Code of Virginia

Creating a Report: Check the sections you'd like to appear in the report, then use the "Create Report" button at the bottom of the page to generate your report. Once the report is generated you'll then have the option to download it as a pdf, print or email the report.

Code of Virginia
Title 17.1. Courts of Record
Subtitle .
Chapter 4. The Court of Appeals
10/7/2022

Chapter 4. The Court of Appeals.

§ 17.1-400. Creation and organization; election and terms of judges; oath; vacancies; qualifications; incompatible activities prohibited; chief judge.

A. The Court of Appeals of Virginia is hereby established effective January 1, 1985. It shall consist of 17 judges who shall be elected for terms of eight years by the majority of the members elected to each house of the General Assembly. The General Assembly shall consider regional diversity in making its elections. Before entering upon the duties of the office, a judge of the Court of Appeals shall take the oath of office required by law. The oath shall be taken before a justice of the Supreme Court of Virginia or before any officer authorized by law to administer an oath. When any vacancy exists while the General Assembly is not in session, the Governor may appoint a successor to serve until 30 days after the commencement of the next regular session of the General Assembly. Whenever a vacancy occurs or exists in the office of a judge of the Court of Appeals while the General Assembly is in session, or when the term of office of a judge of the Court of Appeals will expire or the office will be vacant or vacated at a date certain between the adjournment of the General Assembly and the commencement of the next session of the General Assembly, a successor may be elected at any time during a session preceding the date of such vacancy by the vote of a majority of the members elected to each house of the General Assembly for a full term and, upon qualification, the successor shall enter at once upon the discharge of the duties of the office; however, such successor shall not qualify prior to the predecessor leaving office. No person shall be elected or reelected to a subsequent term under this section until he has submitted to a criminal history record search and submitted to a search of the central registry maintained pursuant to § 63.2-1515 for any founded complaint of child abuse or neglect and reports of such searches have been received by the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary. If the person has not met the requirement of filing in the preceding calendar year a disclosure form prescribed in § 2.2-3117 or 30-111, he shall also provide a written statement of economic interests on the disclosure form prescribed in § 2.2-3117 to the chairmen of the House Committee for Courts of Justice and the Senate Committee on the Judiciary.

All judges of the Court of Appeals shall be residents of the Commonwealth and shall, at least five years prior to the appointment or election, have been licensed to practice law in the Commonwealth. No judge of the Court of Appeals, during his continuance in office, shall 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.

B. The chief judge shall be elected by majority vote of the judges of the Court of Appeals to serve a term of four years.

C. If a judge of the Court of Appeals is absent or unable through sickness, disability, or any other reason to perform or discharge any official duty or function authorized or required by law, a (i) retired chief justice or retired justice of the Supreme Court of Virginia, (ii) retired chief judge or retired judge of the Court of Appeals of Virginia, or (iii) retired judge of a circuit court of Virginia, with his or her prior consent, may be appointed by the chief judge of the Court of Appeals, acting upon his own initiative or upon a personal request from the absent or disabled judge, to perform or discharge the official duties or functions of the absent or disabled judge until that judge shall again be able to attend his duties. The chief judge of the Court of Appeals shall be notified forthwith at the time any absent or disabled judge is able to return to his duties.

D. The chief judge of the Court of Appeals may, upon his own initiative, designate a (i) retired chief justice or retired justice of the Supreme Court of Virginia, (ii) retired chief judge or retired judge of the Court of Appeals of Virginia, or (iii) retired or active judge of a circuit court of Virginia, with the prior consent of such justice or judge, to perform or discharge the official duties or functions of a judge of the Court of Appeals if there is a need to do so due to congestion in the work of the court. Nothing in this subsection shall be construed to increase the number of judges of the Court of Appeals provided for in subsection A of this section.

E. Any retired chief justice, retired justice, retired chief judge or active or retired judge sitting on the Court of Appeals pursuant to subsection C or D shall receive from the state treasury actual expenses for the time he or she is actually engaged in holding court.

F. The powers and duties herein conferred or empowered upon the chief judge of the Court of Appeals may be exercised and performed by any judge or any committee of judges of the court designated by the chief judge for such purpose.

1983, c. 413, § 17-116.01; 1984, c. 701; 1987, c. 88; 1991, cc. 31, 442; 1998, c. 872; 2000, c. 8; 2004, c. 452; 2018, c. 578; 2021, Sp. Sess. I, c. 489.

§ 17.1-401. Senior judge.

A. Any chief judge or judge of the Court of Appeals who is eligible for retirement, other than for disability, with the consent of a majority of the members of the court first obtained, may elect to retire under the Judicial Retirement System (§ 51.1-300 et seq.) and be known and designated as a senior judge. In addition, any chief judge or judge of the Court of Appeals who is retired under the Judicial Retirement System (§ 51.1-300 et seq.) shall be subject to recall, with the consent of a majority of the members of the court, and may be known and designated as a senior judge.

B. Any chief judge or judge who has retired from active service, as provided in subsection A, may be designated and assigned by the Chief Judge of the Court of Appeals to perform the duties of a judge of the court. Such judge shall have all the powers, duties, and privileges attendant on the position for which he is recalled to serve.

C. While serving in such status, a senior judge shall be deemed to be serving in a temporary capacity and, in addition to the retirement benefits received by such judge, shall receive as compensation a sum equal to one-fourth of the total compensation of an active judge of the Court of Appeals for a similar period of service. A retired judge, while performing the duties of a senior judge, shall be furnished office space, support staff, a telephone, and supplies as are furnished a judge of the court.

D. A judge may terminate his status as a senior judge, or such status may be terminated by a majority of the members of the court. Each judge designated a senior judge shall serve a one-year term unless the court, by order or otherwise, extends the term for an additional year. There shall be no limit on the number of terms a senior judge may so serve.

E. Only seven retired judges shall serve as senior judges at any one time.

F. Nothing in this section shall be construed to increase the number of judges of the Court of Appeals provided for in § 17.1-400.

1993, c. 421, § 17-116.01:1; 1994, c. 401; 1998, cc. 190, 872; 2001, c. 295; 2004, c. 346; 2014, c. 776; 2018, c. 709; 2021, Sp. Sess. I, c. 489.

§ 17.1-402. Sessions; panels; quorum; presiding judges; hearings en banc.

A. The Court of Appeals shall sit at such locations within the Commonwealth as the chief judge, upon consultation with the other judges of the court, shall designate so as to provide, insofar as feasible, convenient access to the various geographic areas of the Commonwealth. The chief judge shall schedule sessions of the court as required to discharge expeditiously the business of the court.

B. The Court of Appeals shall sit in panels of at least three judges each. The presence of all judges in the panel shall be necessary to constitute a quorum. The chief judge shall assign the members to panels and, insofar as practicable, rotate the membership of the panels. The chief judge shall preside over any panel of which he is a member and shall designate the presiding judges of the other panels.

C. Each panel shall hear and determine, independently of the others, the petitions for appeal pursuant to § 17.1-406 or 19.2-398 and appeals in criminal and civil cases assigned to that panel.

D. 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 six 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 five other judges of the court concur in that view. The court may sit en banc upon its own motion at any time or upon the petition of any party, in any case in which a majority of the court determines it is appropriate to do so. The court sitting en banc shall consider and decide the case and may overrule any previous decision by any panel or of the full court.

E. The court may sit en banc with no fewer than 13 judges. In all cases decided by the court en banc, the concurrence of at least a majority of the judges sitting shall be required to reverse a judgment, in whole or in part.

1983, c. 413, § 17-116.02; 1984, c. 701; 1988, cc. 71, 478; 1998, c. 872; 2000, c. 8; 2001, c. 555; 2008, cc. 54, 156; 2021, Sp. Sess. I, c. 489.

§ 17.1-403. Rules of practice, procedure, and internal processes; promulgation by Supreme Court; amendments; summary disposition of appeals.

The Supreme Court shall prescribe and publish the initial rules governing practice, procedure, and internal processes for the Court of Appeals designed to achieve the just, speedy, and inexpensive disposition of all litigation in that court consistent with the ends of justice and to maintain uniformity in the law of the Commonwealth. Before amending the rules thereafter, the Supreme Court shall receive and consider recommendations from the Court of Appeals. The rules shall prescribe procedures (i) authorizing the Court of Appeals to prescribe truncated record or appendix preparation and (ii) permitting the Court of Appeals to dispense with oral argument if the parties agree that oral argument is not necessary or if the panel has examined the briefs and record and unanimously agrees that oral argument is unnecessary because (a) the appeal is wholly without merit or (b) the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.

1983, c. 413, § 17-116.03; 1984, cc. 632, 701; 1998, c. 872; 2021, Sp. Sess. I, c. 489; 2022, c. 714.

§ 17.1-404. Original jurisdiction in matters of contempt and injunctions, writs of mandamus, prohibition and habeas corpus.

The Court of Appeals shall have authority to punish for contempt. In addition, in such cases over which the court would have appellate jurisdiction, the court shall have original jurisdiction to issue writs of mandamus, prohibition and habeas corpus.

1983, c. 413, § 17-116.04; 1984, c. 701; 1998, c. 872; 2022, c. 307.

§ 17.1-405. Appellate jurisdiction — Administrative agency, Virginia Workers' Compensation Commission, and civil matter appeals.

Unless otherwise provided by law, any aggrieved party may appeal to the Court of Appeals from:

1. 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;

2. Any final decision of the Virginia Workers' Compensation Commission;

3. Except as provided in subsection B of § 17.1-406, any final judgment, order, or decree of a circuit court in a civil matter;

4. Any interlocutory decree or order pursuant to § 8.01-267.8;

5. Any interlocutory decree or order involving an equitable claim in which the decree or order (i) requires money to be paid or the possession or title of property to be changed or (ii) adjudicates the principles of a cause; or

6. Any final judgment, order, or decree of a circuit court (i) involving an application for a concealed weapons permit pursuant to Article 6.1 (§ 18.2-307.1 et seq.) of Chapter 7 of Title 18.2, (ii) involving involuntary treatment of prisoners pursuant to § 53.1-40.1 or 53.1-133.04, or (iii) for declaratory or injunctive relief under § 57-2.02.

1983, c. 413, § 17-116.05; 1984, c. 701; 1985, c. 283; 1990, c. 897; 1998, c. 872; 2000, cc. 830, 947, 1006; 2001, cc. 393, 420; 2021, Sp. Sess. I, c. 489; 2022, cc. 307, 714.

§ 17.1-406. Appeals in criminal matters; cases over which Court of Appeals does not have jurisdiction.

A. Any aggrieved party may appeal to the Court of Appeals from any final conviction in a circuit court of a traffic infraction or a crime. The Commonwealth or any county, city, or town may petition the Court of Appeals for an appeal pursuant to this subsection in any case in which such party previously could have petitioned the Supreme Court for a writ of error under § 19.2-317. The Commonwealth may also petition the Court of Appeals for an appeal in a criminal case pursuant to § 19.2-398.

B. In accordance with other applicable provisions of law, appeals lie directly to the Supreme Court from a final decision, judgment or order of a circuit court involving a petition for a writ of habeas corpus, from any final finding, decision, order, or judgment of the State Corporation Commission, and from proceedings under §§ 54.1-3935 and 54.1-3937. Complaints of the Judicial Inquiry and Review Commission shall be filed with the Supreme Court of Virginia. The Court of Appeals shall not have jurisdiction over any cases or proceedings described in this subsection.

1984, c. 701, § 17-116.05:1; 1985, c. 371; 1987, cc. 707, 710; 1988, c. 873; 1998, c. 872; 2007, c. 889; 2013, c. 746; 2019, c. 809; 2021, Sp. Sess. I, cc. 344, 345, 489.

§ 17.1-407. Procedures on appeal.

A. The notice of appeal in all cases within the jurisdiction of the court shall be filed with the clerk of the trial court or the clerk of the Virginia Workers' Compensation Commission, as appropriate, and a copy of such notice shall be mailed or delivered to all opposing counsel and parties not represented by counsel, to the clerk of the Court of Appeals, and to the Attorney General in criminal cases. The clerk shall endorse thereon the day and year he received it.

B. Appeals pursuant to § 17.1-405 and subsection A of § 17.1-406, other than petitions for appeal by the Commonwealth in criminal cases, are appeals of right. The clerk of the Court of Appeals shall refer each case for which a notice of appeal has been filed to a panel of the court as the court may direct.

C. Each petition for appeal by the Commonwealth in a criminal case shall be referred to one or more judges of the Court of Appeals as the court shall direct. A judge to whom the petition is referred may grant the petition on the basis of the record without the necessity of oral argument. The clerk shall refer each appeal for which a petition has been granted to a panel of the court as the court shall direct.

D. Before a petition for appeal by the Commonwealth is denied, counsel for the Commonwealth shall be entitled to state orally before a panel of the court the reasons why its appeal should be granted. If all of the judges of the panel to whom the petition is referred are of the opinion that the petition ought not be granted, the order denying the appeal shall state the reasons for the denial. Thereafter, no other petition in the matter shall be entertained in the Court of Appeals.

1984, c. 701, § 17-116.05:2; 1988, cc. 71, 479; 1998, c. 872; 2021, Sp. Sess. I, c. 489.

§ 17.1-408. Time for filing; notice; opening brief; petition.

The notice of appeal to the Court of Appeals shall be filed in every case within the court's appellate jurisdiction as provided in § 8.01-675.3. The opening brief in a criminal case shall be filed not more than 40 days after the filing of the record with the Court of Appeals. However, an extension may be granted in the discretion of the Court of Appeals on motion for good cause shown. In an appeal pursuant to subsection B or C of § 19.2-398, the petition for appeal shall be presented within the 40-day time limitation provided in this section.

Upon receiving a notice of appeal in a criminal case or, if notice of the appeal is received by the clerk prior to the entry of final judgment, upon entry of final judgment, the clerk of the circuit court shall cause a transcript to be prepared of the trial and any other circuit court proceedings, as requested by the appellant in the notice of appeal or by order of the circuit court, at the expense of the Commonwealth.

1984, c. 701, § 17-116.05:3; 1998, c. 872; 2021, Sp. Sess. I, c. 489; 2022, c. 714.

§ 17.1-409. Certification to the Supreme Court.

A. In any case in which an appeal has been taken to or filed with the Court of Appeals, the Supreme Court in its discretion, on motion of the Court of Appeals, or on its own motion, may certify the case for review by the Supreme Court before it has been determined by the Court of Appeals. The effect of such certification shall be to transfer jurisdiction over the case to the Supreme Court for all purposes.

B. Such certification may be made only when, in its discretion, the Supreme Court determines that:

1. The case is of such imperative public importance as to justify the deviation from normal appellate practice and to require prompt decision in the Supreme Court; or

2. The docket or the status of the work of the Court of Appeals is such that the sound or expeditious administration of justice requires that jurisdiction over the case be transferred to the Supreme Court.

1983, c. 413, § 17-116.06; 1984, c. 701; 1998, c. 872.

§ 17.1-410. Disposition of appeals; finality of decisions.

A. Each appeal of right taken to the Court of Appeals and each appeal for which a petition for appeal has been granted shall be considered by a panel of the court.

When the Court of Appeals has (i) dismissed an appeal in any case in accordance with the Rules of Court or (ii) decided an appeal, its decision shall be final, without appeal to the Supreme Court, in:

1. Appeals in criminal cases pursuant to subsections A or E of § 19.2-398 and § 19.2-401. Such finality of the Court of Appeals' decision shall not preclude a defendant, if he is convicted, from requesting the Court of Appeals or Supreme Court on direct appeal to reconsider an issue which was the subject of the pretrial appeal; and

2. Appeals involving involuntary treatment of prisoners pursuant to § 53.1-40.1 or 53.1-133.04.

3. Appeals involving denial of a concealed handgun permit pursuant to § 18.2-308.08.

B. All other decisions of the Court of Appeals shall be appealable to the Supreme Court in accordance with the provisions of § 17.1-411.

1983, c. 413, § 17-116.07; 1984, c. 701; 1987, c. 710; 1988, c. 873; 1998, c. 872; 2000, c. 830; 2019, c. 809; 2021, Sp. Sess. I, c. 489.

§ 17.1-411. Review by the Supreme Court.

Except where the decision of the Court of Appeals is made final under § 17.1-410 or § 19.2-408, any party aggrieved by a final decision of the Court of Appeals, including the Commonwealth, may petition the Supreme Court for an appeal. The Commonwealth, or any county, city, or town, may also petition the Supreme Court for review pursuant to § 19.2-317. The granting of such petitions shall be in the discretion of the Supreme Court.

1983, c. 413, § 17-116.08; 1997, c. 358; 1998, c. 872.

§ 17.1-412. Affirmance, reversal, or modification of judgment; petition for appeal to Supreme Court upon award of new trial.

A judgment, order, conviction, or decree of a circuit court or award of the Virginia Workers' Compensation Commission may be affirmed, or it may be reversed, modified, or set aside by the Court of Appeals for errors appearing in the record. If the decision of the Court of Appeals is to reverse and remand the case for a new trial, any party aggrieved by the granting of the new trial may accept the remand or proceed to petition for appeal in the Supreme Court pursuant to § 17.1-411.

1983, c. 413, § 17-116.09; 1984, c. 701; 1998, c. 872.

§ 17.1-413. Opinions; reporting, printing and electronic publication.

A. The Court of Appeals shall state in writing the reasons for its ruling in a case. Subject to rules promulgated under § 17.1-403 the Court in its discretion may render its decision by order or memorandum opinion. All orders and opinions of the Court of Appeals shall be preserved with the record of the case. Opinions designated by the Court of Appeals as having precedential value or as otherwise having significance for the law or legal system shall be expeditiously reported in separate Court of Appeals Reports in the same manner as the decisions and opinions of the Supreme Court. The clerk of the Court of Appeals shall retain in the clerk's office a list and brief summary of the case for all unpublished decisions and opinions of the Court of Appeals. The list of cases and summary shall be made available to any person upon request.

B. The Executive Secretary of the Supreme Court shall contract for the printing of the reports of the Supreme Court and the Court of Appeals and for the advance sheets of each court. He shall select a printer for the reports and prescribe such contract terms as will ensure issuance of the reports as soon as practicable after a sufficient number of opinions are filed. He shall make such contracts after consultation with the Department of General Services and shall distribute these reports in accordance with the applicable provisions of law. He shall also provide for the electronic publication on the Internet of the opinions of the Supreme Court and Court of Appeals subject to conditions and restrictions established by each court regarding the electronic publication of its opinions.

1983, c. 413, § 17-116.010; 1984, cc. 635, 701; 1997, c. 316; 1998, c. 872; 2021, Sp. Sess. I, c. 489.

§ 17.1-414. Facilities and supplies.

A. The Court of Appeals shall be housed in the City of Richmond and, if practicable, in the same building occupied by the Supreme Court. When facilities are required for the convening of panels in other areas of the Commonwealth, the chief judge of the Court of Appeals shall provide for such physical facilities as are available for the operation of the Court of Appeals. The Court of Appeals may use any public property of, or any property leased or rented to, the Commonwealth or any of its political subdivisions for the holding of court and for its ancillary functions upon proper agreement with the applicable authorities. The Court of Appeals also may use any federal courtroom, the moot courtroom of any accredited law school located in the Commonwealth, or any other facility deemed adequate for the holding of court and for its ancillary functions upon proper agreement with the applicable authorities. Any expense incurred for use of such facilities may be paid from the funds appropriated by the General Assembly to the Court of Appeals.

B. The Court of Appeals shall purchase such books, pamphlets, publications, supplies, furnishings, and equipment as necessary for the efficient operation of the Court, and the cost thereof shall be paid by the clerk from the appropriation for the operation of the Court of Appeals.

C. The Court of Appeals shall utilize the State Law Library provided by § 42.1-60.

1983, c. 413, § 17-116.011; 1984, c. 701; 1998, c. 872; 2020, cc. 67, 197.

§ 17.1-415. Compensation for judges; expenses.

The judges of the Court of Appeals shall receive from the Commonwealth an annual salary that shall be fixed in the general appropriations act and set at an amount equal to ninety-five percent of the annual salary fixed by law for justices of the Supreme Court. The Chief Judge of the Court of Appeals shall receive $3,000 per year in addition to the amount received by the other judges of the Court of Appeals. Each judge shall receive such amount as shall be fixed in the general appropriations act for all other expenses not otherwise reimbursed and incurred incident to the conduct of the business of the court.

1983, c. 413, § 17-116.012; 1998, c. 872; 2001, c. 35; 2006, c. 218.

§ 17.1-416. Clerk; seal; deputies and other employees; clerk's fees.

There shall be a clerk of the Court of Appeals, who shall be appointed by and serve at the pleasure of the Court of Appeals. The clerk shall adopt a separate seal of office for the Court of Appeals as approved by the Court of Appeals. The number and salaries of the deputies and other employees necessary to perform the duties of the Court of Appeals shall be fixed by the Court of Appeals. The Supreme Court by rule of court may promulgate uniform fees for services rendered by the clerk.

1983, c. 413, § 17-116.013; 1988, c. 391; 1998, c. 872.

§ 17.1-417. Support staff.

Each judge of the Court of Appeals shall be entitled to the services of such support staff as shall be authorized by and paid from the appropriation to the Court of Appeals.

1983, c. 413, § 17-116.014; 1984, c. 701; 1998, c. 872; 2001, c. 35.

§ 17.1-418. Fees charged by Clerk of the Court of Appeals.

The Clerk of the Court of Appeals shall charge the following fees:

1. For filing a notice of appeal or initiating any matter under the original jurisdiction of the court, $50 payable by check or money order to the Clerk of the Court of Appeals. Twenty-five dollars of each fee collected under this section shall be apportioned to the Courts Technology Fund established under § 17.1-132.

2. For making and certifying a copy of any record or document in the Clerk's office, ten cents per 100 words or twenty-five cents per page.

3. For verifying and certifying any record or document not actually copied by the Clerk, one-half of the fee for copying and certifying, which shall not, however, be applied to the certification of a copy of the record in the Court which has already been printed.

4. For authentication of any record, document or paper under the seal of the Court, fifty cents.

5. For copying and certifying any document or paper of less than 250 words, twenty-five cents.

6. For all other services not specifically mentioned above, the same fee that would be charged by a clerk of a circuit court in similar cases.

1992, c. 253, § 14.1-120.1; 1998, c. 872; 2006, cc. 623, 718.