New Changes to the Virginia Court of Appeals
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
As courts go, the Virginia Court of Appeals is relatively new. It came into existence in 1985. You might almost say that the court is still in its adolescence. It came into existence during a time period when many states made important changes to their court structures. For example, between 1980 and 1991, seven states created intermediate appellate courts.[1]
The Virginia Court of Appeals was somewhat unusual, though. It was created to be primarily a criminal appellate court. While its jurisdiction includes appeals in domestic relations matters, appeals in traffic offenses cases, appeals from administrative agency decisions, and appeals from final decisions of the Virginia Workers’ Compensation Commission, its primary function has been to consider appeals in criminal cases. For example, in 2019 (the most recent year for which statistics are available), a total of 2090 cases were filed in the Court of Appeals. The vast majority of those cases (1548) were criminal cases.[2]
The Virginia Court of Appeals is unusual in another respect as well. Unlike most (if not all other) state intermediate appellate courts in the United States, appeals in criminal cases go to the Virginia Court of Appeals by means of a petition for appeal, rather than an appeal as a matter of right. This means that when a criminal defendant appeals a conviction to the Court of Appeals, the petition is referred to one of the judges on that court.[3] If that judge grants the appeal, it will be heard by three judges on the court (referred to as a panel). If the judge to whom the petition for appeal is referred does not grant the appeal, the defendant may appear before a 3-judge panel and present arguments in favor of granting the appeal. That panel may also deny the petition for appeal. If the judge and panel deny the petition for appeal, the defendant does not receive an opinion deciding the merits of the legal arguments raised by the defendant. (It seems safe to assume, however, that if the judge and 3-judge panel denying the petition for appeal thought that any of the arguments raised by the defendant had potential merit, the petition for appeal would have been granted).
The 2021 session of the General Assembly made some very significant changes to the Court of Appeals. Beginning January of 2022, the Court of Appeals will hear both criminal and civil appeals. Those appeals will also now be as a matter of right. At present, civil appeals go to the Virginia Supreme Court by petition for appeal. The 2022 changes mean that there will be a decision on the merits of an appeal by the Court of Appeals in all civil and criminal cases.
Of course, this change will result in a substantial increase in the workload of the Court of Appeals. Therefore, the 2021 legislation also increases the number of judges on the Court of Appeals from eleven to seventeen to facilitate the handling of the increase in cases.
Virginia is one of only two states that provides for election of judges by the state legislature. (South Carolina is the other state). The General Assembly could not elect six new judges during the January 2021 legislative session, because the Governor had not yet signed the legislation that expanded the size of the Court of Appeals. There was a special session of the General Assembly in August or at which this election took place.[4]
One of the controversies surrounding this new legislation was a complaint from Republican members of the General Assembly that creating six new judgeships at one time would provide Democrats in the General Assembly an opportunity to pack the Court of Appeals with liberal judges. It does seem likely that the kinds of lawyers chosen by Democrats to be Court of Appeals judges will be more liberal (on criminal justice issues in particular) than would judges selected by Republicans in the legislature. However, the complaint made by present Republicans conveniently overlooks the fact that, because Republicans controlled both houses of the General Assembly for years until very recently, nearly all of the current judges on the Court of Appeals were elected by Republicans.
What does this change on the Court of Appeals mean for people who work in the criminal justice system? The fact that criminal appeals will all be decided on the merits of the issues raised by defendants means that more of these issues will receive careful consideration by the court than has been the case in the past. As just mentioned, the six new judges have been selected by a Democrat-controlled General Assembly. (Two of the new appointees have experience as public defenders). Both of these developments could result in more decisions placing restraints on how law enforcement officers do their jobs, as well as providing criminal defendants greater protections at trial. Time will tell.
[1] The other states were Alaska, Connecticut, Idaho, Nebraska, North Dakota, and Utah. https://ballotpedia.org/Intermediate_appellate_courts, accessed April 2, 2021.
[2] http://www.vacourts.gov/news/items/covid/jc/2020_1022_materials.pdf.
[3] Va. Code §17.1-407.
[4] Patrick Wilson, “Lawmakers Recess Special Session After Electing Eight Judges to Court of Appeals And Some To Lower Courts, Richmond Times-Dispatch, August 10, 2021 (https://richmond.com/news/state-and-regional/govt-and-politics/lawmakers-recess-special-session-after-electing-eight-judges-to-court-of-appeals-and-some-to/article_a4ac22f6-69af-5cd0-a6aa-01d42479f140.html).