Court of Appeals of Virginia

The need for expanded appellate capacity was first recognized in 1971. The report^[1] of the Virginia Court System Study Commission, composed of distinguished legislators and members of the bench and bar, recommended a reorganization plan for a unified court system. The commission, chaired by former Chief Justice Lawrence W. I'Anson, recognized the need for an intermediate appellate court in Virginia which would absorb the bulk of review of circuit court appeals, while preserving the Supreme Court as a single body concentrating on the development of the law.^[2]

In 1978, a comprehensive study of the Virginia court system conducted by the National Center for State Courts also recommended that the appellate capacity of the Virginia courts be increased by creating an intermediate Court of Appeals.^[3] In 1982, the Judicial Council of Virginia proposed legislation for a twelve judge intermediate appellate court. Finally, in 1983, the General Assembly created the Court of Appeals of Virginia, effective January 1, 1985. E. Ballard Baker was the first chief judge of the Court of Appeals of Virginia.^[2]

Since the establishment of the Court of Appeals, appellate capacity has increased 38.8%. The number of petitions acted upon has risen each year, achieving the desired goal of increasing appellate capacity in the court system.^[2]

In March 2021, legislation was passed to expand the Court from 11 judges to 17 judges.^[4] Effective, July 1, 2021, the Court of Appeals consists of seventeen judges who are elected for eight-year terms by a majority of the members of each house of the General Assembly.^[5]

Judges

The Court of Appeals consists of 17 judges who are elected for eight-year terms by a majority of the members of each house of the General Assembly.^[5] If a vacancy occurs while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the legislature. In addition to the seventeen active judges, the Court of Appeals may designate seven retired judges of the Court to serve as senior judges.^[5]

The judges of the Court of Appeals elect the chief judge by majority vote to serve a fouryear term. A master schedule approved by the chief judge designates where the Court of Appeals will sit for oral arguments to provide convenient local access to the public. The Court sits in locations throughout the Commonwealth.^[5]

The clerk of the Court of Appeals receives, processes and maintains permanent records of appeals and other official documents filed with the Court.^[5]

Panels

The Court of Appeals sits en banc (or as a whole) in the following circumstances:

• Where there is a dissent in a panel to which a case was originally assigned, and an aggrieved party requests an en banc hearing and at least six other judges of the Court vote in favor of such a hearing;^[5]
• If a judge of a panel certifies that a decision of that panel conflicts with a previous decision of the Court or of any panel and five other judges agree;^[5] or
• In any case in which a majority of the Court, on the petition of any party or upon its own motion, determines it is appropriate to sit en banc.^[5]

Under these conditions, the Court of Appeals convenes en banc and reconsiders the case. The court sitting en banc may override any previous decision of a panel or the full Court. No fewer than thirteen judges may be present when Court of Appeals sits en banc.^[5]

Jurisdiction

The Court of Appeals has authority to hear appeals as a matter of right from:

• any final judgment, order, or decree of a circuit court;^[5]
• any final order of conviction in a traffic or a criminal matter;^[5]
• any final decision of the Virginia Workers’ Compensation Commission;^[5]
• any final decision of a circuit court on appeal from a decision of an administrative agency or a grievance hearing decision;^[5]
• any final decision of a circuit court on an application for a concealed weapon permit;^[5]
• any final order of a circuit court involving involuntary medical or mental health treatment of prisoners;^[5] and
• any final order for declaratory or injunctive relief addressing whether a person’s free exercise of religion has been burdened by the Commonwealth or local government^[5]

The Court of Appeals has authority to consider petitions for appeal from:

• certain preliminary rulings in felony cases when requested by the Commonwealth;^[5]
• certain interlocutory orders;^[5] and
• any order of consolidation or joinder in a case brought under the Multiple Claimants Litigation Act.^[5]

The Court of Appeals has original jurisdiction to issue writs of mandamus, prohibition and habeas corpus in any case over which the Court would have appellate jurisdiction.^[5]

