REPORTS ON RECENT APPELLATE DEVELOPMENTS

(Posted September 3, 2020) There appear to be no published opinions or unpublished orders from Ninth and Franklin today, so let’s take a look around the greater landscape.

September SCV argument docket

The Supreme Court’s September session schedule is out. There are 13 appeals, including one pair of reciprocal appeals, Commonwealth v. Groffel and Groffel v. Commonwealth. The session will be conducted remotely, though I’m not sure whether that means videoconferencing or audio-only (that is, a telephone conference call).

These 13 arguments bring the court’s total for the year to 70. With only one more session on the calendar, 2020 will almost certainly go down as the sparsest year for oral arguments in generations. Last year, in contrast, the court heard arguments in 106 appeals; it was 100 in 2018. If you travel back in time twenty years, the figure was closer to 300.

That being said, I expect this “record” to be short-lived. One effect of the pandemic and the concomitant judicial emergency is a dramatic slowdown in final judgments from circuit courts. Those judgments are the raw materials of the appellate courts’ caseloads. Next week, the court will consider arguments in appeals decided in 2019, months before the pandemic. That is, this year’s slowdown in the merits docket has nothing at all to do with the pandemic.

In that sense, the court’s docket enjoys a sort of momentum; but that momentum will predictably slow now. It takes roughly a year for an appeal to mature from circuit-court judgment to Supreme Court oral argument. That means that the justices’ April, June, and September dockets next year may be tiny – perhaps as small as the June 2020 session, which featured just five appeals. The appellate sector is not a growth industry right now.

Fourth Circuit’s operations order

On June 1, the Fourth Circuit posted on its website a notice about courthouse operations. It included several items that by now are quite familiar – the requirements for a face covering and physical distancing, and limitations on access to the court building. The notice ended with this sentence: “This Notice shall remain in effect through August 31, 2020, unless modified or suspended prior to that time in light of guidance from national, state, and local health officials.”

A peek at the court’s Covid announcements page shows no subsequent order or notice. To the casual observer, it might seem that the June 1 restrictions are ended. Don’t fall for it; those restrictions endure. I expect the court to post a new notice shortly. For the time being, you should regard the June 1 restrictions as still being in effect.

CAV argument policy

Oral arguments in the Court of Appeals of Virginia resume September 15 after the summer recess. The court has announced that all arguments, both panel and en banc, will be conducted remotely through the end of the year.

About that delay …

I periodically get questions from lawyers asking about missing rulings in matters that were submitted to the Supreme Court of Virginia many moons ago. “When will they rule?” “Does this delay mean I’m likely to lose?” That kind of thing.

I’ll repeat here what I’ve set out several times in the past: I’m not a court insider and I never have been. I don’t have any inside knowledge of these things. What I can tell you is that the Clerk’s Office is operating with a slender in-office staff, and that’s delaying the processing of orders.

This suggests the related topic of undecided merits appeals. I keep track of session schedules and of when the court decides the appeals on them. At this point, I see four appeals still undecided from the April session and two from that June micro-docket.

The folks who really need to be patient are those waiting for rulings on petitions for rehearing. In normal times, the court rules on those during docket-draw weeks. Those are roughly three weeks before a given merits session. The longest gap between sessions each year is the one we’re currently experiencing: three months between the June session and the September session. If you filed a PFR in, say, late April, the normal date to expect a ruling would be late August – last week. Here again, I suspect that the pandemic has put the Clerk’s Office behind in issuing orders on those petitions. You just have to be patient.

And no, a delay doesn’t indicate anything about the likely result of the decision. Just don’t get your hopes up; the court grants perhaps one or two percent of these requests.

Mandamus ruling

Last week, the Supreme Court handed down an unpublished order on a petition for a writ of mandamus. In Park v. Northam, two northern Virginia business owners (one restaurant and one event venue) asked the justices to direct the Governor and the Commissioner of Health not to enforce limits on public gatherings that impaired their businesses.

It will come as little surprise to you that the court refuses this request. The primary reason is a finding that the petitioners lack standing to sue, though there’s also a mootness component to the ruling, because subsequent emergency orders have loosened the initial capacity limits in earlier orders.

The one thing that did surprise me about the order is that the court dismissed the petition on largely procedural grounds. While I followed the holding, its reasoning seemed forced; almost a rationalization of the result. On mootness, for example, the opinion notes that the Governor has at least once reimposed a lower capacity limit due to a resurgence in coronavirus infections here in Tidewater. As I see it, that means that the lower restriction, while no longer in effect, is “capable of repetition, yet evading review.” The court notes this exception but dismisses it out of hand. I also felt that the owners made a better case for standing than the court gives them credit for.

But in my mind, there’s no arguing with the outcome. Businesses that insist on a right to continue operating as though there were no pandemic are taking the ostrich approach. They’re claiming that their right to carry on business unimpeded by health restrictions overcomes the public interest in containing a contagion that, at this point, has no vaccine. This is the right result.

I’m not sure when the court posted this order to its website. I didn’t see it last Thursday when I last checked the court’s unpubs page. This order came down on Monday, August 24, and it’s there now.

A publishing milestone

I don’t know yet exactly which one it’ll be, but it’s almost certain that one of the Supreme Court’s published opinions in the past month or so will be designated by the Reporter of Decisions as 300 Va. 1. We’ve reached the 300^th volume of Virginia Reports.

The earliest cases published in bound volumes of Virginia Reports included Thomas Jefferson’s compilation of three men’s personal notes of decisions beginning in 1730: Sir John Randolph, plus two other lawyers named Barradall and Hopkins. Randolph’s son, of the same name, compiled these, and they came into Jefferson’s possession; they covered decisions of the General Court of Virginia from 1730 to 1740.

After that, no one made notes for 28 years until Jefferson himself did so from 1768-72. He collected these notes and, along with those of Randolph, Barradall, and Hopkins, they were published posthumously. Jefferson’s legatee expressed hope “that to gentlemen of the bar, particularly in Virginia, it may not be altogether unacceptable.” (They wrote a tad differently back then.)

In addition to this early collection, we have access to George Wythe’s notes of his own decisions in the 1790s. But by custom, the first true Virginia Reports, what we call 1 Va., comprises the notes of Bushrod Washington, the first president’s nephew, who went on to serve 27 years on the Supreme Court of the United States. The case reported as 1 Va. 1, Groves v. Graves, is from 1790 and decided an appeal involving a claim of usury.

The 100^th volume reported decisions from 1901-02. Volume 200 included appeals decided in 1958-59. In 1982, when I was admitted to the Bar, volume 224 appeared; the first published opinion in an appeal I argued came in 1989, in volume 237. I’m confident that I won’t be around for volume 400, but I might be able to stick around to find out what legal tidbit appears at 333 Va. 333.