APPELLATE NEWS AND NOTES

(Posted April 20, 2021) Here are a couple of quick notes on recent developments in the appellate arena.

SCV’s April session begins

I’ll begin with a slight digression. Having been happily married now for 32 years, 11 months, and 13 days, I’ve learned a few things about marriage. I will accordingly employ here the three little words that every wife yearns to hear her husband utter:

I was wrong. (You were expecting three other words? Then you must be male. Ask any wife.) This morning, the Supreme Court of Virginia gathers for the April session. To my great surprise, there are 20 appeals on it. That’s twenty; it wasn’t a typo. This is the session in which I expected pandemic-driven scarcity to strike the justices’ merit docket. With the abrupt halt of jury trials last year, I figured that final judgments would drop off a cliff, and given the lead time between circuit-court final judgment and Supreme Court merits argument, a major slowdown right about now was inevitable.

It was plenty evitable, as this week’s docket shows. The court has scheduled four days’ worth of arguments for the second straight session.

What happened? Did the justices suddenly become writ spendthrifts, awarding appeals with a front-end loader? (I doubt it; they still use tweezers, from what I can tell.) Did circuit-court judges start making lots of obvious mistakes? (I’m not going there.) Is the dropoff in circuit-court judgments not as steep as I had figured?

Actually, that one’s the likeliest explanation, though I’m quietly rooting for the first one. According to 2020 caseload statistics for the circuit courts, the number of final civil judgments in those courts dropped 12% last year, a far smaller reduction than I had expected. Criminal convictions – where the sentencing order is the final judgment – were down 25%. The only category where business was up was – get this – concealed handgun permits. Those blew the roof off the courthouses, rising 63% over 2019 levels.

Here’s yet another digression, because these matters almost never wind up in appellate courts: I see two likely explanations for the spike in gun-permit applications. First, a new law requires that applicants after January 1, 2021 complete an educational course first. Many folks no doubt wanted to get the permit before that requirement kicked in. (The Governor pushed the deadline back by a couple of months, but I think it’s in effect now.) The second reason is that Joe Biden won the presidential election, and some folks evidently worried that he would try to take away their guns, no matter what the Second Amendment says. For the last two months of 2020, circuit courts received over 45,000 permit applications; over a similar period in 2019, only about 20,000 citizens applied.

On March 18, I posted a prediction that 2021 would see a dramatic reduction in the Supreme Court’s yearlong caseload. It’s too early to print those three little magic words about that forecast, as the year’s three final sessions may or may not show such a drop. But I remain confident about my 2022 prediction. With Virginia’s shift to a system of of-right appeals in the Court of Appeals before one may petition the justices, there’s almost no way to avoid a significant drop in the SCV’s incoming caseload next year.

An expanding market for appellate talent

Recently I participated in a chat with some pals in the ABA’s Council of Appellate Lawyers about how to develop an appellate practice. My colleagues and I gave the congregation dozens of ideas, but I was sure to include this one for folks looking for more appellate experience: “Move to Virginia.”

The expansion of the CAV won’t just generate the need for seven new judges. Think of all the appellate-lawyer jobs that will sprout here. For one easy example, the new law calls for the Office of the Attorney General to handle all criminal appeals from the start. Right now, Commonwealths’ Attorneys prepare and file briefs in opposition to criminal petitions for appeal; the AG only steps in if the CAV or the SCV grants a writ.

Starting next year, an appellate lawyer will get a file as soon as a criminal defendant notes an appeal. This means that the OAG will need plenty of new lawyers to handle the increased workload. I’ve seen one estimate as high as 50 new AAGs, all handling appellate work.

It doesn’t end there. Seven new appellate judges will need two law clerks each. The Chief Staff Attorney in the Court of Appeals will need more lawyers, too, to process civil and criminal filings. I don’t know whether the legislature budgeted for additional Appellate Defenders, but that would be a logical move, especially with the end of jury sentencing on July 1. (Update April 22: I’ve learned that the General Assembly has budgeted for an additional 27 Assistant Attorneys General and eight additional lawyers for the Indigent Defense Commissions, presumably to handle appeals.)

One last angle on this: In the course of this year, ten Virginians will be appointed to existing vacancies in the CAV (seven seats), the Fourth Circuit (one), and the Eastern and Western Districts (one each). Those ten people will either be current lawyers or current lower-court judges, and lawyers will eventually replace any elevated judges. Not all of the ten lawyers who thus remove themselves from the pool of practitioners will have been appellate lawyers, but I foresee that at least some will. That, too, will contribute to the appellate-lawyer deficit here in the Commonwealth. It’s a good time to be carrying an appellate briefcase in Virginia.