2

President’s Page ................................... Thomas T. Lawson 3

Remarks of Chief Justice Harry L. Carrico

to The Virginia Bar Association .....................................

9

Report of the Commission on the Future of Virginia’s

18

Report of the Commission on the Future of Virginia’s Judicial System--Separate Statements .............................. 19

22

23

THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President

Thomas T. Lawson

P.O. Box 720 Roanoke, Virginia 24004

President-Elect

F. Claiborne Johnston, Jr. P.O. Box 1122

Richmond, Virginia 23208

Past President

John M. Ryan

500 World Trade Center Norfolk, Virginia 23510

Secretary

Howard W. Martin, Jr. 1640 Sovran Center

Norfolk, Virginia 23510

Treasurer

George H. Roberts, Jr.

90 North Main Street Harrisonburg, Virginia 22801

Chairman, Young Lawyers Section

David G. Shuford P.O. Box 1122

Richmond, Virginia 23208

Allen C. Goolsby, III, Chairman

P.O. Box 1535 Richmond, Virginia 23212

Executive Committee

George H. Heilig, Jr. 15 Stony Point Center

700 Newtown Road Norfolk, Virginia 23502

Whitington W. Clement

P.O. Box 8200 Danville, Virginia 24543-8200

Chair-Elect Young Lawyers Section

Stephen D. Busch

One James Center Suite 300

Richmond, Virginia 23219

Arthur B. Vieregg, Jr. 510 King Street, Suite 200

Alexandria, Virginia 22314

Thomas C. Brown, Jr. 8280 Greensboro Drive

Suite 900 McLean, Virginia 22102

Thomas G. Hodges

340 W. Monroe Street Wytheville, Virginia 24382

Gail Starling Marshall

Office of the Attorney General

101 N. 8th Street Richmond, Virginia 23219

Executive Director

Sue Gift Sanders

Suite 1515, 7th & Franklin Streets 701 E. Franklin Street

Richmond, Virginia 23219

Director, Committee Activities

Emerson G. Spies

School of Law University of Virginia

Charlottesville, Virginia 22901

Articles and Other Contributions

Contributions are welcome, but the right is reserved to select material to be published. Publication of any article or statement is not to be deemed an endorse- ment of the views expressed therein by the Association.

Material submitted for publication in the Journal should be sent to:

Charles E. Friend, Editor The Virginia Bar Association Journal

Post Office Drawer H F Williamsburg, Virginia 23187

Subscription Information

Subscription inquiries from libraries and out-of-state individuals should be directed to:

Bess Wendell, Associate Editor The Virginia Bar Association Journal

3849 W. Weyburn Road Richmond, Virginia 23235

Membership Inquiries, Applications and Address Changes

Membership dues include the cost of one subscription to each member of the Association.

Inquiries about and applications for Association membership and changes of address should be sent to:

The Virginia Bar Association Suite 1515, 7th & Franklin Bldg.

701 E. Franklin Street Richmond, Virginia 23219

The ltrginia Bar lssociatioz Journal Volume XV Summer 1989 Number 3

EDITORIAL BOARD

Appointed Members

David W. Parrish, Jr. Chairman

Charlottesville

Vernon M. Geddy, Jr. Williamsburg

John L. Walker, Jr. Roanoke

John F: Kay, Jr.

Richmond

Ex-Officio Members

Thomas T. Lawson President

Roanoke

F. Claiborne Johnston, Jr. President-Elect

Richmond

Sue Gift Sanders Executive Director

Richmond

David G. Shuford Chairman, Young

Lawyers Section

Richmond

Editorial Staff

Charles E. F~iend Editor

Bess Castle Wendell

Associate Editor

Robert E. Spicer, Jr. Editor, Young

Lawyers Contributions

The Virginia Bar Association Journal (ISSN 0360-3557) is published quarterly by The Virginia Bar Association, Suite 1515, 7th & Franklin Building, 701 E. Franklin Street, Richmond, Virginia 23219, as a service to the profession. Second-class postage paid at Richmond, Virginia, 23232.

POSTMASTER: Send address changes to the above address.

Membership dues include the cost of one subscription to each member of the

Association. Subscription price to others, $20.00 per year; single copies $5.00.

©1989 The Virginia Bar Association

Introduction THE "Old Dominion" has not been a dominion for almost 200 years, and the comfortable

implications of the term "old" might well be

revisited in terms of her present landscape. One

need only traverse the megalopolis of northern

Virginia, focus on the revised Richmond skyline,

or reflect that the little resort town that was Virignia Beach now exceeds in population the

booming port city of Norfolk to be made aware of

the extent of the changes in our State. These

chang.es are exerting pressure upon the judi- ciary. The appellate system, especially, is under-

going stress. The Court of Appeals was insti-

tuted on January 1, 1985, to relieve the Supreme

Court of the burden of most criminal appeals and

not an insignificant number of civil appeals.

After no more than a pause, however, the

pressure on the Supreme Court of a mass of cases

to be heard reasserted itself. The court fell behind in its docket, and only by extraordinary mea-

sures, which cannot be sustained indefinitely,

has it been able to meet the present demands

upon it. There is reason, moreover, to suspect

that there are appeals which would be brought,

but which are not because of a lack of capacity in

the judicial system expeditiously to handle them.

The Virginia Bar Association was a leader in

the effort that brought about the establishment

of the Court of Appeals. Last year the Judiciary

Committee, chaired by Ned Slaughter, revisited

the problem. Through a sub-committee led by

Reno Harp a study was commissioned to analyze

the present state of Virginia’s appellate capacity.

The result is the report, "Appellate Process and

Capacity in Virginia" ably prepared by Clark Williams of the University of Richmond.

The General Assembly has responded by

establishing a Study Commission to study

appellate review in civil cases. The Commission

has been constituted and its work is about to get

under way.

Because of the timeliness of the issue and its

importance this volume is, for the first time,

dedicated exclusively to a single problem--the

problem of reshaping Virginia’s appellate

judiciary to meet the demands of her expanding

and increasingly complex society.

--THOMAS T. LAWSON

2

THOMAS T. LAWSON

THE purpose of this piece, a brief if you would, is to

persuade the reader. I would have the reader sit as a judge upon how the judges should sit. I would con- vince him that the fairest and most efficient way to

meet the crush of civil appeals in Virginia is to grant every litigant a right of appeal from the adverse decision of a circuit court judge, and to vest the

Supreme Court with certiorari jurisdiction. If one were just to arrive at the scene he might see

this approach as obvious, but this is Virginia, and as

always in Virginia much has gone before.1 There are two basic functions of appeals, The first is error correction: to insure that the trial judge has appro-

priately applied the law. THe second is to interpret and ° flesh out the law. In civil cases that are now appealed directly to the Virginia Supreme Court, the distribu-

tion of these functions does not immediately strike the eye. The reason is that much of the error-correcting function occurs at the point at which the Supreme Court makes its decision as to whether or not to grant

the appeal. The Supreme Court operates upon the proposition

that it will accept for determination only the cases not clearly decided correctly below.2 Thus when it denies

an appeal it is accomplishing a major part of the error- correcting function, affirming the decision of the trial court. Where the case is a closer one, the appeal is

granted. Then upon the appeal itself the unresolved portion of the error-correcting function, and in .addition the function of establishing and advancing the jurisprudence of the Commonwealth, is fulfilled.

This system worked very well at a time when

Virginia’s population levels and the volume of litigation were much lower. As we contemplate extending the jurisdiction of the Court of Appeals to meet present and future demands, some would

reflexively retain for civil appeals in the Court of

Appeals the same system that serves the Supreme Court. They would make such appeals discretionary with the Court of Appeals. My .undertaking is to demonstrate that what has worked in the Supreme

Court is completely out of place in the Court of Appeals.

In a graduated appellate system, obviously the ultimate control over matters of civil jurisprudence

will remain in the court of last resort. The error° correcting function should be accomplished, at least

for the most part, at the intermediate level. This is the conventional model. The litigant has, as of right, the opportunity to brief and argue his point before a panel of the intermediate court, and to be given the reasons for its ruling in a written opinion. In the ordinary case,

one not breaking new legal ground, that is as far as he goes. Few would deny that any litigant should be entitled to at least that much.3 Appeals beyond this point have to do with ordering the jurisprudence of the

state and are not so much concerned with individual complaints. Those of us familiar with this model in the

federal courts know it works well. If, in civil cases, the Virginia Court of Appeals were to function thus, and the Supreme Court’s review were purely discretionary, the Commonwealth would seem to have deployed its appellate resources to maximum effect.

