It takes 2: Supreme Court raises the writ bar

By Peter Vieth, Virginia Lawyers Weekly – 10/23/2017

It may be a notch more difficult to get your appeal before the Supreme Court of Virginia.

The court has decided to require approval of two justices – rather than just one – to grant a petition for appeal or a petition for rehearing of a writ denial.

The change marks a break with decades of practice at the high court. Chief Justice Donald W. Lemons said the one-justice tradition evolved from days when lawyers and litigators needed to locate a single justice to get their appeal on the court docket.

“It’s a function of history and not current necessity,” Lemons said. “It’s simply a practice the court, over the course of time, has developed,” he said.

The new two-justice practice was disclosed by Lemons Oct. 19. He said the justices approved the change at a meeting Aug. 22, effective immediately. Because the change affects only court practice, and not any law or rule, the court determined not to make an official announcement.

Appellate practitioners pointed to a statute and a rule which arguably call for a full court rehearing if any one member differs from the judgment of a three-justice panel. Both Va. Code § 17.1-308 and Rule 5:3 share similar language to that effect.

Lemons said the court did not regard those provisions as a barrier to their change of internal practice. “We considered both. We found absolutely no difficulty with either one,” Lemons said.

University of Richmond Law Prof. W. Hamilton Bryson, who teaches and writes on Virginia legal history and Virginia procedure and practice, agreed that the statute and rule would not impede a court from adopting informal internal practices.

“I have always been told that, when a single justice on a writ panel agrees to accept a petition for an appeal, the other two justices concur as a matter of courtesy,” Bryson said. “As a general matter of law, a majority is always required to grant any motion, request or petition. So therefore, if the Supreme Court of Virginia requires a concurrence of two, this will not be a change in the law, but only in the internal and private agreement among the justices,” Bryson said.

Lemons said no other state appellate court in the U.S. provides for discretionary appeals to be granted on the vote of only one judge or justice. Many require a majority of the court to approve before considering an appeal.

The change in practice has no effect on petitions for rehearing after the court issues a decision on the merits of an appeal, nor does the change apply in any way to the practice of the Court of Appeals of Virginia, Lemons said.

Lemons said he would not expect the change to affect the practice of lawyers hoping to get their appeals heard at the high court.

“Either you have a meritorious appeal or you don’t. I think, if you do, you ought to be able to persuade two out of seven,” he said.

Initial reactions were mixed among Virginia appellate lawyers.

“I have always liked the One Justice Rule myself – it is sort of comforting for a client to hear that it only takes one justice to get the appeal granted,” said Frank K. Friedman of Roanoke.

“It makes perfect sense,” said Monica T. Monday of Roanoke of the new practice. “When an appellate court sits as a panel of three, you need two to have a majority, so basically you need two to carry the day.”

L. Steven Emmert of Virginia Beach wondered if the new rule might work to limit the size of the court’s docket. The court granted 123 writs last year – 93 civil and 30 criminal appeals. That was a boost from the previous four-year average of 106 writs a year, Emmert noted in a March essay.