4.1 Courts

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

4.1 COURTS

4.101 Judicial Department. ¹

A. Judicial Power. The judicial power of the Commonwealth is vested in the Supreme Court of Virginia. ² Subordinate courts are established by the General Assembly, and jurisdiction is therefore entirely statutory.

Courts "of record" are trial courts of general jurisdiction (namely, circuit courts, not general district courts) and appellate courts.

B. Administration. ³ The Chief Justice is the administrative head of the judicial system. The General Assembly may provide in addition for improvement of administration of justice by the courts and expedition of judicial business.

C. Practice and Procedure. The Supreme Court is authorized to make rules governing appeals, practice and procedure, and rules of evidence. ⁴

Rules do not cover all proceedings. Virginia Code provisions take precedence over rules, so the General Assembly can preempt the Supreme Court.

The Supreme Court receives input from practitioners from two sources: (i) the Boyd-Graves Conference ⁵ and (ii) the Judicial Council and its Advisory Committee. ⁶

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Circuit and general district courts may also promulgate rules pertaining to the efficient use of courthouses and clerk's offices. There is now a uniform scheduling order. ⁷

D. Justices and Judges of Courts of Record.

1. Qualifications. Judges must be residents of the Commonwealth and must have been admitted to the bar of the Commonwealth at least five years before appointment or election. ⁸

2. Election and Terms. Judges are elected by a vote of majority of each house of the General Assembly for terms of 12 years for Supreme Court justices, ⁹ eight years for judges of other courts of record, ¹⁰ and six years for judges of courts not of record. ¹¹

The Governor may make temporary appointments when the General Assembly is not in session. ¹²

3. Salaries and Allowances. ¹³ Salaries and allowances are fixed by the General Assembly. ¹⁴ No salary may be diminished during a judge's term. ¹⁵

4. Restrictions. ¹⁶ Judges may not:

1.	Practice law anywhere;
2.	Seek or accept nonjudicial public office;
3.	Hold any office of public trust;

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4.	Engage in any other "incompatible activity"; or
5.	Be a member of General Assembly.

5. Retirement. ¹⁷ Judges' retirement is determined by the General Assembly. For judges elected after July 1, 1997, retirement is mandatory at age 73. ¹⁸

The chief judge may appoint retired justices and judges temporarily to substitute for absentees or help with reviewing petitions. ¹⁹

6. Removal. Judges may be removed by impeachment. ²⁰ Judges who are found to be "disabled and unfit" may be removed by the Judicial Inquiry and Review Commission. ²¹

4.102 Supreme Court. ²²

A. Number and Quorum. ²³ There are currently seven Supreme Court Justices. The General Assembly may increase or decrease that number to not less than seven or more than eleven. Any four of seven constitutes a quorum.

B. Chief Justice. The Chief Justice is selected from the justices in a manner prescribed by law. The Chief Justice is elected by a majority vote of Justices of the Supreme Court. ²⁴

C. Court May Sit En Banc or in Divisions as Prescribed by Rules. ²⁵ All decisions must be by at least three justices. ²⁶ If any one member of the division differs or (whether he or she sat on the case or not) certifies

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that a decision conflicts with Supreme Court decision, the case will be reheard and decided by the Supreme Court en banc. ²⁷

At least a majority of all justices must assent to a decision declaring a law repugnant to either the Virginia Constitution or the Constitution of the United States. ²⁸

D. Terms and Sessions. The Supreme Court holds one term per year, fixed by the Court. Sessions are held in Richmond and fixed by the Court. Special sessions may be ordered by the Chief Justice. ²⁹

E. Original Jurisdiction. ³⁰ The Supreme Court has original jurisdiction in the following cases:

1.	Habeas corpus; 31
2.	Mandamus; 32
3.	Prohibition; 33
4.	Matters of judicial censure, retirement, and removal (exclusive jurisdiction); and
5.	Certification of questions from foreign courts. 34

F. Appellate Jurisdiction. ³⁵ The Supreme Court has appellate jurisdiction in cases concerning the constitutionality of law under the Virginia Constitution or the Constitution of the United States and in cases involving life or liberty of a person.

