|Supreme Court of Virginia|
|Authorized by||Virginia Constitution|
|Decisions are appealed to||Supreme Court of the United States|
|Judge term length||12 years|
|Website||Supreme Court of Virginia|
|Chief Justice of Virginia|
|Currently||Cynthia D. Kinser|
|Since||February 1, 2011|
The Supreme Court of Virginia is the highest court in the Commonwealth of Virginia. It primarily hears appeals from the trial-level city and county Circuit Courts, as well as the criminal law, family law and administrative law cases that go through the Court of Appeals of Virginia. It is one of the oldest continuously active judicial bodies in the United States. It was known as the Supreme Court of Appeals until 1970, when it was renamed the Supreme Court of Virginia.
The present Supreme Court of Virginia is made up of seven justices elected by a majority vote of both houses of the General Assembly for a term of twelve years. To be eligible for election, a candidate must be a resident of Virginia and must have been a member of the Virginia Bar for at least five years. Vacancies on the court occurring between sessions of the General Assembly may be filled by the Governor for a term expiring thirty days after the commencement of the next session of the General Assembly. Historically, the longest-serving member of the Court presided as Chief Justice. Since 2003, however, the Chief Justice has been chosen by a vote of the seven justices for a term of four years.
By statute, the court may designate a retired justice to serve as Senior Justice for a renewable one year term. The court may designate up to five senior justices. Senior justices sit with the court during regular sessions hearing writs and sitting on merit cases, especially when an active member of the court is recused from hearing a particular case. In addition, a retired justice who has not been designated as a senior justice may sit with the court by special designation.
History of the Supreme Court of Virginia
The Supreme Court of Virginia has its roots in the seventeenth century English legal system, which was instituted in Virginia as part of the Charter of 1606 under which Jamestown, Virginia, the first permanent English settlement in North America, was established. In 1623, the Virginia House of Burgesses created a five-man appellate court, which met quarterly to hear appeals from the lower courts. Meeting on the first day of March, June, September, and December, it became known as the Quarter Court.
The June term became unnecessary over the years, and in 1661, the Quarter Court became the General Court with original and appellate jurisdiction in both civil and criminal matters. It was a court of last resort for the Virginia colonists except in those rare circumstances when an appeal could be made to the King in England. Its members were appointed by the King on the basis of social standing, property, and the proximity of their estates to the Williamsburg capital. Though the judges were generally most capable, the majority possessed no formal legal training.
At the close of the Revolutionary War, the court system was reorganized. An act of the new General Assembly in 1779 created four superior courts, including the Supreme Court of Appeals, to be composed of judges of the other three existing courts: the Admiralty, the General, and the Chancery Courts. The Supreme Court of Appeals, which served as a model for the United States Supreme Court, first convened in Williamsburg on August 30, 1779. Shortly thereafter, the Court was moved to Richmond and held its sessions in the Henrico County Courthouse. Its jurisdiction was primarily appellate, and its members were elected by the legislature.
Among the court's first members were several distinguished legal scholars and jurists as well as leaders of the revolutionary period. Edmund Pendleton, who served Virginia as a delegate to the First Continental Congress, was selected by the judges as its first president. George Wythe, the mentor of Thomas Jefferson and signer of the Declaration of Independence, and John Blair, who later served on the United States Supreme Court, were also members of Virginia's first Supreme Court. Another notable member was William Fleming, who also served as the third governor of Virginia.
Until 1788, the judges did not render written opinions or give reasons for their decisions. Pendleton felt that the policy of no written opinions preserved a semblance of unity for the court and lent more credence to their decisions. Thomas Jefferson disagreed and began recording the decisions of the court in his reports. The court convened on the tenth day of April and met for twenty-four days unless they were able to complete their business sooner.
A legislative act of 1788 provided that the court should be entirely separated from the other courts with five judges to be elected by joint vote of both houses of the General Assembly. These men were commissioned by the Governor and appointed for life on good behavior. This resulted in placing the judges beyond control of the legislature once on the bench, and the court continued to function in this manner for more than half a century.
The Reform Convention of 1850–51 again reorganized the judiciary by limiting the terms of the justices to twelve years and providing for their election by popular vote. The state was divided into five judicial sections, and each candidate was required to be at least thirty-five years old and to reside within the section he wished to represent. The resulting Constitution of 1851 also required the court to state in writing its reasons for reversing or affirming a judgment or a decree.
