De Novo: A Virginia Appellate Law Blog : Virginia Appellate Lawyer & Attorney : James O'Keeffe : Gentry Locke Rakes & Moore Law Firm : VA Court of Appeals Commentary & Analysis

Interesting news from Richmond: House Joint Resolution 111, sponsored by Delegate Sal Iaquinto (R-Virginia Beach--pictured), would direct the Judicial Council of Virginia to study the jurisdictional capacity of the Court of Appeals. HT: Peter Vieth at Virginia Lawyer's Weekly.

In particular, Joint Resolution 111 would tell the Judicial Council to review the respective capacities of the Supreme Court of Virginia and the Court of Appeals, and consider whether the quality of appellate review would be served by expanding the intermediate court's capacity.

The Resolution calls for the Judicial Council to complete its meetings for the first year on November 30, 2012, and its meetings for the second year on November 30, 2013. For each year, it would publish an executive summary and report of its findings.

Joint Resolution 111 has been referred to the Committee on Rules.

(I don't know what that means.)

In fact, I don't pretend to understand any of  the mechanics or politics behind this at all--but I am certainly in favor of expanding the jurisdiction of the Court of Appeals for several reasons:

• It would help with the development of the law in a broad array of areas. It's just not possible for the Supreme Court to hear enough cases each a year to fully flesh out the law. That leads to gaps in the law and uncertainty. As an overall matter of policy, Virginia tends to be business-friendly. But uncertainty is bad for business and expensive; it makes people have to employ the legal equivalent of belts-and-suspenders to protect their interests.
• It would be fairer to litigants. The recitals to Delegate Iaquinto's Resolution state that "the caseload of the Supreme Court of Virginia continues  to preclude it from granting petitions for appeals in many cases in which appellate review is sought." I don't know if that's right or wrong, but I do know that only about 1 in 5 civil petitions for appeal are granted. That means that about 80% of people who want appeals don't get them.* Giving everybody 1 appeal of right  would let them feel like they've gotten a fair shake, and offer them recourse when trial judges get things wrong. (That's not meant as a shot at trial judges--somebody has to make the decisions, and questions with clear answers tend not to get litigated. See bullet point 1, above.)
• It would force trial judges to be more careful. I've never been a trial judge, but I can't help but think that the looming prospect of an appeal of right would help focus my efforts on resolving the legal questions at hand. And I've practiced in many jurisdictions around the Commonwealth, where I've seen . . . things. In places. Which lead me to favor appeals of right for civil litigants. Let's leave it at that.

In short, I like the sound of this. I'll try to keep you posted on Joint Resolution 111.

* Don't think that I missed the counterargument that many of those petitions don't deserve to be granted. If that's true, then those appeals would be easily disposed as appeals of right. The Fourth Circuit, for example, hears appeals of right but brooks no foolishness from appellants.

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As you've likely heard, the Supreme Court of Virginia recently approved rules of evidence for the Commonwealth. The rules are modeled on the set drafted by the Boyd-Graves conference and published by Virginia CLE. They track and codify the existing common-law rules of evidence.

(You'll note that the VLW story I linked to above mentions submitting the rules to the Code Commission and getting approval from the General Assembly. More on that in a second.)

I was thrilled to hear the news. Our lack of rules of evidence is one of my well-documented pet peeves. 

In fact, I'd just done a post complaing about that very topic. Virginia and Massachusetts are the only two states (technically, commonwealths) without rules of evidence. That's bad company. Massachusetts is a very silly state.

So, logically, I was about to crack open a nice box of wine and write a follow-up post taking credit for the new rules. After all, while they may have been in the works for a while, it was clearly the force of my rhetoric that put this thing over the top.

Then Chief Justice Kinser stopped by Roanoke last Tuesday.

Now, I defer to no one in my admiration for the Chief Justice. But sometimes she scares me. Usually, it's when she's asking me questions. On Tuesday, she did something even more fightening: She explained a little about the rules adoption process going forward.

In my simple-minded view of the world, I guess I'd figured that the Boyd-Graves conference would propose rules, the SCV would approve them, and all would be good. (This is what happens when you only read the VLW headline, and not the entire story.) After all, these seem like the folks best situated to tell us what the law of evidence in Virginia says. Please stop me if, at any point, I say something that isn't blindingly self-evident.

So imagine my surprise when the Chief Justice explained that the next step in the process involves sending the rules to the General Assembly.

Eep.

Let's set politics aside for a minute. Many rules of evidence don't make much sense on their own; you need context to understand them. A lot of context. (I'm looking at you, hearsay exceptions.)

There's something fundamentally horrifying about the idea of people, many of whom who have no background in law--and some of whom have a professional hostility to lawyers--sitting down to play with the rules of evidence. I mean, how much sense the limits on character and habit evidence make to you before you went to law school?

And half the time when we try to improve on the common law, we wind up screwing the whole thing up. We get things like the dead man's statute. Whether or not that statute makes policy sense as interpreted, it's completely incomprehensible as drafted.

Worse still is the potential for politicizing some of these rules. Like, how about we stick it to the greedy plaintiff's bar by saying that the dead man's statute doesn't apply to doctors, or tweaking the hearsay rule to help corporate defendants? We could make a real mess of oh, say, about 200 years of jurisprudence by horse trading rules and exceptions. That's not worth it.

