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



[Posted July 27, 2015] Governor McAuliffe has appointed Fairfax Circuit Court Judge Jane Roush to the Supreme Court of Virginia, effective August 1. She replaces Justice Lee Millette, who recently announced his retirement, effective July 31.


Under Virginia law, this appointment is technically temporary, as it expires 30 days after the legislature convenes in January. I added the adverb technically to that sentence because I’m not aware of any instance – in the history of the Commonwealth, though admittedly my familiarity is fuzzy when you go back that far – in which the General Assembly has taken a robe off a justice’s shoulders in a political fight with the Governor. It’s happened at the trial-court level, but never in the Commonwealth’s highest court.


This is an opportunity for me to congratulate my law-school almost-classmate on a terrific milestone in her legal and judicial career.


One last point: the dramatic turnover in the Supreme Court’s personnel continues apace. With the ascent of Justice Roush, five of the court’s seven members will have been appointed since 2010.



[Posted July 24, 2015] Are you laboring to complete a filing that’s due today in the Supreme Court or Court of Appeals of Virginia? Well, the courts’ bad news is your good news. Today, a transformer in the vicinity of Ninth and Franklin blew, casting the whole courthouse into the dark. With no way to process paperwork, both courts have shut down for the day.


By operation of law, the early closure of the courts means that any filing deadline that falls today is automatically extended unto Monday. (This assumes, of course, that the building will have power by then; but I think that's a reasonably safe bet.) Here’s the text of the statute that grants that extension:


§ 1-210. Computation of time.

. . .

B. When the last day for performing an act during the course of a judicial proceeding falls on a Saturday, Sunday, legal holiday, or any day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly, the act may be performed on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly.

C. When an act of the General Assembly specifies a maximum period of time in which a legal action may be brought and the last day of that period falls on a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly, the action may be brought on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk's office is closed as authorized by an act of the General Assembly.


As usual, I’ll add this vital caveat: If your deadline is for filing something in the trial-court Clerk’s Office, you do not get the extension of time. The most common trial-court filings are the notice of appeal (which is mandatory and jurisdictional) and trial transcripts (which are sort-of mandatory and jurisdictional). This extension only applies to those documents that you can’t file because the building is closed, and if your local courthouse is open, then you still have to file today.


One last point: What about petitions for rehearing? Those aren’t hand-filed; they’re filed as PDF attachments to e-mails, and you can send 'em in in the middle of the night if you want. I don’t see a specific provision for those in the rule book, but I strongly suspect that your deadline is extended even though you can file those without leaving your chair. Of course, I always urge that you should never leave any filing to the last day, so my loyal readers won’t have to worry about that; right?




[Posted July 13, 2015] Do you sense that the Supreme Court of Virginia’s rulings have been drifting in one direction or the other? Maybe you’re a plaintiff’s tort lawyer, and you think the court is moving noticeably to the right. Let me assure you, there are insurance-defense lawyers who are convinced of the opposite. The same thing goes for those in criminal litigation – the defense bar probably thinks the justices are heartless conviction affirmers, while prosecutors might see them as bleeding hearts who are eager to put Bad Guys back on the streets. Both sides might sense an alarming trend in recent decisions.


At least half of these opinions are bound to be wrong, of course. If you have such a sense, how can you be sure you aren’t blowing a few prominent cases out of proportion? Who’s really right, and who’s wrong?


Actually, it turns out that there is a way to answer these questions. It only took the New York Times to show me how. Late last month, the Times’s Adam Liptak filed a story entitled, “The Roberts Court’s Surprising Move Leftward.” In the piece, he analyzed the number of “conservative” versus “liberal” decisions handed down by SCOTUS, tracking all the way back to the 1946 Vinson Court. He updated the story on June 29 to include the last few cases handed down in the October 2014 Term, including King v. Burwell and Obergefell v. Hodges.


As you can see from the article’s title, Liptak found that the Roberts Court has become more liberal than it was in its first few years. Now, please know that this is relative; this Court is far to the right of where the Warren Court was in the 1950s and 1960s. But when Liptak added up all the decisions, he concluded that this term produced the highest percentage of liberal decisions since 1969, when Chief Justice Warren gave way to Chief Justice Burger.


It didn’t take long for this fascinating piece to trigger a sinister thought: Suppose we check the voting patterns in the Supreme Court of Virginia, to see whether this court is drifting? Is the SCV heading in one direction or another?


While Virginia tracks and publishes a number of statistics on all levels of its courts, those databases don’t include a breakdown of liberal-versus-conservative results in the SCV. One significant reason is that no one has established a formal system for identifying what a “liberal” or “conservative” ruling is. But Liptak’s story plausibly claims that the social scientists can accurately measure that kind of thing. So why can’t we?