Following the turmoil of the Civil War, the Constitution of 1870 altered the method of selecting judges and reestablished election by joint vote of both houses of the General Assembly, retaining the term of twelve years. The constitution also required that annual sessions be held away from Richmond in the localities of Wytheville, Staunton, and Winchester. This mandate from the days of horse and buggy travel continued into the twentieth century, with sessions being held in Staunton as late as September, 1970. In recent years, however, the court has held writ panel sessions outside of Richmond during the summer. These sessions are held for the convenience of the attorneys who would otherwise have to travel to Richmond and also to provide a higher profile for the court outside of Richmond.
By constitutional amendment in 1928, the number of justices was increased to seven and the title of the presiding officer of the court was changed from President to Chief Justice. At the same time, the amendment significantly increased the power given the Supreme Court.
The Constitution of 1970 changed the name of the court to its present title of Supreme Court of Virginia.
Judicial Performance Evaluation Program controversy
The Virginia General Assembly directed the Court by statute to create a judicial performance evaluation (JPE) program in order to have some objective measure for determining whether to reappoint judges at the end of their terms. In 2008, the reports on the first five judges to be evaluated in the program were sent to the chairmen of the Senate and House Courts of Justice committees; however, the Court also entered an order directing the chairmen to disseminate the reports only to the members of the legislature and to collect all copies at the end of the session and return them to the Court. The order expressly stated that the reports were confidential and could not be released to the public.
Rather than abide by the terms of this order, the chairman refused to accept the reports, and the committees declined to interview the five judges who were the subject of the report. Several legislators viewed the Court’s order as a violation of separation of powers. This controversy also led to the introduction of legislation that would take the evaluation program away from the Court’s control and, instead, make it subject to direct control by the General Assembly. Another bill was also introduced to limit the terms of the Chief Justice of the Court to two consecutive four-year terms. Not coincidentally, then-Chief Justice Leroy Rountree Hassell, Sr., who was at the center of the controversy, was serving his second term as head of the Court.
Neither of these bills passed, however the legislature did eliminate the specific line-item funding for the JPE program. Because the statute directing the Court to maintain the program remains in force, a number of members of the legislature indicated that they expected the Court to continue the program by finding funds from elsewhere in the Judicial Branch's budget. However, as the Court was already being required to make cuts in its budget due to the economic downturn, the Court advised the judges currently under evaluation that the program would be suspended at the end of the current fiscal year on June 30, 2009.
Jurisdiction of the Virginia Supreme Court
Although the Supreme Court of Virginia possesses both original and appellate jurisdiction, its primary function is to review decisions of lower courts, including the Court of Appeals, from which appeals have been allowed. Virginia does not allow an appeal to the Supreme Court as a matter of right except in cases involving the State Corporation Commission, the disbarment of an attorney, and review of the death penalty.
The court's original jurisdiction is limited to cases of habeas corpus (ordering one holding custody to produce the detained person before the court for the purpose of determining whether such custody is proper), mandamus (ordering the holder of an office to perform his duty), prohibition (ordering an action stopped in a lower court), and writs of actual innocence pursuant to Virginia's Code § 19.2–327.2. It also has original jurisdiction for challenges to decisions of the State Corporation Commission pursuant to Article IX of the Constitution of Virginia. The Supreme Court also has original jurisdiction in matters filed by the Judicial Inquiry and Review Commission relating to judicial censure, retirement, and removal of judges.
The court meets for five-day sessions beginning in September and continuing every seventh week thereafter until the completion of the June docket. All sessions are held in Richmond. During the six-week recess between each session, the justices conduct extensive legal research upon the cases awaiting decision, draft and review opinions, study cases in which petitions for appeal have been filed, conduct hearings on petitions for appeal, and attend to administrative duties.
In Virginia, appellate review before the Supreme Court is a two step process in most cases. First, a petition is filed with the Clerk of the Supreme Court. Petitions are then assigned to a law clerk or staff attorney for research and further preparation. Oral arguments are heard before a panel of three justices. In a limited number of cases, oral arguments may be heard by the Chief Staff Attorney who then presents the case to a panel of three justices for decision. The justices conduct a thorough review on the merits of each case with the assistance of memoranda summarizing the facts and basic issues of each appeal prepared by a law clerk or staff attorney. One justice may grant an appeal, even if the other two justices do not concur. Usually, three justices must concur before an appeal is denied (in rare cases, two justices may consider a case for which there has been no oral argument to the Court or which is being dismissed for procedural reasons). If the petition is denied, the appeal process ends (except that the appellant may request a rehearing) and the judgment of the lower court is affirmed. If the petition is granted, the second phase of the appeal proceeds with eventual argument of the cases before the full court.
During the second phase of an appeal and before each session of the court, the Clerk forwards to each justice a copy of the printed docket showing the cases to be heard at that session, together with a copy of the printed record and briefs filed in each case. This allows each justice to study the cases before they are argued orally.
