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Judicial Council of Virginia to Study Expansion of the Court of Appeals' Jurisdiction, Organizat


The most fundamental changes to Virginia's appellate justice system since 1985 are afoot. During its 2020 Session, the General Assembly passed Senate Joint Resolution No. 47 (“the resolution”). Senator Scott A. Surovell patroned the resolution. The resolution requires the Judicial Council of Virginia (“Judicial Council” or “council”) to “study the jurisdiction and organization of the Court of Appeals of Virginia” and to issue a report. The council must complete its proceedings by November 30, 2020, and issue its report to the General Assembly “no later than the first day of the 2021 Regular Session[.]” For my readers’ convenience I set out the resolution’s full text, below.

By way of background, the Judicial Council dates back to 1930 and, among its duties, is “charged with the responsibility for making a continuous study of the organization, rules and methods of procedure and practice of the judicial system of the Commonwealth. It is also responsible for examining the work accomplished and results produced by the system and its individual offices and courts.” See http://www.courts.state.va.us/courtadmin/judpolicies/home.html#jc.

The Chief Justice of Virginia’s Supreme Court serves as the council’s presiding officer. Id. Its other members include, “one Court of Appeals judge, six circuit court judges, one general district court judge, one juvenile and domestic relations district court judge, two attorneys qualified to practice in the Supreme Court and the Chairmen of the Committees for Courts of Justice in the Virginia Senate and House of Delegates.” Id. The Chief Justice appoints those members selected from the judiciary and the bar, and they serve at the Chief Justice’s pleasure for four year terms. Id.

The resolution charges the Judicial Council not only to study the Court of Appeals’ jurisdiction but also to make recommendations on “(i)…implementing an appeal of right in all cases decided by and appealed from circuit courts; (ii)…organizing the Court of Appeals into four geographic circuits, approximately encompassing central Virginia, eastern Virginia, northern Virginia, and western and southwestern Virginia with appeal by certiorari to the Supreme Court…including how many additional judges would be necessary to effectuate such a system; (iii)…whether any additional statutory changes are necessary; and (iv) develop a proposed budget and implementation schedule.”

To say the least, these duties constitute a huge undertaking, and especially so in light of the Judicial Council’s reporting deadline. To aid the council’s work the resolution specifies that “[a]ll agencies of the Commonwealth shall provide assistance” to it and provides that the Executive Secretary’s office will provide technical assistance.

The study must include consultation with numerous organizations. The resolution requires that the Judicial Council “solicit public comment from the Virginia State Bar, the Boyd-Graves Conference, the Virginia Bar Association, the Virginia Trial Lawyers Association, the Virginia Association of Defense Attorneys, the Virginia Association of Commonwealth’s Attorneys, the Virginia Association of Criminal Defense Lawyers, the Virginia Indigent Defense Commission, and all minority bar associations.” These groups’ diverse interests and positions necessarily will affect the Judicial Council’s deliberations and recommendations. At the same time, their interests and positions may diverge in complex or even irreconcilable ways.

The resolution passed by voice vote in the Senate and the House passed it by a wide margin, 62-35. Based upon the resolution’s “whereas” recitals, the General Assembly acted upon access to justice considerations respecting both criminal and civil cases and ongoing concern about our appellate judiciary’s fulfilment of its error-correction role. For example, the recitals stated that “appeals of right to the Supreme Court…are limited to only appeals from the State Corporation Commission and capital cases, and parties in civil cases are often denied appellate review from judgments in the circuits courts.” The recitals decried that “a lack of appellate review increases the likelihood of judicial mistakes, wrongful convictions and unjust outcomes,” and stated that “a bona fide right to appeal has been recognized as a part of fundamental due process that has its ultimate roots in the Virginia Declaration of Rights.”

The resolution’s recitals further made comparisons between Virginia’s appellate justice system and those of the federal and other states’ systems. Those recitals stated that “appeals of right are guaranteed at every level of the federal judicial system,” and that “Virginia has been the only state…without a guaranteed right of appeal in criminal cases for over a decade and has recently become the only remaining state…without a guaranteed right of appeal in all other cases.”

With such strongly worded reasons for initiating the study, the General Assembly appears poised to take action to increase the Court of Appeals’ capacities. Yet the COVID-19 pandemic, with its negative effects upon the Commonwealth’s tax revenues, surely will slow any efforts to implement contemplated reforms. (Indeed, can the study proceed at all during the current lockdowns and social distancing?) And appeals of right in criminal and civil cases would greatly increase the Court of Appeals’ workload, requiring additional funding for judges and staff, as well as for case management and administrative functions and facilities. An appeal of right in criminal cases also would significantly impact the budgets of the Indigent Defense Commission and the Attorney General’s Office.

