Recently, the Supreme Court of Virginia decided to change its practice regarding the requirements for granting a petition for appeal to create a seemingly higher threshold.
A party who wishes to appeal a lower court decision to the Supreme Court of Virginia typically may not take the appeal directly before the full Supreme Court. In fact, the majority of cases never reach the stage where the full Supreme Court renders a decision on the appeal. Generally, an appealing party may petition the Supreme Court to seek a writ granting a full review of the issues raised by the appealing party (known as “assignments of error” at the Supreme Court of Virginia). That party may present 10 minutes of oral argument in support of the petition to a panel of three justices and/or senior justices. Parties opposed to the appeal may file a brief in opposition to the petition for appeal but may not present oral arguments. The panel then deliberates in private and decides whether to grant any of the assignments of error raised by the petition for appeal for a review and decision by the full Supreme Court or to deny the petition.
Traditionally, if any one member of the panel wanted to grant an assignment of error, then the appeal would be granted notwithstanding the views of the other members of the panel. However, in the summer of 2017, the Supreme Court changed its practice to require two members of a panel, a majority, to support a full review of an assignment of error in order for a writ to be granted.
While the exact motivations for this change are unknown, this shift from prior practice may have been the result of a desire by the Supreme Court to require greater consensus on whether assignments of error merit review by the full Supreme Court. This change may help ensure that the Court and the parties involved only have to expend the considerable time and resources that accompany a review by the full Court when more than one justice or senior justice deem the issue worthy of a full Court review.
As details of deliberations and the votes of particular panel members are not released to the public, it is difficult to predict to what extent, if at all, this change will affect the percentage of writs granted. It is possible that the requirement of a second affirmative vote may diminish the percentage of cases granted because the Court will no longer grant appeals due to the interest of one justice or senior justice. However, it is also possible that the lion’s share of the appeals granted may have already been deemed meritorious by multiple members of a writ panel, so this change might not have a significant impact. Further, it is also possible that the current members of the Supreme Court may be so used to the prior practice that a second panel member may vote in favor of a petition out of courtesy to a single member who believes that an assignment of error merits a full review.
While time will tell whether this change has a significant impact on the writ panel stage of appeals to the Supreme Court of Virginia, advocates before the Supreme Court should consider this recent change when preparing their arguments before a writ panel.