SUPREME COURT SEEKS COMMENT ON RECIPROCITY PROCEDURES

[Posted April 24, 2013] The Supreme Court is proposing to change the procedures for admission of attorneys from other jurisdictions. The proposal, which may be accessed here, makes a few changes to existing practice while retaining much of the existing framework. Here are some of the notable changes to Rule 1A:1:

Currently, an applicant must furnish a certificate of good standing from the presiding judge of the court of last resort where he’s currently licensed. The new rule would liberalize that slightly, permitting certification by “other proper official,” presumably including individuals such as a Supreme Court Clerk.

The new rule would eliminate the existing five-year-minimum rule for practice. Instead, an attorney must establish that he has been practicing for three of the last five years. The Board of Bar Examiners still must find that the applicant “has made such progress in the practice of law that it would be unreasonable to require the applicant to take an examination.” In other words, you don't get an automatic ticket, now or under the new rule.

There’s a new requirement to complete twelve hours of Virginia MCLE programs before reciprocity admission will be granted.

Now for a big one: The current rule requires a new lawyer to certify that he intends to practice full-time as a member of the Virginia State Bar. This means that if a foreign lawyer wants to obtain a Virginia license but still maintain a primary office elsewhere, he’s out of luck; his only option is to take the Virginia Bar Exam, even if he’s been practicing for thirty years and is one of the deans of his state’s bar. The new rule simply drops this requirement with no fanfare.

If the applicant’s foreign license is subject to a restriction, the Board of Bar Examiners will be, under the proposed rule, directed to consider whether the applicant’s fitness to practice in Virginia will be affected thereby.

Finally, the full-time-Virginia-practice language in Rule 1A:3 would be removed under the new rule.

ANALYSIS OF APRIL 18, 2013 SUPREME COURT OPINIONS

[Posted April 18, 2013] I’ve been analyzing Supreme Court opinions for eight and a half years now, and to the best of my memory this is the smallest batch I’ve ever seen – just nine published opinions are handed down today. Lest I get any ideas about finishing this session’s analysis in one day, the justices have given me a few extra-long ones.

Criminal law

Back in my public-sector days, I occasionally prosecuted recidivist offenses – things like DUI-3^rd or subsequent offense. In order to make out a prima facie case, I had to offer proof that the defendant had been convicted on previous occasions. The issue in Boone v. Commonwealth is whether the prosecution may “over-prove” priors in its case in chief.

The danger with adducing a lot of prior convictions in the prosecution is that it may taint the jury’s view of the defendant. It tends to interject the sense that this defendant has been guilty before, so he’s probably guilty now. For this reason, many criminal trials are bifurcated into guilt and sentencing phases – the priors are admitted in the sentencing phase only, so as not to taint the decision on whether this particular defendant committed this particular offense.

But recidivist offenses require the prosecution to do just that. Boone was charged with possession of a firearm after having been “previously convicted of a violent felony.” The use of the singular article a in that phrase would naturally lead you to believe that the prosecution need establish only one prior felony conviction. And you’d be right; that’s all the Commonwealth has to prove. But Boone had five prior convictions, and the prosecution sought to prove all five.

Boone thought that was a bit much, so he objected. The trial court overruled the objection, and when all those earlier convictions came in, the jury decided to get him. He “got” five years.

Today, the Supreme Court unanimously affirms the conviction, noting that the statute doesn’t create a rule of evidence; it merely established a threshold of proof. A prosecutor is permitted to use a belt-and-suspenders approach if she wants to, and in this instance, staples and duct tape, too. That’s because a skeptical jury might discount one particular prior conviction, or (as happened just last year in Conley v. Commonwealth) one of the priors might get overturned.

The next case, Commonwealth v. Tuma, presents sensitive substantive and procedural issues, plus something that I found to be a major appellate-procedure surprise. This is an appeal in a criminal prosecution for sexual offenses against a seven-year-old child, and the primary legal issue is a Brady violation.

After the child told her father and stepmother that her stepfather had sexually assaulted her, an investigator from the sheriff’s office and a DSS child-protective-services worker interviewed the child. The DSS worker tape-recorded the interview, to supplement the deputy’s notes. The deputy gave a summary of the notes to the prosecutor.

What followed is an unfortunate but instructive example of (1) how not to comply with Brady obligations and (2) how not to properly object when the prosecutor doesn’t hand over the goods. Here’s what happened:

A week before trial, the defense lawyer asked the deputy whether there was a tape of the interview. The deputy responded less than decisively, essentially saying, “I think there may have been, but I'm not sure.” Today’s majority describes this vacillating statement more strongly than I would, saying that because of this, the defense lawyer “learned of the tape’s probable existence.” (In my opinion, this did nothing more than confirm the possibility, not probability, that there was a tape. But I have no desire to quibble, so I’ll let this one go.)

