SCV RULES ON CAPITOL SQUARE GUN BAN
(Posted January 17, 2020) I don’t know if the Eastern District has pondered securing protection for the term Rocket Docket®, but today the Virginia courts are showing that they belong in the conversation, too. In litigation that has raced through the court system, the Supreme Court of Virginia today issues a ruling in a lawsuit that didn’t exist three days ago. The case is Gun Owners of America, Inc. v. Northam, and addresses the Governor’s emergency temporary ban on firearms in Capitol Square.
If you’ve followed the news this week, you know that next Monday is the planned date for a Capitol Square rally by the Virginia Citizens Defense League. They call it Lobby Day, when members come to Richmond to urge legislators to protect Second Amendment rights. To the best of my knowledge, all previous such rallies have been peaceful.
This year, the Governor has received word that trouble might be on Monday’s agenda. Citing what he called credible reports that alarmed him – word that thousands of persons, some from outside the state, were coming to Richmond on Monday, and not all of them had a peaceful demonstration in mind. This Wednesday, January 15, he decided to act to stem what he feared would become a tragedy.
That day, the Governor issued an executive order that bans weapons from Capitol Square for a period from 5:00 p.m. today, January 17, to next Tuesday, the day after the planned rally. In response, two organizations and three individuals filed suit the next day, January 16 – note that that’s yesterday – to enjoin the order as unconstitutional and in violation of Virginia statutory law.
The circuit court didn’t sit on the matter; a judge convened a hearing on the request for a temporary injunction at 1:30 p.m. the same day. In truth, this was the full trial; once next Tuesday dawns, the whole matter will be moot. The petitioners squared off against Solicitor General Toby Heytens, and the two sides presented their cases and their arguments.
Realizing that quick action was essential, the circuit court judge issued an opinion and order around 4:30 p.m. yesterday, denying the requested injunction. How’s that for speed? Filing, hearing, and decision all in the space of one business day.
You think that’s fast? We’re just getting started. The petitioners, in what I see as a herculean briefing effort, filed an emergency petition for review under Code §8.01-626, and got it to the Supreme Court Clerk while the calendar still showed January 16. That is, the petitioners appealed less than 15 hours after initially filing suit. They served the Solicitor by e-mail. I’ve read the petition; it’s quite well written.
Not to be outdone, the Solicitor filed a brief in opposition this morning. I don’t know if he and his staff pulled an all-nighter, or if they had some previous research handy. But they filed a forceful, well-researched response perhaps ten or twelve hours after getting the petition for review. The brief is 22 pages, beyond the 15-page limit in Rule 5:17A; the Solicitor simultaneously moved for leave to exceed the page limits, pointing out that he hadn’t had time to file anything at all in the circuit court.
We’re not done with the briefing magic: The petitioners managed to file a reply brief, either late this morning or early this afternoon. It’s eleven pages long and replies directly to points made in the brief in opposition. They prepared that brief in perhaps a couple of hours.
Folks, when it comes to briefwriting, I can crank ‘em out quickly; but this was greased lightning work on both sides. I’ve read all three briefs, and they’re quite good; well written and chock full of relevant case citations. I won’t close this paragraph without expressing my appellate admiration for Toby and his staff, plus the three lawyers for the petitioners: David Browne of Richmond and Robert and William Olson of Winchester.
Perhaps you’ve noticed that today is a state-government holiday. The courts are closed, and you can’t get into the building. But with a time-critical issue like this, the parties managed to file briefs and get them into the hands of the SCV Clerk, Doug Robelen. How does one do that when the doors are locked? The best answer I can give you is advance communication. I posted an essay in late 2018 on how to handle emergency appeals, and one bit of advice there is to let the SCV Clerk know in advance that you might have an emergency filing that can’t wait until the next business day. I haven’t spoken with the petitioners’ lawyers, but I’d wager three dollars and eighty-five cents, American money, that they did just that. This procedure allows the Clerk to establish a mechanism for a form of e-filing.
It also enables the Clerk to notify the chief justice, who can assign three justices – or, if he chooses, the entire Supreme Court – to receive the pleadings electronically to permit a quick evaluation, maybe a phone discussion, and a vote. Rule 5:17A(f) allows a single justice to consider and decide the petition, but in practice the court always refers these to at least a three-justice panel.
This evening, six of the seven justices hand down a two-page order that refuses the petition, for a painfully familiar reason. Petitions for review have to be accompanied by the entire trial-court record. This came down Ninth Street so fast that the petitioners didn’t have time to prepare a full record. That means that the justices had no information about any evidence that may have been taken; no idea who said what. The court is left only with “pleadings accompanied by cursory attachments.” The court thus resolves the appeal without confronting the truly difficult issues involved. The gun ban remains in place.