Examining Ken Cuccinelli's plan for the Court of Appeals

When I reviewed the first Attorney General debate a few weeks ago, I promised to critique Ken Cuccinelli’s plan to expand the appellate jurisdiction of the Virginia Court of Appeals.  After spending some time since then gathering and analyzing information I’ve come to the conclusion that the proposal is brilliant.  It is not brilliant because it is a good idea, which it isn’t, or even because it will advance Cuccinelli’s stated goal of increasing the number of cases heard on appeal, which it won’t.  It is brilliant because the defects are too complicated to explain easily, especially to non-lawyers.  In other words, Cuccinelli has his own “No Car Tax” plan—a proposal that will sound good to most people (who won’t bother trying to understand the details) and really do more harm than good.

(One quick digression:  if Cuccinelli really thinks expanding the court’s jurisdiction is a good idea, why hasn’t he ever introduced legislation to do it while, you know, he's been a member of the legislature?  Has he been saving this idea up for a rainy day on the statewide campaign trail?  Or is it merely the facile, impulsive, and ill-conceived inkling that it appears to be?  In any event, my prior criticism of Steve Shannon's technical view of the job aside, the Attorney General doesn’t get to introduce bills in the General Assembly.  Senators do.  If Cuccinelli is really committed to this idea, he should stay in the Senate and push for it there.)

I.  Background

For those of you who are not attorneys, appellate juridiction in Virginia is a complicated business.  Most Virginia lawyers don’t bother trying to understand it; they merely memorize it during bar review (and promptly forget the parts not directly relevant to their regular practice).  Unless they were practicing or in law school when the Court of Appeals was created in 1983, they’ve probably never heard of the I’Anson Report or read the law review article co-authored by Antonin Scalia (yes, really—Graham C. Lilly & Antonin Scalia, Appellate Justice:  A Crisis in Virginia?, 57 Va. L. Rev. 3 (1971)), so they have no idea why the General Assembly decided to slice up appellate jurisdiction and serve the court the specific piece of the jurisdictional pie that it got.  Fortunately, these details are unnecessary, and that’s a good thing because what the Court of Appeals is is complicated enough without explaining why it is that way.

But while precise details of and reasons for the decisions made over 25 years ago aren’t necessary, a basic understanding of the state court system is.  And that’s part of Cuccinelli’s genius or good fortune:  too few people have that basic understanding and most of those who don’t won’t bother to get it.  But I assume from the fact that you’re still reading that you either have it or are interested in getting it—so, if you don’t know the difference between the General District Courts (GDCs), Juvenile & Domestic Relations District Courts (J&DRs), circuit courts, the Court of Appeals (CAV), and the Supreme Court (SCV), you simply must stop reading this post now and get that background.  Fortunately, the SCV has a general primer available here.  If you’re not a lawyer—or even if you are but haven’t recently passed the bar or appealed cases to both CAV and the SCV—you need to read the first five pages of the primer before you continue.  Don’t worry:  I’ll wait.

All done?  OK, now you know the general difference between the courts in terms of their structure and jurisdiction.  Cuccinelli’s plan is to change CAV’s appellate jurisdiction, so we need to delve into that a bit deeper.  And because appellate jurisdiction is divided between CAV and the SCV, we need to look more closely at the SCV too.  (On the other hand, because Cuccinelli’s plan says nothing about CAV’s original jurisdiction—i.e., the cases CAV hears in the first instance rather than on appeal from somewhere else—I’m not going to cover original jurisdiction.)

For ease of reference I divide CAV’s appellate jurisdiction into three categories:  what the court must hear, what the court may hear, and what the court must not hear.  Only the third category is directly relevant to Cuccinelli’s plan but the other two are important to understand why the plan is a bad idea.  I divide the SCV’s appellate jurisdiction into the same three categories.  The goal here is to determine whether any more room for appellate review can be squeezed out of the existing court structure simply by tinkering with CAV’s appellate jurisdiction.

