NOTES FROM THE APPELLATE LANDSCAPE
(Posted March 31, 2022) The cyber-printing presses at Ninth and Franklin are quiet today; the Supreme Court issues no new opinions or published orders. That gives us time to take a furtive look around and see what’s happening in the appellate world.
An era ends
Today marks the close of Justice Bill Mims’s illustrious tenure on the Supreme Court. Last year, he notified the Governor that he wouldn’t seek reelection at the expiration of his current term, which is today. Justice Mims reached the pinnacle of all three branches of Virginia government – he served with distinction and integrity as a state senator, as Attorney General of the Commonwealth, and on our highest court. I’m not aware of anyone else who has achieved that trifecta, though Lindsay Almond came close (AG, SCV justice, and member of Congress). [Update: One of my pals has pointed out that I’m mistaken about Almond. He was an appellate judge in the federal system and didn’t serve on the SCV.]
As I mentioned here earlier, former Chief Justice Don Lemons has also left the bench, after serving at every level of our court system. The General Assembly will, in a special session beginning next week, elect two new justices to succeed them. I used the word succeed and not replace because you cannot simply replace two men like this. They are both uncommonly gracious, and the Commonwealth is better for their having served.
Some caseload statistics (and a couple of anecdotal observations)
I’ve mused in this space about the probable drop-off in new filings in the Supreme Court for 2022, primarily a product of the expansion of the Court of Appeals’ jurisdiction. I checked the SCV’s online case-information page just now and noticed that the clerk has opened – or at least logged into the case-information page – just 194 new appeals for the year. Since we’re at the one-quarter point for the year, that portends something like 800 new filings at this pace.
According to the statistics I have, the last time the court took in fewer than 1,000 new appeals in a year was 1966. Twenty years ago, the average was around 3,000 a year. Here are the last three years’ totals: 1,760 (2019), 1,571 (2020), 1,233 (2021). As I mentioned just now, this year’s decline is largely because the Court of Appeals will be vacuuming up all of the new appeals now. I foresee an uptick in SCV filings in the fourth quarter of this year as new appeals emerge from the CAV and aggrieved litigants decide to take one more appellate crack at it. But I don’t think we’ll see Record No. 221000, which would be the 1,000th record opened in 2022.
Other tidbits hint at the decline, and these don’t trace to the CAV expansion. The Supreme Court entertained writ-panel arguments in just 42 appeals in February, and the April writ docket features just 36 petitions. In even the recent past, I’ve been accustomed to seeing 65 or so petitions on each of the court’s six panel dockets each year; the average thus far is under 40.
One last observation about writs, and my appellate pal John Koehler has already noted it: We aren’t seeing many writ grants. There are eight thus far in 2022, or about 19% of the petitions argued on February 15. In fairness, that’s slightly higher pace than the normal writ-granted rate. And it reflects only one of the court’s six panel sessions, so the theoretical pace would extrapolate to something close to 50 writ grants over the course of the entire year.
Even so, fifty?? That’s a tiny number of merits reviews for a full year. And all of these appeals arose under the pre-2022 protocol, so Senate Bill 1261 has nothing to do with this decline.
What about the merits cases? The justices heard oral argument in ten appeals in the January session and a robust 17 in the March session. I’ve seen the April session docket, and it includes just nine appeals. That means that when the court completes the April session, it will be halfway through the year’s merits docket and will have heard just 36 appeals. These, too, are unaffected thus far by the new CAV procedures, as all of these appeals matured last year.
The effects of SB 1261 probably won’t show up in the Supreme Court’s merits docket until 2023. These days, it takes roughly a year, possibly a bit more, for an appeal to progress from final judgment below to oral argument after a writ grant. This means that the early 2023 SCV sessions will probably feature a very small number of appeals, and those will be in cases that went through the Court of Appeals before the switchover. That translates to domestic relations, Workers’ Comp, and criminal cases. In terms of the SCV’s pre-2022 docket, those numbers are tiny.
Eventually – and in my mind, that translates to 2024 – these things will return to some semblance of normality, in terms of docket statistics. But much of that depends on our next topic.
Will the SCV’s writ thinking evolve?
Appellate practitioners know that in the federal system, the Supreme Court doesn’t play much, if any, of a role in appellate error correction. The justices figure that that’s the Court of Appeals’ role; SCOTUS accepts cases on certiorari only, where at least four justices believe that the appealed issue is of significant national import. For most litigants, appealing to SCOTUS by arguing that a court of appeals made a simple mistake is a losing approach.
For a long time – actually, that means forever in the appellate context – the SCV performed both error correction and law-development roles here in Virginia. That’s because for most case types, an appeal to the Supreme Court of Virginia was the only available appellate avenue. Now, with the expansion of the Court of Appeals’ jurisdiction, we have a system that mirrors the federal system.
The question becomes whether the SCV will follow the lead of Those Other Robes and decline to engage in error correction. No one has suggested to me that the court will take that route; I’m just musing and wondering. But if that comes to pass, we may continue to see very small merits dockets well into the future. While I believe that the justices have in recent years shifted toward a law-development role at the expense of certain appellants with legitimate error-correction grievances, the court still undeniably engages in some error correction. That is, the SCV has granted a fair number of writs simply to correct patent (or sometimes latent) mistakes by trial courts. If that function goes away, we’ll see very small law-development-only dockets starting in 2023.
1Q David-Goliath Index
Admit it; you’ve been wondering when I’d get around to this, right? I made you wade through all that other stuff instead of giving you dessert first. All I can say is that I hope the prose sparkled, so it wasn’t too much of an ordeal.
In the first three months of 2022, the Supreme Court of Virginia has issued ten published opinions, one published order, and eight unpublished orders. Not all of these fit the David-Goliath dynamic: an identifiable little-guy-vs.-big-guy setup, such as a tort victim vs. an insurance company, a criminal appellant vs. the Commonwealth, and the like. It excludes things like boundary disputes, domestic relations, and one corporation suing another.
I’ll freely admit that in classifying these cases, I sometimes have to make judgment calls. For example, I usually include tax cases in the index, with the tax man as Goliath. But if the taxpayer is, as we saw this time, R. J. Reynolds Tobacco, I don’t include it. That’s Goliath vs. Goliath. I also usually exclude split decisions, where the SCV affirms in part and reverses in part, because it’s often impossible to tell who’s “won.”
Here’s the tally for the first quarter of this year: David wins one and Goliath takes seven, for an initial D-GI of 12/88. That’s more lopsided than usual, but I have enough background in statistics to know that it’s skewed by its small sample size. We’ll check back again after the June 30 opinion day to see how things go in the second quarter.