THE TOP TEN APPELLATE STORIES OF 2006

[Stories 10-6 posted December 26, 2006; stories 5-1 posted January 1, 2007] Here’s our second annual look back at developments in the appellate courts in Virginia over the past year.

10. The $30.00 felony — In November, the Supreme Court handed down an opinion in Gunn v. Commonwealth, in which it affirmed a conviction of a Class 4 felony (the same level as arson of an unoccupied building) for the inexplicable “theft” of thirty dollars. The reason for the stiff conviction is that the perpetrator of this grand scheme was a public employee, and the crime charged was making off with public funds.

9. Going without a licensed attorney is sometimes its own punishment — Last year, the Supreme Court decided Nerri v. Adu-Gyamfi, holding that a suit filed by an attorney whose license had been suspended was a nullity. That ruling, as a practical matter, cost the litigants their case, as the statute of limitations had evidently expired in the meantime. This year saw two published opinions that are logical offspring of Nerri. In June, the Supreme Court decided Kone v. Wilson, finding that a wrongful death suit brought by the administrator of an estate, pro se, was also a nullity, since the administrator wasn’t the person to whom the cause of action belongs; that would be the beneficiaries. (The administrator has the right of action, but he’s still representing others in that capacity.) And in October, the Court of Appeals dismissed an appeal for lack of jurisdiction, since the appellant’s attorney had lost his license just before he filed the notice of appeal; that case is Jones v. Jones. All three of these decisions may seem at first blush a bit harsh, since the ones getting punished are the clients, not the lawyer or the administrator.

8. Lots of federal sentencing reversals — If you practice criminal law in the federal courts, you know about the flood of reversals that have come in the wake of the US Supreme Court’s rulings in Blakely v. Washington, 542 US 296 (2004) and US v. Booker, 125 S.Ct. 738 (2005). Those reversals have been entirely about sentencing, in cases where district judges relied upon the federal sentencing guidelines as authoritative. After Blakely and Booker, they must be regarded as advisory only, so a whole slew of federal sentences handed down in the interim have to be redone. One federal judge in particular took the Fourth Circuit’s gentle suggestion, once the handwriting on the wall became unmistakable, and pronounced sentence both ways; in that case, US v. Revels, decided in May, the Fourth had no problem affirming without a new sentencing proceeding.

7. And lots of new nonsuit rulings — The Supreme Court handed down no fewer than three new decisions clarifying the rules relating to nonsuits. We learned that the availability of an inescapable affirmative defense does not preclude the plaintiff from nonsuiting (Berry v. F&S Financial Mktg.); that it’s too late to nonsuit after the parties have fully argued a case-dispositive pretrial motion to the court (Bio-Medical Applications v. Coston); and that one can get a rare second nonsuit without notice to a defendant who hasn’t yet been served with process (Janvier v. Arminio).

6. The electrons are coming! The electrons are coming! — Congress amended two of the Federal Rules of Appellate Procedure, effective December 1. The one that got more press was the change to FRAP 32.1, permitting citation to unpublished opinions decided beginning next year. But it’s the other change that makes this list; the new FRAP 25(a)(2)(D) permits the circuits to start accepting electronically filed documents, including briefs. This is eventually going to wreak a major change in appellate practice, as the new rules will, in all probability, become mandatory once the change takes full effect here. The Fourth Circuit is still implementing its Electronic Filing/Electronic Case Management software, so it’ll be late 2007 before that change hits the streets. But when it does, lawyers practicing in appellate courts must be ready to file everything electronically. That means that it’s time to get something of a cyber-education now. It’s also very bad news for appellate consulting companies, who print, file, and serve briefs for many attorneys (including me).

5. I bet most lawyers didn’t see this one coming – In November, the Supreme Court announced that parties were entitled to a jury trial on a plea of the statute of limitations; the decision is Bethel Investment v. City of Hampton. For as long as I’ve been practicing, judges and lawyers have proceeded on the assumption that a limitations defense is something for the trial judge to decide, usually in advance of trial. But in this inverse condemnation case, the court finds that the viability of the defense depends on the resolution of a disputed fact – in this instance, the date on which the statute began to run. The court therefore ruled that Bethel Investment was entitled to a jury trial on that issue.

