Another Major Judicial System Reform

by Dick Hall-Sizemore

Perhaps the most surprising item in the Governor’s recently-presented budget bill was the proposal to increase the size of the Virginia Court of Appeals by four judges, from 11 to 15. It is certainly one of the most controversial. The Republicans immediately decried the proposal as “court packing”.

As usual, the issue is more complicated than its opponents would have one to believe. The Governor’s proposal reflects the unanimous recommendation of a two-year study conducted by a working group appointed by the Virginia Chief Justice and the Judicial Council. (The membership of the Council consists of eight judges, two attorneys in private practice, and the chairmen of the House and Senate Courts of Justice Committees.) That recommendation is supported by both the Virginia Chamber of Commerce and the Virginia Manufacturers’ Association.

Background

The Commonwealth has a two-tier judicial appellate system. The Court of Appeals is the first appellate level after the circuit courts. Its principal areas of jurisdiction are: criminal cases (by petition), state administrative agency cases, workers compensation, and domestic relations.

The Virginia Supreme Court is the highest appellate court. Its jurisdiction includes cases appealed from the Court of Appeals, as well as civil cases on appeal.

Virginia is the only state in the nation in which the losing side in a trial does not have an automatic right to have his case considered on its merits by at least one appellate court (known as appeal of right).

These proposals did not just materialize this year. As noted in the Judicial Council report to the General Assembly, the Chief Justice designated a 20-person Working Group in 2018 to “study the appellate jurisdiction of the Court of Appeals of Virginia and to make recommendations on whether it should be given jurisdiction to hear appeals as a matter of right in all civil and criminal cases.” As noted in the report, the issue had arisen in previous years. Following up on this study, the 2020 General Assembly directed the Judicial Council to make recommendations to the 2021 General Assembly concerning “implementing an appeal of right in all cases decided by and appealed from the circuit courts.” (The resolution passed by voice vote in the Senate and by a bipartisan vote in the House.)

Recommendations

Criminal

More than 70% of the appeals received by the Court of Appeals deal with criminal cases. In recent years, the court has received 1,500 to 1,550 petitions to hear the appeal in a criminal case. About 12% of those petitions have been granted a full merits hearing each year.

The Judicial Council recommended the establishment of an appeal of right for all criminal cases. All appeals would be heard by a panel of three judges of the Court of Appeals, which would have the option to dispense with oral argument in any case where it is determined that there would be no “material benefit from that process.” In any event, the court would have to state the reasons for its orders and decisions. Any decision could be appealed to the Supreme Court, which have the discretion to take it up.

Civil

Currently, the Supreme Court has discretionary jurisdiction over most appeals of civil cases. Only about 20% to 25% of those appeals are allowed a hearing. The Judicial Council recommended that all civil judgments be appealable of right to the Court of Appeals, with further appeal available to the Supreme Court, which would have discretion to hear any case.

Attorney General

Under the law now in effect, local commonwealth’s attorneys have the responsibility of preparing the response briefs when a criminal defendant petitions the Court of Appeals to review his case. If the Court of Appeals grants the petition, the Office of the Attorney General  (OAG) then takes over the role of representing the Commonwealth before the Court. The Judicial Council report recommended that the OAG represent the Commonwealth from the outset in a criminal appeal, once a notice of appeal has been filed, thereby relieving Commonwealth’s Attorneys of that responsibility.

Fiscal Implications

If all criminal and civil cases become appealable of right to the Court of Appeals, it is certain that the court’s caseload will increase. In order for the court to maintain its ability to promptly hear and dispose of appeals, it would be necessary to increase the number of judges on the Court of Appeals and its support staff. The Judicial Council projects that it would be the increase in the civil appeal caseload that would result in the need for additional judges on the court. The Governor’s budget includes $5.1 million for four additional judges and associated support staff, which is the minimum increase recommended by the Judicial Council.

The OAG will also need additional Deputy Attorney Generals and support staff if the General Assembly adopts the recommendation that it represent the Commonwealth from the beginning of a criminal appeal. The Governor has recommended an additional $800,000 to cover the costs of this expansion.

Summary

Far from being a political power play, the proposal to establish an appeal of right to the Court of Appeals for all criminal and civil cases and to expand the membership of the Court of Appeals to handle the resultant increase in caseload is the product of review and consideration by the leadership of the judicial branch. It is supported by the state’s legal and business community.

