By Peter Vieth, Virginia Lawyers Weekly – 1/25/2021
Virginia Democrats are split on whether the Court of Appeals needs four or six new judges to handle the burden of providing an appeal of right for every circuit court judgment.
Otherwise, however, the blueprint for an expanded intermediate appellate court is generally the same in both Senate and House bills filed Jan. 12 at the state Capitol.
A measure introduced by Sen. John Edwards, D-Roanoke, called for increasing the number of Court of Appeals judges from 11 to 17. A similar bill from Del. Charniele Herring, D-Alexandria, would increase the court to 15 members.
“I went with the governor’s appropriation,” Herring said, referring to a $5.1 million budget amendment offered by Gov. Ralph Northam. Herring is the House Majority Leader and chair of the House Courts of Justice Committee. Edwards, chair of the Senate Judiciary Committee, said he looked to the experience of other states in proposing a 54% increase in the size of the court.
3-judge writ panels
Both proposals provide for three-judge panels to rule on petitions seeking review of both criminal and civil judgments. The path for criminal appeals would be largely unchanged. The proposals would add an “ends of justice” option for extending deadlines for petitions.
The proposals eliminate the requirement for a criminal appeal bond. The bills would allow writ panels to dispense with oral argument if a panel unanimously concludes an appeal is frivolous or the dispositive issues have been authoritatively decided. Edwards said the standard for waiving oral argument was based on that used by the 4th U.S. Circuit Court of Appeals.
The Assembly bills would put the attorney general’s office in the driver’s seat on whether to take over representation of the state in criminal appeals. Currently, local commonwealth’s attorney’s offices defend some criminal appeals.
The measures would transfer the job of hearing appeals of injunctions and interlocutory appeals from the Supreme Court to the Court of Appeals. The bills provide for expedited review of protective orders.
While the General Assembly would consider regional diversity in electing judges to the Court of Appeals, the court would not be divided into regional panels. The court would sit as panels in various locations around the state as it does now.
Larger court urged
Two appellate law specialists who examined the 44-page bills to provide appeals of right suggested Edwards has the wiser proposal with six additional judges for the Court of Appeals.
Making what he called “scientific wild guesses” on the expected caseload of the expanded Court of Appeals, Virginia Beach attorney L. Steven Emmert said an increase of about 50% in the size of the court would maintain the same ratio of incoming cases to judges.
The largest increase in new cases likely would come from civil appellants, Emmert said.
“It is eminently foreseeable to me that more unsuccessful civil litigants will choose to appeal if they get one appeal of right,” he wrote after reviewing the Court of Appeals legislation.
Richmond attorney Norman A. Thomas also expected an increase in civil petitions for appeal, supporting the call for more than four new judges.
“I foresee that there will be a relative enormity of new cases that the Court of Appeals will be called upon to decide through appeals of right,” Thomas said. “The new entitlement to review by right of adverse decisions, at least initially, can be expected to invite litigants to undertake appeals,” he added.
“And more, those appellate cases will include several subject matters with which the court’s existing judges may have little or even no prior experience. The court’s adjustment to increased volume and additional topical areas naturally will take time,” Thomas said.
Edwards said a Senate advisory panel of appellate lawyers agreed that more than four added judges would be needed for appeals of right to the Court of Appeals and resulting discretionary appeals to the Supreme Court.
“In order to do that right, we’re going to need more judges,” Edwards said Jan. 20. The Michigan Court of Appeals has 25 judges, and Edwards said that court’s caseload is comparable to that expected for the expanded Virginia Court of Appeals.
“And we’re going to add some additional money for that,” Edwards said.
Edwards said the advisory committee spent time Jan. 19 suggesting tweaks. Additional changes in the Senate proposal would be forthcoming, he said.