THE TOP TEN APPELLATE STORIES OF 2007[Posted December 31, 2007] At the end of each year, I take a look back at the stories that I’ve covered over the previous twelve months that seem to be the most important. It’s entirely subjective and unscientific; as I have written before, I have this optimistic hope that somewhere in the Commonwealth, discussions of the list will spark bar fights. I won’t hold my breath on that one, but it’s okay to dream, isn’t it? Here’s this year’s Top Ten:
10. Page limits get a stealthy reduction. In November, the Supreme Court, after obtaining the input of the Court of Appeals, mandated certain changes in briefs, effective February 1, 2008. The most important of those is the increase of minimum type size to 14-point. That, along with a restriction to use one of only three fonts, will make briefs look considerably different starting next year. (I know, because I started complying with the new rule as soon as the order came down.) In reporting the change, Virginia Lawyers Weekly stated that the new type will require about 16% more space for the same words, in comparison with the old 12-point minimum. But – surprise! – page limits haven’t changed. That means that lawyers will be filing shorter briefs (measured by the number of words), whether they like it or not. My friend Frank Friedman, an outstanding appellate advocate from Roanoke, notes that this change may prove to be problematic in death penalty cases, where lawyers absolutely have to advance a significant number of arguments. (A subtle suggestion to the justices – Frank is right, and you might want to be a bit generous with page limit waivers in capital cases.)
9. Stifling dissent in Karachi. Also in November, Pakistani President Musharraf could see the writing on the wall. The Pakistani Supreme Court was about to rule against him on the legality of his running for reelection while he still led the army. Instead of addressing the problem, he redefined it – the court became the problem – and then fixed that, by the simple expedient of arresting, firing, and replacing the justices who disagreed with him. With the court thus reconstituted, guess how the appeal came out? But Musharraf went beyond just replacing the jurists; he also arrested a number of prominent appellate lawyers, including the president of the Supreme Court Bar Association. Of course, matters got much worse in that troubled nation on December 27, when prime ministerial candidate Benazir Bhutto was assassinated after a political rally. For me, this entire course of action, even half a world away, served as a reminder that our own liberties are only as secure as we make them.
8. Stupid criminal tricks. I always enjoy reading about the dumb things that crooks do to get caught. This year, we had several enjoyable stories about those who decided that a life of crime would be profitable. In McDowell v. Commonwealth, the appellant argued that the evidence wasn’t sufficient to prove, beyond a reasonable doubt, that the value of the good he shoplifted was more than $200. Unfortunately for him, he elected to take his five-fingered discount just hours after the store had completed an inventory, so it was able to give the police a specific list, item by item, of the things he stole, together with prices. We also had the conclusion of the saga of Raab v. Commonwealth in October, where Mr. Raab thought he could explain his late-night presence at a closed restaurant parking at the beach lot by saying that he had been out for a swim. The amused officer noted his dry clothes and hair and invited him to “step out of the car, please.” One of the best ones of the year was just last month, in Patrick v. Commonwealth. Patrick broke into a store one night and stole some scratch-off lottery tickets. Of course, those things have serial numbers, and as soon as the burglary was discovered, State Lottery officials put an electronic hold on their redemption. Patrick tried to redeem them (at least he went to a different store to do that, so he’s not utterly stupid), and when he was refused, he left. When a lottery investigator came to the second store a day or two later and asked the clerk if she could describe the person who tried to redeem the hot ducats, she answered, “Of course I can; it’s Mr. Patrick. We’ve lived across the street from each other for 13 years.”
7. It’s my party, and I’ll close the doors if I want to. The Fourth Circuit made news across the Commonwealth when it struck down Virginia’s open primary law on October 1. Republicans wanted to have a primary election without fear that crossover voters (perhaps some independents; but more likely those pesky Democrats) would come in and ensure that an unelectable candidate won the primary. The Fourth let ‘em, ruling that the open primary statute violated the party’s right to nominate candidates as it saw fit.
6. Another brew, Junior? The issue of underage drinking got splashed all across the newspaper this year with the fate of George and Elisa Robinson back in June. The couple saw fit to throw a beer bash for Elisa’s son’s birthday. The spent $350 on alcohol for the affair. Trouble was, the son was turning 16, not 21. Most of the thirty guests were roughly Junior’s age. That brought prosecutions for contributing to the delinquency of a minor. The two were each convicted of nine counts of that crime, and sentenced to three months on each charge, consecutively. The math isn’t hard; that’s 27 months for throwing the wrong type of beer bash.
5. Comprehensive rule changes, for the patient. The Appellate Rules Advisory Committee continued its lengthy review of Virginia’s appellate practice rules. The goal of the study is to find ways to make the rules more uniform between the courts, and to make them clear. (If they clear out a few hidden landmines while they’re at it, I don’t think too many practitioners would complain.) My best guess is that the committee, which was formed in 2005, will issue its final report to the court some time in the middle of 2008. Following a public comment period, it might well be the end of next year, or perhaps sometime in early 2009, before any of the recommended changes would be implemented.