CAV Appeals of Right:  What the Court of Appeals MUST Hear

Code § 17.1-405 gives CAV mandatory appellate jurisdiction over certain civil matters including final decisions of administration agencies; final decisions in state employee grievance hearings; final decisions of the Workers’ Compensation Commission; and final decisions of circuit courts involving marriage, divorce, adoption, custody, child and spousal support, control or disposition of a child, and other domestic relations issues; and certain interlocutory orders (meaning orders entered before a final decision) in such cases.  In these civil cases, the losing party has a right of appeal—in other words, CAV must hear the case if an appeal is brought.

CAV Discretionary Appeals:  What the Court of Appeals MAY Hear

Code § 17.1-406(A) gives CAV discretionary appellate jurisdiction over final convictions of crimes or traffic convictions, except where the death penalty has been imposed; final decisions on concealed weapons permits; final orders relating to the involuntary medical treatment of prisoners; and final orders in actions under the religious freedom statute.  The statute also allows the Commonwealth to appeal certain adverse, pre-trial orders in criminal cases and to appeal adverse judgments in tax cases.  All of these appeals are taken by petition, meaning that the losing party may ask CAV to hear the appeal but CAV may decline to do so.

What the Court of Appeals MUST NOT Hear

Code § 17.1-406(B) expressly prohibits CAV from hearing appeals of final convictions of crimes where the death penalty is imposed, habeas corpus, final decisions of the State Corporation Commission, attorney discipline cases from the Virginia State Bar, and judicial discipline cases from the Judicial Inquiry and Review Commission.  In addition to these expressly prohibited appeals, there are also cases CAV may not hear simply because the General Assembly hasn’t granted CAV jurisdiction to hear them.  (In one of its earliest cases, County of Roanoke v. Friendship Manor Apartment Village Corporation, CAV decided that it only had whatever jurisdiction the General Assembly had expressly conferred upon it.)  Specifically, Code § 8.01-670 gives the SCV appellate jurisdiction over all civil cases (except the civil cases heard by CAV as appeals of right), including real property and condemnation, probate of wills, and tolls and taxes, with some limitations.  Because that jurisdiction is given to the SCV and not given to CAV, CAV cannot hear those cases.

SCV Appeals of Right:  What the Supreme Court MUST Hear

Generally, the SCV must hear those cases that CAV is expressly prohibited from hearing under Code § 17.1-406(B):  final convictions of crimes where the death penalty is imposed, habeas corpus, final decisions of the State Corporation Commission, and attorney discipline cases from the Virginia State Bar.  (Judicial discipline cases from the Judicial Inquiry and Review Commission are initiated in the SCV by a complaint filed by JIRC, so I include them in the Court’s original jurisdiction rather than its appellate jurisdiction.)

What the Supreme Court MUST NOT Hear

Most of what the SCV may hear is defined by negative implication from what it is prohibited from hearing so I am covering what it cannot hear first.  Code § 17.1-410 generally prohibits the SCV from hearing any appeal involving traffic infractions and misdemeanors where no incarceration was imposed, administrative agency and Workers’ Compensation Commission cases, domestic relations cases, the involuntary treatment of a prisoner, and pre-trial appeals by the Commonwealth.  The section also applies to concealed weapon permit appeals under Code § 18.2-308(L).  However, there is an escape clause:  the SCV may decide that a CAV decision “involves a substantial constitutional question . . . or matters of significant precedential value” and hear one of these cases—except that the Commonwealth may never, ever appeal to the SCV from an adverse CAV decision in one of its pre-trial appeals in a criminal case.

SCV Discretionary Appeals:  What the Supreme Court MAY Hear

Generally, the SCV may hear everything not prohibited.  This includes those cases that, by implication, CAV may not hear like the civil cases under Code § 8.01-670, except that under Code § 8.01-672 the Court may not hear an appeal where the judgment was for less than $500 unless it involves real estate.  The SCV may also hear appeals from CAV involving criminal cases where a period of incarceration is imposed, state employee grievance hearings, and the religious freedom statute.

So that’s a lot of text, but what does it all mean?  Let’s take a look at some graphs with pretty colors!

Using the Chief Justice’s State of the Judiciary Reports for 2006 and 2007 (download warning: these files are about 40MB each), which is the most recent year I could find, I’ve averaged the courts’ caseload statistics from 2002 through 2007.  The SCV’s statistics are in Table 4 of the 2006 report and Table 2 of the 2007 report; CAV’s are in Tables 6 and 8, respectively.

