SOME APPELLATE MISCELLANY
(Posted October 22, 2021) I’ve seen just enough odds and ends recently to fill a respectable-length post.
Lee statue rehearing
The Supreme Court has refused a petition to rehear the appeal over the equestrian statue of Gen. Robert E. Lee in Richmond. Here’s the timeline on that:
• September 2 – SCV issues its unanimous opinion
• September 7 – The appellants give notice of intent to seek rehearing
• September 8 – The Commonwealth dismantles the statue and removes it
• September 29 – The appellants file a petition for rehearing
• October 21 – The court refuses the rehearing petition
I recall discussing this PFR with some of my appellate pals (no court insiders, of course). The unanimous view was that, once the statue had been removed, the rehearing petition was moot. You can’t get an injunction to prohibit something that’s already happened. I’m told that the appellants sought a return of the statue in the PFR, but I don’t know whether they had pleaded that relief in circuit court.
While this should end proceedings over the statue, I think I recall a statement in a news story where one of the lawyers in the case mentioned the possibility of a SCOTUS petition, citing an unspecified federal issue. That means we wait three months to see if it’s truly over.
A lightning disposition
The Robes convened writ panels on Tuesday, October 19, when they heard arguments from about 50 petitioners. Then late on Tuesday afternoon, I got an unusual automated e-mail from the court, calendaring another writ panel for Thursday the 21st – that’s yesterday – for a single appeal. What? I had never heard of such a thing.
A peek at the docket gives us a hint at the reason. The appeal is styled Perry-Bey v. Piper. Mr. Piper is the Commissioner of the Department of Elections. That can only indicate that the justices felt it necessary to address the petition before the November 2 Election Day.
This appeal rocketed its way through the SCV. The case-information page indicates that the court got the petition for appeal on October 12 and received the record from the Richmond Circuit Court two days later. One week after receiving the record, a writ panel heard oral argument before quickly refusing the petition the same day. That’s what we call prompt, courteous service. Update October 28: The mystery revealed! This was a proceeding seeking a declaration that former Gov. Terry McAuliffe wasn’t eligible to run for a second term. The petitioners cited an alleged paperwork error in his candidacy filing. That explains why the justices had to resolve this case quickly, before the general election next week.
Foreseeably gloomy caseload numbers
On a few occasions, I’ve reported here that the Supreme Court’s incoming caseload will decline significantly this year. That’s primarily due to the major drop-off in jury trials, a casualty of the pandemic. I decided to check this morning to see how many files the Clerk has opened thus far. According to the court’s case-management page, the Clerk logged Record No. 210994 yesterday. The first two digits are the year; the next four indicate the chronological entry of the number of filings.
It’s late October and we aren’t up to a thousand yet. At this pace, the final tally will probably reach about 1,200, down from last year’s pandemic-depressed total of 1,571. The last pre-pandemic year, 2019, saw 1,760.
I couldn’t tell you when the business was this slow before now; probably sometime in the early 19th Century. But take heart: I expect the pace to pick up in the last third of 2022. It’ll be depressed a bit before then while the Court of Appeals gobbles all the new appellate filings.
A new clerk
Well, sort-of new. The justices have named Muriel-Theresa Pitney as the Clerk of Court, removing the word Acting from her title. Muriel was the Chief Deputy Clerk until Doug Robelen’s untimely passing earlier this year. She’s also one of the cool people, as you’ll learn if you interact with her.