There were two published opinions, but three published decisions from the Court of Appeals. Because the decision was that the Court has jurisdiction over the rehearing en banc in Lundmark v. Commonwealth, now to be known as Lundmark v. Henrico County, it is the headline of the day. To understand why a seemingly perfunctory procedural order is not only worth publishing, but is actually the lede for this blog post requires a little background.
Lundmark was originally decided back in March with a published order dismissing the appeal. This was because the appeal was filed against the Commonwealth, but the underlying conviction was based on a local ordinance, meaning that the wrong party had been served. As I explained by in March, this is a problem that, while not new, was going to be troublesome going forward because notices of appeal in criminal cases where the Commonwealth is the appellee now go directly to the Attorney General, bypassing the Commonwealth’s Attorney. In days of yore (well, last year), when an appeal from a conviction under a local ordinance was filed, the notice would go to the local prosecutor, which in most cases was the Commonwealth’s Attorney who had an agreement with the City or County to prosecute these cases on behalf of the City or County Attorney. This usually meant that the misjoinder was “no harm, no foul” because the right party was served. I will grant that it tended to cause some confusion, but often when unnoticed, especially as the petition would most likely not be granted.
Starting in 2022, however, there were no more petitions and the appeal of right went straight to the AG’s office. The first time this happened, sort of (it was in an appeal that got “legislatively granted” on January 1, 2022), the local government somehow got wind of the problem (I am guessing a call from the AG’s office) and moved to intervene and have the appeal restyled. The Court granted the motion and all was right with the world.
The next time however, with Lundmark’s appeal, the AG instead moved to dismiss for misjoinder, and the Court granted that motion as well, but with Judge Causey dissenting. At the time, I speculated that Lundmark would be satisfied with getting his delayed appeal, but he wasn’t and sought a rehearing en banc. The Court granted that motion, but directed the parties to brief the question of jurisdiction only, not the substance of the appeal. Meanwhile, the local government got involved and agreed to waive in defect int he notice of appeal.
It was this last bit that saved the Court from what could have been a complex debate on whether it had jurisdiction in such cases. So today the Court simple acknowledges the graciousness of Henrico County, reinstates the case on the docket and orders a new round of briefing by the proper parties. Presumably the appellant’s brief will be filed forthwith after a few quick edits and the County’s brief will follow. The case will be heard, unless argument is waived or dispensed with, by a three-judge panel as the grant of the en banc was only about jurisdiction.
The first published opinion today is Catherine Tyler v. Commonwealth of Virginia and it’s all about restitution. Specifically, its about what a court can award to a victim to make them whole. Tyler was an employed by a law firm as a real estate paralegal, and was entrusted by her employer, Dygert, Wright, Hobbs & Hernandez, with management of the escrow funds in the firm’s trust account and its operating account. This turned out not to be a good idea, as Ms. Tyler diverted just shy of $650,000 of those funds to her own use. This resulted in a criminal charge against Tyler and a bar complaint against one of the principals of the firm (the latter resulted in a public reprimand by agreed disposition).
The opinion does not tell us much about how Tyler was ultimately convicted of embezzlement — whether by trial or plea — but we do know that her sentencing the firm requested restitution of the embezzled amount and approximately $125,000 of consequential damages. The latter amount was account for as follows:
office expenses totaling $922.02
malpractice and real estate insurance costs totaling $14,060.50
legal fees totaling $14,622.50
forensic accounting costs totaling $34,493.75
the Virginia State Bar sanction fee and audit costs totaling $11,216.30
anticipated future costs totaling $29,075, which included costs for VSB-required audits every six months and for the forensic accountant’s testimony
Tyler was ordered to pay restitution, less $275,000 already recovered, and the consequential damages.
Tyler appealed, challenging the award of consequential damages. Today, the Court of Appeals, Judges Russell, Ortiz and Raphael, agrees that some of the consequential damages were “too attenuated from her crime” to be recoverable through restitution. The opinion is 32 pages long as the Court had to review each separate element of the claimed expenses, and if you are really interested in those rather dry details please see the link to the slip opinion above. But let’s discuss the element of the damages that immediately struck me as . . . ahem . . . requiring a significant amount of chutzpah to ask for — the costs of the VSB Disciplinary Proceeding and the Sanction. Are you frickin’ kidding me?