The first pair of graphs shows how many of each type of appeal is filed in each court:

The most striking feature of this comparison is the size and source of the SCV’s criminal caseload.  There were an average of 1.8 criminal appeals from circuit courts filed per year—a number which is still too high because the SCV has no discretionary criminal appellate jurisdiction over the circuit courts; the lawyers in these cases simply filed their appeals in the wrong court.  (Capital cases, remember, are appeals of right to the SCV and are included in the tiny purple sliver at the top.)  On the other hand, 64% of the Court’s docket are criminal appeals from CAV.  A mere quarter of the SCV’s caseload comes from civil cases from the circuit courts—and, remember, those cases can’t go to CAV.  About 65 cases a year are civil appeals from CAV, and the rest of the Court’s docket comes from habeas appeals and certified questions from the CAV or federal courts.

By comparison, 88% of CAV’s caseload comes from criminal cases.  And that makes sense because CAV’s civil docket is limited to the relatively few types of civil cases that it must take:  primarily domestic relations cases, worker’s compensation cases, and administrative agency appeals.

These two graphs reveal the effect of creating CAV:  appellate jurisdiction was essentially split into criminal and civil and criminal appellate jurisdiction was given to CAV.  The SCV hears no criminal cases, except capital cases, unless they go through CAV first.

The next pair of graphs shows how many of each type of appeal the courts actually grant and hear, leading to a decision on the merits:

The SCV graph is fairly predictable.  The Court heard all the appeals of right (appeals in capital cases, State Corporation Commission cases, and attorney discipline cases) taken to it, as well as all the cases remanded from the Supreme Court of the United States; the Court simply cannot turn those cases away unless there’s a procedural defect, like the appeal was filed too late.  On the other hand, it refused or dismissed all of the criminal appeals direct from the circuit courts—again, it has no jurisdiction over those except the capital cases included under appeals of right.  It heard a small percentage of criminal appeals from CAV—because the CAV criminal docket is so huge that the SCV can only hear so many and because the SCV can only hear criminal appeals where the sentence included incarceration—and a few more civil appeals from CAV.

The number of civil appeals granted from CAV was actually the only surprise for me.  CAV has relatively narrow civil appellate jurisdiction, remember, and the SCV can generally only hear appeals of CAV’s decisions in those civil cases if they involve a “substantial constitutional question . . . or matters of significant precedential value.”  Of the SCV’s discretionary docket, the biggest percentage of granted cases is dedicated to civil appeals from the circuit courts.

CAV’s graph is also fairly predictable.  It granted only about 10% of the criminal appeals filed, but there are an average of almost 5000 of them each year.  It granted about half of the Commonwealth’s pre-trial appeals, almost all of which involve constitutional evidentiary decisions in criminal cases.  And it heard almost all of the appeals of right.  (Some appeals of right are shown here as refused or dismissed, which would not make sense, but the tables in the State of the Judiciary Reports indicate that these include cases where CAV had no jurisdiction.  For example, if someone appeals a capital case, a State Corporation Commission case, or an attorney discipline case to CAV, CAV cannot hear the appeal.  However, under Code § 8.01-677.1, these appeals are transferred to the SCV where they belong.  In addition, if the appeal is not filed on time CAV is deprived of jurisdiction and the appeal must be dismissed.)

The final pair of graphs shows how many appeals of each type the courts actually decided on the merits, after excluding the appeals refused or dismissed:

There are no surprises from the SCV.  After weeding out the criminal appeals the Court refused or dismissed, we see that criminal appeals make up a paltry fifth of its overall merits docket—and all of them are from CAV.  Those civil appeals from CAV—the ones the SCV can only hear if they involve a “substantial constitutional question . . . or matters of significant precedential value”—make up a lousy 2% of the SCV docket; habeas and certified questions make up 5%; and the appeals of right and remands, which it can’t turn away, make up 8%.  That leaves almost two-thirds of the docket for civil appeals from the circuit courts.

