Suing the Supreme Court of Virginia

At some point in their careers, most Virginia practitioners have argued petitions for appeal to the Supreme Court of Virginia and have lost. An appeal to the Virginia high court in a civil case is discretionary. Often, the denial of the appeal is a brief, unsatisfactory one-page order: “Upon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of opinion there is no reversible error in the judgment complained of. Accordingly, the Court refuses the petition for appeal.” This has been a common practice of the Court for at least a generation, if not longer.

One thing most Virginia practitioners have not done is sue the Supreme Court over this one-page denial. The Leiser Law Firm, PLLC, however, took a more aggressive approach in Leiser Law Firm v. Supreme Court of Virginia, et al., Civil No. 1:14-cv-407 (E.D. Va.). The law firm initially filed suit against a former employee and his wife in the Fairfax County Circuit Court. After the circuit court granted a demurrer filed by the defendants which dismissed most of the law firm’s claims, the firm filed a routine motion for reconsideration. The circuit court judge eventually denied the motion for reconsideration without issuing a written opinion. The law firm then appealed to the Supreme Court of Virginia which denied the petition for appeal with a one-page order.

Undeterred, the law firm then filed a federal lawsuit in the U.S. District Court for the Eastern District of Virginia, naming as defendants the Supreme Court of Virginia, the Chief Justice, the Fairfax County Circuit Court, and the circuit court judge who decided the initial demurrer. The law firm claimed that its procedural due process rights were violated by the Virginia Supreme Court’s one-page denial, and that its substantive due process rights were violated by both Courts’ alleged failure to properly apply Virginia state law to the case.

The federal action was assigned to Judge Liam O’Grady in the Eastern District, and on April 28, 2015, he granted the defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Judge O’Grady stated that the law firm’s procedural due process rights were satisfied by receiving “judicial hearings in the Virginia courts and Plaintiff appeared at the hearings through counsel.” The law firm argued that “because the Virginia Supreme Court’s denials of appeal petitions constitute decisions on the merits, that court must provide a detailed opinion explaining its decision whenever it denies an appeal petition.” Judge O’Grady rejected this argument, noting that the law firm “cite[d] no authority supporting the existence of a substantive due process right to detailed judicial opinions whenever a case is decided on the merits.”

Experienced Virginia practitioners are very familiar with the common practice of short orders to grant or deny motions in state court. This is a necessary compromise considering the high volume of cases in most circuit courts. If every motion required a written opinion from the judge, the litigation process in state court would grind to a halt. The default rule of a trial within one year of the filing of a complaint in Virginia circuit courts would be an unachievable pipe dream. Judge O’Grady implicitly recognized this reality and the consequences of the relief sought by the law firm: “Plaintiff asks the Court to declare that state courts in Virginia may not constitutionally issue decisions via short orders and must instead provide detailed opinions in order to satisfy due process. Such relief would be drastic and does not accord with the principle of separation of powers.”

Turning to the law firm’s substantive due process claims, Judge O’Grady interpreted those claims as collateral reviews of state court judgments, which are barred under the Rooker-Feldman Doctrine:

To the extent plaintiff argues that the Virginia courts dismissed its claims in violation of Virginia law, this action is effectively a collateral attack on the merits of the state court judgments. Leiser asks this Court to declare that the Virginia circuit court was wrong to dismiss Leiser’s claims as a matter of Virginia law and that the Virginia Supreme Court erred by affirming the circuit court . . . In other words, Plaintiff asks this Court to pass upon the merits of the Virginia Supreme Court’s ruling on substantive Virginia law. Such a ruling would violate the jurisdictional bar of Rooker-Feldman.

On May 27, 2015, the law firm filed a Notice of Appeal, and the Fourth Circuit will now consider this case. Most Virginia practitioners (including this author) have experienced one-page denials of motions and appeals, and it is understandably frustrating and unsatisfying. Now that the constitutionality of one-page orders has been tentatively answered, the next time it happens to this author, he’ll seek his world-class thrills in skydiving rather than in suing the Supreme Court of Virginia.