SEVERAL NEW APPELLATE TIDBITS
(Posted January 25, 2023) Opinion day at Ninth and Franklin is tomorrow – maybe; there’s no assurance that we’ll get anything new – so let’s see what’s going on elsewhere in the appellate world.
Chief Judge Decker gets another term
The Supreme Court announced last week that Court of Appeals Chief Judge Marla Decker has been elected by the 17 CAV judges to a second term in the center chair. She’ll serve another four-year term as of January 1, 2023. No matter what happens between now and the dawn of 2027, it likely won’t be as eventful as her first term, when she oversaw the expansion of the court from 11 judges to 17 and the beginning of the court’s plenary appellate jurisdiction. I assure you that she wasn’t bored.
SCOTUS stumbles out of the gate – finally!
The Supreme Court of the United States handed down its first decision of OT’22 on Monday. That doesn’t seem like major news, especially where the ruling was 9-0 in a fairly arcane area of the law. The real news is that it took the Court over 100 days to announce its first decision of the term. We’ve never seen a pace this slow before. Don’t just take my word for it; the stats geeks at Empirical SCOTUS are backing me.
It isn’t as though the justices are overtaxed with merits cases; the granted docket is quite small as measured by the standards of just a few years ago. The delay might be a function of the leak last spring of the opinion in the Dobbs abortion appeal. That is, it might take longer because the Court has implemented security and secrecy precautions. But we can’t know, because any such secrecy measures are, appropriately enough, themselves secret.
The Case of the Missing Writs
This was probably the title of an obscure Hardy Boys book, or maybe Nancy Drew; I forget. If only we could set one of these youthful sleuths onto the trail of all those SCV appeals that just must have been granted over the past three months.
Wherever they’re hiding, the Supreme Court isn’t handing out any hints. As I’ve noted here recently, the justices have convened two sets of writ panels since last autumn. The December panels comprised just 26 appeals; I think I recall that the October panels included something on the order of 45, though my memory of that isn’t clear. (Update: I’ve checked, and have been informed that there were 50 petitions on the October writ panels dockets.) From that pool of roughly 70 petitions, the court has announced just four writ grants – one from the October panels and three from December.
In my previous musings on this worrisome subject, I’ve posited that the likely cause might be that the Clerk’s Office is backed up and is getting writs posted on the court’s website after a substantial delay. I no longer believe that that’s a likely explanation. Instead, I conclude that the Supreme Court simply decided to award only one appeal out of the 40-some petitions argued in October. One!
If you make your living at appellate lecterns, as I do, you should read this news and tremble. It’s nice to have an of-right appeal in the CAV, but if the justices will now be handing out writs with even tinier tweezers than before, that’s a bad sign – at least in my view.
A return to the blogosphere
I was delighted to learn over the weekend that Jay O’Keeffe has resumed posting commentary at his website De Novo, after an absence of almost a year and a half. Jay writes very well and offers wonderful insight on the appellate world.
This welcome development means that Jay is joining John Koehler and me as, I hope, regular contributors to the discussion of appellate matters here in the Commonwealth. We occasionally hear from John O’Herron (this is subtle encouragement for you to write more often, John) at ThompsonMcMullan, too.
Want to join us? There’s room! Don’t imagine for a moment that we’ve covered the waterfront on Virginia appellate matters. I’ll repeat my offer: If you’re publishing and I don’t know about you, or if you’re just jumping in, let me know and I’ll help spread the word for you.
One last point: On Saturday at the Virginia Bar Association’s annual meeting, a panel comprising CAV Judge Dan Ortiz and Jason Konvicka of Allen & Allen spoke for an hour about what we’ve learned from the first year of of-right appeals. Jay posted an excellent summary of the presentation, so rather than my duplicating his labors, I’ll just send you his way.
This last point isn’t appellate, but I can’t stop myself. The American Bar Association – of which I’m a proud and happy member – will convene its Midyear Meeting next week. (The ABA’s calendar runs from August through July; that’s why February 1 counts as “midyear.”) A horde of lawyers will descend on New Orleans, Louisiana, for six days, ostensibly to talk law stuff but in reality to indulge in Louisiana’s incomparable cuisine. It’s just as well that I’m not going to this one, as I don’t need to gain 20+ pounds in a single week.
This is one of the association’s two biggest events of the year, so its numerous sections, conferences, and other subdivisions will be well-represented there. The host hotel, the Sheraton, is big but not big enough to house everyone, so a number of ABA subdivisions will gather at other nearby hotels. The one that caught my eye was the Forum on Affordable Housing. That body will meet, awkwardly enough, at the Ritz Carlton. You may insert your self-generated punch line here.