SURVEYING THE APPELLATE LANDSCAPE

(Posted March 6, 2020) Things were quiet at Ninth and Franklin this week, so it’s a good time to check in on developments in the appellate sector.

In memoriam

We’ve lost two notable names recently. Larry Wallace died February 13. Unless you’re really-really into appellate matters, his name won’t mean much to you. But he was a titan in our field; he argued 157 appeals to the Supreme Court of the United States, more than any other person in the Twentieth Century.

As you might expect, the only way to collect that many pelts is to work in the Solicitor General’s Office. That’s where Wallace hung his hat for many years, serving as a career solicitor (meaning he wasn’t a political appointee who left when a new president arrived) from 1968 to 2003.

Life in the OSG can be tricky at times. You have to be quite good at your craft just to get in the door – I’m fond of observing that there are no schnooks in the Solicitor’s Office – and you have to follow the company line even if you don’t like it.

Wallace famously earned the wrath of his ultimate boss in 1982. In an appeal involving the tax-exempt status of private institutions that practiced racial discrimination – the petitioner in the case was Bob Jones University – the official position of the Reagan Administration supported the school’s right to continue to discriminate. Wallace filed the government’s brief, but appended a footnote indicating that he could not support the government’s position.

The president was not amused. His Attorney General, William French Smith, reassigned Wallace away from civil rights cases. The Supreme Court ruled against the university, and against the government’s position, by the narrow margin of 8-1.

I learned yesterday of the passing last November of Bill Ruckleshaus, a former Deputy Attorney General and one of the three “victims” of the Saturday Night Massacre in October 1973. When Watergate special prosecutor Archie Cox demanded access to tape recordings of President Nixon’s conversations, the president instructed his staff to order Attorney General Elliot Richardson to fire Cox.

Someone – presumably an attorney with the Office of Legal Counsel – traveled to the Justice Department to deliver the president’s order to Richardson. The AG looked at the letter and rebelled; rather than carry out what he regarded as an illegal order, he resigned on the spot. The OLC attorney shrugged and stepped over to Ruckleshaus’s office, announced that the former deputy was now Acting AG, and delivered the order again.

Bill Ruckelshaus would have none of it. He, too, resigned, leaving the third-ranking official in the Justice Department, Solicitor General Robert Bork, to fire Cox. Bork carried out the order, after Richardson and Ruckleshaus urged him to do so rather than leave the department without a senior official. The new prosecutor, Leon Jaworski, began his tenure with an ominous, “Okay, let’s have those tapes …”

I’ve long admired the integrity that Richardson and Ruckleshaus displayed on that momentous evening, and that Wallace did in inserting the fateful footnote. I like to think that, given a similarly challenging decision to make, I’d follow in their steps.

A preservation ruling from SCOTUS

On this site, I pay plenty of attention to preservation issues in the Virginia courts. Less often, we get important holdings on how to preserve issues in the federal system. Last week, the Robes on the Potomac handed down Holguin-Hernandez v. US, in an appeal of a drug-distribution conviction.

The concise version of the story is that the defendant’s lawyer argued at sentencing that he should receive no jail time for a companion probation-revocation proceeding. The prosecution urged 12 to 18 months. The district court imposed a 12-month sentence.

On appeal, the Fifth Circuit found the defendant’s challenge to be defaulted, because the lawyer hadn’t specifically objected to the 12-month sentence at the end of the hearing. That is, the lawyer asked the court to impose no time and explained why, but after the court handed down the sentence, the lawyer didn’t challenge it.

The Supreme Court reversed unanimously last week in a short (six pages) opinion by Justice Breyer. Rule 52(b) provides that all a lawyer has to do to preserve an issue is bring it to the trial court’s attention. The justices rule that arguing for a zero-month sentence is sufficient to preserve an objection to a later-imposed sentence of more than that.

No, this ruling isn’t binding on the Supreme Court of Virginia in cases brought in state court. The SCV has its own rules, so an interpretation of a federal rule doesn’t govern. Because I think this ruling makes sense, I would hope that the Virginia court would rule similarly in a like case. That being said, the specificity required last year in Young v. Commonwealth gives me pause; the SCV might require a post-sentence objection after all. The safe thing to do is object to the specific result. Read on for another example of strict interpretation of the rules.