On the other hand, CAV’s graph is surprising because it shows that civil appeals outnumber criminal appeals 2:1.  Out of nearly 5000 criminal appeals filed a year, the CAV grants fewer than 300!

(If you’re wondering why CAV disposed of 837 appeals on the merits and the SCV only got to 193.5, remember that, under Code § 17.1-402, CAV usually sits in three-judge panels and only sits en banc when 4 out of the 11 judges insist on doing so.  The SCV always sits en banc for merits review, and only sits in three-judge panels at the writ stage.  This is a practical effect of Code § 17.1-308, which allows the Court to sit in panels but requires it to sit en banc whenever any Justice disagrees with the panel’s result.  Thanks to panel hearings, CAV sits about 30 times a year to hear cases on the merits, not counting en banc review.  The SCV only sits 6 times a year.)

II.  Analysis

So let’s return to Cuccinelli’s proposal, which is to expand CAV’s appellate jurisdiction so it can hear more appeals.  Since CAV already has jurisdiction over all non-capital criminal appeals, Cuccinelli can only mean that he intends to give CAV jurisdiction over all civil appeals.  Civil appeals already muscle their way to 65% of CAV’s merits docket through the court’s mandatory jurisdiction.  Even though Cuccinelli admits that the court’s mandatory jurisdiction may need to be made discretionary in order to make room for more civil cases, making the court’s civil docket discretionary rather than mandatory will lead to the court hearing fewer civil cases.

This is especially true when one considers this SCV report showing that, while the number of civil cases commenced in circuit courts has increased 9.8% since 1989 (when 95,125 cases were commenced, compared to 105,472 in 2008), the number of criminal cases commenced has increased 98.1% (94,021 cases in 1989 compared to 186,261 last year), almost doubling in the same period.  Felony cases have more than doubled, increasing 104% (from 63,555 to 129,627)!

Thus the fact that CAV’s appellate jurisdiction over domestic relations, worker’s comp, and administrative agency appeals is mandatory creates a bulkhead straining against the weight of all those appeals from the skyrocketing criminal docket in the circuit courts.  Because the court can only hear so many cases each year, and because so much of that allotment is consumed by civil appeals of right, I submit that the criminal docket would explode if one were to allow CAV to pick and choose freely among all the appeals filed without requiring it to hear those civil cases it must hear now.  So even if Cuccinelli succeeded in allowing CAV to hear more civil cases if it wanted to, I believe they’d be crowded off the docket by all the criminal cases.  Consequently, Cuccinelli’s proposal is completely counterproductive.

Moreover, I’m not convinced that Cuccinelli’s underlying assumptions—that too few civil appeals are heard on the merits—is valid.  Only an average of 548 civil appeals are even filed in the SCV each year, of which an average of 126 are granted.  Those 548 filed appeals are a mere 0.5% of the 105,472 civil cases filed in circuit courts.  If too few civil appeals are heard on the merits, the problem might be that too few attorneys are appealing civil judgments, not that the courts are too busy to hear them.  (By comparison, the percentage of criminal appeals filed is five times higher:  the 4991 criminal appeals filed in CAV represent 2.7% of the 186,261 criminal cases commenced.)

But if one assumes for the sake of argument that Cuccinelli’s assumption is valid, a better solution would be to create an intermediate appellate tribunal for civil appeals that is separate from the intermediate appellate tribunal for criminal appeals.  (Some states, like California and Florida, divide their court of appeals geographically into districts but I believe dividing CAV based on jurisdiction, as Tennessee, Oklahoma, and Texas have done, is more consistent with the existing statutory structure of Virginia's appellate courts.)  I suspect that his fiscal conservative inner-child balked this idea based on the cost of cloning CAV and turning one court into the Court of Criminal Appeals and the other into the Court of Civil Appeals.  But the solution could be cheaper than that.