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Other appellate jurisdiction is statutory ³⁶ and subject to minimum value or amount of $500. ³⁷

The court may answer questions of law certified to it when requested by federal courts or the highest state court of another state. ³⁸ Certification must be for a question of law. ³⁹

School Bd. v. U.S. Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987); Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505 (1988); Beach Robo, Inc. v. Crown Cent. Petroleum Corp., 236 Va. 131, 372 S.E.2d 144 (1988); Commonwealth v. American Booksellers Ass'n, 236 Va. 168, 372 S.E.2d 618 (1988); Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55 (1988); Beach Robo, Inc. v. Crown Cent. Petroleum, Inc., 860 F.2d 606 (4th Cir. 1988); Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990); Lee-Warren v. School Bd., 241 Va. 442, 403 S.E.2d 691 (1991); National R.R. Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va. 402, 404 S.E.2d 216 (1991); Osborne v. National Union Fire Ins. Co., 251 Va. 53, 465 S.E.2d 835 (1996); VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919 (2012).

Va. Code § 8.01-670.1 allows the appeal of interlocutory orders and decrees that are not otherwise applicable. Any party may file a petition in the circuit court and certify that:

1.	There is substantial grounds for difference of opinion;
2.	There is no clear controlling precedent;
3.	Determination of issue will be dispositive of material aspects of case; and
4.	The court and parties agree it is in best interest to seek interlocutory appeal.

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The Supreme Court may also review cases where a circuit court has granted or refused an injunction or, having granted an injunction, has refused to enlarge it. ⁴⁰

G. Disposal of Case. When a judgment or decree is reversed, modified, or affirmed by the Supreme Court, or when original cases are resolved on their merits, the Court's action must be stated in writing and preserved with the record of the case. ⁴¹ The Court may remand a case for a new trial. ⁴² In a civil case, the Court may enter final judgment but may not increase or decrease unliquidated damages. ⁴³

4.103 Court of Appeals. ⁴⁴

A. Number and Quorum. ⁴⁵ There are currently eleven judges on the Court of Appeals. The chief judge is elected by a majority vote of the judges of the Court of Appeals to serve a term of four years. The judges sit in panels of at least three judges each at locations designated by the chief judge. The presence of all judges is necessary to constitute a quorum.

The Court of Appeals sits en banc (i) when there is a dissent in the panel and an aggrieved party requests an en banc hearing and at least three other judges of the court vote in favor of the hearing or (ii) when any judge of any panel certifies in his or her opinion that the decision was in conflict with a prior decision of court or any panel thereof and three other judges of the court concur. The court may also sit en banc on its own motion when a majority of the court determines it is appropriate. The court may sit en banc with no fewer than eight judges.

B. Original Jurisdiction. ⁴⁶ The Court of Appeals has original jurisdiction in cases of contempt. A judge of the Court of Appeals may exercise initially the authority concerning injunctions under Va. Code § 8.01-626

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in any case over which it would have appellate jurisdiction under Va. Code §§ 17.1-405 and 17.1-406.

The Court of Appeals may issue writs of mandamus, prohibition, and habeas corpus in any case in which it would have appellate jurisdiction. ⁴⁷

C. Appellate Jurisdiction. ⁴⁸

1. By Petition. Any aggrieved party may present a petition for appeal to the Court of Appeals from:

a.	Any final conviction of a traffic infraction or a crime except where sentence of death was imposed;
b.	Any final decision of a circuit court on an application for a concealed weapons permit;
c.	Any final order involving involuntary treatment of prisoner pursuant to Va. Code § 53.1-40.1 or 53.1-133.04; or
d.	Any final order for declaratory or injunctive relief under Va. Code § 57-2.02. 49

Additionally, the commonwealth or any county, city, town may petition the Court of Appeals for an appeal in any case in which that part party could have petitioned Supreme Court for a writ of error under Va. Code § 19.2-317 and commonwealth in a criminal case pursuant to Va. Code § 19.2-398. ⁵⁰

2. Of Right. Any aggrieved party may appeal the Court of Appeals from:

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a.	Any final decision of a circuit court on appeal from an administrative agency (excluding school boards) 51 or a grievance hearing decision issued pursuant to Va. Code § 2.2-3005;
b.	Any final decision of the Virginia Workers' Compensation Commission (workers' compensation).
c.	Any final judgment, order, or decree involving affirmance or annulment of a marriage; divorce; custody; spousal or child support; the control or disposition of a child; or any other domestic relations matter arising under title 16.1 or title 20; adoption under Va. Code § 63.2-1200 et seq.; or a final grievance hearing decision issued pursuant to Va. Code § 2.2-3007(B); and
d.	Any interlocutory decree entered in any case in (a) through (c) above granting, denying an injunction, or adjudicating the principles of the cause. 52

3. Finality of Decision. Parties have no right to further appeal to Supreme Court...