So to those of you in the Boyd-Graves conference and on the SCV, hearty congrats on a job well done. 

And to everybody else, please ask your friendly neighborhood legislators to pass the rules of evidence as presented, and as a package.

No rules are bad. But bad rules are worse.

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The Fourth Circuit is slated to hear two appeals in cases testing the constitutionality of the new federal health care law on Tuesday. (HT: VLWblog.) 

Acting Solicitor General Neal Katyal will defend the law against separate challenges brought by the Commonwealth of Virginia, Commonwealth v. Sebelius, No. 11-1057, and Liberty University, Liberty University v. Geithner, No. 10-2347.

Duncan Getchell will argue for the Commonwealth, and Mathew Staver, Dean of Liberty's law school, will argue for the University.

That's an impressive lineup, and well-worth checking out if you're in Richmond. The first two names ought to be familiar enough to readers of this blog, and Dean Staver's bio is impressive. He's been involved in the evangelical law and policy movement, and he has two SCOTUS arguments under his belt. No slouch, this guy. Also, he reads Classical Hebrew, Aramaic, Syriac, and Koine Greek. So he's got that going for him.

Can't make it to Richmond? Not to worry: Starting with the May term, the Fourth Circuit will post the audio from oral arguments on its website two days after the argument, and sooner for high-profile cases.

I'd say these qualify.

The two cases are the first of more than 20 suits challenging the law to be argued before an appellate court.

The issues in Sebelius are whether Virginia has standing to challenge the Affordable Care Act, and whether that Act was a valid exercise of the commerce or taxing power.

Liberty takes more of a shotgun approach, questioning whether the Act exceeds Congress' power under the Commerce Clause; or violates the FIrst, Fifth, or Tenth Amendment, or the Religious Freedom Restoration Act.

The arguments will be held in the Fourth Circuit's largest courtroom, and the court will set up a video and audio feed to an overflow room. They're likely to need all of the space they can get. To date, more than three dozen amicus briefs have been filed in Sebelius alone. (I will leave the briefs to those of you with a PACER account and a raging case of OCD.)

The Fourth Circuit is notoriously tight-lipped about the composition of its panels, so we won't find out which judges will hear the appeals until Tuesday.

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The Supreme Court has granted 13 appeals since we last checked in on the justices. Some of the highlights include:

• the latest skirmish in Ken Cuccinelli's ongoing war against the Great University;
• a medical malpractice case involving a "retained surgical sponge"; and
• another med-mal case about proving the standard of care.

 Surprisingly, only 2 of these 13 cases are criminal. Summaries after the jump.

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As you know, former Chief Justice Hassell passed away last Wednesday. I never know what to say at times like this. My partner, Mike Pace, always seems to know exactly what to say. Here is part of what he wrote:

It is with much sadness I report that Justice Leroy Roundtree Hassell passed away early this morning.

Those of us who had the good fortune to know him were made better people and better servants of the public through the law because of him. He was a strong voice advocating for the continued independence of the judiciary, access to justice for everyone, particularly the poor and under served, and respect for the rule of law. The citizens of the Commonwealth of Virginia are better and safer because of him.

Justice Hassell believed lawyers and judges are the protectors of the public. Those of us who were fortunate to hear Justice Hassell's address at the VBA Winter meeting in Williamsburg in January will forever remember his words. Fortunately, his comments were videotaped. I intend to get a copy and show it at our next firm meeting. His remarks were inspiring and made even more poignant today.

Please remember Justice Hassell and his family, and let us recommit ourselves as citizen lawyers to those principals he believed were vital to the protection of individual liberty and the collective rights we enjoy as Virginians and as Americans.

That sounds right.

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SCOVA granted 9 appeals in recent days, 5 criminal and 4 civil. Highlights include

• A case about the duties owed by a driver facing a green light;
• A noncompete case; and
• A search-and-seizure case.

Complete information about the writs is available on the Court's website. Here is a summary of the cases, lawyers, and issues involved:

BROOKS v. COMMONWEALTH, Record Number 091047, on appeal from the Court of Appeals of Virginia

Counsel

• Daniel W. Hall (Office of the Public Defender) for appellant.
• Cheryl J. Wilson (Office of the Commonwealth's Attorney) for appellee.

Assignments of Error

1. The Court of Appeals erred by upholding the trial court’s refusal to suppress the evidence where the consent given for a search for a gun did not justify the search of a folded NTelos bag, rendering the further search a violation of petitioner’s rights under the U.S. and Virginia Constitutions.
2. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements as the immediate fruit of the unlawful search of the NTelos bag.
3. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements where they were made in violation of his Miranda rights under the Fifth and Sixth Amendments.
4. The Court of Appeals erred by upholding the trial court’s ruling permitting the introduction of a certificate of analysis in violation of the appellant’s rights under the Confrontation Clause.

SCHUMAN v. SCHUMAN, Record Number 100967, on appeal from the Court of Appeals of Virginia

Counsel

• Scott A. Surovell (Surovell Markel Isaacs & Levy PLC) for the appellant.
• William B. Reichhardt and Colleen C. Sweeney (William B. Reichhardt & Associates) for the appellee.