To be clear, the proposal is not a response to a growing caseload. Indeed, the number of appeals received by the Court of Appeals was lower in 2019 that it was ten years ago and has leveled off in recent years. Rather, it is an attempt to provide every criminal defendant and civil litigant the right to have his case reviewed on its merits by at least one appellate court, a right that is enjoyed by defendants and litigants in every state except Virginia.

If the General Assembly establishes an appeal of right for every criminal and civil case, it will be the second major change in the Commonwealth’s judicial system enacted over the course of 12 months. The 2020 Special Session ended the ability of juries to recommend sentences, unless the defendant chooses otherwise.

It was my experience while working at DPB that governors are very deferential concerning the separation of powers and do not include any recommendations in their budget bills that affect the judiciary (other than technical changes) without consulting with the Chief Justice. Governor Northam is a traditionalist and I am confident that he consulted with both the Chief Justice and the chief judge of the Court of Appeals, Marla Decker, before including this proposal in his introduced budget bill.

If the legislature passes the bill enlarging the Court of Appeals, it will not become effective until July 1. The legislature has the authority to elect judges, but the Governor has the constitutional authority to fill any vacant judgeship when the legislature is not in session and it would be reasonable to expect Northam to fill these new positions when they become effective. However, the term of any judge appointed by the governor expires 30 days after the commencement of the next General Assembly session. Therefore, the 2022 General Assembly would have the last word on filling these four new positions.

All the seats in the House of Delegates are up for election next fall. For the Republican complaint about Democrats “packing” the Court of Appeals to be credible would mean that the Republican leadership must be assuming that their party will not regain the majority in the House for the 2022 Session.

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51 responses to “Another Major Judicial System Reform

  1. Several of my former AG office colleagues are in that photo and on that court, including my former boss, Randy Beales (chief deputy AG under Earley then AG for a year.) Marla Decker was a section chief. I was aware this grew out of an internal review with plans to expand the civil side. Not being an attorney I’m inclined to defer to their wishes, but it seems to me that this is really going to be boon for that profession…Like the old joke about a town with one lawyer who is starving, but suddenly a second one comes in and they both have lots to do…..

    I have not been on the inside on judicial appointments under the Republican majority, but they are not likely to get any more compromise on appointments then they provided when in charge…

    One suggestion, add one seat (with staff required) per year for four years, giving the case load time to build. And please, please, please appoint at least one judge with significant tax practice experience! That will mollify me…

  2. “For the Republican complaint about Democrats “packing” the Court of Appeals to be credible would mean that the Republican leadership must be assuming that their party will not regain the majority in the House for the 2022 Session.”

    That seems like a reasonable assumption.

    • Oh Mandy,
      Well, you came with your gun and you waved it
      But I sent you away
      Oh, Mandy
      Well, you cursed me because of a parking space,
      And I need you today
      Oh, Mandy!

  3. I don’t have a problem with increasing the number of judges on the court of appeals.

    I do have a problem with having the OAG represent the Commonwealth from the outset in criminal appeals. It may reduce the workload of Commonwealth’s Attorneys offices, but it will inevitably increase the size of the Attorney General’s office and expand the power of an elected office which I think has enough influence already.

    • I share your concerns about further increasing the size and jurisdiction of the AG’s office. The rationale for this recommendation is that appellate litigation is a specialized field and the AG now represents the Commonwealth in cases that the Court of Appeals chooses to hear. If the Court is to be required to consider all criminal appeals on their merits, it would be logical for the OAG to be involved from the beginning for each case.

  4. Glad to see Dick post this and relieved he did before Hans Bader!

    😉

  5. James Wyatt Whitehead V

    That is a big assumption about 2022. Many political variables in play. Never underestimate the latent majority.

  6. The idea that every case deserves an appeal is plain crap. Most cases don’t present appealable issues, whether they are civil or criminal. While I’m not a litigator, I have worked on more than a few that have gone to trial (most settle). Only a few have resulted in a decision to appeal as the odds of prevailing on an appeal don’t often outweigh the costs.

    This is an attempt to give criminal defendants a chance to appeal cases that don’t deserve an appeal in the name of being woke and to expand the money spent on public defenders and, apparently, the AG’s staff. Present a strong case and I suspect an appeal is granted under today’s system.

    • As I think I mentioned before, I was a reporter at the Assembly when the Court of Appeals was created in the 80s and remember those debates. Quite a few of the lawyer-legislators at the time made similar points. It was a major and fiery floor debate, the likes of which never happens any more. Emick really hated it. Clint Miller too, as I recall. Those were two I paid close attention to. It was a more lawyer-heavy Assembly in those days.

