NOTES ON RECENT APPELLATE DEVELOPMENTS
[Posted May 6, 2016] Tomorrow is a high holy day in Chateau Emmert, as The First Saturday in May (the Kentucky Derby) coincides with our wedding anniversary. We have just enough time to squeeze in some news about happenings in the appellate world.
It’s not quite Halley’s Comet, but …
Here’s one you don’t see every day: the Supreme Court has agreed to certify a case, removing it from the Court of Appeals to decide it in the first instance. The case is Vesilind v. Board of Elections.
This is the lawsuit over legislative redistricting in the City of Richmond Circuit Court. The plaintiffs in the case subpoenaed documents from members of the legislature and from the Division of Legislative Services. Those nonparties resisted the subpoenas, but a trial judge denied their motions to quash and ordered the production. The legislators and DLS refused to comply, so the court held them in contempt.
An order resolving a motion to quash isn’t immediately appealable, since it’s clearly interlocutory. But a finding of contempt is appealable. In order to hasten the ultimate resolution of the issue, the respondents chose this vehicle.
But that only got them to the Court of Appeals. The parties agreed that this case would ultimately see at least a petition for appeal to the justices, so they filed a consent motion invoking the little-used Code §17.1-409, asking the justices to assume immediate jurisdiction over the case.
The reasons the parties cite in their consent motion make sense. If this challenge to legislative districts succeeds, the Board of Elections will have to scramble to adjust before the next statewide elections in November 2017. With a matter of this importance, it’s clearly better to get a quick resolution than one that follows the normal appellate course of a year or more. And the justices recognize the need for speed: the certification order contains an accelerated briefing schedule. It’s foreseeable that the parties may move the court to convene a special session over the summer to hear the case, and that the justices might issue a speedy opinion, as they did recently with the Sweet Briar College case. (Update 1:45 pm: I’ve just learned from a treasured colleague that the appellees in the case have indeed moved the court to convene a special session in July. The motion indicates that the appellants don’t consent to that expedition, so their desire for a prompt resolution of the case may have waned. Thanks for the news, George.)
How rare is a certification? Once upon a time, and not too long ago at that, you’d see three or four a year. But that well dried up several years ago. This is the first certification of an appeal by the Supreme Court since 2010.
Another rara avis: A retroactive grant
A couple of years ago, the justices heard oral argument in Webb v. Virginian-Pilot Media, an appeal of a defamation judgment. The argument followed the grant of an assignment by Webb and the rejection of the newspaper’s cross-error. But the argument convinced at least one member of the court that it really would be a good idea to adjudicate the cross-error. Instead of issuing an opinion, the court handed down an order in the case, retroactively granting the cross-error. The court heard argument all over again at a later session before eventually ruling in favor of the paper on the cross-error issue.
It’s safe for me to say that things like that don’t happen very often, but something very similar came down two weeks ago in the Supreme Court’s longest-pending appeal: Johnson v. Commonwealth, a review of a murder conviction. The case was argued in January, but the recent (February 26, 2016) decision from One First Street in Montgomery v. Louisiana convinced the Robes to reevaluate the appeal in light of the new precedent.
The SCV’s April 21 order grants a writ on a second assignment of error and calls for new briefing. It expressly mentions Montgomery, giving the litigants a pretty good idea where to focus their arguments. The appeal has been recalendared for the October session, so we’ll probably see a ruling near the end of the year.
This, by the way, is the last unresolved appeal from Justice Roush’s tenure on the court. Her successor, Justice McCullough, is unlikely to participate in the case because it made a pit stop at the CAV when he was a judge there.
A case of bad timing
On Tuesday the Court of Appeals handed down Porter v. Commonwealth, a heroin-distribution appeal with a case of unfortunate timing. The appellant sought to lessen her punishment by inviting the jury to find that she sold the drugs as an accommodation to someone else, not as a dealer herself.
This was a bifurcated trial. Porter asked the trial court during the guilt phase to give an instruction on the accommodation statute. The court refused, finding that the proper time to deal with an accommodation issue was in the penalty phase.
While the jury deliberated on guilt, the parties took up instructions for the penalty phase. The trial court ruled that there was no evidence by that point to support an accommodation instruction. The CAV agrees with this ruling.
The jury got her, of course, and Porter testified in the sentencing phase, presumably laying out her grounds for getting a lighter sentence. But for whatever reason, she didn’t renew her request for an accommodation instruction. Today the Court of Appeals panel finds that that failure waived the issue for appellate review. Her previous argument in favor of the instruction was inapplicable because the quantum of evidence had changed: she had testified. The court finds that the proper time for her to ask for the instruction was in the sentencing phase, but she didn’t do that.
I want to salute Judge Bill Petty, the author of the unanimous panel opinion, for getting something right that has become a pet peeve of mine. In the facts section, he refers to a car being driven by a person named Crews. He then states, “When officers subsequently stopped Crews’s car, …”
Judge Petty knows how to spell better than Microsoft Word’s spell-check function does. When I entered the word Crews’s above, spell-check thought it was incorrect, and alerted me. It wants to spell it Crews’.
No dice. The word Crews is a name, not a plural. With very, very few exceptions, you form a plural like this by adding an apostrophe and an s. “Tiger Woods’s knee injury.” “John Williams’s musical score.” “Justice Mims’s concurrence.” Most newspapers omit the s because they’re trying to save space and the cost of ink. For the rest of us, it’s perfectly okay to be old school.
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