I decided to plunge into the one resource that held the key to this breakdown: good ol’ Virginia Reports. After all, the Supreme Court’s decisions are published, right? All you have to do is go through the volumes, one by one, and make a tick mark in one column or the other for each case. Since I went back twelve years, to 2003, it was a time-consuming project – don’t try this at home, or in any office where you have to record billable hours – but after crunching the numbers, I think we can answer the question definitively.


To begin, I had to define what liberal and conservative decisions are. Some categories were easy; criminal law, for example. A decision in favor of the prosecution is conservative. Similarly, in tort contexts, a ruling in favor of the defendant or an insurance company is pretty much always conservative, while a ruling for an injured party is presumptively liberal. Happily, once I got into the work I found these decisions to be easier than I had worried they might be.


Some case areas I had to omit entirely. In domestic-relations appeals, what’s a “liberal” outcome? I also ignored things like easement disputes and probate litigation, since there’s no obvious big-guy-vs.-little-guy aspect to those decisions. If I encountered an opinion with a mixed result, where each party got a partial victory, I left that case out unless one side clearly got a major win and the other got only a small or technical victory. In a very few cases, I just had to use my judgment. As Liptak did, if fewer than seven justices voted in the case, I assumed that the extra justices would have voted with the majority. It’s an artificial assumption, but it makes sense in context.


You might quibble with a few of my judgment calls, but with twelve years’ worth of results, these statistics have, I believe, a very small margin of error.


In addition to the liberal/conservative distinction, I decided to compile one other set of data: the voting breakdown, in the sense of unanimous rulings or those with dissents. I calculated this without regard to whether the result was liberal or conservative; I just wanted to know how often the justices reached complete agreement. Liptak’s story, and the accompanying graphics, included that, and I figured it wouldn’t be hard to do for Virginia.


Enough wind-up; here are the results:


YEAR                         CONSERVATIVE RULINGS                     UNANIMOUS

2003                                                   59%                                                    90%

2004                                                   58%                                                    84%

2005                                                   52%                                                    84%

2006                                                   44%                                                    81%

2007                                                   48%                                                    88%

2008                                                   40%                                                    81%

2009                                                   54%                                                    94%

2010                                                   70%                                                    93%

2011                                                   65%                                                    90%

2012                                                   62%                                                    79%

2013                                                   64%                                                    64%

2014                                                   59%                                                    61%

2015 (through 4 sessions)                74%                                                    79%


Let’s start with the unanimity angle. You’ll note that the court normally spoke with one voice until 2012, when the newly arrived Justices McClanahan and Powell started cranking out dissents. If you enjoy appellate spectacle, the last three-plus years have been vastly more fun than seeing a string of unanimous rulings.


On to the conservative/liberal divide. My first caution to you is not to put too much stock in the totals in individual years. Single-year totals are useful, of course; but from a statistical standpoint, it’s much better to look at multi-year trends. So let’s do that.


From 2003 through 2009, the Supreme Court of Virginia was truly moderate, with each side winning approximately the same percentage of cases. (For that stretch, the conservative side won just under 51% and the liberal side just over 49%.) Since 2010, it’s been a markedly right-leaning court, as the conservatives have won 66% of all reported SCV decisions in that time. That’s no short-term anomaly; that’s a meaningful difference.


I’ll address one concern that you may have about these figures: the fact that they don’t control for case posture. For example, they don’t distinguish between an approved jury verdict, which is tough to uncork on appeal, and a grant of summary judgment, which faces much stricter appellate scrutiny. Those cases are on opposite ends of the standard-of-review spectrum.


But over this much time, the non-harmless errors made in trial courts should even out; plaintiffs ought to be the beneficiaries of such reversals just as often as defendants, especially with this much data. I’m comfortable that the sample size here is enough to dispel any suggestion that a given year’s numbers are a statistical anomaly; the multi-year averages are definitely enough.


The one thing that you cannot miss here is the Supreme Court’s obvious vector to the right. This pivot dwarfs the slight leftward tilt in SCOTUS that Liptak identified; in that court, a truly liberal year is one in which the liberal side wins perhaps 55% of the time. The conservative side in Virginia is winning appeals at a rate that cannot be attributed to a quirk in the incoming caseload or an imbalance in the quality of appellate counsel. This court has become sharply more conservative, and it’s overwhelmingly likely to stay that way for the next several years, given the relative youth of the current set of justices.



[Posted July 10, 2015] This morning, a three-judge panel of the Fourth Circuit hands down a unanimous opinion that affirms the convictions of former Governor Bob McDonnell. The slip opinion is very long – 89 pages – and I’ve read it so you don’t have to.


If you do set out to read the facts section in the opinion, you’ll likely come out thinking that the government’s case was stronger than you remember reading in the news accounts of the trial. There are three reasons for that. First, of course, an appellate court has to set out the facts in the light most favorable to the lower-court winner. So if today’s factual recitation seems slanted in favor of the government, that’s both understandable and completely normal.


