Withdrawal of appeals, revisited

I listened with interest to the oral argument in the case of Spear v. Omary.

The statutes authorizing the withdrawal of appeals from the juvenile court are new and untried, and they are the work product of the Boyd-Graves conference.

Section 16.1-106.1(F) lists some things that might or might not happen "[u]pon the withdrawal of an appeal from a juvenile and domestic relations district court."

One is this: "the circuit court shall, upon request of a party who did not appeal the judgment or order, determine whether, as a result of the appeal, a party has a right to additional relief in the circuit court which has accrued since the appeal was noted."

A second one is this: "the circuit court shall also order its clerk to disburse any cash bond ...."

A third one is this: "the circuit court shall enter such order as may be appropriate to conclude all matters arising out of the petition or motion filed in the juvenile and domestic relations district court and the appeal in circuit court."

Finally is this: "Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297."

The Court is wrestling with the fourth thing, what happens if the circuit court's order on the withdrawal of the appeal says nothing about a remand. Item No. 4 seems to be materially different from Nos. 1 ("the circuit court shall, upon request"), 2 ("the circuit court shall"), and 3 ("the circuit court shall"), as opposed to No. 4.

Justice Kelsey seems to think the drafters left some words out if their intent was to create a remand by operation of law in the absence of express language in the circuit court's order. Justice McCullough might have been leaning the other way, that a construction that requires an express remand makes much of No. 4 meaningless.

The justices asked some questions about what happens in real life. I hope that whichever side loses the case will file for rehearing and get amicus briefs from the specialty bar groups to address the Supreme Court's questions at the argument.

The legislation that re-created the post-Civil War Western District of Virginia

In 1871, Congress split the U.S. District Court for Virginia back into two districts, Eastern and Western, with court sessions to be held in the Western District at Lynchburg, Abingdon, Harrisonburg, and Danville. (Charlottesville, Roanoke, and Big Stone Gap were added later.) The original act did not mention Dickenson County, which was not formed until 1880.

The old Abingdon federal courthouse

Here is an old postcard with the image of the Abingdon federal courthouse as it was before 1945.

Here is a photograph of the same building taken in 1901.

Here is another postcard view, with awnings and the flagpole.

On Isaac Chapman Fowler

Isaac Chapman Fowler (1831-1905) was a Bristol newspaperman, a promoter of the Natural Tunnel at Duffield, the mayor of Goodsonville before it became Bristol, and a member of the Virginia House of Delegates where he was made Speaker of the House (one of only two from the far Southwest in the history of the Commonwealth). In 1884 he moved to Abingdon when he was appointed to be the Clerk of the U.S. District Court for the Western District of Virginia at Abingdon. He was a "dyed-in-the-wool" Republican. When he died, the Republican paper in his hometown of Tazewell reported that he had lived "a long life of usefulness." He is buried in East Hill cemetery. His house in Bristol built in 1867 is still standing as is the house he bought in Abingdon across from the Martha Washington Inn.

While he was in the House, Fowler's main critic was Leonidas Baugh whose newspaper was the Abingdon Democrat. Fowler outlived Baugh by many years and so there was no comparable headline in the Abingdon Democrat declaring Fowler had lived a long life of not being useful.

Two of these things are not like the others

From today's opinions of the Supreme Court of Virginia:

In Brush Arbor Home Construction v. Alexander, the Supreme Court held that an arbitration clause which was otherwise gibberish had to be interpreted at least initially by an arbitrator, rather than by a Court, refusing to add a judicial limitation based on "impossibility" onto the language of the arbitration statutes.

In Com. v. Hall, the Supreme Court reversed the trial court's application of a forfeiture statute, Code § 19.2-386.22(A), refusing to add a judicial limitation onto the language of the statute based on the "substantiality" of the nexus between the property and the criminal activity.

In Mercer v. MacKinnon, the Supreme Court affirmed a dismissal based on lack of personal jurisdiction, refusing to add a judicial limitation on the meaning of the word "persistent" in Code § 8.01-328.1(A)(4).

In Reyes v. Com., the Supreme Court affirmed denial of a continuance under  Code § 19.2-159.1(B), adding a judicial limitation onto the language of the statute requiring a continuance for defendants who no longer need court-appointed counsel.

In Dennis v. Com., the Supreme Court reversed the denial of a petition for writ of actual innocence, adding a judicial limitation onto the language of the statutes, Code §§ 19.2-327.12 and 19.2-327.13, regarding the ability of the Court of Appeals to evaluate disputed facts.

On the Danville library desegregation case

An interesting account of the litigation in the W.D. Va. over the desegregation of the Danville public library system can be found in this 2018 book by Shirley Wiegand.

On the Charlottesville school desegregation case

Here is a remarkable photo from August 1956, with Oliver Hill and Spottswood Robinson looking irate, Judge John Paul, Jr., looking like Daddy Warbucks, and John S. Battle and J. Lindsay Almond looking sheepish.

