Many bars, business groups back appeal of right proposal

By Peter Vieth, Virginia Lawyers Weekly – 9/7/2020

Virginia lawyers and business interests are overwhelmingly in favor of expanding the jurisdiction of the state Court of Appeals to provide an appeal of right in every circuit court case.

Criminal lawyers and civil trial lawyers offered caveats and suggested tweaks, but the response overall from bar and business groups was positive, according to written comments received by the Judicial Council of Virginia, a judicial and legislative planning body. Only six of 34 comments opposed the proposal for an appeal of right.

Virginia is the only state that does not offer an appeal of right for every trial court outcome.

Expanding the reach of the Court of Appeals has been studied at least four times since the state’s intermediate appellate court was created in 1985, but the General Assembly never has acted. A 2018 Supreme Court study group recommended an appeal of right as a “long-term goal.”

Earlier this year, the General Assembly requested a study of the jurisdiction and organization of the Court of Appeals and asked for a report by the start of the 2021 session. The Judicial Council asked for comments to be submitted by Aug. 21. The study is “still on course” to be completed on time, according to a Supreme Court spokesperson.

Most bar groups favor change

Statewide bar associations supported the proposal for appellate review on request for every circuit court judgment.

“Our members see this as an access-to-justice issue, and one implicating due process of law,” wrote Virginia Bar Association president Alison M. McKee. With so few appeals accepted by the Supreme Court, many erroneous circuit court rulings go uncorrected, the VBA said.

“While there is some difference of opinion among our members on certain aspects of the proposal, the consensus view of the association supports the expansion of the Court of Appeals jurisdiction to provide one appeal of right in all cases,” McKee wrote.

Some members expressed concern over added delays and costs associated with a two-tiered system, McKee said.

The VBA called for adequate staffing to handle the extra workload, opposed regional resident judges, opposed a mandatory appendix and endorsed the prospect of “more procedural and substantive guidance.”

Similarly, the Virginia Trial Lawyers Association was “not of one mind” as to the appeal of right proposal.

“There are legitimate concerns about whether this change … would lead to less efficient administration of justice and would provide a systemic advantage to the well-funded interests that can sustain and often benefit from protracted litigation,” read a VTLA statement.

VTLA said its support was “qualified” out of those concerns about delays and added expense. But the trial lawyers saw benefits in promoting development of the law, improving access to justice and cutting the time to reach resolution in civil appeals.

The VTLA urged hurdles to dissuade litigants from unnecessary appeals, recommended dispensing with a mandatory appendix and suggested barriers to discourage appeals to the Supreme Court in “all but the most consequential cases.”

The Old Dominion Bar Association favored an appeal of right and “highly recommended” use of a three-judge panel for every initial review.

Criminal bar urges changes to the plan

While supporting an appeal of right, the Virginia Indigent Defense Commission – speaking for public defenders – recommended specific procedural protections.

The defenders said any appeal of right “must provide” for a three-judge review, oral argument, an opportunity for a reply brief and an order or opinion explaining the court’s rationale.

The means to that end is elimination of the current writ stage and use of the current merits stage, the IDC said. Although a Supreme Court study recommended keeping the existing writ process, that process is not equivalent to an appeal of right, the defenders said.

“First, only one judge issues the order. The order does not even state which judge from the Court of Appeals made the decision. Second, the reasoning in the per curiam order for denial or dismissal of issues raised by the appellant is inadequate compared to the reasoning stated in opinions following merit review,” the IDC wrote. The agency’s letter was signed by Executive Director David Johnson and Chief Appellate Counsel Catherine French Zagurskie.

The Virginia Association of Criminal Defense Lawyers “enthusiastically” supported an appeal of right in all criminal matters, wrote VACDL president Elliott B. Bender. But the group urged added protections, including the opportunity for oral argument, a lower standard for exceptions to contemporaneous objection rules, a bar on inconsistent positions taken by the commonwealth and elimination of technical procedural defaults.

Elder law

The Virginia Academy of Elder Law Attorneys warned that a universal appeal of right could have unintended, adverse effects on those facing guardianship and conservatorship actions.

“Adding the expenses of an appeal of right to the Court of Appeals could make a guardianship proceeding even more costly should one party choose to appeal. Moreover, these are resources that would be better used to pay for the care of the incapacitated party,” wrote VAELA president Angela M. Griffith.

VAELA also expressed concerns about the increased expense of appeals in estate matters and the possibility of nuisance appeals by a disgruntled beneficiary.

Individuals in favor

The proposed change is “long overdue,” said Richmond attorney James W. Walker. He said he generally counsels clients to go to federal court in part because of the lack of an appeal of right in state court civil cases.

“In a very real sense, the jury’s verdict is likely the final say given the low odds of SCOVA granting a petition in a civil case,” Walker wrote. “Clients unfamiliar with Virginia procedure are stunned to find out that there is no effective right of review.”

Law professor Hamilton Bryson at the University of Richmond said he favored opening the court’s door to more appeals because it would lead to more legal rulings.

“As a matter of general jurisprudence, if the law is better settled by more judicial precedents, it will be better understood,” Bryson wrote. People would have more guidance as to the state of law and disputes could be more easily settled, he said.

A similar view came from Travis C. Gunn of Richmond: “Simply, the more cases that appellate courts must consider means more opportunities for appellate courts to resolve outstanding issues and to develop Virginia law,” Gunn wrote.

Roger W. Mullins of Tazewell, a past VTLA president, put the issue in the context of recent events:

“As we now are experiencing a significant citizen support for criminal justice reform and are likely to enact legislation to address the systemic racist attitude of some within our police forces, the appeal of right seems to be a must to protect those accused from bias that is so pervasive today,” Mullins wrote.

The Court of Appeals is “noticeably underutilized,” said appellate specialist L. Steven Emmert of Virginia Beach.

“Converting it to a court of general appellate jurisdiction, with appeals of right assured to each appellant, would be quite feasible and would do much to improve the public’s perception of our system of appellate justice,” Emmert wrote.


Not every comment was favorable. Expanding the court’s scope “is probably a bad idea,” wrote Raighne C. Delaney of Arlington.

“The Circuit Court judges practice a rough justice sometimes, but in the end, I think they are right 80% of the time,” Delaney said.

Nicholas J. Lawrence of Fairfax pointed out that every disappointed civil litigant already has the chance to make a pitch to a three-judge panel of the Supreme Court.

“The proposed changes are likely to make the process longer and more costly, without any obvious reason to think the overall quality of justice will improve,” Lawrence wrote.

“Having appeals of right in all cases to the Court of Appeals is an illusory remedy. It will increase costs and not ensure better results,” wrote Elwood “Sandy” Sanders Jr.

Business support

Two business groups weighed in with favorable comments. The Virginia Chamber of Commerce “wholeheartedly endorses” creation of an appeal of right in civil cases, wrote president and CEO Barry DuVal. The chamber said the absence of an appeal of right undermines the quality of justice, puts business cases in a “second-class” status and means decisional law is not as well developed.

The Virginia Manufacturers Association echoed the comments of the chamber.