LEGISLATURE FILLS VACANT CAV SEAT
[Posted December 27, 2011] Ive learned that Judge Jim Haley of the Court of Appeals has notified the Governor and the General Assembly that he will retire effective March 1. Judge Haley was elected to the court in 2005, so his term wasnt set to expire until 2013; this retirement is thus about a year before he would have been up for reelection in the legislature.
This announcement will set off yet another round of legislative deliberations on his replacement. As always, we don’t speculate on these matters here at VANA; but I can offer a couple of obvious hints for those who are looking for the morning line. First, of course, focus on candidates with Republican ties, since the GOP solidly controls the House of Delegates and holds the thinnest of margins Lt. Gov. Bill Bollings tie-breaking vote in the Senate. Second (and this is a bit more speculative than the first hint), consider the distaff candidates. Since the elevation of Judges McClanahan and Powell to the Supreme Court last July, the CAV has had no female jurists. The legislators are likely to at least take that circumstance into account.
One other consideration that may or may not play a role in the legislatures thinking is prior judicial experience at the trial-court level. The two men selected to replace Judges McClanahan and Powell, Judges Steve McCullough and Glen Huff, had zero days of experience behind benches before they were elected. Others, such as Judges Arthur Kelsey and Rossie Alston, served on trial courts before coming to the appellate level.
Read those numbers carefully, and keep in mind that even if you dont practice here in the southeastern corner of the state, other clerks are looking for ways to make ends meet, and they will hear about this move and perhaps copy it. (As I understand it, this round of cuts won’t affect appellate clerks.)
The obvious effect of this on trial lawyers is in meeting filing deadlines. If you have a brief due on a Thursday, you now need to ensure that it gets to the courthouse in the morning instead of the afternoon. Even if its a Tuesday, like today, and today is the last day of the statute of limitations, you will have to send your runner out an hour earlier to ensure that she gets your complaint to the courthouse on time. And if (heaven forfend) you have a notice of appeal due and today is Friday and its the 30th day and you just remembered in time and you’ve harried your secretary into typing it up as fast as she can, you cannot expect to run the notice down and get it filed right before 5:00 pm; if you do that, you will miss the jurisdictional deadline, and youll get to explain why to your client and your carrier and the State Bar.
The first two require some travel, but theyre emphatically worth it. On November 5 and 6, 2009 the Defense Research Institute will present its eighth Appellate Advocacy Seminar at the Hilton La Jolla Torrey Pines near
Two weeks later, November 19-22, the ABAs Judicial Division will convene whats officially known as the Appellate Judges Education Institute, but popularly known as the Appellate Summit. It will be held at the Regal Sun Resort, which is a Disney property in
One of the best features of both of these programs is the dine-around, where you sign up to go to a given restaurant (you can pick your preferred cuisine) and spend an enjoyable evening getting to know appellate advocates from around the country who share your interests.
GOVERNOR PROMOTES MILLETTE, POWELL TO APPELLATE BENCHES
[Posted August 15, 2008] Governor Kaine has today named Court of Appeals Judge Leroy Millette to the Supreme Court, filing the vacancy that was created when Justice Steve Agee left to head across Capitol Square to the Fourth Circuit. The Governor had appointed Millette to the CAV last year, and the General Assembly elected him to a full-time position on that court in February.
The Governor also elevated Chesterfield Circuit Court Judge Cleo Powell to the Court of Appeals to fill Judge Millettes seat.
Keep in mind that these appointments have limited shelf lives; they are only effective until thirty days after the next legislative session convenes in January. The General Assembly can elect either or both jurists to these posts, but it doesnt have to approve either. This year, appellate vacancies in the Commonwealth fell victim to partisan infighting in the legislature, as the Democratic Senate and the Republican House were unable to agree on candidates to replace Justice Agee (not to mention thirty or so other benches that sat vacant due to the political impasse). At least one Republican in the House has (according to a recent report in Virginia Lawyers Weekly) implicitly suggested that the body might not take kindly to any gubernatorial appointment.
