Snap Decision in a Snap Appeal

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SNAP DECISION IN A SNAP APPEAL

(Posted September 13, 2018) There are no decisions, published or unpublished, from the justices today, so let’s take a peek at another appellate story.

I live in Virginia’s Second Congressional District, a place with a purplish hue. The incumbent Congressman, Scott Taylor, is facing a serious challenge from Democratic nominee Elaine Luria, in a year in which being a Republican can warrant hazardous-duty pay. The 2016 Democratic candidate, Shaun Brown, sought to join Taylor and Luria on the ballot, running as an independent. The effect of her candidacy would patently hurt Luria, as Brown would drain Democratic voters and help assure Taylor’s reelection.

Brown circulated petitions and gained enough signatures to get onto the ballot. Democrats fumed; Taylor probably smiled quietly. And then a local radio station started poking around at the petitions, and found some irregularities. This signatory is dead. That one moved to another state a few years ago. Things got worse: Several of the persons who circulated the petitions, and swore that the signatures were genuine, turned out to be paid campaign staffers of Taylor. The local newspaper got involved, and discovered that many of the persons whose names were on the petitions denied ever having signed them.

Why am I talking politics here at the notoriously apolitical VANA? Because this campaign generated litigation, and that litigation made its way to Ninth and Franklin this week. The Democratic Party sued Brown, joining the State Board of Elections, seeking Brown’s removal from the ballot. A Richmond Circuit Court judge held a hearing last week and ruled in favor of the party; he described the petitions as containing “out-and-out fraud.”

The court granted a writ of mandamus and an injunction last Wednesday, September 5, directing the Board to remove Brown’s name from the petition. The Board, which (I understand) had taken a passive approach to the litigation, made the necessary preparations to obey the court’s order. But on Monday, September 10, Brown appealed, asking the Supreme Court to expedite the appeal and stay the circuit court’s order pendent lite. You’ll note that that’s three days ago.

Last night, the Supreme Court dismissed the appeal without prejudice. It noted that while the circuit court had granted mandamus relief, there was still other pleaded relief on which the court hadn’t ruled. That made the order interlocutory and hence unappealable.

The Supreme Court’s order also observes that it’s possible to get immediate review of an injunction by a petition for review under Code §8.01-626, so in theory, Brown could get review that way. Brown had filed a plain-vanilla petition for appeal, not a petition for review, but the court goes ahead and addresses the case as though she had properly requested that relief. Even that approach falls flat: a 626 petition “shall be accompanied by a copy of the proceedings, including the original papers and the court’s order respecting the injunction.” Brown’s petition didn’t include those papers, so the justices can’t proceed that way. Seeing no way to adjudicate the appeal, the court dismisses it without prejudice.

Without prejudice? Doesn’t that give Brown an avenue to refile? Technically, yes; but by the time she can do that, it will assuredly be too late. The court’s order allows her to appeal a final order in the litigation, and that will come after a trial. By that point, likely well after November 6, the issue will be moot.

This case presents two key issues. The first is the importance of knowing how to properly file a snap appeal. Those don’t come along very often, so lawyers who don’t handle many appeals need to be very careful in preparing them. (Either that, or hire an appellate lawyer.)

The second issue warrants a separate essay, and I’ll do what’s necessary to post one in the near future: How does an appellant proceed in a truly urgent situation, when he or she needs immediate review? This case involved a matter of days – the Board of Elections needs to print ballots, I think starting today, so this had to be resolved quickly. What if you need review in hours? The rules are less than helpful, so I’ll try to lay out in that upcoming essay how to achieve what you need.

Last night’s order isn’t on the court’s website; any of my readers may write to me for a copy.

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