Why would we not immediately implement such a .system? One reason could be a lack of funds. Ob- viously additional judges and staff would have to be added to the Court of Appeals to allow it to handle all civil appeals. Materials which follow in this volume

will make it clear, I believe, that some enhancement of Virginia’s present appellate capacity is essential. If

the General Assembly cannot in the next legislative

session be convinced that such is the case, I neverthe- less am satisfied that the demands are so compelling,

the pressure so great, that it must act before very long.

3

Thomas T. Lawson is a partner in the Roa- noke, Virginia firm of Woods, Rogers & Hazle- grove, of which he has been a part since his graduation from the University of Virginia Law School in 1965. He was a member of the Manag- ing Board of the Virginia Law Review and has been a lecturer in trial advocacy at the Univer- sity of Virginia Law School. Mr. Lawson took his

under-graduate degree at the University of

North Carolina, where he was elected to Phi Beta Kappa. He is a past president of the Young Lawyers Section of The Virginia Bar Associa-

tion and of the Roanoke Bar Association. He is a fellow of the American Bar Association and a member of the Board of Directors of the Ameri- can Judicature Society. Mr. Lawson’s practice is in litigation with a focus on employment law.

And whatever it does will cost money. So the objective

should be a system that satisfies basic rights most

efficiently both in terms of the costs to the Common-

wealth and to the litigants.

The conventional model is an efficient one because

all but the exceptional cases are heard but once.

Alternative models, so long as they afford at least one

hearing, can be expected to cost at least as much.

Schemes for stretching the present system to get more

out of it for the same cost must founder, I believe, either

in terms of putting demands upon judicial personnel

that they cannot competently meet or by cheapening

4

the system itself, by diminishing, for example, the character of the Supreme Court, sitting as a body, as

the final arbiter of Virginia law. If the primary function of the Court of A.ppeals is to

be error correction, then a petition for appeal is entirely superfluous. That review serves now in the

Supreme Court as the means of culling out those cases in which there is clearly no error, so that the full Court can take up the more difficult cases. In a graduated system, the Supreme Court is there to review the tough decisions of the Court of Appeals. So a three-judge panel of the Court of Appeals could hear an entire appeal and resolve whether the trial court misapplied

the law in a single hearing, about as expeditiously as it could review a petition for appeal. Obviously, it is

more efficient for a given court to hear a case but once. The utility of the discretionary review in civil cases is, in other words, altogether lost when it is transplanted into process of the Court of Appeals.

An appeal of right in the Court of Appeals would

also avoid the awkwardness of what I call the dance of the panels. In cases of discretionary review in the Court of Appeals the grant of an appeal by one three- judge panel is followed by review from another three- judge panel of the same court.~ This dance now occurs in appeals in criminal cases. But there, however ungainly the procedure may seem, it has a practical function. As Commonwealth’s Attorneys are ill-

equipped to handle appeals, cases often go to the Court of Appeals upon a petition for appeal with only a perfunctory brief from the Commonwealth’s Attorney. Then, in those cases in which the accused is granted a writ, the Attorney General’s office steps in, with its expertise gained in defending criminal appeals state- wide, and sees that the position of the Commonwealth is fully advanced. The justification for the dance of the panels, and at the same time the difficulty with implementing an appeal of right in criminal cases, lies therefore in the substantial additions to the Attorney

General’s staff that would be necessitated were the Attorney General to have to defend all criminal appeals in the first instance. This problem simply does not present itself with civil appeals.

It has been argued that if there were to be an appeal of right the floodgates would be opened and every losing litigant would appeal. Logic would suggest that only those parties who, in consultation with their attorneys, believed that the trial judge had been wrong and that there was a reasonable chance of getting him reversed could be expected to appeal. Otherwise, the expense of an appeal would not be

warranted. It is not to be expected that litigants would appeal in greater numbers, given the right to do so, purely to inflict delay or additional expense upon their

opponents, perhaps in the hope of forcing a settle-

ment. Ethics aside, the same effect could be had now, where the only recourse is to petition for a writ of error. The threat of a vain appeal on the merits would not

appear to be appreciably greater, in terms of delay and expense, than the threat of a vain petition for a writ. Furthermore, a meritless appeal from the Court of

Appeals to the Supreme Court for such purposes would certainly receive short shrift, and could appropriately draw sanctions where frivolously sought.

Concern has been expressed lest the Court of

Appeals, faced with a towering demand, be forced to

measures that afford civil cases less than the full scrutiny they now receive in the Supreme Court. Of course, if a court is to be chronically understaffed, either shortcuts or backlogs must follow. Or~e can only

rely on the General Assembly to prevent that. But the

¯ General Assemb~ly would certainly be derelict were it to pose the choice as that between a system that must give all appeals short shrift and a system contrived to discourage the bringing of meritorious appeals.

I think the real concern is one that goes unstated. Litigants presently perceive that the prospect of

getting an appeal granted in civil cases is exceedingly slight, which, statistically speaking, is so.~ The

subliminal concern is that litigants with an appeal of right would view it otherwise. They would think that they had a greater chance of reversing the trial court if they could be heard on the merits. Now, if writs presently are being granted in every meritorious case,

there should be no less of a disincentive to bringing a discretionary appeal than to bringing an appeal as of right.

Of course, if meritorious cases in substantial numbers are not now finding their way into the system, then there is no conscionable response other than to revise the system so as to provide them a hearing. It is simply not in the interest of the

Commonwealth that such appeals be discouraged. If more.judges are required to hear legitimate appeals, then so be it. The alternative is to make the trial judge

in effect the final arbiter. That is not in the interest 6f the judge, because it tempts him to the excesses that habitually accompany untrammeled power, and it is not in the interest of society, because litigants on both sides will come to perceive such a system as arbitrary, and thus lose respect for the law. The judicial system quite simply should not be disposed in such a way as to thwart a hearing upon appeal of grievances honestly felt.

Each individual litigant wants to win. But litigants in their totality, since half of them must lose, want a decision: they want the case decided, and they want it

decided quickly, inexpensively, and conclusively. From that perspective, let us analyze the expansion of the discretionary jurisdiction of the Court of Appeals

to embrace civil cases. The result is what I term the dual-writ system, or the four-phase appeal. The process is diagrammed in Diagram A. The appellant first petitions for an appeal to the Court of Appeals.

A. DUAL WRIT SYSTEM

Judgment Trial Court

r

P f| A I etition or ppea

Appeal Court of Appeals Appeal Denied

I Granted

I I Petition for Appeal Appeal

Appeal Supreme Court Appeal

Court of Appeals Denied I Granted Remand I Judgment I = Final

Judgment Appeal Petition for Appeal

Supreme Court Supreme Court

I

Appeal

I

Remand Denied

Final Final Judgment Judgment

Remand

Appeal Granted

Appeal Supreme Court

Final Judgment

B. CONVENTIONAL MODEL

Judgment Trial Court

Appeal Court of Appeals

Remand I

Appeal Denied

Final Judgment

Judgment

Petition for Appeal Supreme Court

Appeal " Granted

Appeal Supreme Court

Remand I Rnal

Judgment

This involves a brief on both sides and possibly oral

argument by the appellant, If the petition is denied,

the appellant might pursue his cause to the Supreme Court. The same briefs might serve, but, at least as the law now stands, he would be entitled again to argue his point to a panel of the Supreme Court. If the

Supreme Court grants the appeal, further briefing may ensue and both sides would argue the merits of the appeal. An opinion then.would issue, finally resolving the case, unless of course there were a

remand. If the Court of Appeals grants the appeal in the first

instance, then, after further briefing and argument, the Court of Appeals would decide the case, issuing an opinion. If its opinion did not satisfactorily resolve the issue for the losing litigant, he might petition for an appeal to the Supreme Court. At this point new briefs would be required from each side so as to take into

account the expressions of the Court of Appeals in its opinion. If the Supreme Court grants the appeal, then

it ~would decide the case upon the same or yet further briefs, plus argument. This is a judicial creature that only a mother could love.

It might be countered that surely the General Assembly would strip away some of the excess in implementing the system. That may be, but why

reform an awkward model when a functional one is at hand. The conventional model, Diagram B, has

demonstrated itself to be perfectly workable, One must, moreover, be hcutely mindful that each nones- sential step in the process imposes upon the litigants the twin demons of judicial disfunction, excessive cost

and unwarranted delay. The less arcane, the more direct, logical, and efficient our legal system is, the less likely will be the public to continue in its mistrust of

lawyers, and therefore of the courts, and perhaps even, ¯ because they are after all responsible for the system, of the legislators.

