Whither the Court of Appeals?
New report could revive debate on expanding the court’s jurisdiction

By Peter Vieth, Virginia Lawyers Weekly – 2/3/2014

Expanding the jurisdiction of the Virginia Court of Appeals – limited by statute to only four areas of law – has been on the table practically since the court was established in 1985.

But new caseload figures and a short report from Virginia’s two appellate courts could fuel new debate about the state’s appeals system.

Statistics show a gradual decline in cases at the two top state courts, and the appellate judges raised no objection to expanding the workload of the Court of Appeals.

Now that a statistical report has emerged, one legislator suggested the issue is due for more independent study.

Legislators and legal observers in recent years questioned whether the Court of Appeals should be taking on more cases to ease the workload of the Supreme Court and ultimately offer review of more trial court decisions.

In December, the Judicial Council of Virginia provided caseload numbers for the Supreme Court and Court of Appeals in response to a request from the 2012 General Assembly. Their report was released on Jan. 7. In 2012, two delegates suggested the Supreme Court was turning away appeals because of its heavy caseload and urged study of the “jurisdictional capacity” of the Court of Appeals.

The Court of Appeals is limited by statute to hearing appeals in only four areas of the law: criminal (including traffic), domestic relations, workers’ compensation and administrative law.

As a study resolution emerged from the 2012 Assembly, the Judicial Council was asked to look at whether the quality of appellate review would be served by expanding the list of case types handled by the Court of Appeals.

The response from the appellate courts was succinct. Writing for the Judicial Council, Supreme Court executive secretary Karl R. Hade said the Supreme Court and the Court of Appeals conducted a “detailed review” of its caseload data.

“Based upon this review, it was concluded that the current judicial capacity of the Court of Appeals, to continue quality and timely appellate review, would not be impaired if given additional jurisdiction provided it is given appropriate staffing levels and resources,” Hade wrote in a Jan. 6 letter to the governor and Assembly members.

An increase in caseload would require additional resources “for optimal functioning of the Court,” Hade added.

The numbers – essentially the same figures provided last spring in the courts’ annual reports – show a steady decline in the number of appeals accepted by the Supreme Court, especially in criminal cases.

The reduced number of writs granted loosely tracks a reduced number of petitions filed – fewer litigants overall are asking for review. For the most recent five-year period, the high court saw a decrease of 15.3 percent in petitions. The trend continued in 2013, the court reported.

For the same period, the Court of Appeals experienced a steady decrease of 24.2 percent of total cases filed, the court reported, although early 2013 numbers show an uptick. More than 3,000 cases were filed with the CAV in 2008, only 2,356 in 2012.

Lawyers and legislators who examined the Judicial Council report drew few conclusions directly from the statistics provided.
“You can’t really tell from the statistics just what they mean and the implications,” said Roger T. Creager, a Richmond appellate lawyer.

Legislators who might act on the report said they hope to gather more information and take a wider look at the court system.

Suggestions in the past have ranged from eliminating the Court of Appeals altogether to making that intermediate court a first stop for every appeal.

Del. G. Manoli Loupassi, R-Richmond, said it would be appropriate to send the report back to the Boyd-Graves Conference, where a study panel postponed examination of the Court of Appeals’ jurisdiction in 2012, deferring to the court study.

The Boyd-Graves Conference assembles lawyers, legislators, judges and academics to consider changes in the civil justice system.

Del. Gregory D. Habeeb, R-Salem, said he would like to see additional statistics. For instance, he wondered about the time an appeal takes from the filing of a notice of appeal to the conclusion. Habeeb said his perception is the process is quicker now.

The overall numbers may be down, Habeeb said, but added, “To me, the more important question is: Are people getting justice quickly?”

“I do not want to just pull stuff into the Court of Appeals just to keep them busy,” Habeeb said.

Appellate lawyer Jeffrey M. Summers of Richmond said he would like to see analysis that tracks cases from trial courts on up. For instance, he suggested a comparison of the number of cases tried in juvenile and domestic relations courts with the number appealed to the court of appeals and then the number that go up to the Supreme Court.

“I think that would be a much more informative number,” Summers said. “To get the right structure for the appellate courts, you have to look at the whole system.”

Virginia Beach appellate lawyer L. Steven Emmert, who chaired the Boyd-Graves panel that looked at the issue in 2012, said the drop in appeals court filings might be attributed to the increased use of alternative dispute resolution as well as simple cost-aversion by businesses.

Litigants squeezed by the recession are resolving their cases out of court or simply choosing to live with an unfavorable decision rather than spend the money to appeal, Emmert suggested.

Emmert said another statistical concern is the disproportionate decline in appeals accepted by the Supreme Court, what he termed a “collapse in the writ market.”

Emmert said the high court has gone from granting appeals in about 21 percent of civil cases presented each year to just 15.8 percent in 2011 and 15.4 percent in 2012.

The drop off is even steeper for criminal appeals, but those cases have already had a look by the Court of Appeals.

Emmert said he does not know why the Supreme Court is taking fewer civil cases for review – “That’s court insider stuff,” he said – but he views the numbers with some dismay, and not just because of the decline in work.

Fewer cases decided means fewer explanations of the contours of Virginia case law and fewer trial court errors being corrected, Emmert said.

Summers urged consideration of making civil appeals a matter of right at the intermediate appellate court, like the federal system. He said it’s possible now to suffer a seven-figure judgment at trial and get no review.

He suggested perhaps the Court of Appeals provide automatic review of all civil cases, but not necessarily with oral argument in all appeals. That way, he said, everyone knows that – regardless of the trial outcome – somebody will take a look to see if there was error.

“Think what that would do for the sense of fairness of the litigants,” he said.

Another idea would be to give the court the discretion to reject appeals up to a certain dollar level, with an appeal of right for everything above.

“I would like to see the court study married up to the appeal statistics better,” Summers said. He said the Boyd-Graves process is probably the best place to crunch the numbers and study various models of appellate review.

Creager said the courts could make changes to reduce the time involved for each case, such as varying the amount of argument time allowed while increasing the page limit on briefs.

Harrisonburg lawyer C. Frank Hilton – a member of the original Boyd-Graves panel that looked at the issue, suggested it might be time to expand the Court of Appeals’ civil jurisdiction.

“There are so many things that don’t get a review because of the discretionary review of the Supreme Court,” Hilton said. “We do not have a robust body of law on discovery issues,” he said.