I hope you will be pleased to know that the Court had much the same reaction as I, although they were much more decorous in saying so. In a nutshell, the Court said that an attorney cannot recover through restitution because the duty to supervise Tyler and oversee her management of the firms account was independent of her criminal act. “[T]he firm was independently required to maintain certain records, reconcile its client accounts, and supervise nonlawyer employees, regardless of whether Tyler was embezzling funds.” While it’s failure to do this allowed Tyler to embezzle for years, the Rules of Professional Conduct also require an attorney to assume responsibility for the actions of a nonlawyer employee who violates the rules.
The other published opinion today is a bit of a dinosaur as it involves the application of Code § 18.2-2501(F) and a “plain smell” search. As the Court recognizes in a footnote, “Code § 18.2-250.1 was repealed in its entirety and the language of subsection F was recodified at Code § 4.1-1302. This statute is largely identical to Code § 18.2-250.1(F) except that it also prohibits the issuance of search warrants based solely on marijuana odor.” This was all part of the (almost) decriminalization of marijuana (in small amounts) in 2020. For James Jesus Montgomery, that fact is of little comfort as this case involves a traffic stop in 2018. Having stopped Montgomery for driving with his high beams on, the officer observed the odor of marijuana, searched the vehicle and found a quantity of marijuana sufficient to result in a charge of possession with intent to distribute.
Now at the time, there was no (former) Code § 18.2-2501(F), but Montgomery’s case dragged on and, after the next election in 2019 with a change in control of the House and Senate, and criminal law reform, especially as to marijuana use and possession, was all the rage. By the time the legislation was adopted and became law, it seemed like a gift from Heaven (though one hesitates to liken the General Assembly to the celestial realm).
Montgomery moved to suppress the marijuana as the search was based solely on “plain smell,” which the new statutory provision prohibited. The circuit court, however, took the view that the new provision was a substantive change in the law that did not apply retroactively.
Now as the Court notes, retroactive application of the law is not favored and can be demonstrated only if 1) the legislation expressly states the law is to apply retroactively, or 2) the law effects only procedural matters — in which case the application is “retroactive” only in the sense that the new procedures are applied to cases that arose before the effective date of the law and are still pending. The first provision does not apply here as the amending act contained no express application language, but what about the second. Is a motion to suppress “merely procedural”?
Well, in this case it depends on who you ask, because Judge Humphrey, joined by Judge Chaney, say no, at least not when you are asking the court to apply a new law to the police conduct. Judge Lorish, on the other hand, says yes, at least when you consider the context of what the law was enacted to prevent, which was searches based on what may have be a lingering or obscure smell of an illicit substance. “Code § 18.2-250.1(F) is a rule affecting only procedure, remedy, and the admissibility of evidence, and therefore the majority errs by categorizing it as ‘substantive.’”
The majority is just over 13 pages and the dissent is 19. Both go extensively into the history of what how the appellate courts determine whether a change in the law is substantive or procedural in these cases, and I commend the opinion to anyone who need a precis on the subject. But for my part, especially as I expect this will not be the last word from the appellate courts on this case or this issue (and the application of the new version of the statute in Title 4.1), I would like to focus on one question only — should the statute apply retroactively to a search where the law enforcement officer could not have known that the General Assembly was going to somewhat arbitrarily decide that what has for decades been a reasonable basis for a search wasn’t anymore?
I realize this is not a “reasoned and articulated answer supported by precedent,” but once again I gotta go with “Are you frickin’ kidding me?” Look, I am a knee-jerk liberal when it comes to due process and the 4th Amendment from way back. But even I have to give pause before saying to an officer, “Hey, before you conduct a search, you might want to poll the current legislature to see if they are about to through your a curve. In fact, maybe you should try to figure out who will be in the legislature after the next election and check with them too.” Again, I know this is not a “legal” basis for finding that the new law was substantive . . . but the benefit of being a pundit is you aren’t constrained by little things like that.
