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Court in session with newest justice

The newest justice of the Supreme Court of Virginia took the customary outer seat as a junior justice when the justices filed in Sept. 14 for the opening day of the September court session. With the governor who appointed her still at odds with the legislature that must elect her anew, it is still unclear whether Justice Jane Marum Roush will be eligible to sit for her official portrait by the end of the week.

But the political push-and-pull did not appear to distract the court, which quickly got down to its usual business. The court concentrated its docket into three days this week, and spent Monday morning considering post-conviction relief for a man deported after a lawyer’s bad advice, damages caused by no parking space after a taking by the commissioner of highways, professional discipline of a veterinarian and damages for a contractor hired to repair a home’s fire damage.

It was a fully engaged court, with the justices’ probing questions forcing advocates to develop their legal points and defend their assertions.

The first case on the docket, Escamilla v. Sup’t, Rappahannock Regional Jail, challenged dismissal of a habeas petition filed by a man who was picked up by immigration authorities 10 years after a lawyer gave him the wrong advice about the immigration consequences of criminal charges the legal permanent resident faced at age 19.

“Virginia is stingier than any other state or the federal government” in providing post-conviction relief in circumstances such as Escamilla faces, Fairfax lawyer Jonathan P. Sheldon told the court. Those circumstances included “an absolutely clear violation of his Sixth Amendment right,” and “no way he could have discovered it” prior to being picked up 10 years later, Sheldon said.

The question is whether, when Escamilla was in custody for immigration proceedings, “that was sufficient for state jurisdiction” over the habeas petition, when the detention was not any part of a penalty imposed by the commonwealth for Escamilla’s underlying criminal conviction, Roanoke lawyer John C. Johnson argued for the respondent.

Johnson contended Escamilla was not in “custody” when he filed his habeas petition because he was not on parole or probation in the commonwealth, and thus he could not attack his conviction by habeas.

The court also heard Leonard v. Va. Board of Veterinary Medicine, a veterinarian’s appeal of an administrative sanction imposed by the Virginia Board of Veterinary Medicine for her unsuccessful surgery to sterilize a female dog.

Leonard’s attorney, John C. Conrad of Richmond, asked the Supreme Court to overturn a Court of Appeals decision reinstating the board’s sanction. He argued that the intermediate appellate court erred in applying the governing statutes and regulations to penalize Leonard based on the record of a single case.

In terms of professional regulation, “there’s a big difference between an inability to practice professional veterinary medicine” with reasonable skill and safety and a “single act of negligence” or violation of the standard of care, Conrad said.

Accepting Leonard’s arguments would lead to the “absurd” result of granting Virginia veterinarians “one free animal” before they worry about professional discipline, according to Assistant Attorney General Charis A. Mitchell, who represented the board.

This case is just the “tip of the administrative law iceberg,” Conrad said in rebuttal. There are “dozens and dozens of veterinarians defending themselves against professional malpractice prosecutions by this board.”

Court watchers may not necessarily wait another seven weeks for decisions in the appeals argued this week. The court has announced that it will switch from releasing published decisions at the end of each court session, to releasing decisions as they are prepared by the court.

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