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.

 

A QUICK SCAN OF THE APPELLATE FIELD

 

(Posted August 26, 2024) We SCV consumers are on a forced diet as far as opinions are concerned, so let’s see what’s cookin’ elsewhere in our arena, starting with a topic that will most affect my readers.

 

Programming note

I’ve been warning you, so don’t claim that this comes as a surprise: I’ll be calling it a career in a very few weeks, as I have only one more oral argument left. I plan to consider myself retired as soon as I walk out of that courtroom.

VANA won’t survive that retirement. My future posts here will include an overdue statistical report and one last wrap-up essay. I’ll probably publish the latter, my final post after almost 20 years here, during the first week of September.

After that, I’ll leave the site active through the month of September, but starting in October, you should expect to receive a 404 error message at this address. If there’s anything here that you really liked, now would be the time to run off a copy.

Given the absence of any pending argued SCV appeals, this is as good a time as any to end things. See the OJ caveat below, but the next published opinion probably won’t arrive for another two months. That means I won’t be leaving anyone hanging.

 

September argument dockets

The Supreme Court of Virginia has released the schedule for the September session. There are six appeals on it. The court will convene September 10-11, hearing three sets of arguments per day. The next published opinions will come from this batch, probably starting in late October, unless we get a ruling in an OJ case for which there’s no oral argument.

Once upon a docket, the September session was one of the court’s busiest. That’s a function of the calendar: The gap between the June and September sessions, at 3+ months, is the longest on the court’s calendar. That means more time for appeals in the pipeline to mature for argument and thus land a spot on the session docket.

Those bountiful days are gone. Last year, the September docket featured five appeals; there were seven in September 2022. This reflects the overall paucity of merits appeals. The September session will bring to just 31 the number of merits arguments considered by the justices. That’s for the whole year. By way of comparison, the Supreme Court’s September 2015 docket alone comprised 22 appeals. (I have the docket sheets to prove it.)

The court will gather just once more in 2024, the week of Halloween. I wish I could forecast a bumper crop of appeals that session. But the justices have quite obviously made a conscious decision to hear a tiny number of appeals now. Incoming business, in the form of petitions for appeal, have indeed slowed; but grants have crashed. This isn’t mere coincidence.

Meanwhile, the Fourth Circuit will send out a road-show panel to North Carolina Central University’s Law School in Durham, also on September 10, and will convene regular argument panels in Richmond two weeks after that. The Court of Appeals of Virginia is the judicial equivalent of Waffle House: We Never Close. That court has continued to hear oral arguments all summer long, at least once a month in each of Virginia’s four regions.

 

A study in concord

One of the benefits of studying a given court’s rulings over a long period is that you notice trends that wouldn’t be immediately obvious to the casual observer. In that vein, I thought I had seen remarkable agreement between the votes of SCV Justices Kelsey and Chafin. I decided to check into a decidedly non-secret database – the court’s published and unpublished rulings – to see how the votes shake out. This note will be an appetizer for the coming statistical essay.

I know what you’re thinking: What was your first clue, Sherlock? These are the two most conservative justices on the Supreme Court of Virginia, so they’ll naturally agree quite often. But my survey showed a remarkable correlation; more so than a simple agreement in judicial philosophy would portend.

Justice Chafin joined the court in August 2019, so the two have been on the court together for right at five years. In that time, I counted 294 decisions – published opinions and unpubs – in which the two of them both participated. I excluded, for obvious reasons, any decision where one or both sat out the proceedings.

In that time, running up to and including the court’s most recent decision earlier this month, the two have cast identical votes 292 times, and have differed only twice, most recently in VEPCO v. SCC, issued just over three years ago (July 2021). That’s a concord of 99.3%, a rate that your favorite appellate stats geek found astonishing despite their well-aligned views.

I hasten to add that the Supreme Court of Virginia hands down a lot of unanimous opinions. By far the most common outcome in an appeal is a 7-0 decision. But when the justices divide, Kelsey and Chafin hold firm to each other. Their votes have been absolutely identical to each other’s in something like the last 150 straight SCV decisions. I don’t expect that to change in the near future.