ANALYSIS OF SEPTEMBER 12, 2014 SUPREME
[Posted September 12, 2014] Okay,
summer’s over, at least for the appellate crowd. Today is the Supreme Court’s
opinion day, and the court hands down eight published opinions in cases that
were argued in June. The coffee’s on and it’s raining outside, so let’s dig
into today’s batch.
Kohn v. Marquis has made plenty of news down here in Tidewater. It’s a wrongful-death
action brought by the widow of a police recruit who was literally beaten to death
during his training to become a police officer. The widow sued the police chief
and several others, including the trainers and the administrator who designed
the training program.
The defendants asserted the
bar of the Workers’ Comp Act, since the recruit was a City employee at the time
of his death and the injury unquestionably arose out of and in the course of
his employment. The sole disputed issue on the plea was whether the death was
due to an “injury by accident.”
The widow had pleaded that
the death was the result of a series of head traumas over a period of several
weeks; she pointed to caselaw holding that repetitive-trauma injuries are not
within the act. A medical examiner’s report noted that the decedent suffered
several blows to the head on the day he collapsed in training, and that those
blows “may have played a significant role in Mr. Kohn’s terminal event but
other blows to the head prior to this event cannot be excluded as contributing
to his terminal head injury.” The widow cited this language in arguing that
summary judgment was inappropriate, since the question whether death was due to
those blows, or due to earlier traumas, had to be presented to a jury.
The defendants responded
that the decedent had suffered at least some injury on the date of his
collapse, and that fact meant this was indeed an injury by accident. The trial
court granted summary judgment to the defendants, and the Supreme Court agreed
to review the case.
If you follow Supreme Court
jurisprudence, you know that summary judgment is a disfavored procedure –
unlike in federal court, where courts prefer to use SJ whenever they can. It
may therefore come as some surprise to you that the justices today affirm the
trial court’s decision to end the litigation in this way. The court finds that
[differ] from the gradually incurred injury and repetitive trauma cases
referenced by Kohn in that John suffered an obvious mechanical or structural
change in his body while engaged in a work activity which exposed him to an
employment-related hazard that injured him and contributed to his death.
In explaining its ruling,
the court describes the injury that the recruit sustained on his final day of
training as “a proximate cause of his death.” Note that proximate causation was
the precise disputed issue in the litigation, and the defendants bore the burden of proof on it (Hilton v. Martin from 2008 decided that issue). The Supreme Court has made
this causation decision even though a medical examiner could not. (Go back and read that short excerpt from the autopsy report and you'll see what I mean.) I’ve never seen the
justices do that before, and I don’t know whether this portends a shift in the
court’s view of summary judgment, toward the federal model.
I’ve noted before the
erosion of the demurrer in recent Supreme Court caselaw – Assurance Data v. Malyevac comes immediately to mind – but a more
open receptiveness to summary judgment is a significantly bigger departure from
the court’s previous approach. Keep that in mind as you approach your next
Sometimes a new appellate
opinion breaks new ground, and sometimes it just polished the edges of a
previous decision. Swords Creek
Land Partnership v. Belcher is of the latter variety. The fundamental issue is one that
the justices tackled ten years ago: a severance deed that conveys the right to
mine coal doesn’t include the right to extract coal-bed methane gas.
The justices don’t retreat
from that holding today, but they take up two of the coal-owner’s attempts to
distinguish the 2004 decision. First, the court rejects the contention that the
granting clause is ambiguous. It finds that it is not; even though it
occasionally contains potentially vague language such as “other things” and
“rights and privileges,” those are always specifically related back to the
grant of the right to coal only.
Second, the court rejects
the coal owner’s attempt to secure a constructive trust, claiming that it
conferred a benefit on the land owner. After all, if not for the mining
activity, the gas never would have been released. But the court today rules
that “the CBM was at all times the property of the Surface Owners, and the Coal
Owner conferred no benefit upon the Surface Owners.”
We get a ruling today in a
rare area for appellate decisions – a name-change petition involving a juvenile.
McMahon v. Wirick paradoxically
involves a child who is named neither McMahon or Wirick. Here’s how that shakes
Father (McMahon) and mother
(Wirick) were never married, but they produced a daughter. Mother’s name was
White; she subsequently married a Mr. Wirick and took his name. But at the time
of birth, Mother still bore her maiden name, so the little girl’s surname is
Today’s opinion doesn’t go
into this detail, but I wonder about the family dynamic at the time of birth. I
also wonder about what Father said when he found out that the birth certificate
read “White.” I have some idle speculation about both topics, but I should
probably keep those to myself and stick to today’s holdings.