And what about the possible regional reorganization of the Court of Appeals? During 1985 and 1986 I had the honor of serving as the first law clerk to the late Judge Joseph E. Baker, one of the Court of Appeals’ first group of judges. I recall the then-stated reasons for having judges selected from throughout Virginia serve on the court and “rotate” among its decisional panels. That rationale went beyond mere sectional politics; it also sought to avoid the regional balkanization of Virginia’s appellate jurisprudence. Would a region-based organization of the Court of Appeals reintroduce such concerns?

Without a doubt, the contemplated reforms would require several legislative enactments. An expansion of the Court of Appeals’ jurisdiction additionally would require a range of amendments to the Rules of the Supreme Court of Virginia pertaining to Court of Appeals procedures and to appeals from that court to the Supreme Court. (Query, does the resolution's use of the term "appeal by certiorari" equate to a "petition for appeal" to the Supreme Court?)

I currently serve as Chair of the VTLA’s Appellate Section and am an active member of the VBA Appellate Council. In these capacities, and as a full-time appellate litigation attorney I am intensely interested in the Judicial Council’s work and their ultimate recommendations. I look forward to working with my colleagues to provide meaningful input. The Judicial Council’s work may well result in fundamental changes to Virginia’s appellate justice system and produce the roadmap for its future.

Norman A. Thomas

SENATE JOINT RESOLUTION NO. 47

Requesting the Judicial Council of Virginia to study the jurisdiction and organization of the Court of Appeals of Virginia. Report.

WHEREAS, the Court of Appeals of Virginia was created in 1985 with the intention to alleviate the caseload of the Supreme Court of Virginia; and

WHEREAS, the Court of Appeals' jurisdiction over appeals from the circuit courts is limited to domestic relations matters, traffic infraction cases, and criminal cases (except cases involving the death penalty), as well as appeals from the decisions of administrative agencies; and

WHEREAS, appeals of right to the Court of Appeals are only authorized in domestic relations and workers' compensation matters; and

WHEREAS, since 1985, the quality, diligence, and predictability of jurisprudence has improved in the circuit courts due to the increased likelihood of appellate review in certain matters; and

WHEREAS, appeals of right to the Supreme Court of Virginia are limited to only appeals from the State Corporation Commission and capital cases, and parties in civil cases are often denied appellate review from judgments in the circuit courts; and

WHEREAS, a lack of appellate review increases the likelihood of judicial mistakes, wrongful convictions, and unjust outcomes; and

WHEREAS, appeals of right are guaranteed at every level of the federal judicial system; and

WHEREAS, Virginia has been the only state in the United States without a guaranteed right of appeal in criminal cases for over a decade and has recently become the only remaining state in the United States without a guaranteed right to appeal in all other cases; and

WHEREAS, a bona fide right to appeal has been recognized as a part of fundamental procedural due process that has its ultimate roots in the Virginia Declaration of Rights; and

WHEREAS, in 2013, the Judicial Council of Virginia concluded in a two-year study, submitted to the 2014 Session of the General Assembly pursuant to House Joint Resolution 111 (Regular Session, 2012) and published as House Document 7 (Regular Session, 2014), 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"; now, therefore, be it

RESOLVED by the Senate, the House of Delegates concurring, That the Judicial Council of Virginia be requested to study the jurisdiction and organization of the Court of Appeals of Virginia.

In conducting its study, the Judicial Council of Virginia shall (i) make recommendations on implementing an appeal of right in all cases decided by and appealed from the circuit courts; (ii) make recommendations on organizing the Court of Appeals into four geographic circuits, approximately encompassing central Virginia, eastern Virginia, northern Virginia, and western and southwestern Virginia with appeal by certiorari to the Supreme Court of Virginia, including how many additional judges would be necessary to effectuate such a system; (iii) make recommendations as to whether any additional statutory changes are necessary; and (iv) develop a proposed budget and implementation schedule.

Technical assistance shall be provided to the Judicial Council of Virginia by the Executive Secretary of the Supreme Court of Virginia. All agencies of the Commonwealth shall provide assistance to the Judicial Council of Virginia for this study upon request. The Judicial Council of Virginia shall further solicit public comment from the Virginia State Bar, the Boyd-Graves Conference, the Virginia Bar Association, the Virginia Trial Lawyers Association, the Virginia Association of Defense Attorneys, the Virginia Association of Commonwealth's Attorneys, the Virginia Association of Criminal Defense Lawyers, the Virginia Indigent Defense Commission, and all minority bar associations.

The Judicial Council of Virginia shall complete its meetings by November 30, 2020, and shall submit to the Governor and General Assembly an executive summary and a report of its findings and recommendations for publication as a House or Senate document. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports no later than the first day of the 2021 Regular Session of the General Assembly and shall be posted on the General Assembly's website.

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Norman A. Thomas, PLLC

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Mr. Thomas serves appellate clients from throughout the Commonwealth of Virginia in Virginia's appellate tribunals, the State Corporation Commission, and the U.S. Court of Appeals for the Fourth Circuit. 

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