I’ll interject at this point that if you’re a civil practitioner and you’re horrified by this failure to produce evidence, keep in mind that trial by ambush is largely permissible in the criminal arena, where there’s very little discovery provided for in the rules. Some prosecutors open their files to defense counsel, but not all of them do. With Brady materials, it’s usually sufficient if the prosecution hands over exculpatory or impeachment evidence to the defense during the trial. Think about that the next time you complain about a civil discovery matter; it could be worse.

The deputy testified early in the trial, and he stated under oath that he thought DSS had recorded the interview. The CPS worker testified next, and she confirmed it; in fact, she had the tape right there with her on the stand.

Now, the usual thing for the defense to do in circumstances like this is to ask for the tape and for a recess or a continuance, so the lawyer can listen to it and figure out whether it’s useful to his case. But that isn’t what this lawyer did. Instead, he moved that the tape be admitted into evidence. Keep in mind, he hasn’t heard what’s on the recording; it could be an even more damning indictment of his client than the prior testimony in the case had been. Still, he insisted that the tape itself be admitted.

The judge was having none of that: "we'll not just play a tape . . . without any sort of thought or notion as to what is there." And, "You can go listen to it if you want to on your own time." The prosecutor confirmed, "He can listen to it if he wants to." But the defense lawyer asked the court only to note his exception, and the trial continued.

Just before the motion-to-strike stage, the issue became more specific. The defense lawyer again moved the unheard tape into evidence, arguing that it was “the best evidence of what was said” in the interview, and noting that it might contain exculpatory evidence. No dice; the judge refused to allow the tape to be played merely because the lawyer thought it might be exculpatory.

At this point, I have to say that I understand where the judge is coming from. There was really no way for the lawyer to know whether the recording was exculpatory or not without listening to it; if he had asked for a recess to do so, he could have made a proper record. But he didn’t, and this is the record we’re left with. He did eventually listen to the recording, but that was only after a jury had convicted his client and recommended a lengthy prison term.

In his post-trial motion, the lawyer now argued that the recording was not only exculpatory; it was also useful for impeachment of the victim, based on some inconsistencies between trial testimony and the recorded statement. The trial court rejected the motion and sentenced the defendant to the term recommended by the jury, which was within the statutory limit but three times the higher end of the guidelines range. (Juries don’t get guideline calculations.)

A divided panel of the Court of Appeals reversed, finding an unaddressed Brady violation. The court found it unnecessary to address the appellant’s second assignment of error, which had asserted that the court should have played the tape for the jury. The court later granted en banc rehearing, but the full CAV reached the same conclusion as did the panel majority.

The justices granted the Commonwealth’s petition for appeal (that’s why the defendant’s name comes after the v. in this caption), and today, on a 5-2 vote, the justices reverse the finding of a Brady violation. The majority finds that the defendant failed to establish the first prong of the test, so the CAV incorrectly found the Brady violation.

This subject is important enough for a short primer on the Brady analysis. In order to establish a violation, a defendant has to show that (1) the prosecution withheld evidence (2) that was “favorable to the accused, either because it is exculpatory, or because it is impeaching,” and (3) the evidence was material, in that there’s a reasonable possibility that the outcome would have been different if it had been disclosed.

Today’s majority finds that the evidence was not, in fact, suppressed. Indeed, the record contains a clear offer by the prosecutor (which I quoted above) to allow the defense lawyer to listen to the tape. If the lawyer had taken her up in that offer, we might have a very different posture for this appeal. The court cites a 1986 decision in which it had held that a similar objection was waived if the defense "failed to move for a continuance or even for a recess in order to consider the material." That ruling spells doom for the defendant in this appeal.

Justice Millette dissents, joined by Justice Goodwyn. The dissent finds that the trial court effectively shut off access to the tape at the close of the prosecution’s case in chief. In colloquy, the prosecutor (probably unwisely) told the judge that she was satisfied that there was “nothing significant or exculpatory” in the tape. The defense lawyer disagreed, although he was necessarily doing some guessing at that point; the judge ruled:

Well, I don't think you are entitled just to play something because you think it may be exculpatory. . . . The Court is not going to admit it. If at some point if your client is convicted that tape shows something that is significant, exculpatory, he gets a new trial. So that is the way we are going with it. . . .

We will not hear any more about that over your objection. The tape will not be played. Now you have a motion to strike, and I will be glad to hear you on that.

This, the dissent concludes, “reflects the clear suppression of the evidence at trial.” This is one of those difficult areas where the defense made an imperfect objection or used an incorrect procedure, and the justices are charged with figuring out what they can do with that. The fact that this issue arises in the context of a 35-year prison term underscores the difficulty of engaging in this kind of analysis.

The dissent goes on to analyze the third prong of the Brady analysis (the majority found it unnecessary to do so) and found that the information in the recording was indeed material. Justice Lemons adds a concurring opinion, agreeing with the majority on suppression, but responding to the dissent’s analysis of materiality. He points out that the inconsistencies between the recording and trial testimony were relatively trivial; there’s no inconsistency in the accusation of sexual assault on multiple occasions.