Assignments of Error

1. The Court of Appeals erroneously disregarded the trial court’s interpretation of the agreement.
2. The Court of Appeals erroneously affirmed the trial court’s equitable distribution of the Arlington condominium.
3. The Court of Appeals erroneously affirmed the trial court’s refusal to equitably distribute the wife’s deferred compensation earned entirely during the marriage.

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The Supreme Court of Virginia granted 8 appeals over the past week. Highlights include:

• An appeal of Judge Thacher's big sanctions/attorneys' fees decision from earlier this year;
• A zoning case apparently featuring--could it be?--civil procedure guru Kent Sinclair as a party; and
• An environmental case that has united Hunton, McGuire Woods, and the AG's office in some unholy union a common cause.

Summaries of the appeals are below, and full information is available on the Court's website.  

The Anablogger asked me offline why I've started tracking this information,  which he finds a little tedious.

There are a few reasons.

First, I think that it's neat  to see what appeals are in the pipeline and who is handling them.

Also, I'm interested in the precise wording of assignments of error, and some of the procedural issues that they implicate. Since the Court keeps the below information on its "Appeals Granted" page only until it issues a decision in the case, I thought that it might be helpful to compile it here for reference purposes. If the Court should later reject a challenge to an assignment of error as insufficient, for example, I'd like to see exactly what the appellant said.

Also, it's my blog and I can do whatever I want. You try coming up with new content every week. It's not easy.

With that said, here are this week's appeals granted:

MILLER v. COMMONWEALTH, Record Number 092401, on appeal from the Court of Appeals

Counsel

• Elliott B. Bender (Elliott B. Bender, PLLC) for appellant.
• Robert H. Anderson, III (Office of the Attorney General) for appellee.

Assignments of Error

1. The trial court erred in allowing the admission of the firearms and ballistics examination certificate and the conclusion drawn from the certificate. Although it appears that the actual certificate was never viewed by the jury, the Commonwealth was allowed to argue its conclusive effect on the case and the defendant was precluded from arguing the lack of its conclusion.
2. The Court of Appeals properly concluded that the State forensic analyst’s laboratory firearms and ballistics report prepared for use in a criminal prosecution is testimonial evidence and thus requires a live expert to introduce the results, however, it failed to consider the proper application of this finding in context with the recent U.S. Supreme Court decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
3. Mr. Miller’s constitutional right to confront and cross-examine witnesses against him has been violated. Therefore, the firearms and ballistics examination certificate and any argument made by the Commonwealth should never have been admitted over defense counsel’s objections.
4. The Court of Appeals applied the wrong legal standard in applying its harmless error argument regarding defendant’s constitutional rights as applied to the admission of the ballistics examination certificate and the effect it had on the parties to argue their prospective cases. 

BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC.,  v. COMMONWEALTH, Record Number 101476, on appeal from the Court of Appeals

Counsel

• Robert L. Wise and David E. Gluckman (Bowman and Brooke LLP) for appellants.
• David E. Evans, J. Tracy Walker, IV, and Darin K. Waylett (McGuire Woods LLP), Kristy A. Niehaus Bulleit (Hunton & Williams LLP) and E. Duncan Getchell, Jr. and David C. Grandis (Office of the Attorney General) for appellees.

Assignments of Error

1. The Court of Appeals erred in applying an "arbitrary and capricious" standard of review, instead of a de novo review, to the Board's legal determination that it was categorically without legal jurisdiction to regulate the "hot side" of Lake Anna.
2. The Court of Appeals erred by applying the "arbitrary and capricious" standard of review to conclude that the circuit court erred by not deferring to the Board's reliance on an erroneous advisory opinion, a deferring EPA no-objection letter, and a "voluminous" record.
3. The Court of Appeals erred in reversing the circuit court and upholding the Board's categorical refusal to exercise regulatory jurisdiction over the "hot side" as a "cooling water impoundment," when the record evidence clearly supported the circuit court's conclusion that the "hot side" is, indeed, "waters of the United States" and properly under the Board's regulatory jurisdiction. 

HAWVERMALE v. BEST BUY COMPANY, INC., Record Number 101650, on appeal from the Circuit Court of Fairfax County

Counsel

• Michael M. Pavlovich, Esquire, and Herman M. Braude (BRAUDE & MARGUILES, P.C.) for appellant.
• John D. McGavin and Amy A. Lombardo (TRICHILO, BANCROFT, McGAVIN, HORVATH & JUDKINS, P.C.) for appellee.

Assignments of Error

1. The circuit court erred in granting Best Buy Company Inc.’s (“Best Buy”) Motion in Limine to exclude the testimony of Hawvermale’s proposed human factors engineering expert, Dr. William Vigilante, Ph.D (“Dr. Vigilante”)
2. The circuit court erred in sustaining Best Buy’s objection to, and granting Best Buy’s motion to strike, the proposed testimony of Plaintiff’s witness Dolores Hawvermale concerning the appearance of shopping carts at the Best Buy location in question on relevance grounds.