FOOTNOTES

1. There is presently an appeal of right to the Court of Appeals

from any final decision of a circuit court on appeal from a

decision of an administrative agency; any final decision of the

Industrial Commisison of Virginia; any final judgment order, or

decree of a circuit court involving domestic cases; any interlocu-

tory decree or order entered in any of the cases above. Va. Code

Ann. §17-116.05. Litigants may be granted an appeal at the discretion of the

Court of Appeals in noncapital criminal cases. Va. Code Ann.

§17-116.05:01(A). The Supreme Court of Virginia has jurisdiction

over capital criminal cases; any final decision, order of judgment

of the State Corporation Commission; a final decision, judgment

or order of a circuit court involving habeas~ corpus; and, any

complaints of the Judicial Inquiry and Review Commission. Va.

Code Ann. §17-116.05:1. 2. "It is as much the duty of the court, or judge, to deny the

petition when of opinion that the decision complained of is

plainly right as it is to grant it when any doubt exists as to the

propriety of the decision. McCue v. Commonwealth, 103 Va. 870, _

49 S.E. 623 (1905). 3. See ABA Appellate Jud~e-s C~nference, Opportunity for

Appellate R’eview: Right of Appeal, § 3.10(a), Standards Relating

to Appellate Courts (1977). See also, Lilly & Scalia, "Appellate

Justice: A Crisis in Virginia?," 57 Va. L. Rew 3, 13 (1971).

4. See Va. Code Ann. §17-116.05:2(C),(D). 5. Civil appeals granted by the Supreme Court declined from

209 (1984), to 181 (1985), 138 (1986), and 110 (1987). Virginia Bar

Association Study, "Appellate Process and Capacity in

Virginia," p. 4 n. 4.

6

Remarks of Chief Justice Harry L. Carrico to The Virginia Bar Association

JANUARY 20, 1989

I APPRECIATE th~ opportunity to talk to you about a subject that is tremendously important to the

members of our court and, I am sure, to the members of the bar as well. I refer to the problem of delay in the disposition of cases in the Supreme Court of Virginia.

Most members of the bar are aware that the Supreme Court had a case backlog of considerable proportions when the Court of Appeals came into

existence on Ja~nuary 1, 1985. Apparently, some thought our backlog would Somehow disappear the moment the Court of Appeals opened its doors for business. In truth, we had on our argument docket at that time 343 cases, or approximately 2.2 years of work at our then-current rate of disposition of 156 opinions per year. In the four-plus-year period between

January 1, 1985, and January 13,1989, we granted 656 appeals and added them to the argument docket, or another 4.2 years of work, for a total of 999 cases, or 6.4 years of work.

In the same four-plus-year period, we disposed of 860 argument docket cases, or 5.5 years of work in a 4-year span, calculated according to our previous rate of

"disposition. We also achieved a net reduction of 228

cases from the January 1,1985 level, leaving 115 cases to be argued as of January 13, 1989, or only 9 months of work, measured by our previous rate of disposition.

We have achieved these results by increasing our

rate of disposition, with each member writing an extra opinion for each session since early fall, 1987. We have also been able to dispose of a number of cases by order.

One extra opinion per justice per session may not sound like much to an outsider, but I can assure you it amounts to a great deal of extra time and effort. It

means each member must prepare for seven extra cases before each session, it means an extra day of

oral argument, it means seven more cases to discuss after argument, and it means seven more opinions to study and revise before opinion day.

There is more to the backlog problem, however, than the argument docket. While we were engrossed in

reducing the number of argument docket cases, the number of pending petitions for appeal grew to an

unsatisfactory level. Through a week-long series of hearings conducted by three panels last month, we

reduced the petition backlog substantially.

Our hope is to eliminate the backlog in both the argument docket and the list of pending petitions by the end of 1989. To achieve this result, we plan tb~

continue the increased schedule of opinion-writing and in addition to assign to Justice Poff as many

opinions as he is willing to write in his new role as

Senior Justice. To eliminate the backlog in pending petitions for

appeal and to avoid future backlogging, we are

employing two additional law clerks and an addi- tional secretary in the office of our Chief Staff

Attorney. In addition, Retired Justices Harrison, Cochran, and Gordon, joined by Senior Justice Poff, have agreed to undertake the preparation of memo-

randa on petitions for appeal and to serve on panels for the hearing and disposition of petitions.

We have also automated operations in our Clerk’s Office with the expectation of greater control and faster disposition of cas~s. While this improvement

was initiated some time ago, it is only now reaching final implementation. With automation, we will be able to determine where any case is located at any given moment and whether it is proceeding timely

along the path to early disposition. Automation will also permit us to eliminate an administrative step in

the assignment of petitions to justices and law clerks, saving another period of delay in the processing of petitions.

But perhaps the most significant development is that we have adopted a formal goal for the disposition

of cases, which we intend to implement as soon as we eliminate our backlog. Our goal is to make final disposition of a case within twelve months after the

petition for appeal is filed. We have approved a flow chart showing how much time we have allotted for

each step of the process from filing of the petition to final disposition and illustrating how we expect to accomplish the goal we have set for ourselves.

I want to assure you that we are not insensitive to

the economic loss and other adverse effects suffered by

litigants from delay in the appellate disposition of

cases. Hopefully, the undesirable results of delay will be eliminated with the more speedy disposition of

cases. Neither are we unaware of the concern expressed by

7

some that elimination of blacklog will be achieved by reducing the number of appeals granted. We answer

this concern by emphasizing that, despite our accele- rated pace, we continue the practice of providing a panel of at least three justices to consider every

petition, and we ~dhere to the rule that an appeal may be granted by only one justice. I can tell you that once

a member of a panel indicates an appeal should be granted, that position is respected by others, and the petition is transmitted to the clerk marked "grant."

We believe the goal we have set for the elimination of delay is realistic and attainable within a reasonable time. We realize, however, that while our efforts may solve the current problem, other measures may be necessary to handle future caseloads.

We have been furnished a copy of a resolution, drafted by a subcommittee of your Judiciary Commit- tee, which would authorize a legislative study of the

state’s appellate structure with the aim of identifying ways to increase appellate capacity. We will cooperate in the study to the fullest extent. After all, our goal is tl~e same as yours--to improve the administration of

justice in Virginia.

Addendum

Chief Justice Carrico reports that between the date of his speech on January 20, 1989, and May 8, 1989, the number of cases on the

Supreme Court’s argument docket has grown

from 115 to 145. The Chief Justice attributes this growth to the fact that in the period from January 20 to May 8, the Court disposed of a substantially higher number of petitions for appeal than usual, resulting in an increase in the number of appeals granted and, hence, an increase in the number of cases on the argu-

ment docket. The Chief Justice states that the Court

continues with its accelerated rate of disposi- tion of cases. He says that the Court still hopes to eliminate its backlog by the end of 1989 and

then commence its program of making final disposition of a case within twelve months after the date the petition for appeal is filed.

--RENO S. HARP, III

Appellate Process and Capacity in Virginia A Study by The Virginia Bar Association

EDITOR’S NOTE: This material is an edited version of the study prepared by Reno S. Harp, III, Counsel, Judicial Inquiry and Review Commission and Subcommittee Chairman. The study was edited for publication in the Journal by Mr. Harp at the request of Thomas T. Lawson, President, The Virginia Bar Association.

Introduction

THE report presented in these pages is the product of a charge by The Virginia Bar Association to its Judiciary Committee, in the fall of 1987, to study the appellate process in Virginia. The resolution to conduct such a study was prompted by a concern that

the interests of the citizens of the Commonwealth of Virginia, in our system of justice, were being seriously

and adversely affected by the ever-growing backlog of cases on appeal. The costs associated with appellate delay are being felt, not only by litigants, but by all taxpayers. This is especially true in cases involving

- public project litigation and unsettled questions of law

of great public concern awaiting final dispositiop. The cost and damage associated with appellate

delay are no mere product of a lawyer’s imagination; they are real and significant. The harm done is

frequently irreparable. And the uncertainty of a ruling still awaiting confirmation or reversal more than

three years after rendition of judgment by the trial court can completely disrupt planning and sabotage business arrangements, to the benefit of no one.

The need for relief in appellate processing is not simply felt by the practicing bar. It is felt most keenly by the citizens of the Commonwealth, whose personal

lives and business affairs wait in limbo an unaccepta- bly long time for final disposition. To be sure, additional attorneys’ fees are incurred by clients whose counsel must refresh their grasp of the facts in

a record now grown stale over time, and who must devote time to updating appellate briefs some two years old by the date of oral argument. The Court itself surely suffers from cases presented less effectively than they might otherwise be, because counsel’s grasp

of the law and the facts of the case being argued are

not as strong some three years or more after the conclusion of the proceedings in the trial court.

