SD7 - Court of Appeals Jurisdiction Study (SJR 47, 2020)

Executive Summary:

In 1979, at the request of the General Assembly, the National Center for State Courts prepared an extensive analysis of the Commonwealth’s court system, and recommended that Virginia should change its appellate system to provide its citizens a right of appeal in all cases, civil and criminal. (See Appendix E). The Court of Appeals of Virginia (“CAV") was created in 1985 but was given only appeal-of-right jurisdiction in three limited areas of civil law, and appeal-by-petition-only jurisdiction for all non-capital murder criminal cases. In 1993 the Virginia Bar Association prepared a 260-page report recommending that the system be changed to allow Virginia citizens a right to appeal in all criminal and civil cases.

In 2018, after bar and business leaders in the Commonwealth requested study of the need for Virginia citizens to have a right of appeal, the Chief Justice designated a 20-person Working Group to study the appellate jurisdiction of the Court of Appeals of Virginia and to make recommendations on whether it should be given jurisdiction to hear appeals as a matter of right in all civil and criminal cases. Following the Legislature’s adoption of SJ 47 in the 2020 session, the study of these issues continued with even greater intensity for many months. The study included active participation by leaders of major Virginia Bar and business groups, judges and others. Comments on the issues raised in SJ 47 were solicited and obtained from a wide range of groups and individuals throughout the Commonwealth. (See Appendices A and B).

All groups that commented, and almost all individuals who submitted comments, strongly endorsed the concept of providing Virginia citizens a right to appeal circuit court judgments in criminal and civil cases, and the study group unanimously recommended that plan to the Judicial Council. After review of extensive background materials set forth in the present Report, the Judicial Council on October 22, 2020 discussed and voted on five related issues, unanimously recommending that the General Assembly take steps now to implement a right for Virginia citizens to have an appeal to the Court of Appeals of Virginia from final judgments in ordinary criminal and civil proceedings,(*1) with the option for any party to seek review after a CAV decision by the Supreme Court of Virginia (“SCV") on a discretionary, certiorari petition basis.

The Judicial Council’s recommendations and conclusions regarding adoption of appeal-of-right in Virginia for all criminal and civil cases are concisely set forth at pages 4 to 9 of the present Report. Thereafter, extensive background information is provided for the use by the General Assembly in addressing these issues.

The Judicial Council reviewed all of the material outlined in the Table of Contents of this Report (above) and in the Appendices. The information studied has included:

• judicial administration scholarship and reports on the importance and effectiveness of an appeal of right as all American states – other than Virginia – have implemented this protection for their citizens over the past several decades (recounted at pages 11 - 21);

• a broad range of statistical and descriptive material about current operation of the Virginia appellate system overall, and the Court of Appeals docket in particular, including the extent to which its operations are “regionalized" and the timeliness of its dispatch of the present caseload (pages 22 - 34 and 45 - 57); and

• the full text of all of the comments on the appeal-by-right concepts set forth in SJ 47 received from both organizations and individuals. All bar and business groups, and almost all of the individuals who responded to a state-wide solicitation for comments, support implementation of an appeal of right for all civil and criminal cases. The comments are summarized at pages 10 - 12 and all are reprinted in full as Appendices A and B to this Report, commencing at pages 82 and 109. During the Working Group’s study of the issues the Office of the Attorney General (“OAG") joined with the other organizations responding to the inquiry regarding SJ 47 in full support of moving to a system where one level of appeal for all Virginians is a matter of right. The Judicial Council was unanimous in its conclusions, summarized here briefly on five issues, followed by a succinct statement of the fundamental considerations.
(*1) The recommended structure would provide a right to obtain appellate review in the Court of Appeals of Virginia from any final judgment of the circuit courts of Virginia in ordinary criminal and civil cases. No change is contemplated in the statutes or procedures governing appeal of capital murder prosecutions, habeas corpus petitions, writs of actual innocence, and other specialized proceedings.