(Posted October 23, 2017) Virginia Lawyers Weekly’s Peter Vieth is reporting today on an announcement by the Supreme Court of Virginia relating to the procedure for evaluating petitions for appeal.

For generations, the court has awarded a writ at the request of a single justice. In three-justice writ panels, an appellant hasn’t needed unanimity or even a majority; just a single nod of the head from a single justice gets you to the merit stage.

No more; on August 22, the court voted to require two affirmative votes to grant a writ. That’s true whether the court acts on a petition for appeal or on a petition for rehearing after a writ denial. (For PFRs after a decision on the merits, the rule is unchanged. You just need one justice who voted against you to grant that kind of rehearing.) Today’s story notes that the justices implemented the new procedure immediately, which means it was in effect for the late-August writ panels.

Here are a few thoughts on this change:

The immediate question that comes to mind is what prompted this. In theory, some members of the court might feel that one or more of their colleagues have been writ “spendthrifts,” granting writs too expansively, and this was a way of reining them in. In this regard, this change will predictably lead to even fewer writs, as it’s likely that the court granted at least some previous appeals by a “vote” of 1-2. For those of us who have watched with concern the decline in the grant rate, that’s not an encouraging development; we can anticipate a slightly lower grant rate from now on.

Candidly, I tend to doubt that that’s the primary reason for the change. Exhibit A for my thesis is that declining grant rate. If writ panels were too munificent, we’d see a much larger merits docket. Exhibit B is that if there were plenty of ill-advised grants, we’d probably see a surge in the number of decisions by unpublished order. But in 2016, the court decided only 47 appeals by unpub, after using that vehicle 57 and 60 times in 2014 and 2015, respectively. There have been only 25 thus far in 2017, a pace that would result in roughly 30 unpubs by the end of the year.

The simplest explanation – which, like William of Occam, I generally prefer – is that someone on the court felt that the one-justice rule was essentially undemocratic. Today’s VLW article quotes Professor Ham Bryson, for whom I have very high regard, for this perspective:

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.

So, is this really just a shift in an “internal and private agreement”? I don’t think so.

The VLW article mentions a statute and a rule that relate to the court’s procedures. For now, let’s focus on the statute. Here’s an initial clip from Code § 17.1-308:

The Supreme Court may sit and render final judgment en banc or in divisions, as may be prescribed by rules of the Court not inconsistent with the provisions of this section. No decision shall become the judgment of the Court, however, except on the concurrence of at least three justices …

And here’s another one, from the next sentence:

If the justices composing any division differ as to the judgment to be rendered in any cause … the case shall be reheard and decided by the Court sitting en banc.

Let’s take these excerpts in reverse order. Rule 5:3(b) defines a division of the court as three justices. If you have four or more, it’s en banc. So your basic three-justice writ panel is a division of the court. The plain language of § 17.1-308, then, is that if there is any disagreement among the writ panel, the entire court decides the matter. That’s what has happened now for decades; the court’s previous practice is perfectly aligned with this statute. The rules incorporate this provision: the language in this second passage appears almost verbatim in Rule 5:3(c). There would appear to be a statutory and rules-based foundation for the previous practice.

But let’s return to the initial passage that I quoted above: “No decision shall become the judgment of the Court, however, except on the concurrence of at least three justices …” Again, considering the usual three-justice writ panel, if exactly one justice wants to grant a writ, you don’t have the needed three-justice concurrence to constitute a decision of the court. That means that a writ refusal by a 2-1 margin could not be the decision of the court in such a case.

I’ve played around with this in my mind, trying to figure out how to square the new policy with the three-justices-required rule. The only thing I can conceive is that the new policy fits if you maintain that a writ refusal isn’t actually a “decision” in a case; if you insist that only the full court can issue a decision. That’s conceivable, but I’m skeptical; after all, a writ refusal sure looks for all the world like an adverse “decision” to a losing litigant. I can’t conceive that that’s the most natural reading of the words in the statute.

And yet that’s where we are. As of now – actually, as of two months ago, whether you knew it or not – you need two votes to get a writ.