Big Changes Ahead for Civil Appeals in Virginia

June 28, 2021

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 evidence).

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.