Nonetheless, it is the litigants and taxpayers who feel the most serious effects of justice delayed. Indeed,

it is logical to assume that the cost and delay presently entailed in an appeal, particularly in civil cases, discourage many litigants with meritorious grounds

for appeal from asserting them. When this occurs, the court of first resort effectively becomes the court of last

resort as well, because the opportunity for meaningful appellate review is lost. A sampling of recent case

experiences, set forth in this Repo.rt, will illustrate the real costs of appellate delay. ¯

The particular concerns demanding attention are several: the adequacy of the appellate court system in Virginia to deal with problems of growing backlog in the number of cases pending before the Supreme Court

and the Court of Appeals in Virginia; the increasing delay in the rate of disposition of such cases; the

diminution of meaningful appellate review where the parties cannot bear such a wait for final judgment; and the ever-increasing volume of litigation being fed into the appellate system.

Over the past couple of decades, there has been increasing concern over .the appellate capacity of our court system in Virginia. This concern has been fueled in significant part by the rate of delay in the disposition of appellate cases. By 1984, the time period

for disposing of an average civil case in which a petition for appeal had been granted by the Supreme Court exceeded two years.

This delay, accompanied by a concern over the

absence of "appeal as a matter of right" in lieu of a review through the "petition for appeal," led the General Assembly to create an intermediate Court of

Appeals. Beginning operation in 1985, the Court of Appeals was vested with an appellate jurisdiction unique among intermediate appellate, courts in the United States. The new court hears only non-capital criminal cases and a limited variety of civil cases. Yet it was anticipated, or at least hoped for by many, that even this partial delegation of primary appellate jurisdiction to the Court of Appeals would speed the processing of cases heard by both the Supreme Court and the Court of Appeals to improved levels over those

experienced prior to 1985. It was also anticipated in

9

many quarters that this expansion of the appellate court system would result in a higher frequency in the

rate of granting petitions for appeal in all categories of

cases, offering an expanded opportunity for appellate review in Virginia.

These ambitions have, indeed, been partially

realized. The number of appeals granted by the Court of Appeals in criminal cases in each of its first three years of existence has increased dramatically over the criminal appeals granted annually prior to 1985.

Those civil cases heard by the Court of Appeals are granted appeal as a matter of right. Moreover the

average time for disposition of cases before the Court of Appeals is less than one full year.

Yet despite these gains, and the most diligent efforts on the part of the Supreme Court justices and their

staff, serious and troubling problems persist. The number of petitions for appeal granted in civil cases before the Supreme Court has declined, steadily and

dramatically, in each of the three years since the advent of the Court of Appeals. At the same time, the

d~lay in the average rate of disposition of civil cases in which appeal has been granted has increased by

almost a full year in the period from 1984 to 1987- from 2.34 years to 3.28 years.

These statistics and others raise serious concerns that the present appellate system and structure are

not functioning adequately in Virginia. The cost to

litigants of such delay, and the growing disincentive to pursue a lengthy appeal which it spawns, are not a healthy state of affairs for appellate justice in Virginia. There is a need for re-examination of our appellate structure and process to determine means for greater efficiency and dispatch in appellate review.

The purpose of this Report is to present such a re- examination, and to offer alternative suggestions for revision and refon:a to accomplish the end of efficient

appellate justice.

Analysis of Current Status

The addition of the Court of Appeals has by no means reduced the total number of appellate cases filed in Virginia since 1984, nor was it expected to do

so. What has occurred, however, is a substantial ~eduction in the caseload of the Supreme Court, down 46% in 1985 and 25% in 1987 from the number of filings

in 1984, the year before the inception of the Court of Appeals. Yet the hoped for benefits of this caseload

reduction have not seemed to materialize, at least not yet.

One anticipated result of the shared appellate caseload was a significant reduction in the delay

encountered by litigants in the Supreme Court. Because the Supreme Court, like appellate courts in

10

most other states, gives priority in the timeliness of appellate review to criminal cases, the delay caused by

congestion and backlog was most seriously encoun- tered by civil litigants whose cases received lowest

priority. However, the plight of civil litigants on

appeal has not improved since 1984; indeed, it has worsened significantly.

The 1984 figures show an average time required to dispose of a "full dress" civil appeal of 855.5 days (2.34

years). It was this degree of appellate delay which, in part, created the demand forrelief which led to the

creation of the Court of Appeals. However, by 1987, the time for disposition of full civil appeals in the Supreme Court had increased to 1,198.6 days (3.28 years), more than 11 months longer than was required in 1984.

A closer look at the statistics reveals the focal point of this delay. The time required for action on the petition for appeal itself remained fairly constant,

in, creasing from 327.9 days (.90 years) in 1984 to 332.24 days (.91 years) in 1987. And the additional time

required to conclude briefing an appeal once the petition was granted actually declined from 69.14 days in 1984 to 65.94 days in 1987, The significant

point of delay, however, occurred between the time an appeal was fully briefed by the parties, and the time it- reached oral argument o6-th~ Court’s calendar. This

period--over which the litigants have virtually no

control--averaged 391.9 days (1.07 years) in 1984, and had grown by almost a full year to 747.9 days (2.05 years) in 1987.

The cost in terms of money and efficiency as a result of this period of delay is obvious. Briefs which were current and timely when written, become stale and out of date by the time a case is called for oral argument two years later. Attorneys’ memories of the facts and

law in a case fade over such a period of time. Litigants must pay additional fees for the time needed to update

briefs and familiarize counsel with the record in a case which has not been touched for years. In cases where

the Commonwealth is the party in interest, repre- sented by the Attorney Generars office, this cost falls directly on the taxpayer in terms of additional staffing

needs. The Court preparing to hear oral arguments may be forced to rely on briefs significantly out of date, and which perhaps were not filed recently enough to address the most current authorities on point.

Clearly it is this period of time more than any other in the appellate process, after a case is fully briefed and ready to be argued, which must be the focal point of any efforts to reduce congestion and delay in the Supreme Court. To be sure, the case files from which

these statistics were gathered are from the category of cases given lowest priority in the Supreme Court’s

order of calendaring, and at first blush might appear to present a distorted view of the Court’s disposition

efficiency. But it is precisely these civil cases which

arouse the greatest concern among lawyers and litigants awaiting a final decision.

The Court of Appeals of Virginia, on the other hand,

has managed to remain quite current in its caseload. The average time for disposition of a civil appeal (as a matter of right) is approximately 8-10 months. The time required for action on a petition for appeal in a criminal case is approximately 6-7 months from the

date of trial court judgment; when the petition is granted, an additional 5 months is required to dispose

of the average full appeal. Another index of court backlog and congestion is

the number of cases pending for disposition in the court at a given point in time. While figures in this area were not available from the Court of Appeals, the Supreme Court does furnish statistics on the total number of cases in which petitions for appeal have been granted, and which are left pending for argu-

ment at the close of each session of court. This number increased from 1984 to 1985 by 9%, from 343 cases to

374 cases at the end of 1985. The Court has made significant strides to reduce this figure, however; those granted cases awaiting argument fell by 10% to

337 at the end of 1986, and again by 21% to 266 cases through 1987. That effort at reducing backlogged cases, while commendable on the part of the Supreme Court, still leaves a great deal of backlog to eliminate. In interviews with the justices, several members of the

" Court recognized an optimum level of appeals await- ing oral argument at any given point in time to be

about 100 cases, a level far below even the reduced numbers presently achieved by the Court. This backlog of cases awaiting oral argument isconsistent with the statistics shown in Table D of a two year

delay between completion of briefing in a civil appeal and calendaring for oral argument.

The Cost of Appellate Delay

The social and economic impact of appellate delay

in our system of justice can be high indeed. Its greatest burdens fall not on the lawyers, who must spend substantial additional amounts of time refreshing

themselves with the law of the case and with a record which has grown stale with the passage of years since a trial court disposition. Indeed, case and statutory authorities applicable to the case sometimes become

outdated by the time a case is called for oral argument. Nor do the appellate courts bear the greatest burden, despite the potential for diminished quality in the presentation of cases more than two years after briefing has been concluded.