I promised you a major appellate-procedure surprise, and I won’t abandon you, my beloved readers, without describing it. With the reversal of the CAV’s finding of a Brady violation, you’d expect the last line of this opinion to be, “reversed and final judgment,” essentially reimposing the prison term and closing the case. But that isn’t what happens, at all:

This appeal is limited to the Commonwealth's challenge to the Court of Appeals' decision on the Brady issue, which that court decided in Tuma's favor pursuant to his first assignment of error. In light of that decision, the Court of Appeals was not required to address Tuma's second assignment of error in which he challenged the trial court's denial of his request to admit the tape into evidence (a separate issue from whether the prosecution violated Brady). That evidentiary ruling is thus not before this Court to decide. Therefore, having now decided in the Commonwealth's favor on the Brady issue, we will remand this case to the Court of Appeals to decide Tuma's second assignment of error.

In other words, the justices are giving the CAV a second opportunity to address the defendant’s alternate assignment of error, the one that the intermediate court had found it unnecessary to address before. That may sound perfectly normal to you, but it represents a significant departure from the way the Supreme Court has treated unresolved issues below in prior cases.

The best recent example of this is VMRC v. Clark, 281 Va. 679 (2011), which contains a ruling that I find to be wholly irreconcilable with today’s remand. See if you agree:

In Clark, the trial court had ruled against the appellees on an issue of standing, and had refused their request to amend their pleadings. They appealed to the CAV, and that court reversed on the standing ruling. The CAV didn’t address the leave-to-amend assignment, because the reversal on the standing issue made it unnecessary to decide the second issue.

On further appeal, the Supreme Court reversed the CAV’s standing ruling, agreeing with the trial court. When the appellees then (naturally) asked for a ruling on their leave-to-amend issue, the justices ruled that this issue was waived, because the appellees, who won below, had failed to assign cross-error to the CAV’s refusal to decide the amendment issue.

I recall that I was dumbfounded when I read this ruling; the idea that a successful party would have to cross-appeal after it won seems hyper-technical at best. I wrote about that decision, described it as a potential appellate trap, and moved on.

I can see nothing that distinguishes the appellate posture in Clark from this one. Tuma didn’t assign cross-error to the CAV’s failure to adjudicate the admissibility issue, so I think that further appellate consideration of admissibility is now foreclosed – at least, if Clark is still good law. The answer to your tacit question is no; I don't have a satisfactory answer for why the Clark appellees were tossed out of court, while Tuma’s appeal is still alive.

Equity jurisdiction

Henderson v. Ayres & Hartnett, PC started out as estate litigation, but morphed into a dispute over attorney’s fees. The underlying litigation was settled, calling for the sale of what I’ll call the family farm, and distribution of the proceeds thereafter among the claimants. After the sale, Henderson’s lawyers sought payment of $130,000 in legal fees (which would make for a pretty good week on the accounting books).

Per the agreement, the sale proceeds were paid into court, and no one had any fuss with the proposed payout . . . except Henderson, who objected to the court’s paying his attorneys that much in fees. He filed a written exception to that payment. The court paid out all of the other sums and held the $130,000 pending adjudication of the legal-fee component.

Henderson demanded a jury trial, evidently claiming that he had some factual disputes with his now-erstwhile lawyers. The trial judge concluded that a jury trial was not required, so the court decided the issue, ruling in favor of the law firm. Henderson indicated his desire to appeal, and asked the trial court to fix an amount for the supersedeas bond.

This next sentence is going to jolt appellate lawyers: The trial court refused to fix a bond and directed the immediate payment of the $130,000 to the lawyers. The justices granted a writ to resolve the issue of whether the fee dispute should have been decided by judge or jury, and to review the judge’s refusal to allow supersedeas.

The Supreme Court today first takes up the supersedeas issue. It rules that the trial court erred when it ruled that supersedeas was unavailable for this kind of disposition. The supersedeas statute governs a “judgment or award,” and the trial court had concluded that the distribution of funds paid into the court did not fall within that class of cases. The justices disagree; the statute defining judgments includes this kind of distribution.

I’ll pause here to add, “Thank goodness.” As an appellate lawyer, I’m always sensitive to any procedure that would permit a trial court to thwart appellate review, if only by allowing the judgment creditor to make off with the proceeds before the appellant can get review. That, by definition, is a hot-button issue for those of us who make our livings at Ninth and Franklin. This statute exists to provide a mechanism to protect a judgment creditor’s right to collect, and as long as the funds were held in the court, the appellee couldn’t be prejudiced.

The justices next turn to the underlying question of judge vs. jury. The court rules that this matter, which started out in equity, never left equity. All issues in equity causes are decided by a judge, not a jury, unless one of a very few exceptions applies; none of those exceptions appears here. The court accordingly finds that the trial court correctly decided the fee question on its own, without empaneling a jury. The supersedeas ruling, while erroneous, is therefore harmless error, so the Supreme Court affirms the judgment.

