Virginia Court of Appeals set to get six new judges after lawmakers agree to expansion

By Ned Oliver, – 3/8/2021

Lawmakers plan to appoint six new judges to the Virginia Court of Appeals later this year as part of a plan to expand the court’s jurisdiction to all civil and criminal cases.

The reform will end Virginia’s status as the only state in the country where there is no guaranteed right to appellate review from the trial court level — a dynamic lawmakers and advocates said can leave judicial errors uncorrected.

“I don’t think we want to continue that unique distinction,” said Sen. John Edwards, D-Roanoke, who proposed the legislation.

The bill passed the General Assembly in the final hours of this year’s legislative session with endorsements from a range of bi-partisan and non-partisan groups, including the Virginia Bar Association and the Judicial Council of Virginia, which is chaired by the Supreme Court of Virginia Chief Justice Donald Lemons.

But it was unanimously opposed by Republican lawmakers, who accused Democrats of using the reform to change the partisan dynamic of the court, which at present is almost entirely composed of GOP appointees.

“This will substantially and significantly change the nature of the court overnight,” said Del. Rob Bell, R-Albemarle.

Del. Kirk Cox, R-Colonial Heights, proposed staggering the new appointments as a compromise. “While I recognize that additional capacity may be needed at the Court of Appeals, and I believe that civil cases merit review at the Court of Appeals, this General Assembly and this governor should not get to pack the court with judges of their choosing,” Cox said in a statement.

House Democrats, who after 20 years in the minority have long been shut out of such judicial appointments, did not appear eager to yield their appointment power.

But they also stressed that they weren’t pursuing the legislation as an excuse to appoint more judges, noting the idea has been discussed and studied for years. The legislation will increase the court from 11 to 17 members, which lawmakers say is necessary to handle the additional workload expected to follow the court’s expanded powers.

“This bill is certainly not motivated by a desire to add judges,” said Del. Rip Sullivan, D-Fairfax, during a committee hearing last month. “This expands the jurisdiction to make it a real, live, functioning court of appeals. We will simply need more judges to do the work.”

Created in 1985, the Virginia Court of Appeals is a relatively new institution with limited jurisdiction focused on domestic relations cases, appeals of administrative decisions by state agencies, traffic infractions and criminal cases. Appeals in civil cases are heard by the Supreme Court of Virginia.

But while the two courts offer a path to appeal criminal or civil cases, neither are required to hear or review cases brought before them. In practice, that discretion makes it unlikely that a trial judge’s decision will be reviewed, lawmakers said. And in the case of civil appeals to the Supreme Court of Virginia, litigants get no explanation why the court declined to hear their case.

The legislation changes that beginning in 2022, at which point a three-judge panel of the Court of Appeals would be required to review any civil or criminal case brought to them.

Observers called it an overdue reform, dismissing the allegations of court-packing as misplaced given the plan’s endorsement by every major group that works within the state court system.

“It is regarded as a basic tenet of American jurisprudence that each party should get one right of appeal and Virginia is the only state in America that doesn’t do that,” said L. Steven Emmert, an appellate attorney who writes about the state’s appeals courts on his website, “Virginia Appellate News & Analysis.”

“We’re basically catching up with everyone else. They’ve already passed us by.”