Nick Hurston//September 25, 2023
Nick Hurston//September 25, 2023//
Appellate practitioners and others who monitor Virginia’s jurisprudence have noticed a long, steady decline in the number of opinions released by the Supreme Court of Virginia.
The expansion of the Court of Appeals’ jurisdiction and the COVID pandemic only explain the drop since 2020.
Virginia’s highest court has released 21 opinions in 2023, the last one in July. At this pace, the court will have released fewer than half the opinions it had in 2022 and a quarter of 2021’s total.
That attenuation has been gaining momentum for more than a decade.
“Twenty years ago, the Supreme Court of Virginia routinely took in about 3000 filings a year,” L. Steven Emmert of Virginia Beach said. “Fast forward to five years ago and that’s been cut in half. So the court is lacking the raw materials for its docket.”
A request for comment from the Supreme Court was returned by Alisa Padden, director of legislative and public relations. She told Virginia Lawyers Weekly the court’s statistical caseload reports with data reaching back to 2002 may be responsive.
These reports confirmed Emmert’s observation of a lengthy downward trend in petitions filed, albeit with slight fluctuations. Overall, the numbers reflect a consistent reduction in the number of opinions released by the high court, which has outpaced the reduction in petitions filed.
Here, we present thoughts from Virginia appellate lawyers about the recent paucity of Supreme Court opinions, past trends of the court and how its role is evolving with recent statutory and practice changes.
“We talk about the declining number of Supreme Court opinions a lot at the appellate bar because it’s an issue for us,” Juli Porto of Blankingship and Keith in Fairfax said. “We need the cases.”
With fewer opinions, Porto said it’s harder to address new client issues as they arise. She pointed out that, generally, it’s good for the court to take more cases because it informs trial attorneys and judges.
“Attorneys can make more educated recommendations to their clients because they will have a robust jurisprudence to pull from,” she said.
But Emmert doesn’t think the Supreme Court’s decline in opinions is permanent.
“Now the cases that are wending their way through the Court of Appeals should begin filtering up to the Supreme Court,” he said.
But Michelle Kallen of Jenner & Block in the District of Columbia has seen fewer civil writs being accepted by the high court.
“I don’t know of any civil cases being argued in September’s session,” she said. “And for those of us who are primarily civil practitioners, that means we’re getting less experience in the Supreme Court.”
The 2021 expansion of the Court of Appeals jurisdiction was a significant moment, Emmert said.
“For most of last year, the only cases coming to the Supreme Court have been criminal domestic relations cases, workers compensation and a handful of administrative cases,” he noted. “That’s why we see far fewer merits cases coming out now.”
Monica Monday of Gentry Locke in Roanoke said the Supreme Court of Virginia is now a true certiorari court.
“Virtually every criminal and civil litigant now has a direct appeal of right to the Court of Appeals,” she pointed out. “When the General Assembly decided to transform the Court of Appeals into a court with plenary jurisdiction to hear all appeals, I think it was a policy decision about what the Supreme Court of Virginia’s role is going to be.”
Meanwhile, Porto said trial attorneys must adjust to the new paradigm — where each case has the potential for direct appeal — by educating themselves about error preservation.
Appellate practitioners roundly observed that the jurisdictional expansion of the Court of Appeals and the Supreme Court’s declining release of opinions signaled a shift in the high court’s role from correcting errors to focus more on lawmaking.
“It’s a court of last resort,” Kallen noted. “There isn’t a need for the Supreme Court to take on a case if the Court of Appeals has already corrected the error.”
Both Kallen and Emmert suspect that Virginia’s high court may be following the example of the U.S. Supreme Court, which has also been taking fewer cases and relies on the federal circuit courts for error correction.
And while Monday said the court was looking for novel issues, cases of first impression and splits among the circuit courts, Kallen and Porto opined that not all cases would make good law.
“Taking cases for law development, you’re not necessarily even taking cases with unique legal issues or that haven’t been tested because you don’t want a case with bad facts or circumstances,” Porto noted. “Bad facts make bad law, so the court is looking for the right case.”
Emmert and Kallen said the changing face of the Supreme Court may contribute to the declining number of opinions.
“There’s been a significant turnover on the court recently,” Emmert said. “It’s just two justices, but that’s 29% of the court.”
A pair of new justices joined the court in 2011, and the number of published opinions has steadily declined since 2012. Three judges have joined the court post-COVID.
Another factor affecting the number of opinions is the court’s tightening requirements for assignments of error.
“In 2018, the court amended Rule 5:17(c) and now you have to list specific errors and identify precisely where they are preserved in the record,” Emmert said.
Porto also noticed more cases getting kicked out of the Court of Appeals for failing to preserve or identify where errors were preserved. She suspects that trend will reverse as more trial attorneys gain experience with appellate practice.
As reported in 2017 by Virginia Lawyers Weekly in “It takes 2: Supreme Court raises the writ bar,” the high court announced that it would break with decades of practice by requiring the approval of two justices — rather than just one — to grant a petition for appeal or rehearing.
“In my opinion, the justices simply decided to make it tougher to get a writ accepted,” Emmert said. As he did in 2017, Emmert believes the new practice doesn’t comport with Virginia Code § 17.1-308 and Supreme Court Rule 5:3.
“Basically, the statute says if there’s any disagreement on the panel, then the case goes to the full court, and the rule tracks that language,” he explained.
Having started to practice before the Supreme Court in 2018, Kallen said one of her favorite things about the court was the etiquette of the justices.
“The justices are really kind to their core and they emphasize being collegial with each other and with members of the bar,” she said. “You would think that collegiality might result in them taking more cases when one justice felt more strongly than the others, but apparently that’s not the case.”