REPORT ON APPELLATE DEVELOPMENTS
(Posted January 4, 2022) You may be just returning to speed after the holidays, but things are already moving apace in the appellate world. Here are a few noteworthy items.
Your rulebook is (somewhat) obsolete
With the dawn of the new year, the new appellate rulebook sprang to life. Most of the changes accommodated the new setup whereby every appellant gets an appeal of right in the Court of Appeals, a phenomenon that I’ve reported eagerly ever since SB 1261 emerged from the legislature and the Governor signed it.
Here’s a link to the online rules from the courts’ website. Until you receive a new rulebook in the mail – assuming that, like me, you continue to consult printed books – you need to check this site for the most current version of the rules.
No in-person oral arguments after all
It wasn’t that long ago that the Fourth Circuit and the Supreme Court of Virginia released the wonderful news that the courthouse doors would be thrown open to welcome advocates (but no one else) for oral arguments in January 2022. Alas, these announcements have fallen to the scythe that is the omicron variant of the novel coronavirus. Yesterday the SCV issued a notice that the January session will be argued remotely next week; the Fourth followed suit today for its January sitting. As has been the case for almost two years now, you can follow the arguments in real time, but not in-person.
The SCV’s notice mentions that the court will be in session next Tuesday through Thursday, January 11-13. Surprisingly, the court’s website doesn’t yet list next week’s docket or argument schedule. That’s usually posted a couple of weeks before the argument dates. But appellate clerks had holidays, too, and that’s assuredly why there’s been a short delay. I’m looking forward to seeing how many appeals are on the docket.
One last point: The SCV’s January session always coincides with the opening of the General Assembly, and every fourth year it coincides with the inauguration of a new Governor. In the past, this has allowed some or all of the justices to attend the State of the Commonwealth address. In this pandemic environment, I’m not sure what festivities will occur, or who will attend.
A historic first
The SCV’s announcement about the January session is printed on the court’s stationery, with the names of the justices listed in the upper left as always. This is the first released letterhead document of which I’m aware in which Chief Justice Bernard Goodwyn’s name appears first. He thus becomes the fifth person to occupy the center chair in this century.
The real historical oddity, in my opinion, is the listing of Justice Lemons among the other six justices. His name is first on that list, of course, because he arrived at Ninth and Franklin earlier than any of his colleagues. But he’s done something here that no Virginian has ever done before him: He’s stepped away from the chief justice’s center chair to become an active justice. That will last a good, solid four more weeks before his retirement takes effect and he presumably joins Senior Justices Russell, Koontz, and Millette in that role.
How has this never happened before? Until 2003, the chief justice was the member of the court with the most seniority. It was an automatic process requiring no special arrangements. When Chief Justice Harry Carrico became a senior justice in 2003, the court modified its protocol so that it would select a chief from among its own number by majority vote.
The next chief, Leroy Hassell, was set to move one seat to his right at the end of his two four-year terms as chief. (The two-term limit is a court norm; not imposed by statue or rule of court.) But he died in office in February 2011, just before his term as chief ended. Justice Cynthia Kinser became the next chief, but she retired fully from the court while still in office; no senior status for her. Justice Lemons took over from her, and is retiring a year before the Code’s mandatory retirement provision would have required it.
A very temporary issue
I’ve received a question recently about notices of appeal that merits at least a mention here. The Court of Appeals’ new plenary authority over appeals began on January 1. Where a circuit court entered an appealable order in December 2021, which appellate court does the appellant steer toward?
The answer is that any notice of appeal that an appellant files in 2022 and beyond goes straight to the CAV. The decisive event is the filing of the notice of appeal; not the date of the final order.
This issue is “very temporary” because in a year or so – really, just a month or so – this changeover will be far back in the rear-view mirror.