A LAST LOOK AROUND

 

(Posted September 18, 2024) As the sun prepares to set on this website, here are a few final observations on appellate matters here in the Commonwealth. I may post one more essay – probably a retrospective – but this will be the last normal update here.

 

A precious few new writs

The Supreme Court’s August 28 panels have thus far generated four writs granted. Petitioners argued 36 appeals that day. Given the usual grant rate, we might see a couple more this time, leading to yet another slim merits docket next spring.

Continuing the trend we’ve seen in 2024, the new grants comprise three criminal cases and one civil. In a development that would have been unthinkable a generation ago, almost 2/3 of the Supreme Court’s current merits docket involves criminal (including habeas) cases.

In the wake of Senate Bill 1261, which gave all litigants an appeal of right in the Court of Appeals, I pondered whether the SCV would follow the example of Those Other Robes up in Washington. (It’s well known in appellate circles that SCOTUS considers itself a court of law development; the justices there leave error correction mostly to the Courts of Appeals.) But before 2022, the Supreme Court of Virginia was the only reviewing court for most civil judgments, so that earlier court naturally granted plenty of civil writs.

Not ‘ny more. Here are the number of civil appeals granted in the past several years. Keep in mind that the 2022 figure was suppressed by the new appeal-of-right dynamic; but it should normally have bounced back by now:

  • 2017 – 80
  • 2018 – 90
  • 2019 – 62
  • 2020 – 72
  • 2021 – 58
  • 2022 – 31
  • 2023 – 15
  • 2024 – 10 to date

The civil/criminal imbalance, plus the overall crash of the writ market, convinces me that my suspicion was well founded. The justices have decided to make the SCV a court of law development. If it’s error correction you need, do a good job in the Court of Appeals.

 

New discussion of appellate bonds

The estimable Dan Huckabay of Court Surety Bond Agency in California has a new essay entitled, “What We Can Learn from Donald Trump’s Appeal Bond.” Most of us will never have to face the logistical nightmare of pasting a nine-digit suspending bond, but Dan outlines several lessons that appellate practitioners can learn from the high-profile process.

 

An archive for VANA

I swear I didn’t do this myself, but someone has archived my posts here at the Wayback Machine website. Here are links to my SCV analyses, CAV analyses, and my essays over the life of the site:

https://web.archive.org/web/20240906184801/https://virginia-appeals.com/scv-option-analysis/

https://web.archive.org/web/20240906185033/https://virginia-appeals.com/cav-opinion-analysis/

https://web.archive.org/web/20240909133610/https://virginia-appeals.com/category/essays/

Fair warning: I have no control over Wayback, so I can’t guarantee how long these will be live. But they should be there well after I wrap things up.

For now, you have a little more time to review things at this URL. I had previously reported that VANA would go dark at the end of this month, but I now know that the content here will be active through the end of November 2024.

 

A home for briefs and stats, too

Over the course of my appellate career, I’ve maintained a brief bank for all of the appeals I’ve handled. Not wanting those to rot in a file cabinet somewhere, I’ve donated the whole bunch to the Wahab Law Library here in Virginia Beach. That means that if anyone contacts the library and wants a sample appellate brief, the librarians there can furnish plenty of examples.

I’ve also donated materials to the State Law Library, located in the Supreme Court Building in Richmond. I’ve given them a few law books that they found useful, but I was particularly happy to find a permanent home for my collection of SCV statistics. Those go back to 1951 – though the earliest reports are bare-bones – and are contained in a binder that the librarian was happy to receive. I think they’ll be available to visitors who come to the library and ask.

The State Law Library is one of the several things that I’ll particularly miss once I’ve transitioned to Old Business. The staff there is wonderful, and there’s nothing like the treasure hunt of wandering the stacks in The Dungeon there. For an old book lover and appellate geek, it’s easy for me to lose track of time back there.

 

Another “forgotten prisoner”

Last year, when the litigants in Vlaming v. West Point School Board waited for 13 months for a ruling, I conjured a dim memory from my childhood of a monster model kit called The Forgotten Prisoner of Castel Mare. (Here’s what it looked like.) I mused then that the litigants must feel like that forlorn prisoner, known as Baron Sorgi, while the appeal languished.

