NOTE ON MIDYEAR APPELLATE ISSUES

(Posted July 2, 2020) Today marks the middle of the calendar year; it’s the 183^rd day of what seems like an interminable 2020, and there are 183 days left. (It’s also the anniversary of the formal vote in the Second Continental Congress for independence, in 1776; the Fourth gets the publicity, but the Second deserves it.) That seems like as good an excuse as any to take a look around at what’s happening.

Judicial Conference Study

You’ve probably seen word of this: The Judicial Council of Virginia is studying whether to expand the jurisdiction of the Court of Appeals of Virginia. The proposal would provide for an of-right appeal to the CAV in all, or nearly all, cases, with certiorari review in the Supreme Court if you can get it. The idea is to adapt our courts to something like the federal model.

As Virginia Lawyers Weekly has correctly reported, our fair Commonwealth is now the only jurisdiction in America with no automatic right of appeal. The Council has solicited opinions from anyone and everyone; if you’d like to contribute yours, here’s a link where you can do that. The deadline is August 21.

David-Goliath Index

Once a quarter, I review the published and unpublished merits decisions from the Supreme Court of Virginia to see how well the little guys in the appellate system are faring against their big-guy brethren. David’s been getting his clock cleaned by Goliath in recent years, but the second quarter was comparatively kind to him: 9 wins against 16 losses for a 2Q D-GI of 36-64. For the year, David has prevailed 11 times against 26 for Goliath, for a year-to-date D-GI of 30-70.

Speaking as a stats geek, I hereby forecast that the end-of-year proportions will be within shouting distance of these. That’s because of the extraordinarily small merits dockets, which will in turn produce relatively few final decisions by the end of the year. The Supreme Court heard 21 appeals in April, but only five in June. September has traditionally been one of the larger sessions of the year, but given the paucity of writs, who can say how many we’ll see then?

That raises the topic of what’s left on the court’s merits plate. There’s one appeal still pending and undecided from the February session; five from April; and five from June. Rulings in these appeals should arrive, alone or in small groups, over the course of the summer.

By the way, if you think these dockets are small, just wait’ll 2021. The moratorium on jury trials means far fewer final judgments in circuit courts. And because those final judgments are the raw materials of the Supreme Court’s docket – not to mention the appellate bar’s collective caseload – we could see a substantial dry spell in the second, third, and maybe fourth sessions of next year.

SCOTUS slowly clears its docket

As I’ve mentioned here recently, the US Supreme Court has an extended term because the April sitting, traditionally the last one before the Court finishes its business at the end of June, got pushed back into May by Coronavirus concerns. The Court has scheduled a rare post-July 4 date to release opinions, this one on Monday, July 6. Because there are eight appeals still pending, I expect one or two more opinion days, likely next week but possibly after that.