A Virginia Senate committee, responding to arguments that justice in Virginia is compromised because so few verdicts can be appealed, today approved the establishment of an intermediate court of appeals.
The Courts of Justice Committee voted 9 to 6 to create the 12-judge court, reversing an earlier vote after strenuous lobbying from Gov. Charles S. Robb and Lt. Gov. Richard J. Davis. In an interview last week, Robb said people with "extraordinary patience or fat wallets" are often the only ones who can afford to appeal a trial court decision under Virginia's current system.
Virginia is the largest state in the country that does not have an intermediate court of appeals--between the local circuit courts and the state Supreme Court--such as already exist in Maryland and the District. Along with West Virginia, Virginia is also the only state that does not grant an automatic right of appeal to convicted criminals or to those who lose their lawsuits.
"The right of appeals in Virginia is illusory because your chances of getting an appeal heard are so slim," said Arlington Democratic Sen. Edward M. Holland, a lawyer who sponsored the measure approved today.
Holland said the absence of an intermediate court gives unusual power to the state's local judges, who are appointed by the General Assembly.
"There are a lot of small courthouses out there that operate like small fiefdoms, where the circuit court judge doesn't want to do anything to alter his power base," Holland said.
The Virginia system also places a burden on the seven-member Virginia Supreme Court, which takes an average of 2 1/2 years to decide whether to hear an appeal.
Even with that delay, the court refuses to consider almost 90 percent of all appeals, often after a "cursory" review by staff attorneys, according to a study by the National Center for State Courts.
"While this system has enabled Virginia to manage with but one appellate court, the efficiency has been achieved at a price to litigants in the quality of justice which most Americans and their lawyers would or should be unwilling to bear," a separate study by three University of Virginia law professors concluded several years ago.
The appeals court, endorsed by several Supreme Court justices during an unusual visit to the General Assembly two weeks ago, would begin hearing cases in 1985, giving legislators another year to find the $ 2 million it would cost each year.
The court, which would be appointed by the General Assembly, would meet in three-judge panels in several regions, presumably including Northern Virginia.
The measure was defeated by an 8-to-7 committee vote two weeks ago, when rural senators spiked the bill with the help of two Northern Virginians who wanted a stronger guarantee that all appeals would be heard. Holland then paid a visit to the governor's office, along with the committee chairman and Senate Majority Leader Hunter B. Andrews, to urge Robb to wage an all-out effort for the bill this year.
Robb called in Fairfax Sen. Joseph V. Gartlan Jr. and Alexandria Sen. Wiley F. Mitchell Jr. and urged them both to support the bill while it had some momentum, Robb and the senators said.
Both senators strongly supported the concept of an intermediate court, and they switched their votes today after the committee adopted a compromise provision that guarantees the right of appeal but allows the intermediate court to dismiss "frivolous" appeals without comment.
The court proposal, which has been championed by judicial study commissions for more than a decade, has never advanced this far in the General Assembly, and Davis predicted it will be approved by the Senate Monday.
Although it is endorsed by every major lawyers association in Virginia, it faces less certain prospects in the House of Delegates, where Speaker A. L. Philpott is reported to strongly oppose the measure.
Holland said some legislators oppose the bill because of its cost and others do not believe it is necessary. Still others, according to several senators, do not want to dilute the power of their hometown judges, who must be appointed and reappointed by the legislature.
"A circuit court judge who knows there's only a ten percent chance his decision will even be reviewed is in a position to wield a lot more power," Gartlan said. "And generally speaking, a legislature that elects these judges would like to see that power continued."
The Virginia Supreme Court last year agreed to consider about 270 cases out of 2,400 petitions--which in turn were culled from more than 2 million cases heard in general district and circuit courts around the state.
The Maryland intermediate court, by comparison, heard more than 1,700 cases, including almost every appeal it was requested to consider.
Asked whether the Supreme Court refuses to consider verdicts that should be reviewed or overturned, Robb said, "There isn't any way to tell. All you can do is look at the empirical evidence," which shows the Supreme Court granting 10 percent of petitions for appeal now compared to 40 percent in the 1960s.
The National Center study concluded it is likely that the Supreme Court now refuses to hear cases even when there is "a substantial possibility of injustice" in a verdict.
The study also said the court violates American Bar Association recommended standards in the way it treats petitions for appeal.
"The justices typically grant or deny petitions on the basis of information supplied by staff attorneys or law clerks, supplemented by short oral arguments in most civil cases and some criminal cases," the study said. "The justices generally do not review the briefs."
As a result, several senators said, errors in trials often go uncorrected, and different circuit court judges operate under different theories of law, with no higher court insuring consistency.
"It's not uncommon," one senator said, "to hear of a judge saying in chamber, 'You better agree to do it this way, because this is the only chance you're going to get.' "