    • TMT – Thank you for providing the perspective of an attorney to us laymen.

      I hope you will indulge me in my ignorance and answer a question or three:

      If the proposal is adopted, will each appeal not be subjected to some kind of preliminary hearing at which the baseless claims can be weeded out and prevented from going any further?

      I readily admit to knowing next to nothing about the legal appeals process, but the article mentions that Virginia is the only state which does not handle its appeals as proposed by the “work group”. Is everybody else doing it wrong?

      Apart from the costs to the taxpayers and the boon to defense attorneys’ wallets, is there anything inherently wrong with an automatic right to appeal; especially if it can help us root out and undo miscarriages of justice?

      I am by no means a friend to criminals but I am keenly aware that any justice system run by human beings is bound to make mistakes. I want to lock up criminals and punish them for their crimes, but I also want to do everything within reason to make sure that the people we lock up and punish are criminals.

      • It was the conclusion of the Judicial Council that criminal appeals are not likely to increase. Rather, the increase will be appeals in civil cases. See the report to which I provided a hyperlink.

        TMT, under the current set-up, the odds of prevailing on appeal are often outweighed by the costs. Only about 20-25 percent of civil appeals are heard. Under the proposal, the odds of prevailing will go up–every appeal will be heard by the Court of Appeals. That is why the report projects an increase in civil appeals.

        Wayne, under the proposed system, there will not be “some kind of hearing at which baseless claims can be weeded out.” That is essentially the current system. Every case appealed will be considered on its merits by a panel of three appellate judges. For criminal appeals, the panel will have the option of dispensing with oral argument. That will be the closest thing to a “weeding out”.

  7. re: ” Rather, it is an attempt to provide every criminal defendant and civil litigant the right to have his case reviewed on its merits by at least one appellate court, a right that is enjoyed by defendants and litigants in every state except Virginia.”

    and

    ” The Governor’s proposal reflects the unanimous recommendation of a two-year study conducted by a working group appointed by the Virginia Chief Justice and the Judicial Council. (The membership of the Council consists of eight judges, two attorneys in private practice, and the chairmen of the House and Senate Courts of Justice Committees.) That recommendation is supported by both the Virginia Chamber of Commerce and the Virginia Manufacturers’ Association.”

    hard to see how this is court packing……….

    it sounds more like a social justice thing…….you know that “equity” deal

    automatic appeals – protect the defendent from one judge with an agenda…

    • Give me a break. Most cases don’t go to trial, including criminal cases. Ask Steve Descano. Most cases don’t present issues of fact or law that are likely to present a good appeal. It costs tens of thousands of dollars in legal fees to prepare and file an appeals court brief. Most losers don’t spend the money to appeal when winning on appeal in most cases is a very long shot.

      A few years ago, a client wanted to appeal a Colorado federal district court case to the Tenth Circuit. As did the other side. No one liked what the judge did. We gave the client a fee estimate. Our co-counsel in Denver advised the client that about 10% of the cases appealed to the Tenth Circuit are reversed. Guess what? No one appealed. They settled the case.

      There are no good reasons to allow appeals on all cases – criminal or civil. We aren’t talking about death penalty cases, where there needs to be and is an automatic appeal. Why should society fund more unsuccessful litigation? If someone has a reasonable case with a fair likelihood of success, it will most likely be appealed.

      The state chamber of commerce is essentially a whore for whoever gives it money. Remember this is the same chamber of commerce that supported utility law reform that will increase electric bills for all businesses in the state. Guess who gave it money?

      This is more fleece the taxpayers.

      • weighing in with more obvious ignorance.

        Is an automatic appeal the same as an automatic review?

        Can the higher court do an automatic review and advise prospective appeals?

        or does it not work that way?

        • “Automatic review” is not really a term used in the judicial process. Currently, the losing defendant can appeal the decision to the Court of Appeals. One judge reads the petition and response by the Commonwealth’s attorney and decides whether the Court should conduct a full merits hearing. If the judge rules that the petition should not be granted, the defendant can request that a panel of three judges consider whether there should be a full merits review. Under the proposal by the Judicial Council, a three-judge panel of the Court of Appeals would be required to conduct a full merits review of each case appealed.

          The Supreme Court also reviews the briefs submitted to it for cases on appeal and decides whether to grant a full review of the case on its merits.

          • Thanks Dick. I had asked the review versus appeal question because I thought that there was some kind of “review” done in deciding to hear a full appeal or not.

