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Virginia Has Created a New Right of Appeal for Civil and Criminal Litigants

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Until this last legislative session, Virginia was the only state in the nation without a right of appeal from civil judgments and criminal convictions.  However, the most recent General Assembly session passed, and the Governor signed, perhaps the most consequential piece of legislation affecting the Virginia legal system in many years: the creation of a right of appeal for most litigants, civil and criminal.

Historically, civil and criminal litigants dissatisfied with the results of a Virginia circuit court ruling could only petition an appellate court to hear their cases – the Supreme Court of Virginia in most civil cases and the Court of Appeals for most criminal – in effect, asking that a panel of justices or judges allow a full hearing before the respective court.  The panel could, and most often did, decline the request, meaning that the vast majority of civil and criminal litigants were unable to have a full appeal of their case.  Litigants in domestic relations and workers’ compensation cases had the right of appeal to an intermediate level appellate court, the Court of Appeals, but most other litigants were without any right to a full appeal.

However, under the recently passed SB1261, effective January 1, 2022, nearly all civil litigants and criminal defendants will have a right to a full appeal before the Court of Appeals of any final circuit court decision, without having to request permission.  The appeal procedure will include full briefing and, if granted, oral argument, and will culminate in a written opinion or order from the court. Dissatisfied litigants, with limited exceptions, can still pursue a petition to the Supreme Court for additional review.  It is a monumental shift for Virginia which will have an impact in virtually every aspect of litigation.

The Supreme Court still retains original jurisdiction over certain issues, including Virginia State Bar disciplinary rulings, State Corporation Commission rulings and writs of habeas corpus. Other areas, such as interlocutory appeals and petitions for the restoration of firearm rights, are left without an appeal of right. Additionally, the Commonwealth does not have a right of appeal from rulings in criminal prosecutions; prosecutors will still be required to petition the Court of Appeals for permission to have an appeal heard on the merits.

Many administrative changes will accompany this expansion of the Court of Appeals jurisdiction.  Given what is likely to be an enormous increase in the court’s caseload, the new legislation provides for an expansion from 11 to 17 judges.  The make-up of the panels will continue to be randomized and not based on region.  The Supreme Court is tasked with promulgating new rules by January 1, 2022, to accommodate these changes.  The General Assembly acknowledged uncertainty with the logistical and administrative significance of this new law by requiring that the Supreme Court’s Executive Secretary report annually for three years, starting January 1, 2023, to the House Committee for Courts of Justice and the Senate Committee on the Judiciary, detailing the expanded workload of the Court of Appeals.

The legislation has several other changes that are important for practitioners to keep in mind. For example, the Court of Appeals will have greater discretion to dispense with oral argument if it believes an appeal is without merit or the issues have been decided previously and the petitioner has not argued for a change in such precedent. This is similar to the discretion afforded to federal appellate courts. The legislation also provides a mechanism to avoid having to create an appendix of the trial court record in some circumstances.  Further, the legislation encourages the use of electronic filing using the Virginia Appellate Courts Electronic System instead of paper filing.

Although this change will be welcomed by many, it also compounds the complexity of appellate procedure and its many procedural pitfalls.  Litigators should consider seeking the advice or involvement of counsel who specialize in Virginia appellate procedure and are familiar with these changes.  Vandeventer Black has been closely following this expansion and evaluating the effects on our practice and clients.  Because of our firm’s extensive workers’ compensation practice, we have several attorneys who regularly appear before the Court of Appeals and Supreme Court and are available to assist litigators and parties unfamiliar with that forum.

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