Updated: Nov 22, 2022
The Court of Appeals of Virginia released two published opinions this week, both from criminal cases. In Timothy James Suhay v. Commonwealth of Virginia, we get a unanimous decision from Judge Callins, joined by Judge Friedman and “Justice” Russell — of course he was still Judge Russell at the time the case was argued, but he has since been elevated to the Supreme Court of Virginia. Suhay appealed his convictions for three counts of electronic solicitation of a minor, in violation of Code § 18.2-374.3(C). The issue on appeal was whether the circuit court erred in not granting Suhay’s motion for a deferred disposition under Code § 19.2-303.6, which permits a trial court to defer adjudication of guilt for a criminal defendant who has been diagnosed with autism spectrum disorder if the court finds by clear and convincing evidence that the defendant’s criminal conduct was caused by or had a direct and substantial relationship to the disorder. The court found that Suhay’s solicitation of a minor was not caused by, nor had a direct and substantial relationship to, his autism spectrum disorder and that any error by the circuit court in applying the procedural requirements of Code § 19.2-303.6 was harmless.
The opinion gives us the age of the victim, 11, but not Suhay’s age, but the statute under which he was convicted requires a finding that he was at least 18 at the time of the offense. In any case, there was no dispute that Suhay had made the communications or was not aware that the victim was a minor. The issue was whether his interactions with her were the result of his diagnosis on the Autism Spectrum.
At Suhay’s sentencing hearing, defense counsel called Dr. Lucy Guarnera, Ph.D., a licensed clinical psychologist who had diagnosed Suhay with Level 1 autism spectrum disorder (“ASD”) as part of a court-ordered psychological evaluation. Dr. Guarnera testified that a person with Level 1 ASD is classified as “requiring support,” that Suhay displayed the two primary symptoms of ASD, which are “persistent deficits in social communication and social interaction” and “restricted, repetitive patterns of behavior, interests, or activities,” that, because Suhay was often teased by his brothers and peers, he would spend more time with younger children who were closer to his development level, that Suhay had “trouble understanding social cues indicating levels of interest in relationships,” that Suhay’s ASD caused him to have difficulties in transitioning to living independently from his parents, that Suhay’s excessive online social media use was typical of a person with ASD, that Suhay’s interactions with S.H. were indicative of his ASD because he immediately thought of her as his girlfriend and “considered their relationship to be more serious and more meaningful than it really was,” and that Suhay’s ASD could have caused him to be unaware of S.H.’s age because “things that would be completely obvious to another person, that could impact on the victim’s age . . . may not be obvious to someone with an autism spectrum disorder like Mr. Suhay.”
Dr. Guarmera conceded on cross-examination that Level 1 ASD is the mildest form of autism. Suhay had not been previously diagnoses with an ASD or received any mental health care for any of his ASD symptoms until after his current criminal charges. She had stated in her written psychological evaluation of Suhay that “[p]articularly given the weight of the current evidence, that Mr. Suhay was aware of S.H.’s young age early in their interactions.”
The circuit court denied Suhay’s motion for a deferred disposition, stating: “After reviewing the file in its entirety, I do not believe that the underlying mental health issue was the cause or established the direct or substantial relationship between the Autism and the actions.” The court further stated: “I am also taking into consideration the positions of both the Commonwealth and the victim, as the statute requires.” The court sentenced Suhay to ten years active time.
On appeal, Suhay contended both that the circuit court erred in concluding that his criminal offenses were not substantially related to his autism and further that the court erred in giving consideration to the views of the Commonwealth and the victim on deferral “prematurely” because such consideration did not apply until the court first determined that there was a relationship between the defendant’s disability and the offense.
