The Effects of Newly Expanded Scope of the Virginia Court of Appeals

The Effects of Newly Expa…

Well, it has finally happened. After being the very last state in the nation not to allow an appeal of right in civil cases, Former Governor Ralph Northam signed Senate Bill 1261 (“S.B. 1261”) into law. Under S.B. 1261, as of January 1, 2022, civil litigants now have the right to appeal final judgments from the Circuit Court to the Virginia Court of Appeals.

Formerly, if a civil litigant was unhappy with the ruling of a Circuit Court which was adverse to his position, the only remedy was to petition for an appeal to the Supreme Court of Virginia. More often that not, this was futile as the Supreme Court of Virginia grants appeals in less than 25% of cases.

The new law creates hope for civil litigants who lose at the trial court level as there is now an appeal of right in final judgments in civil cases. Litigants have thirty (30) days from the date of the Circuit Court’s decree or order in which to file their notice of appeal to the Court of Appeals. The new appeal procedure will include full briefing of the issue(s) by both parties, oral argument (if granted), and will culminate in an opinion or written order from the court.

However, the appeal of right does not guarantee the opportunity to be heard at oral argument. Just like in the Supreme Court of the United States, the new law requires the Supreme Court of Virginia to prescribe procedures allowing the Court of Appeals to dispense with oral argument if it unanimously decides it to be unnecessary. This can be for one of two reasons: either (a) the appeal is deemed wholly without merit; or (b) the issue(s) has been authoritatively decided and the appellant has not argued that the existing law should be overturned, extended, modified, or reversed. If litigants are still dissatisfied with the order of the Court of Appeals, they can still, with limited exceptions, pursue a petition to the Supreme Court for additional review.

Obviously, this massive expansion of the jurisdiction of the Court of Appeals will lead to an enormous increase in its workload. Thus, the new legislation provides for an expansion from 11 to 17 judges. As before, the make-up of the selected panels for each case will continue to be randomized. In order to address uncertainty with administrative and logistical issues of the court’s expanded jurisdiction, the General Assembly required the Supreme Court’s Executive Secretary to report annually for three years, starting January 1, 2023. This report will go to the House Committee for Courts of Justice and the Senate Committee on the Judiciary and will detail the expanded workload of the Court of Appeals.

While these changes will be welcomed by civil litigants who disagree with the findings of the Circuit Court, it is important to keep in mind that the Virginia Appellate Courts have historically been quick to dismiss cases for procedural defaults. The rule changes are unlikely to change that precedent and civil litigants who are seeking to appeal a ruling should consider seeking the involvement of counsel who specialize in Virginia appellate procedure. If you have a case that you believe is worthy of appellate review, or for more information on this article in general, please contact Mo Sherman (msherman@setlifflaw.com) at 804-377-1275 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.