REPORT ON RECENT APPELLATE NEWS
(Posted March 1, 2021) A long time ago in a galaxy far, far away, I attended college in Richmond. I subscribed to the Richmond Times Dispatch back then – there was no Internet from which one could glean news in those days – and I recall reading a piece from one if its senior columnists. The paper published it in February, with the columnist’s views on that month:
Thirty days hath September, April, June and November; all the rest have thirty-one, except February, which is endless.
Now that the endless month is gone and the lion-and-lamb month is upon us, let’s take a look at the landscape and see what’s cookin’.
A surprisingly robust March session
This is session week in the Supreme Court of Virginia, and I was delighted to see nineteen appeals calendared for oral argument. That’s enough for the court to schedule a fourth day of arguments, on Friday. Added to the 14 appeals argued in January, the year is off to a good start.
I wish I could report that it’ll last. Oh, it might continue, if The Robes decide to grant more petitions. But I believe that we’ll see a sharp drop-off in the merits caseload this year, probably starting with the April session, primarily because of the interruption in circuit-court trials last year.
There’s another component to this dynamic that merits mention. I sense a growing consensus among the appellate bar that the SCV is deemphasizing its error-correction role, in favor of law development. I’ll readily admit that this is inference on our part; we don’t have any insider news about the justices’ decisionmaking process. But when I speak with experienced appellate advocates, the view is virtually unanimous that the court is turning down many appeals that would have been writworthy twenty or even ten years ago.
A development like this means that the odds of appellate merits review of a given circuit-court ruling are now dauntingly small. Trial judges are increasingly the last word in the case, because the Supreme Court grants so few appeals. That’s one factor in the rise of my next topic; it’s a factor that expressly contributed to an important piece of legislation.
Senate Bill 1261 advances
I’ve reported recently on SB1261, the landmark bill that would mark a sea change in appellate practice here in the Commonwealth. This is the bill that would give each litigant an appeal of right in all cases, civil and criminal – a right that exists in every American jurisdiction except ours. The bill would also expand the size of the Court of Appeals to accommodate the change, and would make the SCV a court of certiorari only.
The bill made its way through the Senate and crossed over to the House. That chamber passed a somewhat different version, the largest difference being the size of the expansion (six judges in the Senate version; four in the House). The competing bills went to a conference late last week, and on Saturday, the conference produced an amendment that mostly tracked the Senate version. Each chamber then agreed to the conference report, largely along party lines, with Republicans opposing the bill on the grounds that it was a partisan effort. (It isn’t, as I explained recently; it’s the product of three nonpartisan deliberative bodies.)
As I see it, there are only two possible roadblocks to the bill’s becoming law. The first is the need to fund the larger CAV, and the even larger need to fund Assistant Attorney General positions to process criminal appeals from Square One. (Right now, Commonwealth’s Attorneys handle briefwriting at the petition stage.) If the legislature agrees to pay for those changes, then the bill goes to the Governor’s desk.
If the bill does blossom into law, the court will expand on January 1, 2022. I infer that the current legislature will elect judges to fill those seats, probably sometime later in the year in a special session. I make no secret about the fact that I’m rooting hard for this project; it’s a long-overdue change that brings us up to par with the rest of modern America.
A remarkable injunction order
I received word recently about an order entered by a Supreme Court panel on a petition for review of an injunction proceeding. The case is Dickinson v. Armbrust, from the City of Richmond Circuit Court.
You’ll certainly recall the unrest in Richmond last summer over civil-rights issues and the efforts to remove monuments to prominent officers of the Confederacy. Armbrust engaged in community organization – the court’s order doesn’t describe the activities beyond that – and these activities attracted negative attention from those who opposed removal. This included Dickinson, who was then a candidate for City Council. Dickinson posted social-media comments that were sharply critical of Armbrust, including allegations that she supported terrorists and should be arrested.
Around Labor Day, Armbrust filed suit seeking equitable relief against Dickinson and others. The circuit court convened an evidentiary hearing on her request for a temporary injunction to bar further comments, which she regarded as defamatory. Armbrust testified that she felt unsafe because of the comments, and that her doctors worried that “continued stress would cause a stroke.” Her work suffered, to the point that her employer gave her something called a coaching document.
