Legislation in Virginia General Assembly May Affect Appeals

Senate Bill 999 has passed the Senate and been reported out of the Civil Subcommittee from the House Courts of Justice Committee. The bill, if passed by the House and signed by the Governor, would have two important consequences for Virginia appeals.

First, appellants posting a bond to suspend execution of a judgment while the appeal is underway will have to post at least the value of the judgment plus two and a half years’ worth of interest that would accrue on the judgment. Current law requires only a bond equal to the value of the judgment and just one year’s interest.  If the law is amended, the maximum amount of a suspension bond will remain $25 million, regardless of the value of the judgment. Still, appealing a case, while holding judgment creditors at bay during the appeal, could get more expensive.

Second, the bill would permit the Court of Appeals to decide a case without hearing oral argument if “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Current law only permits the Court to dispense with oral argument under two narrow circumstances: if the reviewing panel unanimously agrees the appeal is meritless or the dispositive issue in the case has been authoritatively decided and no party argues for the controlling authority to be overturned.

This new basis for dispensing with oral argument– essentially that the Court thinks it wouldn’t be helpful – will almost certainly reduce the number of oral arguments the Court hears. That could also, potentially, result, in shorter turn around times between the completion of briefing in a case and when a decision comes down. 

This provision mimics a nearly identical provision in Rule 34 of the federal rules of appellate procedure. That rule has resulted in a wide variation among the federal circuit courts of appeal in how often they hear oral argument when deciding cases. The D.C. Circuit, for example, heard oral argument for the year ending September 2023 in 48% of the cases it decided on the merits. By comparison, the Fourth Circuit, which rules on federal cases from the mid-Atlantic including those arising in Virginia and North Carolina, heard oral argument in in just 13 percent of cases.

Senate Bill 999 has a sunset provision. By its terms, it creates a two-year trial period ending on June 30, 2027. If it’s not re-enacted before then, the experiment with these procedural changes will end.

Practitioners and litigants should keep an eye on this bill. These changes are good or bad, one supposes, depending on whose ox is being gored. Like them or not, they’ll change how we prepare for and handle appeals.

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If you have any questions about this post or other appellate issues, please contact Cullen Seltzer at (804)783-7235 or CSeltzer@sandsanderson.com.