NOTE ON SOME LESSER-KNOWN APPELLATE NAMES
(Posted February 15, 2021) The courthouses are all dark today, so let’s have some fun and explore the history of a few appellate names that might not be familiar to you.
Legal old-timers will recall at least the surname of this durable Reporter of Decisions for the Supreme Court of Virginia. The modern practice is to cite older SCV opinions using the numerical system that we all know – say, 237 Va. 33 (1989) – starting with volume number 1 and going forward. But back then, in the Nineteenth Century, they used a different system: The Reports were organized by the surname of the Reporter of Decisions.
Thus, you may see some references in older appellate opinions to a citation like this: Womack v. Circle, 32 Gratt. 324 (1879). Years later, when the 1-to-infinity numbering system arrived, authors perhaps grudgingly bowed to the change but still paid homage to the old form: Womack v. Circle, 32 Gratt. (73 Va.) 324 (1879).
The first volume of Virginia Reports that wasn’t named for the Reporter of Decisions, as far as I can determine, is volume 91, reporting decisions handed down in 1895. The unlucky Reporter who first got snubbed in this way was the estimable Martin P. Burks, who eventually stepped up to the Supreme Court bench himself, following in his father’s footsteps. You know the son as the author of Burks’ Pleading & Practice, which was last updated in 1961, but which occasionally still finds its way into a published opinion or two.
Back to our original protagonist. Peachy R. Grattan – that really was his given name, and not a nickname – served as Reporter for 37 years. A trip to an actual library with actual books will show you that 1 Gratt. (42 Va.) reported decisions in 1844-45, while his final volume, 33 Gratt. (74 Va.), covered 1880’s rulings. There’s a touching tribute to him at the beginning of Volume 75 — that would be 1 Matt. to us purists — from the local bar association, delivered upon his passing.
Who is Rose Lafoon and what does she have to do with appeals? In this case, the answer isn’t a who but a what: The Rose & Lafoon realty firm had a building constructed at the corner of Eighth and Franklin in Richmond in the 1930s and occupied it for a time. I don’t know how many intervening owners there have been, but at some point, the Commonwealth acquired it and it’s now in use as the headquarters for the Court of Appeals of Virginia, where it’s known simply as the Rose Lafoon Building.
It’s structurally attached to the adjacent Supreme Court Building in some of the higher floors, so up there, you can walk all the way from the Eighth Street side over to Ninth, where you can gaze across the street at Capitol Square. At street level, there’s an intervening passage for vehicles that’s off-limits to mere mortals like us. That reflects the SCV’s building’s original use as the Federal Reserve Bank of Richmond. The passageway is where the feds drove armored cars in to make deposits, back in the era of Tommy guns. Yes, on occasion, crooks did attempt to knock over the Fed; there are bullet marks inside the building to show where.
The Hon. Archer A. Phlegar of Christiansburg lived an interesting life. Enlisting in the Confederate Army in his teens, he rose from private to lieutenant, making him what the military folks call a mustang. (I had a great-great-great grandfather who was a mustang, though he wore blue.) Phlegar then studied law and became an attorney; his career included a stint as Commonwealth’s Attorney and service in the Virginia Senate.
In October 1900, Governor Hoge Tyler appointed Phlegar to fill a vacancy on the Supreme Court. Both men were from Montgomery County, and Tyler probably figured he was doing his “neighbor” a favor.
Alas, all he did was etch Phlegar’s name into the annals of history in an unflattering light: In the subsequent meeting of the General Assembly early in 1901, the legislature declined to reelect Phlegar for a full term, replacing him with Stafford Whittle of Mecklenburg County. This action reflected Tyler’s declining political power, plus his disregard of an old tradition. Back then, the five-member court included one justice from each of the five geographical “grand divisions” of the state. Phlegar became a second justice from the Southwest, leaving Southside unrepresented until the General Assembly tapped Whittle. Phlegar thus enjoyed — and I use the verb advisedly — what is almost certainly the shortest tenure of any member of Virginia’s highest court in our history, at just four months.
Phlegar is thus the answer to the trivia question of who was the last justice to be removed from office by the method of not being reelected, before the infamous treatment of Justice Jane Marum Roush in 2015. One last note of painful irony: The 1901 legislature ejected Phlegar from his seat on February 22 – Phlegar’s birthday.