The parents shared physical
and legal custody for a time, but when the little girl reached school age, they
decided to give Father primary legal custody during the school year, because of
the school division where he lived. This started to generate problems when he
was misidentified at school as “Mr. White” or received medical bills naming the
girl as Wirick. Father accordingly filed a petition to change the little girl’s
surname to match his.
The trial court consulted Spero v. Heath, 267 Va. 477 (2004) for guidance. That case held
that a name-change petition like this can be granted only upon a showing that
the change is in the child’s best interest. The Spero decision listed four factors that could justify such a
finding. I’ll lay them out here:
The parent sharing his or her surname with the minor has “abandoned the natural
ties ordinarily existing between parent and child,”
The parent sharing his or her surname with the minor “has engaged in misconduct
sufficient to embarrass the [minor] in the continued use” of the parent's name,
The minor “otherwise will suffer substantial detriment” by bearing the
he or she currently bears, or
The minor “is of sufficient age and discretion to make an intelligent choice
and . . . desires that [his or her] name be changed.”
Now, if you read those
carefully, you’ll have observed that the first two don’t match up with these
facts, because there is no “parent sharing his or her surname with the minor.”
All three people here have different surnames. Despite this, the trial court
evaluated the petition under the four-factor analysis of Spero and ruled against the father.
In a slightly split decision, the justices today affirm that ruling. The
majority notes – correctly, I think – that these four are examples, not a
four-part test. The real issue, as always, is the best-interest test. Because
of uncertainty about what to do where the surnames are all different, the trial
court had made alternative findings; it rules that none of the four factors are
met, and, separately, that the father had shown only “minor inconvenience or
embarrassment,” which definitely is not enough to justify a change. Six of the
justices agree with the trial court’s Spero
analysis, and today’s decision establishes that the Spero analysis applies even
where there is no “parent sharing his or her surname with the minor.”
Justice McClanahan files a
concurring opinion that focuses on the problem I mentioned above. She would not
apply the Spero factors to a case
like this, because of that very problem. That being said, she agrees with the
alternative finding, and all seven justices agree that the father hasn’t met
the best-interest test.
Incidentally, I think
Justice McClanahan is right. I don’t think it makes sense to apply the Spero factors where they clearly don’t
apply to the facts of the case. In the end, it doesn’t matter for these
litigants. It might matter for you, though, if you have a comparable
name-change proceeding in the future.
Let’s start the discussion
of Temple v. Mary Washington Hospital with a philosophical question.
Do you regard discovery, as laid out
in Part 4 of the Rules of Court, to comprise only questions and answers? Or is
it a process that includes objections and motions and hearings and orders? The
justices give us an answer to that question in the context of a wrongful-death
case involving allegations of medical malpractice.
Temple is the widow of a patient who died at Mary Washington
Hospital. She sued the
hospital and other health-care providers in 2010. As the case progressed,
several discovery disputes arose over whether the widow was entitled to certain
classes of information. After considering the matters, the trial judge agreed
with the hospital and refused to order production of the requested information.
It entered two orders carrying out those rulings.
The widow later nonsuited
the case and refiled it timely in 2012. Because the parties figured it would
save time, they prepared a consent order that incorporated “[a]ll discovery
conducted and taken in the previous action.” The case then proceeded to trial,
and a jury found for the defendants.
The widow got a writ to
review the trial court’s decision to limit her discovery. Her cause was
probably bolstered by the fact that some of the information that she had sought
in discovery was actually adduced from defense witnesses during the trial; she
claimed that this was essentially trial by ambush.
On appeal, the defendants
argued that the Supreme Court could not reach the discovery rulings, because
they had come in the prior, nonsuited action, which obviously had not been
appealed. The widow responded that the discovery order took care of that
problem. The defendants shot back that the order didn't incorporate the prior
case’s rulings; only the information
that had been exchanged.
And that brings us back to
our philosophical question. In order to determine whether this issue is
currently appealable, the justices must first decide whether discovery is a
process, in which case the prior ruling has been incorporated and can be
appealed; or if it’s just the questions and answers, in which case the widow is
stuck without an appealable issue.
