APPELLATE COURTS’ HOLIDAY CLOSING SCHEDULES
[Posted November 22, 2013] It’s that time of year again, when clerks’ offices will be shuttered just when you want to file something. Here’s the schedule for next week:
The Supreme Court and Court of Appeals of Virginia will be closing at noon on Wednesday, November 27, and will remain closed through the weekend. If you have any pleadings, briefs, or other matters that need to be filed in the appellate clerk’s offices, and your deadline falls on November 27-29, your deadline is extended by operation of law unto Monday, December 2. (Even though the clerk’s offices will be open on Wednesday morning, the early closing that day triggers the deadline extension. See Code §1-210.)
The Fourth will be open during normal business hours on Wednesday the 27th, and will be closed Thursday and Friday, November 28-29. As with state court, all deadlines that fall on Thursday or Friday are extended unto Monday.
It’s unlikely that there will be significant variation between the trial and appellate courts, but in case there is, here is a crucial caveat: If you have to file something in the trial court clerk’s office, the closing of the appellate clerk’s office does not automatically extend your deadline. For documents like that (notice of appeal, notice of transcript filing, appeal bond), your filing deadline is unaffected by what happens on and around Capitol Square.
For those of you looking a bit further down the road, I don't have Christmas/New Year’s closing dates from the Fourth yet. The state appellate courts will be closed all day December 24, 25, 26, and 31, plus January 1.
A TIME OF THANKSGIVING
[Posted November 22, 2013] The Thanksgiving holiday isn’t until next week, but I got a reminder yesterday of just how lucky we are here in Virginia. After a long period of deadlock over judicial nominees, engineered by Senate Republicans, yesterday the Senate voted to change the rules on cloture, eliminating the ability of a minority party to filibuster a nomination without end. The rule change applies to federal judges (but not Supreme Court justices) and administration officials.
This move is going to have long-term repercussions. I read yesterday that Senate Republicans are vowing to use it even more aggressively when it’s “their turn,” even in order to ram Supreme Court nominees through the Senate over any objection that a minority Democratic caucus can muster. Democrats have fired back that it was the GOP who changed the rules, by turning a rarely used and extraordinary procedural tool (the filibuster) into a complete stonewall of all appointments. As with many things in Washington, it promises to get unspeakably ugly. But then, that two-word phrase is why I’ve never gotten involved in politics; I love my family, and I’m unwilling to inflict that ugliness upon them.
There was an appellate angle to yesterday’s parliamentary change, and it’s a happy one for me. The Senate’s first judicial move after the rule change was a vote to end debate on the nomination of Patricia Millett to a seat on the DC Circuit. She still hasn’t been confirmed, as there is a requirement for debate on the nomination. But it looks as though there are enough votes to confirm her. I’ve read that a confirmation vote is scheduled for early December.
This is a happy development because I’m lucky enough to count Pattie Millett as one of my friends. I privately fumed as her nomination languished. No one seriously questioned her qualifications to serve; the Republicans’ only reason to block her nomination, as I understand it, was their intransigence over all Obama nominees. As noted above, we don’t do politics here at VANA, but to me, opposition based on stubbornness instead of a real objection was unpalatable.
So yesterday’s invocation of the “nuclear option,” as troublesome as it may ultimately prove to be, contains at least the seeds of a happy outcome for the nation. If she’s confirmed, she’ll make a terrific judge. She also has one credential that’s all too rare in appellate courts: she actually argued appeals.
The real cause of my feeling of gratitude is the knowledge that here in Virginia, we have full appellate benches. The Supreme Court has a full complement of seven active justices, plus three senior justices (out of four allowed by law). The Court of Appeals of Virginia is back up to a full bench now that Judge Marla Decker has been sworn in. (No word on whether she has to brew the coffee during en banc sessions.) That court is aided by five senior judges. And the Fourth Circuit, which once labored with five vacancies, is now up to its full strength of 15 judges, augmented by Senior Judge Hamilton.
That means that appellate justice moves along at a good clip here. The Supreme Court once took a year and a half to move the average civil case (criminal cases get priority on the docket) from trial-court judgment to appellate opinion, assuming the court granted a writ. That time is now back down to about a year, which is what I had become accustomed to seeing. (One component of that reduction in time is the reduction in the number of writs granted, a topic that I’ve mentioned elsewhere.) The CAV continues to get its opinions out roughly 60 days after oral argument. And the Fourth Circuit continues its blazing pace, with a median time of just 5.7 months from the date of filing of the notice of appeal to the date of final appellate action. Five months!
In all, it’s a good reason to be thankful, even beyond the absence of partisan bickering and nuclear options. Yes, I am aware that that state of tranquility won’t last forever.
