ve noted recently the slow pace at which the court is awarding appeals. Normally I expect to see new writs on the court’s website two, three, and four weeks after the panel date, always posted on a Tuesday. But this environment decidedly is not normal. The most important aspect of this abnormality is the fact that the Clerk’s Office is operating with a skeleton in-office staff. That understandably slows the pace at which writs go out, as the office juggles a normal court docket with very few people to pitch in.
The slowdown started with the March 31 panels, the first set of arguments after the judicial-emergency declaration two weeks earlier. The first writs granted after that argument date went out on May 12, six weeks later. We saw six on the court’s May 19 posting, and another one the following week.
But that’s all. No new writs appeared last week, and I’m not seeing any today, either. That means one of two things. Either the Clerk will return to this task and finish issuing March-docket writs in the near future; or else these seven are all we’re getting from this batch. I think the March docket contained something like 65 petitions. If we only get seven appeals awarded out of that entire session – something like half the number I’m used to seeing – this represents yet another indicator that the court is getting ever stingier with writ grants.
A missed opportunity in the CAV
The Court of Appeals hands down one published opinion today. The appeal in Gomez v. Commonwealth succumbs to the most ruthless dragon-slayer in the appellate rulebook, the contemporaneous-objection rule.
A grand jury indicted Gomez for three felonies, including criminal street-gang participation and criminal street-gang recruitment. He opted for a bench trial. When the prosecution rested, his lawyer moved to strike the evidence on all counts, but offered no argument on the recruitment charge, even after the judge asked for one. The court denied the motion and, after receiving all of the evidence, convicted Gomez of both gang-related charges.
At a later sentencing hearing, the court imposed a prison sentence but stayed it. Gomez had hired a new lawyer, and the court agreed to allow that counsel to file post-trial motions. The new lawyer moved to set the conviction aside because there was no evidence of the use of felonious force, as alleged in the indictment. The trial judge wouldn’t bite, so Gomez headed for the Court of Appeals, which granted him a rare writ.
Alas, that’s the end of the good news for Gomez. The CAV panel unanimously affirms because the trial lawyer hadn’t made below the argument now raised on appeal: a fatal variance between the indictment and the evidence. A statute gives the Commonwealth the opportunity to amend in the event of such a variance, and waiting until after the conviction robs the prosecutor of this valuable tool.
The particular manifestation of the rule that governs here is the requirement that any objection to the indictment must be raised before the verdict. While there’s no jury here, the trial court’s rendition (announcement) of guilt serves as the cutoff for arguments like this.
Clouds gather in Washington
I know you’ve seen the storm clouds in the Nation’s Capital recently, as political events roil the city. But we’re interested in appellate clouds. The month of June is always the busiest time for hot-button appeals in the highest court in the land, and this year is no exception.
Amy Howe has posted analysis of the 19 remaining undecided cases argued this term at her website, Howe on the Court. There’s plenty of alphabet soup (DACA, CFPB, LGBT appeals); an abortion challenge that’s widely seen as an indicator of the current Court’s tolerance for Roe v. Wade; a couple of appeals dealing with the president’s long-promised financial information; and two cases relating to faithless electors in the Electoral College.
My readers know that I don’t customarily cover the Supreme Court of the United States; I leave that task to Ms. Howe and to the folks at SCOTUSblog, as they do a marvelous job. I may, however, post a few words about one or two of the more significant ones. The biggest ordnance usually lands in the last few days of June, as the Court customarily ends its term by June 30. It’s quite possible that we might see an opinion or two in the first couple of days in July, because the justices heard a last set of arguments in May, delayed by the pandemic.
Virginia Appellate Summit postponed
The planners of the 2020 Virginia Appellate Summit have decided to prize discretion over valor, and have made the judgment call to slide this year’s planned gathering back to next year. I’ll post news of that event when I get it. This is the best statewide gathering of appellate lawyers and jurists in the Commonwealth; if you’re serious about maintaining an appellate practice here, you need to attend.
A sentinel’s watch extended
I heard this last bit of news early this morning: Yesterday, a Richmond Circuit Court judge enjoined the Governor from his announced removal of the equestrian statue of Gen. Lee from Monument Avenue in the capital city. I’ve seen the order and have noticed a few things that merit comment, beyond the obvious rarity of a court’s actually enjoining the Governor from doing something.
First, the order appears to have been entered ex parte. It bears the endorsement of the petitioner’s lawyer, but nothing for the two respondents (the Governor and the Director of General Services). The court’s case-information page shows that the petitioner filed the suit yesterday and got a hearing at 4:00 pm the same day.
That’s significant because a statute authorizes a court to require reasonable notice to the respondent of the time and place for a temporary-injunction hearing “if it be proper that such notice be given.” There are only two possibilities here: Either the petitioner gave the barest notice to the Governor and Director, and the trial judge found that notice to be reasonable; or the petitioner gave no notice at all and the judge decided that no such notice was necessary. I cannot conceive that the latter of these two is what happened; I infer, but cannot confirm, that the petitioner’s lawyer dropped off a copy of the suit papers and a hearing notice – perhaps in a plain brown wrapper – at the Governor’s Office on his way to court.
Second, the petitioner’s lawyer knows something about injunctions. Specifically, he knew about Code §8.01-631, which provides that the injunction won’t take effect until the applicant posts an injunction bond. It goes on to state that the circuit court can waive the bond requirement if it finds that, because of the person seeking the bond, it is “improper or unnecessary to require bond.” The lawyer built a paragraph into his sketch order that makes a finding that it’s unnecessary to require a bond “given the circumstances of this case.”
Third, the sketch order, as originally drafted, reached a lot further than the learned trial judge was willing to go. The original draft specified a six-month injunction, but his Honor lined through that and substituted “10 days.” That means that the injunction will expire next Thursday, June 18, unless it’s extended or modified by then.
What does all this have to do with appeals? For the answer to that, we turn to Code §8.01-626, which allows a snap appeal from the grant or denial of an injunction. Here again, I have no inside information; but if I were forced to make a wager, I’d place a small sum on the possibility that the Solicitor General, Toby Heytens, and his deputies are even now crafting and polishing a petition for review. The folks in that office showed recently – just before the Second Amendment demonstrations in Capitol Square in January – that they’re capable of lightning work on short notice. We probably won’t have to wait long to find out.