The Court of Appeals noted that this statute has not previously been reviewed by an appellate court and, thus, began its analysis of the case by construing the statute. In so doing, the Court agreed with Suhay that the circuit court erred because the statute plainly requires a court to take into consideration the views of the Commonwealth and the victim only if the court first determines that a relationship exists between the defendant’s disability and the offense. However, such error was harmless here, because the Court concluded that the evidence did not find that there was such a relationship by clear and convincing evidence, and the record did not support a conclusion that the court’s decision on this issue was influenced by it’s consideration of the improper evidence.
Samuel Ellis, Jr. v. Commonwealth of Virginia is a 2-1 decision, Judge AtLee joined by Judge Beales in the majority, and Judge Chaney dissenting. Ellis does not contest that he was driving on a suspended license, which was the offense of which he was convicted, but rather that he was never properly charged with that offense because the summons which he was issued “was void and could not be amended.” That summons was issued by a Newport News “law enforcement officer,” who the Court chose not to name, and charged Ellis with “Driving Suspended DUI Related” in violation of “[Virginia Code §] 18.2-272 ([Newport News Ordinance §] 26-8).” On the summons, the officer checked the “city” box, indicating Ellis was charged with a city offense.
The Newport News General District Court convicted Ellis of driving on a suspended license, DUI related. The general district court imposed a $500 fine, with $250 suspended, and it sentenced him to 365 days in jail, with 345 days suspended for a period of one year. As is customary, the general district court’s conviction order was written on the left and bottom portions of the summons. Naturally, we do not know what the evidence was in the General District Court, as it is a court not of record. Ellis appealed his conviction de novo to the Circuit Court of the City of Newport News.
Ellis entered into a written plea agreement. The plea agreement stated that Ellis was charged with “one count of Driving under Suspension: Failure to Maintain Insurance, a Misdemeanor, in violation of § 46.2-302 of the Code of Virginia.” Under the agreement, Ellis pleaded guilty to the charge, and the Commonwealth agreed that the proper disposition was 180 days of confinement with all 180 days suspended for one year, conditioned on Ellis’s good behavior and payment of court costs. This was a better deal than Ellis got in the district court, which fined him $500 and sentenced him to 365 days in jail with 20 to serve (10 with good time credit). In accepting the plea, the circuit court’s order reflected that Ellis had initially been charged with driving on a suspended license, DUI related, and that he was pleading “[g]uilty to [an a]mended [c]harge” under Code § 46.2-302, for driving on a suspended license, insurance related.
Now things get interesting. Normally a guilty plea cannot be appealed except on very narrow grounds. Additionally, Rule 1:1 bars a circuit court from taking any action, other than to superintend its enforcement, on a judgment more than 21 days after its entry. And Ellis did not do anything for 25 days. However, what he did on that 25th day was to file a motion asserting that the whole process on the summons was void ab initio — a claim that can be asserted any time (as opposed to an assertion that a judgment is merely voidable).
So, why did Ellis think the summons was and always had been void? Well, he said, the summons charged him with a violation of the city ordinance for driving suspended/DUI, but the specific ordinance doesn’t incorporate Title 18.2 of the Virginia Code, Only Title 46.2, meaning that charging Ellis with a violation of a criminal statute under the ordinance was an ultra vires act by the local government under the Dillon Rule. If the ordinance was of no effect, so to would a summons based on the ordenance. Q.E.D. Ah, I hear you say, but Ellis was convicted of violating the ordinance because the summons was amended to charge the state offense of Code § 46.2-302! No, replied Ellis (anticipating the objection), because you cannot amend a void summons to may it valid.
The circuit court didn’t buy it, and neither did the majority of the Court of Appeals panel. The majority first notes that the concept of a process being “void ab initio” applies to actions by a court, not actions of a litigant. So an improperly drafted summons, while is may be defective or based on a defective legislative action, is not “void ab initio.” Thus, the question is whether the defect in this warrant was such that the judgment rendered on a proceeding under the warrant was void ab initio. Where the defect in the charging instrument is not raised until after the judgment is rendered, it must be show that the defect in the instrument “so defective as to be in violation of the Constitution,” that is, it must offend procedural due process. To avoid constitutional defectiveness, a charging document must give an accused “notice of the nature and character of the accusations against him so that he can prepare an adequate defense.”