* * *
The same happy circumstance does not prevail in Virginia’s trial courts. The National Center for State Courts issued a report last week after studying Virginia’s caseload statistics. The center, which is not affiliated with Virginia government, concluded that our trial courtrooms are significantly undermanned. A few years ago, the legislature declared something of a moratorium on the filling of judicial vacancies as a cost-cutting measure after the recession of 2007-09. Several judicial vacancies around the Commonwealth simply remained vacant, requiring sitting judges to take on more of a load. The courts also drew more heavily upon retired judges and judges designate to meet the demand for judicial services, which had not declined despite the economy; people were still getting divorced and litigating contract disputes and knocking over liquor stores.
Here are the center’s recommendations:
Circuit Court – fill all current vacancies and add another 13 judges statewide
General District Court – fill six of the current nine vacancies
Juvenile and Domestic Relations District Court – Add another 17 judges statewide
The optimist in me hopes that the General Assembly will take these recommendations to heart, instead of saying to the National Center, “Thanks for the advice; just write us a check and we’ll fill those vacancies for you.” Providing a system of civil and criminal justice is a core governmental function. In the absence of a working judicial system, some citizens may decide that self-help is a better option. The courts are how we cut down on things like revenge killings or maimings. Having a full complement of trial judges is a big part of how we literally ensure domestic tranquility, not to mention the prompt application of justice that should be one of the hallmarks of a civilized society. This problem is much too important to be shrugged off as just another budgetary item.
* * *
I’ll add one last point that has nothing to do with appellate practice, but it’s quite common to see in print today. Fifty years ago today, I was a grizzled kindergartener. I had gone to school that morning and had come home for lunch and a nap. When I woke up, I made my way downstairs, where I saw my mother, sitting in front of the television. She was crying.
SOME RECENT INTERESTING APPELLATE DEVELOPMENTS
[Posted November 18, 2013] Here are a few things that have caught my eye lately in the appellate world:
The book is closed
Well, at least it’s closed on published opinions out of the SCV for this year. In its six sessions during calendar 2013, the Supreme Court handed down just 59 published opinions. For a quick comparison, I pulled a couple of volumes of Virginia Reports from recent years off the shelves and counted. In 2007, the justices handed down 135 published opinions; in 2004, the figure was 150. (This was a rough calculation; I might be off by one or two for those two years.)
The 2013 count by sessions reads this way:
January – 12
February – 12
April – 9
June – 8
September – 10
October – 8
In the not-too-distant past, a single volume of Virginia Reports, covering half a year’s worth of decisions, routinely ran to about 800 pages, and occasionally topped 1,000. Volume 286 will look like a pamphlet in contrast; it’ll probably come in somewhere around 325-350 pages. It remains to be seen whether the volume will be wide enough for the printer to put “Virginia Reports” on the spine.
I’ve written recently about the effect of a sharp drop-off in the number of writs granted. Those attorneys who still subscribe to the bound volumes of Virginia Reports will soon get a lasting reminder of that trend.
Regional moot-court competition
Friday evening, I had the great pleasure to give the keynote address at a banquet honoring the participants in the regional moot-court competition involving law students from several states. The competition took place Friday and Saturday in Richmond, and was sponsored by the Virginia Bar Association's Young Lawyers Division. I spoke about appellate oral argument, giving the competitors a few ideas on how to make their oral arguments better. By all accounts, the quality of the advocacy in last weekend’s competition was quite high.
I’d be remiss if I didn't pause to congratulate the winners; students from Wake Forest won the event and those from Regent University placed second. Both teams will go on from here to the national competition in New York. In addition to punching their ticket to the Big Apple, the students from Regent took home the best-brief award, for the second year in a row.
Tolls in Tidewater
As the smoke clears from the October 31 decision in Elizabeth River Crossings v. Meeks, folks down here in Tidewater are starting to ponder what life will be like soon, when tolls get slapped on each crossing of the Elizabeth River between Norfolk and Portsmouth. There are three direct connections between those two cities: the Jordan Bridge is privately operated and charges a toll of $1.50 each way for cars with E-Z Pass (it’s $4 each way for folks like me without an E-Z Pass account). The Downtown and Midtown Tunnels are currently free, but in February, Elizabeth River Crossings will begin charging varying tolls (depending on the type of vehicle and whether it’s rush hour) that start at $1.59 off-peak. If I want to use one of the tunnels without an E-Z Pass, it’ll cost me well over $4 one-way. The tolls will rise over time in order to guarantee a rate of return for ERC, and will last for 58 years.
