UPDATE ON APPELLATE DEVELOPMENTS
(Posted June 18, 2020) Here are a few quick notes on appellate matters here in the Commonwealth and beyond.
Courts open tomorrow
You may have read about the Governor’s directive to shutter state executive offices tomorrow, June 19. The day isn’t a formal, permanent state holiday yet – only the General Assembly can do that – but the Governor can issue a directive like this to the Executive Branch of government.
The key here is that no such order exists for the Judicial Branch. That means that if, despite the judicial-emergency declaration, you have a filing deadline of some sort in state courts that falls tomorrow, the clerk’s offices will be open and you must meet your deadline.
State of the docket at One First Street
With this morning’s opinion in DHS v. Regents of the University of California, the Supreme Court of the United States has 15 argued but undecided cases left on its OT19 docket. If the Court adheres to its tradition of clearing its docket by the end of June, it will issue opinions in all of those cases in the next 12 days.
The Court seldom hands down a large number of opinions on a single day. We’re quite unlikely to see anything like what happened in Richmond on May 28, when the Supreme Court of Virginia announced seven new opinions, two published opinions, and two more unpublished orders.
SCOTUS normally hands down opinions on Mondays, and as June unfolds, it adds opinion days on other days of the week, typically Thursdays but sometimes on Wednesday as well. There are two more Mondays and one more Thursday in the month. Because I doubt that the Court will give us five opinions on each of three straight opinion days, I’d guess that we’ll see at least one more, and possibly two more opinion days, possibly including July 1 or 2.
Solicitor General to step down
Solicitor General of the United States Noel Francisco has announced that he’ll leave the OSG effective July 3 and will return to the private sector. Francisco has been the administration’s top practicing lawyer – his superiors, the Attorney General and Deputy Attorney General, are administrators who don’t go to court – for about three years.
The timing of this resignation is typical for Solicitors who leave; they customarily do so at the end of a Supreme Court Term.
Latest on Gregory v. Northam
A Richmond Circuit Court judge today dismissed an action by a descendant of one of the donors of land surrounding the Lee statue on Monument Avenue in Richmond, citing a lack of standing to sue. The court gave the petitioner leave to amend, to amplify his standing allegations. The court extended a temporary injunction prohibiting removal of the statue for the time being.
I haven’t seen an order from the court yet. A press release from the office of Attorney General Mark Herring indicates that the court directed the Commonwealth’s legal team to draft one.
The Associated Press is reporting an unusual provision of the court’s ruling this morning: an indefinite extension of the temporary injunction. That report may be mistaken, because no Virginia court can do that; by statute, a temporary injunction order must specify an expiration date. We’ll have to see what the order says to evaluate that. Meanwhile, either side may file an immediate petition for review in the Supreme Court under Code §8.01-626.
