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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions

[Posted March 28, 2014] My readers have seen my recent alarmist ramblings about the falling number of writs granted by the Supreme Court of Virginia. I'm still waiting for the current State of the Judiciary report, which will give me statistical details to back up (or disprove) my description of this situation as the "collapse of the writ market."

Today I got word of the newest sign of the appellate apocalypse. The April argument docket is out, and it's the shortest one I've ever seen: Just nine appeals, spread over two days; opinion day will be Thursday, April 17. Arguably it's only eight cases, as two of the appeals are companion cases under the ironic name of Herring v. Commonwealth and Commonwealth v. Herring. (For those of you who have been stashed away in the Maldive Islands for half a year, the Commonwealth will be represented in both cases by a lawyer who's employed by the Attorney General, whose name is Herring. No relation, I'm confident.) 

You could even make a case for its being 7 1/2 appeals, as in one case (Harman v. Honeywell International), the court won't allow the appellee to argue, since the company evidently didn't file a rules-compliant brief by the filing deadline. I infer this because under Rule 5:26(i), if a party doesn't file a brief that complies with the rules, that party "will not be heard orally, except for good cause shown."

I've warned before that if these shadows remain unaltered by the future (forgive me for purloining a phrase from Dickens's shortest masterpiece), those of us who make a living at Ninth and Franklin are in for a hard time. We count on a steady stream of disgruntled litigants, emerging from trial courts vowing to appeal; but we also earn the rent money by getting writs when we seek them. These days, there are far fewer of those to go around. To be sure, the court has always handed out writs with tweezers; but in the past two years, the pace has slowed dramatically.



[Posted March 10, 2014] Here are a few items that have caught my attention lately:


End of the line for Episcopal Church litigation

The Supreme Court of the United States has refused a cert petition in Falls Church v. Protestant Episcopal Church. The Supreme Court of Virginia decided the appeal last April, ruling in favor of the national organization; today’s action means that the Nine Robes won’t disturb that decision.


Upcoming phone/live seminar on preservation and waiver

Watch here for news about an upcoming program to address the several new decisions from the Supreme Court of Virginia that affect preservation and waiver issues. The program will be given live here in eastern Virginia in two locations, but there will be a live phone presentation on a different date, in which you can dial in, listen to the commentary, and ask questions. I’ll post details as soon as I have them.


Another look at “operation” of a vehicle

On two relatively recent occasions, the justices have decided drunk-driving appeals that have taken an expansive view of what constitutes “operating” a motor vehicle. In Nelson v. Commonwealth and Enriquez v. Commonwealth, the justices separately decided appeals in which the appellant was found inside a car, with the engine turned off, but with the radio playing. In Nelson, the key was turned to the “ON/ACC” position, and in Enriquez, the officer didn’t recall what position it was in. Both defendants were under the influence at the time.


On both occasions, the justices affirmed the convictions, holding that one can “operate” a vehicle with the engine off, merely by listening to the radio. (Actually, Enriquez wasn’t even listening; he was asleep.) I found myself unable to agree with the justices’ conclusion, noting that these were, to my knowledge, the only rulings since the invention of the automobile to hold that you can “operate” a car when the engine is turned off.


The court’s website notes that the justices have granted a writ to review a similar case, Sarafin v. Commonwealth. There are three assignments of error; here’s the most germane one: “The Virginia Court of Appeals erred by permitting the trial court to find that Justin Sarafin was in physical control of his vehicle and thereby that he was its ‘operator’ while asleep with only his car radio playing while parked on his private property.”


From what I can tell, the only fact that’s new to this discussion in Sarafin is the fact that the “stop” (assuming you can stop a vehicle that isn't moving) occurred on private property. Normally that doesn’t matter in DUI cases; you can be convicted of DUI if you never leave your own driveway. My hope is that the justices have taken this case in order to reexamine the wisdom of the Nelson and Enriquez holdings.


New appellate statistics on the horizon

It’s March, which means that I’ve begun my annual ritual of waiting impatiently for the 2013 State of the Judiciary report from the chief justice. That report contains a statistical analysis of the appellate courts’ caseloads; it also outlines what the judges and justices did with the cases that landed in their courts. For a statistics geek like me, this is like getting the key to the candy store (I head straight for the butterscotch).


One thing I’ll be particularly looking for is the latest set of numbers on incoming petitions, writ grants, and procedural dismissals in the Supreme Court. My sense has been that the first of these figures has been falling slowly; the second has fallen abruptly; and the third has exploded in the past few years. From the standpoint of someone who makes his living by filing appellate briefs and who wants to do a good job, those are bad news, bad news, and horrible news, respectively. I’ll let you know what I find once the report comes out; I’ll plow through the columns of numbers so you won’t have to.


A shameful episode

This item isn’t truly appellate in nature, but I was mortified when I read about it over the weekend, and I don’t want to contribute to the patent injustice by remaining silent.


I missed the news when it happened: Last Wednesday, March 5, the Senate voted 52-47 against cloture in a filibuster of a nomination for a Justice Department position. Debo Adegbile had been nominated as Assistant Attorney General for the Civil Rights Division. Senate Republicans sought to block his confirmation, as they've done with virtually every nominee submitted by the President. In the past, they’ve voted against candidates who were admittedly qualified; the only knock against those men and women has been that President Obama’s fingerprints were on the nominating letters.


Late last year, Senate Democrats had had enough. Citing an abuse of the filibuster privilege, they finally invoked what was widely termed “the nuclear option,” allowing confirmation by a simple majority instead of by a supermajority of 60. The first judge to be confirmed after that was Judge Patricia Millett, who was formally enrobed as a member of the federal DC Circuit on February 28. (I got to attend; it was a truly cool ceremony.)