When the Supreme Court reversed a local judge’s decision to strike down the tolling arrangement, one of the key issues was whether any reasonable alternative routes exist that would allow commuters to avoid paying the toll. As has been reported in the local media, when ERC’s attorney (a pal of mine from up in Northern Virginia who's a very capable appellate advocate) was asked in the trial court about reasonable alternatives, he cited the Gilmerton Bridge and the I-64 High Rise Bridge, both in Chesapeake.
The trial judge, a long-time resident of Portsmouth, reportedly scoffed at the suggestion that those two spans were reasonable alternatives. Yesterday, a front-page story in the Virginian-Pilot analyzed just how reasonable those routes were. Here’s a link to the electronic edition of the article; you’ll find a string of comments, ranging from resigned to snarling, following the story.
As for the opinion, I’ll mention here that I followed the court’s reasoning well enough on all of the issues except the one about the reasonable alternatives. For example, while some folks may not like the Public-Private Partnership Act and its latent threat of turning over all of Virginia’s transportation system to for-profit organizations, the Act appears to be constitutional. The real cost to be paid for the great unpopularity of this project is a political one.
I was very interested in the merits of that single issue, on the reasonableness of untolled alternative routes. The published opinion glosses over this important question without explanation, stating simply that the two bridges are reasonable alternatives without setting out why the trial judge – a local – was wrong. That was very disappointing to me, as I was looking for a legal or factual reason behind the court’s ruling.
As a long-time resident of Tidewater – I’ve lived here since I was three years old – I’ll offer my two cents’ worth on the “merits” of this question: Only someone who doesn’t live here could possibly conclude that these two bridges are “reasonable alternatives” to the two newly-tolled facilities. (None of the seven justices who decided ERC v. Meeks lives in Tidewater. Justice Goodwyn, who surely would have interposed a "Hey, wait a minute" about this part of the opinion, recused himself from the case.) The court’s bare conclusion is as factually unsupportable as saying that the Huguenot Bridge is a “reasonable alternative” to a newly-tolled I-95 bridge across the James in Richmond. Imagine taking that alternate route to get from the foot of Hull Street to Capitol Square at rush hour.
ABA Summit concludes
The ABA’s Appellate Summit was held last weekend in San Diego. If you missed it, I have good news and bad news. The good news is that there will be another one, and if tradition holds, this one will likely be in the District of Columbia, much closer to home for Virginians. The bad news is that you’ll have to wait a year, as these summits are virtually always held in mid-November. That means that you’ll have to fulfill this year’s MCLE requirements before the next program rolls around.
I’ve found these summits to be wonderful opportunities for both education and rubbing elbows with your appellate colleagues from around the nation. If you haven’t been to one, I highly recommend it. I’ll post information on the 2014 gathering as soon as I have it, which will be several months from now.
UPDATE November 19: I've learned that the 2014 summit will not be in Washington but in Dallas. That is, at least, still closer to Virginia than is San Diego. You can save the date now; it's November 13-16, 2014.
SCV ORDER MAKES MAJOR APPELLATE WAVES
[Posted November 5, 2013] My work schedule has prevented me from posting commentary on a recent Supreme Court decision that deserved much more attention. The case is John Crane, Inc. v. Bristow, an appeal of a $9 million asbestos-related claim.
The justices handed down an unpublished order in this case on Friday, October 25. The order resulted in a procedural dismissal of the appeal. The news of that ruling has rocketed through the appellate community, and with good reason. Here’s the setup:
After suffering a $9 million judgment, the defendant filed a petition for appeal in June 2012. The issue on appeal was causation, always a tricky problem in mesothelioma cases. (I'm told that the portion of the judgment that was appealed constituted only about half of the total award, so the amount at issue here was under $5 million.) Here’s the assignment of error, verbatim:
The trial court committed reversible error in permitting the implied warranty claim to be tried under a 'substantial contributing factor' theory of causation, instead of Virginia's well-established 'but for' standard for causation.
The case languished on the Supreme Court’s docket for 9½ months before the justices granted John Crane a writ in April 2013.
In the interim, the Supreme Court handed down Ford Motor Co. v. Boomer in January 2013. Boomer was another mesothelioma case implicating the standard of causation. Here’s the key part of the ruling in Boomer:
Here, for the first time, we are called upon to rule explicitly as to the causation standard appropriate for mesothelioma. We find that in concurring causation cases, the "sufficient"-to-have-caused standard as elaborated above is the proper way to define the cause-in-fact element of proximate cause.
Note that this is presented as a decision on a question of first impression: The litigants thus had no advance notice of how the justices would resolve this issue.
