NOTES ON CURRENT APPELLATE DEVELOPMENTS

(Posted April 26, 2023) I have time for three notes on appellate matters that have caught my eye recently.

New entry in the Virginia blawgosphere

My pal Juli Porto up in Fairfax has begun posting essays on appellate matters in the Commonwealth. She’s focusing on the Court of Appeals of Virginia for now, though she has a couple of entries on more general appellate topics.

Elsewhere, John Koehler continues to crank out solid and engagingly written prose on new CAV decisions. Jay O’Keeffe returned to action after a 17-month layoff with a flurry of fascinating posts in January and February, but has been quiet for maybe ten weeks now. I hope he’ll be able to return to the keyboard soon. The Virginia appellate scene is better off with a chorus of voices and opinions.

Interesting CAV order

A pal up in the State of Northern Virginia has sent me an unpublished order issued last week by the Court of Appeals of Virginia. The order rejects a mandamus petition filed by the Virginia Citizens Defense League, challenging a rule of the Fairfax County Circuit Court. The subject is one that will interest appellate lawyers: brief length.

Here’s the setup: Supreme Court Rule 4:15 deals with motions practice in the circuit courts. Subsection (b) includes this provision: “Absent leave of court, the length of a brief may not exceed 20 pages, double spaced.” The judges in Virginia’s most populous jurisdiction have decided to cut that back just a bit; by local rule, they impose a five-page maximum on briefs in the absence of leave to file a longer one.

How can they do that, you ask? Good question; Code §8.01-4 authorizes trial courts to prescribe rules, but bars any such rule from contravening a Rule of the Supreme Court of Virginia. The Fairfax judges appear to have countermanded Rule 4:15’s express 20-page limit.

The VCDL wanted to file a brief that exceeded five pages, but that would conflict with the local rule. In a mandamus petition filed in early January, it asked the Court of Appeals to strike down the local rule.

In the Court of Appeals, a curious thing happened: The panel assigned to decide the petition comprised three senior judges. No active member of the court participated. I don’t know if all 17 of them recused themselves, though I really doubt that. There’s no explanation in the unpub and no mention of a recusal order on the court’s case-information page. That curious descriptor will have to be the end of the story on this.

Last week, the panel handed down its unanimous decision, including this holding: “Upon consideration of the verified petition, we conclude that mandamus does not lie.” The panel rules that the local rule’s promulgation was a discretionary act by the circuit court’s judges, and mandamus only lies to address ministerial duties. Additionally, mandamus operates prospectively only, and the CAV panel perceives that what the petitioner seeks here is to undo a past act.

There’s one more basis for the ruling. The court cites well-established caselaw that an equitable remedy like mandamus isn’t available where the petitioner has an adequate remedy at law. “Petitioner’s clear legal remedy is to invoke the respondent’s established procedure for leave to file an over-sized brief, not mandamus.”

This is great stuff for rules geeks. One might wonder whether the petitioner might have had more luck with a prohibition petition, which asks a court to direct a lower tribunal to stop exceeding its jurisdiction. The VCDL might have characterized the promulgation of the local rule as acting in excess of the circuit court’s jurisdiction, and that, in turn, may have drawn a different view from the panel. For now, we’re left in the realm of speculation on that.

Because the order is unpublished and isn’t part of a normal appeal, it isn’t available on the court’s website. If any of you, my treasured readers, would like a copy, write to me and I’ll forward it to you.

SCOTUS ethical developments

The New York Times is reporting that the Chief Justice of the United States has declined an invitation to appear before the Senate Judiciary Committee to discuss ethics at the Supreme Court. The Chief cited separation of powers among the reasons why he wouldn’t attend the hearing.

I offer no opinion on the separation-of-powers issue; as far as I know, that’s a good enough reason to say no. But the article explains that the Chief went on to cite another reason. Here it is:

In an accompanying statement on ethics practices, all nine justices, under mounting pressure for more stringent reporting requirements at the court, insisted that the existing rules around gifts, travel and other financial disclosures are sufficient.

I don’t need to recount the source of the “mounting pressure”; you’ve read the recent stories about lavish gifts to Justice Thomas from a wealthy conservative donor. And there’s more: Politico reported yesterday that Justice Gorsuch made a substantial amount of money as soon as we learned that he would be joining the Court, from a surprising source:

For nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colo.

Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, the then-circuit court judge got one: The chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the high court.

The NYT story provides added historical background, noting Justice Kagan’s testimony that the Chief was considering whether to create a judicial code of conduct for the justices who, alone among American jurists, are currently unregulated. That was four years ago.

Now we learn that existing ethics rules “are sufficient.” That would be terrific, if there were any such rules.  But as I just finished typing a few moments ago, there is no code of judicial conduct for The Nine. They’re above mere Canons of Judicial Conduct.

In this context, the Chief’s statement comes across as tone-deaf. You don’t have to be an intense courtwatcher to know that the highest court in the land is hemorrhaging public credibility, a priceless juristic asset. Once among the most-respected governmental agencies, the Court now suffers from plummeting public-approval ratings. I acknowledge readily that they don’t do their jobs in pursuit of public approval. But the courts must, must command public respect as neutral arbiters of citizens’ disputes with each other and with their government. Insisting that there’s “no need” for the justices to create a code for their own conduct diminishes public trust in an institution that needs that trust if it’s going to function effectively.