PLENTY OF APPELLATE GOINGS AND DOINGS[Posted April 28, 2008] There’s plenty of news these days in the appellate courts that sit in the Commonwealth. Here’s a sampling:
– The US Senate has placed Justice Agee’s Fourth Circuit nomination on a fast track, with a Judiciary Committee hearing set for this Thursday, May 1. Given his approval by both Virginia senators, my best guess is that he’ll get approved with little or no fuss. That would ease the Fourth’s backlog somewhat, but depending on when he moves, it might cause problems at the Supreme Court of Virginia, since he just heard oral arguments in the April session a couple of weeks ago. Now, the best approach, assuming the Senate confirms him promptly, might be for him to head across Capitol Square (the Supreme Court and the Fourth Circuit are just a block and a half apart) on June 6, after the next opinion day; but he has not asked me to be his travel agent.
– The General Assembly last week finally did what it should have done long ago, and reappointed Court of Appeals Judges Bob Humphreys and Jean Clements. In an embarrassment for the entire Commonwealth, Judge Humphreys was technically unemployed for eight days before being reappointed (his election was made retroactive to April 16, so he won’t lose seniority or a paycheck). Judge Clements’s term would have expired in June, but she’s good for several years now.
– Combining the previous two stories, if Justice Agee does become Judge Agee some time this summer, then Governor Kaine will probably be the one to fill the slot, at least in the short run. Such an appointment would only extend until 30 days after the beginning of the next General Assembly session, as with last year’s gubernatorial appointments of Justice Goodwyn and Judge Millette. Those two jurists avoided Judge Humphreys’s fate back in February with a last-day reappointment by both houses.
– Today, the Fourth Circuit hands down a ruling affirming the denial of summary judgment on qualified immunity grounds in an arrest situation. The case is Orem v. Rephann, and involves a 280-pound deputy sheriff who used a taser twice on a 100-pound arrestee who had been “hobbled” for transport to lockup, by a device placed around her ankles. The court finds that the deputy’s use of the stun gun on the woman “was wanton, sadistic, and not a good faith effort to restore discipline.” Judge Shedd writes a separate concurring opinion to emphasize the applicability of Fourteenth Amendment jurisprudence, as contrasted with the Fourth, to this case.
Last week, the CAV handed down four more published opinions. I’ll write about those tomorrow, in conjunction with my analysis of the cases I expect will be decided then.