REPORT ON CURRENT APPELLATE EVENTS
(Posted January 10, 2024) The gears of government have resumed turning after the holidays – the 2024 General Assembly session began a few hours ago – and there are just enough notable appellate matters for a quick report to you.
A coming appellate vacancy
Bloomberg Law is reporting that Fourth Circuit Judge Jim Wynn of North Carolina has decided to take senior status. His honor will turn 70 in a couple of months, and while he doubtless has plenty still in the tank, this retirement enables President Biden to appoint a younger jurist to the life-tenured seat. The announcement didn’t specify a transition date.
Judge Wynn is a former Navy JAG officer, and is typical of appellate jurists I know in one key respect: He’s one of the world’s great nice guys. I’ve spoken with him at bar functions and at CLE programs, and he simply couldn’t be more pleasant. He’s long been a voice urging civility on the court at times when majority and dissenting opinions turn up the heat.
A thinned January session
I reported a couple of weeks ago that the Supreme Court of Virginia would convene this week with five appeals on the docket. Last Friday, the court revised the docket by removing the one purely civil appeal on it. This morning the justices received argument in three cases, and they’ll gather again in the morning to hear just one more.
This continues the alarming trend of tiny merits dockets at Ninth and Franklin. Last year, The Robes heard oral argument in just 28 cases. Go back a generation and it’s almost ten times that. I recognize that the shift to initial review in the Court of Appeals has artificially depressed SCV docket sizes in the past two years, but by now we should have seen something of a rebound. This raises my suspicions that the justices have indeed decided to make the Supreme Court of Virginia a court of certiorari – or law development, for those of you who prefer that term –and leave the error correction to the Court of Appeals. It’s too early to know for sure; another year’s stats will help me make a better-informed judgment.
Meanwhile, on Tuesday the court posted to its website one more writ granted from the December 5 writ panels, bringing the total to five out of the 28 petitions argued that day. That may sound encouraging, but remember that the court convenes only six writ-panel sessions each year. If each of those dates generates something like five appeals awarded, we’ll be stuck around the 30-appeal mark for merits cases. That would be a sign that the writ market has collapsed on a more permanent basis. Let’s wait, hope, and see.
The David-Goliath Index
With the year’s decisions in the books, it’s time to calculate the 2023 David-Goliath Index. At the close of the third quarter, David had prevailed in seven appeals and Goliath in ten. In the fourth quarter, I rate three rulings as going in favor of our Davids and five for our Goliaths. That gives us a year-end score of 40/60 – that is, the Davids won 40% of the time (10 wins) and the Goliaths won 60% (15).
If that seems lopsided to you, keep in mind that, on a percentage basis, this is David’s best year in a long, long time – maybe ten years. The last few years saw Goliath taking top honors more than 70% of the time. But I wouldn’t recommend reading too much into this, as we only have 25 decisions in all. It’s too easy to skew results when n is that small.
I won’t try to project anything specific for 2024 – except for my earnest hope for a larger sample size – but given the larger-than-usual number of criminal writs granted in the past few months, I would expect David’s winning percentage to shrink at least somewhat over the course of the coming year.
Fallout over SEAL Team Six
The blawgosphere is still buzzing over yesterday’s oral argument in former President Trump’s appeal in one of his criminal prosecutions. As reported here yesterday, Trump’s lawyer argued in the DC Circuit that a president couldn’t be prosecuted — even after his term ends — for ordering an official assassination of a political rival unless he were first ousted from office in a court of impeachment.
I wasn’t in the courtroom yesterday – the former president was, probably to the distaste of the panel – but I sense that another, less bold answer might have been better suited to the situation. The lawyer’s unfortunate argument conjured the ancient legal principle in monarchies that “the king can do no wrong.” We fought a war to rid ourselves of a king; George Washington wisely declined to become one, and the idea of a person who would merely preside was born. Allowing any person, even the chief executive, to commit criminal acts without fear of prosecution is anathema to the rule of law.
My best guesses are that the panel will rule against the former president; that he’ll seek en banc rehearing as a way of stalling the case; that the full court will refuse rehearing or affirm the panel; and that the president will file a cert petition. That process will probably take more than the eight or so weeks between now and the scheduled trial date. For those of you old enough to remember Phil Ford’s tenure at the University of North Carolina, this is the Four Corners offense translated to the appellate arena.