NOTE ON APPELLATE DEVELOPMENTS
(Posted September 7, 2023) We’re still hearing crickets at Ninth and Franklin – maybe the justices are trying to outwait me – so let’s peer around the appellate scene to see what else is happening.
Two Summits draw nigh
Registration is open for the Virginia Appellate Summit, September 28 in Richmond. That’s just three weeks from today. This is the largest and best gathering of the appellate bench and bar in the Commonwealth. Expect MCLE-approved programming and the chance to rub elbows with your colleagues from across Virginia.
In the past, the Virginia Appellate Summit has been roughly triennial, but the program planners at the Virginia Bar Association have decided to host these events every other year, starting now.
The ABA’s Appellate Summit (that’s a cognomen; the formal name is Appellate Judges Education Institute) meets November 2-5. The ABA Summit moves around from year to year, but every three or four years it comes back to Washington, DC; this is one of those years. The event will take place at the JW Marriott in the heart of the District.
The ABA Summit is the granddaddy of American appellate gatherings, and was the inspiration for the Virginia Summits. Attendees traditionally get to see at least one SCOTUS justice up close; this year it’s Associate Justice Kavanaugh. You should be able to satisfy a full year’s worth of MCLE requirements by attending.
If you go to one of these programs, you’ll see me there; if you attend both, you’ll see me twice. If you have an appellate practice, you belong at these events.
If you can’t beat ‘em, impeach ‘em
The New York Times has a story out of Wisconsin, where recent elections transferred control of that state’s supreme court from Republicans to Democrats. (In the Badger State, judges run for popular election and are openly members of political parties.) The election of Justice Janet Protasiewicz likely resulted from Wisconsin voters’ distaste for Dobbs v. Jackson Women’s Health; it was a spirited election that Protasiewicz won handily over a Republican rival.
Among the key issues facing the Wisconsin Supreme Court this term will be a challenge to the openly gerrymandered districts of that state’s general assembly. The new justice spoke disparagingly about the existing map during the campaign, so GOP legislators have begun to fret about the lifespan of their legislative supermajority now that she’s part of a 4-3 Democratic majority. According to the NYT story, they’ve hit on the idea of impeaching the new jurist before she can hear and vote on the redistricting challenge.
In my mind, this tale belongs on the growing list of reasons why Virginia’s system, while not perfect, is vastly preferable to the ones used in most other states. The idea of popularly electing judges and justices gives me an uneasy feeling in my gut; the thought of impeachment for purely political reasons, instead of for misbehavior in office, is abominable. But the Wisconsin legislature is dominated by Republicans, thanks to that very gerrymandering, so the novel effort may succeed.
Next step in the musical-buildings game
You’ve played musical chairs, right? The branches of Virginia’s government are doing that on the scale of buildings. The new General Assembly Building, which has been under construction for a few years, will start welcoming occupants next Monday, and the public a month after that on October 11. The modern replacement for the legislature’s old headquarters should be impressive; it’s built on the site of the original at Ninth and Broad, a short walk across the lawn from the State Capitol.
What does this have to do with appeals? Here’s what: The legislature has temporarily occupied the Pocahontas Building on Main Street, waiting for next Monday to arrive. The Pocahontas Building is the former home of the Office of the Attorney General, which moved into its current beautiful digs on Ninth Street a few years back. When the OAG moved out, the General Assembly moved in.
Still nothing appellate? Ah, but we’re getting there. The next occupants of the Pocahontas Building will be the judiciary. The building will be demolished, or perhaps just gutted and then rebuilt from within, and the new structure will eventually hold the Supreme Court and Court of Appeals of Virginia. I don’t have any secret information about this transition, so I can’t give you anything juicy except the prospect that one day, years from now, appellate lawyers will present oral arguments to appellate panels and en banc courts there.
Now, I have no idea what will eventually become of the current Supreme Court Building whenever our appellate courts move out. Perhaps Aunt Virginia can think of another governmental agency to move in, to keep the musical-buildings game going.