The majority finds that the defect in the warrant was simply a misstatement of the proper incorporating ordinance. It turns out that Title 18.2 is incorporated in the Newport News Ordinances, just not by § 26-8. The correct ordinance is § 26-72, which the unnamed officer should have written on the warrant. In any case, the Court finds that the error in question did not deprive Ellis of notice of the nature and character of the accusations against him.”
Judge Chaney dissents, but not because she agrees with Ellis about the summons being void in the circuit court. Rather, in Judge Chaney’s view, the problem is that the district court never acquired jurisdiction over the case because the warrant failed to charge Ellis with a violation of a city ordinance. In her view, Judge Chaney does not consider whether the summons was so defective as to deprive Ellis of proper notice, but rather it simply failed to charge him with any crime. Likewise, she doesn’t think that this is somehow cured by the de novo appeal to the circuit court where the amendment to the state offense occured.
The principal disagreement between the majority and the dissent is over the application of Amin v. Cnty. of Henrico, 63 Va. App. 203, 209 (2014). This case. Amin stands for the principle that a local ordinance is ultra vires if it fails to incorporate the concurrent provision of the state code, thus a summons charging a local offense does not charge any offense. The majority distinguish Amin on the ground that in that case there was no other local ordinance that would have incorporated the offense, whereas here the officer merely “misrecited” the ordinance. But Judge Chaney is not going to let Officer Unnamed off so easy. The summons failed to charge a violation of the local ordinance, therefore there was no charge over which the district court could exercise its jurisdiction and, thus, no valid judgment from which an appeal de novo could arise.
I am going to say that this case is likely destined for further review, either en banc or in the Supreme Court. I say this because I find myself in sympathy with both views expressed by the Court. On balance, I don’t like sloppy police work, but I also don’t like defendants who enter into plea agreements then “suddenly” discover that there’s a problem with the procedure that preceded the agreement. I am going to assume that Ellis counsel simply had an epiphany on the 24th day after the judgment was entered and not that this was a calculated effort to avoid the Commonwealth seeking to reopen the case within the 21-day-rule. But one has to wonder just how it came about that the defect in the summons went unnoticed until then. It’s unlikely that it was noted in preparation for an appeal, because, as indicated above, appeals from guilty pleas are extremely narrow and limited.
Updated: Oct 19, 2022
This is a long post which, as a true pedant, I naturally started with some history that is mostly irrelevant to the story (but darn interesting from my point of view) and ends with some grammatical trivia. If you want the short version, skip the next five paragraphs.
In the earliest days of the Republic, the United States Supreme Court had no regular meeting place. Initially, the Court met in the Merchants Exchange Building in New York City. When the National Capital moved to Philadelphia in 1790, the Court moved with it, establishing Chambers first in the State House (Independence Hall) and later in the City Hall. When the seat of government moved to the nascent city of Washington on the Potomac in 1800, no provision had been made for a Supreme Court Building, so Congress lent the Court space in the new Capitol Building. The Court was to change its meeting place a half dozen times within the Capitol, meeting in various rooms from February 1810 to December 1860. During the early years when construction displaced the Justices, they had to meet in nearby homes or taverns.
Regardless of where the Court was “sitting,” at least until a purpose built space, albeit one in the windowless and cramped basement of the Capitol building, was made available, the Court quite literally “sat” around the room. There was no “bench,” though often the judges and attorneys would share a long table or sit at three separate tables. When in private homes and especially in taverns, the court and counsel would be served refreshments — including spirits, and smoking was commonplace. There were also no timers or formal division of the argument of the parties into “appellant and appellee” per se and even when there was some order, it often included “surrebbutal, in multiple rounds. Often, there would by attorneys who were not involved in the case being discussed, but who would join in, even being allowed to pose questions to the counsel. In short, it was a discussion of the law among colleagues. The scene was often compared to a lively conversation in a gentleman’s club (referring to the fashionable kind that flourished in Georgian and Victorian England, not the modern usage of that term) or a meeting of a debating society. The discussion, rather than argument, of the cases could run for hours before the Justices would retire to a private room to reach a decision. The justices did not typically wear robes during these sessions (some judges eschewed robes as holdovers from the royal courts, while others just found them uncomfortable in the often close, hot confines of the “chamber”).
