On Friday, Virginia appellate lawyers breathed a sigh of relief as the powers that be filled a crucial vacancy–and not a moment too soon. I think I speak for all of us when I say that we congratulate Jurgen Klinsmann on being named the 35th coach of the U.S. National Team, and look forward
According to a piece on the WSJ’s opinion page this morning, Bond v. United States may be the most important SCOTUS opinion of the year. David Rivkin and Lee Casey read Bond‘s unanimous reaffirmation of dual sovereignty as an existential threat to the Patient Protection and Affordable Care Act (or “ObamaCare,” depending on…
Apologies for the light blogging recently. I’ve been tied up with other pursuits–which, as its turns out, may inure to your benefit:
Last week, I spent some of my (increasingly limited) nonbillable time on a webinar for Virginia CLE called “Blogging 101: Legal, Practical, Ethical, and Evidentiary Issues for Lawyers and Clients.”
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.…
The VTLA’s annual convention starts this afternoon at the Homestead.
In a remarkable error of judgment, they’ve invited me to speak on a panel about statements of facts in appellate briefs.
DRI is holding its Appellate Advocacy Seminar in Orlando on March 10-11. The advance registration deadline is February 18. I’ve never been to the program (and unfortunately I won’t be able to make it this year), but I have heard excellent things about it.
The program looks like will have a good Virginia presence this…
In a slow week, SCOVA granted just one appeal (and reportedly on a petition for rehearing at that): a parol evidence/statute of frauds/estoppel case out of Williamsburg.
As a bit of a contract junkie, I’ve got to admit that I’m interested. Also, Joe Rainsbury and Steve Emmert are involved, so the issues will be presented well.
Details after the jump.…
I was flipping through my copy of Aldisert this afternoon and, as often happens, I came across a gem: in your statement of facts, narrate the facts found, not the evidence presented. As the judge explained:
I repeat for emphasis that what counts are the facts found by the factfinder. When a jury determines the