A thunderbolt from the CAV

I noticed a procedural curiosity in last week’s CAV opinion in Ferguson v. Commonwealth. It’s a prosecution for incest, where the defendant had sex with his 18-year-old stepdaughter. The defendant asserted that the statute was unconstitutional, but the trial court rejected that argument. The defendant then entered a conditional guilty plea in which he reserved the right to appeal on the grounds that the trial court should have found the statute unconstitutional.

The court of appeals granted a writ. Before oral argument, the court directed the parties to be prepared to address the question whether the statute applied to the defendant at all. Specifically, the statute can be read to forbid incest with stepchildren only while they’re minors; not after they reach majority. The lawyers in the case dutifully prepared to be able to address that discrete issue at oral argument.

Against that backdrop, consider this surprising passage from Judge Beales’s opinion of the court:

At oral argument before this Court, Ferguson stated for the very first time that the statute did not apply to him while the Commonwealth disagreed, stating that it did indeed apply to him. … Ferguson did not ever argue below or on brief on appeal – or even assign error to the trial court’s implicit decision – that Code § 18.2-366 prohibits sexual intercourse between a stepparent and an adult stepchild, such as the recently turned eighteen-year-old C.M. in this case.

This implicit criticism of the defense lawyer seems unfair to me. Yes, the lawyer discussed the issue, and did it for the first time on appeal. But he did so because the court asked him to. The opinion makes it look like the lawyer tried to pull a fast one by slipping in a new issue. It’s one thing to rule – as the court did here – that it’s barred from considering this issue, even under the ends-of-justice exception. But the panel’s decision to chide the lawyer, when the panel itself set up this straw man, seems indefensible to me.

Judge Athey files a concurrence, agreeing that the court can’t take up the new issue. But he agrees with the third judge on the case, Judge Petty, that if the appeal were in the appropriate posture, the defendant could not have been convicted of violating it, because the statute doesn’t reach this conduct.

Another reason to be glad you’re a Virginian

You’ve seen the news by now: Senate Majority Leader Chuck Schumer called out Justices Gorsuch and Kavanaugh by name during an abortion-rights rally outside the Supreme Court Building Wednesday. The Senator promised that the two jurists “won’t know what hit you if you go forward with these awful decisions.” He was referring to that morning’s oral argument in June Medical Services v. Russo, involving Louisiana’s attempt to legislatively strangle the state’s abortion providers out of business.

Let us agree now that, even if Schumer was speaking in terms of political fallout (as he later said he was) and not of a direct physical threat, this was a singularly dumb thing to say. It rightly provoked a strong and immediate rebuke from the Chief Justice, who correctly called the comments dangerous. That, in turn, was part of the backlash that prompted Schumer to walk back those comments the next day.

Yes, it’s a singularly dangerous thing in a constitutional democracy, a nation committed to the rule of law, to threaten judges. And remember that those jurists, by their code of conduct, can’t argue back. We got to see this dynamic just a few years ago when the president, irritated by a legal ruling that went against him, attacked a federal district judge as incompetent, adding that the judge was a Mexican. The judge has Mexican ancestry, but he was born in Indiana. I was born in Indiana, for cryin’ out loud. The judge is every bit as American as I am.

The climate of American civic discourse has seriously deteriorated in the past four years. I’m no good at turning back the clock, but if I could, I’d look for a way to return to respect for judges and the rule of law, to respectful discourse, and to the primacy of “democracy’s soft guardrails,” mutual toleration and forbearance. (See How Democracies Die by Steven Levitsky and Daniel Ziblatt for details.) I’d restore the norms that are every bit the foundation of our republic as are our laws.

But I fear that this toothpaste is out of the tube. The silver lining is that we’re Virginians. It means something to be a Virginia lawyer. It means that we don’t conduct ourselves that way. The kind of behavior that we’re seeing across that wide river up there is fortunately scarce here. While the nation appears to have lost its revulsion at that kind of misbehavior, Virginia seems to have resisted this social devolution. I earnestly hope it stays that way.