Congratulations to our new Chief Justice Donald Lemons and to the jurists recently elected to Virginia’s appellate courts–SCV Justice-elect Arthur Kelsey and CAV Judges-elect Richard Atlee, Mary Grace O’Brien, and Wesley Russell. All begin their terms on February 1. (And no, I have
Delegate Calls for Study of CAV’s Jurisdiction
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…
Bad News for Charles E. Friend, Good News for Virginia
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…
Fourth Circuit to Hear Appeals in “Obamacare” Cases
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…
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.…
Former Chief Justice Hassell Passes Away
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
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
- Daniel W. Hall (Office of the Public Defender) for appellant.
- Cheryl J. Wilson (Office of the Commonwealth’s Attorney) for appellee.
Assignments of Error
- 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.
- 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.
- 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.
- 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
- 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
- The Court of Appeals erroneously disregarded the trial court’s interpretation of the agreement.
- The Court of Appeals erroneously affirmed the trial court’s equitable distribution of the Arlington condominium.
- The Court of Appeals erroneously affirmed the trial court’s refusal to equitably distribute the wife’s deferred compensation earned entirely during the marriage.
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 uniona 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
- Elliott B. Bender (Elliott B. Bender, PLLC) for appellant.
- Robert H. Anderson, III (Office of the Attorney General) for appellee.
Assignments of Error
- 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.
- 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).
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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
- 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”)
- 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 . . .…
Roanoke Times Recognizes Justice Koontz
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
Appellate Star Greg Coleman Dies in Plane Crash
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…