 More after the jump . . .

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The Roanoke Times has a thoughtful piece on Justice Koontz, who will step down in January after serving on various levels of the Virginia judiciary since the late-Mad Men era.

The article includes an interview with Justice Koontz. Among the highlights:

• Justice Koontz confirms what we've long suspected: the courts of the '60s and '70s presented a "more colorful, character-filled world," with less extensive discovery and more "trial by ambush. You never were sure who was going to say what or what was going to happen. ... It actually made it more fun. ... I'm not sure we got better results, but it was a different way of getting to the result."
• The biggest changes that he has seen in the courts over his career are (1) the explosion of discovery, (2) a decline in the level of familiarity between lawyers and judges, and (3) an increase in the variety of things people will litigate over. Basically, everything has gone to hell since Roger Sterling lost the Lucky Strike account.
• When asked if there were any cases he wished he could revisit, Justice Koontz said, "No, not really. There have probably been some that I got wrong, but not any that come to my mind."

Finally, I don't know if this will show up when you click on the article, but when I pulled up the article, it ended with a banner ad that reads (and I swear I am not making this up):

Be A Circuit Court Judge Be A Circuit Court Judge W/ An Online Degree. Get Info. www.Univ-Phoenix-Online.com

A fitting coda to Justice Koontz's elegy on better days gone by?

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Our Thanksgiving was marred by some terrible news--leading Texas appellate lawyer and rising star of the SCOTUS bar Gregory S. Coleman has died in a plane crash. How Appealing aggregates a number of reports.

Coleman argued Switzer v. Skinner in October, and in 2009 he handled--and won--what the Legal Times' Tony Mauro called two of the Court's most important cases in recent years: Northwest Austin Municipal Utility District No. 1 v. Holder and Ricci v. DeStefano, better known as the New Haven firefighter case. See also SCOTUSBlog (Holder was "one of the most important civil rights cases in years").

A few years ago, we had the privilege of working with Coleman's firm on a few cases. They were top-notch lawyers and unbelievably nice guys; gracious and smart, smart, smart. This is really awful news, and we hope that you'll keep everyone involved in your thoughts and prayers.

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VLW reports that the Supreme Court of Virginia has elected Cynthia Kinser to serve as its next Chief Justice. Her term begins on February 1, 2011. The Court's press release is available here.

Our heartiest congratulations go out to the Court's first female Chief Justice for this richly deserved honor.

As longtime readers have likely intuited, Chief Justice-elect Kinser is something of a favorite in this corner of the googlesphere because (1) she is really, really smart, (2) she hails from SW Virginia, and (3) she is absolutely terrifying at oral argument. We join current Chief Justice Hassell in his confidence that she'll serve as Chief Justice with the highest distinction.

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Here's a story that's been bothering me recently: As our buddies at Virginia Lawyers Weekly reported, the Supreme Court of Virginia has issued a show cause order to a Winchester attorney, directing him to explain a comment that he made on the record.

The lawyer, William Crane, represented a sexually violent predator in a case involving two appeals. Finding himself back in front of the trial court, he tried to explain the Supreme Court's treatment of an appellate issue. 

This exchange ensued:

MR CRANE: The Court refused to consider the Fifth Amendment issue. They said there was enough besides that to go ahead an approve the findings.

THE COURT: They didn't want to touch it?

MR. CRANE: Well, they just stuffed it. They didn't have the guts to handle it.

As luck would have it, the transcript wound up in the record for a subsequent appeal. The Supreme Court evidently read the transcript and was not amused. Citing the Rules of Professional Conduct, it directed Crane to appear on September 16 to explain whether his comment demonstrates "a patent disregard for the Justices of this Court."

Yikes.

Virginia Lawyer's Weekly reports that this appears to be the third show cause order issued since 1987 for a lawyer's behavior toward the Court. The first involved a lawyer who approached a sitting justice at a social function and told him, "I'm still pissed off at you, you a-hole."

The second was the Taboada v. Daly Seven, 272 Va. 211, 636 S.E.2d 889 (2006) debacle, where a lawyer signed and filed a petition for rehearing, which employed "intemperate language" to "ridicule and deride the Court" and "express displeasure" with its opinion.

That's putting in diplomatically. Here's an excerpt from Taboada:

[The lawyer] made numerous assertions in the petition for rehearing regarding this Court's opinion. [He] described this Court's opinion as "irrational and discriminatory" and "irrational at its core." He wrote that the Court's opinion makes "an incredible assertion" and "mischaracterizes its prior case law." [The lawyer] stated: "George Orwell's fertile imagination could not supply a clearer distortion of the plain meaning of language to reach such an absurd result." [He] argued in the petition that this Court's opinion "demonstrates so graphically the absence of logic and common sense." ... [The lawyer] also included the following statement in the petition: "[I]f you attack the King, kill the King; otherwise, the King will kill you."

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A few weeks ago, I asked for help explaining a trial to my niece, and promised a copy of The Curmudgeon's Guide to the person who provided the best answer.

Responses ran the gamut from sweet and informative to almost unbelievably creepy. (Oddly, that last one came via email from our marketing manager here at TFOTM. I can't publish it, because this is a family blog.)

