SOME APPELLATE NEWS AND NOTES
(Posted May 18, 2022) Tomorrow is opinion day, maybe, at Ninth and Franklin. We’ll see in 24 hours if the Robes will give us any published rulings for the first time in almost a month. Meanwhile, here are a few developments that have caught my eye.
A legislative fix to a legislative quirk
Late last month, the General Assembly agreed to a Governor’s recommendation on Senate Bill 143, known to many of us as the Court of Appeals Cleanup Bill. This proposal would fix some bugs in last year’s landmark Senate Bill 1261, which expanded the jurisdiction of the Court of Appeals of Virginia.
The 2021 act had changed the standard for granting extensions of time from “good cause shown” to “ends of justice.” Appellate lawyers recognize that these two standards differ markedly; the latter is far stricter. After SB 1261’s passage, the court had to apply a nearly impossible standard to grant even routine deadline extensions.
Enter SB 143, which cleaned up several quirks in the previous legislation. The bill passed the Senate on a vote of 25-13, but sailed through the House on a block vote. The Governor recommended the addition of emergency language, so the new provisions would take place immediately; both chambers agreed to that on April 27, so last year’s mistake is gone now. Last week, the Supreme Court amended five appellate rules to comply with the new, relaxed standard.
An appellate fix to a staggering ruling
Last August, a divided CAV panel handed down a decision that left me aghast. In Jacks v. Commonwealth, the panel left in place a criminal conviction despite what I saw as two obvious errors, primarily related to the tolling orders entered in response to the pandemic. John Koehler’s excellent website, which covers the CAV, notes that the court granted en banc rehearing, and yesterday it corrected that misstep, overturning the conviction and sending the case back for trial. Judge Huff, who dissented from the panel decision, pens the opinion for a unanimous court.
So how did two votes to affirm turn into a unanimous ruling the other way? As John’s essay observes, one member of the previous majority was a senior judge, and they don’t vote in en banc cases. The other judge who signed on to that earlier holding evidently decided not to raise a fuss this time.
May writ panels in the books
Last Friday, the Supreme Court of Virginia convened its third writ panels of 2022. The docket comprised 46 petitioners. That’s a slight uptick over the February and April writ panels, which considered 42 and 36 petitions, respectively. You should expect the number of writ arguments to decline noticeably in the second half of this year, because for appeals noted after January 1, there’s a mandatory trip to the CAV before anyone can petition the Supreme Court. Something like the usual pace of filings should return starting in late Autumn, but those appeals probably won’t make it onto 2022 writ panels.
I’ll decline to muse on the wisdom of scheduling writ panels on Friday the Thirteenth. Perhaps luckily, I didn’t have a petition on the docket that day.
New Appellate Advocacy Academy
Virginia CLE will offer a new training program for handling appeals. On August 4-5, 2022, the Appellate Advocacy Academy will do for appeals what the Trial Advocacy College has done for trial lawyers for decades now. The faculty is dazzling, and attendees will prepare a brief and argue a hypothetical appeal to a panel of judges, getting individualized feedback on both components of appellate advocacy.
This is the first time this program has ever been presented in Virginia. Registrations are limited to 24, and I understand that roughly half of those slots are already booked. If you’re looking to develop and appellate practice, or just polish the skills that you have now, check it out; I’ll be there, and will hope to see you.