            So an example would be if a person received a sentence that was way outside of the sentencing guidelines and he/she wanted a second look at it to assure he/she had not be unfairly treated.

          • Dick Hall-Sizemore

            I doubt if a sentence outside of the sentencing guidelines would be appealable. The guidelines are discretionary; a judge can follow them or not.

            Some of the most common bases for appeal are: whether the evidence supported a guilty verdict; whether some evidence should have been excluded or allowed; whether searches were reasonable; whether jury selection was biased; whether the judge’s instructions to the jury were appropriate, etc.

      • Thanks. That answers my questions, above.

        Also, I was concentrating on the criminal appeals process and lost track of the fact that this would also apply to civil cases. I most definitely do not want any more taxpayer money than is absolutely necessary spent on handling civil litigation.

        I think I may have to respectfully disagree with you regarding the the automatic right to appeal in criminal cases, though. I think it’s worth considering.

        I hope you have a nice evening. 🙂

  8. Dick, maybe I missed it in your summary, but does the bill provide a right to appellate counsel for criminal defendants?

    • That is an excellent question.

      • Of course, all defendants and offenders have the right to have counsel in an appeal. Currently, public defenders employed by the Virginia Indigent Defense Commission also handle criminal appeals for indigent defendants, including those originally represented by court-appointed attorneys. Therefore, these attorneys would continue to handle criminal appeals of offenders who could not afford to hire their own appellate counsel.

  9. On Civil Cases, I would hope ALL fees and costs are borne by the litigants not taxpayers.

  10. Well, you Republicans have FINALLY convinced me.
    Given the actions since November 4th, you’re right! We do need tort reform.

  11. Baconator with extra cheese

    Does the bill eliminate white cis male judges? That way we don’t have to worry about imposing portraits swaying our justice system.

  12. I take it that few cases are heard by the full court. I’ve seen 6 lawyers around a lunch table and I can’t imagine trying to wrangle even 11 for serious review of anything.

    This just reduces the burden on the court. It just means that you can have 5 fixed 3-judge panels, or if you want to get into combinatorics of odd numbers less than 15… well, it means that an appellant gets a variety.

    • The Court of Appeals generally uses three-judge panels to hear cases. I do not know if there is a provision in its rules for a hearing by the full court (en banc). The three-judge panels are not fixed, but judges rotate among regions and panels. I do not know what sort of system is used to designate the panel that will hear a specific appeal.

      By the way, the U.S. Supreme Court, composed of nine justices, “wrangles” for a serious review of each of its cases.

      • A 99 and 44 one-hundredths view… without flippancy.

        Unlike the politically frenzied, I have a different view of judges. For the most part, and by a long mile, these men and women are not swayed by any ideology, if you don’t consider a crazed obsession with the minutiae of the law an “ideology”.

        They eschew party affairs and I always chuckle a bit when the media makes a big deal as to which party, or what President/Governor nominated them to their appointments. They are all Souters in waiting. Hands will be bitten.

        But when it comes down to the decisions, no matter how far apart the opinion and the dissent appeared, both are grounded by existing law. You really could not slip a piece of paper between Scalia and RBG when it came to law.

        I apologize for an expressed “high opinion” and will now return to my regularly scheduled programming.

        • Mostly agree but tell me why there is a need for “sentencing guidelines”.

          • Three Sigma, Larry, three Sigma. People are Guassian, and the law needs to be Uniform.

            To remove random error and noise.

          • Dick Hall-Sizemore

            Before the Commonwealth developed the guidelines, studies revealed large discrepancies, by region and by judge, in sentencing for defendants charged with committing the same offense under largely the same circumstances. The guidelines promote uniformity in the system and give judges a sense of what their colleagues on the bench consider equitable sentences.

          • Baconator with extra cheese

            Yet the woke tell us mandatory minimum sentences are racist.
            I wonder why we don’t just have sentences laid out for offenses… if you’re guilty you serve or pay X, problem solved.

          • BTW, I meant justices, more than judges. For the most part a District court judge has as much in common with a Supreme court justice as I, a lowly backwoods mathematician — a mathematicaster some would say — have in common with Erdos.

        • Thanks for your comments and I largely agree with you. I don’t chuckle when the media makes a big deal of which President nominated a judge. Rather, I cringe because doing so helps to reinforce, even a little bit, the growing politicization of the courts.

          • You’re right. It does reinforce the perception and I shouldn’t chuckle, but then, I’m given to schadenfreude, even if I only imagine the anguish of those who believe the courts politicized to that level.

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