The court unanimously finds
today that discovery refers only to the information that is exchanged, and not
to the proceedings that lead up to and include rulings:
parties may file motions to compel and raise objections while they are engaged
in the discovery process, the motions, objections, and trial court orders do
not constitute discovery.
here’s a waiver trap that you must address now if you want to preserve issues
for appellate review in a refiled action. In order to achieve that, your
incorporation order must not only refer to the discovery, but also the parties’
legal arguments, the court’s rulings and orders resolving those arguments, and
probably the transcripts of those hearings as well. Perhaps you think this is a
belt-and-suspenders approach; whether it is or not, this is the procedure that
you must follow from now on.
There’s one more angle to
this case that’s worth a brief discussion here. In response to the argument
that the incorporation order didn’t carry forward the rulings from the previous
case, the widow cited numerous transcript citations from the second suit. In
those passages, the defense lawyers and the trial court clearly indicated that
they regarded the rulings from the previous case to have binding effect in the
refiled action. The widow argued that the court and the litigants clearly
understood that the incorporation order related to the rulings as well as the
questions and answers.
The justices deflect this
argument by noting that courts of record speak only through their orders, “and
that such orders are presumed to reflect accurately what transpired.”
Accordingly, the judge’s oral statements in colloquy are of no help to the
Criminal law and procedure
Virginia courts are empowered by statute to issue protective
orders to protect persons from violence or threats of violence at the hands of
others. The grounds for issuance of such orders include instances of stalking.
That procedure is at the heart of today’s unanimous decision in Stephens v. Rose.
Stephens and Rose had dated
for four years and were engaged to be married when, in 2007, they broke off the
engagement. Rose had become concerned about Stephens because of his moodiness
and problems with anger. They continued to communicate infrequently into 2008,
but eventually Rose asked him not to contact her anymore.
Over the next three years,
Stephens didn’t give up hope. He continued to try to contact Rose in several
different ways, offering apologies and asking to rekindle the relationship. She
ignored the messages.
So far, what we have is a
common but unremarkable story of unrequited love. But early in 2013, Stephens’s
approach changed. He showed up at Rose’s father’s home in Ohio at 6:20 am and asked the father where
Rose was. The father told him to forget her and not to contact her anymore.
Undeterred, Stephens began an
incessant string of efforts to contact his former love. He called her home 40
times in one week. He called her at work and even sent her flowers there. (She
sent the flowers back.) He called several times in the wee hours of one evening
(trust me, a string of unwanted phone calls at 2:30 am is not the path to a
girl’s heart) and showed up at her home at 7:00 am that day with more flowers.
All of this understandably
upset and worried Rose, who knew not what to expect from the persistent suitor.
Her boyfriend stayed at her home at her request; he even spoke with Stephens
once and represented himself as Rose’s husband. On that morning, the boyfriend
called police, who arrested Stephens in a nearby parking lot. Rose later moved
At a subsequent hearing,
Rose acknowledged that she had never directly told Stephens not to contact her,
and that Stephens had never abused her or threatened to do so.
The question in this appeal
is whether all of this can support the issuance of a protective order that
essentially tells Stephens to stay the hell away from Rose. The justices today
agree that it does, despite the absence of an express threat or act of
In a decision of first impression in the Supreme Court,
the court – adopting the analysis used by the Court of Appeals in the 1997 case of Parker v. Commonwealth, 24 Va.App. 681 –
identifies three elements that must exist:
the defendant directed his or her conduct toward the victim on at least two
occasions; (2) the defendant intended to cause fear or knew or should have
known that his or her conduct would cause fear; and (3) the defendant’s conduct
caused the victim “to experience reasonable fear of death, criminal sexual
assault, or bodily injury.”
The justices note that this
list doesn’t require actual harm or even an actual threat. Nor is it a
specific-intent statute; the existence of that “should have known” language
means that the time-honored “pure heart, empty head” defense will be
With that in mind, the court
walks through the three factors and finds each of them to be met under the
deferential plainly-wrong standard of review. First, beyond question, Stephens
directed far more than two acts toward Rose. Second, the justices agree that
the evidence, in a light most favorable to Rose, establishes that Stephens
should have known that his incessant attempts would cause fear in Rose. They specifically
point to repeated requests from Rose not to call, and to the father’s and
boyfriend’s directives to the same end.
under the same evidentiary standard, the trial court wasn’t plainly wrong in
finding that, on an objective basis, Rose would have experienced reasonable
fear of criminal sexual assault or bodily injury. The trial court accordingly
was warranted in issuing the protective order.
