- The Washington Times - Monday, June 23, 2003

The Virginia Supreme Court lost a unanimous verdict this term at the U.S. Supreme Court, where the justices overturned the two state court decisions that came directly before them.

Although lawyers who practice before both courts suggest that this is “a statistical quirk,” it leaves Virginia zero-for-four since 1995, tied with Washington for the most reversals in direct appeals of top state court rulings.

In the term ending this week, the state court was reversed unanimously on its ruling that Richmond public housing could not bar troublemakers from its grounds and lost a split decision reinstating the state statute that outlaws cross-burning.

Earlier losses were a 6-3 decision last June barring execution of retarded murderers, and a unanimous 1999 ruling restricting the use of an accomplice’s confession as evidence.

However, the Virginia justices scored much better in that same period in six cases in which prisoners carried civil rights appeals of state Supreme Court rulings through the federal system. The U.S. Supreme Court sided with the state justices in all the six cases.

Supreme Court decisions of five other states have been reversed thrice each since 1995, including Florida, which sustained two reversals in one week during the December 2000 presidential-election recount battle.

Maryland’s top court also has been overturned thrice, including in a 1997 case in which the justices ruled that police can order passengers out of the car during a traffic stop.

“I think the multiple cases in one term is simply a coincidence,” said Richmond lawyer William G. Broaddus, a former attorney general of Virginia who clerked at the state Supreme Court from 1968 to 1970.

“I don’t think there’s been any meaningful change in our Supreme Court in terms of its outlook,” said Mr. Broaddus, who saw no thread linking the decisions from the perspective of Virginia’s court.

University of Richmond law school professor Rodney Smolla said the court was overturning Virginia decisions written by different and opposed justices.

Virginia Chief Justice Leroy R. Hassell Sr. wrote the majority opinion and Justice Donald W. Lemons dissented in Black v. Virginia, the cross-burning case, Mr. Smolla pointed out. On the other hand, Justice Lemons wrote for the court and Chief Justice Hassell dissented in the housing case, Virginia v. Hicks.

“It’s just a statistical quirk for Virginia,” Mr. Smolla said. “Overall, I don’t see any dramatic difference in ideology or alignment that would merit reading anything extremely important into this year’s pattern.”

Most cases reviewed by the U.S. Supreme Court bubble up through federal courts, and the justices have reversed or vacated 62.8 percent of all those heard since October 1995. But it has overturned 66.2 percent of the 71 cases that were decided by the states’ highest courts.

Mr. Broaddus represented the Richmond Redevelopment and Housing Authority in defending “barment” rules intended to keep troublemakers off the streets and facilities of Whitcomb Court, an area of rampant crime and drug-dealing.

“I think that the Supreme Court of Virginia looks at the issue, and they certainly do their best to rely upon precedents. Precedent is very important to the Supreme Court of Virginia,” Mr. Broaddus said of his defeat in the state court, which the U.S. Supreme Court turned into victory June 16.

In that case, the Virginia Supreme Court threw out Kevin L. Hicks’ trespassing conviction and ruled the housing project’s ban “unconstitutionally overboard” because it “also prohibits speech and conduct that are clearly protected by the First Amendment.”

The 9-0 U.S. Supreme Court opinion written by Justice Antonin Scalia said Mr. Hicks was ineligible to raise that defense because he “does not contend that he was engaged in constitutionally protected conduct when arrested.”

The high court said others could appeal again if the policy does block political speech or violate other First Amendment rights.

Mr. Smolla argued the cross-burning case for all three defendants and represented the key personality in the case, Ku Klux Klansman Barry Elton Black. That case hinged on whether burning a cross was, in itself, proof of an intent to intimidate.

The U.S. Supreme Court, in an opinion written by Justice Sandra Day O’Connor, ruled that Virginia’s ban on cross-burning with intent to intimidate did not violate the First Amendment. But the justices tossed out a section of the law that said burning a cross in public view was evidence of that intent.

“I’d call it half a reversal,” said Mr. Smolla, who called the Virginia Supreme Court “a very intellectually vibrant” place dealing with issues important enough to attract review in Washington.

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