[Posted January 3, 2009] In the past, I have posted a retrospective look at the top ten appellate stories of each year. This year, I thought I’d try it a bit differently, focusing on the top single appellate story in each month. This emphatically doesn’t produce a true Top 10, as some months were relatively thin and others had several major developments. But let’s give this approach a try.

JanuaryDowden v. Hercules, Inc. produces a puzzling reversal in a Workers’ Comp case. In one sense, the Court of Appeals unanimously agrees that the ruling below was incorrect, and that the matter should be remanded to the Commission. But in a troublesome twist of fate, the judges split 5-5 on whether it should be remanded for further proceedings, or just for a ruling on the existing record. What’s a Commissioner to do in a situation like that? [Postscript: I’m told by one of the counsel in the case that the parties settled it, thus coaxing a collective sigh of relief from the three Commissioners.]

February – Sometimes the best laid plans of legislators are gone astray; the Supreme Court lays waste to the 2007 General Assembly’s plan for regional transportation authorities in February by ruling that the authorities’ funding mechanism – regional taxes imposed by the authority – was unconstitutional. It seems that the power to tax cannot be delegated to unelected bodies. The response of the Northern Virginia authority was an understated, “Back to the drawing board.”

March – Take heart, all you civil libertarians; the Fourth Circuit offers you welcome succor in an EEOC case involving religious freedom in the workplace. The court reinstates a hostile work environment claim by a Muslim American. Judge Wilkinson’s opinion includes this meaningful conclusion: “Free religious exercise would mean little if restricted to places of worship or days of observance, only to disappear the next morning at work.”

April – Prosecutors across the Commonwealth celebrate to learn the US Supreme Court’s ruling in Virginia v. Moore. The Big Supremes unanimously reverse the Supreme Court of Virginia, which had unanimously reversed the Court of Appeals. The ultimate holding is that a violation of state procedural laws doesn’t necessarily invoke the exclusionary rule that’s based on the US Constitution.

May – The Court of Appeals reins in an overzealous prosecution for possession of burglarious tools. The trial court had found the defendant guilty of that charge for carrying a purse into a store, and then stashing some five-finger discount merchandise into the purse. No dice; the court rules; a purse is just a purse, not a tool.

June – Without any advance warning, the Supreme Court starts viewing assignments of error with a much more critical eye, rejecting appeals that aren’t specific enough in this regard. The shift produces a dismissal of one appeal that had used virtually the same assignment language as an earlier appeal in which the court had gone on to reverse the case. (Fortunately for the second lawyer, the court granted him rehearing and evaluated the petition on the merits.) This move came as a major surprise to appellate lawyers across the state, and has led to greater specificity in petitions since then.

July – The en banc Fourth Circuit issues a highly fragmented ruling in a case involving one of the enemy combatants held without criminal charges by the government. There are seven separate opinions in the decision, and the majority rules that the detainee gets a hearing on whether he really is an enemy combatant or not. Next stop, Washington, DC: The Big Supremes granted cert on December 5.

August – Personally, I’d say that the biggest appellate event of this month was the convening of the first Virginia appellate summit in recent memory. But I must acknowledge that one other event overtakes that in the cosmic scheme of things: The Court of Appeals grants Virginia’s first-ever writ of actual innocence. This was one in which the Commonwealth consented to the requested relief, so I doubt it signals a new flood of such writs. Still, in the seven years since these writs have been available (four years for those involving non-biological evidence), it’s newsworthy when we finally see one.

September – The Supreme Court caps an eventful opinion day by reversing the conviction of spammer Jeremy Jaynes. The decision comes after the court granted a rare rehearing after having decided the case on the merits back in February. (Trust me; when I say rare, I mean rare. A grant of rehearing at this stage happens less than once a year.) The earlier ruling had been by a bare 4-3 majority, but the final decision in September is unanimous. This one, too, may wind up in Washington, as I understand that the Commonwealth is pursuing certiorari.

October – A criminal defense lawyer finds himself in hot water for the grave sin of having reached an agreement to continue a routine traffic charge. The lawyer tells his client about the agreement, and tells him to come to court on the new trial date. He relies on the prosecutor to convey the agreement to the court, and the prosecutor does just that. But the judge isn’t satisfied, and eventually holds the defense lawyer in contempt for doing what routinely happens in thousands of cases across the Commonwealth. The Court of Appeals reviews the conviction and finds that the judge acted within his authority in making that finding. Another lawyer meets the same fate in a similar case before the same trial judge; the CAV affirms his conviction, too, in an unpublished opinion in December. The trial judge loses his robe and gavel as he is not reelected by the legislature in 2008, but that’s too late to help these lawyers.

November – Barack Obama and a strong majority of Democratic senators are elected. Why is this an appellate story? Because the #1 story in my last two year-end lists has been the lingering logjam in the filling of judicial vacancies on the Fourth Circuit. At its peak (or perhaps its nadir), the court was down to only ten judges, out of an allotment of fifteen. Judge Agee came over from the Supreme Court in the summer, but there are still four vacancies, and two of the court’s senior judges are no longer available to hear cases – Judge Wilkins entered private practice in October, and Judge Widener passed away in September 2007. The court has only one senior judge who hears cases (Judge Hamilton) and is still problematically short-staffed. But where the White House and the Senate are controlled by the same parties, the horizon suddenly looks brighter for the Fourth, especially if (as has been reported) the new president will nominate moderate judicial candidates to fill the remaining four vacancies. Of course, the appointment of philosophical moderates could cost the Fourth its reputation as the most conservative Court of Appeals in the land, assuming it hasn’t already lost that title via personnel changes.

December – In an opinion handed down by the CAV on December 2, a criminal defendant is unfortunately a little too candid with a trial court. The trial court had rejected the defendant’s last-minute request for a continuance so he could hire a new lawyer. So the defendant pleaded guilty. But before the presentence report could be prepared, he sought to withdraw that plea. When asked why, he answered, “That was the only way that I felt I could buy time in order to get a lawyer to try fighting this thing properly.” In other words, “I did it so I could get around your earlier ruling, Judge.” (That’s my editorial paraphrase; not his words.) The CAV speedily affirms the trial court’s ruling rejecting his motion to change the plea.

So there they are; the top appellate stories of 2008 in Virginia. I’ll conclude this list with the same note of optimism I have for the past few lists, on the assumption that someone, somewhere, cares deeply about which stories made this list: Let the bar fights begin.

Health and happiness to each of you in 2009.