The winner came from fellow blogger Lauren Ellerman:

A trial is when people get dressed up and try to convince strangers they are not lying. It's not an easy way to earn a living.

Lauren has four blogs. I have one. Hers are updated more often, she has no apparent need to bribe her readership, and she has time to train for a triathlon. Clearly, I am doing something wrong.

Honorable mention to James Markels, who notes that:

To an appellate attorney, a trial is where errors are made.

How true. Thanks to everyone who participated.

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This morning, the Supreme Court of Virginia approved changes to Rules 5 and 5A, which govern appellate practice in state courts. [Hat tip to Official Friend of De Novo (TM) Steve Emmert.]

The new rules will take effect July 1st. We will talk about them in the coming weeks, but wanted to give you all a heads up.

Also, please be prepared for some light blogging ahead--jury trial next week, followed by some oral arguments and briefing deadlines. Gotta pay the bills somehow.

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The cruelest month gets off to an entertaining start, as the Supreme Court of Virginia releases its April argument docket. From April 12-16, the Court is set to hear six criminal cases, one VSB disciplinary board case, and 21 civil cases.

Of particular note, the Court will hear a pair of cases about the ownership of church property in Northern Virginia. I gather from the news coverage that the cases involve property held by parishes that left the Episcopal church, and challenge the constitutionality of Virginia's unique "division statute," Code Section 57-9(A). The Diocese of Virginia has put the briefs up on its website, but I am lazy I've been busy and have not yet had a chance to read them.

How cool are these cases? In one of them, George Somerville--he of standard-of-review fame--Troutman Sanders, and Professor Howard square off against . . . well, roughly everyone else with a law license. Here are the counsel in Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, et al., Record No. 090682:

• For the appellant, Bradfute W. Davenport, Jr.; George A. Somerville; Mary C. Zinsner; Joshua D. Heslinga; A.E. Dick Howard; Troutman Sanders.
• For the appellees, Gordon A. Coffee; Gene C. Schaerr; Steffen N. Johnson; Andrew C. Nichols; Scott J. Ward; George O. Peterson; Tania M.L. Saylor; Mary A. McReynolds; James A. Johnson; Paul N. Farquharson; Scott H. Phillips; James E. Carr; E. Andrew Burcher; R. Hunter Manson; Kenneth T. Cuccinelli II, Attorney General; Charles E. James, Jr., Chief Deputy Attorney General; E. Duncan Getchell, Jr., State Solicitor General; Stephen R. McCullough, Senior Appellate Counsel; William E. Thro, Special Counsel; Winston & Strawn; Gammon & Grange; Peterson Saylor; Semmes, Bowen & Semmes; Carr & Carr; Walsh, Collucci, Lubeley, Emerick & Walsh.

And if that's not enought, amici abound; there's even a brief co-authored by Ken Starr.

Church and state? One-of-a-kind statutes? Publicly available briefs from a all-start lineup of advocates? It's all almost too good to be true.

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Yesterday afternoon, the General Assembly unanimously elected William C. Mims to the Supreme Court of Virginia, effective April 1. The VLW Blog has the story, as does WaPo's Virginia Politics Blog. The Richmond Times-Dispatch has a blurb, and carried a short editorial about Mims a few days ago. That editorial read, in part:

Mims has earned the commonwealth's trust. He has served ably not only in the attorney general's office, but in the legislature. An individual with principles, Mims possesses a judicial temperament. We cannot think of a more fitting choice for the state's highest court.

High praise, indeed. Congratulations, Justice Mims.

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Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don't pretend to know this stuff) shows that Mims is a Republican who's served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell's Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell's term. Mims did not run for a full term as Attorney General. 

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In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

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Virginia Lawyer's Weekly reports that the U.S. Senate has unanmiously confirmed Justice Keenan for a seat on the Fourth Circuit. The Senate voted for cloture on her nomination this afternoon, then confirmed her by a 99-0 vote. Great news, and congratulations to the new Judge.

Now, about those other three vacancies . . .

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There hasn't been much news on Justice Keenan's nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia's two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.

According to the VLW Blog, Sens. Webb and Warner note that Justice Keenan has been a trailblazer for female jurists. She passed the Judiciary Committee by a unanimous voice vote in October. And, as further evidence of her bipartisan support, Webb and Warner point out that McDonnell had requested that she swear him in as governor.

That's an interesting point. There was some commentary on the interwebs to the effect that Justice Keenan was a "relative moderate" without a real track record on LGBT issues. To the author's way of thinking, she's ruled the correct way in two LGBT cases on the SCV, but only for procedural reasons.

Leaving aside the merits of that position, at least it sounds like there's general agreement that Justice Keenan calls balls and strikes. Isn't there something about "being an umpire" in her job description? Yes, I'm certain I remember reading that somewhere once.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

That's right. Thank you, Mr. Chief Justice.

All true. And to that I would add that Justice Keenan an excellent judge. It may be only marginally relevant to the political process, but she does a terrific job on the SCV and will do equally well on the Fourth Circuit. So let's get on with it.

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The Supreme Court of Virginia is in session this week. Here's the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.

Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert's website on Thursday.) Friday will be devoted to hearing writ arguments rescheduled from the most recent snowpocalypse. Those writ arguments had originally been pushed back to March 31, so this is a positive development.

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Steve Emmert reports that today's writ arguments before the Supreme Court of Virginia have been postponed. The Chief Staff Attorney's office advises that appellants are being given the choice of arguing by telephone tomorrow, waiving oral argument, or arguing in person at a later date. (As a fairly obvious practice point, it's never a good idea to waive a writ argument and I have trouble imagining a situation in which doing one by phone makes sense.)

The next writ panel is scheduled for March 31.

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On Friday, the Supreme Court of Virginia handed down 18 published opinions and two orders. As always, Steve Emmert has a witty write-up (along with a new photo on his web page--looking good, Steve). The VLW Blog also discusses some of the highlights. The bulk of January cases are either criminal appeals or habeas proceedings; I haven't done the math myself, but Emmert breaks it down to 15 criminal appeals/habeas proceedings and 5 civil matters.

As you might have noticed, I wasn't exactly on top of this breaking news--or much of anything else that happened over the past week, for that matter. Here's my excuse:

From January 8-14, I attended the the National Trial Advocacy College at the University of Virginia. It's off-topic, so I won't bore you with the details, but it was probably the best educational experience of my life. The faculty was spectacular, the exercises were demanding, and the feedback was brutally honest. Further, I got to spend a week with dozens of talented and motivated lawyers working to get better at their job. That was fun. It was also a neat reminder of how lucky we are to do what we do.

But it gets better. I capped that off with an oral argument before the Supreme Court on Friday. For obvious reasons, I can't discuss the case. But I really treasure the opportunities I get to argue before the Court. Oral argument is the reward for all of the hard work you put into briefing and preparing (although somehow, thinking of it that way doesn't make me any less nervous). Different people go to law school for different reasons. If you ask me, the coolest thing you can do with a JD is to have a conversation with the Commonwealth's highest court about what the law is (or should be), and help them get to a fair result that will justly govern future cases. It was a brilliant end to a perfect week.

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Here's the merits argument lineup for next week in the Supreme Court of Virginia. Civil cases follow after the jump.

We'll be in Richmond on Friday. Give me a shout if you will be in town and would like to grab lunch.

Criminal Cases

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Stunning news from Yorba Linda Washington, DC: appellate superstar and SCOTUSblog mastermind Tom Goldstein has issued a shocking public apology: 

It's hard not to like the guy, but I am reserving judgment until I see the text messages.

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All productive work at the Firm on the Move (TM) instantly ground to a halt today when the VLW reported the finalists in the William & Mary mascot search. The W&M website has pictures of the finalists. I'd post them, but I'm not sure about the trademark implications and I think that I'm still bound by the honor code.

Here are the finalists and our thoughts:

• The Griffin. What's that, a nod to our Quidditch team? No D&D mascots, thanks. Nerds.
• King and Queen. Wow, that's creative. We'd definitely be the first school in the Old Dominion to use Monarchs as a mascot. On the other hand, the transgender queen is a nice touch.
• The Phoenix. Crap.
• The Pug. Dogcrap.
• The Wren.  I guess this one has potential. We'd get our Tribe with Feathers after all, that late unpleasantness with the NCAA notwitshtanding. And the Wren actually has a connection to the school. (Ahem, Griffin.)  It looks like we have a winner by default--although it really is a shame that not everyone can lose.

And now back to our regularly scheduled programming.

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Obviously aware that my birthday is coming up, James Markels over at the Virginia Business Law Blog forwarded a link to FantastySCOTUS.net. Billed as the premier Supreme Court fantasy league, it's basically fantasy football, except that you win points by picking the outcomes of decisions, the split, and how the individual justices will vote. Hilarious. Josh Blackman seems to be the mastermind behind the site. Well played, sir.

Looks like Green Bag will have to step it up this year.

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On Thursday, the Supreme Court of Virginia released a batch of opinions. I know that I'm late to the party--I've been out sick--but here is a quick run down of the results:

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The VLW Blog reports that the Senate Judiciary Committee has unanimously approved Justice Keenan's nomination to the Fourth Circuit. Justice Keenan is President Obama's second nominee for one of the five open spots on that court. The National Review Online states that ranking minority member Jeff Sessions called Justice Keenan a "fine nominee." 

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The Supreme Court has posted its November argument docket. The court will hear argument in 27 cases over five days. The 27 cases include

• 16 criminal cases;
• 11 civil cases;
• 2 cases in which Roanoke lawyers (not us) represent the appellee; and
• 1 case, Shapiro v. Younkin, argued pro se on both sides. Zoinks.

I'd originally had a civil case scheduled to be argued in November, but it was bumped. Any thoughts on the cases to watch now that I have a free week?

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Sorry for the lack of substantive posts recently. I have a four-day jury trial this week.

I will return to the blogosphere as soon as possible.

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Careful readers will notice that the right side of the blog looks slightly different. That's because the geniuses at lexBlog have built in some cool new social media tools.

If you scroll down slightly, you will see Facebook and LinkedIn badges on the right side of the website. You can click on them to access my profile and friend me or add me to your network. Also handy for some light internet stalking, but I don't think that you're going to find anything too juicy on me.

