Virginia Court of Appeals: From Inception to Expansion

In Article VI of the Constitution of Virginia, the judicial power of the Commonwealth is vested in the Virginia Supreme Court and in “other courts of original or appellate jurisdiction subordinate to the Supreme Court as the General Assembly may from time to time establish.”

The General Assembly (Virginia’s legislature) established the Virginia Court of Appeals, effective January 1, 1985, in order to ease the burden on the Supreme Court of Virginia and broaden a litigant’s ability to be heard on appeal.  Its establishment was over a century in the making. In fact, as early as 1848, the Supreme Court had a back-log of eight to nine years for appeals. Thankfully, it did not take an additional 100 years to convince the General Assembly to expand the jurisdiction of the Court of Appeals to allow for a broader right of appeal. This post attempts to contextualize the expansion of the Court of Appeals, in effect as of January 1, 2022, by examining the origins of the Court of Appeals, how jurisdiction has been expanded, and what that will mean for clients and civil litigators in Virginia.

Court of Appeals - Origins

The Court of Appeals was established as a court of limited jurisdiction, which continued largely unchanged until March 2021. When first developed, there was a “fierce debate” over the court’s jurisdiction and the right to an appeal. Even though many members of the bar wanted more access to appellate review, the appellate courts did not want to be overburdened by frivolous litigation. The General Assembly struck a compromise and created an intermediate court. However, the Court could handle appeals only in certain types of cases with limited automatic appeals. Specifically, the Court’s jurisdiction rested as to appeals of decisions from the Workers’ Compensation Commission, administrative agencies, domestic relations cases, and criminal cases (excluding death penalty cases). All other cases were appealed directly to the Supreme Court – including the vast majority of civil cases.

That posed a problem. There is no appeal of right to the Supreme Court (which is comprised of seven justices). Over the past decade, the Supreme Court has progressively granted review of fewer civil appeals. For example, in 2019, 496 civil appeals (admittedly a broad category) were filed and only 59 of those 496 were granted review (including petitions for appeal that were dismissed for failure to follow procedural requirements). In 2020, 360 civil cases were filed and only 50 were granted review. Of those granted review, less than half were reversed or modified. It does not take a mathematician to see that that the likelihood of reversing a trial court’s decision on appeal has historically been slim.

The effect of the limited review is limited jurisprudence. Not only were cases not being reviewed on the merits, but the body of appellate case law has been likewise limited. Practitioners have long felt that lack of precedent leads to uncertainty among trial courts, and in some cases uneven application of the law across jurisdictions in Virginia. Still, with limited appeals litigants enjoyed certainty of another character with the finality of trial court decisions along with less litigation costs from protracted appeals conducted over a lengthy period of time.

Court of Appeals - Expansion

On March 31, 2021, the Governor signed into law Senate Bill 1261 (“SB 1261”), which expands the scope of the Court of Appeals of Virginia (affectionately referred to by its judges and clerks as “CAV”). This law took effect on January 1, 2022. Under SB 1261, litigants now have the right to appeal final judgments in civil cases to the Virginia Court of Appeals, so long as the appeal stems from a case in which the matter of controversy exceeds $500 or more in value, absent some limited exceptions (e.g., questions about a freehold, franchise, title/bounds of land, or “some other matter not merely pecuniary”). See also Va. Code §§ 8.01-675.6, 17.1-405.

Visit here for a more comprehensive discussion of the Court of Appeals’ expanded subject matter jurisdiction.

In addition to increasing CAV’s subject matter jurisdiction and in the spirit of increasing access to judicial review, Va. Code § 17.1-410 allows litigants to appeal decisions from administrative agencies or Virginia Workers’ Compensation Commission all the way to the Supreme Court. Prior to January 1, 2022, those decisions were generally final with review by the Supreme Court only in those circumstances in which the decision of CAV involved a substantial constitutional question or a matter of significant precedential value.

The expansion of jurisdiction also occasioned an increase in the number of judges on the Court of Appeals. In Virginia, judges are not elected by the public. Instead, the General Assembly selects judges for terms. Originally comprised of ten judges, the Court increased to eleven judges in 2000. In order to accommodate the expected influx of cases, the Court’s size has now been expanded by fifty-four percent to seventeen judges.

Court of Appeals – Looking Forward

U.S. District Court Judge (Ret.) Norman K. Moon served as a judge on the first iteration of the Court of Appeals in 1985. In reflecting on its impact, he stated, “This court was able to develop and add to the law so many precedents that practitioners and judges could rely upon . . . [Virginia law] was just a small fraction of that of most states that had courts of appeal . . . . We didn’t have the precedent on a lot of issues."

Currently lawyers in Virginia have great expectations are great that only time will confirm, but it is not unexpected that the Court of Appeals’ expanded jurisdiction and composition will result in a number of developments in Virginia’s trial and appellate practices:

• Increased numbers of appeals, especially as to civil matters
• Increased settlement leverage based upon the threat of an appeal even after a trial verdict or decision (the threat of an appeal is real)
• Newly focused attention on preservation of appellate rights, which may involve separate appellate counsel to assist in trial matters involving high exposure
• Heightened duties owed by trial counsel to clients to address potential appeal issues and to communicate appellate options (with an expected increase of bar complaints and legal malpractice actions based on allegations that an attorney failed to meet the “applicable” standard of care)
• Development of caselaw with the (hopeful) reduction in surprises during litigation as trial counsel will be able to more effectively evaluate trial risks based on precedent