An account of the case from the perspective of Hill and Robinson can be found in this 2018 book by Margaret Edds.

On Daniel Trigg, Southwest Virginia lawyer

Here is a lengthy account written by his great grand-daughter of the life and times of Daniel Trigg, who grew up in Abingdon and was the leading lawyer in Southwest Virginia in the early 1900s.

Here is a story about the author, Angela Trigg.

Another federal judge buried in Abingdon

Here is the monument for Judge Connally Findlay Trigg, a judge of the Eastern District of Tennessee nominated by Abraham Lincoln, who is buried in the Sinking Spring cemetery in Abingdon, about 100 yards from Judge Robert W. Hughes, whose monument is next to the holly tree in the background. Neither was a judge of the Western District of Virginia.

Old map of Washington County

If you like old maps, here is one of Washington County, Virginia, in 1890, from the Library of Congress website. It shows among other things the location of the "new" U.S. courthouse and also the property owned by Judge Robert W. Hughes, the Eastern District judge who lived in Abingdon during the summers back then.

The effects of the government shutdown on pending civil cases against the United States

This week I have been notified by the U.S. District Courts for the Western District of Pennsylvania, the Southern District of Ohio, and the Southern District of West Virginia that proceedings in civil cases against the United States, with some exceptions, are stayed pending the conclusion of the government shutdown - which makes me wonder whether something similar will be done in the other U.S. district courts, including the one where I have a civil case against the United States.

The Southern District of West Virginia order is here.
The Western District of Pennsylvania order is here.
The Southern District of Ohio order is here.

On appeals and counterclaims

I read with interest the opinion for the Supreme Court by Justice Kelsey in Robinson Family, LLC v. Allen, addressing the issue of whether an appeal from the General District Court in a case where there was a counterclaim was also an appeal of the counterclaim. The Supreme Court concluded that it was not, rejecting the analysis of some prior Circuit Court opinions. It makes it sound like there are in effect two separate judgments, and there might be the need in some cases for one party to bring two separate appeals.

No new judgeships in 2018

This report says Arlington Circuit Court will get an additional judgeship in 2019, and that no new judgeships were funded anywhere in Virginia for 2018.

On Judge Robert William Hughes

Longtime readers of this blog would know that I am interested in Southwest Virginia lawyers and judges from days gone by, and I mostly wrote the Wikipedia articles for several of them, including Judge Robert William Hughes. Judge Hughes died in 1901 and was buried in Abingdon. A few months back I went and found the plot with the monuments for Judge Hughes and his wife and her parents.

On the judicial vacancy in the W.D. Va.

I noticed that Judge Glen Conrad took senior status in December, and that Judge Urbanski is now the Chief Judge of the W.D. Va. Judge Conrad is and was much admired among the people I've known at the courthouse, including Judge Williams, who thought he was great. The last time I had a case before Judge Conrad, he approved a recommendation to grant summary judgment for my client in a prisoner case out of Red Onion. Donohue v. Lambert, Case No. 7:13-cv-00397, 2015 WL 9200926 (W.D. Va. Dec. 16, 2016).

In 2014, when Judge Dillon was selected to replace Judge Wilson, the two other leading candidates rated as "highly qualified" by a committee of the Virginia State Bar were Magistrate Judge Robert Ballou and the Clerk of the Western District, Julie Dudley. I know Judge Ballou a little bit and I know Ms. Dudley a little bit more, both of them fine people. Judge Ballou was at the University of Virginia at the same time I was and I knew who he was then. Later on we had some fun with a state court case in Scott County.

Ms. Dudley clerked for Judge Williams. Years ago I took Jill to the last of the law clerk reunions for the judge and I told her that Julie Dudley might be there and that she was one of Judge Colin Campbell's daughter's from Grayson County, and it turned out that Julie Campbell was one of Jill's babysitters, back in the day.

Wherefore, section 20-79(c)

A standard provision of divorce decrees in Virginia is the referral, pursuant to Va. Code 20-79(c), to a Juvenile Court of matters pertaining to the modification and enforcement of the terms of the decree related to custody and visitation and child support. The Juvenile Court can be in another part of the Commonwealth. Pursuant to Va. Code 16.1-296(J), appeals from the Juvenile Court shall be taken to the Circuit Court in the same locality as the Juvenile Court, even if it is not the original Circuit Court that entered the divorce decree.

Delegate Collins, of whom I know nothing, proposed an amendment to section 20-79(c) in the 2017 session of the General Assembly, which was HB 1692. Somewhat unusually, HB 1692 was passed by the House, passed by the Senate as amended, the House rejected the amendment, a conference committee was named, the conference committee recommended a different amendment, the conference amendment passed the House but then was rejected by the Senate without a vote.

