UPDATE ON RECENT DEVELOPMENTS

(Posted June 15, 2020) Here are a couple of quick notes to bring you up to date on what’s happening in the appellate world.

Week 2 of Gregory v. Northam

Last week I reported on the remarkable injunction litigation involving the equestrian statute of Gen. Robert E. Lee on Monument Avenue in Richmond. I noted that the petitioner had filed suit last Monday, June 8, and obtained an injunction at an ex parte hearing the same afternoon. Here’s what we’ve learned since then.

The petitioner evidently gave no advance notice to the Governor or his legal team before appearing in circuit court. That’s the assertion in a notice of appearance filed June 10, concluding with this pregnant passage: “Defendants hereby request that Plaintiff provide them with the transcript of — and any filings from – the proceedings from June 8, 2020, so that Defendants can understand what representations were made to this Court, under oath or otherwise.”

These last four words contain the subtext: The Attorney General wants to know if anyone testified and may have perjured himself with no one from the opposition present.

Back to the June 8 filing and snap hearing. By statute, a circuit court can direct that the respondent be given reasonable notice “if, in the opinion of the court, it is proper that such notice be given.” According to the Attorney General’s Office, there was no such notice. That means that the judge in the case necessarily determined that no notice was proper. In high-stakes litigation like this, I just can’t picture a judge’s making such a finding absent truly exigent circumstances.

What followed was even more remarkable. The Deputy Attorney General’s phone rang the next afternoon – we’re up to Thursday the 11^th by now – and it was the lawyer for the petitioner calling. He informed the DAG that he’d immediately convene a conference call with the judge, and a few minutes later, called the DAG back with the judge on the line. The petitioner wanted an extension of the injunction beyond the initial ten days.

A lightning turnaround like that doesn’t permit the respondents to get a court reporter, and that was the thrust of a motion filed the next day. In that motion, the DAG asked the court to require reasonable notice and an opportunity to make a record of the proceedings. I’ve received no word that the court has acted on that motion, but it would be unfathomable to me that the court would fail to act as the DAG has requested; the court can’t put itself into a position where it’s aiding in thwarting appellate review. Without a record of what has transpired, an appellate court can’t meaningfully review a case.

Meanwhile, the petitioner has set a hearing for a permanent injunction for this Thursday, June 18 – the expiration date of the temporary injunction. Expect fireworks. Also expect an immediate petition for review, no matter how the court rules.

Want to follow the June micro-session?

The Supreme Court of Virginia convenes the smallest argument docket I’ve seen in my legal career tomorrow and Wednesday. The court will entertain argument starting at 9:00 both days. There are two cases up for argument tomorrow and three Wednesday.

The court will receive argument by audio-visual means this time, and has set up an audio-only livestream connection for the general public. Here’s a link to the page where you can follow along. The final entry on the argument docket indicates that the court will conduct its summer swearing-in ceremony for new Bar admittees at noon on Wednesday.

SCOTUS winnows its docket

As I mentioned last week, the Supreme Court of the United States is winding down its October Term 2019 caseload. The Court handed down three decisions today, leaving 16 to be decided before the justices recess for the summer. You can and should tune your dial to SCOTUSblog for expert analysis of today’s rulings. Spoiler alert: Today may go down in history as the LGBT community’s version of Juneteenth.