The nation’s appellate consciousness is focused on Washington now, on the looming fight over the nomination of Judge Alito to succeed Justice O’Connor. We’ll stick closer to home and evaluate what’s been going on over the past week in the appellate courts that sit in Virginia.

Supreme Court of Virginia

The court announced the granting of two writs recently. Spencer v. Commonwealth presents a challenge to a reckless driving conviction that was upheld by the Court of Appeals. While a traffic charge is not generally a high-news-value item, the fact that the court has granted a writ in a case like this is of interest. While there is no way to know for certain how the issues will be resolved based solely on the assignments of error, this case may refine the substantive law of reckless driving, or it may address a meaningful point of criminal procedure generally.

The other writ, Lewis v. Lewis, involves a challenge to the finality of a judgment order, and thus to the appealability of that order, in a domestic relations context. Appellate procedure issues are always of interest to us here at VANA, so we’ll follow this one closely.

This week marks the court’s second session of the 2005-06 term, and its final session of this calendar year. I expect the court to hand down a large number of decisions on Friday, perhaps as many as 20. In order to enable me to deliver on my stated goal of same-day analysis of the court’s decisions, I will probably break the court’s rulings into two groups, and post the analysis of one group on Friday and the other on Saturday, November 5. My tentative plan, subject to revision, is to analyze the criminal, habeas corpus, State Corporation Commission, and attorney discipline cases, and possibly the Mattaponi Tribe water rights cases, on Saturday, and the remaining civil cases on Friday.

Court of Appeals of Virginia

The court handed down three published opinions on October 25. In Evelyn v. VMRC, it holds that a riparian owner has the right to build, without getting a permit, structures that are necessary for the placement of a private pier to enable him to access navigable water. But “incidental appendages designed merely to enhance the primary purpose of the pier” require a permit.

The rub here is that Evelyn actually did get a permit. Unfortunately, after getting it, he built a pier that was larger than the permit had authorized, and included a roof structure at the end of the pier. When the VMRC issued a notice of violation, Evelyn sought an after-the-fact approval of his modifications. That proposal sank by a vote of 7-1. Evelyn’s appeal to circuit court was unavailing; this ruling by the Court of Appeals affirms that ruling in favor of the VMRC.

The opinion notes that while the modifications to the structure were relatively modest, allowing the landowner a free rein on modifications might enable someone else to build “a multi-story enclosed dwelling not subject to VMRC oversight.” To avoid that slippery slope, the court finds that a variance from the permit is only appropriate where the purpose of the variance is essential to the purpose of the pier. Since a roof isn’t essential to a pier (just look at all the uncovered piers on Virginia’s waterways), the VMRC has the right to say no to this structure.

In Robinson v. Robinson, an en banc court reverses a trial court’s ruling in an equitable distribution case involving property that was demonstrably purchased by the husband’s separate funds. This ruling is consistent with a divided panel’s ruling in May, which had also reversed the trial court. My earlier discussion of the opinion is reported here. As with the panel decision, Judge Humphreys authors the majority opinion, and Judge Elder dissents. Judges Bumgardner, Clements, and McClanahan join that dissent.

Auer v. Commonwealth involves a challenge to the use of a prior DUI conviction in the sentencing phase of a criminal trial. The court is called upon to interpret the provision of Code §19.2-295.1, which permits introduction in the sentencing phase of the defendant’s prior criminal convictions. Those “shall include convictions . . . under the laws of any state, the District of Columbia, the United States or its territories.”

The conviction introduced by the prosecution here was not based on the laws of any of those governmental units; it was based on a plain old city ordinance that proscribes drunk driving in the exact same manner as the Virginia DUI statute. Auer argued that this list of “included” conviction sources implicitly excluded city ordinances. The prosecution responded that the language “includes” these convictions but does not exclude others. The Court of Appeals was called upon to resolve this seeming inconsistency.

