Following the Virginia General Assembly’s 2021 special session, Gov. Ralph
Northam signed into law Senate Bill 1261. This law, which goes into effect Jan. 1, 2022, will significantly change
the appellate landscape in Virginia state courts, with ramifications for
appeals as well as trial court proceedings.
Appellate jurisdiction in Virginia is split between the Supreme Court of
Virginia and the Court of Appeals of Virginia. Currently, the Court of
Appeals has jurisdiction over criminal matters and only very limited civil
cases. On Jan. 1, 2022, that will change. The Court of Appeals will become
the intermediate appellate court for all criminal and civil cases.
Importantly, these cases will become appeals of right. The number of judges
on the Court of Appeals will increase from 11 to 17, and the General
Assembly will convene in August 2021 to select six new judges.
This is a huge change for civil litigation in state courts. Under current
law, civil litigants, with minor exceptions, are not accorded an appeal as
a matter of right. Parties who are dissatisfied with a circuit court
decision can petition the Supreme Court of Virginia for the right to
appeal, but allowing an appeal is a matter of the court’s discretion, and
many are denied. Once the new law is in force, all civil litigants will be
entitled to an appeal before the Virginia Court of Appeals. If a party is
unhappy with the decision of the Court of Appeals, it will then have the
right to petition the Supreme Court for the right to appeal further.
As the highest court in the commonwealth, the Supreme Court of Virginia
possesses both original and appellate jurisdiction. Composed of a chief
justice and six justices, the Supreme Court’s primary function is to review
decisions of lower courts, including the Court of Appeals, from which
appeals have been allowed. The Supreme Court’s original jurisdiction is
limited to cases of habeas corpus (ordering one holding custody to produce
the detained person before the court for the purpose of determining whether
such custody is proper), mandamus (ordering an office holder to perform his
duty), prohibition (ordering an action stopped in a lower court), and
actual innocence (based on the results of scientific testing of human
biological evidence). The Supreme Court also has original jurisdiction in
matters filed by the Judicial Inquiry and Review Commission relating to the
censure, retirement and removal of judges.
As the intermediate appellate court in the commonwealth, the Court of
Appeals of Virginia currently provides appellate review of final decisions
of the circuit courts in domestic relations matters, appeals from decisions
of an administrative agency, traffic infractions, and criminal cases,
except where a sentence of death has been imposed. It also hears appeals of
final decisions of the Virginia Workers’ Compensation Commission. While
appeals of criminal and traffic matters, concealed handgun permit denials,
and certain preliminary rulings in felony cases are presented by a petition
for appeal, all other appeals to the Court of Appeals are a matter of
right. Prior to the changes that will occur as a result of Senate Bill
1261, all other civil decisions of a circuit court are appealed directly to
the Supreme Court of Virginia by petition for appeal. The Court of Appeals
also has original jurisdiction to issue writs of mandamus, prohibition and
habeas corpus in any case over which the court would have appellate
jurisdiction, and writs of actual innocence (based on nonbiological
As the state government entity responsible for promulgating rules of court,
the Supreme Court of Virginia has created a committee to revise the rules
for the Supreme Court and the Court of Appeals in light of Senate Bill
1261. The first draft of these revisions was released for public comment, along with the transmittal memorandum accompanying these draft revisions.
Robert Loftin, an appellate lawyer at McGuireWoods who focuses on
Virginia appellate practice and procedure, is familiar with and
monitoring these developments. Further updates will follow, and will
include information from Matthew Fender, a McGuireWoods trial lawyer, on
how these appellate changes will impact trial practice in Virginia.