The real gem is a the Twitter module just below the badges, which shows my most recent Twitter posts. You've gotta check this thing out. If you're not on Twitter, you are missing out. It's a tremendous information-sharing tool.

I was skeptical at first, too. As much as 140 characters about what THE_REAL_SHAQ ate for lunch might interest some people, it didn't seem like my cup of tea. But I sucked it up and gave it a shot, and it turns out Twitter is a tremendous way to gather and disseminate information. Look at the posts in my module. As I'm writing this, they include:

• a link to Dahlia Lithwick's hilarious write-up of the oral argument in U.S. v. Stevens;
• a note about Hollins soccer's game tonight (longtime readers know that my wife, Carrie, coaches the team);
• a link to a video of the Federalist Society's OT SCOTUS preview;
• a link to ATL's interview with Justice O'Connor; and
• a link to SCOTUSblog's preview of Salazar v. Buono.

If you're reading this blog in the first place, at least four of those are worth your time. None would merit a whole blog post.

Twitter lets me get that information out efficiently to the people who are following me. They're basically a self-selected group who share my interests. If they like the stuff I've posted, they can retweet it to their followers, and disseminate the information further. If they don't, they can ignore it. And if you're on Twitter, you get the benefit of dozens of people with similar interests culling and transmitting relevant information. What a simple but amazing tool.

I strongly encourage you to sign up for Twitter if you're not using it already. If you're on the fence, use this blog as a trial run. Check out what pops up on the Twitter module and see if it interests you.

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Justice Keenan, who has been nominated for a seat on the 4th Circuit, will appear before the Senate Judiciary Committee on Wednesday at 4:00 p.m. Our friends at The VLW Blog report that the entire nomination hearing will be webcast.

Yesterday, Virginia Lawyer's Weekly reported that eight candidates have alerted the Virginia State Bar that they would like to be considered for the vacancy that Justice Keenan's appointment to the 4th Circuit would create. They candidates interested in the potential opening are:

• Virginia Court of Appeals Judge Robert J. Humphreys;
• State Sen. John S. Edwards of Roanoke;
• Petersburg Circuit Judge Pamela S. Baskervill;
• Loudoun County Circuit Judge Thomas D. Horne;
• Alexandria Circuit Judge Lisa B. Kemler;
• Fairfax Circuit Judge Jane M. Roush;
• Stuart A. Raphael, a partner in the McLean and Washington offices of Hunton & Williams; and 
• Elwood E. Sanders Jr., an attorney with Lantagne Legal Printing in Richmond.

The VSB's judicial nominating committee recently vetted Senator Edwards and Judges Humphreys and Horne, so it will not reinterview them. It will meet with the remaining candidates on October 12.

Of course, the candidates may be in for a long wait. As an editorial in this morning's Baltimore Sun notes, President Obama nominated Judge Andre Davis for another opening on the 4th Circuit. The Senate Judiciary Committee approved Judge Davis 16-3 in June, but he is still awaiting a vote on his nomination.

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Tony Mauro at the National Law Journal reports that Justice Ginsburg was hospitalized yesterday after feeling faint in her chambers. She had just received an iron sucrose infusion to treat an iron deficiency anemia. A medical evaluation revealed that she had low blood pressure, which can occur during this treatment. Justice Ginsburg was treated at the Court, then taken to the hospital as a precaution at about 7:45 p.m.

In February, Justice Ginsburg was diagnosed with pancreatic cancer. It was treated successfully with surgery and chemo. Readers of this blog know that, while we may not always agree with Justice Ginsburg's opinions, we have enormous respect for her accomplishments. The 76-year-old justice makes Rambo look soft. We wish her a speedy recovery.

Update: Justice Ginsburg has been released from the hospital and plans to be back at work this afternoon.

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The Supreme Court of Virginia released 15 published opinions today. For the true appellate geeks/scorekeepers out there, the Court also makes available a list of counsel in cases decided.

Our friends at VLW have promised a special Supreme Court edition of their daily alert later this afternoon. We'll keep you posted.

Finally, one of the highlights of opinion day is Steve Emmert's take on the opinions, which he usually manages to crank out the same day. Keep an eye on his page.

Update: The VLW Blog has numerous write-ups of the decisions on its website; it's easire to link to their site than each individual post. As always, Mr. Emmert has done a fine (and funny) job of summarizing the opinions.

And as an unexpected bonus, the Virginia Business Law Blog has a nice discussion of our favorite decision of the bunch, Dunn Construction v. Cloney.

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The esteemed Chancellor of the College of William & Mary made her first trip to the Roanoke Valley today, picking up an honorary doctorate from Roanoke College and giving a rousing Constitution Day speech. As stately, funny, and fearless as ever, Justice O'Connor garnered four standing ovations while speaking on a holiday that, by her own admission, falls somewhere in the national conscious between Groundhog Day and Talk-Like-A-Pirate Day.

Part of Justice O'Connor's mission was to fix that. But more on that later.

The Justice started off her speech by reiterating some points that she's been making recently about the importance of an independent judiciary and the danger of elected judges. If only there were a recent SCOTUS decision to help her make that point . . . 

