The Supreme Court of Virginia granted 8 appeals over the past week. Highlights include:

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

  1. 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.
  2. 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).
  3. 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.
  4. 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

  1. 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.
  2. 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.
  3. 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

  1. 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”)
  2. 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 . . .Continue Reading Appeals Granted