(Posted June 30, 2021) With the close of the year’s second quarter, let’s take a moment to see what’s happening in the greater appellate landscape.


ABA Appellate Summit

Registration is now open for the preeminent nationwide gathering of appellate jurists and advocates. The Appellate Judges Education Institute will convene November 11-14 in Austin, Texas. I’ve attended several ABA Appellate Summits (as AJEI is informally known) and have enjoyed each one immensely. Here’s a clue: I get the great majority of my annual MCLE credits by teaching; this is where I go to learn. You’ll also find a terrific, collegial atmosphere and an opportunity to socialize with colleagues from across the nation.


A Virginia Summit, too

This year will also feature an appellate summit here in the Commonwealth. The triennial Virginia Appellate Summit will meet September 9 at McGuire Woods’s beautiful offices in downtown Richmond. The Virginia Bar Association sponsors the full-day program. Registration isn’t open yet, but here’s a link to the event page. If you attend, then yes, I’ll see you there.


SCOTUS OT’20 winds down

The traditional end of the US Supreme Court’s term, and the beginning of the summer recess, is June 30. Last year, the justices had to nose into July to finish issuing opinions because of a later-than-usual final sitting. This year, the Court has handed down 64 opinions; the final two will come tomorrow, July 1.

Last evening the Court made news by not issuing a published opinion. In a shadow-docket ruling, a bare majority of the Court refused to lift a stay of the CDC’s nationwide moratorium on evictions. Justice Kavanaugh filed a concurrence in which he agreed with the dissenting justices – Thomas, Alito, Gorsuch, and Barrett – that the CDC exceeded its authority in imposing the moratorium. But he reasons that it’s about to expire anyway. That will come as cold comfort to the group of real-estate agents who had sued.

While I don’t have an informed view on the basis for the Court’s ruling, I do believe that the moratorium is a taking of private property – here, a contract enforcement right – for a public purpose without just compensation. The nation’s landowners, in my opinion, have a colossal takings claim in inverse condemnation.


2Q David-Goliath Index

Because the next possible opinion day for the SCV comes after the calendar turns to July, let’s look back at how the Supreme Court of Virginia has decided those merits appeals with a big-guy-vs.-little-guy dynamic. In the past few years, we’ve seen the balance of those decisions shift from roughly 50-50 to a wholly lopsided set of outcomes, with our Goliaths repeatedly whomping poor David for quite a while now.

In the second quarter, the battle was almost even in published opinions. Our Davids won six times against seven for our Goliaths. But before you sense a turning of the tide in favor of the little guy, we have to add in the unpubs, and those fell 8-1 in favor of the big guys. That gives us a D-GI for the second quarter of 32/68 – that is, Davids have won 32% and Goliaths 68%. For the year, the index stands at 28/72. That’s fairly close to last year’s final index, which had Goliaths winning 70% of appeals.


CAV news

Yesterday, the Court of Appeals of Virginia issued its sixth operations order under pandemic conditions. The order provides that the court will continue to receive writ-panel arguments by videoconference through the end of the year. But there’s a ray of sunlight: Beginning September 1, the court will endeavor to convene in-person merits arguments. This assumes that neither the Governor nor the Supreme Court will withdraw permission for that. Importantly, it also turns on the availability of local courts for appellate panels. The judges hear arguments regionally, and for those regions outside the Richmond area, the court depends on the hospitality of local circuit courts. Those courts may be struggling to find room, as they’re no doubt busy trying to clear out their own trial-docket backlog.

The CAV is also in the news in the Governor’s summoning the legislature to a special session in early August. One of the items of business will be “appointing judges.” The Governor’s proclamation doesn’t specify which judges, but filling the seven vacancies in the CAV has to be a priority. The court begins to exercise plenary appellate jurisdiction January 1, and the new judges will need to be in place and settled into their chambers before then.


One more program note

On July 22, I’ll be moderating a small-panel discussion on appellate mediation. The American Bar Association is producing the webinar in which Brendon Ishikawa of the California Court of Appeal and Dana Curtis, a former Ninth Circuit Mediator, are the speakers.

I could call each of them mediation gurus, but I continue to believe that you need a beard and a mountaintop to be one of those. Neither Brendon nor Dana has a beard, and I don’t think they hang out on mountains. What I can tell you is that they literally wrote the book on appellate mediation. Having met them in our preparatory session, I can assure you that they’re both engaging speakers, so you won’t endure 90 minutes of droning lectures. Registration is open; ABA members get a sharply discounted rate.