[Posted August 13, 2014] While I’ve been busy crafting and filing brief after brief, the appellate world has been moving apace. Here are some recent significant developments that you may have missed.

Bostic stay denied
When a panel of the Fourth Circuit decided Bostic v. Rainey on a 2-1 vote recently, it affirmed a district court’s finding that Virginia’s ban on same-sex marriage was unconstitutional. This portended a swift appeal to the Supreme Court – in fact, one party has already done that – but in the interim, the question arose, what effect will the ruling have pending the appeal?

One of the likely appellants sought a stay of the effect of the ruling, andVirginia’s Attorney General joined that request, although he had urged affirmance. I’ve seen the AG’s brief on this, and it’s very well-written.

But it wasn’t enough. Today, the same panel that decided the appeal refuses to stay the mandate, by the same 2-1 vote. This means that the mandate will issue, and same-sex marriage will be immediately available, on Thursday, August 21, unless a justice of the Supreme Court decides to stay the matter pending the appeal.

Regardless of your position on the merits of these issues, please be assured that today’s order is very consequential. At least, it will be in the event the justices overturn the Fourth’s judgment. Couples who wed the next day will bring several complex issues into play. For example, if a couple marries and take title to land as tenants by the entireties, and the Supreme Court later upholds Virginia’s ban, how do the two then hold title?

In case you’re wondering, the order gives no detail as to the judges’ thinking on why the stay was denied. Here’s the “guts” of the order, in full: “Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion. Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.”

Local Rule 41 makes it clear that the court disfavors stays, and the panel majority simply didn’t find the reasons offered to be compelling. The same rule doesn’t apply across the Potomac; in my opinion, it’s likely that the Chief Justice will stay the enforcement while the Supreme Court decides the case.

The Fourth gets a new jurist
On July 28, the Senate confirmed the nomination of Pamela Harris to bring the court up to full strength. Judge Harris will replace Judge Andre Davis, who took senior status after serving for less than five years.

A get-with-it rule change
I saw today in Virginia Lawyers Weekly a notice that the State Bar is seeking comment on rule changes that will exile the Luddite defense in attorney-discipline proceedings. According to Peter Vieth’s story, the new rule would require lawyers to stay up-to-date on “the benefits and risks associated with technology relevant to the lawyer’s practice…” The Bar also wants comment on an amendment to RPC 1.6, to deal with unauthorized disclosure of, or access to, confidential information.

A full discussion of tech-age confidentiality is beyond the scope of this limited note. I’m not qualified to comment, for example, on whether maintaining records in the cloud satisfies the new rule (or even the old one). But on the assumption that these changes, or something like them, will be approved, you can no longer avoid being an e-lawyer. Of course, if you can mass enough opposition and send a flood of adverse comments to VSB Executive Director Karen Gould, then maybe – just maybe – you can get the rule changes postponed until your retirement date. Good luck with that, by the way.

A look way ahead
For those of you who are ABA members, there’s an article in the just-issued Judges Journal entitled, “Appellate Practice: The Next 50 Years.” Unless you’re a very young attorney, you aren’t likely to still be in the trenches at the end of that stretch; but the piece is still worth reading in order to see what’s on and over the horizon.

A published en banc denial
Lots of unsuccessful appellate litigants ask the courts of appeal for rehearing. The refusal of such a petition is rarely newsworthy, but the Fourth Circuit recently published an order that was accompanied by competing opinions – one dissent, once concurrence – on the refusal. InUS v. Umana, originally published yesterday, and amended today, the full court refused to take up an appellant’s contention that he was denied his Sixth Amendment rights. Umana was convicted in a double murder. At a sentencing hearing, the court allowed out-of-court statements from police informants that he had been involved in several other murders.

Isn’t the Sixth Amendment supposed to prevent that, by requiring confrontation? In the guilt phase, yes; but way back in the Truman Administration, the Big Supremes held that you don’t have the right to be confronted by your accusers in sentencing proceedings. Today’s dissenters recognize that 1949 ruling, but argue that it’s been overtaken by a sea change of more recent SCOTUS jurisprudence. The dissent urged the full court to take the case, if only to create a circuit split that would make cert more likely.

Judge Wilkinson writes the concurrence in order to refute the dissent. His opinion stretches over several pages, but here’s the real bottom line, in a quote from a 1989 Supreme Court decision:

If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

Judge Wilkinson describes this directive as “pure ice,” and I agree. Even so, one of the express purposes of the dissenting opinion is to plow the appellant’s road to Washington, and I think it does that. At issue is the simple question whether that 1949 decision is now dead law. For now, it’s still among the breathing.