[Posted April 12, 2009] The Supreme Court convenes this week for the April session, the penultimate meeting of the full court for the 2008-09 term. Normally the session begins on Monday, but a relative paucity of cases on the argument docket, in combination with Sunday’s Easter holiday, means the justices will begin hearing oral arguments on Tuesday, April 14, with the session concluding on opinion day, Friday, April 17.

The court has handed down two unpublished orders from appeals argued in the February session. On April 3, the court ruled in Spivey v. Bass that the Commonwealth is immune from even a declaratory judgment action, if the result of that case could be to compel the government to take some sort of action, “even if only ministerial in nature. “Spivey, an inmate, was asking the court to order a Corrections Department official to recalculate the length of his prison term. The Commonwealth asserted in the trial court that Spivey had to proceed by habeas corpus; the court agreed and dismissed the DJ action. On appeal, the Commonwealth raised the bar of sovereign immunity. The Supreme Court rules that the Commonwealth is, indeed, immune, so it dismisses the appeal for want of jurisdiction.

Careful followers of appellate cases know that ordinarily a litigant can’t raise an argument for the first time on appeal. But that doesn’t apply to matters implicating subject matter jurisdiction; that kind of objection can be raised at any time. Since the Commonwealth’s sovereign immunity implicates the courts’ jurisdiction to entertain a suit, the appeal is dismissed and Spivey can try the habeas route.

On April 10, the court handed down an order in an easement case involving access to Smith Mountain Lake. The decision is Fairway Bay Condominium Ass’n v. Raub. The issue is whether the association can extend to non-unit-owners a right of access to the lake, when the association has a nonexclusive easement in gross. The court rules that such an easement cannot be apportioned (separated), so unless you’re a member of the association – and that means the unit owners exclusively, under its articles – you cannot purchase associate memberships to permit access the lake without owning a condo unit.

As these orders are unpublished, they will not appear in Virginia Reports. Any of my readers who want a copy may contact me for one.