But wait; there’s more. Having announced this remarkable doctrine, the court proceeds to decide the issue without a jury, since the City had (as a matter of law) put on an insufficient basis to uphold the defense. Bethel gets a complete victory, while you and I get a whole new way to think about the adjudication of pleas. Logically, there is no reason why this procedure should apply only to the statute of limitations; it should apply to any situation in which a party raises a plea and that plea depends on at least one disputed fact. Even in the context of statutes of limitations, I can envision jury trials on the continuing treatment doctrine in medical malpractice cases, and on when the plaintiff should have ascertained that he was defrauded. This doctrine will engender a wholesale procedural change from the way things were long assumed to be.

4. More procedural goodies than a law school casebook – Remember all those law school final exam problems, with the preposterous circumstances and complicated plots, designed to get you to identify all the issues? In Rahnema v. Rahnema, a hotly contested annulment case, the Court of Appeals got an opportunity to address a boatload of issues across the procedural and evidentiary spectrum. There’s even a discussion of the spoliation doctrine in Virginia. And in poetic irony, the decision was handed down on Valentine’s Day.

I have discussed this ruling extensively in an essay published here, so I won’t replow the same ground. But given the sheer number of meaningful rulings in this decision, this is the #1 must-read opinion of the year for trial practitioners, even if you don’t practice in the field of domestic relations law.

3. Kelo comes to Virginia – In June 2005, the Supreme Court of the United States made front-page news by ruling, in Kelo v. New London, that governments could use the power of eminent domain for economic development purposes. Almost immediately, a hue and cry went up by citizens who were suddenly threatened by the loss of their property, simply so the condemning authority could hand it over to a “preferred” owner, usually a business.

I recall well reading about Kelo in the news coverage in the immediate wake of the ruling; the general consensus was that, given the state of Virginia’s eminent domain laws, that sort of thing could never happen here.

Well, guess what? It happened. And more than that, almost no one noticed.

In September, the Supreme Court of Virginia followed the lead of its brethren in Washington, handing down Hoffman Family LLC v. City of Alexandria. There is one procedural difference between Hoffman and Kelo, but it won’t come as any consolation to the Hoffmans, and it won’t assuage the alarm of anti-condemnation activists.

In Kelo, the City of New London took Kelo’s property for the express purpose of conveying it to a private redeveloper. Closer to home, the City of Alexandria took the Hoffmans’ property with the intention of keeping it, for an unquestionably public purpose. So why the fuss? Because that public purpose (a storm drain culvert) was already being well served by nearby property; the opinion notes that the preexisting culvert was superior to the one the City planned to build. The problem was that a private developer wanted to use the preexisting location in order to construct a high-rise building, and it wanted to demolish the old culvert. The City liked the idea, and agreed to use the power of eminent domain to acquire a new culvert site.

The Supreme Court ruled that they can do that; the only relevant inquiry is whether the proposed purpose for the land taken will be a public one, and this easily passed that test. The secondary question of whether the proposed use is wise, or necessary, is a political question, not a legal one; the separation of powers doctrine prevent the courts from intervening in this kind of ruling.

If you’re one of those people who recoiled in horror at the Kelo ruling, you should know that, at least in my view, the court is right on this one, although a stinging dissent by the chief justice argues that the majority is deliberately closing its eyes to the real purpose of the taking. This issue can be addressed, but not in the courts; if Virginians are to prevent their property from being taken for transparent economic development purposes like this, the impetus will have to come from the General Assembly.

One final note: I thought this was one of the biggest stories of the year, and I led my Supreme Court coverage on September 15 with it. Virginia Lawyers Weekly did the same, in its September 25 issue. But by and large, the mainstream media didn’t cover it at all; I saw no reports, discussion, or editorials in any of the Commonwealth’s major newspapers. (The Washington Post may have run a small story that I missed, from the remote provinces down here in Tidewater.) It’s quite possible that you may not know much about this case; it’s overwhelmingly likely that your clients, and your legislators, have never heard of it.

2. The Taboada saga – This case must be feline in nature, because it seems to have nine lives. It started with the Supreme Court’s March 3 ruling in a premises liability case; the court imported the law of common carriers to find a hotel liable in a horrifying attack on a man, including his being shot several times (fortunately, he survived); he was also carjacked with his infant daughter strapped into a car seat (she was recovered, unharmed). The hotel’s attorney did what many another losing lawyer has done, and filed a petition for rehearing.