A rotation system is used in designating the justices who are to prepare the opinions of the court. Prior to each session of the court, the assignment of the cases is determined by lot. Seven slips of paper are prepared by the Clerk of the Court with one slip bearing the number "I" and the remainder being blank. The slips are placed in a hat, and the member of the court (or a proxy) drawing the marked paper writes opinions in the first, eighth, and fifteenth, etc., cases on the docket. The justice immediately below him/her in seniority is responsible for the second, ninth, and sixteenth cases, and so on until all cases are assigned.
Sessions are held in the Courtroom of the Supreme Court with the justices being seated on the bench in order of seniority. The Chief Justice is seated in the center with the justice next in seniority on his right, the justice third in seniority on his left, and so on in alternating order such that the newest justice is seated on the far left. Attorneys for both sides are usually allowed fifteen minutes each to present their arguments. The justices often interrupt the attorneys to ask questions on some issue in the case. During a typical session of the court, the justices hear oral arguments each morning and convene that afternoon for a private discussion of the cases heard that morning. The member responsible for writing the opinion directs discussion of the case by asking the justice seated at the conference table to the right for comments on the case. The justices then proceed to comment in turn with the member designated to write the opinion speaking last. This discussion and debate provide the opinion writer guidance in preparing an opinion reflecting the views of a majority of the justices. Once a justice has completed a draft of his opinion, copies are circulated to the other members of the court and the Court Reporter. Opinion conferences are held prior to the beginning of each session. At this time, the justices conclude their review of the cases and the draft opinions receive final approval. Opinions are made public on the last day of each session of the court and are published in the Virginia Reports.
The court organization consists of the Clerk of the Supreme Court, the Executive Secretary of the Supreme Court, the Court Reporter, the Chief Staff Attorney of the Supreme Court, and the Law Librarian.
The Clerk is appointed by and serves at the pleasure of the Supreme Court. The Clerk's Office receives, processes, and maintains permanent records of all appeals and other official documents filed with the Court. The Clerk also maintains records of qualified attorneys and other administrative records. The current Clerk is Patricia Harrington. Her Chief Deputy is Doug Robelen.
The Executive Secretary is appointed by and serves at the pleasure of the Supreme Court. At one time, it was required that the Executive Secretary be a resident of the Commonwealth and a member of the Virginia Bar for at least five years. However, upon the retirement of the Robert Baldwin, the long severing Executive Secretary, in 2004, and after an extensive search for a replacement failed to find a suitable candidate who was an attorney, the latter requirement was waived so that Karl R. Hade, an employee of the Executive Secretary's Office of Judicial Information and Technology could assume the role. Hade is expected to usher in a new era of technology-enhanced court services. A new position of Counsel to the Executive Secretary was created to advise the Executive Secretary on legal matters. The purpose of the office is to provide assistance to the Chief Justice and the court in the administration of the judicial system.
The Chief Staff Attorney is appointed by and serves at the pleasure of the Supreme Court. He supervises a staff of permanent staff attorneys, law clerks and paralegals. The current Chief Staff Attorney is Gregory Lucyk, a former Virginia Assistant Attorney General.
Each justice has two personal law clerks who, along with other assigned duties, assists with legal research and perfection of opinions. The law clerks and staff attorneys are also principally responsible for reviewing the petitions for appeal which are filed as a prerequisite to the court granting an appeal.
The Court Reporter is a distinguished member of the faculty of one of the law schools in Virginia. His main responsibility is to supervise the compilation, indexing, printing and publication of the written opinions of the court in the Virginia Reports. He is assisted by a full-time staff attorney. There are over two hundred and seventy volumes of the Reports which, together with the Constitution of Virginia and the Acts of the General Assembly of Virginia (but subject to federal law) form the body of law by which all Virginians are governed. The current Court Reporter is Prof. Kent Sinclair of the University of Virginia School of Law.
The State Law Librarian supervises a library of approximately 100,000 volumes for the use of the court and the Bar. The current State Law Librarian is Gail Warren. The State Law Library also serves as an official Federal Depository Library, meaning that it receives official publications of the United States Government, such as the Congressional Record, so that the public may have access to these documents.
The Virginia judicial system
Article VI, Section 4, of the Constitution of Virginia places upon the Chief Justice of the Supreme Court of Virginia the responsibility of supervising the administration of the entire court system of the Commonwealth. The Chief Justice may temporarily assign any judge of a circuit court to any other circuit court and may recall a retired circuit court judge to active duty. The Chief Justice may also designate a retired judge, an active district court judge, or an active circuit court judge, with his/her consent, to assist with a congested workload in any district. Other responsibilities of the Chief Justice include presiding over the various committees charged with improving the administration of justice in Virginia.
