APPELLATE NEWS AND NOTES
[Posted November 10, 2015] As we celebrate the 144th anniversary of the most famous question of the Nineteenth Century (“Doctor Livingstone, I presume?”), here are a few items of interest in the appellate field this week.
New appellate rules
On October 30, without any fuss at all – and without even a mention on the court’s “what’s new” website page – the Supreme Court promulgated several rule changes, some of which relate to the appellate courts.
Rules 5:35 and 5A:30 deal with a precious topic, that of appellate attorney’s fees. The amendment adds a new section (b)(2) to the SCV rule, and a new section (b) to the CAV rule, providing for awards of attorney’s fees in domestic-relations cases.
The court amends Rule 5:21, for appealing from the State Corporation Commission. This is designed to address the procedural mess that came to light in BASF Corp. v. SCC, the April decision involving power lines across the James River near Fort Eustis.
There are also amendments to Rules 5:13A and 5A:10A, which allow the transmission of digital records from trial courts to appellate courts. The word court is changed to tribunal, presumably to include entities like the SCC and the Workers’ Comp Commission.
Criticism of Rule 1:1
The Richmond Times-Dispatch has an editorial today that discusses problems associated with Virginia’s 21-day finality rule. The editorial notes that prosecutors seeking to undo a set of fictional affidavits, filed by a police officer to get search warrants, have tried to find a way around the rule, although the paper posits that those same prosecutors would vigorously oppose a criminal defendant who tried to finesse the rule.
I invite you to imagine what would happen if Virginia litigants – and not merely inmates, but civil litigants, too – could move to reopen a case after many moons, asserting the discovery of new evidence. You’d have an awful lot of unhappy trial judges.
This Thursday’s opinions
As my readers know well, Thursdays are now the rolling release dates for Supreme Court opinions. As I noted last week, there are still six unresolved appeals that were argued in September; foreseeably some of those will come down this Thursday, either as published opinions or as unpublished orders.
That’s some bad timing for me, because this Thursday I’ll be in Washington, DC for the ABA’s Appellate Summit. I’ll get to this week’s rulings when I can, but it may or may not be same-day this time around.
About those unpubs …
Historically, the Supreme Court decides about 35-40% of its appeals by unpublished order. In the past three years, the annual percentages are increasing noticeably: 37% in 2012, 41% in 2013, and 44% last year. I don’t have year-long figures for 2015 yet, but it occurred to me, as I reviewed the decisions that have come down in the past few weeks, even that more of them are unpublished this time around.
It turns out that my sense was right. Of the 16 cases decided from the September session, half have been unpublished. Now, the stats geek inside me insists that that may be because we have an incomplete set of data: the court may have released its unpubs first, because they were less complicated than the published opinions. That would actually make sense. But we’ll have to wait a while longer to see if the percentages return to historical norms.