2.3 Court of Appeals of Virginia

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

2.3 COURT OF APPEALS OF VIRGINIA

2.301 In General. In 1985, the General Assembly created an intermediate appellate court, known as the Court of Appeals of Virginia. ³⁸ The court consists of eleven judges, who are elected by a majority vote of the General Assembly to serve eight-year terms. ³⁹ The Chief Judge is elected by a majority vote of the judges of the Court of Appeals to serve a term of four years. ⁴⁰ The Chief Judge may appoint a retired Supreme Court justice or a retired judge of the Court of Appeals or a circuit court of Virginia to fulfill the duties of an absent or disabled judge of the Court of Appeals or to assist the Court of Appeals in reviewing petitions for appeal to reduce congestion or backlog in the court's docket. ⁴¹ The court sits at various geographic locations in the commonwealth, as designated by the Chief Judge, to provide convenient access to citizens throughout the commonwealth. ⁴² Judges sit in panels of three, with rotating membership and cases assigned upon designation by the Chief Judge. ⁴³

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2.302 En Banc Hearings. The Court of Appeals shall sit en banc:

(i) when there is a dissent in the panel to which the case was originally assigned and an aggrieved party requests an en banc hearing and at least four judges of the court vote in favor of such a hearing or (ii) when any judge of any panel shall certify that in his opinion a decision of such panel of the court is in conflict with a prior decision of the court or of any panel thereof and three other judges of the court concur in that view. The court may sit en banc upon its own motion at any time, in any case in which a majority of the court determines it is appropriate to do so. ⁴⁴

An en banc hearing requires the presence of at least eight judges and a concurrence of a majority of the judges sitting is required to reverse a decision by a panel of the court. ⁴⁵

2.303 Original Jurisdiction. The original jurisdiction of the Court of Appeals is limited by Va. Code § 17.1-404 to those cases "over which it would have appellate jurisdiction" ⁴⁶ to issue writs of mandamus, prohibition, or habeas corpus, ⁴⁷ as well as the power to punish for contempt. ⁴⁸

2.304 Appellate Jurisdiction.

A. In General. In determining the appellate jurisdiction of the Court of Appeals, two significant inquiries must be made: (i) whether appeal lies as a matter of right or is discretionary and (ii) whether the decision of the Court of Appeals is final or may be subject to further review by the Supreme Court.

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B. Matter of Right Versus Discretionary.

1. Matter of Right. Appeal will lie as a matter of right to the Court of Appeals from a final decision or from an interlocutory order (i) granting or denying injunctive relief or (ii) adjudicating the principles of a cause in the following cases: ⁴⁹

a.	"Any final decision of a circuit court on appeal from (i) a decision of an administrative agency, or (ii) a grievance hearing decision issued pursuant to § 2.2-3005"; 50
b.	"Any final decision of the Virginia Workers' Compensation Commission"; 51
c.	Any final judgment, order, or decree from the circuit court in juvenile and domestic relations cases, involving: affirmance or annulment of a marriage; divorce; custody; child or spousal support; control or disposition of a child; any other domestic relations matter arising under title 16.1 or title 20; or adoption under chapter 12 (Va. Code § 63.2-1200 et seq.) of title 63.2; 52 or
d.	"A final grievance hearing decision issued pursuant to subsection B of section 2.2-3007." 53

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2. Discretionary. Appeal is discretionary (a party must petition for appeal to the Court of Appeals) from final decisions in the following cases:

a.	Criminal convictions in the circuit court; 54
b.	Traffic infraction convictions in the circuit court; 55
c.	Proceedings in a circuit court on an application for a concealed weapons permit pursuant to subsection D of Va. Code § 18.2-307.1 et seq

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