Thursday, August 21, 2008

Virginia and the Prediction Biz

Judge Bellows has handed down yet another decision in the Episcopal vs Anglican suit over in Virginia. The Episcopalians got their clock cleaned yet again and all that remains is a sixth decision in October. That means that its that time of year when losing litigants thoughts turn to appeals.

Some Virginia based gurus have indicated that the case would likely go straight to the Virginia Supreme Court. From there the only possible appeal would be to the US Supreme Court. Either court could send the case back down for more hearings, review or revision.

As far as predicting the future, my crystal ball has been wonky of late. I can say that the burden of persuasion is on the appellant when a decision is appealed. But appellants do win from time to time. Regardless of what Judge Bellows decides in October, the smart money is on the case being appealed. So it seems entirely likely the Virginia Supremes will get this case. Regardless of what they decide, both sides have the wherewithall to appeal to the US Supreme Court. But that is where it gets tricky.

There are only a few cases that the US Supreme Court must hear. The vast majority of cases they do hear are ones they decide to hear, that is they are discretionary. As near as I can tell this suit presents no issues that would require a hearing by the Supremes. Further, as far as discretionary suits go, they generally only like to select cases where the US Circuit Courts of Appeals have split. That is where the lower federal courts disagree.

This case concerns an obscure and unique Virginia law. Unless there is a gross miscarriage of justice, I do not see the Supremes picking it up. Virginia just doesn't have the reputation for shameless injustice that state supreme courts like Florida, New Jersey and California have. The Supremes have already had their big constitutional law case with Heller, so they are guaranteed legal immortality.

That means, unless something goes horribly wrong, one appeal and it's all over.

Of course I may be wrong....

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