Wednesday, July 28, 2021

On the upcoming retirement of Justice Mims

I learned today from Steve Emmert by way of Paul Fletcher that Justice William Mims has announced his plans to retire from the Supreme Court of Virginia in a few months.

Justice Mims laughed out loud at my foolishness the last time I was before the Court. Years ago, we sat at the same table for a VBA banquet, and I spoke with him a little bit. My favorite story about him is one I read in Lawyers Weekly, in which he supposedly said that he stopped writing lengthy concurring opinions after someone in his family pointed out to him that there has never been an appellate jurist known as 'the Great Concurrer."

Friday, June 25, 2021

The judging tree

Earlier this week I appeared before Judge Fred Rowlett who was sworn in two years ago, joining Circuit Judge Randy Lowe, Juvenile Judge Florence Powell, Bankruptcy Judge Trish Brown, ALJ Linda Howell, Magistrate Judge Cynthia Eddy, Circuit Judge John Kilgore, and Supreme Court Justice Cynthia Kinser, among those who clerked for him and became judges themselves. The last of our law clerk reunions with him was eleven years ago this week, which was the only time Jill got to meet him.

Thursday, June 17, 2021

On the passing of Brenda Dillard

Years ago my friend Howard McElroy got me on the Board of The Virginia Bar Association.

I went to all the meetings from 2006-2010, and stopped by many of them in the years 2010-2016, and every one of those I hung out for at least a bit with Brenda Dillard, who organized the meetings, but she always made time for me.

In the last few years I kept up with her by message and text, and a couple of years ago she told me about her illness, and I was afraid every time that I heard from her would be the last time, and so if nothing else she knew how much I have enjoyed being her friend, because I told her.

Rest in peace, Brenda.

Thursday, July 09, 2020

Appellate arguments that are not waived by the appeal waiver in a plea agreement

In U.S. v. Romero, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Agee, and Diaz ruled that the appellant's three arguments raised on appeal were each of them within exceptions to the general rule that appeal waivers are enforceable, but the arguments were not established by the record or premature.

Tuesday, July 07, 2020

On being the test cow as a district court judge

In U.S. v. Perry, the Fourth Circuit in an opinion by Judge Diaz for a panel including Judge Richardson and District Judge Johnston from West Virginia affirmed the sentence imposed by the district court, where the district court judge described himself as the "test cow" on the issue of whether a certain offense under North Carolina state law was a crime of violence.

When Judge Wilkinson argues for reversal by the Supreme Court

In U.S. v. Gary, Judge Wilkinson joined by Judges Niemeyer, Agee, Quattlebaum, and Rushing, wrote at considerable length explaining why the United States Supreme Court should reject the analysis of the panel decision in the case.

The decision for the panel was written by Judge Gregory, joined by Judges Thacker and Floyd, about the holding of the Supreme Court in Rehaif v. U.S.

The issue is the characterization of the error as "structural" such that it subjects prior convictions to collateral attack, which Judge Wilkinson described as a tremendous cost to the government.

Saturday, May 16, 2020

On tortious interference with parental rights in the context of custody litigation

With interest I listened to the arguments and read the opinion in Padula-Wilson v. Landry. In an opinion by Justice McCullough, the Court affirmed the dismissal of Ms. Wilson's claims of tortious interference with parental rights against the various professionals who got sucked into her custody litigation. She sued her children's guardian ad litem and the various therapists and counselors who gave opinions about her and her children for $16 million on various theories, but only the tortious interference claim and one of the defamation claims went to the Supreme Court.

In the Circuit Court, the judge sustained the Defendants' demurrers to the tortious interference claim, concluding that "extending the tort to cases like this one would open the door to every parent on the losing side of a custody or visitation case to sue the prevailing parent's witnesses, alleging that their testimony was false."

The Supreme Court affirmed, distinguishing its prior decision in Wyatt v. McDermott, which was a 4-3 decision, dealing with an adoption obtained through fraud. In Wyatt, the majority opinion concluded that "rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship."  The dissenting opinion by Justice McClanahan in Wyatt pointed out that there was rather a great deal of substantive and procedural protection afforded by Virginia law in the context of adoption cases.

In Padula-Wilson, Justice McCullough cited many of those same statutes in concluding that the universe of legal protections related to custody litigation precluded the application of the tortious interference cause of action in the context of custody and visitation determinations, in which as with adoptions the injuries are based on the effects of court orders.

The Supreme Court did not say so, but it seems to me that the Circuit Court was correct, as a matter of economics and risk management professionals like the Defendants in this case would be deterred from providing services in connection with high-conflict litigation if their participation was likely to result in multi-million dollar liability claims against them brought by the losing side.

Thursday, April 23, 2020

On being "made"

I listened with interest to the arguments in Vest v. Mountain Valley Pipeline.

The statute at issue is a mess: "C. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter."

Presumably, what was intended was a parallel to this: "B. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection."

So, in C., the legislature wrote "mailing of the notice of intent to enter" when they almost certainly intended "date of the intended entry," just as they intended "date of the proposed inspection" in the preceding paragraph. 
But, why would "made" mean the same thing as "sent" in a sentence where both are used? 

Randomly, the Supreme Court of the United States has taken up the meaning of "shall be made," in a recent decision:

What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made means “shall be produced,” etc.
Babb v. Wilkie, No. 18-882, 2020 WL 1668281, at *5 (U.S. Apr. 6, 2020).

Perhaps in this sense a written notice could be "made" by having been "brought into existence" or "produced" not less than 15 days before mailing, but that would be silly. In my experience that only happens when I put the mail in my car and forget that it is there and drive around with it for a while.