But in reality, whats a Governor to do? The Constitution specifically directs him to make the appointment if a vacancy occurs outside a legislative session. Governor Kaine has, in my humble view, acted responsibly in declining to saddle
GOVERNOR APPOINTS MILLETTE TO COURT OF APPEALS
[Posted November 26, 2007] The Associated Press is reporting that Governor Kaine has appointed Judge LeRoy Millette Jr. to the Court of Appeals today. Judge Millette fills the seat recently vacated by the retirement of Judge Jim Benton, who had been the last active original member of the court from its inception in 1985.
Judge Millette comes to the appellate bench from Prince William County Circuit Court, where he has presided since 1993. He has also served at the General District Court level, and as an assistant Commonwealth’s Attorney.
Like recently appointed Supreme Court Justice Bernard Goodwyn, Judge Millette is subject to confirmation by the General Assembly, which convenes in about six weeks. His interim appointment expires, by operation of law, 30 days after the legislative session begins, unless he is first reappointed.
The appointment brings the court up to its full complement of eleven active judges. Five senior judges assist the active judges with the court’s substantial caseload.
A DISTANT APPELLATE CRISIS
[Posted November 3, 2007] As I type this, its mid-afternoon on Saturday, and Im in the process of finishing case analyses of yesterdays Supreme Court opinions. Normally I would not pause in that effort until I have completed it, but a news report I just saw is sufficiently scary that Ill change topics for now.
There are a number of things that can hold a particular culture together. In any given culture, that may be religion, or ideology; a body of common experience, or perhaps just geography. But only one thing holds a nation together, and that is its laws. If the rule of law cannot govern a nation, then only military force will.
The Pakistani high court was set to rule on Gen. Musharrafs claim of victory in the nations recent presidential elections, and the BBC reports that the court was expected to rule against the general. This declaration followed.
You may have seen last weeks reports that Benazir Bhutto, the nations former leader, had returned from exile. The reports Im seeing now (from MSNBC.com) are that she is sitting on a plane at
All of you will be readily familiar with the quotation, almost always taken out of context, from Shakespeares Henry VI, Part II: The first thing well do, lets kill all the lawyers. Its usually used as part of a lawyer joke. But Shakespearean scholars will tell you that, viewed in context, its a recognition of what lawyers do for a civilization. The speaker in the play is Dick the butcher, and hes talking about how to take over. Realizing that lawyers are the final guardians of a nations freedom, he recognizes that the most effective first step toward despotism is to remove those guardians.
Gen. Musharraf may or may not be planning to kill all the justices and in light of what Im seeing, I cant even put quotation marks around that phrase, which would indicate that it isnt meant completely seriously but he has evidently figured out that the best way to promote his own despotism is to ensure that the rule of law doesnt stand in his way.
At this point, I invite you to consider in earnest what prevents something like Pakistan’s situation from occurring here. I want you to think about that in earnest, not with a mere patriotic, knee-jerk “it couldn’t happen here” reaction. As a preface for what follows here, I will note that Justice Robert Jackson, a titan of American jurisprudence of the Twentieth Century, observed after the Nuremberg trials that Weimar Germany had had about as much protection, on paper, against despotism as the American Constitution affords us.
I attended law school in the late 70s and early 80s. The memory of the Watergate political crisis was still fresh in everyones minds, and I can recall, in that context, studying the Supreme Courts decision in US v. Nixon, deciding who would decide the validity of a claim of executive privilege. President Nixon had contended that the courts did not have the right, under the Separation of Powers Doctrine, to adjudicate his claim of privilege. You may recall that the Supreme Court of the
I recall musing at that time, What keeps the president from responding, How many legions has the court? and ignoring the order? The answer, ultimately, is the rule of law, and Americans deep respect for it. Nixon could conceivably have ordered the military (which was under his direction as Commander in Chief) to guard the White House against any determined United States Marshal who might have tried to serve some sort of legal process upon the president. Now youre talking about a major constitutional crisis.
Now youre talking about
I earnestly hope for a peaceful solu