UPDATE ON RECENT APPELLATE DEVELOPMENTS
(Posted January 16, 2018) It’s time to take a look around the appellate landscape. There are plenty of things to report.
Solicitor General turnover
It was just four months ago that Virginia’s Solicitor General, Stuart Raphael, left the public sector to return to work at Hunton & Williams in Washington. His deputy, Trevor Cox, took over as Acting Solicitor General, though in my mind the adjective is superfluous; I regard Trevor as the current SG.
But not for long. He, too, has stated his intention to return to private practice. Attorney General Mark Herring has announced that U.Va. Law professor Toby Heytens will become the next Solicitor in late February. The delay is to permit Toby to argue a case currently calendared in the Supreme Court of the United States. I also understand that the current Assistant SG, Matt McGuire, will be promoted to Deputy.
The next Solicitor is well qualified for the job. Toby is a veteran of that other Office of the Solicitor General – the one in Washington – and I can tell you that there are no schnooks in that office. Toby is also – like his two predecessors – a very pleasant and engaging person in addition to being a fine lawyer. The Commonwealth will be well served.
Why the exodus? Each person has his or her own reasons for changing jobs, but the prime suspect, in my opinion, is the salary. The Solicitor’s boss, the AG, makes about $150,000 a year, and the Solicitor is probably a few thousand below that. If you go back a few years, that may have been a competitive salary range for a high-level lawyer, but it isn’t anymore. I’m glad that someone as qualified as Toby has agreed to step in, but I wonder how long he’ll stay. The private sector will eventually come a-callin’ for him.
… and in the Staff Attorney’s Office
The Staff Attorney for the Court of Appeals of Virginia, John Tucker, is stepping aside at the end of this month after a successful run of several years. To succeed him, the court has tapped Senior Assistant AG Alice Armstrong; she’ll step into the job February 1. Alice is the current chair of the Virginia Bar Association’s Appellate Practice Section, and is also both a terrific lawyer and a delightful person.
Date set for Virginia Appellate Summit
Roughly every three years, Virginia’s appellate bar and benches descend on Richmond for a day of CLE and camaraderie. This is one of those years; the summit will convene September 20, 2018 in Richmond. I’ll post more details when I get them, but if you have (or hope to cultivate) an appellate law practice in the Old Dominion, you need to set that date aside right now.
New messaging service
The Supreme Court of Virginia has established a digital subscription so you can be notified of developments from opinions to rule changes to argument dockets. The service is free. Here’s a link to the announcement, and here’s a link to the court system’s home page, where you can sign up in a dialogue box on the right side of the page.
This move is obviously and fiendishly calculated to devalue the utility of this website in your eyes, offering a free direct service to give you news that you’d probably otherwise read about here. It won’t work, despite the best efforts of those scoundrels at Ninth and Franklin. You see, the court’s writeups of its decisions don’t include practical advice, analysis of how the new decision fits into the existing body of caselaw, or – most important – appellate jokes. The court is notoriously humorless when discussing its own work product, for reasons you’ll appreciate.
In that vein, I’ll share a story that I treasure. Perhaps eight or ten years ago, I encountered one of the then-current justices at a reception in a convention. He mentioned to me that he really enjoyed reading my commentary. I thanked him for the compliment, of course, but the devil within me could not be constrained, and I added with a smile, “I bet I sometimes write what you’d like to write.” The only replies I got to this were a barely perceptible smile and a barely perceptible nod before he turned discreetly away.
It’s true, of course; when I’m reporting on a stupid-criminal story in an appeal, I can write something like, “And you’ll never guess what the rocket scientist did next.” The justices can’t do that. That’s why you still need to keep this site bookmarked. Hmph!
One other thing: The system may generate a few false-positive hits, at least in the short run. I subscribed last week when I heard about the service. Today I got a notice that the appeals-granted page has been updated. I’m always interested to see what’s behind new writs, so I followed the link and found … nothing. The latest writs were dated December 26. I believe this is a minor glitch that the court’s IT people will straighten out. The feature is still worth subscribing to, unless you’re only into this stuff for the appellate jokes.
A newsworthy day
I was in the Supreme Court last Wednesday, January 10, for an oral argument. That day, the court set aside several minutes at the beginning of the docket to recognize court employees who have achieved length-of-service milestones. Two of the honorees were friends of mine: Executive Secretary Karl Hade and State Law Librarian Gail Warren, both of who have completed 35 years with the court. Karl keeps the entire system running, and Gail is a priceless treasure for lawyers who need help finding that special cite.
During the ceremony, the chief justice mentioned a couple of eyebrow-raising statistics that may interest you. One is the number of employees of the Supreme Court: over 3,000. For those of you who’ve come to think of the court as seven Robes, plus a few dozen staffers, that number is dizzying. The chief also noted that the court processes roughly $750 million in financial transactions in a year.
Not the usual course of progression
Over the years, we’ve seen numerous trial judges move up to an appellate bench, but it seldom works the other way around. We may see such a rare event soon, as the president has nominated CAV Judge Rossie Alston to fill a vacancy in the Rocket Docket in Alexandria.
I mentioned above that there are usually several reasons why someone might change jobs, and for Judge Alston, a desire to return to the trial courtroom might play a part. But here, finances are an overwhelming consideration. A federal trial judge makes something on the order of $35-40K more per year than a CAV judge does. And who needs a 401k when you get paid for life?