The Supreme Court of Virginia’s recent treatment of assignments of error has been inconsistent, and that makes life difficult for appellants and appellees alike.

Background: Supreme Court’s Crackdown on Assignments of Error Alarms Appellate Practitioners

For the past year or so, the Supreme Court of Virginia has been getting increasingly demanding in its treatement to assignments of error. Steve Emmert contributed an excellent essay on this topic last summer. He pointed out a few specific instances in which the Court had found assignments of error lacking:

  • At oral argument on June 4, 2008, the Chief Justice interrupted an AAG and asked her how her assignment of error was sufficient. The assignment read, essentially, “The trial court erred in excluding the expert testimony of [the Commonwealth’s expert].”
  • On June 10, 2008, the Court entered an order dismissing an appeal for an insufficient assignment of error in a legal malpractice case. The assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.”

This was troubling. Virginia case law has long required an appellant “lay his finger” on an error by pointing out the exact legal ruling he was challenging. That was the standard, and these lawyers seemed to have their fingers in the right place.

Worse, the second assignment of error was almost identical to one granted in 2006, which read: “The trial court erred in granting the defendant’s motion for summary judgment.”

Emmert notes that the news alarmed–even stunned–experienced appellate practitioners, himself included. He determined that the best advice for appellants, which he attributed to an unnamed justice, was to include the word “because” in your assignments of error.

Emmert’s observations match our experience here at the Firm on the Move (TM). For example, we represented the appellees in a recent case where one of the assignments of error cited an evidentiary issue, then stated that the trial court had erred by overruling the appellants’ motion on that “and other grounds.” The Supreme Court reached the merits of the evidentiary issue, but ruled as to the other grounds that it would not address such a general and unspecific assertion of error.”

Continue Reading What’s an Appellant (or Appellee) to Do? Supreme Confusion Over Assignments of Error

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.

The Fourth Circuit hands down a new First Amendment decision today in Snyder v. Phelps. 

Snyder is an important case for more than purely doctrinal reasons. It involves the  Westboro Baptist Church, a group noted their quaint habit of proselytizing at funerals. The Church sports a website whose address is literally so offensive that I can’t spell it out here, what with this being a family blog. Charming folks, and they seem to have caught the public’s attention. As a result of their activities, about 40 states and the federal government have adopted legislation addressing the picketing of funerals.

Facts

The facts of the case are pretty staggering. Westboro Baptist Church protested the funeral of Matthew Snyder, an enlisted Marine who died in the line of duty in Iraq. The Church showed up at his funeral (at a Catholic church) bearing signs saying things like “Pope in hell, “Thank God for IEDs,” and “Thank God for Dead Soldiers.” The Church also saw fit to post on its website an “epic,” a written piece further trumpeting its, err, message.

Snyder’s father sued, alleging five state-law tort claims: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury found the defendants liable for $2.9 million in compensatory damages and a boatload of punitives, which were remitted to $2.1 million. The defendants appealed.

Continue Reading Snyder v. Phelps: New First Amendment Opinion from the Fourth Circuit

In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a “probable subtotal colectomy”–yes, it’s as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell’s surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and “the bowel contents came out” through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.

Continue Reading Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion

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.

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.

Continue Reading “I Never Aspired To Be on the Court”: Justice O’Connor Speaks at Roanoke College

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.

 

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.

 

The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.

Facts

In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed–only to be reopened later, as the result of a separate rape allegation involving Carroll’s sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth’s evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him.

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: “I understand that the judge will not enforce any agreement not written down here.” The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll’s plea and continued the case for 5 years. One of the conditions of the trial court’s order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll’s probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.

Continue Reading New Court of Appeals Opinion on Questions Presented