And that’s where the real fireworks started. The petition was anything but ordinary; in fiery language, he attacked not just the ruling but the court itself. The brief was intemperate in the extreme, and earned the lawyer something I have never seen before, and hope never to see again – a rule directing the attorney to show cause why he should not be sanctioned under Code §8.01-271.1, Virginia’s version of federal Rule 11.

By now, the writing on the wall is in pretty bold type; the lawyer sensibly hired himself an attorney, and just as sensibly, immediately and without excuse-making, took full responsibility for the contents of the unfortunate brief. In August, at a time when no appellate lawyer expects anything from the court other than the occasional announcement of a writ granted, the court handed down a rare mid-recess opinion, imposing sanctions against the lawyer. The sanctions themselves are modest – a $1,000 fine and suspension from practicing in the Supreme Court for a year – but the opinion is published, and that will be the enduring legacy of this part of the story.

But there’s even more to this one, too! In the sanction order, the court declines to punish the hotel for its lawyer’s sins of commission; it permits the hotel to withdraw that petition for rehearing and submit a new one. And that one bore fruit when the court granted rehearing. A grant of rehearing is very rare indeed after the court has handed down a published opinion, and this is just the second one of which I’m aware in recent years. (The first one, in Kondaurov v. Kerdasha, resulted in a new, slightly toned-down opinion, released in March 2006.) Taboada will be reargued in the January 2007 session, with a decision most likely coming in early March.

1. A third of the Fourth is missing – Well, they’re not missing in the traditional sense, since we know where they are. But the #1 appellate story of the year is the significant and growing vacancy rate in the Fourth Circuit. With the abrupt resignation of Judge Michael Luttig to take a private sector job, and the recent announcement that Chief Judge William Wilkins will take senior status in 2007, there will soon be five vacancies on the 15-member court.

This development has a greater impact than you might think at first blush. After all, the cases are still being decided, right? Well, yes, but . . . there are ramifications even as the court continues to handle its full caseload. Here are a few considerations:

• The Fourth is widely regarded as the most conservative federal court of appeals in the nation. In combination with the Eastern District’s famed rocket docket, that means that the federal government elects to bring many high-profile criminal cases in that district, knowing that the trial will be speedy, and review will be in what most prosecutors would regard as a very favorable forum.
• The absence of so many active judges means that the circuit sometimes has to scramble to keep up with demand for its judicial resources. That means more judges sitting by designation – sometimes district judges from within the geographic area of the Fourth, and sometimes appellate judges from other circuits. Those judges might be less reliably conservative than the ones who have been vetted and selected for this bench by Congress.
• As a practical matter, I believe that this circumstance is contributing to the lingering, agonizing death of oral argument in the Fourth Circuit. I have not undertaken a systematic survey on this, but my rough estimate is that more than 90% of all Fourth Circuit appeals are decided without oral argument. The court’s Local Rule 34(a) specifically authorizes the court to dispense with oral argument if, in the opinion of the three-judge panel to which the case is assigned, argument would not significantly aid the decisional process.

The horizon offers little relief. The nominations of at least two staunchly conservative candidates have been stalled in Congress for years. The President has renominated them instead of seeking other candidates who might be more palatable to Congress. And with the recent shift in power after the 2006 Congressional elections, Democrats will have even less of a reason to accede to the President’s wishes. The question is which side will back down first. I’m guessing that the President will do so, as he knows that his own successor just might not be a Republican. If that happens, and the Democrats hold on to control of the legislature, I invite you to consider the likely makeup of the Fourth Circuit in a few years’ time.

It’s apparent that this situation cannot be allowed to continue indefinitely; if more vacancies occur, it will only get more embarrassing than it is right now, and sooner or later, the citizens of the Fourth – indeed, of the nation – will rebel at their politicians’ intransigence. This situation is by no means unique to the Fourth, as there are vacancies all over the country. But the high political profile of this debate, and its effect on ordinary litigants, combine with the overwhelming social importance of this issue to make this the #1 appellate story of the year.