Justice O'Connor did get to Caperton eventually, but she set the stage by explaining that the majority of state court judges in our country are popularly elected--a concept that is foreign to much of the world, and which she characterized as unfortunate and dangerous. Justice O'Connor stressed the need for judges to be free to apply the law without prejudice, and without regard to popularity or fear of retaliation.

By way of example, she offered Loving v. Virginia, and explained that, when the Lovings were married, 96% of the white population favored anti-miscegenation statutes. That number was lower by the time the case made it to the Supreme Court, but at the time of of the decision, 72% of Southern whites still favored such laws--which, as it turns out, violate the equal protection and due process clauses of the 14th Amendment. She challenged the audience to imagine the popular pressure to uphold those laws. An elected justice who sought to overturn them would only be replaced by someone more in line with the popular consensus.

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As the Roanoke Times reported yesterday, longtime federal prosecutor Tom Bondurant will be joining our firm in October. We are very excited to start working with Tom, who has spent 30 years as a federal prosecutor, the last nine as the Criminal Chief Prosecutor in the U.S. Attorney's Office here in town. He was also involved in Operation Big Coon Dog, perhaps the most felicitously named public corruption investigation of all time. Take that, Teapot Dome!

This development is exciting for another reason: toys. The Roanoke Times has this description of some of the things one might find in Tom's office:

There's a patch-covered jacket of a slain member of the Pagans motorcycle gang, mounted in a frame and covered in glass. There's a pipe bomb, safely labeled with an "Inert" sticker but with a timer that ticks ominously when the bomb is lifted.

There's a drawing of Bondurant questioning a witness and another of his favorite bar in Abingdon. There's a cartoon of him tallying convictions.

In my office, I have a letter opener shaped like a duck and a free paperweight from Thompson Reuters. Advantage: Bondurant.

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On Monday, President Obama nominated Supreme Court of Virginia Justice Barbara Milano Keenan to fill one of the vacancies on the Fourth Circuit. The White House press release is here. Our friends at the VLW Blog have the story, as does WaPo and, by now, everybody with Google Reader.

Not much to add. It's hard to talk about Justice Keenan without using the word "trailblazer." She has served on each of the four levels of Virginia's court system (General District Court, Circuit Court, Court of Appeals, and Supreme Court). She was the first woman to sit on three of those benches; by the time she made it to the Supreme Court in 1991, Justice Keenan was just the second woman to sit on the Court. She's scary smart and, as readers of this blog know, a class act. We wish her the best of luck with her confirmation.

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As a follow-up to our earlier post, the audio from today's historic oral argument in Citizens United v. Federal Election Commission is now available on C-Span. Here's the link.

Further update: And here is the transcript, courtesy of PBS via our friends at SCOTUSblog. Dahlia Lithwick has a neat discussion of the argument at Slate.

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The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court's senior justices will likely sit in for him during his absence.

We wish the Chief a speedy recovery, and are glad to read that he is feeling better.

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Here's some exciting news: the Supreme Court will release the audio from Wednesday's argument in Citizens United v. Federal Election Commission "shortly after the conclusion of the argument." SCOTUSblog has the scoop, as well as an argument preview.

Citizens United is a major campaign-finance case with potentially serious constitution implications. You might remember it as the case about Hilary: The Movie--apparently either a feature-length documentary about Secretary Clinton's run for the presidency or the world's longest attack ad, depending on your point of view.

Here's the trailer. It works better if you say "From the producers of South Park" just before you hit play:

Did I hear "venal" in there? That's a little harsh.

Somehow along the way, Citizens United has morphed into a case about the extent to which corporations enjoy the free-speech protections that the constitution offers to individuals in the context of modern campaigns.

In addition to fine cinema and free speech issues, Citizens United offers many enticements to the appellate geek. Wednesday's argument will mark the high court debuts of Associate Justice Sonia Sotomayor and Solictor General Elena Kagan. The Court's Day Call boasts an all-star lineup for the oral argument:

• Ted Olson, arguing for 30 minutes on behalf of Citizens United;
• Floyd Abrams, arguing for 10 minutes in support of Senator Mitch McConnell, as an amicus in support of Citizens United;
• General Kagan, arguing for 30 minutes on behalf of the FEC; and
• Seth Waxman, arguing for 10 minutes on behald of Senator McCain and others as amici in support of the FEC.

 This could be one for the case books, if not the history books. We'll keep you posted.

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A little something to tide you over until the Supreme Court of Virginia hands down its next set of opinons on September 18th: on Friday, the Court unpublished orders in two cases. One, D.R. Horton, Inc. v. Zambrana, deals with prejudgment interest. The other, Higgs v. Director, Dep’t of Corrections, is a habeas case.

Credit to Steve Emmert, who has the write-up here.

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The Supreme Court of Virginia has posted its September 2009 argument docket. The Court will hear argument in 31 cases. Here's the quick break down:

• 15 criminal cases;
• 9 civil cases;
• 5 State Corporation Commission cases;
• 1 original jurisdiction case; and
• 1 Judicial Inquiry and Review Commission case.

What are the arguments to watch this September? Let me know what you think.

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