Tuesday, September 25, 2012

Virginia Supreme Court to Hear Falls Church Petition

Today, the Supreme Court of Virginia informed the parties that it would hear a brief oral argument on October 16, beginning at 1 p.m., on the petition filed by The Falls Church to review the judgment entered against it in Fairfax County Circuit Court. In Virginia, appeals from civil judgments are not a matter of right. Only the Supreme Court hears civil appeals, and it has discretion to refuse review. The purpose of the brief argument is to give the appellant's attorneys an opportunity to emphasize to the Court's writ panel (which will consist of just three of the Court's seven justices) the reasons why it should accept the case for review.

The argument is limited to just ten minutes. Only the appellant's attorneys (the ones who filed the petition seeking review) may argue, but the appellees, their attorneys, and members of the general public may attend and listen to the proceedings. There is more about the writ panel procedure at this link.

The last time this case was before the Virginia Supreme Court, in April 2010, only five of the Court's seven justices heard the case (including two retired senior justices), because four active justices recused themselves (most likely on the ground that they were Episcopalians). Of the active Justices who did not recuse themselves, Justice Cynthia D. Kinser is now the Chief Justice, and the former Chief Justice, Leroy R. Hassell, is no longer on the Court. The only other active Justice who sat on the prior appeal is Justice LeRoy F. Millette. The two senior justices who participated, Justice Elizabeth Lacy and Justice Lawrence Koontz, are still hearing appeals in the place of Justices who recuse themselves.

New on the Supreme Court since the April 2010 hearing are Justice Cleo E. Powell, who began her twelve-year term in October 2011, after serving both in the Circuit Court and on the Court of Appeals, and Justice Elizabeth A. McClanahan, who was sworn in in September 2011. Justice Powell belongs to the Baptist Church (her pastor is the current Mayor of Richmond); the religious affiliation of Justice McClanahan, if any, is unknown.

With Justices Lemons, Goodwyn and Mims likely to recuse themselves again, that would leave three, or potentially four, active Justices available to hear the case. Thus it is likely that one or more of the senior justices will again be called upon to participate, if the petition is accepted.

The decision whether or not to accept the appeal will not be announced for several more weeks after the writ panel meets on October 16.

That date, by the way, is the same day on which the Texas Supreme Court will hear oral arguments in both the Fort Worth and the San Angelo appeals.


  1. Curmudgeon,

    Was it mandatory for Episcopalian justices to recuse themselves on the basis of their religion?

  2. That is a complicated question, Fradgan. The standard which applies frequently (I do not know specifically about Virginia), and with which I am most familiar, says that judges should recuse themselves in any case in which their participation could create the "appearance of impropriety."

    This standard is by no means uniform. For example, in the appeal by Christ Church in Savannah to the Georgia Supreme Court, a couple of justices recused themselves on account of their religious affiliations (see this post for details), but the justice who authored the majority opinion did not see fit to recuse himself, even though he was a member of one of the largest Episcopal congregations in the State.

    And guess what -- if you challenge a sitting judge or justice under these standards, it is the judge / justice himself who makes the first determination as to whether an "appearance of impropriety" is involved. After that, you have to take an appeal to an appropriate appellate court -- whose justices regularly have lunch with the judge whose impartiality you are challenging, and in my experience, they always give that judge the benefit of the doubt, despite what "appearances" could say.

  3. Speaking specifically of Virginia, judicial disqualification in the Commonwealth is governed by the Canons of Judicial Conduct promulgated by Virginia's Judicial Inquiry & Review Commission (JIRC), available at http://www.courts.state.va.us/agencies/jirc/canons_112398.html.

    Specifically, Canons 3E and 3F govern disqualification and the remittal (i.e., waiver) of disqualification.

    In practice, this has led to the standard procedure being exactly what happened in the first round before the Supreme Court of Virginia: some of the justices identified the appeal as "a proceeding in which [each] judge's impartiality might reasonably be questioned" under Canon 3E(1) and asked the parties whether to waive disqualification pursuant to 3F. When at least one of the parties declined to waive disqualification, each judge recused himself.

    Note that being a practicing Episcopalian isn't (by a long shot) the only potential basis upon which a justice might be concerned that his or her impartiality might be questioned. It could be former membership in an Episcopal parish, current or former membership in a similarly situated denomination, or something entirely unrelated to the justice's religious affiliations, such as an indirect economic interest in the outcome of the litigation through a spouse or other family member.

  4. Yes, October 16 is stacking up as an important date. We here in the (real) Diocese of Fort Worth are in anticipation as the Texas hearing precedes the diocesan convention by just a few weeks.

    Daniel (aka Fisherman)