A unanimous verdict — All blue-ribbon panel members endorse expanded jurisdiction

By Peter Vieth, Virginia Lawyers Weekly – 10/26/2020

A 24-member group studying the jurisdiction of the Court of Appeals is unanimously in favor of allowing an appeal-of-right in all circuit court cases. The newly fortified proposal could remake Virginia criminal and civil procedure.

The recommendation comes from a blue ribbon panel. Prodded by the General Assembly, Supreme Court Chief Justice Donald Lemons this year reconstituted a 2018 working group formed to study the jurisdiction of the Court of Appeals.

The group spoke with one voice last month in urging appeals-of-right in both criminal and civil cases, but the group made no specific recommendation on the number of additional judges, staff or dollars required.

The group’s Sept. 24 report recommends keeping regional hearings, but not splitting the court into regional divisions with judges and staff assigned to one particular area.

The Judicial Council, a judicial-legislative body that makes recommendations to the General Assembly, was scheduled to consider the panel’s recommendations Oct. 22.

Several lawyers who reviewed the 71-page working group report said the ultimate question now is not whether Virginia should expand its Court of Appeals jurisdiction, but whether and when legislators will find the will to pay for the change.

“I think it is a fundamental structural necessity in the civil justice system,” said Roanoke appellate attorney Jay O’Keeffe.

History of study
Virginia is the only state that does not guarantee an appeal-of-right for every trial court outcome. One lawyer recalled how one of the original Court of Appeals judges had urged expansion of the court’s menu 25 years ago, concluding the Assembly had erred in limiting the court to criminal, domestic and administrative law.

Study panels have scrutinized the jurisdiction of the Court of Appeals at least four times since the court was created in 1985. The 2018 Supreme Court study group recommended an appeal of right as a “long-term goal.”

In March, at the suggestion of Sen. Scott Surovell, D-Fairfax County, the General Assembly asked for a Judicial Council report on the jurisdiction and organization of the Court of Appeals by the start of the 2021 session. The Judicial Council requested public comments by Aug. 21. The public’s response was positive: only six of 34 comments opposed the appeal-of-right proposal.

“Everybody’s human,” O’Keeffe said, calling for a universal right of appeal. “I think it’s really helpful and necessary to have a second set of eyes on some of those rulings,” he said.

“This is clearly the biggest suggested change in the Virginia judiciary since the creation of the Virginia Court of Appeals in 1985,” said criminal attorney Jonathan Sheldon of Fairfax. He termed the group’s statement an “important and significant report.”

“The suggested changes are wise and it is time for them,” Sheldon continued.

Granting all criminal defendants a first appeal as-of-right to the Court of Appeals is “badly needed,” he said. “Virginia is the only state in the country that fails to provide an appeal as-of-right,” Sheldon added.

He said he expected strong support from the legislature for the changes.

Appellate attorney L. Steven Emmert of Virginia Beach said he, too, welcomed the report. He said the panel’s unanimity suggested it would win support from both the Judicial Council and the Supreme Court.

The change in criminal appellate procedure could be minor, Emmert said. “This proposal eliminates the single-judge review and the need to petition for appeal, allowing immediate merits review by three judges,” Emmert said.

And there would be a “subsurface” change: The Office of Attorney General would get involved immediately, as soon as the defendant notes an appeal, Emmert said.

“I was pleased to read that the AG is on board with this,” Emmert added.

Writ panels
Emmert said the report leaves an open question about civil appeals to the Supreme Court.

“To appeal from [an appeals court] ruling to the Supreme Court, the appellant would file a petition, just as now. Will the justices continue to convene writ panels for oral argument on those petitions?” Emmert queried.

“I’ll be interested to see how the court proceeds on this. Not having to convene writ panels would make the process much simpler for the justices,” Emmert said.

‘Devil’ in the financials
Appellate attorney George Somerville said the public probably assumes that every losing litigant has a right to appeal their loss. “Very recently, in fact, a prospective client expressed amazement and dismay to me that Virginia does not allow appeals of right in civil cases,” Somerville said.

Money will be the deciding factor, he predicted.

“In this area, … the devil is not in the details but in the financials. It is an ‘express premise’ of the distinguished Working Group’s recommendation that the General Assembly will provide funding for the additional personnel that undoubtedly will be needed. That, of course, is where the fate of this worthwhile proposal will be decided,” Somerville predicted.

Surovell – who shepherded the study proposal through the Assembly’s 2020 regular session – agreed the biggest question will be the cost and whether the Assembly is willing to fund the changes now versus later.

“[T]he shrinking number of practicing lawyers in the legislature makes it more difficult to raise awareness,” Surovell said. “There are only 24 of 140 members who practice law in courthouses,” he noted.

The report anticipates funding obstacles. Enactment of a “recast system of appellate jurisdiction” would likely require consideration in an even-year “long session” of the Assembly as part of the overall budget, the panel said.

“The next budget session is 2022, but that cycle may be unrealistic given current fiscal realities,” the report said.

“Thus, at least some of the comments received propose having a Legislative Study finalize the details of the appeal-of-right architecture for Virginia criminal and civil appeals by early 2023, such that it could be submitted for budget purposes prior to the 2024 budget session,” the report said. “The implementation would then become effective in July of 2024.”

Emmert said it might be better to push for quick approval.

“All of the discussion of the need for an appeal of right, all of the solid evidence in favor of this change, yields to an anticipated empty-pockets shrug. I believe that the proposal should go forward now,” Emmert said.

“[T]he sooner the proposal appears in Capitol Square, the sooner it can reach fruition,” he added.

Surovell said he remained concerned about a “lack of diverse perspectives” on the Court of Appeals.

“One of 11 judges lives in Northern Virginia and there is only one person of color on the court, although the state is 30% minority and 30% of the state’s population lives in Northern Virginia. We need to think about ways to address this,” Surovell said.

Historic issue
Talk of enlarging the Court of Appeals’ palette goes back to the origin of the court. Judge Bernard G. Barrow, one of the inaugural members, advocated for general jurisdiction and expanded membership, according to Roanoke attorney John Koehler, a former career law clerk at the Supreme Court of Virginia.

Koehler said he favors Barrow’s vision of regional courts, so a decision by one three-judge panel would not automatically bind every other court panel. The Supreme Court would resolve regional conflicts, under Koehler’s vision.

He shared concerns about the financials in an Oct. 17 email. A recommendation for expansion of the Court of Appeals jurisdiction should include recommended numbers of judges and staff, Koehler said.

“Unfortunately, the General Assembly is known for its parsimony when it comes to allotment of judges and court staff,” Koehler said.