Over time, of course, the increased docket and expansion of the federal court system required that a more formal process for hearing cases should be adopted and the now familiar setting of the Justices elevated and sitting behind an austere bench and counsel seated at tables set on either side of a rostrum* was well-established by the 1935 when the Court was finally given its own edifice. Likewise, the regimentation of the presentation of argument — appellant, appellee, appellant’s rebuttal — and the strict adherence to time limits had become standard. Identical processes had long been the norm in the state courts of appeal.
The result has not always been desirous. The separation of the Court behind the bench and above the advocates tends to give an intimidating air to the proceedings from counsel’s view. Similarly, it is easy for the jurists to lapse in to a quiescence of being passive observers, much as trial judges will do when hearing argument. What was once a discussion of the law and the merits of the case, can be reduced to a mere recitation of the arguments already detailed in the briefs. For some jurists, notably Justice Clarence Thomas, oral argument has little if any utility, and is viewed as a distraction. When counsel face a “cold bench” it’s difficult not to draw the same conclusion
While I would not contend that the appellate court’s should return to holding forth at a Buffalo Wild Wings, there are times when oral argument has a spark of the old “discussion of the law” that we could wish all arguments to be. Thursday, July 14 (Bastille Day, as it happens, which seems fitting) was such a day.
The Court of Appeals was sitting in Lexington and your humble correspondent was scheduled to appear in the matters (for there were two cases combined for appeal) of Stanley v. Commonwealth. Opposite at the appellee’s table was Assistant Solicitor General Graham Bryant. The panel was Judge Chaney, Judge Callins and Sr. Judge Petty. The Court will post the recording of the argument that ensued shortly after 9:30 AM some time in the coming days and I will post a link here — because I really do think it is worth a listen. The argument was set for 30 minutes, 15 minutes per side, and I had anticipated (as, frankly, I always do) that I would not need my full 15. I advised the Court that I would, however, try to reserve 3 of those minutes for rebuttal if I did require the other 12. I then prepared to launch into my introduction — “Your honors were are here about jurisdiction . . .”
But I didn’t get the first word out, as Judge Petty asked, and I will paraphrase, “Are you even supposed to be here?” Now to be fair, I had anticipated this question back when the appeal was filed, and had even briefed it in my petition. This was back in 2021 when criminal appeals have to proceed by petition to the Court of Appeals, but then the new regime kicked in and I had received notice that the appeal had been bumped up to an appeal of right. As a result, I made the assumption that the Court was treating all appeals as if filed after 2021.
And now we need some background: Stanley arises from a criminal case, but it is not an appeal from a conviction. Rather, Stanley was trying to quash a subpoena issued against two of Stanley’s social media accounts as part of an investigation of someone else’s suspected criminal activity. To be clear, Stanley was not the focus of the investigation and was never going to be charged with a crime, therefore he wouldn’t have the option of seeking to suppress the evidence obtained by the warrant following an indictment, nor would anyone having been charged have standing to object to the search of Stanley’s accounts. The circuit court ruled that there was no remedy available under the law for Stanley to quash the subpoena’s if the social media providers chose to comply, and thus ruled that the court did not have jurisdiction.
Judge Petty’s question addressed the fact that, prior to 2022, the Court of Appeals’ jurisdiction in criminal matters was limited to final judgment and certain, very specific per-conviction circumstances, and this was not one of them assuming that this was even a criminal case. While the case had been docketed by the circuit court as criminal, it had been filed as an In Rem action, which typically, though not always, is a civil matter, which prior to 2022 would have fallen under the jurisdiction of the Supreme Court of Virginia for appeals.
Returning to the argument: I did my best to answer Judge Petty’s question by conceding that I honestly did not know whether the Court of Appeals was the proper forum — and that I probably erred in not briefing that issue when the appeal had been “granted” by statutory fiat. The Commonwealth would later agree in its argument that, apart from a footnote in its brief, it had not addressed this threshold issue.
