Yes, there is an appellate law grapevine, and it was all abuzz yesterday from a reliable rumor that the expansion of the jurisdiction (and size) of the Court of Appeals of Virginia is all but a done deal. The unofficial word is that the legislation has or will soon pass and that the Governor will sign it. This means some big changes for the appellate landscape in Virginia:
- Except for appeals that are required to be heard in the Supreme Court (State Corporation Commission Appeals, Appeals of Attorney Disciplines Cases, and Appeals of Death Sentences — which will be no longer be a thing soon), all appeals will go through the Court of Appeals as appeals of right — no more petitions for criminal cases, and no need for a petition in civil cases that formerly went direct to the Supreme Court.
- The Court of Appeals will have to extensively rewrite its rules to account for the new process.
- The Supreme Court will likely have a period where its dockets are even smaller than the very short dockets of recent years as there will be a delay between the Court of Appeals taking over the Supreme Court’s civil docket and cases being appealed to the Supreme Court.
- There will be a significant uptick in summary affirmances — in fact, my guess is that court will simply replace the one-judge review of criminal cases with an automatic release of a summary affirmance in those cases that previously were refused by per curiam order. The question is will a summary affirmance be subject to review with a right of oral argument (as petitions for appeal are now) or will it be a “one and done.”
All the preparation will happen sometime in the next 10 months if the January 1, 2022 shift to the new order remains in the legislation. I think this may be a tall order for the Court to redraft its rules and get the necessary staff in place and trained — the new Judges will have law clerks and judicial assistants of course, but I cannot imagine that they will be sufficient to handle the extra workload without a few additional staff attorneys. The Clerk’s Office will likewise need several new staff members.