CAV comprises 11 judges, and they most often sit in rotating three-judge panels.  By adding merely one additional judge, you get a court of 12, which could then be divided into criminal and civil divisions.  You could have a three-judge civil division and a nine-judge criminal division (which would continue to sit mostly in panels since there are so many criminal cases, but could sit en banc as a division to resolve panel splits).  Or vice versa (though I think the civil-to-criminal ratio means the criminal division should be the one with more judges).  Or divide it 5 judges to 7, rather than 3-to-9.  The General Assembly can decide how to divide the incumbent judges between the divisions:  perhaps the judges choose for themselves, or the Chief Judge of the court chooses, or the General Assembly divides them up itself when it elects the new twelfth judge.

Creating divisions is cheaper than creating a new court because you don’t have to duplicate the overhead of a courthouse and administrative staff.  I may be naïve but I wouldn’t think the additional cost would greatly exceed one-eleventh of the current CAV budget—$8,327,856 in each year of the 2008-10 biennium—so by my estimate the new cost would be about $757,000, or $760,000 if you created an additional chief judgeship so each division had its own and gave the new, additional chief judge the same $3000 salary enhancement the existing Chief Judge gets.

There may be some additional overhead that I can’t predict, of course, and unlike, say, a state senator, I can’t get the Department of Planning and Budget to do a Fiscal Impact Study for me.  Fortunately, and unlike a lot of fiscal conservatives, I have an idea to fully fund my counter-proposal by cutting about $1,901,712 from the state budget each year.  That’s 22.8% of the current CAV budget, so it should be ample to accommodate adding a judge and dividing CAV into two divisions.  But more on that cost-cutting proposal next week.

In any event, one thing clear to me from this exercise is that, if you want to increase the number of civil appeals decided on the merits, you do not accomplish it by giving CAV discretionary appellate jurisdiction over civil appeals.  Given the staggeringly disproportionate number of criminal appeals CAV turns away each year and the explosive upward trend in criminal cases commenced in the circuit courts, few would be the civil cases CAV voluntarily accepted on appeal.  And eliminating the right of appeal over the narrow civil jurisdiction CAV already has would not make more room for other types of civil cases to be heard there, but would allow criminal cases to spill over into this preserve and make even fewer civil cases overall reach a merits decision on appeal.

Comments

[Genevieve]

Smarm first: I don't wanna take the VA bar next year anymore. Although I suppose your post explains why my post trial review prof laughed at me when I said I was planning on taking the VA bar. (But I understood your post, so whatever, PTR Prof.).

Ok, comments:

First of all, if you aren't teaching at a law school, you should be. Because I understood everything you wrote, and I'm not in a VA law school, meaning one of us is doing something right and it ain't me.

Second of all, I agree with you (oh joy. I'm sure you needed that validation, yes?). I think that this is a particularly brilliant proposal because, as you've said, it's confusing and it sounds really good at first. I think it's also important, from the perspectives of the lawyers and their clients, to note that the stakes in criminal and civil cases are vastly different. There may be a greater willingness to appeal a criminal case, because, hey, jail is bad. In a civil case, some people, not sure if their appeal would be taken, might not appeal because it'd be cheaper in the long run (in terms of money and time) than paying for a lawyer to take you through filing an appeal, waiting to see if it is granted, &c.

So you have a strong incentive to appeal a criminal case, and with Cuccinelli's plan, the CAV is more likely to take more criminal cases. The incentive to appeal a criminal case is going to go up, whereas it will be less likely that a civil appeal will be taken by the CAV, meaning that incentive goes down (hooray math). Assuming lawyers in Virginia know that the civil appeal is less likely to be granted, they may be less likely to counsel clients to file an appeal, so the number of civil appeals filed in the CAV would decrease over time as well.

[The Jaded JD]

Understanding jurisdiction is just the beginning because appellate procedure is even more complicated and the rules are sometimes opposite in CAV compared to the SCV. The consequence of missing a procedural requirement is heightened because many of them are jurisdictional. So, while CAV reports its refusals and dismissals together and you can't really tell how many cases it procedurally dismisses, you can tell that the procedural dismissal rate in the SCV is quite high--e.g., almost 20% in civil appeals from circuit courts.

There's a lot more to teaching law than being able to summarize Virginia's appellate jurisdiction in 5000 words or less. And while I'm glad you could understand my post, if you're a law student and I wrote it for a lay audience I'm not sure that's a reliable measure of success for either of us.

