UPDATE: legislation when entered into force on January 1, 2022 greatly expanded the jurisdiction of Virginia’s Court of Appeals and provides that, in almost all cases, a party that loses in the Circuit Court has the right to appeal to the Court of Appeals. The text below describes the jurisdiction of the Court of Appeals and the Virginia Supreme Court as it existed prior to January 1, 2022.
Virginia’s principal trial court, has Virginia has two appellate courts, the Court of Appeals and the Virginia Supreme Court, which is the highest court in Virginia. While the Virginia Supreme Court traces its origins to before the Revolutionary War, the Court of Appeals, which was created to reduce the caseload of the Supreme Court, was established only in 1985.
The Court of Appeals hears appeals from the circuit courts, Virginia’s principal trial level court, but only in certain types of cases. Most notably, the Court hears appeals in domestic relations and criminal cases and legal challenges to the decisions of most state agencies. There are eleven judges on the Court of Appeals, but most cases are heard by three judge panels of the Court.
Many cases must be appealed from the circuit courts directly to the seven-justice Virginia Supreme Court. For example, most circuit court decisions in civil cases (except for domestic relations cases) are appealable only to the Virginia Supreme Court, not to the Court of Appeals. In most cases the Supreme Court can also hear an appeal by a party who has lost his or her case in the Court of Appeals. However, in cases involving traffic infractions and misdemeanors in which no incarceration is imposed, in domestic relations matters, and in cases originating before state agencies (including the Virginia Workers’ Compensation Commission), the Court of Appeals’ decision is final and, absent highly unusual circumstances, no appeal to the Supreme Court is allowed.
Decisions of the Virginia Supreme Court (or of the Court of Appeals if the Virginia Supreme Court does not hear the case) can be appealed to the United States Supreme Court, but the U.S. Supreme Court seldom agrees to consider such cases. There is virtually no chance that the U.S. Supreme Court will hear an appeal from a Virginia court if the case deals only with the interpretation of Virginia state law rather than federal law.
In almost all cases the Virginia Supreme Court is not required to hear an appeal from a lower court—if it believes that there is clearly little merit to the appellants’ argument it can and will simply refuse to hear the case. In fact, the Supreme Court refuses to hear 75-80% of the appeals brought before it. Similarly, the Court of Appeals has discretion as to whether or not to hear most appeals made to it, although it is required to hear all appeals in domestic relations cases. Consequently, in Virginia a dissatisfied spouse in a divorce case has the right to have his or her appeal heard, while a person convicted of a serious felony does not. Persons convicted of crimes have only the right to argue that the Court of Appeals should hear their case.
As is the case in the federal system, the general rule in Virginia is that only “final” decisions are appealable. In other words, a litigant cannot appeal an unfavorable decision by a circuit court during the course of a lawsuit or a criminal case—a judge’s refusal to dismiss a case or a judge’s admission of certain evidence during a trial, for example—until the circuit court finally decides the entire case. Also, as in the federal system, a Virginia appellate court will generally only consider alleged errors made during a trial if the supposed error was objected to at the time it was made. Furthermore, in any appeal to the Virginia Supreme Court or the Court of Appeals, the party filing the appeal must pay careful attention to its “assignments of error”—its designation of the mistakes the party believes were made by the lower court. Virginia’s appellate courts will almost never consider an issue that was not clearly listed in an appealing party’s assignments of error, even if this means that a decision by a lower court that was clearly erroneous will be allowed to stand.