The second reason is that the government’s case came out in drips and drabs at trial, over the course of several weeks. Hearing one or two snippets of evidence at a time isn’t anywhere near as compelling as having it condensed, in the format that’s perfectly familiar to appellate lawyers and jurists. This recitation is nothing but the most damning parts of the government’s case, set out in its most persuasive telling.


Third, I learned almost 25 years ago, when I handled a high-profile trial, that news reporting of a trial is often not a good indicator of how the case is actually going. You may have seen skeptical views of the evidence from this news story or that opinion writer, but trust me: you cannot evaluate the evidence in a case unless you watch the evidence and listen to the testimony, just as the jurors do. News reports sometimes don’t convey the main thrust of the evidence or the nuances of the testimony.


On to the legal discussion. The court takes up several ancillary issues first, ruling that the district court properly excluded expert testimony on the government’s grant of transactional immunity to the government’s primary witness, Jonnie Williams. The court notes that you can’t adduce expert evidence solely to impeach a witness, and holds that the trial court properly excluded another expert who would only have offered testimony about what would already have been clear to the jury.


The court next agrees with the decision to admit the McDonnells’ financial disclosures, since they could furnish evidence of concealment. Similarly, evidence of unrelated gifts —from persons other than Williams – was admissible to show the Governor’s knowledge of the “friendship exclusion” for reporting requirements.


In the last of these issues, the court evaluates a claim that an inculpatory e-mail from a former member of the Governor’s staff – who later became a current member of the Governor’s family by marrying his daughter – should have been excluded as hearsay. It looks like it might well be hearsay, but here the trial team made a mistake that seriously impairs appellate review. When the evidence was offered, the defense team objected that it was irrelevant and prejudicial, saying nothing about hearsay.


That omission constrains the appellate court to apply plain-error analysis. As appellate lawyers know, that’s a terrible row to have to hoe, and the court upholds the district court’s decision to admit the evidence, since it was at least somewhat relevant.


Enough of these preliminary issues; the court next dives into the heart of the McDonnell appeal, which is the challenge to the district court’s interpretation of the bribery statutes under which the Governor was prosecuted. The two most important of these challenges, at least in my view, are that the Governor didn’t perform an “official act” and that Williams got nothing of value for his loans and gifts.


The former issue is what has left Virginia’s elected and appointed officials looking over their shoulders or seeing ghosts. But today’s opinion brings them what I view as relieving news, in the form of this sentence: “[W]hen prosecuting a bribe recipient, the Government need only prove that he or she solicited or accepted the bribe in return for performing, or being influenced in, some particular official act.” I added the emphasis there.


That sentence means that gifts, great or small, that are not directed to a particular official act are probably not within the purview of the bribery statutes. I’ll leave others to parse the words differently if they will, but in my view, the receipt of small honoraria by officials for speaking engagements, unrelated to any specific legislation, litigation, administrative approval, or other official act aren’t the kind of things that will get you in hot water with the feds.


Returning to the quoted text, the court goes on to say that “the consummation of an ‘official act’ is ‘not an element of the offense.’” That means that the official is in hot water by taking a bribe even if he doesn’t follow through with the political favor.


The next key quote I saw was a short one: “With power comes influence.” No argument there; but today’s opinion follows this observation with this damning conclusion: “The evidence at trial made clear that Star [Scientific] executives wanted [the Governor] to use his prominence and influence to the company’s benefit.” And finally,


What the Government had to show was that the allegedly corrupt agreement between Appellant and Williams carried with it an expectation that some type of official action would be taken. … Here, the Government exceeded its burden. It showed that Appellant did, in fact, use the power of his office to influence governmental decisions on each of the three questions and matters discussed above.


This finding is bad news indeed for the defense team. It leads to this conclusion, which is the dagger to the heart of the appeal:


This evidence established that Appellant received money, loans, favors, and gifts from Williams in exchange for official acts to help Williams secure independent testing of Anatabloc.


What are the Governor’s options? He can, of course, seek en banc rehearing – panel rehearing is a notoriously rough road in the face of a 3-0 decision – or he can petition for cert. The odds against a private petitioner in SCOTUS are more than 99 to 1, but perhaps the public significance of this prosecution might enhance those odds somewhat.


Finally, depending on your political views, you may view this ruling as a travesty. I encourage you, if you see it that way, to at least read the facts section of today’s opinion before you judge the panel harshly. It may or may not be a travesty, but it unquestionably is a tragedy; it always has been, from the opening days of testimony, when prosecutors called the McDonnells’ daughter to testify against them – I can envision few things more personally horrifying for a family – all the way to the reading of the verdict, when the Governor covered his face with his hands and wept. Following this case has been a painful experience for me – nowhere near as painful as for the McDonnells, of course, but still awful to contemplate.


The federal prosecutors who secured this conviction and this affirmance may justifiably feel good about the results of their labors. Although I fully understand how today’s panel decided to affirm the convictions given the proper standard of review, I will never contemplate this case with anything but sadness.

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