HD55 - 1997 Update of the Report by the Virginia Bar Association: Appellate Review in Virginia

Executive Summary:
The Judiciary Committee of the Virginia Bar Association has completed a two-year study of the appellate process in Virginia. Our work has been guided by two persuasive points:

1. There is an avalanche of appellate filings in the United States. Virginia is no exception. The number of appellate filings in Virginia is more that 60% higher than when the Court of Appeals of Virginia was founded eight years ago. Although our appellate courts have remained essentially unchanged since that time, the Court has greatly increased its production of opinions since its creation. Yet despite its best efforts, a backlog now seems inevitable. For example, at present, it takes approximately 18 months to resolve a criminal case in Virginia. This time period, which includes both the adjudication of the petition for appeal as well as the time required for final disposition, falls well beyond the American Bar Association Standard and is considered unacceptable by many of those who work within the appellate system. Despite the herculean efforts of judges and staff to resolve cases in a fair and timely fashion, the current amount of time required to address so important a part of our judicial process raises fundamental questions about the adequacy of our current appellate process.

2. To those who stand before the court, the perception of fairness is as important as the reality. Only Virginia, new Hampshire, and West Virginia provide only discretionary appeal to civil litigants and criminal defendants. The other states, the District of Columbia and the entire federal court system all provide one level of error correction automatically by simply filing notice of an appeal. The discretionary appeal adds another step to the appeal process that may not be the most effective way of insuring timely review of court rulings and may lead to the perception that the exercise of "discretion" is influenced by capacity.

After a great deal of deliberation, survey of opinions and interviews with judges and lawyers, we have concluded several points and have developed specific recommendations intended to improve our system of appeal.

Key Findings

1. One basic purpose of the appellate process is to correct error, should any exist, in court rulings. This process ensures fundamental fairness to those who come before the courts of the Commonwealth. The perception of fairness is important. By providing no level of appeal of right, are we leaving the mistaken impression that all are not treated equally before the law? We believe that all civil litigants and those charged with criminal behavior should have the right to appeal through a streamlined process designed to balance fairness and efficiency.

2. Although a rapid system of appeal is essential, the process that some states use of what might be called "administrative review" is not desirable in Virginia. The Committee was unanimous that should the Commonwealth provide for "appeal by right," the review ought to be provided by a judge, not by a clerk or administrative assistant.

3. The Committee is aware that the above recommendation may be misunderstood as contradictory. Are we really saying that there is a growing backlog of appeals, and therefore we ought to make it easier to appeal? No. We are simply arguing that our current system of appeal by petition is unnecessary and inefficient. We wish to guarantee every litigant a review of the application of the law in each case, so as to ensure that no significant error was committed in the adjudication of the case. Our judges do not commit errors on purpose nor in any greater number than in other states. But if errors are committed, a process for correction should be easily available to ensure that justice is well served.

4. Any revision of our appeals practice must correspond with more adequate funding of our Court of Appeals, so that opinions can be rendered in a more timely fashion. While the Supreme Court has been essentially current in its case load, there exists a backlog at the Court of Appeals level. Moving to a system of appeal by right, and adequately funding additional judges and staff for the Court of Appeals will ensure fundamental fairness in our appellate system.

5. The second basic purpose of the appellate process is to assure authoritative rulings on the evolving legal issues facing the Commonwealth, resolving ambiguities, interpreting legislation and setting policy. This function can only be discharged by a unitary Supreme Court. The clarity of this paramount role for the Supreme Court of Virginia will be enhanced by fully realigning the error-correction function with the Court of Appeals.

6. Additionally, we must ensure a periodic review of our appellate system since the needs of our judicial system are changing as the society which depends upon it changes. We propose a simple revision of the law to ensure an ongoing review of the efficiency of the appellate court system. This provision will ensure that we can avoid a future problem of the magnitude we face at present.

7. Finally, recognition of the limited resources of the Commonwealth and equally important, of the desirability of following the conservative, gradual approach to change inherent in Virginia dictates that recommendations to adjust our present appellate system should be implemented on a phased-in basis over a period of years so that progress can be measured and certain.