What goes where? appellate court in 2022 | PC ThompsonMcMullan

Since the General Assembly expanded appellate jurisdiction in Virginia earlier this year, questions have abounded for Commonwealth lawyers. First among these: Which court hears appeals of disputes between jurisdictions concerning a dam or water reservoir? You guessed it: the Court of Appeal. Code § 15.2-2140.

All kidding aside, the expansion of appellate jurisdiction in Virginia has rightly sparked much discussion and anticipation within the Virginia Bar. Whether it is the updated Virginia Supreme Court rules, procedure and practice that will now predominate in appeals to the Court of Appeal, the impact on the time and cost of litigation. , or what remains of Supreme Court practice, little in recent memory has caused so many changes so quickly for members of the Virginia Bar.

The new avenue of appeal is an important point. Few things would be worse, after all, than making a big appeal, preserving mistakes, and noting your appeal on time … only to testify in the wrong court.

For several decades, the general route of appeal has been relatively simple. If it was a criminal (except death penalty), administrative, family law or workers’ compensation case, your appeal has been brought to the Court of call. And an appeal of that court’s decision could then be brought, on a discretionary basis, to the Virginia Supreme Court. Everything else was appealed directly – and with few exceptions, on a discretionary basis – to the Virginia Supreme Court.

In a sense, the new reality is that simple, albeit the other way around. That is to say, with a few exceptions, an appeal is now generally brought as of right before the Court of Appeal.

Criminal calls

For the most part, criminal appeals remain before the Court of Appeal. Code § 17.1-406. Appeals in death penalty cases technically remain before the Supreme Court of Virginia, Code § 17.1-406 (B), but with the abolition of the death penalty in Virginia, this aspect of the criminal appeal process will become a historical footnote. As Monica Monday noted in her article in the Fall 2021 issue of the Virginia Bar Association, the practice and procedure for criminal appeals has changed in several important ways. But their location remains unchanged.


This is really where the action is with the 2021 amendments. While almost all civil appeals were filed in the Supreme Court of Virginia at the time â„¢, almost all civil appeals now have to be filed. first brought before the Court of Appeal.

The code § 17.1-405 delimits the jurisdiction of the Court of Appeal. Although the law specified the narrow range of cases that could be appealed there, it now casts a wide net. In addition to hearing appeals from family relations cases, and those from an administrative body, state grievance proceedings and the Virginia Workers’ Compensation Commission, an “aggrieved party” can appeal to the Court. call from

  • “Any final judgment, order or decree of a circuit court… in a civil matter” other than those directly relevant to the Supreme Court (see below);
  • Any interlocutory order subject to appeal (see below); and
  • A final judgment involving an application for a concealed weapons permit, involuntary treatment of prisoners or a declaratory or injunctive measure under the code § 57-2.02 (law for religious freedom).

In addition, parties appealing circuit court decisions on an injunction request must now do so first to the Court of Appeal. Code § 8.01 626. The injured parties can then apply to the Supreme Court. Identifier.

Conversely, while it delimited the main categories of appeals to be filed with the Supreme Court, the code § 8.01-670 now simply states: “A party aggrieved by a final decision of the Court of Appeal may apply to the Supreme Court of ‘an appeal in accordance with § 17.1-411. That is, a losing party before the Court of Appeal can file an appeal to the Supreme Court, which retains discretionary review under this article.

Interlocutory appeals

In 2020, interlocutory appeals changed dramatically in Virginia with the change to the Code § 8.01-670.1. Then, the big change was to widen the permissiveness of interlocutory appeals: the agreement of the parties was no longer required, orders related to sovereign, absolute or qualified immunity were expressly made admissible, and the Code clarified that parties could wait to bring a qualifying interlocutory appeal after
entry of a final order.

These provisions remain in force (in the code § 8.01-675.5 – the old code § 8.01-670.1 will be repealed on January 1, 2022, as part of the legislation on the extension of powers), but interlocutory appeals must be continued. with a request for review filed with the Court of Appeal. This
includes interlocutory appeals under the Multiple-Plaintiff Litigation Act: Code § 8.01-678.8 removed the power of the Virginia Supreme Court to review interlocutory appeals of such orders, and they too must go to the Court of Appeal.

Direct Appeals and Original Jurisdiction of the Supreme Court of Virginia
Here, the law remains the same. The Virginia Constitution gives the Supreme Court of Virginia original jurisdiction:

in the case of habeas corpus, mandamus and prohibition; examine allegations of actual innocence presented by convicted criminals in such cases and in the manner that may be provided by the General Assembly; in matters of judicial censorship, retirement and dismissal [of disabled or unfit judges] under section 10 of this article, and to answer questions of state law certified by a court in the United States or the highest court of appeal in any other state.

Go. Const. art. VI, § 1. Unless further amended, this remains true. The Virginia Supreme Court also retains original jurisdiction over complaints filed by the Judicial Inquiry and Review Commission. Code § 17.1-406 (B).

The same is true for direct appeals to the Supreme Court of Virginia because Code § 17.1-406 (B) has not been changed: appeals are made directly to the Supreme Court for convictions for which a sentence of death is pronounced, the final orders of a circuit court involving a petition for habeas corpus, final orders of the Commission for State Corporations and Procedures under §§ 54.1-3935 and -3937 of the Code relating to procedures disciplinary proceedings of lawyers and law firms.

There is more!

Did you know that a circuit court can initiate proceedings on behalf of the Commonwealth to justify why a mandamus should not be issued against a city council or supervisory board to repair a dilapidated courthouse? Neither do I. One of the advantages of the General Assembly that cleaned up the Code to extend appellate jurisdiction in Virginia is that it identified every provision allowing an appeal to the Supreme Court of Virginia. And for the most part, he wrote: “Supreme Court of the Court of Appeal of Virginia”. Thus, for example, an appeal of a decision that such a mandamus should issue for a court in poor condition now falls to the Court of Appeal. Code § 15.2-1643. Other less visible appeals that must now be referred to the Court of Appeal include:

  • Appeals from decisions relating to dividing lines between localities, annexation of land or corporate boundaries of a city, Code §§ 15.2-3104, -3217, -3221 and -3241;
  • Appeals from proceedings concerning the revocation of a public official or a person from registration on the electoral rolls, Code §§ 24.2-237, -433;
  • Appeals from refusal of probable cause, appointment or parole related to sexually violent predators, Code § 37.2-920.

Etc. Examining the 2021 amendments is an enlightening exercise to see how many of the Code’s provisions relate to separate appeals. In general, and with the exception of the situations described above, if an appeal was previously brought to the Supreme Court of Virginia, it now goes first to the Court of Appeal.

Thelma J. Longworth

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