I think your point about the difference between the stakes in civil and criminal cases is overstated because not all criminal appeals CAV hears involve incarceration (though all those the SCV hears necessarily do). And someone staring down the barrel of a high six-figure civil judgment may feel more desperate than someone facing a 12-month jail sentence for DUI.

However, the availability of appointed counsel to criminal appellants probably does increase the pool of criminal appeals compared to the cost of retained civil appellate counsel. That may be a factor for clients but I doubt it is one for attorneys who represent them because the incentives run the opposite direction: a criminal defense attorney is much more likely to be representing an indigent defendant and much less likely to be paid well by his client for prosecuting an appeal; a civil plaintiff's attorney likely took the case on contingency, meaning if he lost at trial he won't get paid without a successful appeal (the costs of which would also probably come from the judgment recovered); a civil defense attorney who counsels for an appeal likely represents a defendant facing a hefty damages judgment that may be reduced or vacated on appeal. So, while I agree that clients generally have higher incentives and lower costs in prosecuting criminal appeals compared to civil ones, I don't think that the probability that a filed appeal will actually be granted affects the lawyer's advice to the client.

[Genevieve]

I suppose you're right; in the aggregate, the stakes even out. And you'd know better than I about what affects a lawyer's advice to a client, so I shall defer to you on that.

W/r/t my being a law student and understanding, very true, but I could be one of the dumb ones. (Considering I knew absolutely nothing about how VA appeals were structured, this is not an unrealistic point.) A dumb lawyer/law student who thinks s/he knows something can be more dangerous than an intelligent lay person, and certainly more annoying.

[Vivian J. Paige]

I think I'm going to have to read this several more times before it sinks in. Nevertheless, very good post.

[reston libertarian]

I feel there is not enough jurisprudence for civil cases in Virginia. Many areas of civil law, well developed in other jurisdictions, remain open to multiple interpretations in Circuit and General District Courts in Virginia as civil litigants have few substantive options for appeal.

As the cost is so high to simply request that the Supreme Court hear a matter, and the SCV choose to hear a small portion of those civil matters appealed, the result for most civil litigants is that the Circuit Court is the Court of last resort, and mistakes of law made, tend to remain in place. Civil litigants are being advised by counsel that the expense involved, coupled with the chance of success, militates against filing a petition with the SCV. Self selection is resulting in fewer civil appeals. If civil appeals were only slightly more likely to be granted, I predict a significant increase in the number of appealed matters, perhaps with the same percentage acceptance rate of appealed civil cases by CAV and SCV combined. The result would be far more civil cases receiving post trial scrutiny, more written opinions, and reliable precedent for Circuit Court judges.

The CAV devotes an inordinate amount of time to domestic relations matters, which receive a treasured place in terms of civil appellate rights, with an appeal of right to CAV and an appeal of discretion with the SCV. Suggesting that evidentiary or procedural matters in divorce or child custody matters (as law is largely statutory, grants judges broad equity powers, and is largely subject only to an abuse of discretion standard) have greater import than substantive rulings on the nature of property ownership, or the interpretation of standardized contract terms, just doesn't make sense to me.

I understand the concern that the CAV may allow itself to be subsumed by the criminal docket, but I would also presume the CAV would continue to treat criminal appeals as it currently does. Convicted criminals often appeal cases pro se, with or without good reason, or force appointed counsel to appeal their cases if there is any potential reason, as their freedom is on the line, and once convicted, they have little else to focus on. The CAV already has to sort through the morass of non-substantive criminal appeals to choose the handful of legitimate or important appeals. Converting all appeals to appeals of discretion will not result in more criminal appeals made, and I doubt the CAV will want to take up some of those less substantive criminal appeals.

In the end I disagree with your predictions, but acknowledge that without appeals of right neither you nor I can predict which appeals the CAV or SCV will voluntarily take.

I read the jadedjd regularly many years ago. Welcome back!