This year, Delegate Collins has proposed HB 289, which strikes me an improvement over the original bill, although it still displays a bias against the Juvenile Courts. The funny thing is, I watched the testimony last year and my good friend from Norfolk who is on the Family Law Coalition spoke in favor of last year's bill, citing the need to eliminate the redundancy of proceedings that frequently results from de novo appeals.

Both bills allow "the court," evidently the Circuit Court that entered the divorce decree, to transfer a case directly to another Circuit Court instead of to a Juvenile Court. The statute does not specify whether the transferee court can also make transfers, or whether a transfer to another Circuit Court (as opposed to a Juvenile Court) would affect the concurrent jurisdiction of the Circuit Court that entered the divorce decree.

On Blackstone's Commentaries

I've been studying on an issue about which the Supreme Court of Virginia has cited more than once the "Commentaries on the Laws of England" by William Blackstone.

Blackstone's Commentaries were written in the 1760s. The four books were the leading sourcebook for aspiring lawyers until the end of the 19th Century. Blackstone was read by John Marshall and Thomas Jefferson. "Begin with Blackstone's Commentaries," Abraham Lincoln advised in 1860.

In Howell v. McAuliffe, the Supreme Court in an opinion by the Chief Justice explained that "William Blackstone 'constituted the preeminent authority on English law for the founding generation,'" and that the Founders relied heavily on his Commentaries.

By my count, the Supreme Court of Virginia has cited Blackstone's Commentaries in Howell and in sixteen other opinions since 2011, even though the Commentaries were written more than 250 years ago. I had a hearing the other day on an issue where the other side sought to distinguish a decision from the 1950s. "That's new law in Virginia," the Circuit Court judge observed, and I agreed.

Perhaps Lincoln's advice remains sound. The text of Blackstone's Commentaries (sometimes with star paging) is available in a number of places online, including something called the Online Library of Liberty, and in Google Books.

On the withdrawal of appeals from the Juvenile Court

I read with interest the opinion for the panel of Judges Alston, Chafin, and Haley in Spear v. Omary, decided today by the Court of Appeals. Somewhat unusually, the opinion cites two of our appeals from the Barrett cases, that I argued before the Court of Appeals.

I think the panel got it wrong in Spear, and the legislative history from the Boyd-Graves Conference is instructive. The intent behind the language of section 16.1-106.1(F) was that "upon withdrawal of any such appeal, the case should be remanded to the Juvenile Court unless the Circuit Court judge determined that the case should remain in Circuit Court" and therefore "[l]anguage setting out a presumption of remand" was added. 2007 Boyd-Graves Subcommittee Report, Withdrawal of Civil Appeals (September 17, 2007). The subcommittee included Judge Klein from Fairfax Circuit Court and Judge Tower from Virginia Beach Juvenile Court, along with Gail Starling Marshall (whose husband John was the chairman of the Philosophy Department during my undergraduate days at the University of Virginia).

The point of section 16.1-106.1 was to rationalize and codify the withdrawal of civil appeals from the District Courts, for which there was no express statute.

Section 16.1-106.1(F) provides, in pertinent part:

"Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297."

In my view, having spent way too many hours in this obscure nook of the law, section 16.1-106.1(F) passed in 2008 causes a remand for purposes of section 16.1-297 to occur as a matter of law, and "the requirements of § 16.1-297" include the provision that "thereafter such child or adult shall be and remain under the jurisdiction of the juvenile court in the same manner as if such court had rendered the judgment in the first instance." It makes no sense that to say that the provision that"unless the circuit court orders ... the case shall be remanded" does not apply unless the Circuit Court also enters a remand order in compliance with section 16.1-297.

The Court in Spear looked at this language, however, and went the other way, finding no remand where the Circuit Court said nothing, the opposite of what was intended.

The Barrett cases are not especially relevant to the Court's conclusion. The issue in Barrett II was the res judicata effect of a withdrawn appeal from the Juvenile Court, and the panel in that case concluded that the withdrawal had the effect of reviving the prior order of the Juvenile Court and making it the final order for purposes of the res judicata analysis.

The Court also cited Austin v. Com., which did not involve the withdrawal of an appeal, and was decided years before section 16.1-106.1 became law.

On the late Don Williams

From my clerkship with Judge Williams, I got to know his brothers, Lowell and Don. Later on Don was on the Board of Supervisors and the School Board when I did some work over there. He was a big character with a big smile and everyone in the County knew him, from his coaching days as well as his days as a politician. He spoke his mind and cared deeply about a lot of people. Thank you, my friend.

Microsoft to help expand rural broadband in 6 states. says Washington Post

The Washington Post has this account of a pilot program being launched by Microsoft in six states, including Virginia, which is "a multi-year, multi-million dollar investment to help teach computer science to students, expand rural broadband and help create and fill jobs, among other things."