[Posted March 15, 2010] As I’ve heard the story, the ancient Chinese had a curse that went like this: “May you live in interesting times.” I’m a big fan of history (as you might have discerned from reading this site), so I recognize the wisdom in this observation; the most “interesting” times in history are usually those involving major societal upheavals, like wars. We sometimes forget the hardships that necessarily bedevil ordinary people in the daily task of living through such times.

Today, as I return from ten days of vacation, it occurs to me that my personal curse is more along the lines of, “May you take some time off during a busy appellate news week.” That emphatically happened last week, so I have a great deal of catching up to do. You might put it down as just bad luck on my part, but I believe that you cultivate your own luck; it serves me right for setting my vacation for the last week of the General Assembly session.

From an appellate perspective, the biggest news of the week was that we got a new Supreme Court justice. As was widely reported while I was gone, the legislature elected former Attorney General Bill Mims to replace Justice (now Judge) Barbara Keenan, who now punches her time card across Capitol Square at the Fourth Circuit. (Her last day in state court was last Friday, March 12.) I have met Justice Mims on two brief occasions, and if those are fair indications, then he will fit in at the Supreme Court in at least one respect: Like the other justices, he’s very gracious in person. (I have no idea whether he will turn out to be a barracuda when it comes to questioning from the bench, so I offer you no promises on that part.)

This one isn’t exactly appellate news, but it unquestionably affects the great majority of my readers: The budget agreement reached yesterday apparently carries out the proposed freeze on replacing circuit- and district-level judgeships. That will mean different things in different jurisdictions. Here in Virginia Beach, for example, the circuit court will find itself short-staffed by 11% of its former complement of judges, with one vacancy (due to the retirement of Judge Joe Canada) out of the previous nine positions. But in Suffolk and Isle of Wight, the court will lose fully 33% of its positions when Judge Westbrook Parker retires at the end of his current term, effective in June. I can only imagine what will happen in a rural circuit that’s served by a single circuit (or district) court judge, when that judge retires. The state has a pool of highly-underpaid retired judges who can pick up some of the slack, but that pool can only extend itself so far. The inevitable result will be delays in getting cases – especially civil suits, which are lower on the docketing totem pole than criminal cases – to trial.

In more conventional appellate news, the CAV issued two published opinions last week, and the SCV decided one case by order. In Byrd v. Commonwealth, a divided panel of the Court of Appeals reverses a cocaine-possession conviction because it finds that an informant’s tip did not furnish sufficient probable cause for an arrest. And in Todd v. Copeland, the court reverses an order of adoption, based on an as-applied challenge to the constitutionality of Virginia’s adoption statute. The court’s ruling is summarized in these words: “We . . . hold that the Fourteenth Amendment to the United States Constitution requires prospective adoptive parents to prove, by clear and convincing evidence, both that the entry of an adoption order over the objection of a nonconsenting parent is in the best interest of the child and that a continuing relationship with the birth parent would be detrimental to the child’s welfare.” (Emphasis original.)

The SCV order comes in the case of American Asphalt & Concrete v. Black, in which the court addresses a trial court’s order enforcing a settlement agreement to which one party dissented. The trial court had found that the appellant had given its lawyer authority to settle, but then backed off (perhaps a form of cold feet, but I can’t be sure). It based its ruling in part on the testimony of the appellant’s own lawyer on the scope of that authority. (The devil within me wonders how the attorney-client post-mortem powwow went on that hearing.) On Friday, the Supreme Court ruled that there was sufficient evidence in the record from which the trial court could have found that the attorney did have the authority, so it affirms the judgment. This one, of course, is unpublished, so if you want a copy, let me know and I’ll send it to you.

Finally, last week featured an assault on the Appellate Defender’s Office, as the Indigent Defense Commission announced a week and a half ago (on the first day of my vacation!) that it would defund the AD’s office to save money. For reasons I expressed in a post that day, I regard this move as an extraordinarily bad one. One additional problem has been pointed out to me by a member of the AD’s staff: It will produce an imbalance in future appellate litigation, in that the other side of those cases will be taken by the Attorney General’s Office, which has trained appellate lawyers on its staff.

I have also heard from a number of others about this issue since my March 5 post. I have learned, for example, that the Richmond Public Defender’s Office dedicates one and a half of its attorney positions to appellate lawyers. This is an excellent allocation of resources that other PD’s should emulate to the extent they can. (I recognize that that will be practically impossible for some of the smaller offices.)

The IDC met last Thursday, March 11, and I understand there was to be a vocal opposition to the defunding. As of this moment, I don’t know whether the commission sensibly reversed its course or not; I have a call in to find out, and I’ll update this post when I have that information.

I have learned my lesson from all this; I promise not to take more time off until at least late June, by which time the legislature will be long gone and the SCV will be between terms. Alas, the CAV will be clearing out its docket, so I’ll still have plenty to do when I return from that trip.