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Appeals court plan still alive, despite lack of House action

Peter Vieth//February 22, 2021

Appeals court plan still alive, despite lack of House action

Peter Vieth//February 22, 2021

Even though the Democrat-controlled House of Delegates largely has ignored the legislative proposal to expand the Court of Appeals of Virginia to allow appellate review for any circuit court judgment, the project remains alive on a legislative back burner, supporters say.

The expansion plan seemed to be on a roll early in the year. The proposal came with the unanimous recommendation of a study committee appointed by the Supreme Court of Virginia after the idea received generally favorable comments from the bar and the public.

In December, Democratic Gov. Ralph Northam announced his plan to add $5.1 million into the budget package to pay for added judgeships and staff, drawing a short burst of partisan criticism from Republicans. The head of the Senate Judiciary Committee promptly requested that bar groups evaluate candidates for the expected openings on the court.

Parallel proposals were introduced in the House and Senate – the House plan calling for four added judges, the Senate plan with six additional seats.

The Senate committee recruited a work group to hammer out details.

“This may be the most important bill we’re passing this year,” Sen. John Edwards, D-Roanoke, said Feb. 5 as the bill came before the Senate.

But even as Edwards’ bill made it through the Senate on a 21-18 vote that day, the House version, introduced by Majority Leader Charniele Herring, D-Alexandria, was languishing in the House Courts Committee that she chairs.

The House bill expired Feb. 8 when the Assembly’s deadline for action passed without a committee vote and then both chambers adjourned for the regular session. The Senate bill is now in the hands of the same House committee, but the bill had not appeared on any committee agenda as of Feb. 17.

Moreover, House Democrats on Feb. 12 approved a budget amendment that would remove Northam’s proposed funding for the expanded court. And although bar groups had reviewed and recommended candidates for the expected Court of Appeals vacancies as requested, the Assembly had not scheduled interviews of any of those candidates as of Feb. 17.

Herring did not respond to emails seeking information on the status of the expansion plan in her committee. Other committee members either did not respond to inquiries or declined to speak on the record.

Despite the House’s apparent disregard for the expansion plan, Assembly insiders – not authorized to speak on the record – indicated that the House might still take up Court of Appeals expansion after the chamber completes work on more high profile measures, including marijuana legalization, ending the death penalty and criminal expungement.

Some suggested the House proposal to remove funding was merely part of budget posturing between the House and Senate, and that judicial picks could come later in the year.

Bureaucracy worries

The Senate debate of Feb. 5 revealed philosophical differences between Democrats and Republicans on the expansion plan.

Without an appeal of right in every case, “the trial judge basically has the final word, as a practical matter,” Edwards said, urging support for expansion.

He said his committee’s work group developed a plan to allow oral argument for every appeal, unless the panel unanimously decides the appeal is “wholly without merit” or the case law has been authoritatively decided and the appellant is not seeking to overturn the case law.

Sen. Mark Obenshain, R-Rockingham County, warned the expansion might be a harbinger of a burgeoning judicial bureaucracy.

“This is not just a lawyer bill,” he told the senators. “This is not the end. We’re going to be back, hearing about further expansions of our Court of Appeals,” Obenshain cautioned.

Noting his own civil litigation practice, Obenshain said every litigant currently is entitled to some form of appellate review.

“Everybody gets a hearing before a court of appeals. Everybody. There is not a single case that does not get screened on appeal. You may not get your appeal granted; you may not win your appeal. But everybody who goes through the court system has a right – if you start in general district court, you get an appeal to circuit court.

Then, depending on the type of case, you get an appeal to either the Court of Appeals or the Supreme Court. And you get to argue your case before judges of the Supreme Court or judges of the Court of Appeals,” Obenshain said.

He also warned of added delay in getting a final court judgment and the fiscal impact of 50 new attorneys on the Court of Appeals staff.

It was not clear Feb. 17 what the schedule would be for the special session that began Feb. 10. No session calendar had yet been posted on the General Assembly website.

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