Friday, January 23, 2015

Does the "Law of the Case" apply to subject matter jurisdiction in Virginia?

One of the most widely studied series of appeals in recent legal history to come out of the courts of Virginia has been the Miller-Jenkins cases, which involved a great many issues. The cases were about two women (Janet and Lisa) and a baby. They get a custody order in Vermont. Lisa files a case in Virginia and gets a different custody order in Virginia. The case goes up on the first appeal in Virginia. The Court of Appeals ruled that by operation of the federal Parental Kidnapping Prevention Act, the Circuit Court in Virginia lacked jurisdiction to contradict the Vermont order. Lisa files for an appeal to the Virginia Supreme Court but the petition was untimely. 

Meanwhile Janet applies to the Juvenile Court to have the Vermont order registered in Virginia under the Uniform Act. Lisa appeals the registration order to Circuit Court, then to the Court of Appeals,  then to the Virginia Supreme Court. On the second round of appeals, the Court of Appeals held and the Virginia Supreme Court agreed that all the issues that Lisa argued about why the Vermont custody order should not be registered in Virginia were barred by the prior rulings of the Court of Appeals in the first appeal, which became the "law of the case."

One of the cases that was cited by the Supreme Court in Miller-Jenkins is Norfolk & W.R. Co. v. Duke, 107 Va. 764, 60 S.E. 96 (1908). The Duke case says some very interesting things related to the "law of the case" doctrine. In Duke, the appellant in the second appeal claimed that the trial court lacked subject matter jurisdiction all along. The Supreme Court held that the issue of subject matter jurisdiction had not been discussed at all in the first appeal, by remanding the case, the issue of subject matter jurisdiction had of necessity been determined as part of the prior appeal, and therefore the issue of subject matter jurisdiction could not be reconsidered on the second appeal.

That is a strangely advanced ruling for the Virginia Supreme Court in 1908. The federal courts generally recognize that the law of case applies or can apply to the issue of subject matter jurisdiction, but tthey did not always. See Bishop v. Smith, 760 F.3d 1070, 1084-85 (10th Cir. 2014); Alexander v. Jensen–Carter, 711 F.3d 905, 909 (8th Cir. 2013); Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011). When a lawyer argued to Judge Turk that a decision was too old to still be good law, he would ask when had the "Age of Enlightenment" occurred that made the judges smarter now than they were back then.

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