Res judicata

The justices wade into the saga that is Caperton v. A.T. Massey Coal Company, a suit that has seen time in the Supreme Court of the United States and courts in Virginia and West Virginia. The SCOTUS opinion in 2009 reminded me of how grateful I am not to live in a state where judges are selected by popular ballot. (To be sure, Virginia’s method of selection of jurists isn’t perfect. But this brings to mind Winston Churchill’s indictment of democracy as the very worst form of government, excepting only all the other forms that have been tried. I shudder to imagine judges campaigning for votes for reelection.)

While this litigation has a long, involved history, the ruling today is about res judicata. I will therefore truncate what would otherwise be a ponderously long recitation of the facts and procedural posture (Justice Lemons’s opinion actually sets it forth very cogently, albeit over 15 pages or so) and get right to the substance of the ruling.

Caperton’s company had filed suit in 2000 against these defendants, alleging breach of a contract to buy coal. The plaintiffs in that suit got a judgment for $6 million, limited to the plaintiff’s lost profits for a single year. In this litigation, the plaintiffs seek another judgment for various torts, including tortious interference and business conspiracy. The trial court ruled that this action was barred by res judicata, since the operative facts of the two cases were the same.

The justices today unanimously reverse that decision and remand the case for further proceedings. The court notes today that the evidence that was admissible in the contract action was sharply limited, and the defendants in the earlier trial had openly noted that the claims were very limited. In contrast, the court today points out all sorts of evidence and issues that are essential to the tort claims, none of which would have been admissible in the contract action. Since the common-law doctrine of res judicata applies to this case (Rule 1:6 was promulgated in 2006, so it doesn’t apply here), the plaintiffs get past the procedural bar.

That point is noteworthy in one other respect. After reviewing the assignments of error for this case before today, I thought we might finally get a judicial interpretation of Rule 1:6. Obviously, that doesn’t happen today. To my knowledge, there has never been any judicial interpretation of the rule since it was promulgated.

Insurance

So much for the tranquility of unanimous opinions; let’s venture out into the land of scathing dissents. Our first stop on this tour is The Doctors Company v. Women’s Healthcare Associates.

This appeal arises from a claim that should have been filed under the Birth-Related Neurological Injury Compensation Fund. A patient went to Women’s Healthcare in late 2006 for prenatal care and eventual delivery of a baby. At the time, the parties entered into a written agreement that provided what appear to me to be some unusual precautions by the mother; the physicians expressly agreed to participate in the Fund and to inform the patient if they ceased participating. The Fund provides a form of no-fault coverage for birth-related neurological injuries, analogous to Workers’ Comp coverage for employees. Claimants don't have to prove negligence; they get a certainty of recovery in exchange for waiving the right to sue for medical malpractice.

The baby was born with severe neurological injuries. Normally, the parents file a claim, and that’s it. But trouble arises here because at the time of delivery, Women’s Healthcare hadn’t paid into the Fund. In fact, it hadn’t done so even at the time it signed the written agreement and certification.

You might think that that failure would entitle the parents to go ahead and sue for medical malpractice. Perhaps they could have; but that isn’t the course they took. They instead sued for breach of contract, claiming (understandably) that Women’s Healthcare had breached its obligations to participate and to disclose nonparticipation. Women’s Healthcare turned the case over to its med-mal insurer, The Doctors Company.

Someone over that the insurer took a look at the suit papers and noticed that it wasn’t a claim for medical negligence at all. Being unaccustomed to defending contract claims, the insurer filed a declaratory-judgment action, seeking a declaration that there was no duty to defend such a claim. Looking at the definitions of terms in the policy, the trial court agreed with the insurer. The justices agreed to take a look at the matter.

Justice Millette writes for today’s majority, which rules that the insurer has a duty to defend. The court finds that while the primary allegations in the parents’ complaint is for failure to do things that aren’t medical care (participate in the fund; provide notice of nonparticipation), there would in fact be no compensable claim without the final element – resulting damages. The damages in this case occurred when the baby was born, so that necessarily implicates the provision of health care. In reaching this conclusion, the majority used an expansive view of the term arising from, so that the damage here may be seen as at last an indirect result of the delivery of that care.

The court’s two newest justices are unpersuaded. Justice Powell, writing for Justice McClanahan, begins her dissent by noting that the parents’ complaint specifically identifies a misrepresentation as the breach of contract. Despite the majority’s expansive reading. Here’s the relevant language from the complaint:

WHA’s failure to notify [the mother] constituted a material breach of its contract with [the mother.] . . . Had Defendants fulfilled their obligations under the contract, [the mother] would have sought medical treatment from an obstetrician who did participate in the Birth Injury Fund.

That is, according to the parents’ complaint, the doctors’ wrongful act wasn’t its delivery of the baby; it was its failure to notify the parents (and its failure to participate as promised, of course). The failure to notify also violated the doctors’ statutory obligation, and the dissent concludes that this statutory failure brings another policy exclusion into play – one that excludes from coverage any liability “arising out of any . . . violation of any statute . . .”