A week and a half ago, the justices took the Boomer ruling and clobbered John Crane with it. They held that the appellant’s use of the phrase “instead of” in its assignment means that it could only advocate on appeal the but-for standard, one that had been rejected in Boomer. Since that was now an untenable option, the Supreme Court dismissed the Bristow appeal as having been improvidently awarded.
Why is this major appellate news? The Supreme Court held that John Crane’s language boxed it in, as far as this appeal is concerned. The court’s intervening Boomer ruling, handed down six months after the petition for appeal was filed, deprived John Crane of any meaningful chance to argue the correct issue. In effect, the justices shifted the legal landscape during the pendency of the appeal, and then dismissed this appeal for failing to anticipate this change in the law.
Do you see how scary that is? This is why every appellate lawyer with whom I’ve discussed this case – and I mean literally every one, on both sides of the litigation aisle – is aghast at this ruling. It contains the seeds of a malpractice claim against any of us, for circumstances that are effectively beyond our control.
So, what should have happened instead? For one thing, perhaps John Crane could have moved the court for leave to amend its assignment of error, to match the new legal standard. Modifying your assignment after a writ has been granted is generally forbidden, but not if the court grants you leave to do so. A suitable motion in a situation like this might well allow a litigant to avoid the unpleasant dismissal of a potentially meritorious claim.
There’s more. Justice McClanahan dissents, and she’s joined by Justice Goodwyn. The dissent points out that the language in John Crane’s assignment in Bristow matches up almost exactly with the language of the assignment in Boomer. So if the language was insufficient in Bristow, how was the court able to reach the merits of the issue in Boomer? Shouldn’t that case have been dismissed, too?
Well, perhaps not. After all, we needed to get at least one decision on the merits, in order to lay down the court’s holding on the standard for proving causation. You could argue that subsequent cases are to be governed by the Boomer ruling, and John Crane was merely the first victim of that new doctrine.
But that doesn’t seem fair to me; not at all in this setting. A dismissal is a particularly harsh ruling, no matter how many zeroes there are in the case. This is especially true when the court has effectively engineered the discrepancy during the pendency of the appeal.
What’s more, the justices occasionally do find it in their collective heart to allow an appellant to slide just a tad with a defective assignment. They did so last week, in Amin v. Henrico County, where the appellant assigned error to a ruling that the Court of Appeals clearly didn’t make. In ordinary situations, the justices won’t touch such an issue. See, e.g., Heinrich Schepers v. Whitaker, 280 Va. 507, 514 (2010) (“Heinrich's assignment of error does not reflect the circuit court's ruling, and hence, the assignment of error is barred by Rule 5:17(c) that requires an appellant to assign error to the specific ruling of the circuit court.”). But in Amin, a majority of the court voted to reverse anyway, overlooking the appellant’s imprecision in wording.
I believe that the justices could have, and should have, done so here, too. This case collapsed because of a fault that was not of John Crane’s making. Irrespective of the ultimate outcome of the case – an issue upon which I can express no view, because I haven’t seen the briefs and I don’t know the record – the litigant in this granted case should have had an opportunity to be heard on the merits. Those merits might well prove unavailing, particularly in light of Rule 5:25; but I believe that this procedural dismissal was unduly harsh.
In other essays like this, I’ve tried to give my readers a way to avoid the landmines that this kind of ruling illustrates; a way to shape your pleadings or to manage your practice so as to be safe from a similar unpleasant fate. But I have little comfort to offer you here. I don’t know of a way in which you can insulate yourself from the possibility of having your case dismissed for a problem that arises after you file your petition.
Once upon a time, the court cracked down on vagueness in assignments of error, going so far as to dismiss an appeal that used language (“The trial court erred in granting [the appellee’s] motion for summary judgment”) that had been the basis, just two years earlier, of a reversal. That crackdown ended within the ensuing year, but now Charybdis has arrived to take Scylla’s place: Bristow illustrates that you can lose if your assignments are too specific. I’ve discussed a problem like this recently (see this essay posted in August 2012), and have advised moderation; but that advice probably wouldn’t have made a difference in Bristow. I can tell you that in most instances, you must hew to a middle ground that I really can’t define well for you.
Ultimately, the solution to this problem may lie in the court’s abandoning the source of all these procedural violations: Binding assignments of error. In many other appellate courts, litigants file statements of the appellate issues, but they aren’t punished (or ignored) if they stray somewhat from those statements as the appeal unfolds. In federal appeals, for example, there are exceptions to FRAP 28(a)(5) for manifest injustice, substantial public interest, and questions of particular importance. In case you’re wondering, I really doubt that the Supreme Court of Virginia will make such a change anytime soon.