Updated: Aug 22
The Sage of Virginia Beach, Steve Emmert, has again strayed into my territory with a three topic essay. The first topic of which is to report on an unpublished opinion from the Court of Appeals, Medeiros v. Department of Wildlife Resources, which was released just over a month ago. Steve expressed surprised that the appeal, which was challenging the sustaining of a demurrer, had been dismissed for lack of a transcript from the hearing on that demurrer. The essay goes on to discuss the continuing drought of granted writs from the Supreme Court and closes by noting that Vlaming v. West Point School Board has now been in the breast of the Supreme Court for 41 weeks since it was argued in November of last year -- a record length of time for an opinion (or other result) to have not been forthcoming according to Steve's meticulous records of such things.
Other than to commiserate over the dearth of granted writs, I have nothing to say about the middle section of the essay. But I have quite a lot to say about Medeiros and a little more to say about Vlaming, or at least about the delay in its release.
Steve expressed the view that not submitting a transcript, or at least a "statement of facts, testimony, and other incidents of the case," usually referred to somewhat deceptively as just a "statement of facts," for inclusion of the record on appeal for the proceeding at which to trial court heard argument, even if it was a proceeding where evidence normally wouldn't be taken, was not a wise practice. He then stated however, that while it was not his practice to forego a transcript in such cases, he and colleagues he had discussed the issue with were of opinion that because a demurrer rests on the "eight corners" of the complaint and the demurrer, which the appellate courts review de novo, the failure to file a transcript of the proceeding should not be fatal to the appeal. Thus, Steve expressed surprise that the Court of Appeals dismissed the appeal in Medeiros because no transcript or statement of "facts" was filed. He described this approach to the need for a complete record on appeal of a demurrer to be "new."
On the first point, I agree wholeheartedly. The rule in question requires the appellant (or sometimes the appellee if cross-error is assigned) to file a "transcript of any proceeding in the case that is necessary for the appeal." It is a courageous attorney indeed who takes it upon herself to decide whether the Court will believe a transcript of the proceeding in which the issue on appeal was presented to the circuit court is "necessary for the appeal."
On the second point, I disagree that this ruling is surprising or new. It may be “new” to the Court of Appeals which is now hearing all civil cases as appeals of right (demurrers being virtually unknown in domestic practice and wholly absent in administrative law appeals from the circuit courts), but I recall that before the new appellate paradigm many was the time that a petition for appeal in a civil case, where the assignment of error was that the circuit court had wrongly granted a demurrer, was refused because there was no transcript or statement of facts – this was back when the Court would often opt to refuse, rather than dismiss, for procedural error that was not raised by the appellee – whether this was to soften the blow to the appellant or merely a matter of expediency in not having to explain the reason for the dismissal when the panel would not have granted the appeal in any case – a practice that became less frequent after the Court got serious about attorney-in-error reports in the early 2000s -- is hard to say. Probably a little of both.
The reason that a statement or transcript of every (or nearly every) hearing is considered necessary in almost every case was ably demonstrated by the late Justice Henry H. Whiting. I heard the following exchange spoken in open court and later reproduced from memory when giving a CLE on the procedural errors that tripped up appeals and have used many times since.
An attorney was arguing for a writ to review a granted demurrer when Justice Whiting, who in addition to being one of the finest trial and appellate jurists I have had the pleasure of knowing was the godson of General George S. Patton, asked, “Counsel, don’t we need a transcript or statement of facts from the hearing on the demurrer?”
The attorney was momentarily nonplussed, but recovered, saying, “Your honor, there was no court reporter for the hearing, but the parties merely restated their positions from the pleadings.”
Whiting was not having this. The colloquy continued:
Whiting: “How do we know that in making your argument to the court, you did not concede some point raised by the defendant?”
Counsel: “I can assure the Court that I would not have done that.”
Whiting: “I am sure that you likely wouldn’t do so intentionally, but how do we know that you didn’t do so in responding to a question from the trial court?”
Counsel: “I did not. The Appellee would certainly have raised that if I had.”
Whiting: “Perhaps. But maybe his hearing is getting bad like mine, and without a transcript, he couldn’t be sure what you said.” (This was before Justice Whiting got his cochlear implant -- a story about which I may someday preserve in this blawg)
Counsel: “But he would have to raise it in the brief in oppos . . .”
Whiting: “How could he? Without a transcript, he wouldn’t be able to cite to the record. He would be asking us to believe that you waived your appeal without support in the record.”