The next case, Murry v. Commonwealth, caught my eye a few
days ago. Before opinion days, I usually go back to the list of cases argued in
the previous session, and then check the Supreme Court’s website to review the
assignments of error in those cases. This gives me an idea of which significant
issues are likely to be decided when the opinions come down.
In this appeal, I saw that
the justices had granted Murry an appeal limited to two issues. He evidently
tried several angles of attack, because these two granted assignments were
numbered 9 and 10. But #9 brought my casual perusal to a slamming halt. After
convicting him of sexual assault and rape of a minor, the trial court had
imposed a probation condition that required Murry to submit to any and all
law-enforcement searches at any time. In effect, the Fourth Amendment did not
exist anymore for this defendant upon his release from confinement.
Because I don’t handle many
criminal cases, I don’t see many probation conditions and I didn't know whether
this condition was unusual or not. But it was eye-catching, so I looked forward
to getting the justices’ decision and analysis.
Murry was convicted of the
offenses listed above; the victim was his step-daughter. Starting when she was
five years old, Murry began to acclimate her to sexual contact; by the time she
was 13, he had sexual intercourse with her. He contended at trial that the act
was consensual on her part, but the trial judge, hearing the case without a
jury, found that explanation to be incredible. He sentenced Murry to 156 years
in prison, but suspended 140 years. The court imposed the search-consent
condition as one of the terms of probation for three express reasons: because
of Murry’s concealed and predatory behavior, because of his lack of acceptance
of responsibility, and to protect the community.
Murry challenged this
condition in the Court of Appeals, asserting that throwing out the Fourth
Amendment was improper. The CAV limited its review to the reasonableness of the
condition, and didn’t reach the constitutional angle of attack. That court felt
that Murry’s argument in the trial court had not extended to a Fourth Amendment
challenge. The justices disagree, finding the issue to have been adequately
preserved in the trial court.
Today the justices find the probation term to be unreasonable, so they remand the
case for a new sentencing hearing. The court cites numerous cases from other
state and federal courts, each of which holds that while a probationer’s
privacy rights are limited, they aren’t nonexistent. The trial court’s order
would legitimize a search based on a whim or on a desire to harass, wholly
unrelated to any law-enforcement or rehabilitative purpose. The cited decisions
indicate that if a police or probation officer has a reasonable suspicion, then
that might be a legitimate ground for a search of Murry’s person.
Justice McClanahan files a short dissent that incorporates the reasoning of the Court of Appeals' opinion. Justice Mims files a
concurring opinion that agrees that the probation condition is too broad. He
suggests that the several conditions of probation be considered together,
rather than in isolation. He notes, for example, the unappealed condition of no
unsupervised contact with minors. He argues that on occasion, probation
officers must be free to make unannounced visits, particularly where, as with
Murry, a probationer has succeeded in concealing his crimes for many years.
And then we come to what I
perceive – perhaps correctly; perhaps wrongly – is the real thrust of the
I emphasize that a criminal defendant has no right to suspension of any part of
the sentence imposed by the trial court. . . .
a defendant may appeal a probation condition on the grounds that it is
unreasonable, . . . nothing prevents a trial court from declining to suspend
any part of a valid sentence in the first place (thereby requiring the
defendant to serve the entire term in confinement) if it determines that no
reasonable conditions would make suspension “compatible with the public
Considering that the case is
remanded for a new sentencing hearing, not merely for removal of the offending
probation condition, I believe the message here is as follows: “Dear trial
judge – Since you’re starting from Square One in sentencing, you are within
your rights to sentence this guy to serve the full 156 years. That’ll achieve
your stated desire to keep society safe. Best wishes; Justice Mims.”
Back in the 1990s, when I
worked in a municipal law office, I got to deal with a lot of police officers. In
my view, they are one of the segments of our society that are underpaid;
anybody who goes into harm’s way to keep my family safe has my respect. In
order to supplement their salaries, many officers work overtime, which as we
all know, has to be paid at least at 1½ times the base pay rate.
Recently, Loudoun County
started to feel a budgetary pinch, and cast about to find ways to save money.
