NOTE ON RECENT APPELLATE DEVELOPMENTS
(Posted September 30, 2020) Today brings to a close a tumultuous third quarter of a year that most folks will be happy to see in the rear-view mirror. Let’s look around the landscape.
David-Goliath Index
We may get one or more published rulings tomorrow, but those will fall in the fourth quarter. With the third in the books, I can update the D-GI.
Except there’s not much to report. The Supreme Court of Virginia handed down just five published opinions in the past three months. Nope; not a typo. Only two of those had the kind of big-guy-vs.-little-guy dynamic that made them suitable for our index, and the warring combatants split those. That brings our running total for the year to 12 wins for David and 27 for Goliath, for a year-to-date D-GI of 31-69.
On the coming appellate drought
First, the good news: The advance November session docket is out, and there are 19 appeals on it. That’s great! It reflects a noticeable uptick in business since the eleven-appeal September session, and a huge increase since June’s micro-session of just five merits appeals.
But there’s bad news, in multiple doses. The 800-pound gorilla among them is the fact that the pandemic and the accompanying judicial emergency have yet to affect the justices’ merits dockets. Appeals don’t mature fast enough for that. The appeals that advocates will argue in November come from final judgments that came down before the original declaration of judicial emergency on March 16, 2020.
How do I know this? The easy answer is that of the 19 appeals, 16 have record numbers that begin with the number 19. That means that the Supreme Court Clerk received the record last year. Another two appeals bear record numbers beginning with 20, but they’re among the first 100 records received – so the records arrived at Ninth and Franklin in January.
The final appeal in this group is one that’s been racing through the appellate system: City of Charlottesville v. Payne, Record No. 200790. The case-information page for that litigation shows that the circuit court issued a final order on January 29, 2020. The Supreme Court received the petition for appeal on June 15 – the appellant received the benefit of tolling of the deadline to file the petition – and the justices granted the writ August 20, just three weeks after receiving the record. That’s lightning-fast.
This means that all of these appeals predated the pandemic. The abrupt (and very necessary) halt of jury trials has slowed the usual current of final judgments to a trickle, so future dockets should eventually bear out that slowdown. The January merits docket may still be robust, as the justices granted a surprising number of appeals from the May writ panels. But the October 20 panels are out now, and they contain about 40 appeals, down from the customary load of about 65.
This, in turn, means that next year – probably starting with the February argument docket, but assuredly in April, June, and even September – we’re looking at the very real possibility of more micro-sessions like this past June’s. This slowdown will linger as long as circuit courts wrestle with slower-than-normal trial calendars, with a lag of about eight months for writ arguments and a bit over a year for merits appeals.
One last item of good news: The Chief Staff Attorney’s Office slated an added writ panel in late August, so incoming business as of then was still healthy. Now if we could only persuade the justices to grant a greater percentage of writs.
Remote arguments continue
I reported earlier that the Court of Appeals of Virginia will hear all arguments remotely through the end of 2020. The Fourth Circuit is announcing its decision one argument week at a time; the court recently notified litigants that in-person oral arguments in the October 27-30 sitting would be suspended. Those parties will appear by video or teleconference, continued to next year, or submitted on the briefs. The Supreme Court of Virginia’s October 20 writ panels will be by telephone only, while the November merits session “will be held remotely.” I don’t know if that means telephone only, as happened in April, or by Webex videoconference, as happened in June.
Personally, I long for the return of in-person oral arguments, the best part of an appellate practice. I expect that at some point next year, the three courts will welcome advocates into a courtroom again. The SCV might be able to pull off an in-person session if the docket is small enough, as the courtroom is large enough – it seats 144 in the gallery alone – to permit healthy distancing. We’ll see.
A new SCOTUS Term looms
Appellate courtwatchers know that next Monday is the fateful day known as The First Monday in October, when the US Supreme Court’s October Term 2020 begins. Yesterday, the eight justices held what’s known as the long conference, in which they considered which pending petitions for cert to grant. It’s longer than other conferences because it includes all petitions that have matured for decision during the Court’s briefer-than-usual summer recess. We should get an order list Monday listing those precious few appeals that won writs, and the masses that didn’t.
Because of the passing of Justice Ginsburg, it’ll be a bit harder for appellants to get a cert grant. That’s because it takes four votes to grant cert, and there are, for now, only eight possible votes. In the coming Term, assuming the Senate confirms Judge Barrett as a justice, you should expect fewer writ grants in the kind of cases that liberals love. That’s because it’ll be harder for the three remaining liberal justices to convince one of their conservative colleagues to agree to accept a case. And even then, a cert grant might prove ominous, because the conservative majority may well choose to grant a writ to enable the Court to strike down a prior holding that went the “other” way. It won’t be a boring Term. UPDATE October 2: I was off by one business day. The Court issued its order list at 9:30 this morning, granting seven petitions and consolidating them into four arguments in the coming Term.