I’ll admit that when I was reading the majority’s opinion, I found myself a tad uncomfortable with the concept that a med-mal insurer should have to defend a contract claim. Justice Powell brings that concern to the fore with this observation:

Such an approach is destined to lead to unreasonable results, such as those in this case: a medical malpractice insurer having to defend a breach of contract claim that does not require the victim to prove that any malpractice actually occurred.

She also notes that since this isn’t a med-mal case, the insurer isn’t protected by the med-mal cap, so its liability could exceed what it would have to pay if this had been an ordinary medical negligence case.

Local governments

As a former government attorney, I found the issues in Fluvanna County v. Davenport & Company to be fascinating. It’s a suit by a board of supervisors against its former financial advisors. The county wanted to build a new high school, and it wished to finance the construction through bonds. The suit alleges that the advisor gave the county bad advice, as a result of which the county issued the wrong kind of bonds, at a rate that was 1.2% higher than the rate it could have obtained. When you borrow a gazillion bucks for a project like this, a one-percent difference can add up; indeed, the county contended that it was out $18 million, so that’s what it sued for.

The advisor had an interesting response. It contended that the controversy was not justiciable, because in order to prove its case, the county would have to adduce evidence of the individual supervisors’ motives in voting as they did. That sounded good enough for the judge designate assigned to the case; he sustained a demurrer without leave to amend.

I've written elsewhere that one of the surest ways for a judge to ensure that his ruling gets very careful scrutiny in Richmond is to sustain a demurrer without giving the plaintiff even one chance to amend. This isn’t based on any inside information I have, but on my sense that the justices feel that most litigants deserve at least one opportunity to fix a defective pleading, unless the proposed amendment would be objectively futile.

But a refused amendment doesn’t come into play here; the Supreme Court today decides this case based on the legislative immunity doctrine. Related to the separation of powers that’s mandated by the Constitutions of the United States and the Commonwealth, this doctrine protects members of legislative bodies from being summoned to court to explain why they voted the way they did. Literally, it protects them from any liability, or even a summons, to talk about “speech or debate” on legislative matters.

The justices today reverse the judgment, semi-unanimously; Justice McClanahan agrees with the ultimate destination, though she would take a different route to get there. The court first incorporates caselaw from elsewhere to adopt legislative immunity for local legislators (the state constitution only extends it to members of the General Assembly; now Virginia common law brings all local legislators into the protective fold). In this sense, the court actually agrees with the trial court, that this issue does implicate the separation-of-powers doctrine.

The majority then goes on to hold that the immunity belongs to the legislators, who can waive it. And they’ve done so here, by filing this suit and thereby calling into question their own legislative motives. What the trial court had done was to allow the financial advisor to insist upon an immunity that belonged to the opposing party.

Justice McClanahan would take a similar route to affirm. She thinks it’s inaccurate to call this a separation-of-powers issue. The separation doctrine, as set out in our constitution, prevents a branch of government from exercising powers that have been allocated to a different branch. Here, the county was asking the court to perform a core judicial function – adjudicating a claim for monetary damages. The county wasn’t asking the court to invalidate the legislation; that would indeed have been a judicial incursion onto legislative turf, and a long string of caselaw prohibits courts from sticking their figurative noses into the question of whether a given piece of legislation is wise.

THE PROCEDURE GEEK’S GUIDE TO US V. WINDSOR

[Posted March 28, 2013] As my long-time readers know, I seldom delve into the affairs of That Other Supreme Court, the one on the wrong side of the Potomac. But the events of the past two days at #1 First Street in the District have captivated mainstream-media attention, given the enormous political import of the questions debated there, involving the legal state of same-sex marriage. Most of the media coverage focuses on the merits of the issues in Hollingsworth v. Perry (constitutionality of California’s ban on same-sex marriage) and US v. Windsor (same for the federal Defense of Marriage Act).

Of the two cases, I’ve always felt that the issues in Windsor were more compelling in a non-political way (I’ve always maintained that we don't do politics here at VANA, and that isn’t going to change today). Windsor isn’t about sexuality; it’s about money. If Ms. Windsor’s late spouse had been male, she would have paid zero dollars in inheritance taxes; since that spouse was female, she had to pay $365,000. That raises obvious (and complicated) equal-protection questions.

But the point of this essay is to outline how the merits of those important questions might not be decided in this appeal. That’s because there are some substantial procedural problems that the Supreme Court must overcome before it can consider the merits. This may be a situation that only an appellate-procedure geek can love; but being one of those, I find the issues fascinating.

The transcript and audio of yesterday’s oral argument in Windsor are available on the Supreme Court’s website; you can find them here. I’ve read the first half of the transcript, since that’s where the procedural issues were discussed. Here are some thoughts about that part of the argument.

