NOTE ON APPELLATE HAPPENINGS
(Posted May 16, 2024) With nothing new from the opinion mill on Ninth Street today, let’s see what’s happening in the appellate world.
New treatise
I learned this week that Justice Steve McCullough has written a book, Virginia Constitutional Law. It’s published by Lexis and is available in hard copy, as an e-book, or as part of your Lexis subscription. As I understand it, the last treatise to cover our constitution was Prof. Dick Howard’s, written half a century ago, so this comes at a good time.
I couldn’t resist checking to see if the book contains a section on substantive due process, a topic on which Justice McCullough’s views and mine diverge. He had some sharp words for the doctrine in a concurring opinion in Palmer v. Atlantic Coast Pipeline, 293 Va. 573 (2017), underscoring that while federal law may recognize the doctrine, the Virginia constitution doesn’t. I noted that while the book does cite Palmer, that passage isn’t in the section on SDP and he doesn’t repeat the critique here.
I commend the book to you, but I have one bit of practical advice. If you choose to cite it in an appeal to the Supreme Court of Virginia, resist the urge to look at him in oral argument and remind him that he wrote the text that you’re relying on. He already knows who wrote the book, and you’ll come across as pandering.
Those sexy appellate bonds
Dan Huckabay of Court Surety Bond Agency has posted a short essay on common problems with appellate bonds. It’s unmistakably a marketing piece for his (quite excellent) company, but I recommend that you read it anyway, for some added perspective on this under-discussed topic.
Recent SCV writ grants
If you look carefully at what at first seems like dry material, you can sometimes find some interesting stories. In this vein, I bring you the writs-granted page of the SCV’s website.
The most recent set of writ panels convened on April 2. Since then, the court has posted eight writ grants on its web page.
One of these, Cridler-Smith v. Director, comes from a habeas-appeal petition filed way back in late June 2023. The Supreme Court heard the writ argument in February and granted the appeal a week ago, on May 9. Most of that long delay resulted from slow work by the Loudoun County Circuit Court Clerk, who didn’t forward the record to Richmond for almost nine months.
Another recent grant, Josephson v. Commonwealth, received a writ on April 30 without, as far as I can tell, appearing on the writ-panel docket. It looks like the court reviewed the petition for appeal and decided immediately that it was worth granting.
The justices also granted an appeal in the unemployment-insurance case of Amazon Logistics v. VEC, on the question whether Amazon’s flex drivers – folks who supplement normal truck-based Amazon deliveries – are employees or independent contractors.
I was surprised to note that the Supreme Court’s case-information page shows that in four of the six criminal writ grants, the Commonwealth didn’t file a brief in opposition. That may be a system glitch, because in my experience, the OAG is careful to file briefs at the stage where the appellee has the most leverage.
Finally, one of the appeals, Baez v. Commonwealth, portends a ruling on the admissibility of police body-camera footage. I’m definitely not a criminal-law jock, but this looks to me like an interesting question.
The historical context of writ grants
Of the eight recent grants, six appear to be either criminal or habeas appeals. For the year, we’ve seen nine criminal/habeas writs and six in civil appeals. I note that we thus have 15 grants from the first two (out of six) writ-panel sessions of the year. That extrapolates to something like 45 grants over the course of the year.
I’ll post a more fulsome essay on the SCV’s statistics soon, but for now, I’ll put that pace of 45 grants in context. Last year, the court received 956 new filings and granted 36 writs, an overall grant rate of 3.8%. Ten years ago, in 2014, we saw 1,918 new filings and 131 grants, for 6.8%. Twenty years ago, in 2004, there were 2,976 new filings and 174 grants, which comes to 5.8%. And thirty years ago, we saw 2,240 new cases and 337 grants – a whopping 15% grant rate.
You want more numbers? I’m your man. In 1984, the court received 1,582 new cases and granted 259 writs (16.4%). In 1974, the numbers were 212 grants out of 1,256 filings, for 16.9%. In 1964, there were 798 filings and 229 grants, or 28.7%. And 1954 – that’s as far as I can go back on this ten-year cycle – the court took in just 304 new filings and granted 132 writs for an astounding 43.4% grant rate.
I emphatically do not have the power of foresight; if I did, I’d be picking lottery numbers instead of posting this analysis, and I’d get far fewer Death Stares from The Boss. But my imperfect future vision tells me that you should expect this tiny grant rate to become the new normal. The justices of the Supreme Court of Virginia have simply decided to grant fewer appeals; they’ve chosen to hear fewer cases on the merits. If you’re appealing to the Court of Appeals of Virginia, you’d better make the most of that opportunity, because the SCV is handing out writs with historically small tweezers now.