As the argument progressed, all three judges had very pertinent and prescient questions — showing that they had clearly thought about the underlying issues of jurisdiction, both for the appellate courts and the problem of determining what the “jurisdiction” of a case is when a court determines that is has no jurisdiction to hear the matter. As both appellate courts in the Commonwealth have observed, “Jurisdiction is a word of many — too many meanings.” Now I will concede that this type of discussion, which amounts to the juridical equivalent of how many angels can dance on the head of a pin (BTW, Peppermint Patty has the only correct answer to that question), probably strikes terror into the hearts of most counsel (and probably a few judges).
However, for members of the Procedural Geeks Club such as myself (and, I suspect Graham Bryant and most other former appellate law clerks), this is like catnip to Felis domesticus. For the judges, I rather suspect that it was more like they were the cat, and counsel were the birdies that they were toying with before going in for the kill — and I mean that in the most complimentary way. In fact, during one exchange between the Commonwealth and Judge Petty there were echos of the late Justice Christian Compton when after asking a question, the judge listened to Graham’s thoughtful response and then said, “So the answer to my questions was ‘No’?”
I not only used all my time at the outset, but the court graciously “allowed” (or rather insisted on) me to continue answering questions for several minutes longer. While Graham did his best to stay within his time (through the Court had advised that it would extend his time as well), he too was well into the “red” time when he stepped back. Toward the end of the Commonwealth’s argument, Judge Petty asked a question to Graham which was particularly relevant, “Why are you here?” The point the judge was making is that the Office of the Solicitor General is not typically the division within the AG’s Office to respond to a criminal appeal — and at least for the purposes of the manner in which this appeal was filed, this was a criminal appeal.The Court was then every more gracious in allowing me time for rebuttal. The total argument was close to an hour when all was said and done and the Court not only thanked counsel for their time, but also for bringing “a very interesting issue” before them.
Now we wait to see what the Court will do with this case. If I had to guess, I think the Court will determine that it is not the proper forum and will transfer the case to the opposite side of Franklin Street. If so, that means we go back to the petition stage in that Court. When Graham agreed with me during his argument that transfer would be proper (though like me he also argued that judicial efficiency might be promoted by having the Court of Appeals retain jurisdiction), Judge Petty had a repost — “That might result in the fastest remand in history,” the unspoken thought behind that statement being, “The Supremes probably don’t want to deal with this mishegoss either!”
This was oral argument as it was meant to be. A discussion between jurists and counsel on a novel issue of law. It was also great fun.
*Fun Fact: After many years of trying to correct the vocabulary of the English-speaking world, grammarians have finally conceded that a “podium” can have as an alternative meaning “a rostrum or lectern.” The confusion started back in the Middle Ages when people though you need very specific words for things based on their use, rather than their appearance. The original meaning of podium, and the one still given first in most definitions, is that the podium is single level platform from which a person makes an oral declaration, either speaking extemporaneously or reading from a prepared text. If reading from a prepared text, that text may be held in the hands or placed on a “lectern”, which is a stand with an angled top and a small lip to hold the sheets of paper or book that as the prepared text. If the speaker is not using a prepared text, but the “lectern” is there (perhaps for the speaker to grip or pound upon), it is more properly called a “rostrum.” To make matters more complicated, “rostrum” has as a secondary meaning the original meeting of “podium,” that is a raised platform for a speaker. Additionally, a lectern or rostrum can be placed directly on the ground level (i.e. without a podium). In a church, the lectern is traditionally placed on the first level of a dais (originally pronounced “days” but now for typically “day-us”), while the second level is reserved for the celebrant’s and acolytes’ chairs. Sometime, especially in cathedrals, the dais is three levels, with the celebrant’s chair (the “cathedra”) at the uppermost level and the acolytes’ at the interim level. Meanwhile, opposite the lectern, and frequently elevated above the highest level of the dais, is the “pulpit,” which may have a rostrum (not a lectern, because preachers are supposed to be inspired by the Holy Spirit).