First, the dramatis personae: Three lawyers argued the procedural issues, starting with Harvard Law School professor Vicki C. Jackson, who acted at the Court’s request as amicus curiae. Next came Deputy Solicitor General Sri Srinavasan, representing the federal government; and then former Solicitor General Paul D. Clement, who argued on behalf of the House of Representatives’ Bipartisan Legal Advisory Group.

The reason why three lawyers were involved was because the two parties to the case – the United States and Ms. Windsor – agreed that DOMA was unconstitutional. Every appellate court prefers to have actual adversaries at the lectern (not both at the same time, of course), so it can consider competing arguments before making a reasoned decision. In order to have both sides of the procedural question addressed, the justices asked Ms. Jackson to appear as amicus and address the question of the court’s power to adjudicate the case.

There are two primary procedural issues here, and the first of those could scuttle any decision on the merits: Who is the aggrieved appellant? Technically, that would be the United States, since the judgment of the Court of Appeals was in favor of Ms. Windsor; that judgment ordered the government to repay the taxes that she had paid under protest. But the United States had joined her in asking the Court of Appeals to rule the way it did – the Obama Administration had concluded that the Act was unconstitutional – so the government can hardly be considered to be aggrieved, at least in the traditional sense of appeals. You can’t complain when a court does what you asked it to do.

It would, of course, be nice to have the Supreme Court decide the issue once and for all, for the entire nation, so the parties might understandably agree to what I’ll call a friendly appeal. But in that sense, there would be no actual case or controversy; the justices would be asked to issue an advisory ruling on the constitutionality of the Act. We all know that courts don't do that.

Enter the House Republicans, under the banner of the Bipartisan Legal Advisory Group (referred to in this case by the unflattering-sounding acronym BLAG). That group of legislators hired Clement, a very capable Supreme Court lawyer, to argue in favor of the constitutionality of the Act. But first he had to justify his spot at the lectern. The justices grilled him yesterday on the second main procedural issue: what right a group of legislators had to appear in court in support of legislation, when the litigation was between the government and a private citizen.

Even so, Clement had a tough row to hoe, since Prof. Jackson went first and made a fairly compelling case for the proposition that there was no actual controversy here. She began:

There is no justiciable case before this Court. Petitioner, the United States, does not ask this Court to redress the injuries it asserts. The House of Representatives' Bipartisan Legal Advisory Group, the BLAG, which does seek redress in the form of reversal, asserts no judicially cognizable injury.

In other words, the US isn’t really complaining about what happened below, and BLAG has no right to be here in the first place because it isn’t directly harmed by the ruling below; so there’s no real appellant. I have learned this about appellate practice over my career: It’s theoretically possible to have an appeal without an appellee, but if you don't have an appellant, then you don't have an appeal.

During Prof. Jackson’s argument, Justice Scalia asked about the absence of a meaningfully adverse relationship in the lower court:

JUSTICE SCALIA: I mean, the Government comes in and says "I agree" -- or if there was jurisdiction, why did the Court ever have to get to the merits?

If you have a, let's say, a lawsuit on an -on an indebtedness and the alleged debtor comes in and says, yeah, I owe them money, but I'm just not gonna pay it, which is the equivalent of the Government saying, yeah, it's unconstitutional but I'm going to enforce it anyway.  . . .

Really, that's very peculiar. When -- when both parties to the case agree on what the law is? What, the -- just for fun, the district judge is -- is going to have a hearing?

The first thing I’ll mention comes from the word-nerd inside me: the use of gonna as a verb (or at least an auxiliary verb) has hit the mainstream. But for our purposes, the real issue is whether there’s a justiciable case or controversy where the parties to litigation agree from the beginning on what the law is and what the remedy should be.

There’s an easy answer to his Honor’s point: Courts aren’t bound by the parties’ concessions of law. We see that all the time in judicial opinions here in Virginia; for a recent example, see Murphy v. DSS, 57 Va.App. 784, 790 (2011). If such concessions were binding, private parties could effectively change the law, simply by telling the appellate court that the law was such-and-such. Since in our republic we leave formulation of law to legislatures and interpretation of law to judges, litigants can’t do that.

On the separate issue of the right of BLAG to appear, Clement relied on the 1983 decision in INS v. Chadha (462 US 919), in which a group of congressmen had been allowed to appear in a case in which a deported foreign national and the INS agreed that a given statute was unconstitutional. But as the chief justice noted in colloquy yesterday, the posture of Chadha was different in a key way: The challenged statute was one of Congressional procedure, something that the legislature obviously has an interest in protecting. This is just plain-old legislation, in which normally Congress would have no right to act as a party.

Next, the deputy solicitor addressed the situation where the parties on appeal agreed upon the result that the court should reach. In this context, there’s a big difference between an agreement that the court should reverse, and an agreement upon affirmance. In the former case, there’s no logical problem, because there’s emphatically an aggrieved party. But when the parties both want affirmance, why on earth is anyone appealing? Couldn’t you just do nothing and get the same outcome? (The reason someone's appealing, of course, is that the parties want a ruling from the Supreme Court, which ruling would have nationwide application. But that desire doesn't address the standing problem.)