[The Jaded JD]

Even if all you argue is true, expanding CAV's jurisdiction does not guarantee that more civil cases will be heard. As you put it, "neither you nor I can predict which appeals the CAV or SCV will voluntarily take." (I don't think the SCV is in play in this argument because appeals of right to the SCV make up a small portion of its docket--1% of appeals filed and 8% of appeals heard on the merits.) So, assuming that neither of us can predict what will happen in CAV if it were given discretionary jurisdiction over both civil and criminal appeals, creating a civil division in CAV seems a lot more likely to increase the number of civil cases heard on appeal.

At the very least, it's premature to call for changing CAV's jurisdiction without a legislative study--whether by the Judicial Council, the Committee on District Courts, JLARC, DLS, or the joint Courts committees--without having an idea of what effect the propounded change will have. I think it would also be useful if more circuit court opinions were reported so we could see whether these anecdotal reports of circuit splits amount to a statistically significant sample.

[reston libertarian]

Right now the Supreme Court doesn't take into account Circuit Court splits as there don't appear to be many. Circuit Court judges who want to decide against other Circuit Court precedent instead of riling their peers, tend to issue contrary orders without opinions. The litigants are left at the end of the day with false rights of appeal, as the Supreme Court takes so few matters. If more civil appellate opinions are being written, Circuit Court judges may find it more important to right opinions, thereby creating circuit splits.

I just can't see expansion of Court of Appeals jurisdiction resulting in fewer civil appellate decisions, outside the area of domestic relations. (I believe it is necessary to maintain mandatory jurisdiction for workers comp and admin appeals as Circuit Court rights for these matters are either truncated or nonexistent)

I understand the desire and need for review and analysis by a legislative committee. But, the purpose of Cuccinelli's plan appears to be expansion of availability of appellate review in civil matters. Even if research is needed as to the method of achieving the goal, the expansion of appellate rights in civil matters will assist in orderly jurisprudence for litigants and practitioners.

I guess I feel the system is so bad for my civil litigants that I will support any proposal that appears to me to expand the possibility of my clients' civil appeals being heard. I'm also tired of citing case law from 60+ years ago . . .

[The Jaded JD]

I think your first paragraph is simply wrong. No judge likes to be reversed and the fact that either appellate court is hearing more appeals is not going to inspire circuit judges to write more opinions. The SCV takes about 25% of the civil cases appealed directly from circuit courts and about 15% are dismissed on procedural grounds. You have proposed that the remaining 60% are mostly meritorious appeals the SCV turned away simply because it lacked time. I don't see any evidence of that, compared to the more likely explanation that the 3-judge writ panel would have affirmed the circuit court's judgment.

I am willing to meet you halfway and say that it would be nice to have better data. I would support an SCV rule or a statute that requires a circuit court to issue a written opinion, rather than merely explaining its rationale on the record from the bench, in certain classes of civil cases. That would provide data from which to objectively evaluate how often circuit splits occur and how significant the legal issues are in the cases where they do. But it's premature to say that the SCV is denying meritorious appeals and ignoring circuit splits based on purely anecdotal evidence.

We'll have to agree to disagree about the effect expanding CAV's civil jurisdiction and making its domestic relations jurisdiction discretionary would have on its docket. I read the numbers one way and you read them the opposite way. There's no objective basis to determine ex ante who is correct.

I don't understand your third paragraph because it seems to start off by agreeing that a study would be appropriate and then seems to finish off saying something needs to be done now. If I've misread you and what you're saying is that a study is needed to find the right methodology but we simply know that more civil appeals need to be heard, I agree only with the first half: I think we need to see what the study says before we can prejudge that more civil appeals need to be heard. Again, if the SCV's civil denials are mostly coming from civil judgments they would affirm on the merits, more civil appeals don't need to be heard.

Which leads to your fourth paragraph: It doesn't matter whether the caselaw you're citing is 60, 100, or 200 years old. If the law hasn't changed, the law hasn't changed. No appellate court is going to have the luxury to sit around hearing and affirming appeals of judgments that are correctly decided based on existing precedent. For example, an appeal that essentially says, "Tell us, O might Court, does Dillon's Rule still restrict local governments to the powers conferred on them by the General Assembly?" is not going to be granted until a majority of the court thinks the answer is no. It doesn't matter how long ago Dillon's Rule was recognized in Virginia law.