(Posted November 23, 2020) It’s time for a status report on a few developments in the appellate world.


Pandemic operations

The three appellate courts that convene here in Virginia continue to operate virtually:

  • The Fourth Circuit has canceled in-court oral arguments through the end of the year. Its online announcement says that the cases slotted for the last session of the year, December 7-11, “will be heard by videoconference or teleconference as directed by the panel assigned to the case.”
  • The Supreme Court of Virginia has heard its last merits argument of 2020; the next full session will convene the week of January 11, to coincide with the beginning of the 2021 legislative session. The court will convene writ panels on December 1, and while I don’t have a copy of the cover letter, I’m confident that those arguments will be audio-only.
  • The Court of Appeals of Virginia has today issued a fourth order on court operations. This order continues current pandemic operations through “at least April 30, 2021.” This means electronic-only filings and virtual oral arguments, as has been the case for months now.

My informal sense is that the CAV is working wonders somehow – the court is coming the closest of the three to operating with minimal effect from the state of emergency.


Another indicator of docket decline

I mentioned just now the Supreme Court’s December 1 writ-panel dockets. The justices will consider just 36 petitions for appeal that day. I don’t have a copy of the docket for the final writ panel of 2019, but I might wager a small amount of American currency that the figure was closer to 60 or even 65 last year. I pointed out in a September 30 post here that the October panels contained only 40 appeals, and we’re even down from that.

My best guess is that the SCV’s docket will continue to lag in the first half of 2021. The Court of Appeals is down significantly this year, but I think that will rebound more quickly. That’s because the primary components of its docket are (1) criminal cases, which will get priority as courts reopen; (2) domestic-relations cases, which are bench trials and thus not affected by the Supreme Court’s jury-trial restrictions; and (3) Workers’ Comp appeals, which again don’t go through juries. Another best guess is that the CAV’s 2021 docket will lag behind 2019’s only fractionally; the SCV’s will be off much more significantly.


A drop in opinions, too

I need to preface this section by noting that while SCOTUS calculates and published its statistics according to Court terms, which run October through June/July, the SCV publishes its stats on a calendar-year basis. The comparison here isn’t perfect, but I think it’s close enough.

I recently “attended” a video presentation by Boalt Hall Law Dean Erwin Chemerinsky on the significant civil and criminal decisions from SCOTUS in the October Term 2019. That’s the not-quite-year between the first Monday in October 2019 and the issuance of the Court’s final opinion in early July of this year. Dean Chemerinsky annually offers this talk in the ABA’s Appellate Summit; but for the pandemic, that Summit would have met last week, and today’s essay would be a recap of it. (The 2021 Summit is, at least as of this point, on for the second weekend in November in Austin, Texas.)

The dean always prefaces his comments with a few statistical notes. As you’ve no doubt realized, I’m a stats geek, so I always enjoy that part. This year, he told the over 1,000 video attendees that the Supreme Court issued just 53 published opinions in OT19; he added that that’s the lowest total since 1862.

That made me wonder about the SCV and its rate of published opinions. This is no secret; you just go to the court’s web page listing published opinions, and count them up. Thus far in 2020, The Robes have given us 41 published opinions and seven published orders. We’ve also seen 25 unpublished orders – rulings that adjudicate the appeal but don’t appear in Virginia Reports and don’t carry precedential weight. That means there are 73 total dispositions on the merits so far.

Let’s take a look backward to see how this pace compares with historical figures. Ten years ago, in 2010, there were 117 opinions and 59 orders, for a total of 176. Another ten years back and it’s 159 opinions and 84 orders, so we’re up to 243 merits rulings.

I won’t keep boring you with numerals; I’ll get to the bottom line. I have statistics on the court going back to 1965, and what we’re seeing in the past few years are historically low numbers of merits rulings. The court set a new low record, going back as far as I know, in 2018 with just 116 such rulings. That dropped to 112 last year. This year, unless something extremely dramatic happens, we won’t hit triple digits.

The final point I’ll mention here is that these 2020 stats don’t reflect pandemic decreases. As I noted in a recent post, all of the appeals that the court has ruled on this year reflect final lower-court decisions that came down before March 2020. That means that next year, with the possibility of a sharp drop in new filings due to the pandemic’s effect on circuit courts, this year’s unfortunate record won’t survive twelve months before the 2021 total undercuts it.


A watershed moment looms

Peter Vieth of Virginia Lawyers Weekly reported early this month that the Judicial Council of Virginia has endorsed the idea of creating a universal appeal of right to the Court of Appeals of Virginia. The Council’s approval was unanimous. The matter goes on to the General Assembly, where I understand that Senator Edwards or Senator Surovell may carry it.

This won’t mean an immediate shift on July 1; the smarter money is on a delay of about a year, maybe more. As it’s now in the hands of the 140 Level Heads, I won’t weigh in too strongly; I’ll offer only three short comments instead. About. Damned. Time.