That led to the following colloquy between the chief justice and the deputy solicitor:

CHIEF JUSTICE ROBERTS: On the first one, is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?

MR. SRINIVASAN: Where the parties agreed –

CHIEF JUSTICE ROBERTS: All the parties agreed with the decision below and we nonetheless upheld appellate jurisdiction.

. . .

MR. SRINIVASAN: No, I don't know of one. But these -- but, Mr. Chief Justice, with all due respect –

CHIEF JUSTICE ROBERTS: So this is totally unprecedented. You're asking us to do something we have never done before to reach the issue in this case.

MR. SRINIVASAN: Let me say two things about that if I might, Your Honor. First is that it's -- it's unusual, but that's not at all surprising, because the –

CHIEF JUSTICE ROBERTS: No, it's not just -it's not unusual. It's totally unprecedented.

Any appellate lawyer who reads the last two comments from the chief is bound to swallow hard, and that’s the primary reason why I suspect that the Court might not reach the merits. Every court knows that you can’t fudge jurisdiction; it can’t be conveyed by consent of the parties, and it’s the first question that must be answered in every case in which appellate jurisdiction isn’t obvious.

There are subjective reasons why various folks – litigants and observers alike – badly want the justices to rule on the merits. But it’s entirely foreseeable to me that a majority of the Court may rule that the case isn’t judicable. That’s because the parties in the case are the United States and Ms. Windsor, and neither of those parties is complaining about what happened in the Court of Appeals. If the justices conclude that BLAG doesn’t have standing in this case – and on the law, I tend to doubt that it does – we’ll get an unsatisfying result that will please Ms. Windsor but almost no one else.

I’ll append one last quotation from the transcript here. After Prof. Jackson finished her brief rebuttal argument and answered a couple of questions, the chief had these final remarks before the Court turned to the merit issues:

CHIEF JUSTICE ROBERTS: Ms. Jackson, before you sit down, I would like to note that you briefed and argued this case as amicus curiae at the invitation of the Court, and you have ably discharged the responsibility, for which you have the gratitude of the Court.

Praise like this is a rare and precious thing. I have acted as amicus curiae in similar circumstances once, at the request of the Supreme Court of Virginia in a case pending before that court a few years ago. I have long regarded that request from the SCV to be one of the most cherished honors I’ve ever received. In essence, the Robes in Washington were asking this professor, “Please help us. We value your opinion and would welcome your guidance.” There are few professional compliments that can compare with that.

CAV ISSUES MAJOR RULINGS

ON FELONY MURDER, APPELLATE AMENDMENTS

[Posted March 26, 2013] In the appellate business, there are slow news days. There are average days. There are important days. And then there’s today. No, I’m not talking about a certain appellate argument that occurred this morning on the north bank of the Potomac (see SCOTUSBlog for full coverage of the Defense of Marriage Act appeals that are occupying the attention of the mainstream media). This morning, the Court of Appeals of Virginia issues several published opinions, some of which will be of major importance in trial and appellate courts.

I’ll first mention a trio of appeals that originally came down in August. I covered them here under the lead case name, Chatman v. Commonwealth. In that opinion, a divided panel of the Court of Appeals ruled that the appellate court didn’t have jurisdiction over a case where the appellant hadn’t specified where in the record the appellate issues had been preserved, or had done so imprecisely. The majority relied upon a recent case from the SCV, Davis v. Commonwealth, for the lack-of-jurisdiction premise.

My sentiments fell with the dissenter in that decision, Judge Elder, even as I recognize that the majority (Judges Humphreys and Petty) had a legitimate place to hang their collective hat, in the form of the Davis opinion. The CAV granted en banc rehearing sua sponte last August, and today, the judges affirm the convictions (that’s the unsexy denouement of the story) while sparring vigorously over the waiver issue, ultimately ruling that waiver doesn’t apply here.

While Judge Elder originally dissented, the opinion-writing duties for today’s majority fall to Judge McCullough. He concludes that a petition for appeal is a form of pleading, and the rules of court clearly contemplate that pleadings can be amended, so these appellants were entitled to fix the defects in their original petitions for appeal. (One appellant never did get it right, so the court dismisses his appeal. That one’s Brooks v. Commonwealth.)

The opinions in Chatman v. Commonwealth and Whitt v. Commonwealth are fascinating reading for any lawyer, but they’re mandatory reading for any appellate lawyer. You’ll see how the majority distinguishes Davis (since it didn’t involve a motion for leave to amend) while the dissent gets on the horse and rides hard. In the end, you’ll get the sense of the majority of the full court on how to interpret imprecise briefwriting.