The most significant impact of appellate delay falls upon the shoulders of the litigants themselves, for whom justice delayed may become justice denied, and upon the public, for whom resolution of questions of public importance must remain in limbo for years awaiting final determination. The burden associated

with a lengthy delay in appellate disposition is felt most heavily in civil cases, particularly those before

the Supreme Court of Virginia, which receive lowest. priority in the docketing process behind criminal cases, State Corporation Commission appeals, and matters falling within the original jurisdiction of the,

Supreme Court, such as habeas corpus petitions, mandamus and prohibition proceedings. ~The lower priority civil matter is habitually the case in which the delay is most extreme, and the consequent burdens to the litigants and the public are greatest. Some

examples of the type of hardship that may befall these litigants will serve to illustrate the magnitude of the problem which has become all too common to our system of justice in Virginia.

Personal Injury Litigation

Perhaps the most troubling consequence of appel- late delay is felt by the citizen of Virginia who has

suffered personal injury, and has come to the courts of Virginia seeking redress. In those cases which do not involve worker’s compensation claims before the

Industrial Commission, the avenue of appellate review of a trial court judgment leads to the Supreme

Court of Virginia. For a litigant who is perhaps

disabled and unable to work, or widowed, without adequate other means of support, a long and pro-

tracted trial court proceeding followed by a three-year or longer wait for appellate review is an ordeal. Some

recent cases before the Supreme Court of Virginia serve well to illustrate the problem.

In Gray v. Graham, 231 Va. 1 (Supreme Court of Virginia, March 7, 1986), Jeanette Gray was forced off the road by a truck identified as the defendant’s on

June 26,1979. She received substantial injuries in that accident, for which a trial court jury awarded her $250,000 in damages in a judgment entered in 1982. An appeal was filed by defendants Graham and

Moore’s Building Supply in late 1982, and bond was posted by defendants to suspend execution on the judgment in favor of Ms. Gray. A petition for appeal was granted on the issue of whether certain hearsay statements were properly admitted against defend:

ants during the trial of the case. The litigation finally

came to an end in March, 1986, when the Supreme Court handed down its decision affirming the trial

court judgment in favor of Ms, Gray. The case had been on appeal for a.pproximately three and one-half

11

years, and nearly seven years had elapsed since the date of the accident causing.Ms. Gray’s injuries.

Interestingly, during the pendency of the appeal in the Gray case, defendant Moore’s Building Supply went bankrupt, and its insurer also became insolvent. As.it turned out, by the time the judgment of the trial

court was affirmed, the total amount of the judgment including interest from the date of the trial court award had reached approximately $330,000. The trial court judge had set the appeal bond at only $300,000, and it appeared for a time that there would be

inadequate funds to satisfy Ms. Gray’s judgment. Eventually, Ms. Gray was fortunate enough to obtain complete satisfaction from the bonding company and the insurer’s guarantee trust fund.

In a case involving a more recent decision by the Supreme Court, plaintiff Lelia Thomas received serious personal injury in July, 1979, as a result of

allegedly negligent arthroscopic knee surgery per- formed by her orthopaedic surgeon. Ms. Thomas developed lower leg paralysis in her right leg as a r~sult of the allegedly improper procedure followed by her physician. More than five years after the surgery

which caused the injury, Lelia Thomas finally obtained a jury verdict for $150,000 against her

physicians. A petition for appeal was filed by the doctors in early 1985, alleging error by the trial court

in limiting the scope of their cross-examination of Ms. Thomas’ expert witness. Petition for appeal was granted. Three years after the filing of the appeal, the Supreme Court handed down its decision reversing

the judgment of the trial court and remanding Ms.

Thomas’ suit for new trial in the Circuit Court of the City of Roanoke. Her right leg now completely paralyzed below the knee, Ms. Thomas has followed

an eight-year odyssey in the courts of Virginia, and

still does not have a resolution of her claim for compensation for a permanently disabling injury. See, Dr. George D. Henning v. Lelia E. Thomas, 235 Va. 181 (Supreme Court of Virginia, March 4, 1988),

In another case decided at the same term of the Supreme Court, Vera Von Lubowiecki was struck as a

pedestrian while crossing a street between two intersections, when an automobile being driven by

"Nicole P. Donnell struck her while traveling at an allegedly excessive rate of speed. The accident occurred on April 6, 1983, the case was tried to a jury,

and at the conclusion of Ms. Lubowiecki’s evidence, the trial court entered summary judgment for defen- dant, finding contributory negligence by Ms. Lubo- wiecki as a matter of law. A petition for appeal was

filed in early 1985, and the appeal was granted to

review the question whether the evidence supported a finding that Ms. Lubowiecki was contributorily

12

negligent as a matter of law. On March 4, 1988, the Supreme Court issued its opinion, reversing the judgment of the trial court and remanding the Lubowiecki case for new trial. Five years after the date

of the accident, Ms. Lubowiecki still awaits a determi- nation whether the injuries she received in the

accident warrant compensation from defendant

Donnell. See Vera Von Lubowiecki v. Nicole P. Donnell, 235 Va. 131 (Supreme Court of Virginia,

March 4, 1988). In another case decided by the Supreme Court in

1988, Gary Daniel Smith, a self-employed truck driver, was injured in a collision between his truck and a

vehicle owned and operated by Intermodal Services,

Inc. The accident occurred in 1981, and suit was filed in 1983. In 1984, defendants filed a motion to dismiss, contending that Smith was a statutory employee under the Worker’s Compensation Act and that his

suit in the circuit court was barred. The trial court rejected defendants’ motion, and in a jury trial pl_aintiff recovered a verdict of $100,000 as compensa- tion for the serious injuries received in the accident. A

petition for appeal was filed by defendant in early 1985, and was subsequently granted by the Supreme Court. On January 15, 1988, more than six years after Smith received his injuries, the Supreme Court

affirmed the judgment of the trial court, and Mr. Smith was finally able to receive compensation. See Intermo- dal Services v. Smith, 234 Va. 596 (Supreme Court of Virginia, January 15, 1988).

On June 3, 1981, ~on a small state highway in

Alleghany County, Virginia, Martha Lawler Van- Buren received serious personal injuries when her

automobile collided with the rear of a vehicle being driven by Glenn Patrick Simmons, as Mr. Simmons allegedly pulled out onto the highway from a side road, without coming to a stop, directly in front of’and traveling in the same direction as Mrs. VanBuren. Mrs. VanBuren, a 55-year old circulation manager for

a local newspaper, was accompanied by her daughter and grandchild, and was seriously injured in the

collision. Suit was filed by Mrs. VanBuren, and in the course

of the trial the court-gave the jury an instruction regarding a driver’s duty to give one half of the main portion of a highway to a driver proceeding in the opposite direction. At the conclusion of the case, the jury found that Simmons was not negligent, and the trial court entered judgment for defendant Simmons. Mrs. VanBuren filed a petition for appeal in late 1984,

claiming error in that part of the instruction given to the jury mentioned above. Three years later, in March,

1988, the Supreme Court of Virginia reversed the judg- ment of the trial court, finding as Mrs. VanBuren

contended that the court’s instruction did not apply in

a situation where the drivers of both vehicles were traveling in the same, rather than opposing, direc- tions. Some seven years after the date of the accident,

Mrs. VanBuren still awaits the eventual outcome of

the trial of this case, in order to learn whether she is entitled to compensation for the injuries received in

the June, 1981 accident. See Martha Lawler Van- Buren v. Glenn Patrick Simmons, 235 Va. 46 (Supreme Court of Virginia, March 4, 1988).

Many other illustrations of personal injury cases

such as these can be found simply by perusing the advance sheets of decisions from the Supreme Court of Virginia. Many of these cases involve injured persons whose access to compensation is delayed for what

must seem an interminable period of time. During this

period, those litigants with injuries serious enough to be disabling may be forced to rely upon Social Security benefits, or social welfare benefits, as the only

available means of paying the day-to-day costs of life. For those for whom such a protracted wait is not an

acceptable option, the pressure to agree to settle a claim for substantially less than the amount of a trial court judgment must become immense. Surely this kind of crisis weakens our system of justice, and substantially lessens ~he viability of an injured

plaintiff’s option even to seek appellate review.

Hardship to the Commercial Litigant

For those persons and companies whose businesses

become embroiled in litigation, the effects of a trial court proceeding which is taken forward for appellate review may present a different form of hardship,

seriously disrupting commercial plans and develop- ments by the parties.

