Justice Mims stole the show at this year’s VTLA convention, sharing his reflections on his first year on SCOVA a year to the day after he was sworn in.
For some reason, most speakers at the convention chose to focus on the unpleasant, pre-appeal formalities–all that stuff that happens in the trial court with the evidence, the witnesses, the shouting, and the jurors. Not Justice Mims. The Great Concurrer provided some welcome perspective, along with a needed dose of nerdiana, including:
- Thoughts on the Court’s proper role; with regard to statutory interpretation, this includes a notably robust conception of legislative intent;
- Practice pointers for appellate advocates; and
- Musing on the Court’s place in history.
Changes are Afoot
Justice Mims started his talk by noting that SCOVA is in the midst of a historic period of change in its makeup, if not its jurisprudence. In the past few months, the Court lost its first African-American Chief Justice, and welcomed its first female Chief Justice. A bit of context here: of the Court’s 100 members (Mims is number 100), the first 90 were white males.
The Court will add two members this year, to fill the seats vacated by Justice Hassell and Justice Koontz. By the time those seats are filled, of the the Court’s seven members, only Chief Justice Kinser and Justice Lemons will have served for any appreciable length of time.
The Proper Role of the Court
After setting the table with that bit of history, Justice Mims discussed the proper role of the Court. He identified three functions: error correction, statutory interpretation, and law development.
Justice Mims indicated that error correction comprises the bulk of the Court’s work; if I heard him correctly, he characterized it as conceptually “boring.”
But he had some interesting things to say about the Court’s second function, statutory interpretation.
Justice Mims is the only former legislator on the Court. In his opinion, the goal of statutory interpretation is to effect legislative intent. Virginia courts are somewhat handicapped in this exercise, because Virginia does not maintain formal legislative history.
When the language of a statute and the intent behind it conflict, the Court should interpret the statute in a way that avoids an absurd result; in effect, it must give the legislature the benefit of the doubt.
This strikes me as a relatively big deal, given the Court’s adherence in recent years to the plain meaning rule. Evans, in particular, seems significant. Justice Lemons wrote the majority opinion. Then-Justice Kinser dissented, and Justice Mims concurred with a short opinion reminding the Court not to miss the forest for the trees. This may be one area in which he has immediately shifted the course of the Court’s jurisprudence.
The Court’s third role is law development. I’m sure that Justice Mims said something interesting about this, but I didn’t take any notes.
Moving on, Justice Mims shared some practical advice for lawyers appearing before the Court:
- Preservation of Error. Justice Mims stressed that, with regard to preservation of error, precision is essential. He noted that, on more than one occasion in his year on the Court, he was unable to reach an issue he wanted to address because of the appellant’s failure to preserve it. His advice, borrowed from his days as a staffer on Capitol Hill: “When in danger, when in doubt, run in circles, scream and shout.”
- Rehearing. Justice Mims stated that, when you honestly believe that you have an appealable issue and your writ is denied, there is nothing wrong with petitioning for rehearing. This gets your argument before all seven justices, any one of whom can grant your writ.
- Briefs v. Oral Argument. Briefs are more important than oral argument; the first impression is a lasting one.
- Oral Argument. Fifteen minutes is not a long time. Thus, oral argument generally can’t rescue a case that was not made in the briefs. That said, Justice Mims allowed that “minds can be changed” at oral argument. He also urged counsel to learn to recognize the difference between friendly and unfriendly questions, noting that it is the duty of a judge to make it disagreeable for counsel to speak nonsense.
Finally, it looks like Steve Emmert also took note of Justice Mims’ musings.