The Virginia judicial system comprises the Supreme Court, a Court of Appeals, circuit courts in thirty-one judicial circuits, general district and juvenile and domestic relations district courts in thirty-two districts, and magistrates in offices in thirty-two districts. Three advisory/administrative bodies have been created by the legislature to aid in the operation of the court system: the Judicial Inquiry and Review Commission, the Judicial Council, and the Committee on District Courts.
The aim of the Virginia judicial system is to assure that disputes are resolved justly, promptly, and economically through a court system unified in its structures and administration. A competent staff of judges and court personnel, uniform rules and practices, and adequate funding are necessary to accomplish this function and to provide the citizens of the Commonwealth of Virginia with the best possible judicial system.
Though it is seldom used except on the admissions certificates issued to members of the Virginia State Bar, the Supreme Court has its own seal which is distinct from the Seal of Virginia. The Court's seal depicts the Goddess Justitia seated on a throne holding the Scales of Justice in her left hand while her right hand extends toward the figure of an ostrich (some descriptions identify the bird as an ibis, crane or egret), a symbol of mercy or rumination of thought. The origin of the seal is not known. During a ceremony to celebrate the Court's 225th anniversary, the seal was used for the first time in many years on the cover of the programs given to guests, and also appears on certificates of admission and other ceremonial documents issued by the Court. The lesser state seal, however, is depicted on the Justices' chairs and on a medallion over the entrance to the main courtroom.
Current Composition of the Court
|Cynthia D. Kinser||1951||1998||January 31, 2022||2011–2015|
|Donald W. Lemons||1948||2000||March 15, 2024||——|
|S. Bernard Goodwyn||1961||2008||January 31, 2020||——|
|Leroy F. Millette, Jr.||1949||2009||January 31, 2021||——|
|William C. Mims||1957||2010||March 31, 2022||——|
|Elizabeth A. McClanahan||September 1, 1959||2011||July 31, 2023||——|
|Cleo E. Powell||1958||2011||July 31, 2023||——|
|Charles S. Russell||1926||1982–1991||——||2004|
|Elizabeth B. Lacy||1945||1988–2007||——||2007|
|Lawrence L. Koontz, Jr.||1940||1995–2011||——||2011|
Living former members
- Hon. John Charles Thomas, former Justice (because Justice Thomas returned to the practice of law after he resigned from the court, he is not currently subject to recall for service on the Court)
- Hon. G. Steven Agee, former Justice (Justice Agee resigned from the Court in order to take his seat on the United States Court of Appeals for the Fourth Circuit; so long as he remains on active service in the federal court system, he will be ineligible for recall to service on the Court)
- Hon. Barbara Milano Keenan, former Justice (Justice Keenan resigned from the Court in order to take her seat on the United States Court of Appeals for the Fourth Circuit; so long as she remains on active service in the federal court system, she will be ineligible for recall to service on the Court)
- Hite v. Fairfax (1786)
- Martin v. Hunter's Lessee (1816)
- Buck v. Bell (1927)
- Naim v. Naim (1950)
- Lucy v. Zehmer (1954)
- Scull v. Virginia ex rel. Comm. on Law Reform and Racial Activities (1959)
- NAACP v. Button (1963)
- Loving v. Virginia (1967)
- Lund v. Commonwealth (1977)
- Landmark Communications v. Virginia (1978)
- Winston v. Lee (1985)
- United States v. Virginia ("The VMI case") (1996)
- Arlington County v. White (2000)
- Atkins v. Virginia (2002)
- Virginia v. Black (2003)
- Martin v. Ziherl (2005)
- Virginia v. Moore (2006)
- "House Resolution 8". Chief Justice Kinser is ineligible for re-election to another term as Justice when her term expires; pursuant to Code § 51.1-305(B1), she will have to retire or take senior status no later than February 1, 2022.
- There is no statutory limit to the number of four-year terms to which a Chief Justice may be elected. However, the Court has stated that the justices internally adopted a two-term limit. Frank Green (May 12, 2010). "Hassell to step down as the state's chief justice". Richmond Times—Dispatch. Retrieved April 1, 2013.
- "House Resolution 13". Justice Lemons will reach the mandatory retirement age before the expiration of his term; pursuant to Code § 51.1-305(B1), he will have to retire or take senior status no later than January 29, 2019.
- "House Resolution 11".
- "House Resolution 49". Justice Millette will reach the mandatory retirement age before the expiration of his term; pursuant to Code § 51.1-305(B1), he will have to retire or take senior status no later than January 28, 2020.
- "House Resolution 32".
- "House Resolution 530".
- "House Resolution 530".