I learned last week about a current appeal on the SCV’s shadow docket that brings the poor baron back to mind. An entity called Hear Our Voices, Inc. and some individuals filed a mandamus petition in the Supreme Court in December 2023. The respondent, the Attorney General, duly responded to the petition, and the parties waited, knowing that, as with almost all OJ proceedings, they wouldn’t get oral argument.

They’re still waiting. The appeal is now into its tenth month with no sign from the court that someone is tending to the prisoners. (Litigants. I meant litigants.) A ruling could come as soon as tomorrow, or we could find ourselves in Vlaming territory around the first of the year.

 

SCV STATISTICS OVER THE LIFE OF VANA

 

(Posted September 3, 2024) One of my favorite recurring features here is the occasional review of appellate statistics, especially those relating to the Supreme Court of Virginia. Because the hourglass is about to run out on this website, I thought it would be interesting to compare that court’s statistics from 2005, the year I began publishing, and 2023, the last year for which an official stats report exists. For those of you who aren’t stats geeks – nobody’s perfect, so I’ll forgive you – I promise to use a lot of plain English. Shall we?

While the stats reports offer plenty of minutiae, I decided to focus on the core numbers. Let’s start with the one that drives the others: caseload.

  • Incoming petitions filed, 2005: 2,697
  • Incoming petitions filed, 2023: 956

This is the first indicator that appeals aren’t a growth industry in Virginia. The number of folks appealing adverse judgments to the Supreme Court is down by 65% in this span. Put another way, litigants are pursuing only about a third as many SCV appeals now as we saw when I started publishing.

I’ve mused on occasion about the possible causes for this dramatic dip – the high cost and long delay of appealing; the rise of ADR – but regardless of the true cause, we have to start further analysis with this 65% decline.

  • Petitions for appeal (civil) granted, 2005: 129 (21.6%)
  • Petitions for appeal (civil) granted, 2023: 15 (8.8%)

(Note that civil in this case excludes habeas petitions, which are technically civil; I’ve grouped them with their criminal-appeal cousins.)

You’ve seen my hypothesis that the justices have simply decided to grant fewer appeals, leading them to reject petitions whose metaphorical cousins would have been granted a generation ago. This alarming stat is my Exhibit A for that thesis. If the grant rate had stayed the same – that is, if The Robes had issued writs at the same 22% pace as the previous generation of justices did – then last year would have generated 37 granted appeals.

Where did those missing writs go? It isn’t to the “refused pile,” to purloin a phrase; the percentage of refused petitions was nearly unchanged (57% in 2005; 54% last year). Here is where they went:

  • Procedural dismissals (civil), 2005: 126 (21.1%)
  • Procedural dismissals (civil), 2023: 64 (37.6%)

Yes, the raw number of dismissals is down, but look at that percentage! The Supreme Court is far more likely to dunk a given appeal now than it was in VANA’s infancy. For every eight petitions that SCV Clerk Muriel Pitney’s staff logs in, the justices summarily swat aside three, most probably without even a writ hearing.

What happened? It’s possible, of course, that the quality of appellate advocacy has plummeted in the past 18 years. Candidly, I doubt that. Appellate training is far more available, and we have something now that we didn’t have back then: a cadre of truly appellate lawyers; the appellate guild, as I’m fond of calling them. Those lawyers are far less likely to make foolish procedural mistakes.

I also doubt seriously that random chance is the explanation. That’s because this higher dismissal rate isn’t a one-time spike. The Robes have been doing this for several years now.

I turn instead to the explanation with which I started: a conscious decision by the justices to reduce their merits workload. They’ve even jiggered their procedures to make that happen, internally requiring two writ-panel votes to award an appeal, even though the Rules of Court and a statute mandate that a single vote to grant means that the appeal is headed for the merits docket. How can they just ignore a statute? Well, who’s going to reverse them on it?