With a lower threshold for approval, Adegbile should have been speedily confirmed. Republicans still opposed him, but they didn’t have enough party-line voters to stop the nomination.


And then a strange and dangerous thing happened. The Republicans got an ally in the Fraternal Order of Police. The FOP lobbied Democratic senators to vote against Adegbile because long ago, when he was a young lawyer, he had filed an amicus brief on behalf of a death-row inmate who had murdered a police officer. The brief didn’t assert innocence; just a constitutional violation in the composition of the jury. Later, Adegbile signed on to defend the inmate in an appeal. Ultimately, the federal appellate court agreed with Adegbile’s argument; the inmate is now serving life in prison instead of facing the death penalty.


Every lawyer who has ever stepped inside a courtroom has probably faced a situation comparable to this, though perhaps not in degree: You’re asked to take a controversial stand on behalf of an unsympathetic client. Lawyers have been doing that for centuries, including (famously) John Adams’s successful defense of the Redcoat defendants in the aftermath of the Boston Massacre. And presumably, they’ve been doing so for all that time without suffering civil disabilities as a result; a lawyer isn’t an accessory to murder merely because he defends a client who’s facing capital punishment.


The FOP didn't see things that way. Perhaps sensing the opportunity to punish a lawyer who had the guts to take on an unpopular client, and a cop-killer at that, they pressed Democratic senators – especially those from states near Philadelphia, where the murder occurred – to vote against Adegbile on philosophical grounds. Amazingly, eight Democratic senators did so, in a shameful act of political cowardice.


Adegbile’s nomination may or may not be finished; I’m not sure what will happen at this point, although he’s certainly through unless some of the senators who voted against him change their minds. The Republicans aren’t likely to change, as they appear to have discarded the ancient political principle that elections have consequences. They’ve shown a willingness to vote politically, 100% of the time, rather than on merit. The Democrats might be subject to change, though I have no idea whether that’s likely to happen.


Why does this matter? It matters because in America, everyone is entitled to a lawyer, preferably a good one. Charles Manson got a lawyer. Here in Virginia, John Muhammad, the infamous DC sniper, got a lawyer. For those of us in the legal profession, it’s expected that, as a part of your job, you’ll take on an unpopular case from time to time. Otherwise, the popular side of a lawsuit is destined to win, instead of the right side.


Not convinced? Then consider the case of Ernesto Miranda, who was prosecuted for rape in Arizona back in the 1960s. The prosecution relied on an uncounseled confession to get a conviction, which the Supreme Court later famously reversed; that’s why we all have the right to remain silent. Do you know what happened to Ernesto after that?


Why, he was returned to court, where he was retried and convicted of the same offense – rape – as before. That’s because he was guilty of rape; the evidence against him, even without the tainted confession, was overwhelming. Straight back to prison he went.


Now, then – do we excoriate the late John Flynn of Phoenix, the lawyer who secured the original reversal? After all, he dared to represent a rapist. Worse (in some minds), he did so effectively, securing a reversal and a retrial. In the process, Flynn cemented one of our most prized constitutional rights – the right to remain silent during a custodial interrogation. Just by taking the case, and by doing the same quality job that Adegbile did for his very-guilty client, he helped to ensure that the Bill of Rights has teeth.


Adegbile decided to do that early in his legal career, and last week, 52 senators decided to punish him for it. That narrow-mindedness is what incenses me – not Adegbile’s politics, about which I care little. As my readers know, I’m neither a Republican nor a Democrat; I’d be just as infuriated if the Democrats had done this to a Republican nominee.


If you read this website regularly, then you’re probably a lawyer. (I know better than to expect droves of readers of my commentary by nonlawyers.) If you’re a lawyer, you should be one of the citizens of this Republic who speak out against this shameful display of political expediency, in which the 52 senators allowed their own reelection prospects to trump the rule of law. If unchallenged, this action will warn our younger generation of lawyers that they’d better turn down the opportunity to represent the next Ernesto Miranda. Making law in that way – even something as vitally American as the right to remain silent – will be punishable by political ostracism. Just for doing our jobs.

And to end with a note of humor . . .

An appellate jurist with a well-developed sense of humor passed along this link to an amicus brief that was filed in SCOTUS recently. He knows quite well that I love to laugh, and upon reading this entry, laugh I did. His Honor described it to me as “Best. Amicus brief. Ever!” Having read it, I concur. I’m also wondering what the respondent can possibly say in response.





[Posted March 3, 2014] If you’re hurrying to make today’s filing deadline in the Fourth Circuit or Virginia’s appellate courts, you’ve got a reprieve due to our old pal Aeolus. Today’s winter storm, which The Weather Channel has dubbed Titan, has closed all three courts today. This closure triggers an automatic extension of appellate-court filing deadlines.


I’ve given this warning twice in recent weeks, but it’s important enough to warrant a reiteration: This extension only applies to documents that must be filed in the appellate court's clerk’s office. A good example is a petition for appeal or a merits brief. But if you have to file something in a trial court clerk’s office (the usual ones are a notice of appeal, transcript, or appeal bond) and your deadline is today, you must ascertain whether your local court is open today. If it is, then your deadline is unaffected by the decisions made in Richmond this morning.


It was only about 16-17 hours ago that I was driving in my Mustang with the air conditioner on. Now even balmy Tidewater is bracing for a huge drop in temperatures and icy roads. I suppose I need to go back and make a sacrificial offering to Aeolus, to appease his wrath.



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