In the case of William M. Deep v. C. Edward Rose, Jr., et al., 234 Va. 631 (Supreme Court of Virginia, January 15, 1988), suit was brought by limited partners to set aside the foreclosure sale of land owned

by the limited partnership, which they had planned to develop as an apartment project. The general partners, having obtained a loan for the project and offered the land as security for the loan without consent of the limited partners, defaulted on the obligation, causing the land to be sold at foreclosure sale. The trustee failed to satisfy statutory require- ments for notice of the sale, yet the trial court upheld the foreclosure sale as being merely voidable, and held

the plaintiffs suit to be barred by laches. An appeal was taken by the limited partners to the Supreme

Court. The limited partnership agreement had been

executed in July, 1979, the deed of trust and loan

instruments were executed in 1980, and the default

and foreclosure occurred in 1981. Suit to set aside the foreclosure sale was filed in 1982. The trial court refused to set aside the sale in its judgment of June 5, 1984. Three and one-half years later the Supreme

Court handed down its judgment reversing the decision of the trial court, and remanding the suit for entry of a decree setting aside the foreclosure sale as

void. The foreclosure sale having occurred some seven

years before the opinion by the Supreme Court invalidating the sale, the purchasers at foreclosure

had long since completed the rental project, had been’ in possession of the property for many years, and had managed the apartment complex during that period of time as their own. The decision on appeal to set aside the foreclosure sale created the extremely complicated problem of determining the purchasers’ rights to reimbursement for amounts paid by them to satisfy

loan deficiencies and mechanics’ liens, their rights to reimbursement, if any, for improvements made over

the past six years, and the plaintiffs’ rights to reimbursement for rental payments received by the foreclosure purchasers. Despite the fact that the apartment project was actually completed by the foreclosure purchasers, the situation would have been much simpler to unravel had a final judicial determi-

nation been made earlier in the case. An even more protracted dispute is found in the case

of Hooper v. Musolino, 234 Va. 558 (Supreme Court of Virginia, January 15, 1988). There suit was brought by a limited partnership against the general partner for breach of fiduciary duty, neglect in handling of partnership affairs, wrongful appropriation, and breach of contract. The parties entered into a partner- ship agreement in February, 1973, to develop~ a shopping center. In a subsequent agreement, the

general partner was selected to serve as general contractor on the job, but subsequently defaulted on the project, resulting in the filing "of suit in August, 1977. In the meantime, the project apparently could not be completed, a foreclosure ensued, and the

general partner bought back a portion of the property

at foreclosure sale. In the suit for breach of fiduciary duty, the limited

partnership obtained a judgment of $8,430,000 for the general contractor’s breach of his fiduciary obliga- tion, in a final decree entered July 26, 1984. An appeal

was taken to the Supreme Court of Virginia; three and one-half years later the Court ultimately awarded a judgment of $3.8 million dollars to the limited partnership, and upheld ~the Chancellor’s order that the general partner’s partnership interest be sold to satisfy the judgment.

The dispute between the limited partners and

13¸

general partner dragged out for a period of almost fifteen years, a significant portion of which was spent awaiting decision from the appellate court. During

this time, the limited partners were deprived of the use of their investment, and progress on the project was stymied. Clearly, the litigants incurred no benefit from this delay.

Cases such as these, and others involving zoning disputes, property development, and other commer- cial ventures, demonstrate that the General Assembly

must increase the capacity of the appellate system in Virginia, despite the laudable efforts of all the justices and judges presently on the appellate courts to reduce .

delay by their own efforts.

Litigation Affecting the Public Interest

The impact of appellate delay is often felt not only by the litigants themselves, but also by citizens of the Commonwealth, whose public interest and property rights may be affected by the uncertainty accompany- ing action by local or state government on their behalf. Case decisions are replete with instances of such litigation, but a couple of illustrations will suffice

to demonstrate how the public interest may be

affected. In Board of Supervisors of Henrico County v.

Market Inns, Inc., 228 Va. 82 (Supreme Court of Virginia, 1984), the Circuit Court of Henrico County had declared unconstitutional a provision in the County’s zoning ordinance which restricted the hours

of .operation in certain business zoning districts between the hours of 12:00 midnight and 6:00a.m. The

effect of the ordinance in the instant case, as was true for many other businesses, was to protect nearby residences from undue noise and disruption. The

ordinance prevented the restaurant-plaintiff from remaining open after midnight, unless the restaurant obtained a provisional use permit from the Board of Supervisors to extend the hours of operation. When

the trial court entered its final decree on November 2, 1981, Henrico County was permanently enjoined from enforcing the hours of operation ordinance against

the plaintiff and all other businesses affected by the

.ordinance. The case remained pending on appeal before the

Supreme Court of Virginia for almost three~ years. During that time, the county was precluded from enforcing its zoning ordinance, until the Supreme Court vacated the injunction in its decision of September 7, 1984. Only then was the county able to

renew its enforcement of a provision which had been in its zoning ordinance for many years. Interestingly, plaintiff Market Inns became insolvent during the pendency of the appeal. Indeed, by the time of oral

argument, there was no party in interest before the court. However, counsel for plaintiff pursued the appeal to a conclusion because of the interest of other Henrico County restaurants and businesses in the outcome. Today, the location of the former Market

Inns restaurant is occupied by a furniture store.

Alternative Measures for Reform in Virginia

Several possible alternatives for appellate reform in Virginia are apparent. The listing below is not intended to be exhaustive, nor are any of these alternatives necessarily suggested as the most appropriate for adoption or implementation in Virginia.

1. Increase the number of Justices on the Supreme Court.

Article VI, Section 2 of the Constitution of Virginia,

while it prescribes the number of Supreme Court justices to be seven, also empowers the General Assembly to increase that number up to eleven, by a

three-fifths vote of both Houses at two successive regular sessions. The option has been suggested over the years to increase the size of the Court to nine justices, to deal with the Court’s increasing caseload.

Experience has shown, however, that this is a rather inefficient means of attempting to increase appellate capacity. So long as the Supreme Court sits and decides cases en banc, the productive efforts of additional justices will be limited. All other justices of

the Court will still have to review and comment on the additional opinions of the new justices, and be

familiar with the records and briefs in the additional cases before the en banc Court. At a point where judicial manpower is already being stretched danger- ously thin, this alternative has obvious shortcomings.

2. The Supreme Court may decide full appeals in panels.

This alternative would, indeed, increase productiv-

ity by the Court, especially if the Court were expanded to nine justices and sat in panels of three. It has the same advantages of expanded capacity for case disposition mentioned above in connection with the

Court of Appeals. However, this alternative raises the prospect of a

court of last resort speaking with less than a full, or majority voice, on matters of significant precedential import to the Commonwealth. Proponents of appel-

late reform by this method must weigh seriously the sacrifices to be made in the name of reducing court

backlog and delay, particularly in the face of other

14

alternatives with equally or more promising prospects

of success with less radical substantive risks.

3. Expand the jurisdiction and size of the Court of Appeals.

This is the recommendation originally put forth by the Report of the I’Anson Commission in 1971. As generally put forward, this alternative would expand

the jurisdiction of the Court of Appeals to include all appellate cases heard in the first instance, with the possible exceptions of death penalty cases, State Corporation Commission decisions, and cases involv-

ing judicial censure, retirement or removal. The advantages of this alternative would include

affording a first appellate hearing before a court, aligned in panels, and capable of offering a speedier disposition. The Court’s primary role would continue

to be one of error-correcting, freeing the Supreme Court to devote more of its energies to issues of broader precedential value, or constitutional or statewide importance, in a more timely fashion than is now possible. The Court of Appeals has already demon- strated its capacity for more prompt disposition because of its ability to sit in panels and thus deal with

a larger volume of cases. The disadvantage to this alternative, of course, is

that it would almost certainly require an increase in

the number of judges sitting on the Court of Appeals. Members of that Court themselves have expressed concern over the potential negative impact which an increase in their numbers might involve. Those

concerns include endangering the collegial atmo- sphere of the Court as it grows even larger, and an inability of the judges to continue to review the

opinions of each judge, issued even in cases heard by other panels, before they are handed down. Such a development would increase the likelihood of conflicts

among panel decisions, and the possibility of errors in opinions going unnoticed by other members of the

¯ Court. Expansion of the jurisdiction of the Court of

Appeals raises the companion question, whether the appeals before the Court would lie as a matter of right, or by discretionary review on petition for appeal. The criticism is continually raised in many quarters that discretionary appellate review is inappropriate in any

court hearing an appeal in the first instance (even a

court of last resort). If, however, the Court of Appeals is to hear a greater

number, or the entire scope of appeals before it as a matter of right, such a change would require a proportional increase in the size of the Court of Appeals. Estimates of the number of judges needed to accommodate a full jurisdiction intermediate appel-

late court with appeal as a matter of right in all cases, range from 3 to 10 additional judges, at an estimated annual cost of $241,000 per judge, and start-up cost of

$69,000 per judge. Almost certainly, replacement of

the petition for appeal with appeal of right would have to be accompanied by effective provisions for sum- mary disposition of frivolous or obvious appeals, and perhaps sanctions for frivolous appeals.