  • Petitions for appeal (criminal) granted, 2005: 34 (2.3%)
  • Petitions for appeal (criminal) granted, 2023: 20 (4.9%)

Did you see that coming? A criminal/habeas petitioner is now twice as likely to get a hearing before the full Supreme Court than were those unfortunate petitioners in the Dubya Administration era. It’s still just one out of twenty; but it used to be out one of 43. The refusal rate in criminal appeals was almost identical (88.8% then; 89.1% now; a difference that isn’t statistically significant). But watch this:

  • Procedural dismissals (criminal), 2005: 129 (8.9%)
  • Procedural dismissals (criminal), 2023: 25 (6.1%)

Criminal and habeas appellants haven’t caught the procedural-default bug; a noticeably greater proportion of those petitions have made their way through procedural review to get a decision on the issues. That might be because they’re frequent flyers and they know the rules better; it might also reflect a degree of judicial forbearance, to cut down on the number of otherwise meritorious habeas petitions that would ensue.

One other significant point from the stats above: The merits docket has switched from one primarily driven by civil appeals to one where criminal appeals predominate. In 2005, the court’s writ panels awarded 129 civil writs and just 34 criminal ones. Civil appeals were almost 80% of the merits docket. Last year, we saw just 15 civil grants and 20 in criminal/habeas appeals.

This trend is unmistakable, and it continues to this day. In 2024, I count nine civil writ grants and 15 criminal/habeas ones. The Supreme Court of Virginia once overwhelmingly issued civil decisions, but almost all of those are gone now.

Here are a few takeaways before we move on to some other figures.

  • It’s still very hard to get a writ from the Supreme Court of Virginia. In civil cases, your odds are roughly one in eleven. The rate isn’t zero, so if you’ve lost in the CAV, you still have a chance on further appeal if you keep trying.
  • The waiver hawks (to borrow a term that a treasured appellate pal crafted a few years ago) are in firm control at the Supreme Court. This means that if you’re an appellant, you must practice a form of defensive lawyering, something I once advised against. The previous ideal appellate approach, of a single focused assignment on a single key issue, is now far too risky. Nowadays, you must protect yourself by adding more issues, more assignments, more arguments. You need to employ belt and suspenders and not apologize for it.
  • On the other side of the “v.,” if you’re an appellee, it’s in your interest to raise waiver early and often. For appellees, the beautiful thing about waiver claims is that you can never lose on these arguments; either you win the issue (or maybe even the whole appeal), or else the court goes on to evaluate the merits, where you might still win. There is literally no down side to arguing that your opponent has forfeited appellate review of his key issue.
  • Criminal-law advocates are somehow far better at preserving and presenting appellate issues than are their civil-law brethren and sistren.

Now we’ll turn to the opposite end of the decisional process. We started with new filings, so let’s examine the merits decisions:

  • Opinions released, 2005: 105
  • Unpubs released, 2005: 67
  • Opinions released, 2023: 25
  • Unpubs released, 2023: 10

Here’s the real crash. In 2005, the court convened six merits sessions and handed down 172 rulings – about 29 per session. Each justice, on average, was responsible for roughly four opinions/orders each time. Last year gave us the same six gatherings but just six rulings per session. There are seven justices! In 2023, the chief justice didn’t write an opinion all year, and Justice Chafin’s pen didn’t exactly run out of ink, either. (She authored just two opinions.)

The numbers tell a bleak tale: While we saw earlier that incoming filings were down by 65% compared with 2005, merits decisions were down 80%. There has to be an explanation for that noticeable gap, and here’s my nomination: The justices are actively reducing the size of the merits docket by refusing previously writworthy petitions for appeal. Statistically, there just isn’t another plausible explanation for these anomalies.

 

One last David-Goliath Index

As long as we’re talking statistical analysis, and we’re at what’s probably a two-month lull between opinion days, I may as well set out where our big guys and little guys are for the current year. In the third quarter of 2024, I count one victory for the Davids and five for the Goliaths, for full-year totals of seven and nineteen wins, respectively. That gives us a year-to-date D-GI of 27/73 – that is, the Supreme Court has ruled in favor of the little guy in roughly one appeal out of four, and the big guy (governments, insurance companies, condemnors, etc.) three out of four.

Once upon a time – this was a generation ago – the Supreme Court of Virginia issued merits rulings that divided roughly equally between David and Goliath. That started to change in Goliath’s favor in about 2012. It accelerated rapidly around eight or nine years ago, when Justices Kelsey and McCullough arrived. Last year was David’s recent high-water mark, as he came away with the gold medal 40% of the time. This year’s results are something of a reversion to the recent mean. Until a majority of the court’s personnel changes, I believe that you’re likely to see something very much like this 3:1 ratio in future appeals.