Court of Appeals expansion clears first hurdle

Despite concerns about a murky budget impact and a lack of finality for trial court wins, a plan to expand the Court of Appeals of Virginia moved through a state Senate committee Jan. 25. The proposal to offer an appeal of right for every trial court judgment will face financial scrutiny in a Senate money committee before it can get to a floor vote.

17 judges

The Senate proposal for court expansion calls for an added six judgeships, for a total of 17 seats. A parallel House measure envisions only 15 judges. More importantly, legislation in both the House and Senate would allow at least some appellate review of every final ruling in circuit courts.

“As a practical matter, you’d have an absolutely right of appeal,” said bill sponsor Sen. John Edwards, D-Roanoke.

Republicans questioned the fiscal impact of an expanded court as Edwards’ bill came before the Senate Judiciary Committee. Sen. Scott Surovell, D-Fairfax County, who helped craft the expansion plan, said the attorney general’s office is saying they will need 50 more staff.

“I’ve put in a budget amendment for that,” he told fellow senators. His proposal called for $5.9 million in the next annual budget for additional AG staffing.

Gov. Ralph Northam proposed a $5.1 million budget amendment for expansion of the court to 15 judges. Edwards has filed a proposed budget amendment for nearly $3.2 million to pay for the two additional judges in his proposal. 

Still, Republicans said the ultimate cost is uncertain.

“While the advocates of this bill believe it is a wonderful policy, … once again, it is absolutely devoid of the financial implications,” said Senate Minority Leader Tommy Norment, R-Williamsburg.

Appendix, oral argument addressed

Appellate lawyer Steve Emmert said the expansion plan would create a system comparable to the federal appellate judiciary, “where almost every appeal’s first stop is the Court of Appeals.” 

In a Jan. 25 commentary, Emmert added, “After that court rules, an aggrieved litigant may petition the Supreme Court for further review.”

Similarly, the Virginia proposal calls for three-judge panels to consider whether to allow further appellate review. Appeal from the Court of Appeals would be by petition for writ to the Supreme Court.

Edwards said his proposal would allow litigants to skip the filing of an appendix in some cases.

Edwards said his work group debated on the standard for skipping oral argument. The result was language that permits the Court of Appeals to dispense with oral argument only if the appellate panel unanimously agrees that the appeal is “wholly without merit” or the dispositive issues have been authoritatively decided and the appellant is not arguing for overturning, extending, modifying or reversing the case law.

The plan contemplates more involvement by the attorney general’s office in criminal appeals. The legislation states the commonwealth shall be represented by the attorney general if the AG files a notice of appearance. Otherwise, the commonwealth would be represented by the commonwealth’s attorney prosecuting the case.

No public opposition

The legislation would move the expedited review of interlocutory appeals and injunction appeals from the Supreme Court to the Court of Appeals

Cases could still be dismissed for procedural defaults, including missed deadlines.

No one appeared to speak in opposition to the court expansion proposal at the Senate committee meeting.

Lobbyist Jeff Palmore said the Virginia Bar Association supports the expanded right of appeal under the plan. He added that the state Chamber of Commerce was also in support. Sen. Chap Petersen, D-Fairfax, said the chamber’s support should be a warning flag for trial lawyers.

“You’re not going to have finality on your big verdicts for years now, and you may not get to keep them,” he cautioned.

The Senate committee vote to approve the bill was 8-6, largely reflecting party lines. The next stop for the Senate bill is the Senate Finance Committee.

The House version of the bill – calling for 15 judges – was still not assigned to a committee, according to online records accessed Jan. 28.