I won’t leave this subject without mentioning my own view. Personally, I’m glad that these opinions came out the way they did, because it makes the CAV a kinder, gentler place for appellate practitioners. I don't like appellate death penalties for procedural defaults, because as Judge McCullough points out today, the crushing impact of a procedural dismissal falls on the client, when it’s the lawyer who did something wrong. In a criminal case, the client has to go the habeas-corpus route (or at least seek a statutory delayed appeal); in civil appeals, the losing party is simply out of court forever.

That being said, I believe that the ultimate source of the problem is deeper than these two cases. The CAV can't say this, but I can: I think that Davis v. Commonwealth is flatly wrong – perhaps not in outcome, but certainly in the Supreme Court’s holding that a procedural defect, based on the failure to comply with a rule of court, is jurisdictional. In my view of our system of government, no court, trial or appellate, has the right to fix the limits of its own jurisdiction. That would make the court something of an autonomous body, answerable to no one.

The Supreme Court’s jurisdiction is fixed by the Constitution of Virginia and by statute (as the constitution authorizes the legislature to do). The courts may refuse petitions for procedural defaults, and even dismiss those that contain blatant rules violations. But the court clearly has jurisdiction over appeals. When a litigant blows a rule, the court can and often should toss him out of court; but it can’t say that it doesn’t have jurisdiction, where the Constitution and Code of Virginia say that it does.

NOTES ON RECENT DEVELOPMENTS

[Posted March 14, 2013] Here are a few observations on some items that have caught my eye recently.

Greasing the wheels of justice

In a situation where two persons or entities could be liable for a claimant’s damages, the claimant normally is in the catbird’s seat. There are few things more heartwarming for a plaintiff than to have two defendants pointing fingers at each other. (This, of course, is primarily because neither of them is pointing any fingers at the plaintiff.) But in S&S Electric v. Markulik, a Workers’ Comp claimant found himself in desperate circumstances because of this kind of situation.

The employee sustained an electric-shock injury while working for his employer, an electrical contractor. The employer maintained Comp coverage through a company called Central Mutual on the date of the injury and for about a month thereafter, at which point it switched over to Hartford Casualty. Clearly, Central is on the hook for the initial condition, nerve damage to the employee’s right arm. But a month after the switch, his doctors diagnosed a second condition, carpal-tunnel syndrome in both arms. The doctors felt that the CTS was probably due to ordinary work duties, though one of them thought that the shock might have contributed to the right-arm CTS. Regardless of the cause, the employee was temporarily totally unable to work.

Now we’ve got a problem: figuring out who has to pay for indemnity (not to mention medical expenses). The two insurers fought it out before a deputy commissioner and the full commission, which ultimately ruled that Hartford was on the hook. But evidently during this whole process, no one was paying the employee for his loss of income, despite the fact that no one disputed that he was entitled to get paid.

The Court of Appeals on Tuesday affirmed the ruling that Hartford is liable because the record supports the commission’s conclusion that both circumstances contributed to the temporary total disability, and by statute, “compensation for the later injury must be paid first.” But that’s not the part that really caught my eye. What stuck out for me was this footnote, near the beginning of the opinion:

During the pendency of this appeal, claimant’s counsel filed a request for expedited review by this Court. In this request, claimant’s counsel represents that claimant “has lost his home as a result of not receiving any income for more than a year” and “is currently homeless.” We have expedited our review in light of claimant’s circumstances.

Most lawyers, and even many appellate lawyers, forget that you can ask any appellate court to expedite review of a given case, if you’ve got a good reason. Please note that “a good reason” doesn’t generally include the fact that you’re really, really eager to get a ruling; you’ll have to show hardship, in the form of some exigency. Here, the person for whom coverage was being provided was being left out in the cold while a couple of insurers debated which of them should pay up. That’s not the way a remedial statute should operate. I commend this panel (Judges Beales, Alston, and Willis) for doing the right thing by turning this case around quickly.

New post on appeals from GDC to circuit

My cyber-pal Steve Minor over at SW Virginia Law Blog posted a very interesting and informative piece Tuesday (March 12) about some of the procedural problems that can arise when a case is appealed from GDC to circuit. Here’s one example: Suppose a defendant loses and later wants to drop the matter – he can’t nonsuit, because only plaintiffs can do that. He has to go through the process of moving for leave to withdraw the appeal. But the act of appealing serves to vacate the GDC’s judgment, right? It’s an interesting read on a couple of potentially thorny issues, and is well worth your time if you handle cases like that.

Taking unfair advantage

The VLW Blog has an enjoyable post on some recent humorous comments by Judge Cliff Weckstein, from Roanoke, in a local bar-association gathering. As you might have noticed, I enjoy wit and humor very much, so this piece was a fun read. I would be remiss, however, if I didn’t mention that his Honor is taking unfair advantage of his situation, thus making himself appear to be wittier than those of us who might strive to compete with him in the jokes category. After all, we all understand that one of the inevitable consequences of being elevated to the bench is that all of your jokes are instantly perceived as being twice as funny . . .

Abandon all hope, ye who appeal here