While I traditionally leave commentary on the Supreme Court of Virginia to the Sage of Virginia Beach, as I am preparing to present a CLE tomorrow reviewing the criminal appellate decisions of that Court and the Court of Appeals, I thought I would share a few observations on the higher court's merit docket, which remains slim, though much enlarged from just a few months ago when the Court had only 6 unargued pending appeals.
The Court released its November argument docket today, and from that we learned that the number of merit cases pending decision had grown by one as the Court will hear an appeal of right from the State Corporation Commission. With this addition, the Court's known merit docket (there may be other SCC or original jurisdiction cases that have not been publicly announced) to 23. Just a few years ago, it would not have been unusual to see 23 cases on the argument docket, with perhaps half that number argued but not decided and half-again as many waiting to be briefed and set for argument. In other words, the Court's active merit docket has fallen by roughly 2/3's in the last decade.
Another point of interest is that of those 23 cases, 5 are Commonwealth's Appeals from adverse (the the Commonwealth, that is) decisions of the Court of Appeals, while 6 are appeals by criminal defendants from the Court of Appeals. Thus, excepting the SCC case that did not proceed from the Court of Appeals, this means that half the docket involves criminal matters and half civil/administrative law. The docket previously would have been weighted more heavily to civil/administrative matters, My impression is that 1) the balance between criminal and civil is the result of the shift of civil appeals to the Court of Appeals and 2) the Supreme Court's new perspective that it will be that of a court of review.
The "court of review" paradigm also explains the number of Commonwealth's Appeals being granted. Previously, the Court would have been reticent to take these appeals (and defendant's appeals as well), because the judgments of the Court of Appeals was regarded as having a de facto (and in misdemeanor cases, de jure) finality in criminal matters absent an issue of significant precedent or constitutional dimension. I think the Court is less likely to be deferential to the Court of Appeals now, especially in Commonwealth's Appeals, if for no other reason than civil and criminal appeals are now on an equal footing -- each having received a full review in the Court of Appeals, whereas previously the civil cases were coming directly from the circuit court.
For reference of those who follow the Court (we few, we happy few), here is my estimation of the Supreme Court's current merit docket:
Supreme Court of Virginia Merit Docket
Argued
1. 211061 Vlaming v. West Point School Board, et al. (November 2022)
2. 210389 Ken McKeithen, Successor Trustee etc. v. City of Richmond (June 2023)
3. 220596 Commonwealth of Virginia v. Larry Dale Puckett (September 2023)
4. 220715 Commonwealth of Virginia v. Danjuan Antonio McBride (September 2023)
5. 220536 Heath Nicholas Moison v. Commonwealth of Virginia (September 2023)
6. 211114 Andrew Schmuhl v. Harold Clarke, Director (September 2023)
Set for Argument in November 2023
1. 230400 Verizon Virginia LLC v. State Corporation Commission, et al. (Appeal of Right)
2. 230127 Commonwealth of Virginia v. Emily Katherine Delaune (Date Granted: 05-31-2023)
3. 220382 Commonwealth of Virginia v. Joseph Eugene Smith (Date Granted: 03-08-2023)
4. 230173 Raymond Travis Swinson, Sr. v. Commonwealth of Virginia (Date Granted: 06-20-2023)
5. 230115 Bryant McCants v CD & PB Enterprises, LLC (Date Granted: 06-07-2023)
6. 220445 Dwayne Lamont Sample, Jr. v. Commonwealth of Virginia (Date Granted: 05-03-2023)
7. 220499 Terrence Jerome Richardson v. Commonwealth of Virginia (Date Granted: 02-24-2023)
Granted Appeals
1. 220654 Chadwick Dotson, Chairman, etc. v. Gilbert Merritt, III (Date Granted: 03-03-2023)
2. 230199 Emergency Physicians of Tidewater, PLC, et al. v. Patricia Hanger (Date Granted: 09-18-2023)
3. 230260 Carter, Executor etc. v. Wake Forest Uni. Baptist Med. Cen., et al. (Date Granted: 09-15-2023)
4. 230327 Travis Bland-Henderson v. Commonwealth of Virginia (Date Granted: 09-13-2023)
5. 230344 Michael Melvin Fary v. Commonwealth of Virginia (Date Granted: 09-14-2023)
6. 230365 Montalla, LLC V. Commonwealth of Virginia, et al. (Date Granted: 09-15-2023)
7. 230204 Andrew Ryan Younkle v. Suzanne Marie Schillmoeller (Date Granted: 09-22-2023)
8. 230323 United Services Automobile Association v. Bruce A. Estep (Date Granted: 09-21-2023)
9. 230343 Commonwealth of Virginia v. Marcus Cleophus Holman (Date Granted: 09-21-2023
10. 230333 Joshua Adam Eckard v. Commonwealth of Virginia (Date Granted: 09-28-2023)