Counsel: <deer in headlights look>
Whiting: “Isn’t that what you’re asking us to do? To believe you when you say nothing happened at the hearing that contradicts your argument or that would favor the appellee?”
Counsel: “I can only say to the Court that I did not concede any point during the oral argument.”
Whiting: “But how do we know that? How can we know what happened at the hearing where the judge ruled against your client; the judgment you want us to overturn?”
Counsel: “I can only ask that the Court take my word as an attorney.”
I heard Whiting ask a similar question several other times when there was an "undocumented" proceeding, whether for a demurrer or other pre-trial hearing – he was a stickler for having a complete record.
The solution, which I suggested in the CLE and many time since, is to submit a statement of incidents of the hearing which says that “at the hearing on the demurrer [or the plea in bar, or summary judgment], the parties reiterated the positions set out in the pleadings” or “in the demurrer and the plaintiff’s response” or similar words reflecting the state of the record if there were supporting briefs, etc. Of course, if some issue was raised orally that was not made in writing, that should be mentioned too.
I also recall times when the lack of a transcript was deemed harmless because the circuit court had summarized the testimony and arguments made by the parties in an opinion letter, which the Court reasoned was sufficient to establish the basis for the court's ruling and the evidence relied on -- provided of course that neither party tried to assert that the judge left something important out of the opinion letter.
The chief reason I hear at CLEs about why an attorney did not have a court reporter at a hearing or, even if they did, decided to forego the expense of producing a transcript, is that “a transcript is only needed to preserve testimony and the court didn’t hear any evidence.” The answer to this, which usually does not convince the speaker because “you don’t do trial work,” is that the rules say you must file “[t]he transcript of any proceeding in the case that is necessary for the appeal,” not any “testimony.”
As to Vlaming, this never would have happened in the “Carrico era.” Back then every opinion was “released in seven weeks” flat (except over the summer, when the June opinions could linger . . . but were usually ready by July 1 so that staff could take a vacation), with the drafts discussed at the writ panels and finalized no later than Tuesday at noon of Court week – and that was when 50 copies for distribution to the chambers, parties and the media were required and had to be made by the judicial assistants or, for the out-of-town justices, by their law clerks. No excuses. That included concurrences and dissents and was the rule even during the period in the early 90s when sessions could have 55 or 60 cases if some of the first 50 scheduled cases argued earlier in the week were decided by order and new cases were “called up.”
The Clerk of Court David Beach, and later Trish Harrington, would generally wait until about 1 PM on Tuesday to gently inquire about the “red line” of a case – the official version of the opinion on linen foolscap – the "blue back" – a cover for the official version – and the “copies” of opinions from the chambers. The red line foolscap was later replaced with standard sized paper (though still linen and with the red lines on the long edges) and the blue back by a manila folder.
By 3 or 4 PM, the inquiries were no longer gentle, and if you dared not have your opinions to the Clerk by 5 PM, you could expect a visit from the Clerk to collect them in person. This was because the Clerk had to prepare the mandates – the official order of the Court that enters the judgment set out in the opinion – and have it ready for review by the Justices at the Court conference the following day, and the mandate had to reflect the precise language in the conclusion and decretal (the final line of the opinion stating the result). The mandates had to be approved and returned to the Clerk Wednesday afternoon.
And all this was going on while the Justices were hearing arguments – often from 9 AM to past 1 PM, then conferencing on those case until 6 or 7 PM or later. Law clerks were expected to attend oral argument, at least of the cases their Justice was expected to write the opinion of the court, and also shared duty "behind the curtain" with the judicial assistants recording the sessions . . . on a reel-to-reel tape recorder (and later a duel cassette deck). Law clerks and judicial assistants, the Clerk, Deputy Clerks, and the Chief Staff Attorney did not leave for the day until the Justices concluded their conference (and often not afterwards if anything that occurred in the conference required research to be prepared for the following day).
While having a virtual guarantee that your appeal would be decided at the next session after you argued was probably some comfort to the litigants, it also was the chief reason that the Court's merit sessions back then, which were always five days long, were known by the Justices and the staff alike as "Hell week." The most memorable (or perhaps I should say unbanishable from my memory) was a January session when a massive snow storm kept the Court closed for the first two days of the session, and the Court heard the entire docket in the remaining three days and released the opinions from the October session that Friday.
Excuse me, I now need to go take a brief lie-down with a damp towel over my eyes and some soothing music in the background.