As discussed in our recent article, the Virginia General Assembly voted to allow most criminal defendants and civil litigants to have an appeal as of right to the Court of Appeals of Virginia starting on January 1, 2022. This means that Virginia lawyers will spend more time in the Commonwealth’s appellate courts and will need to rely more on appellate specialist attorneys. Vandeventer Black is releasing several articles on appellate practice to help businesses and lawyers navigate the complicated appellate world in Virginia. This article will focus on original jurisdiction in Virginia appellate courts.
The primary role of appellate courts, unsurprisingly, is to hear appeals. However, the Supreme Court of Virginia and Court of Appeals of Virginia do have original jurisdiction over some matters, meaning those proceedings may be filed directly with the appellate court and do not have to originate in trial court as most matters do. The Supreme Court and Court of Appeals have similar areas of original jurisdiction with some boundary lines drawn between them. Additionally, the matters for which the appellate courts have original jurisdiction tend to resemble the traditional oversight role of appellate courts.
Before diving too deeply, it is important to note that, though most of the Court of Appeals’ original jurisdiction is limited to cases within the scope of its appellate jurisdiction, the Court of Appeals’ appellate jurisdiction is set to expand substantially. Effective January 1, 2022, the General Assembly has expanded the Court of Appeals’ appellate jurisdiction to cover most civil matters among other smaller areas (e.g., applications for concealed weapons permits and involuntary medical treatment of prisoners). The underlying Code sections regarding the Court of Appeals’ original jurisdiction reference the jurisdiction of that court that will be expanded significantly, so the Court of Appeals will, in turn, have expanded original jurisdiction. Article VI, Section 1 of the Virginia Constitution is the font of the Supreme Court’s original jurisdiction, while the Court of Appeals draws its authority purely from statute. The bulk of the courts’ original jurisdiction are various forms of extraordinary writs – Writs of Habeas Corpus, Mandamus, Prohibition, and Actual Innocence.
Writs of habeas corpus are intended to review whether a person is imprisoned or otherwise detained without lawful authority. The Supreme Court shares with circuit courts original jurisdiction over petitions for a writ of habeas corpus “filed by a petitioner whose detention originated under criminal process.” The Court of Appeals has original jurisdiction in cases 1) regarding petitioners whose detention did not originate under criminal proceedings but are also 2) within the scope of those cases in its appellate jurisdiction. One hypothetical example of this narrow grant of original jurisdiction after the Court of Appeals’ expansion would be a habeas petition arising from an involuntary civil commitment.
A writ of mandamus directs a lower court or other government entity or official to perform a mandated ministerial act, but not to compel the exercise of a discretionary function. Examples include enforcement of the Virginia FOIA and election laws. While the Supreme Court has original jurisdiction to hear writs of mandamus generally, the Court of Appeals has concurrent original jurisdiction over writs of mandamus in cases in which the court would have appellate jurisdiction. Thus, the Court of Appeals will have original jurisdiction over a much larger class of petitions for a writ of mandamus after expansion.
More narrowly drawn than the broad writ of mandamus, a writ of prohibition directs a lower court or quasi-judicial body to cease proceedings regarding a matter with which that court lacks jurisdiction. A writ of prohibition is not applicable if the lower court has already taken the action it lacked jurisdiction to make. Similar to other writs, the Supreme Court’s jurisdiction is general, while the Court of Appeals’ jurisdiction is limited to those cases over which it has appellate jurisdiction, but as stated, that jurisdiction will greatly expand in coming months.
The Supreme Court and Court of Appeals also have concurrent original jurisdiction to hear petitions for review of injunctions. The appellate court can thereby review a lower court’s grant or denial of an injunction, provided that there is not a final judgment granting or denying such injunction, in which case the typical appeals process is the appropriate avenue to challenge the ruling. The Court of Appeals’ authority to hear these petitions is limited to cases within its appellate jurisdiction. While this limit on the Court of Appeals’ jurisdiction remains in the code, the amended version of § 8.01-626 that takes effect January 1, 2022 reads as though it presupposes that most such petitions will first go directly to the Court of Appeals.
Both courts can also hear petitions for Writs of Actual Innocence, with the Supreme Court hearing such writs based upon biological evidence, and the Court of Appeals hearing writs of actual innocence based on non-biological evidence.
Practitioners should be aware of these areas of original jurisdiction of Virginia’s appellate courts and how the recent changes in appellate jurisdiction will affect original jurisdiction of the respective appellate courts. However, it is important to keep in mind that the various writs and challenges to lower courts are generally strictly applied only when other avenues for relief or appeal are not available.
