RICHMOND — The General Assembly is under a tight deadline to add new judges to Virginia’s Court of Appeals, with the goal being able to appoint them to the bench before the legislative session concludes at month’s end.
Gov. Ralph Northam identified expanding the court by adding more judges a priority, requesting the General Assembly put $5 million in the budget to accomplish it, but the process has been rocky in the Democrat-controlled legislature. Both chambers need to pass legislation, and agree on how much to put in the state spending plan to support the effort.
The Senate passed a bill last week to add six new judges — two more than what Northam proposed — to the 11-member court. The House of Delegates did not take any action on its own bill, which caused senators to raise eyebrows. House Majority Leader Charniele Herring, D-Alexandria, chairwoman of the House Courts of Justice Committee, said the House didn’t have enough time to review the bill in committee before the deadline to complete action on House bills last week. She said she remains committed to expanding the court, despite what she said has been a “problem with the process.”
Sen. John Edwards, D-Roanoke, chairman of the Senate Judiciary Committee, reached out to the Virginia State Bar in December asking for it to evaluate candidates for the potential upcoming vacancies. Herring said she didn’t know Edwards did that, and so the House was delayed in notifying any potential candidates to send in materials to the state bar within the two-week application window.
“There’s a limited pool of candidates,” Herring said, adding there are still good candidates to choose from.
A Virginia State Bar committee evaluated and ranked 19 candidates, most of whom reside in the Northern Virginia, Richmond or Tidewater regions. There are no candidates who live in Southwest, and one is from Southside: Danville Circuit Judge Joseph Milam.
There’s currently one vacancy on the appeals court, which lacks regional diversity. Most of the judges are from the Tidewater or Richmond area. There are no judges southwest of Lynchburg. There’s one Black judge and three women.
The panel of lawmakers that interviews judicial candidates has not met with the candidates yet. The General Assembly has scheduled judicial elections for Feb. 18.
Expanding the appeals court is not a new idea; it’s been considered for years. Legal and business groups like the Virginia Chamber of Commerce support doing it. Republicans have said the initiative is part of a Democratic attempt to “pack the court,” which is currently filled with Republican appointees.
Currently, the only cases granted automatic hearings with the appeals court are those involving domestic issues, workers compensation claims and administrative law cases. In all other civil cases, people ask the Supreme Court of Virginia to hear their appeals.
In criminal cases, people must file a request for the court to hear an appeal, but the court hears very few cases. If the court hears the case but the litigants are dissatisfied with the ruling, they can appeal it to the Supreme Court.
Edwards said that because so few petitions for review are granted by the appeals court, the rulings and opinions of trial judges are the final word.
Edwards’ bill would give criminal defendants and civil litigants an automatic right of appeal, which is something every other state provides. It also would have the appeals court hear civil cases rather than have those skip to the Supreme Court.
“The model of justice should have at least one appeal of right in all civil and criminal cases,” Edwards said.
Republicans have balked at the cost to do this. The Senate’s budget includes $12 million for the initiative. In addition to the six new judges, the Office of the Attorney General estimates it would need about 50 new attorneys to handle the workload.
“There is going to be a huge increase in the number of criminal appeals,” Sen. Mark Obenshain, R-Rockingham, said, worrying it could take even longer for a case to get to the Supreme Court.
It’s unknown how many new cases will come before the appeals court under this proposal. The judges currently have caseloads of about 140 cases per judge, said Sen. Scott Surovell, D-Fairfax, and the goal is to get it under 120, which is what the American Bar Association recommends as the threshold.
Obenshain worried that the possibility of more cases being appealed and Democrats raising the fact other states with similar populations have more appeals judges than what this proposal create, this wouldn’t be the end.
“We’re going to be back here about further expansion of our Court of Appeals,” he said.