In addition, the Court of Appeals has original jurisdiction to issue writs of actual innocence based on non-biological evidence upon petition of a person who has been convicted of a felony.^[5]

Reforms effective January 2022

As part of a comprehensive reform bill passed by the Virginia General Assembly and signed into law in March 2021, the jurisdiction of the Court of Appeals expanded on January 1, 2022, as follows:

• Litigants can now appeal as of right a lower court's decision in civil cases, and the Supreme Court of Virginia will retain the power to select which appeals it hears.
• Criminal defendants can now appeal as of right a lower court's decision in criminal cases, but the Commonwealth will still need to petition the Court of Appeals if it wishes to appeal a decision in a criminal case.
• The Court of Appeals now has jurisdiction to hear interlocutory appeals and petitions for review of injunctions.^[6]

An appeal filed with the Supreme Court of Virginia before January 1, 2022, remains under its jurisdiction.^[6]

Procedure

Most appeals are heard as a matter of right. Appeals of right are cases that an appellate court must review as required by statute. These cases do not go through the petition process. The parties in each case file their respective briefs and the clerk of the Court refers the case to a panel of three judges for consideration. Oral argument is permitted but may be waived.^[5]

Other appeals are brought before the Court of Appeals through a petition process requiring a formal written application to the Court requesting judicial action on a certain matter. Petitions are required for any Commonwealth’s pre-trial appeal of a criminal case pursuant to Code § 17.1-406(A), interlocutory appeals, and certain other cases.^[5]

Each petition for appeal is referred to a three-judge panel of the Court of Appeals. The panel may grant the petition based on the record, without oral argument. In a pre-trial appeal of a criminal case, the Commonwealth may provide a panel of judges with the reasons why an appeal should be granted. If the judges of the panel agree the petition should not be granted, the order denying the appeal will state the reasons for denial and the case ends. If the panel grants the petition for appeal, the case proceeds in the same manner as an appeal of right case.^[5]

The Court of Appeals issues decisions by written opinion or order.^[5]

A party may petition for rehearing of a final decision or order disposing of a case. The petition may request rehearing by a panel or en banc. If a petition requesting rehearing by a panel is granted it will be heard, where practicable, by the same panel that rendered the final decision in the case.^[5]

Since January 1, 2022, when the court's jurisdiction expanded, most appeals are initiated by filing a notice of appeal and related documents with the clerk of the Court of Appeals.^[6]

Decisions are issued by the Court of Appeals by written opinion or order.^[2]

Certification

In any case in which an appeal has been taken to the Court of Appeals, the Supreme Court may certify the case for review by the Supreme Court before it has been decided by the Court of Appeals. A certification transfers jurisdiction over the case to the Supreme Court for all purposes. These certifications occur only when the case is of such public importance that it requires a prompt decision by the Supreme Court or when the docket of the Court of Appeals is congested, and expeditious administration of justice requires the transfer.^[5]

Finality of decisions

When the Court of Appeals has rejected a petition for appeal, dismissed an appeal, or decided on an appeal, its decision is final, without appeal to the Supreme Court in the following cases:

• Appeals in criminal cases pursuant to subsections A or E of Code § 19.2-398 and § 19.2-401. But the finality of the Court of Appeals’ pre-trial decision does not preclude a defendant, if he or she is convicted, from requesting the Court of Appeals to reconsider the issue on direct appeal;^[5]
• Appeals involving involuntary treatment of prisoners pursuant to Code § 53.1-40.1 or § 53.1-133.04;^[5] or
• Appeals involving denial of a concealed handgun permit pursuant to Code § 18.2-308.08.^[5]

Notwithstanding the finality of these cases, if the Supreme Court determines on a petition for review that the decision of the Court of Appeals involves a substantial constitutional question as a determinative issue or matters of significant precedential value, review may be had in the Supreme Court.^[2]

Review by the Supreme Court of Virginia

Except where the decisions of the Court of Appeals are final, any party aggrieved by a final decision of the Court of Appeals may petition the Supreme Court for an appeal.^[5]