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Good stuff out of the Fourth Circuit this week–the Court published an opinion addressing two delightfully nerdy topics, Rule 59 motions and the mandate rule, JTH Tax, Inc. v. Aime. 

Full disclosure: Before reading this opinion, I did not know that the mandate rule was a thing.

I mean, I could have derived it–it seems like a bad idea to ask a lower court to overrule a higher court’s opinion earlier in the exact same case?–but I didn’t know there was actually a rule saying that you can’t do that. Now I do. So I am literally a better lawyer than I was when I started the opinion. Read on if you are dumb like me and could use a powerup.
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Continue Reading CA4 on Mandate Rule and Rule 59

SCOVA recently granted an appeal in Norton v. Board of Supervisors of Fairfax County, Record No. 201028. Here are the assignments of error:

1. The trial court erred in dismissing Count VIII of the Second Amended Complaint because the Airbnb Hosts produced probative evidence that the Board’s adoption of the STL Zoning Ordinance was unreasonable, arbitrary and capricious where the Board failed to give reasonable consideration for the existing use of property as required by Virginia Code § 15.2-2284 and where the Board offered no evidence (and there was no evidence) of reasonableness to make the issue fairly debatable.

2. The trial court erred in dismissing Counts IV and V of the Second Amended Complaint because the Board’s STL Zoning Ordinance is unconstitutionally vague and violates the Airbnb Hosts’ procedural and substantive due process rights under the Due Process Clause of the United States Constitution, as incorporated by the Fourteenth Amendment, by allowing short-term residential occupancy as a by-right use without a permit but also characterizing short-term residential occupancy as an accessory use subject to mandatory permitting requirements.

3. The trial court erred in dismissing Count III of the Second Amended Complaint because the Board’s adoption of the Transient Occupancy Tax Amendment violates Dillon’s Rule because Virginia Code § 58.1-3819 does not authorize the Board to tax the short-term residential occupancy of a dwelling.

Why is this interesting? Three reasons (none of which have anything to do with Airbnb).…
Continue Reading Appeals Granted: Norton v. Board of Supervisors of Fairfax County

The brief in opposition is one of the great underappreciated joys of Virginia appellate practice. It comes at the writ stage, when we’re just trying to convince the Supreme Court that it should/should not grant a petition for appeal. We’re not necessarily arguing the merits. Sometimes, the petitioner will not yet have hired specialist appellate counsel. Even when they do, some nominal appellate lawyers fail to appreciate this distinction.
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Continue Reading Dead Man Walking

Fewer?

Here’s one of the philosophical disagreements that make my life interesting: Is it better to include more assignments of error in a petition for appeal, or fewer?

Obviously, there’s no one-size-fits-all answer. I bet that there are some cases out there that warrant nine assignments of error. And there are…

You may have heard that William and Mary Law School did this thing where they sent a professor into a room with six justices from the Supreme Court of Virginia, asked them questions, taped the conversation, and put the video on the web. I fail to see why this is a big deal. I routinely…

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Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule.

The rule is straightforward:

No ruling of the trial court, disciplinary board, or commission before which the
case was initially heard will be considered as a basis

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