4. Enemy combatants are people, too. A panel of the Fourth Circuit handed the Bush Administration a stinging loss in June in Al-Marri v. Wright, testing whether the government can detain a civilian indefinitely, without criminal charges. By a divided vote, the court granted Al-Marri a writ of habeas corpus, featuring the prominent view, “[I]n the United States, the military cannot seize and imprison civilians — let alone imprison them indefinitely.” But the court later granted en banc rehearing in August, and the full court considered the case on Halloween. We should get an opinion early in 2008 (and a petition for certiorari, regardless of the outcome, shortly thereafter). This is a case of extraordinary public importance, helping to define us as a culture, so it merits close monitoring.
3. New kids on the block. The Supreme Court and the Court of Appeals of Virginia each welcomed a new member late in the year. Justice Lacy announced in June that she would take senior status in August, timed to coincide with the expiration of her law clerks’ terms (thus leaving no orphaned clerks). That timing left the appointment of a successor up to the governor, and in November he chose Chesapeake’s Bernard Goodwyn for the post. Around the same time, the Court of Appeals lost its last remaining original member, Judge Jim Benton, who had served since the court was created in 1985. Again, the governor got the opportunity to name the replacement, and he selected Prince William County Judge LeRoy Millette for the seat. It is, of course, far too early to gauge the effect of these new personalities upon the overall makeup of the court. One other thing – since Justice Lacy’s clerks had moved on, Justice Goodwyn showed up for work with no clerks at all, which is probably a helpless feeling for an appellate jurist. But the chief justice came to the rescue, lending the newest member of the court his most experienced clerk.
2. Sanctions, anyone? Ask any trial lawyer – Topic A among the Supreme Court’s recent caseload is the torrent of sanctions cases that seemingly arrived out of nowhere. The celebrated (?) case of Ford Motor v. Benitez was the first, arriving in January, followed closely by Nusbaum v. Berlin, In re Moseley, two different cases involving PETA, and, . . . well, you get the idea. I don’t know whether trial judges are wielding their newly-reaffirmed power to sanction lawyers in the months since this spate of decisions, but they might well. The court confirmed that a judge has the right to impose as a sanction the barring (“disbarring”?) of a lawyer from that judge’s courtroom, without having to go through all that State Bar procedural stuff. It concluded that the age-old practice of pleading affirmative defenses without any factual support, in order to avoid waiving them, is inappropriate. It found that the Court of Appeals could not bar the court’s door to a litigant merely because that litigant had not paid a $500 judgment in a separate case. And there’s more; at least one more sanctions case will be argued to the court in early 2008. Given the very long time since the court last visited this touchy subject, many lawyers were no doubt wondering this year, “Now, where did THAT come from?”
1. A third of the Fourth is missing. This was my #1 story of 2006, and it just got more problematic over the course of this year. Telling the whole story would take hours of typing for me and of reading for you, so I’ll just hit the most important developments:
Exhibit A – Judge Widener had announced his wish to retire six years ago, but charitably said he would stay around until his successor could be appointed. In July, he got tired of waiting, and announced that retirement, effective immediately. He did agree to take senior status, so he could continue to help the court with its already-overburdened caseload. But even that help vanished when he died, just a few weeks after stepping down.
Exhibit B – In January, newly elected Senator Jim Webb took the oath of office in Washington, fresh off his upset win over Republican Senator George Allen. Webb’s win helped the Democratic Party seize control of the Senate by a slim margin, meaning that that body would control the process by which the (Republican) president’s judicial nominees were approved, or not. Senator Webb and his senior counterpart, Senator John Warner, admirably got their heads together after recognizing that the endless impasse over Fourth Circuit nominations had to end. The two men, from different political parties, compiled a list of five well-qualified potential nominees, and invited the president to select one of those. The clear implication was that such a nomination could be escorted through the Senate with comparative speed, and the Fourth could take a step back toward its ever-receding full complement of 15 judges. But the president would have none of it; he tossed that list aside and nominated Richmond appellate attorney Duncan Getchell for the job. At last report, courtesy of my cyber-colleague Steve Minor on December 28, the Getchell nomination will never get off the ground. (In a side note, the nomination of Getchell did inspire one seven-figure defamation suit, brought by a lawyer whom Getchell, or someone at his firm, contended had made a fatal mistake in an $8 million appeal in 2005.)
Exhibit C – Former Chief Judge Wilkins took senior status this year, so my premature forecast of last year at this time has come true – with only 10 out of 15 judges active, the Fourth really is down a third. As I mentioned last year, we are seeing the death of oral argument in the court as fewer and fewer judges are available; the Fourth has the highest percentage in the nation of cases decided without oral argument (well over 90%). The people who are affected by this continuing logjam – and I’ll go ahead and add, “spawned by politics and midwived by petulance” – are you and me; everyone who lives, works, and even occasionally practices law in the Fourth Circuit.
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To end my list in the traditional fashion, “Let the bar fights begin.” Health and happiness to each of you.