It directed the sheriff of that county to adjust his overtime-pay structure in
order to cut back significantly on the amount of overtime pay for deputies
working at a detention center or walking a beat. The sheriff implemented those
changes, and some of the deputies rebelled.
In this litigation, styled Bailey v. Loudoun County Sheriff’s Office, the deputies argued that the
sheriff’s arrangement violated Virginia’s
Gap Pay Act, which addresses an area that isn’t covered by the federal Fair
Labor Standards Act. I could go into a detailed explanation of the statutory
scheme and its interplay with federal law; but since I love you and don’t wish
to inflict agony upon you, I’ll just jump to the Supreme Court’s holdings in
the case. If you practice in this field, you probably already know about this
setup. If you don’t, and you’re still reading this part of the analysis, it’s
probably just because you don’t want to miss the jokes that I customarily throw
The justices rule that two
of the three adjustments made by the sheriff were improper under the Gap Pay
Act. First, when an employee worked overtime but took sick leave during a given
work period, the sheriff would account for the time off as being attributable
to the normal work shift. In other words, the employee’s sick-leave balance
wouldn’t go down, even though the deputy had taken it. This procedure meant
that the gap pay wasn’t being paid at the mandated time-and-a-half rate.
Similarly, the court
overturns the practice of offering what the sheriff called “exchange hours” – I
would call it “comp time,” where the employee gets extra annual leave instead
of extra pay – because the Loudoun setup allowed that comp time to accrue on a
1-for-1 basis. It’s perfectly legal under the act to award comp time instead of
money, but you still have to do so at a 1.5-to-1 rate, and the sheriff hadn’t
The third challenged practice,
however, survives judicial scrutiny today. The folks up in Loudoun call it
“force flexing.” Here’s how it works:
Hey, L-T; I’ve been looking at the pay records, and I saw something you might
wanna know about.
What is it this time?
I just saw that Deputy Pastafalooza is only two hours away from maxing out his
hours before he starts accruing overtime. You know how insistent the sheriff
No problem, Sarge; just make his next shift no more than two hours.
But his next shift starts in fifteen minutes; he’s probably already in the
parking lot right now.
Not my problem. When he comes in, tell him he’s only working two hours today,
and then he goes straight home.
Oh, great, I always have to be the one to bear the bad tidings . . .
Wait’ll you’re a lieutenant; then you can dump on your sergeant.
If this sounds farfetched –
the idea of sending a guy home after two hours’ notice, please know that I
didn't make up anything other than the dialogue. This scenario is set out on
page 23 of today’s slip opinion; it actually happened to one of the Loudoun
The court rules that an
employer can take steps to minimize employee overtime in this way without
violating the act. Nor does it violate the terms of the deputies’ employment,
as specified in the Human Resources Handbook. That manual states that “Flexible
scheduling of work hours is arranged between an employee and supervisor with
the Department Head's approval.”
The court holds that this
procedure was followed, albeit only in the most technical sense. The deputy
probably didn't think that it was much of an “arrangement,” since he got no say
in the matter. But the court finds that the literal language of the manual was
such scheduling was mandatory, whereby a Patrol Deputy could not opt out of the
altered work hours, the flexed schedule was nonetheless "arranged"
between the Patrol Deputy and his supervisor and done with the
"approval" of the Sheriff.
I will confess that I
cringed just a tad when I read this razor-thin justification for the court’s
holding. I would conceive of “arranging” a schedule to be more of a two-way
street. But I don’t recall being given a vote on this . . .
court remands the case to the trial court for further proceedings, including a
determination of whether the employees are entitled to an award of damages and
attorney’s fees. The opinion also includes a specific directive that the trial
court may decide for itself whether it needs additional evidence to make those
Before 2013, state law
created an incentive for a utility like Dominion Virginia Power to build
power-generation plants. The issue in OAG,
Division of Consumer Counsel v. SCC
is how much of an incentive that law created.
This case centers on VEPCO’s
plan to build a new generation facility in Brunswick
County, presumably to serve customers
in Southside Virginia.
The entire project will cost $1.27 billion. Almost $90 million of that is for
the construction of transmission infrastructure – things like new power lines
and substations. The incentive is tied in with the utility’s guaranteed return
on its investment in capital projects. The normal rate of return for the
relevant time frame was 10.4%. But the incentive clause would allow up to an
additional 1% (for a total rate of return of 11.4%) if the SCC approved VEPCO’s
request for that.
