By Denise Lavoie | AP – The Washington Post – 1/25/2021
RICHMOND, Va. — A proposal to add four to six new judges to Virginia’s Court of Appeals is drawing protests and charges of “court packing” from some Republicans.
Democrats say the additional judges are needed to expand the intermediate court’s jurisdiction and give criminal defendants and civil litigants an automatic right of appeal, something every other state in the country now provides.
Republicans, however, say adding four to six new judges at once is a blatant attempt to appoint Democrats to change the political makeup of the court and push a liberal agenda.
“What they want to do is add very left-wing, progressive, liberal justices on what is currently a very reasonable Court of Appeals that does a very good job. This is court packing,” said Del. Jason Miyares, a Republican and former prosecutor who is running for attorney general.
The idea of adding judges to the 11-judge court has been debated since the court was formed in the 1980s, said L. Steven Emmert, an appellate attorney and publisher of the website “Virginia Appellate News & Analysis.”
Under current Virginia law, the only cases granted automatic hearings with the appeals court are those involving domestic issues, such as divorces and adoptions; workers compensation claims; and administrative law cases. In all other civil cases, people must ask the state’s highest court, the Supreme Court of Virginia, to hear their appeals.
In all criminal cases, litigants must file a request for the court to hear an appeal. But the court only hears a fraction of the cases it is asked to: In 2019, it only heard about 10%.
If a case is heard by the Court of Appeals and any of the litigants are dissatisfied with the ruling, they can ask the Supreme Court to hear the case. But the high court declines to hear the vast majority of appeals. In 2019, it heard only about 3% of the criminal appeals and about 12% of the civil appeals requested. The only cases with an automatic right of appeal to the Supreme Court are death sentences and attorney discipline cases.
“In the Virginia system, in almost all cases, you have to ask the court, please take the case. In the lion’s share of cases, the court says no,” Emmert said.
Democratic Gov. Ralph Northam announced his support for an expansion of the Court of Appeals last month, proposing a budget amendment of $5.1 million to add four new judges and support staff to deal with hundreds of additional appeals expected to be filed each year.
House Majority Leader Charniele Herring has introduced a bill to add four new judges, while in the Senate, Democratic Sen. John Edwards is sponsoring a bill to add six new judges.
The Senate Judiciary Committee approved Edwards’ bill Monday, but some Republicans questioned the costs of adding six judges, support staff and possibly new assistant attorney general positions to handle additional appeals.
“While the advocates of this bill believe it is a wonderful policy, but once again, it is absolutely devoid of the financial implications,” said Senate Minority Leader Tommy Norment. The committee sent the bill to the Finance Committee.
Herring said the proposal to expand the court is supported by numerous groups, including the Virginia Bar Association and the Judicial Council of Virginia, a group of judges, lawyers and state lawmakers. She also pointed out that most of the judges who currently sit on the court were elected by Republican-controlled legislatures. Virginia is one of only two states where the legislature elects judges.
“I’m sorry they are making this a political issue. This is about access for everybody to our judicial system,” Herring said.
Democratic Sen. Scott Surovell, an attorney, said expanding the jurisdiction of the Court of Appeals will improve oversight of lower court judges.
“Judges are human beings and they make mistakes. Right now, if a judge makes a mistake in anything but divorce cases, it’s difficult to get that mistake corrected,” he said.
But some Republicans believe allowing the Democratic-controlled legislature to add four to six judges all at once is unfair.
Del. Kirk Cox, a former House Speaker who is now seeking the GOP gubernatorial nomination, said he recognizes that additional capacity may be needed at the Court of Appeals. But in a statement released by his campaign last month, Cox said any new judges should be staggered over a period of time and appointed by a “nonpartisan merit-based selection committee to ensure this does not become a partisan attempt to remake our well-respected Court of Appeals.”