Since the General Assembly expanded appellate jurisdiction in Virginia earlier this year, questions have abounded for lawyers across the Commonwealth. First among these: Which court hears appeals of disputes between jurisdictions involving a dam or water impoundment? You guessed it: the Court of Appeals. Code § 15.2-2140.
Kidding aside, the expansion of appellate jurisdiction in Virginia has rightly caused considerable discussion and anticipation within the Virginia bar. Whether it’s the updated Rules of the Supreme Court of Virginia, the procedure and practice that will now predominate appeals in the Court of Appeals, impact on the time and cost of litigation, or what remains of Supreme Court practice, few things in recent memory have caused as much change so quickly for members of the Virginia bar.
One important focus is the new path of appeals. Few things would be worse, after all, than teeing up a great appeal, preserving error, and timely noting your appeal…only to file in the wrong court.
For several decades, the general path of appeals has been relatively simple. If your case was criminal (except for death penalty cases), administrative, family law, or workers’ compensation, your appeal was filed in the Court of Appeals. And an appeal of that Court’s ruling could then be made, on a discretionary basis, to the Supreme Court of Virginia. Everything else was appealed directly — and with few exceptions, on a discretionary basis — to the Supreme Court of Virginia.
In one sense, the new reality is as simple, albeit conversely. That is, with few exceptions, an appeal now generally goes to the Court of Appeals as a matter of right.
For the most part, criminal appeals remain in the Court of Appeals. Code § 17.1-406. Appeals in death penalty cases technically remain in the Supreme Court of Virginia, Code § 17.1-406(B), but with the abolition of the death penalty in Virginia, this aspect of criminal appellate procedure will become a historical footnote. As noted by Monica Monday in her article in the Virginia Bar Association’s “On Appeal” Fall 2021 issue, the practice and procedure of criminal appeals has changed in several significant ways. But their location remains unchanged.
This is really where the action is with the 2021 amendments. While nearly every civil appeal was filed in the Supreme Court of Virginia in the Old Days™, almost every civil appeal must now first be brought in the Court of Appeals.
Code § 17.1-405 delineates the jurisdiction of the Court of Appeals. Although the statute used to specify the narrow range of cases that could be appealed there, it now casts a wide net. In addition to retaining appeals of domestic relations cases, and those from an administrative agency, state grievance procedures, and the Virginia Workers’ Compensation Commission, an “aggrieved party” may appeal to the Court of Appeals from
- “any final judgment, order or decree of a circuit court…in a civil matter” other than those that lie directly to the Supreme Court (see below);
- Any interlocutory order that is appealable (see below); and
- A final judgment involving an application for a concealed weapons permit, involuntary treatment of prisoners, or for declaratory or injunctive relief under Code § 57-2.02 (Act for religious freedom).
In addition, parties appealing circuit court rulings on a request for an injunction must now do so first in the Court of Appeals. Code § 8.01 626. Aggrieved parties may then petition the Supreme Court. Id.
Conversely, while it used to delineate the broad categories of appeals to be filed in the Supreme Court, Code § 8.01-670 now states simply: “A party aggrieved by a final decision of the Court of Appeals may petition the Supreme Court for an appeal in accordance with § 17.1-411.” That is, a losing party at the Court of Appeals may file a petition for appeal with the Supreme Court, which retains discretionary review under that section.
In 2020, interlocutory appeals changed dramatically in Virginia with the amendment of Code § 8.01-670.1. Then, the big change was broadening the permissiveness of interlocutory appeals: party agreement was no longer required, orders related to sovereign, absolute, or qualified immunity were expressly made eligible, and the Code clarified that parties could wait to bring an eligible interlocutory appeal after
entry of a final order.
These provisions remain in effect (in Code § 8.01-675.5 — the old Code § 8.01-670.1 will be repealed on January 1, 2022, as part of the jurisdiction-expansion legislation), but interlocutory appeals must be prosecuted with a petition for review filed in the Court of Appeals. This
includes interlocutory appeals under the Multiple Claimant Litigation Act: Code § 8.01-678.8 removed the authority of the Supreme Court of Virginia to consider interlocutory appeals of such orders, and they too must go to the Court of Appeals.
Direct Appeals to and Original Jurisdiction of the Supreme Court of Virginia
Here, the law remains the same. The Constitution of Virginia gives the Supreme Court of Virginia original jurisdiction:
in cases of habeas corpus, mandamus, and prohibition; to consider claims of actual
innocence presented by convicted felons in such cases and in such manner as may be
provided by the General Assembly; in matters of judicial censure, retirement, and removal
[of disabled or unfit judges] under Section 10of this article, and to answer questions of state
law certified by a court of the United States or the highest appellate court of any other state.
Va. Const. art. VI, § 1. Short of future amendment, this remains true. The Supreme Court of Virginia also retains original jurisdiction over complaints filed by the Judicial Inquiry and Review Commission. Code § 17.1-406(B).
The same is true of direct appeals to the Supreme Court of Virginia because Code § 17.1-406(B) was not amended: appeals lie directly to the Supreme Court for convictions for which a sentence of death is imposed, final orders of a circuit court involving a petition for writ of habeas corpus, final orders of the State Corporation Commission, and from proceedings under Code §§ 54.1-3935 and -3937 related to attorney and law firm disciplinary proceedings.
Did you know a circuit court can institute proceedings in the name of the Commonwealth to show cause why mandamus should not issue against a city council or board of supervisors to repair a dilapidated courthouse? Me neither. One of the benefits of the General Assembly scrubbing the Code to expand appellate jurisdiction in Virginia is it identified every provision permitting an appeal to the Supreme Court of Virginia. And for most, it wrote: “Supreme Court of Virginia Court of Appeals.” So, for example, an appeal of a decision that such mandamus should issue for a court in disrepair now lies to the Court of Appeals. Code § 15.2-1643. Other less visible appeals that now must go the Court of Appeals include:
- Appeals from decisions related to boundary lines between localities, annexation of land, or corporate limits of a town, Code §§ 15.2-3104, -3217, -3221, and -3241;
- Appeals from proceedings regarding the removal of a public officer from office or a person from voter registration, Code §§ 24.2-237, -433;
- Appeals from a denial of probable cause, commitment, or conditional release related to sexually violent predators, Code § 37.2-920.
And so on. Reviewing the 2021 amendments is an illuminating exercise in seeing how many Code provisions relate to discrete appeals. In general — and excepting the situations laid out above — if an appeal formerly went to the Supreme Court of Virginia, it now goes to the Court of Appeals first.