NOTES ON THE CLOSE OF ANOTHER YEAR

(Posted December 29, 2023) Over the weekend, I used the word fugitive playfully, to describe a practice golf ball that, once released from a dispenser, popped out of the waiting basket and started to roll away. A moment later, I pondered for the first time the etymology of the word and immediately recognized its Latin root in the phrase tempus fugit – time flies.

Time has flown yet again, and the world stands ready to initiate what will be a momentous new year. With no new decisions this week from the Supreme Court, here are a few idle thoughts on the close of the current year, in recognition of that fleeing golf ball as a metaphor for the passage of time.

Exhortation from the ABA

If you’re an American Bar Association member, you received yesterday an e-mail from the office of ABA President Mary Smith. One paragraph in that note caught my eye:

Lawyers have a duty to support and defend the Constitution along with a specific duty to represent our clients. This is rooted in our professional oath along with the Preamble to the Model Rules of Professional Conduct, which states that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

The admonition to promote the rule of law among nonlawyers was familiar in a sense, and yet strange in that I didn’t recall it from any Ethics course I’ve taken here. I decided to dig around and see if I had missed something.

The good news is that my memory is still functioning; the bad news is that this important exhortation isn’t contained in the preamble to the Virginia Rules of Professional Conduct. That’s why I hadn’t heard about it in any Virginia Ethics courses.

Why not? Why does Virginia eschew this sensible call to us to be good citizens instead of just good lawyers? Unlike individual rules, there’s no comparison between the Model Rules and our rules for the preface, so we don’t have an easy answer.

I can conceive of two plausible answers to this question. The first is that the ABA may have added the quoted passage in its 2000 update of the Model Rules, shortly after Virginia adopted its version in 1999, and Virginia just never got around to incorporating the exhortation into our preamble. I like that hypothesis better than the alternative, which is that Virginia made a conscious decision not to include this language in our rules.

The year 2024 will be a critical one for the rule of law in America; I don’t think I need to explain why. Virginia should take the belated but important step of formally urging its lawyers to embrace this sensible duty.

A judicial retirement

Sunday marks the final day in office for the longest-tenured judge on the Court of Appeals of Virginia. Judge Bob Humphreys steps down after a judicial run that began in 2000. He’s a product of my hometown of Virginia Beach, having served as our elected Commonwealth’s Attorney before being called directly to the appellate bench. He has been quick to say yes to requests for CLE presentations, always offering a liberal and welcome dose of wit in those sessions.

I’m pleased to report that one of Judge Humphreys’s final important judicial acts was to preside over a certain civil marriage ceremony in a local park last month. It was a small affair; the witnesses comprised the bride’s mother and aunt, the groom’s mother, and three collies including my beloved Ardie. I was quite proud to walk my favorite daughter down that beautiful tree-lined aisle.

January argument docket

The Supreme Court of Virginia has published the argument docket for the January session. It contains five appeals spread over Wednesday and Thursday, January 10-11. In between will be an always-grand event: the State of the Commonwealth address on Wednesday evening. Traditionally, most of the justices attend the speech; the court times the January session so it coincides with the beginning of the General Assembly session each year, so The Robes are in town anyway.

The five appeals set for next month include two criminal cases, two habeas, and one civil appeal implicating longarm jurisdiction. One of the habeas proceedings appears to be an original-jurisdiction action, so there’s no lower tribunal there. Of the remaining four, I noticed that two arose from writs issued in September, and the other two were granted all the way back in March. So much for my thesis that one can roughly project the merits-argument session from the date of a writ grant.

New writs granted

The Supreme Court has posted to its website five new appeals granted over the course of this month, including three from the December 5 writ panels. I continue to see a disproportionately large number of criminal writs, at least measured by the pre-2022 norm. It may be taking civil cases longer than I had expected to wend their way through the Court of Appeals and onto an SCV session docket.

Based on the timing of previous grants, I expect something like seven appeals on the February/March session’s argument docket. While seven merits cases is still well below what we normally saw several years ago, it would still be the court’s largest merits docket in a year; the February/March 2023 docket contained eight appeals. I’m looking forward to seeing ten or more appeals in a session again, but the good old days of twenty or more may be gone forever.

Health and happiness to you and your loved ones in 2024, and well beyond.