News Updates

LEGISLATURE FILLS VACANT CAV SEAT

 

[Posted May 15, 2012] Very late last night, the General Assembly elected Tazewell County Circuit Judge Teresa M. Chafin to a seat on the Court of Appeals of Virginia. Judge Chafin’s elevation fills the vacancy created by the retirement this year of Judge Jim Haley. This election brings the court up to its full complement of eleven judges, and marks the first time in years when all three appellate courts that meet in Richmond have been at full strength.
 
 
JUDGE HALEY TO RETIRE FROM COURT OF APPEALS

 

[Posted December 27, 2011] I’ve 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 wasn’t 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 Bolling’s 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 legislature’s 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.

 

Okay; from this point, you’re on your own if you want to guess the name of Virginia’s next appellate jurist.
 
 
BUDGET CUTS AFFECT CIRCUIT CLERK’S OFFICES

 

[Posted September 29, 2009]  I have received this morning a note from the Clerk of the Virginia Beach Circuit Court, announcing some cutbacks in service, concomitant to the Governor’s recent budget reduction for circuit court clerks.  Our clerk, Tina Sinnen, has had to make some major changes, the worst of which is laying off 11 people.  Other employees will be furloughed without pay.
 
But it’s the next part that will affect your practice most profoundly, if you’re down here in Tidewater.  Effective October 13, the clerk’s office here will be open Monday through Wednesday, 8:30 am to 4:00 pm, and Thursdays and Fridays, 8:30 am to 1:00 pm.

 

Read those numbers carefully, and keep in mind that even if you don’t 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 it’s 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 it’s 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 you’ll get to explain why to your client and your carrier and the State Bar.

 

I’m not sure what we can do to help the clerks, short of lobbying legislators for more money for them in the next session.  But there is something you can do for yourselves (and for your clients):  File early; and I mean days early.  Never use the last day, except for emergencies.  You will sleep better; the budget cuts will have relatively little effect on your practice; and the disciplinary committees will act as though they’ve never heard of you.
 
Important update:  I have learned from the Clerk that she will have a drop box available for filings during hours when the office is closed, and that anything deposited in the box before 5:00 pm will be marked filed the same day.  So you apparently won’t have to worry about missing a jurisdictional deadline because the office closed early.
 
I mused for a moment the possibility of not telling you this, so you’d go ahead and file early; but I’m not about to deceive my loyal readers, even if it’s for your own good.  I urge you to heed my advice anyway, and don’t use the last day.

 

 
 
THREE OPPORTUNITIES FOR QUALITY APPELLATE CLE
 
[Posted August 3, 2009]  Hungry for some excellent training in how to handle appeals?  Didn’t go to the intensive 2009 Appellate Practice Institute in Illinois in May?  (Don’t blame me; I told you about it.)  Have I got three deals for you . . .

 

The first two require some travel, but they’re 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 San Diego.  DRI has always put on top-notch programs, so this one gets an enthusiastic recommendation from me; take a look at the program listing and you’ll see the value.  Plus if you play golf, you can bring 14 of your friends (driver through putter) and see if you can hold your own on the course where Tiger and Rocco made history last year.  Note that while you must be a defense lawyer to join DRI, you don’t have to be a defense lawyer to attend this program.

 

Two weeks later, November 19-22, the ABA’s Judicial Division will convene what’s 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 Orlando, Florida.  You can combine the trip with some rollercoaster adventure, or even bring the aforementioned 14 friends and play one of the five onsite courses.  I attended the excellent 2007 summit in Washington, DC, and if you go to this year’s event, you might run into your humble scribe there.  The programs begin at 1:30 on Thursday and don’t end until almost noon on Sunday.

 

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.

 

If you’re allergic to traveling out of the Commonwealth, you should mark your calendar to go to Richmond on the afternoon of October 20 for the latest in a series of appellate practice symposia sponsored by the Virginia State Bar’s Appellate Practice Committee.  The topic is oral argument, and just like a previous program in northern Virginia last month, it will be scheduled to coincide with Supreme Court writ panels the next day.  If you get a notice to attend oral argument on October 21, here’s an opportunity to learn about effective appellate oral argument from some fine practitioners of the craft, just in time to incorporate the advice you get.  Like all of the previous symposia, attendance will be sharply limited, to ensure greater interaction between attendees and faculty, so this is an excellent learning opportunity.  I’ll post more details when they become available.
 

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 Millette’s 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 doesn’t 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, what’s 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 Virginia’s appellate courts with a shortage of jurists.  Now the ball is in the legislature’s court; we can only hope that the warring parties can settle their differences by January.


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, it’s mid-afternoon on Saturday, and I’m in the process of finishing case analyses of yesterday’s 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 I’ll 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.

 

Today, in Pakistan, even as I type this, military force is struggling with the rule of law for control of the nation.  In this instance, the military is focusing its efforts on cutting off the rule of law, by direct attacks on that nation’s appellate judiciary.  According to the report I have seen, the sitting president, Gen. Pervez Musharraf, has declared a state of emergency and suspended the constitution.  He has purportedly replaced the nation’s Chief Justice, Iftikhar Chaudhry, with one of his own supporters.  Nine members of the Pakistani Supreme Court have rejected the declaration.  Those justices have been escorted away from the court, ostensibly to their homes; I don’t know whether they will be safe.  The president of the Supreme Court Bar Association, an attorney named Aitzaz Ahsan, who had represented Chief Justice Chaudhry, has been arrested. 

 

The Pakistani high court was set to rule on Gen. Musharraf’s claim of victory in the nation’s 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 week’s reports that Benazir Bhutto, the nation’s former leader, had returned from exile.  The reports I’m seeing now (from MSNBC.com) are that she is “sitting on a plane at Karachi airport, waiting to see if she would be arrested or deported.”

 

All of you will be readily familiar with the quotation, almost always taken out of context, from Shakespeare’s Henry VI, Part II:  “The first thing we’ll do, let’s kill all the lawyers.”  It’s usually used as part of a lawyer joke.  But Shakespearean scholars will tell you that, viewed in context, it’s a recognition of what lawyers do for a civilization.  The speaker in the play is Dick the butcher, and he’s talking about how to “take over.”  Realizing that lawyers are the final guardians of a nation’s 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 I’m seeing, I can’t even put quotation marks around that phrase, which would indicate that it isn’t 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 doesn’t 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 70’s and early 80’s.  The memory of the Watergate political crisis was still fresh in everyone’s minds, and I can recall, in that context, studying the Supreme Court’s 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 United States rejected his claim.

 

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 you’re talking about a major constitutional crisis.

 

Now you’re talking about Pakistan.  The very crisis (or something very close to it) that I so foolishly wondered about in 1979 in my Constitutional Law class, is now playing out before the world’s eyes in southern Asia, and appellate courts are at the vortex of the matter.

 

I earnestly hope for a peaceful solu