05 February 2012

Change the Court of Appeals - Don't Delete It

Senator Creigh Deeds introduced a bill calling for the elimination of the Virginia Court of Appeals. Per the VLW blog Senator Deeds "said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. 'We’ve used the court as a place to reward folks.'" There's nothing terribly shocking about that. The old chestnut in Virginia runs something like: "How do you become a judge in Virginia? You grow up with a friend who becomes a Delegate." For those of you from outside the Commonwealth, the kernel of truth in that comes from the fact that in Virginia the General Assembly decides who will be judges in Virginia. Somehow, I just don't see the Court of Appeals going away because of cronyism. If it did, how would cronies be rewarded?

However, the Court of Appeals could use some direction from the General Assembly in order to make it a better institution.

1) Require all Appellate Courts Virginian to have a strong presumption for the addressing the actual issue presented instead of dismissing cases because of errors in the filing. The appellate courts in Virginia have long had the reputation for denying appeals on grounds other than substantive. This is unjust because it denies the appellant his day in court because of error by the appellant's attorney. I have previously suggested a statute meant to deal with this and answered questions concerning my position.

2) Mandate that all criminal conviction appeals must be accepted for a three judge decision by the Court of Appeals. However, establish a presumption against oral argument.

There's really no reason for oral arguments except as an ego boost for attorneys and judges. If all but extraordinary cases were proceeded upon via court filings it would be more efficient.

There will be those who argue that mandating that all criminal convictions be accepted will bog down the Court. It will probably add some work to the Court. However, all the paperwork and fuss that now goes on with petitions for appeals will go away and this combined with doing away with almost all oral argument would make things close to even.

3) Set a specific format for appellate opinions. This should be something like

A. Error accepted for argument. List it exactly as accepted without comment.

B. Holding. No more than one paragraph.

C. Disposition. No more than one paragraph.

D. Facts. No more than 1 page.

E. Legal Rationale. No more than 4 pages. Most well written decisions follow a format similar to this already. Yet, there are scads of opinions where the judge or justice just plunges into the facts and analysis and doesn't tell you what the actual holding is until 17 pages later.

A set format would make it easy to quickly understand a case's holding and those of us in the middle of a trial need to quickly understand a case's holding.

The page limitation is something I wish that legislatures everywhere would impose on appellate courts. Decisions get filled with tons of irrelevant boilerplate and footnotes and circular reasoning going round and round and round. If the appellate courts were forced into brevity, and God is merciful, a lot of that would be shorn away. Look back at opinions from 100 years back or further. They were able to use two or three pages to be less obtuse and confusing than our current appellate courts are in fifteen. I am confident our current judges are capable of writing concise, well written opinions.


These three changes could be written into law by the General Assembly in order to make the Virginia Court of Appeals a much better court. The first two would make it more just. The third would make it easier to actually use its opinions.

Of course, there would be myriad objections to these changes, but they would all basically boil down to (a) "Wah! You're going to make us work harder!" and (b) "Change how we do things?!?! OMG! It's the end of the world!!!" I know Virginia is resistant to any change, but change for the better is a good thing.

Now on to some less important things that could be changed.


4) Assign areas of the Commonwealth from which each Court of Appeals judge must be appointed. Whenever a position opens up on the Court of Appeals candidates pop up from all over the Commonwealth. The obvious danger here is that the large urban areas can soak up all the slots and leave the more remote areas unrepresented on the Court of Appeals.

5) Mandate that Court of Appeals judges must have spent at least three years as a defense attorney and three years as a prosecutor. Yes, I know this is a pipe dream, but it would be really nice if appellate judges charged with deciding most criminal law issues understood both sides. I don't care how much time someone's spent as a trial judge, prosecutor, or defense attorney, without having worked on both sides he does not understand the system in its entirety. Ideally, the Court of Appeals judges should have previously been a defense attorney, a prosecutor, and a trial judge, but I think that the marginalization of the trial judge in the era of guidelines, plea agreements, and mandatory sentences probably mean that serving as a trial judge is not as important a prerequisite as it should have been in the past.

6) Require all decisions, published or unpublished (including denials of petitions) to have a judge's name on them; do not allow any court except the Supreme Court of Virginia to use "per curiam." Admittedly, this is a pet peeve of mine. Back when I was doing defense work, the use of "per curiam" by the Court of Appeals was adopted on denials of petitions for appeals (previously they had been each attributed to a particular judge). I wouldn't have wanted my name on the vast majority of denials I got either. 80% of the denials were a page or two of boilerplate with a paragraph or two that were tailored for the petition I wrote; some displayed such a disconnect that I wondered if the argument I made had been read or understood. It seemed obvious these were being written by the clerks and the "per curiam" label wasn't being used as intended (the answer to this issue is so obvious that all the judges agree it is X), but as a way for individual judges to avoid having to put their names on these denials. Of course, of all the issues I write about today, this is the one of least importance. It just annoyed me.

No comments: