Code of Virginia

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Code of Virginia
Title 17.1. Courts of Record
Chapter 1. General Provisions
10/17/2021

Chapter 1. General Provisions.

§ 17.1-100. Judicial performance evaluation program.

A. The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By December 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary. Such report shall include the number of cases during the judge's term in which a judge imposed a sentence that is either greater or less than that indicated by the sentencing guidelines and did not file a written explanation of such departure required pursuant to subsection B of § 19.2-298.01. The Virginia Criminal Sentencing Commission shall provide such information to the Supreme Court by November 1.

B. The reporting requirement of this section shall become effective when funds are appropriated for this program and shall apply to the evaluation of any justice or judge who has had at least one interim evaluation conducted during his term. For any judge or justice elected or reelected on or after January 1, 2014, an interim evaluation of each individual justice or judge shall be completed during his term. Such interim evaluation shall be commenced by the judicial performance evaluation program no later than the midpoint of his term.

C. All records created or maintained by or on behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge are confidential and shall not be disclosed, except that any report provided to the General Assembly pursuant to this section shall be a public record that is open to inspection.

2002, c. 726; 2005, c. 633; 2014, c. 808; 2018, c. 727.

§ 17.1-101. Time within which a judge may qualify; failure vacates office.

Any judge of this Commonwealth may qualify at any time after receiving his commission and before the expiration of thirty days after the commencement of his term of office. If any judge does not receive his commission until after the commencement of his term of office he may qualify within thirty days from the date of receiving the same. The failure of any judge to qualify within these time limits shall vacate his office.

Code 1919, § 5978, § 17-2; 1998, c. 872.

§ 17.1-102. Justices and judges not permitted to practice law or seek or hold elective or other office.

No justice or judge shall, during his continuance in office, engage in the practice of law within or without the Commonwealth, or seek or accept any nonjudicial elective office, or hold any other office of public trust, or engage in any other incompatible activity.

1971, Ex. Sess., c. 50, § 17-3.1; 1998, c. 872.

§ 17.1-103. Residence requirements of judges.

Each judge of a circuit court shall, during his term of office, reside within the circuit to which he was appointed or elected and his removal therefrom shall vacate his office. Where the boundary of the jurisdiction of a court is changed by annexation or otherwise, a judge thereof shall not become disqualified from office or ineligible for reelection if, except for such annexation or change, he would otherwise be qualified.

Code 1919, § 5977, § 17-5; 1964, c. 108; 1970, c. 122; 1971, Ex. Sess., c. 50; 1998, c. 872.

§ 17.1-104. In election by court, votes to be recorded.

In every appointment or election by a court to fill any office or post, the votes shall be made in writing and recorded in the order or minute book.

Code 1919, § 5961, § 17-6; 1986, c. 294; 1998, c. 872.

§ 17.1-105. Designation of judges to hold courts and assist other judges.

A. If a judge of any court of record is absent, sick or disabled or for any other reason unable to hold any regular or special term of the court, or any part thereof, or to perform or discharge any official duty or function authorized or required by law, a judge or retired judge of any court of record may be obtained by personal request of the disabled judge, or another judge of the circuit to hold the court for the whole or any part of such regular or special term and to discharge during vacation such duty or function, or, if the circumstances require, to perform all the duties and exercise all the powers and jurisdiction as judges of such circuit until the judge is again able to attend his duties. The designation of such judge shall be entered in the civil order book of the court, and a copy thereof sent to the Chief Justice of the Supreme Court. The Chief Justice shall be notified forthwith at the time any disabled judge is able to return to his duties.

B. If all the judges of any court of record are so situated in respect to any case, civil or criminal, pending in their court as to render it improper, in their opinion, for them to preside at the trial, unless the cause or proceeding is removed, as provided by law, they shall enter the fact of record and the clerk of the court shall at once certify the same to the Chief Justice of the Supreme Court, who shall designate a judge of some other court of record or a retired judge of any such court to preside at the trial of such case.

C. If a vacancy occurs in the office of a judge of a court of record that fact shall be immediately certified by the clerk of such court to the Governor, who may, instead of appointing a successor at once, request the Chief Justice to designate a judge of some other court of record or a retired judge of any such court to carry out the duties of the office, if there are insufficient judges in the circuit to carry out the work of the court, until the office has been filled in the mode prescribed by law. If any judge so designated shall be prevented by the duties of his court, or by sickness, from performing the duties required, he shall so inform the Chief Justice, who may designate another judge in his place.

D. Due to congestion in the work of any court of record or when in his opinion the administration of justice so requires, the Chief Justice may, upon his own initiative or upon application of the judge desiring assistance, designate a judge or retired judge of any court of record to assist the judge in the performance of his duties and every judge so designated shall have the same powers and jurisdiction and be authorized to perform the same duties as the judge whom he is designated to assist.

E. Any judge or retired judge sitting under any provision of this section or sitting by designation on any three-judge court shall receive from the state treasury actual expenses for the time he is actually engaged in holding court, except in those cases where the payment of such expenses is otherwise specifically provided by law.

F. The powers and duties herein conferred and imposed upon the Chief Justice may be exercised and performed by any justice, or any committee of justices, of the Court, designated by the Chief Justice for such purpose.

G. If the chief judge of any circuit is unable to perform the duties required by law, he shall notify the Chief Justice, who shall designate another judge of the same circuit to perform such duties.

H. If any judge refuses unreasonably to serve as requested under the provisions of this section, the chief judge may report his refusal to the Judicial Inquiry and Review Commission.

I. As used in this section, "retired judge" means a judge eligible for recall pursuant to § 17.1-106.

Code 1919, § 5898, § 17-7; 1928, p. 746; 1936, p. 405; 1938, p. 138; 1948, p. 535; 1950, p. 52; 1954, c. 165; 1973, c. 544; 1998, c. 872; 2006, cc. 144, 306; 2014, c. 776.

§ 17.1-106. Temporary recall of retired judges.

A. The Chief Justice of the Supreme Court may call upon any judge of a circuit court who is retired under the Judicial Retirement System (§ 51.1-300 et seq.) and who has been found qualified within the preceding three years by the House Committee for Courts of Justice and the Senate Committee on the Judiciary to sit in recall either to (i) hear a specific case or cases pursuant to the provisions of § 17.1-105, such designation to continue in effect for the duration of the case or cases, or (ii) perform for a period of time not to exceed 90 days at any one time such judicial duties in any circuit court as the Chief Justice shall deem in the public interest for the expeditious disposition of the business of the courts.

B. It shall be the obligation of any retired judge who is recalled to temporary service under this section and who has not attained age 70 to accept the recall and perform the duties assigned. It shall be within the discretion of any judge who has attained age 70 to accept such recall.

C. Any judge recalled to duty under this section shall have all the powers, duties, and privileges attendant on the position he is recalled to serve.

D. Notwithstanding the provisions of subsection A, the Chief Justice may call upon and authorize any judge of a circuit court whose retirement becomes effective during the interim period between regularly scheduled sessions of the General Assembly to sit in recall either to (i) hear a specific case or cases pursuant to the provisions of § 17.1-105, and such designation shall continue in effect for the duration of the case or cases, or (ii) perform, for a period of time not to exceed 90 days at any one time, such judicial duties in any circuit court as the Chief Justice shall deem in the public interest for the expeditious disposition of the business of the courts.

1990, c. 832, § 17-7.01; 1998, c. 872; 2001, c. 59; 2014, c. 776; 2018, c. 709.

§ 17.1-107. Designation of judge to assist regular judge holding case under advisement for unreasonable length of time.

A. In any civil action, a judge of a circuit court who fails to act on any matter, claim, motion, or issue that has been submitted to the court for a decision or render a final decision in the action shall report, in writing, to the parties or their counsel on any such matter, claim, motion, issue, or action held under advisement for more than 60 days after such submission stating an expected time of a decision. In any civil action in which a judge fails to report as required by this section or fails to render a decision within the expected time stated in the report, any party or their counsel may notify the Chief Justice of the Supreme Court. Whenever the Chief Justice of the Supreme Court, or any justice designated by him, has reasonable cause to believe that any judge of a court of record may be holding any matter, claim, motion, issue, or case under advisement for an unreasonable length of time, he shall inquire into the cause of such delay, and if he finds it necessary in order to expedite the administration of justice, he shall designate a judge or retired judge of a court of record to assist the regular judge in the performance of his duties.

B. Complaints made hereunder shall be absolutely privileged and the name of the complainant shall not be disclosed without his consent.

1962, c. 285, § 17-7.1; 1973, c. 544; 1998, c. 872; 2008, c. 813; 2014, c. 62.

§ 17.1-108. Reserved.

Reserved.

§ 17.1-109. Judges pro tempore.

Any cause pending in a circuit court, when the judge of the court is disqualified or unable for any reason to try the same, may be tried by a judge pro tempore who shall be a citizen of this Commonwealth and shall be licensed to practice law in this Commonwealth.

Code 1919, § 5899, § 17-8; 1996, c. 616; 1998, c. 872.

§ 17.1-110. Their appointment and powers.

When all the parties to any cause pending in a circuit court, or their attorneys of record, shall enter into a written stipulation appointing a judge pro tempore for the trial of the cause and approved by a judge of said court in his discretion, and the person appointed shall take and subscribe an oath faithfully to try and determine the issues joined between the parties, the clerk of the court in which such action or suit is pending shall record the stipulation and oath. The person appointed shall be vested with the same power and authority and shall be charged with the same duties as to the cause in and as to which he is appointed as though he were the regularly elected and qualified judge of such court. However, the parties may, by the terms of their stipulation, limit the power of the judge pro tempore to the trial and determination of any specified issue or issues, either of law or fact and in such cases the oath of the person appointed shall correspond to the terms of the stipulation.

The provisions of this section and § 17.1-109 shall be in addition to the provisions of § 17.1-105.

Code 1919, § 5900, § 17-9; 1977, c. 237; 1996, c. 616; 1998, c. 872.

§ 17.1-111. Compensation.

Judges pro tempore shall serve without compensation from any public treasury, but it shall be lawful for the parties to agree upon and express in their written stipulation any mode or amount of compensation, together with any further agreement as to the taxing of the same as costs.

Code 1919, § 5901, § 17-10; 1998, c. 872.

§ 17.1-112. Sheriff to attend court as its officer.

Neither the Supreme Court nor the Court of Appeals shall be attended by any sheriff in the City of Richmond. In all other cases, the sheriff of the county or city in which any court is held shall attend it and act as its officer.

Code 1919, § 5963, § 17-13; 1984, c. 703; 1998, c. 872.

§ 17.1-113. Places of holding courts; certain orders and decrees entered elsewhere.

Every circuit court for any county or city shall be held at the courthouse of such county or city, except when some other place is prescribed by law or lawfully appointed. However, the judge of the circuit court of any county or city may enter any order or decree at his home or office or elsewhere within his circuit.

In the interest of justice, the chief judges of the Twenty-first and the Twenty-third Judicial Circuits may, by order, designate one or more of the courtrooms of any circuit court within their respective circuits as the courtroom or courtrooms in which civil or criminal cases whose venue is laid within the circuit may be tried. In criminal cases, jurors summoned to appear at such courtroom or courtrooms shall reside in the locality in which the crime was committed, except as otherwise provided by law.

Code 1919, § 5964, § 17-14; 1940, p. 325; 1998, c. 872; 2005, c. 389.

§ 17.1-114. When and how changed.

Whenever in the opinion of a circuit court or the judge thereof, the courthouse or other place wherein it is required to hold its session cannot or should not for any reason be occupied by it, or if the same has been destroyed, or is being repaired, renovated, or enlarged, the court may hold its session at such places within the geographical limits of the same judicial circuit as the court may direct by an order to its clerk. The court shall continue to hold its sessions in such other place until the courthouse or its lawful place of session can be occupied, or until another has been built and fitted for the court's occupation, or until such repairs, renovations or additions have been completed, or until some other place is designated by the court. Except as provided in subsection C of § 17.1-330 or this section or as agreed to by all parties to an action, no session of a circuit court shall be held outside the geographical limits of the county or city of which it is the court.

In the interest of justice, the chief judges of the Twenty-first and the Twenty-third Judicial Circuits may, by order, designate one or more of the courtrooms of any circuit court within their respective circuits as the courtroom or courtrooms in which civil or criminal cases whose venue is laid within the circuit may be tried. In criminal cases, jurors summoned to appear at such courtroom or courtrooms shall reside in the locality in which the crime was committed, except as otherwise provided by law.

Code 1919, § 5965, §§ 17-15, 17-18; 1962, c. 405; 1966, c. 348; 1971, Ex. Sess., c. 156; 1998, c. 872; 2005, c. 389; 2010, cc. 451, 757.

§ 17.1-115. How order or warrant making change posted.

A copy of every order of court of a judge issued under § 17.1-114 shall, if practicable, be posted by the clerk of the court at the door of his office and at the courthouse door, and also at the place where the court has designated that its session be held.

Code 1919, § 5966, § 17-16; 1998, c. 872.

§ 17.1-116. Change of place or time for holding session of Supreme Court.

Whenever, by reason of the destruction, possession by a public enemy, or infection with contagious disease of any building in which the Supreme Court is to be held, it seems necessary to the Chief Justice, he shall, by proclamation, designate a place at which the Court shall be held, so long as such reason may continue, and when the circumstances require it, may postpone the time for holding the Court. In the case of the destruction of the building, the place designated by the Chief Justice shall be within the same county, city or town as the destroyed building. A copy of such designation shall be sent to the clerk and to each of the justices of the Court and published in some newspaper at the seat of government and near the regular place of session of the Court.

Code 1919, § 5967, § 5968, §§ 17-17, 17-18; 1962, c. 405; 1966, c. 348; 1971, Ex. Sess., c. 156; 1998, c. 872.

§ 17.1-117. Certain acts of courts held at improper places confirmed.

When any court has at any time prior to June 13, 1919, been held at a place not authorized by law, in consequence of the destruction of the courthouse, or other unavoidable cause, the acts and proceedings of such court shall be as valid as if the court had been held at the proper place.

Code 1919, § 5969, § 17-19; 1998, c. 872.

§ 17.1-118. Display of flags in courtrooms.

There shall be displayed inside each courtroom of a court of record in the cities and counties of the Commonwealth the flag of the United States of America and the flag of the Commonwealth of Virginia. The governing bodies of the respective counties and cities shall make provision for such display and may accept gifts or flags for such purpose.

1954, c. 132, § 17-19.1; 1998, c. 872.

§ 17.1-119. Courts may adjourn for a period not exceeding thirty days.

Any court of record may at any term, whether regular or special, adjourn from time to time for a period not exceeding thirty days until the business before it is dispatched, or until the end of its term. The judge of the court shall, during the period of such adjournment, have the power and authority to hold regular or special terms at any other place as if there had been a final adjournment of such term.

Code 1919, § 5959, § 17-21; 1998, c. 872.

§ 17.1-120. Adjournment from day to day; effect of failure to sit on day to which adjourned.

After a court is opened it shall, during the term, adjourn from day to day, unless the court shall order otherwise, and if it fails to sit on any day to which it is adjourned it may nevertheless sit on any subsequent day of the term.

Code 1919, § 5970, § 17-23; 1944, p. 399; 1998, c. 872.

§ 17.1-121. Effect of change of time or place of court or failure to sit generally.

When the place for holding any court or the day for commencing any term is changed or when a court fails to sit on any day appointed for it or to which it may have adjourned there shall be no discontinuance, but every notice, recognizance or process given, taken or returnable to the day on which the failure occurred, or to any day between that day and the next that the court may sit, or to the day and place as it was before such change, and all matters ready for the court to act upon if it had been held on any such day shall be in the same condition and have the same effect as if given, taken, returnable, or continued to the substituted term or place, or to the next day of the same term that the court may sit, or to the next court in course, as the case may be.

In the interest of justice, the chief judges of the Twenty-first and the Twenty-third Judicial Circuits may, by order, designate one or more of the courtrooms of any circuit court within their respective circuits as the courtroom or courtrooms in which civil or criminal cases whose venue is laid within the circuit may be tried. In criminal cases, jurors summoned to appear at such courtroom or courtrooms shall reside in the locality in which the crime was committed, except as otherwise provided by law.

Code 1919, § 5971, § 17-24; 1998, c. 872; 2005, c. 389.

§ 17.1-122. Matters not determined to stand continued.

All causes on the docket of any court and all other matters ready for its decision which have not been determined before the end of a term, whether regular or special, shall, without any order of continuance, stand continued to the next term.

Code 1919, § 5972, § 17-25; 1998, c. 872.

§ 17.1-123. How orders are recorded and signed.

A. All orders that make up each day's proceedings of every circuit court shall be recorded by the clerk in a book known as the order book. Orders that make up each day's proceedings that have been recorded in the order book shall be deemed the official record pursuant to § 8.01-389 when (i) the judge's signature is shown in the order, (ii) the judge's signature is shown in the order book, or (iii) an order is recorded in the order book on the last day of each term showing the signature of each judge presiding during the term.

B. If a judge dies, retires or resigns before orders recorded in the order book have been authenticated, the orders shall have the same force and effect and shall be deemed authenticated when the signature of another judge of the same circuit court or the signature of the judge appointed to fill the vacancy or to preside over the court until the vacancy is filled is authenticated as provided in subsection A.

Code 1919, § 5962, § 17-27; 1940, p. 364; 1954, c. 175; 1966, c. 385; 1990, c. 566; 1998, c. 872; 2014, c. 291.

§ 17.1-124. Order books; automated systems.

Except as otherwise provided herein, each circuit court clerk shall keep order books or, in lieu thereof, an automated system recording all proceedings, orders and judgments of the court in all matters, all decrees, and decretal orders of such court and all matters pertaining to trusts, the appointment and qualification of trustees, committees, administrators, executors, conservators and guardians shall be recorded, except when the same are appointed by the clerk of court, in which event the order appointing such administrators or executors, shall be made and entered in the clerk's order book. In any circuit court, the clerk may, with the approval of the chief judge of the court, by order entered of record, divide the order book into two sections, to be known as the civil order book and the criminal order book. All (i) proceedings, orders, and judgments of the court in all matters at civil law and (ii) trust fund orders, which shall include money held by a general receiver of the court pursuant to § 8.01-582 or by the clerk of the circuit court pursuant to § 8.01-600, shall be recorded in the civil order book, and all proceedings, orders and judgments of the court in all matters at criminal law shall be recorded in the criminal order book. In any proceeding brought for the condemnation of property, all proceedings, orders, judgments and decrees of the court shall be recorded in the civil order book of the court. The recordation prior to January 1, 1974, of all proceedings, orders, judgments and decrees in such cases, whether entered in the common-law order book or the chancery order book of any court, is hereby declared a valid and proper recordation of the same. Orders in cases appealed from the juvenile and domestic relations district courts shall be maintained as provided in this section and, to the extent inconsistent with this section, § 16.1-302.

The clerk shall ensure that these order books have been microfilmed or converted to or created in an electronic format. Such microfilm and microphotographic processes and equipment shall meet state microfilm standards, and such electronic format shall follow state electronic records guidelines, pursuant to § 42.1-82. The clerk shall further provide the master reel of any such microfilm for storage in the Library of Virginia and shall provide for the secured, off-site back up of any electronic copies of such records.

1926, p. 750, § 17-28; 1932, p. 765; 1936, p. 557; Michie Code 1942, § 5962a; 1962, c. 233; 1973, c. 9; 1974, c. 524; 1990, c. 258; 1997, c. 801; 1998, c. 872; 2005, c. 681; 2007, c. 567; 2010, cc. 717, 760; 2014, c. 460; 2017, c. 35.

§ 17.1-125. Civil order book.

The clerk shall record (i) trust fund orders pursuant to §§ 17.1-123 and 17.1-124 and (ii) the annual trust fund report required pursuant to subsection G of § 8.01-600 in a book known as the civil order book, in which shall be recorded all reports, orders, and decrees concerning moneys received or to be received by general receivers pursuant to § 8.01-582 and by clerks pursuant to § 8.01-600.