The Supreme Court presently has the power to transfer to itself cases pending in the Court of Appeals. This power, commonly known as a "reach-

down" or "by-pass" authority, is designed primarily t.o, make sure that the Supreme Court can promptly hear important cases that require immediate decision. Indeed, the great majority of state supreme courts with intermediate appellate courts have this "reach- down" authority.

Three different methods can be used as vehicles for this reach-down authority. First, a case may be

transferred to the Supreme Court upon a petition of one or both parties made when tl~e case is filed in the

Court of Appeals. This would probably be the most likely source of cases bypassing the Court of Appeals. Secondly, the Court of Appeals could be authorized to certify a pending case for transfer which it believes

requires immediate Supreme Court attention. Finally, the Supreme Court may order transfer sua sponte. These last two methods are presently available for transfer of cases from the existing Court of Appeals to

the Supreme Court. Under any method used to effect transfer, however, the Supreme Court should retain final authority to decide whether to accept a matter for

transfer. An additional consideration is whether an ex-

panded Court of Appeals would best function~ by sitting in divisions: civil and criminal; civil, and criminal/juvenile/domestic; or perhaps some other

alignment. The advantages to sitting in divisions

include an enhanced expertise by the judges with the cases in their own divisions, and the ability for each division to function as a smaller, administratively

more manageable unit. Possible disadvantages to a divisional alignment would include decreased collegi- ality among the Court as a whole.

4. Submission of cases without oral argument.

This alternative, which could be adopted either by

the Court of Appeals or the Supreme Court, would

involve features similar to those outlined above as implemented by the California Court of Appeals in Sacramento. It would contemplate early identification

of cases of such a routine or straightforward nature that they could be disposed of on briefs, without the

need for oral argument. A member or panel of the

15

Court would review each case soon after its filing, and

invite counsel in appropriate cases to waive oral argument in favor of prompt disposition.

5. Submission of eases without full briefing.

Using the opposite expedited approach to alterna- tive #4 above, the Court would make early identifica- tion of cases which do not require complete briefing, and advance the cases for expedited review following oral argument. This is the model adopted by the Rhode Island Supreme Court in routine criminal appeals. Obviously, a Court might choose either alternative 4 or 5 as a regular device for handling routine cases, though perhaps not both.

6. Case management.

This alternative would involve the use of strict scheduling orders to maintain cases on a fast track for

disposition. The Court, through a judge or justice,

early in the case would establish a rigid schedule of dates for the various stages of the appeal. This method could be combined with an invitation to both parties to waive either oral argument or full briefing, as the Court may choose, in routine, non-complex cases.

Recommendations

The scope of the present backlog and rate of delay in disposition of appeals in the Supreme Court, the pace

at which the Court is presently working in an effort to avoid falling farther behind, and the steadily increas-

ing caseload of the circuit courts producing cases for appellate review, make it clear that the problem of appellate capacity in Virginia requires a remedy of significant proportions. Various alternatives for

internal revision have been considered as described above, and might well merit consideration for imple- mentation by the Supreme Court and/or Court of

Appeals as a means of increasing productivity without sacrificing quality in the decision-making

process. These internal options, however, will not likely offer

the level of relief needed from appellate delay, nor adequately equip the appellate courts to meet the

pressing demands of a growing caseload in the immediate future. The current structure and jurisdic-

tional limitations of the two appellate courts in Virginia simply do not allow the court system to

process appeals in an acceptably prompt and effective manner. Thus, the following recommendation is

presented as the means best designed to speed appellate disposition and maintain a high quality of

review. I

16

Expand the Civil Jurisdiction of the Court of Appeals.

It is recommended that the appellate jurisdiction of the Court of Appeals be expanded to include all civil cases. Thus, an appeal Will lie to the Court of Appeals

in the first instance in all cases, civil and criminal, except those cases which the Constitution of Virginia requires to be heard by the Supreme Court--cases involving imposition of the death penalty, decisions of

the State Corporation Commission, and cases of judicial censure, retirement, or removal.

It is further recommended that an appeal should lie as a matter of right in all civil cases in the Court of Appeals. However, in those cases where the appear-

ance of error requiring reversal is clear on the face of the record, provision should be made for summary reversal by the Court of Appeals, in both civil and criminal cases. Likewise, where an appeal is obviously

without merit, provision should be made for summary affirmance of the decision below. For frivolous appeals the Court of Appeals should also have the discretionary power to impose sanctions, including costs and attorneys fees, at least in civil cases. These provisions for summa_ry disposition of frivolous"or

obvious appeals are a necessary adjunct to appeal as a

matter of right, as a safeguard to aid the Court of

Appeals in preventing the growth of a backlog of

cases. The Supreme Court should have "by-pass" author-

ity to transfer to its own appellate docket those cases

before the Court of Appeals which are of significant public interest and importance and which require an immediate decision. This transfer provision is cur- rently available on motion of either the Court of Appeals or the Supreme Court’s own motion. It should

be expanded to permit a transfer on motion of one or more parties before the Court ofAppeals. It should be made clear, by rule of court, that such a motion to

transfer would be a simple procedure, accompanied by minimal briefing. The request for transfer typically would not be argued orally, and the written submis- sion would focus solely on the extraordinary circum-

stances meriting exercise of the "by-pass" authority of the Supreme Court. Of course, the decision whether to accept any case on transfer should always rest in the sound discretion of the Supreme Court.

The Court of Appeals, pursuant to Rule 5A:28(d),

may permit any party to waive oral argument on appeal. The Court may make increased use of this provision in cases identified soon after filing as being fairly routine or uncomplicated, and invite the

litigants to waive oral argument. These cases could be placed on an expedited docket for prompt disposition. This would allow the Court of Appeals to reduce the amount of time needed to dispose of such routine

cases, free more time for the Court to devote to complex or more difficult cases, and reduce the potential for backlog in the Court’s caseload.

Finally, it is recommended that the size of the Court

of Appeals be increased by an additional 3 to 5 judges,

to deal with the increased caseload which will be added to the docket of the Court of Appeals. So long as appeal as a matter of right is limited to civil cases, this increase should be adequate to deal with the Court’s

increased jurisdiction. This modest increase in the size of the Court of Appeals should not necessitate the separation of the Court into divisions, and no such divisional adjustment is recommended.

Conclusion

It is clear that the growing demands of litigation in

modern-day Virginia have exceeded the capacity of

our appellate system. Despite the vigorous efforts of our appellate judiciary and their staffs, the current structure and jurisdictional limitations of Virginia’s

two appellate courts do not enable the system to process appeals in a timely manner.

Virginians are bearing the high cost of this lengthening delay--in money, in unresolved anxiety,

in stalemated business dealings, in long-deferred public works developments, and in untold other ways. Each ~ase of appellate delay claims new victims. The

costs are real and substantial. .~ Private litigants and the public at large deserve

relief from what appears to be a crisis in the appellate system in Virginia. The General Assembly must respond to the needs of Virginia’s citizens, by acting to increase the capacity of our appellate court system. Such remedial action by the General Assembly will

help restore the Virginia tradition of leadership in our judicial system.

17

Report of the Commission on the Future of Virginia’s Judicial System

The following is an excerpt from "Courts in Transition," a report prepared by the Commis- sion on the Future of Virginia’s Judicial System, Robert M. O’Neil, Chairman. This report was published and submitted to the Chief Justice of the Supreme Court of Virginia, The Honorable Harry L. Carrico, under cover letter dated May 1, 1989. The quoted paragraphs appear at pages 37 and 38 of the report.

4.2 Recommendation: The jurisdiction of the Court

of Appeals should be expanded to include jurisdiction over all civil appeals.

Rationale: The now constricted civil jurisdiction of the Court of Appeals is unusual, if not unique, among the thirty-seven states with intermediate appellate tribunals. With the existing split jurisdiction the time required to process an appeal from the circuit courts through the Supreme Court has increased to more than three years.

The Commission recommends that the Court of Appeals be recognized as the principal means by which most litigants obtain appellate review, leaving the Supreme Court free to focus on cases of major

significance and to shape the substantive law of the Commonwealth. Given this focus, each appellate court could develop procedures best suited to accom-

plish its r.o.le in the appellate process. For example, the Court of Appeals can sit in panels, use summary

dispositions, and can be expanded as the caseload increases. While such procedures are suitable for the

intermediate appellate court, they would not be appropriate for the appellate court of last resort. Rearrangement of this jurisdiction together with the necessary enlargement of the Court of Appeals would contribute to reduction of appellate delay and to expansion and improvement of appellate review.

