THE OPINION DROUGHT CONTINUES

(Posted August 18, 2023) Another Thursday, another washout for those of you looking for fresh opinions from the Supreme Court of Virginia. More on that in a moment, but for now, let’s poke around and see what else is brewing.

A surprising summary affirmance

I learned yesterday about an unpub from the Court of Appeals of Virginia that merits mention here. I seldom address CAV rulings and almost never do so with unpubs, because they carry essentially zero precedential weight. But I’m led to believe that what happened in Medeiros v. Department of Wildlife Resources is becoming common in that court. It surprised me and should sound a warning alarm for the trial bar.

The underlying dispute is of secondary importance to the procedural aspect of the appeal. A group of landowners in Henrico County sued the Department, seeking to invalidate a statutory provision called the “Right to Retrieve Law.” That act relates to hunting dogs that may have wandered in pursuit of prey. It exonerates the owners from liability for criminal trespass when they enter private property to get the dogs back. The property owners alleged that expressly permitting entry onto private land constitutes a taking of property.

The Department demurred, arguing among other things that the statute only created an exception to the crime of criminal trespass, but left intact civil remedies for trespassing. That pleading persuaded the trial judge, who dismissed the claim. The landowners took the case to Eighth and Franklin.

Last month, in an unpublished order, the CAV summarily affirmed. The court’s reason was simple and familiar: The appellants had failed to file a transcript of the demurrer hearing. Far too many appeals die this same grisly death, as the appellate court holds that a transcript is essential to its review of the case.

Why is this decision, a lone unpub with an ocean of company, notable? Because the circuit court had decided the case on demurrer. In those hearings, the only issue is whether the complaint states a claim for which relief can be granted. That’s a matter of pure law, and the appellate court is in as good a position as the circuit court to decide the matter. This is why the appellate courts afford no deference to such rulings on appeal.

I’m on record, early and often, as being a big supporter of the use of court reporters to take down any hearing in which the judge is going to decide anything more momentous than what to order for lunch. Transcripts are the lifeblood of my practice, and I will maintain until my last breath that skimping on the court reporter is a false economy; you simply have to have one.

But demurrers are – or so I thought until now – decisively different because of their limited scope. The Code prohibits the circuit court from deciding them based on anything other than what’s in the eight corners of the complaint and the demurrer. That’s true for the circuit court and on appeal. Why does a transcript matter?

That was conventional appellate wisdom, as I’ve perceived it from my own musings and my conversations with my colleagues in the guild, for generations. But I’ve heard that Medeiros isn’t an outlier in the current Court of Appeals; this is happening with more frequency.

My advice to you, dear readers, is a turbo-charged version of my previous consistent advice: Always, always get a court reporter, even for a demurrer hearing. Personally, I believe that the CAV is mistaken here; I believe that it could easily evaluate the appeal without a transcript, though I express no opinion on the merits of the case because I don’t know enough about it. (You will note that I continue to exercise the same number of votes on the court as before, which is zero.) If you think that’s defensive lawyering, and perhaps the Supreme Court will step in and issue an opinion that agrees with my view, great; but as of now, going without a reporter is far too dangerous a course for me to recommend.

August writ panels

The Supreme Court of Virginia has notified its “customers” about arguments to the August 30 writ panels. As of a few days ago there were 47 petitions, divided among two panels of presumably three justices each, on the calendar that day. As I noted here on June 15, any appeals granted from these panels will likely find a home on the January session docket.

That means that the universe of potential merits appeals to be argued this year is probably set. I can’t give you a definitive number because of the several variables here, but my best guess is that we’ll see something like ten more merits arguments over the rest of the year. Note that that’s just two sessions – one in mid-September and one right around Halloween.

Whither Vlaming?

When I was a kid, I enjoyed putting together models from cheap plastic kits that you could buy at toy stores. I tried assembling one of an airplane but found it too complicated, and I never got into cars. No, I preferred superheroes and classic-movie monsters. You know: Frank, Drac, The Wolfman, The Mummy, those guys. I fondly recall one called The Forgotten Prisoner of Castel Mare – basically a clothed skeleton, chained to a dungeon wall. The concept, maybe borrowed from “A Cask of Amontillado” by Poe, was that a jailer had locked up some poor sinner in that dungeon and had then forgotten all about him.

I was reminded of The Forgotten Prisoner recently when I noted that the oldest argued but undecided appeal on the Supreme Court of Virginia’s docket, Vlaming v. West Point School Board, is still hanging there, 41 weeks after the oral argument, waiting forlornly for an adjudication. I imagine that the litigants in that appeal probably feel like the poor prisoner whom I so lovingly constructed back in the 1960s. They’re still out there, but it’s hard to tell if anyone at Ninth and Franklin remembers them.

We here at VANA remember them. The issues in the case are fascinating and the decision will be a difficult one. I gave you a thumbnail sketch at the end of July and won’t repeat that here. I look forward to seeing how it comes out.

The appeal is also the key to a trivia question that can win you bar bets in appellate dive bars across the commonwealth: Since the Supreme Court of Virginia went to rolling release dates in 2015, what’s the longest that any appeal has gone without a decision?

Vlaming now takes the prize. I’ve gone through my records to gather each decision that has taken 26 weeks – half a year – or more to arrive. I found 12, the longest delay of which was 35 weeks. Vlaming, the 13^th, will take at least 42. If it arrives next Thursday, August 24, then in a cruel irony, the opinion will come down exactly one year from the date when briefing was complete. Another week’s delay would make it 18 months since the writ grant.

If any litigants faced a delay like this in circuit court, they could use the procedure set out in Code §17.1-107. In that event, you send a confidential request to the chief justice, after which his Honor writes to the tardy judge to ask discreetly if he’d like a judge designate to help him clear his docket, since he seems to be having problems on his own. (This process is known colloquially as “a motion to nudge the judge.”) I assume that this procedure usually spurs action, though I’m confident that there are no statistics on it.

If you’re wondering what can be done about delays like this in an appellate court, I’m happy to be able to offer you a simple answer: nothing! Oh, the parties could settle the case, of course; litigants are always free to do that. But there is no mechanism, none, for thawing an appellate judicial freeze-out like this.

My earnest hope is that delays like this won’t become commonplace. I fear that I’m wrong. Exhibit A: Vlaming is the eighth appeal in just the last 36 months to stretch long enough to make my half-a-year list. This problem is becoming far too common, but waiting is the only approach available to the litigants.

Update August 21, 2023: I’ve heard from a few appellate pals after this post. John Koehler has an especially interesting take on the Medeiros case, insisting that dismissals for want of a transcript on pure-law appeals are nothing new. Others have written to point out the opposite, that appellate courts can and often do go ahead and evaluate the merits of a purely legal issue even without a transcript. For two examples, see Modern Environments v. Stinnett, 263 Va. 491 (2002) and Williams v. Legere, 77 Va.App. 422 (2023). I won’t pretend to be able to resolve the difference for you; I’ll just underscore the one bit of advice on which all appellate lawyers are in agreement: Just hire the %#&!! court reporter!

John’s essay also includes some wonderful detail of happenings behind the scenes at the Supreme Court. I’ve never been a court insider; my musings here at VANA come from publicly available materials and from conversations, plus a healthy dose of courtwatching over roughly twenty years. John’s post includes several details that I would have no way of knowing.