QUICK APPELLATE UPDATES

(Posted January 5, 2023) I see no new rulings on the Supreme Court of Virginia’s website today, so let’s see what else is cookin’ in the appellate field.

An important appellate vacancy

I had to read the notice from the Fourth Circuit twice to believe it: The judges are looking for a new Clerk of Court. That probably means that the wonderful Pat Connor is retiring after a long tenure as the court’s “senior operations officer,” as the job listing describes it.

Calling Pat wonderful, as I just did, is an understatement. She’s always been available to answer my broader questions about the court, and has been generous with her time when appellate CLE programs come along. Her cadre of case managers always do a terrific job of helping litigants and lawyers with questions about court procedures and specific appeals. I’m happy for her and sorry for the rest of us in the appellate guild.

If you want the job, click on this link to see if you’re qualified. You don’t need a law degree, but that credential is preferred. If you get the gig, promise me that you’ll be as helpful as Pat and her staff have always been.

Final D-GI for 2022

The old year is in the books, so it’s time for our quarterly visit to the stats vault. We’ll start with the 4^th quarter David-Goliath Index, which tracks the Supreme Court’s rulings in appeals with an identifiable big-guy-vs.-little-guy dynamic. I’ll repeat my usual caveat, which is that there’s an element of subjectivity on my part in deciding which appeals count. I also exclude most appeals where the court affirms in part and reverses in part, unless one side has prevailed nearly totally.

In the last three months, I spotted only four qualifying opinions (none of the court’s four 4Q unpubs presented a David vs. Goliath scenario), and three of those came down in Goliath’s favor. That makes our final tally for the year 6 wins for our Davids and 19 for the Goliaths, for a year-end index of 24/76. For comparison’s sake, last year’s index was 28/72 and 2020’s was 30-70. I recommend that you not plot a gradual downward trend out of these numbers, because this year’s sample size – n=25 – is just too small for broad pronouncements.

It is, however, perfectly safe to conclude that the modern court is decidedly hostile territory for most of our Davids. A generation ago, the index approximated a 50/50 split. It’s been many, many years since David came anywhere close to winning half of the time. One other conclusion comes from raw numbers: only 25 qualifying decisions this year, down from last year’s total of 53.

As long as we’re on that subject …

Preliminary year-end caseload indicators

Please accept the following with a small grain of salt. I won’t have the official full-year stats reports from the SCV and the CAV for at least a couple of months. These figures are accordingly unofficial, though they should be very close.

Supreme Court Clerk Muriel Pitney opened 845 new files in 2022. That’s a huge, though entirely predictable, drop from the 2021 total of 1,239. Most of the decline is because almost all appeals now must stop first at the Court of Appeals, unlike in previous years. I expect this number to rise noticeably, though probably not to the 1,200 level, in 2023.

A block away, CAV Clerk John Vollino opened 2,009 new files last year. That’s a significant, though again predictable, rise from the 2021 total of 1,397. Let’s call it a 44% increase in caseload in one year.

Looks like a lot more work, right? But let’s add a little context: In 2019, the last pre-pandemic year, there were 2,090 new filings in the Court of Appeals. And back then, they only had eleven judges. Now they have 17, plus a larger Clerk’s Office (so I understand, at least). On a per-judge basis, the caseload has dropped from 209 four years ago to just 118 last year.

Anticipating these watershed changes, I posted an essay two years ago – March 18, 2021, if you want to check – in which I guessed what the 2022 stats would show. If you’re one of those folks who enjoy reading me say, “I got it wrong,” grab some popcorn and keep on reading; this ought to be fun. Back then, I anticipated that the CAV’s caseload might swell to perhaps 3,250 new filings in the calendar year that we’ve now just concluded. That is not a typographical error.

A few voices rose in dire warning when the General Assembly considered Senate Bill 1261 back in early 2021. Those voices feared that the CAV would be swamped with an avalanche of new work if appellants got an appeal of right (like every other jurisdiction in our fair nation provided back then; we were dead last to do so). I tried to calm those concerns by an estimate that proved to be wildly too high. Don’t cry for the CAV clerks; they’ll be fine.

A dismaying session schedule

The Supreme Court of Virginia convenes next week for the January session. That session always coincides with the beginning of the General Assembly session and the corresponding State of the Commonwealth address by the Governor. If you watch that speech – and, being a Virginia law geek, I always do – you’ll see several of the justices in the front row, off to the Governor’s right. You’ll be able to spot them in two ways: They’ll be the only ones wearing black robes, and they’ll be the only ones not applauding. (Impartiality has its price.)

Once again, the court will convene a micro-session. There are only four appeals on the docket. That matches the total from last year’s June session. For reasons that probably have to do with the availability of a senior justice, the court is splitting the docket into two days – two appeals on Tuesday, January 10, and two more the next day (which is the date of that speech).

For those of us who make our livings arguing appeals, this is a worrisome development. Five of the court’s seven most recent merits dockets (including next week’s session among those seven) have comprised ten or fewer appeals. Again for historical context, a generation ago a week’s session might well include 35 or more full appeals, spread over the full five days of session week.

Is this, too, one of the “victims” of SB 1261? I don’t think so; in fact, almost certainly not. Before 1261, it took a normal Supreme Court appeal perhaps 10-12 months to get from circuit-court judgment to Supreme Court argument. Of all the appeals argued on the merits to the Supreme Court in 2022, exactly one of those had a docket number beginning in 22 (referring to the year when the SCV Clerk got the record). All of the other ones came to the court in 2021, before the law changed to divert appeals to the CAV.

There’s more ominous news. Just three weeks ago, I noted with alarm that only one writ appeared on the SCV’s writs-granted web page in the fourth quarter of the year, despite the passage of 58 days after the October writ panels. Those writs tend to pop up two to three weeks after the panel date. It’s now January 5, and there’s still that one lonely writ on the page. None have appeared from the December 6 panels.

Maybe this is a temporary tech issue that the IT folks at Ninth and Franklin will fix. Maybe it reflects a slammed Clerk’s Office that’s impaired by its staff’s holiday travel schedules. Maybe there’s some other benign reason that evades the grasp of my imagination. In other words, maybe this doesn’t reflect a conscious decision by the justices to clamp down even further on the issuance of these precious writs. Maybe.