1988, c. 553, § 17-28.1; 1998, c. 872; 2017, c. 35.

§ 17.1-126. Repealed.

Repealed by Acts 2001, c. 836, cl. 2.

§ 17.1-128. Recording evidence and incidents of trial in certain civil cases and cost thereof; cost of transcripts; preservation of original notes or records; certified transcript prima facie correct.

In all civil cases, the court or judge trying the case may by order entered of record provide for the recording verbatim of the evidence and incidents of trial either by a court reporter or by mechanical or electronic devices approved by the court. The expense of reporting and recording the trial of a civil case shall be paid by the litigants in the manner and in the proportion as the court may in its discretion direct. A transcript of the record, when required by any party, shall be paid for by such party. The court on appeal may provide that such cost may, in civil cases, be reimbursed to the party prevailing. The failure to secure the services of a reporter, or the failure to have the case reported or recorded for any other reason, shall not affect the proceeding or trial. The reporter or other individual designated to report and record the trial shall preserve the original shorthand notes or other original records for not less than five years. The transcript in any case certified by the reporter or other individual designated to report and record the trial shall be deemed prima facie a correct statement of the evidence and incidents of trial.

The administration of this section shall be under the direction of the Supreme Court of Virginia.

1952, c. 642, § 17-30.1; 1956, c. 699; 1962, c. 419; 1964, c. 533; 1968, c. 358; 1975, c. 640; 1984, c. 752; 1994, c. 496; 1998, c. 872.

§ 17.1-128.1. Recording evidence and incidents of trial in certain misdemeanor cases.

In any misdemeanor case in circuit court for which no recording verbatim of the evidence and incidents of trial either by a court reporter or by mechanical or electronic devices approved by the court will be used, the court shall allow the defendant, the Commonwealth, or both to record the evidence and incidents of trial by mechanical or electronic device to aid counsel in producing a thorough, complete, and accurate written statement of facts in lieu of transcript for purposes of any appeal. The recording shall not be made a part of the record unless otherwise permitted.

2014, c. 78.

§ 17.1-129. Filing date and time to be noted on papers.

Whenever a pleading in any civil action is filed in a circuit court, the clerk or his designee shall stamp or mark the date and time of filing on the face of such pleading.

1985, c. 369, § 17-30.3; 1998, c. 872.

§ 17.1-130. Execution of judgments and decrees of courts no longer existing.

Every judgment, decree or order entered in a court which has ceased to exist shall be executed by the court in the custody of whose clerk the record of such judgment, decree or order may be. Every judgment, decree or order of the Supreme Court effecting any judgment, decree or order shall be certified by the court and the case shall be proceeded in as if such court had rendered the same.

Code 1919, § 5974, § 17-32; 1998, c. 872.

§ 17.1-131. Jurisdiction to issue writs of mandamus in matters pertaining to action of service district commission.

The circuit court of a county or city having original and general jurisdiction of civil actions in which county or city is situated the seat of government of a service district, shall have original exclusive jurisdiction to issue writs of mandamus in all matters or proceedings arising from or pertaining to the action of the service district commission.

1968, c. 225, § 17-32.1; 1998, c. 872; 2005, c. 681.

§ 17.1-132. Courts Technology Fund.

A. There is hereby established the Courts Technology Fund as a special nonreverting fund to be administered by the Supreme Court of Virginia. A portion of the sums collected pursuant to §§ 16.1-69.48:2, 17.1-275, 17.1-328, and 17.1-418 as specified in each section shall be deposited into the state treasury to the credit of the Fund.

B. The Fund shall be established on the books of the Comptroller. Any funds remaining in the Fund at the end of the biennium shall not revert to the general fund, but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund. Except for transfers pursuant to this section, there shall be no transfers out of the Fund, including transfers to the general fund.

C. Money in the Fund shall be allocated at the direction of the Supreme Court of Virginia to staff, advance, update, maintain, replace, repair, and support the telecommunications and technology systems of the judicial system. The revenue raised in support of the Fund shall not be used to supplant current funding to the judicial branch.

2006, cc. 623, 718.