NEWS ON THE APPELLATE SCENE
(Posted June 1, 2020) Time for a look around the corridors of the appellate courts. Not the literal corridors, of course; they’re pretty much empty these days. Let’s be satisfied with the virtual ones for now.
State appellate courts shuttered
The Supreme Court and Court of Appeals of Virginia are closed today after demonstrations over the weekend in and around Capitol Square. The court system’s website contains this notice:
Due to the ongoing cleanup from the recent events in Richmond and areas around Capitol Square this past weekend, the Governor and Capitol Police have asked that state office buildings around Capitol Square close on Monday. In cooperation, the Supreme Court and Rose Lafoon Buildings will be closed on Monday, June 1, 2020. Court employees who have been teleworking or are able to telework should continue to do so tomorrow.
Yes, this means that if you have a deadline that expires today, you get another day, unto tomorrow. Just remember that the rule providing extensions for court closures only applies to the last day of a deadline period. If the court reopens tomorrow and that’s your normal deadline to file something, you don’t get an extra day.
Fourth Circuit issues operating notice
The Court of Appeals for the Fourth Circuit has posted this notice on its website, explaining operating procedures. The court continues to offer remote oral-argument options to litigants. The procedures are in effect through the end of August, though it won’t surprise me even a little to see them extended then.
A historic SCV argument docket
The Supreme Court of Virginia has notified litigants that it will consider just five appeals on the June merits docket. There are two criminal appeals, one State Bar disciplinary hearing, and two civil cases up for argument during the session week. My best guess is that the court will condense the schedule to a single day, assuming there is such a day that works for all of the lawyers arguing that day.
I introduced this passage by calling this docket historic. I can’t speak for the early years of the Commonwealth, but in all my time following the court, the closest I’ve ever seen to this five-appeal docket was the one containing just nine appeals this past January.
Unless the court awards a host of new appeals for argument and decision before the end of the year – and that’ll be a challenge, with trial courthouses shuttered – 2020 will give us historic lows in terms of the argument docket. The justices received oral argument in 52 appeals in the January, February, and April Sessions; these five make 57 for the entire year. If the current closure of courts extends much further – and it assuredly will – we could see comparably sparse session schedules for September and especially November.
The real mystery here will be whether the justices will again convene only remote, telephonic arguments, as they did in the April session, or will permit lawyers inside the building to argue in person. I don’t have any insight into that, but we’ll find out shortly.
SCOTUS hands mandatory bars a victory
This morning the Supreme Court of the United States denied certiorari in a case I’ve been watching for months, Jarchow v. State Bar of Wisconsin. This is a challenge to Wisconsin’s mandatory state bar on First Amendment grounds.
Here’s the setup: In 1977, SCOTUS ruled that public employees could be required to pay union dues, without violating their freedom of speech. That ruling came in Abood v. Detroit Bd. of Ed. Thirteen years later, in Keller v. State Bar, the justices applied that analysis to lawyers, holding that mandatory bar membership (and the mandatory collection of dues) was constitutional. The reasoning of Keller followed the Abood holding.
Two years ago, in Janus v. ASCME, the Supreme Court overturned Abood, holding that its reasoning was unsound. That led to this challenge by a Wisconsin lawyer in Jarchow. The appellant argued that he had a First Amendment right not to join that state’s bar. Keller’s vitality depended on Abood, and with Abood overturned, that left Keller without its decisional underpinning.
The Supreme Court’s cert denial this morning in Jarchow includes Justice Thomas’s short dissent, joined by Justice Gorsuch. The dissent concludes with this paragraph:
Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions. We have admitted that Abood was erroneous, and Abood provided the foundation for Keller. In light of these developments, we should reexamine whether Keller is sound precedent. Accordingly, I respectfully dissent from the denial of certiorari.
Keep in mind that a denial of cert isn’t a formal ruling on the ultimate issue in the case. It’s possible that a separate lawsuit alleging the same constitutional violations might grab the attention of at least four members of the Court.
You can see Justice Thomas’s dissent here; scroll down to page 5.