Here’s the issue: does the
extra 1% apply to the cost of the generation facility only, or does it also
apply to the transmission infrastructure? Out of this nearly $1.3 billion
project, the parties are arguing over a measly 1% of $90 million – just
$900,000 a year for ten years.
Well, okay; maybe it isn’t
so measly after all. One of the sexiest features of these rate cases is the
number of zeroes that they generate.
The SCC had ruled, after a
public hearing, that VEPCO was entitled to the extra 1% on the transmission
facilities, too. The justices affirm that holding today. Poor Justice
McClanahan is given the awful task of going through some fairly dry statutes
and applying some fairly straightforward statutory analysis; and I have to say,
she does a good job of explaining things without sending the reader straight
into a coma. The court evaluates the relevant statute and finds it to be
unambiguous. Here’s the key provision:
utility that constructs [one or more other generation facilities] shall have
the right to recover the costs of the
facility . . .through its rates, including
projected construction work in progress, and any associated allowance for funds
used during construction, planning, development and construction costs,
life-cycle costs . . . and costs of
infrastructure associated therewith.
[Emphasis added by Justice
McClanahan] Under this language, and filleting out the extraneous words, the
utility can “recover the costs of the facility, including costs of
infrastructure associated therewith.” That includes transmission lines, the
court rules today, so VEPCO gets its ten-year rate adjustment.
Justice Mims files a short
dissent in which he agrees with the reasoning of a State Corporation
Commissioner who had dissented below. He adds that if the General Assembly
believes that the court’s ruling is an incorrect interpretation, it can remedy
the problem during the legislative session.
SUPREME COURT ELECTS NEW CHIEF JUSTICE
[Posted August 18, 2014] The
justices of the Supreme Court this morning elected Justice Donald Lemons to
serve as the next chief justice, beginning January 1, 2015. Justice Lemons will
take over the center chair effective with the retirement of Chief Justice
Cynthia Kinser on December 31.
Justice Lemons is second in
seniority on the court, so he also would have been the next chief if the court
had not changed its method of selection from tenure to election, back in 2002.
Given his demonstrated commitment to professionalism, and its critical
component, civility, I expect the court to emphasize those qualities to bench
and bar over the next four years.
Here's the text of the court's announcement:
PRESS RELEASE - August 18, 2014
The Supreme Court of Virginia Announces the Election of the Honorable Donald W. Lemons as Chief Justice-Elect
Today, the Justices of the Supreme Court of Virginia elected Justice Donald W. Lemons as Chief Justice-elect. Chief Justice-elect Lemons will succeed Chief Justice Cynthia D. Kinser, who has served one term as Chief Justice and will retire from the Court on December 31, 2014.
Chief Justice-elect Lemons will assume office on January 1, 2015. He was elected by the General Assembly to the Supreme Court ofVirginia in 2000 and again in 2012. Previously, Chief Justice-elect Lemons served as a judge of the Court of Appeals of Virginia and the Circuit Court for the City of Richmond.
He received both his undergraduate and law degrees from the University of Virginia. After receiving his law degree, he served as Assistant Dean and Assistant Professor of Law at the University of Virginia School of Law. Thereafter, he has served on the faculties of the University of Richmond School of Law and Washington and Lee University School of Law.
Chief Justice-elect Lemons has held leadership roles in numerous legal and civic organizations, including serving as the President of the American Inns of Court. Current Chief Justice Kinser remarked that "Chief Justice-elect Lemons is a dedicated jurist who exemplifies integrity, civility, and professionalism. He will lead the judiciary with distinction during the next four years. I look forward to working with him to effect a smooth transition."
UPDATE ON RECENT APPELLATE DEVELOPMENTS
[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, and Virginia’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
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. In US 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
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:
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.
FOURTH CIRCUIT DECIDES BOSTIC V. RAINEY
[Posted July 28, 2014] The
Fourth Circuit has affirmed the district court’s ruling in Bostic v. Rainey, the challenge to Virginia’s prohibition of same-sex
marriages. This ruling strikes down Virginia’s
constitutional and statutory ban of such marriages. Here is a link to the slip opinion,
which I’m reading now; I may add some comments after I finish. The decision is
2-1, with Judge Niemeyer dissenting from the majority, which was written by
Judge Floyd, joined by Judge Gregory.
In answer to your question,
the answer is yes: This case will indeed be appealed across the Potomac.