Dickinson denied that Armbrust had suffered a cognizable injury. He also asserted that he had a First Amendment right to make the statements, and claimed the protection of §230 of the Communications Decency Act. You’ll recall that this statute was the subject of President Trump’s ire last year, because it prevented him from suing people or organizations who posted unflattering comments about him.
The circuit court ruled in favor of Armbrust, despite expressing concern that she might have an adequate remedy at law. The court ordered Dickenson to “delete, disable, or otherwise remove” certain specified social-media posts and directed him not to post further defamatory comments about Armbrust. The court rejected the contention that Dickinson’s statements were protected by §230.
Because the circuit court’s order awarded injunctive relief, Dickinson was entitled to a snap appeal under the petition-for-review provisions of Code §8.01-626 and Rule 5:17A.
A panel of the court issued a short unpublished order on February 8. The court first reverses the directive to remove past postings. It notes that a temporary injunction is intended to preserve the status quo; not to “correct possible wrongful acts previously committed.” The order goes on to hold that the injunction was overly broad and restrained postings that weren’t defamatory. It cites a 1985 SCV holding that calling someone a fascist isn’t actionable, and adds this lofty passage, which I greatly appreciated: “Protecting such language ensures [that] public debate will not be stifled, even when that debate includes ‘vehement, caustic, and sometimes unpleasantly sharp attacks.’”
The court next holds that §230 “may shield Dickinson from liability” if he merely retweeted someone else’s social-media posts. While the statute generally protects publishers such as Facebook and Twitter, the SCV panel cites two decisions from other courts that apply its protection to individual users.
So far, so good; as I see it, the justices have come down firmly of the side of free speech. While they don’t say it out loud, the subtext of this ruling is that this is a classic tort action for defamation, for which money damages will lie.
And then something happens at the bottom of page 5 of this 5½ page order. “Under the specific circumstances of this case” – this language translates to, “You almost certainly can’t cite this as precedent in your case” – the Supreme Court affirms an order enjoining Dickinson from making any further defamatory statements about Armbrust. The panel observes that the record supports a conclusion, one not set out by the circuit court, that Armbrust would suffer irreparable harm if Dickinson were to post about her again. The court finds that a prohibition of future defamatory statements is sufficiently narrow.
I’m going to borrow the title from James Ryan’s book here: This ruling generated a “Wait; What?” reaction from me. As I perceive the issues, the first 4½ pages of the order are unquestionably correct under First Amendment law. But then the court goes and imposes prior restraint, an extreme remedy that’s only appropriate in the most egregious circumstances, something I don’t even remotely see here. Prior restraint in a defamation case?
There’s more. The classic Winter approach for evaluating preliminary-injunction requests in federal court calls for a four-part analysis. Those four parts are the probability of irreparable harm to the plaintiff in the absence of injunctive relief; the probability of harm (note the absence of the adjective) to the defendant if such relief is granted; the plaintiff’s likelihood of success on the merits; and the public interest. Virginia trial courts have long followed this approach, because the SCV has never laid down a rule that governs here.
In this order, the justices mention the first step, but they never even breathe on the other three. Will Dickinson be harmed if the court shuts him up? Absolutely; he was a political candidate, for cryin’ out loud. Courts don’t generally step in to tell candidates how to conduct their campaigns. Probability of success on the merits is, at best, a dicey proposition; Armbrust is going to have plenty to prove at trial to justify a permanent injunction (as contrasted with a claim for mere money damages). And while defamation is virtually never in the public interest, robust protection of speech undoubtedly is.
By limiting the prohibition to defamatory speech, the court has approved what’s called an “obey the law injunction.” It doesn’t define what statements Dickinson can and can’t say, so to avoid any risk of inadvertently violating the order, he’s going to have to self-censor, to err on the side of shutting up. Despite the panel’s assurance that enjoining future defamatory statements is narrow, that prohibition is necessarily broad, because Dickinson cannot know its limits. What comments will a court ultimately determine to be defamatory? I can’t say, and neither can Dickinson.
These proceedings are part of the court’s shadow docket, in that there was no oral argument; no writ grant or denial; and no published opinion. If any of my readers would like a copy of the order, let me know and I’ll forward one.