The court begins with the finding, always notable, that the language of the statute is ambiguous. (One may almost hear the moans of disbelief from the statutory draftsmen who crafted this language.) It then construes, pursuant to well-established caselaw on statutory construction, the word include to mean, in this context, “include, but not be limited to.” In doing so, the court refers to the stated purpose of the statute (to ensure that the jury gets a full sense of the defendant’s criminal history for sentencing), and holds that the expansive interpretation is consistent with that goal. The opinion does note the usual rule that penal statutes are strictly construed against the Commonwealth, but finds that doing so in this context would lead to an absurd (i.e., internally inconsistent) result.

Fourth Circuit

Among a long string of unpublished decisions released over the past week, the Fourth Circuit has issued only two for publication. In Thompson v. Greene, a habeas corpus case involving a murder conviction, it holds that where the Maryland Attorney General’s Office served its 52-page answer, but not the numerous exhibits thereto, on the petitioner, it violated the rules related to habeas proceedings. The AG pointed to its internal policy of not serving attachments to habeas answers where there are more than five of them. The district court agreed with the AG and did not require service of the exhibits; it then dismissed the petition in an opinion that “relied heavily on the Exhibits.”

This one wasn’t close; in a strongly worded opinion, a panel of the court reverses with a directive that the exhibits must be served along with the answer. It finds that the relevant procedural rules require service of the exhibits along with the answer, since, among other things, the rules treat the exhibits as “a part of the answer itself.”

The court treats with particular scorn the AG’s three arguments in support of its position (the petitioner already possesses the documents; the petitioner must show a particularized need for them; and the five-exhibit limit is justified by the time and expense involved). “Each of these contentions borders on the frivolous. . . . It is irrelevant whether a petitioner can demonstrate a need to the court, or whether he already has the documents. . . . [T]he Attorney General is not entitled to unilaterally decide not to serve such exhibits on the basis that doing so would be unduly burdensome.” This, you will appreciate, is strong language in an appellate opinion that criticizes an official government policy, and should give pause to those critics of the court who believe it is too government-friendly. The language, by the way, is Judge King’s, joined by Judges Luttig and Shedd.

The court also decides an admiralty case that gives considerable insight into the Fourth Circuit’s regard for rules. The case is Saudi v. Northrop Grumman Corp., decided on October 26. While the case resolves a question of personal jurisdiction, the court’s ruling on compliance with a district court’s deadline is of special interest.

Those attorneys who practice in the Eastern District of Virginia have come to regard each of that court’s deadlines as a landmine; missing one, or otherwise ignoring a directive of the court, is unthinkable to experienced practitioners in the rocket docket. Those who also practice in the Fourth Circuit will tell you that the appellate court is not so rigid in enforcing its own deadlines; for example, if an appellant misses a deadline for filing an opening brief, the result is a letter from the Clerk advising that if the brief is not received within X days (usually 7-10), the court will initiate the procedures for dismissing an appeal. (In contrast, missing the date for a petition for appeal in the Supreme Court of Virginia results in the instantaneous death of the appeal, with a prompt funeral and no hope of resurrection.)

The question in this case is, How does a comparatively lenient appellate court treat the relatively strict deadlines of one of its component districts? Saudi missed one deadline for providing Rule 26(a)(2)(B) expert witness disclosures; he was given (probably in consideration of his pro se status) an additional week in which to make good on the requirement for disclosure. He did make a disclosure, but it did not comply with the rule’s requirements. The district court accordingly barred his experts from testifying.

On appeal, the Fourth Circuit affirmed the district court’s ruling, finding that the district court was the best arbiter of its own rules. It notes the district court’s “commendable restraint” in not imposing harsher terms on Saudi, as it had the discretion to do. The court gives a definitive answer to the question posed above: “Litigants who fail to comply with court scheduling and discovery orders should not expect courts of appeal to save them from the consequences of their own delinquence.”

I hasten to add that no appellate practitioner should ever go into the Fourth Circuit, or any other appellate court, expecting the court to take a cavalier attitude toward its deadlines. Despite the Fourth’s customary lenity, one should always, always do everything possible to comply with all appellate deadlines.