Updated: Nov 11
Steve Emmert, the Sage of Virginia Beach, beat me to the punch on analysis of the recent elections and the potential impact on the bench. His analysis is in accord with my views, so instead of a rehash, I will instead tread cautiously onto his turf with some observations on the Supreme Court of Virginia's Docket and some recent OJ filings in that Court.
So it wouldn't have been too long ago (say five years), that saying the Supreme Court of Virginia had 25 cases on its docket wouldn't have been big news. Twenty-five case on an argument docket was not unusual, though dramatically down from the 1990s when twice that number was the norm. However, since COVID and the change of appellate jurisdiction shifting virtually all first appellate reviews to the Court of Appeals, the number of pending cases steadily declined and only recently has begun to rebound.
Accordingly, with the argument of six cases last week and the addition of one newly granted appeal today, the presence of 25 undecided case for which full Court will sit in review is definitely worth a banner headline. One of those cases, Vlaming v. West Point School Board, et al., was argued over a year ago and is obviously giving the Justices agita. The issue is the firing of a teacher who refused to use a student's preferred pronouns, so how (or when) the case will come out is anybody's guess. I wonder if the Justices are hoping to find a consensus for DIGing the case -- Dismissing as Improvidently Granted?
There are eight other cases that have been argued but not decided. Two were argued in September and decisions should be forthcoming soon, perhaps as early as tomorrow. The other six were those argued last week and it will likely be late in the year or even in January before we see opinions for any given that we will soon enter the period of Holiday malaise which impacts the flow of legal business every year starting with Veteran's Day.
Among granted cases, there are now 16 pending briefing and argument. Only three of these were granted before the Summer hiatus (and one of these was set for argument last week, but continued). Barring a late grant from the October panel or an original jurisdiction case, the docket is likely set through the end of the year, with the January Merit Argument Docket being set sometime in early December with (and this is a guess), not more than 10 cases.
We don't always hear about OJ cases because many never make it to the argument docket because of procedural issues. Let's take a look at some recent cases that either have already fallen by the wayside or are likely to. For example, there is a SCC case that has been filed, but not yet set for briefing, Akerman v. State Corporation Commission, et al. Mr. Akerman, a pro se litigant, has an interesting history of filing litigation in the federal courts in recent years seeking damages for various alleged wrongs by the Department of Defense, his former employer, thus far without much success. I just wonder what his beef might be with the SCC and the other defendants, which include Nationwide Insurance and Starwind Insurance, which fall under the SCC's jurisdiction, and the Arlington Circuit Court, the Virginia Court of Appeals, and Attorney General Jason Miyares, who decidedly do not. I expect that Mr. Ackerman, who is a well-educated person (currently a Ph.D. candidate at George Mason University) might have the capacity to get his brief in proper order, but I doubt that even if he does his case will get any better treatment in the state courts of Virginia than his federal cases have fared.
Akerman also has an appeal pending on the civil docket in which the Arlington Circuit Court and the Court of Appeals are named as appellees. This appeal relates to a still pending appeal in the Court of Appeals that names several of the appellees from the SCC case.
There is a Virginia State Bar Disciplinary case, Vena v. Virginia State Bar, but the record was just received at the end of October, so it will not be ready by January. Vena, who is pro se, had his license suspended for 5 years -- sort of. Some interesting points from the memorandum order of the committee include the observation that "[d]uring the Prehearing Conference, the Respondent was disruptive, rude, and demonstrated a complete disrespect for the Disciplinary proceedings and the parties to the Prehearing Conference by refusing to comply with requests from the Chair to conduct himself in a professional and polite manner, to discontinue insulting other parties on the call, and stop interrupting other people while they were speaking." During the actual hearing, "Respondent displayed disruptive and disrespectful behavior toward the Board, the Bar Counsel and the Clerks. The Respondent repeatedly intenupted other parties and the Board, spoke while other parties were speaking, made rude and disrespectful comments while others were speaking, cursed at one witness, and continuously demonstrated contempt and disrespect for Bar Counsel and the Chair." This not an auspicious start to a proceeding where usually an attorney's livelihood is at stake.
Now what really makes this case interesting is that Vena was not at the time of his alleged misbehavior a member of the Virginia State Bar, nor was he ever a member and apparently has made no effort to become one, despite officially working at a law office in Northern Virginia where -- and this is based on the record from the disciplinary hearing -- it sure looks like he was offering legal advice to clients. This may lead you to question how the Virginia State Bar has the power to discipline and suspend Vena's license to practice law in the Commonwealth. Well, that's because Rule 5:5 specifically says that the Bar has jurisdiction over a lawyer who practices "in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction." Vena is a member of the Connecticut State Bar, so he is a lawyer -- and he did practice (or so the committee found -- he disputes this) in Virginia in violation of the regulation of the legal profession in this state -- that makes him both subject to and in violation of the VRPC.
OK, but how from that do we get to the suspension of a license that Vena does not have? Well, that's an interesting issue. You see, the Bar does not have the authority to impose sanctions not allowed by the Rules, such as monetary penalties. Indeed, in this case, the committee noted it did not even have the power to hold Vena in contempt for his disrespectful behavior (not so when the respondent opts for a three judge panel which has the full panoply of contempt sanctions available to it, including jail time -- so Vena was wise not to go that route). So the committee is forced to impose a sanction which is allowed, which means a reprimand, suspension or revocation. Does this mean that Vena is in essence getting away with violating the VRPC since the punishment has no real impact on him? No, the disciplinary sanction will be reported to Connecticut (and also to Maryland, where he has applied for admission). Whether these states take action is, of course, for their Bars to consider. Presently there is no pending action in the Connecticut. It is also possible that Vena could be prosecuted for the crime of unauthorized practice of law.
Another disciplinary action, Kennedy v. Virginia State Bar was procedurally dismissed back in September. Kennedy, whose full name is John Fitzgerald Kennedy, had his license revoked following a disbarment by the DC Bar (and also by the Pennsylvania Bar for the same reason). He also held licenses in Maryland, Colorado, Massachusetts and New Jersey. His disbarment in Colorado is pending appeal, and he is listed as "inactive/retired by the Maryland State Bar). In Massachusetts he is "suspended for an indefinite period," while in New Jersey his license was "administratively revoked."
Kennedy practiced with his wife, Kathleen Dolan, who was also disciplined in the same proceeding in DC and given a suspension of 9 months. The DC action was the result of "misconduct arising out of a litigation and settlement of a collective action and their misappropriation of the entrusted settlement fund for a matter in which they represented over 100 current and former security officers with wage claims against their employer. The settlement was $310,000, of which Kennedy and Dolan took 67% and then told the claimants that the balance of just over $100,000 was the actual amount of the settlement. The investigation of this claim resulted in the Maryland Bar finding additional problems with the firm's trust account.