4.3 Recommendation: Appeals from the trial courts

should be to the Court of Appeals as a matter of right in both civil and criminal cases; further appellate

review by the Supreme Court would be within its discretion by writ of certiorari.

Rationale: Virginia is the only state having an intermediate appellate court that does not grant an appeal of right in most civil and criminal cases. While some appellate review is provided under the existing system of petition to the Supreme Court, the Commis-

sion recommends that appeals go from the trial court to the Court of Appeals as a matter of right rather than

by petition. Although appeals in criminal cases would lie as a matter of right, defendants still would not be able to appeal when a guilty plea had been entered.

Affording an appeal of right would significantly increase the workload of the Court of Appeals,

especially in criminal cases, and would have major cost implications. Additional funding would be required for judges, support staff, court facilities and

¯ the Attorney General’s office. Yet, the Commission believes that an appeal of right in both civil and criminal cases accords with the preferred vision of the

judicial system of the Twenty-First Century in that there should be an opportunity for a multi-judge review of any decision by a single judge. Other states have found the fiscal resources necessary to provide appeals of right.

If litigants had an appeal of right, some appeals would be frivolous, just as today some petitions fo~

appeal are frivolous. Some contend that the overriding need for finality of decisions would be jeopardized.

The Commission thus recommends that the Court of Appeals have authority to affirm frivolous appeals summarily without oral argument and to impose sanctions on parties and their attorneys who press frivolous appeals. The Court of Appeals should also have authority to reverse summarily cases which present clear error.

Traffic and misdemeanor appeals, now final at the Court of Appeals, should remain final after this one

appeal. Appeals from small claims cases should also be final after this one appeal. Fo~ all other cases,

appeals to the Supreme Court from the Court of Appeals should be by certiorari only.

Allowing appeals to the Supreme Court only by certiorari permits the court responsible for the

development of the common law to exercise discretion

as to which cases it will review. Under the current petition system, the Court must grant any petition

where there is reasonable likelihood that error was committed in the trial court. By utilizing a certiorari process, the Court could accept or reject an appeal solely on its own discretion. This practice is consistent with that of the United States Supreme Court and will allow the Supreme Court to concentrate its efforts on

cases of major importance and cases in areas of the

law in which the practicing bar and the trial bench need guidance.

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APPENDIX A

Report of the Commission on the Future of Virginia’s Judicial System

SEPARATE STATEMENTS

The following statements were submitted by Commission members.

The majority report of the Commission is the product of thoughtful, conscientious, and imaginative

study by a group of able, energetic, and dedicated Virginians. I admire the workmanship, I concur in most of the recommendations, in varying degrees of enthusiasm, but I disagree with some.

In my opinion, there are two critical problems in the administration of justice in Virginia--delay in the judicial process and the increasingly prohibitive cost of civil litigation. The successful administration of justice in the Twenty-First Century will depend largely upon finding satisfactory solutions to these two problems; to the extent that the majority report

recommends viable solutions I endorse it. I view all other recommendations as secondary. Some are designed to improve the public relations skills of court

personnel, others to apply the marketing techniques of a trade to the administration of justice, interesting but dubious concepts.

Although I approve the recommendation that the Court of Appeals be given jurisdiction over civil as well as most criminal appeals, I oppose the recommen- dation of an appeal of right. We were informed that

giving an appeal of right may require the employment of 30 additional attorneys in the Office of the Attorney General. No estimate is given as to the additional judges that will be required. It may not be unreason-

able to suggest that an increase in the number of judges of the Court of Appeals from 10 to 20to 25 may be necessary if the jurisdiction is expanded and an appeal of right mandated.

My objection, however, is not based upon the tren~endous expense incident to these proposed

changes. In my view, the petition procedure applicable

to appeals in the Supreme Court of Virginia, and available in the Court of Appeals, is in effect an appeal

of right. The losing lawyer in the court below may

make a personal appearance in support of his petition for appeal before a panel of three or more justices ofth~ Supreme Court. His opponent may file a brief in

opposition but will not be permitted to argue orally. If one member of the panel believes that the lower court may have erred, the appeal is granted. Thus, every litigant has the right to argument before a panel of the

Court. If he cannot raise a doubt in the mind of at least one panel member, he can file a petiton for rehearing which is reviewed by the full Court. Substantially the same procedure is available in the Court of Appeals.

Code §17-116.05:2. Under such favorable conditions the petitioner has every advantage to which he is reasonably entitled. To grant him more is to burden an already overloaded system with excess baggage without benefit to anyone. I believe the Virginia

petition procedure is superior to the appeal of right provided in other states. It follows that I disagree with the recommendation that appeals from the Court of

Appeals be only by certiorari. Appeals by petition should be continued at both appellate levels.

It is not easy to oppose a recommendation that merely states that certain changes should be consid- ered. Nevertheless, I do oppose giving consideration to

incorporating the federal rules of civil procedure ~nd having the Supreme Court by rule promulgate a code

of evidence. In 1987, after a lengthy study, the Supreme Court unanimously recommended to the General Assembly that no code of evidence should be adopted. Whatever demand exists for this innovation and for incorporation of the federal rules of civil procedure may be traced to lawyers who would prefer, for their own convenience in litigation, to federalize

Virginia procedure and even substantive Virginia evidentiary law. I am aware of no widespread desire of

either bench or bar for such drastic action. The recommendation that the performance of

judges be constantly evaluated is highly questionable. No elected officials in Virginia are subjected to such evaluation except when considered for reelection. To

single out the judiciary for this kind of review is unjustified. It could impair the independence of the

judicial branch by causing some judges to seek

popularity at the expense of objectivity.

19

For the same reason, I question the recommenda- tion that the Supreme Court establish a consumer

research and service development program for the judicial system and provide forms for users of the courts to submit comments on the service received in

the court system. I readily agree that all court personnel should be trained and expected to deal courteously and efficiently with users of the court facilities. I do not believe, however, that every disgruntled litigant or his relatives should be encour-

aged to complain about inconsequential slights allegedly received in the judicial process.

The judicial system in administering justice does provide an important service to the public generally and to litigants especially. Generally, in litigation there are winners and losers. There is no way to make

the loss of a case pleasant to the loser. Litigation is civilized warfare in which antagonists have been

strenuously engaged; no exchange of pleasantries, even those devised by consumer research specialists,

is ~going to ease the disappointment of defeat. Com- ments on the service at a hotel may be helpful to the management; comments on the service in the judicial system may be a needless embarrasment to those who administer justice. Some critics fear that the introduc- tion of advertising and marketing techniques has

tended to convert the practice of law from a profession into a trade. Many of those engaged in the administra- tion of justice are reluctant, I believe, to welcome such techniques into the courthouses.

I do not approve the recommendation that a system be established in each judicial circuit to receive, investigate, and report to the Judicial Council allegations of discrimination by court personnel.

Complaints of discrimination or other improper

conduct by judges, should be made to the Judicial Inquiry and Review Commission. Complaints of discrimination or other improper conduct by other

court personnel should be made to the chief judge of the circuit court or Court of Appeals, or in respect to complaints against personnel of the Supreme Court,

to the Chief Justice. A judge at any level should hope to inspire respect

rather than affection. In a consumer-oriented society, ~t’he danger is that a judge become a salesman who

may succumb to the pressures of public opinion rather than apply the law fairly, objectively, and evenly, whether the results are popular or unpopular. The best

safeguard against judicial arrogance is tenure for a fixed term rather than for life.

Lastly, I object to the recommendation that cost of living adjustments be made in the ~ompensation of all

personnel in the judicial system. For years, local

political subdivisions were permitted to supplement

judicial salaries at the trial court level. Many did so, giving rise to inevitable conflicts of interest when

decisions of the local governing bodies were chal-

lenged in court. It took years for the General Assembly to eliminate what was widely criticized as an unwise policy. Since then judicial salaries have been uniform throughout Virginia, although it is apparent that the purchasing power of the salary continues to vary from place to place.

Undoubtedly, acceptance of a judicial position may require financial sacrifice. There will always be some qualified persons who are unable or unwilling to serve.

Judicial service does not now and never will offer an attractive career for one who seeks wealth. For those motivated to pursue such careers, however, in Vir- ginia, where the traditions of public service are strong, there are incomparable intangible rewards.

George M. Cochran

NOTE: Joining in Justice Cochran’s separate statement were Judge Persin and Mr. Parkerson. Judges Daffron and Trabue concur with Justice Cochran’s opposition to the recommendation calling for an appeal of right to the Court of Ap