SB 811 — Interlocutory orders, certain; jurisdiction of appeals, immunity.

SESSION INTRODUCEDSENATE 23101533DSUBSTITUTE I23105257D SENATE BILL NO.

811 OfferedAMENDMENT JanuaryIN 11,THE 2023NATURE NOF PrefiledA DecemberSUBSTITUTE 13,(Proposed 2022by Tthe ASenate BamendCommittee on the CodeJudiciary ofon VirginiaJanuary by25, adding2023) a(Patron sectionPrior numberedto 8.01-670.2,Substitute––Senator Petersen) A BILL to amend and reenact §§ 8.01-626, 8.01-675.5, and 17.1-405 of the Code of Virginia, relating to appealBe ofdit tRenacted interlocutoryby orders.the General Assembly of Virginia:rders;

––––––––––immunity. O Patron––Petersen D –––––––––– Referred to Committee on the Judiciary U –––––––––– C Be it enacted by the General Assembly of Virginia:

and1. that the Code of Virginia is amended by adding a section numbered 8.01-670.2 as follows:tedE § 8.01-626.

That §§ 8.01-626, 8.01-675.5, and 17.1-405 of the Code of Virginia are amended and reenacted as follows:

§ 8.01-626.

D When a circuit court (i) grants a preliminary or permanent injunction, (ii) refuses such an injunction, (iii) having granted such an injunction, dissolves or refuses to enlarge it, or (iv) enters an order reviewable pursuant to subsection B of § 8.01-675.58.01-675.5, 8.01-670.2, an aggrieved party may file a petition for reviewreviewr with the clerk of the Supreme Court within 15 days of the circuit court's order.

The aggrieved party shall serve a copy of the petition for review on the counsel for the opposing party, which may file a Theresponse petitionwithin forseven reviewdays shallfrom bethe accompanieddate byof aservice copyunless of the proceedingscourt beforedetermines thea circuitshorter court,e.time frame.

includingThe thepetition originalfor papersreview andshall be accompanied by a copy of the proceedings before the circuit court'scourt, ordermay respectingtake such action thereon as it considers appropriate under the injunction.circumstances of the case.prAme Court Nothing in this section shall be construed to prevent the Supreme Court from resolving a petTtion for review by an order joined by more than three justices.

The Supreme Court may take such action thereon as it considers appropriate under the circumstances of the case.

1 Nothing in this section shall be construed to prevent the Supreme Court from resolving a petition for review by an order joined by more than three justices.

§ 8.01-670.2.

Appeal of interlocutory orders and decrees;

immunity.

A.

When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order granting or denying a plea of sovereign, absolute, or qualified immunity that, if eligible for immediate appellate review.

Any person aggrieved by such order may, within 15 days of the entry of such order, file a petition for review with the Supreme Court in accordance with the procedures set forth in § 8.01-626.

B.

No petitions or appeals under this section shall stay proceedings in the circuit court unless the :

35 circuit court or appellate court orders such a stay upon a finding that (i) the petition or appeal could 36 be dispositive of the entire civil action or (ii) there exists good cause, other than the pending petition or 37 appeal, to stay the proceedings.

38 C.

The failure of a party to seek interlocutory review under this section shall not preclude review of interlocutory review under this section shall not preclude review of the issue on appeal from a final order, unless the order denying such interlocutory review provides for such preclusion.

E A.

When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order or decree that is not otherwise appealable, any party may file in the circuit court a motThe motion requestingshall thatinclude thea circuitconcise courtanalysis certifyof suchthe orderstatutes, rules, or decreecases forbelieved interlocutoryto appeal.be.

The motion shall include a concise analysis of the statutes, rules, or cases believed to be determinative of the issues and request that the court certify in writing that the order or decree involves clear,a controllingquestion precedent on point in the decisions of thelaw Supremeas Courtto ofwhich Virginia(i) orthere theis Courtsubstantial ofnoground Appealsfor difference of Virginia;opinion;

(iii)(ii) determinationtUere ofis theno issuesclear, willcontrolling beprecedent dispositiveon ofpoint ain materialthe aspectdecisions of the proceedingSupreme currentlyCourt pendingof beforeVirginia or the court;Bourt of Appeals of Virginia;

and(iii) (iv)determination itof isthe inissues thewill parties'be bestdispositive interestof toa seekmaterial anaspect of the interlocutory appeal.

T 36 Within 15 days of the entry of an order by the circuit court granting such certification, a petition for 37 appeal may be filed with the Court of Appeals.

If the Court of Appeals determines that the certification 38 by the circuit court has sufficient merit, it may, in its discretion, permit an appeal to be takentaTen from the decision.tory39 interlocutory order or decree and shall notify the certifying circuit court and counsel for thetheUparties parties of its SB811decThe 2 of 2 The consideration of any petition and appeal by the Court of Appeals shall be in accordance with the applicable provisions of the Rules of the Supreme Court of Virginia and shall not take precedence on the docket unless the court so orders.

E B.

When, prior to the commencement of trial, the circuit court has entered in any pending civil action an order granting or denying a plea of sovereign, absolute, or qualified immunity that, if granted, would immunize the movant from compulsory participation in the proceeding, the order is eligible for immediate appellate review.

Any person aggrieved by such order may, within 15 days of the entry ofofor such order, file a petition for review with the Supreme Court in accordance with the procedures set forth in § 8.01-626.8.01-626 of Appeals.

C.The clerk of the Court of Appeals shall assign the petition to a panel of the Court of Appeals, as the Court of Appeals shall direct, and the parties shall prosecute the appeal in the manner provided for in the Rules of Supreme Court of Virginia.

NoS petitionsC. or appeals under this section shall stay proceedings in the circuit court unless the circuit court or appellate court orders such a stay upon a finding that (i) the petition or appeal could be dispositive of the entire civil action or (ii) there exists good cause, other than the pending petition or appeal, to stay the proceedings.

D.No petitions or appeals under this section shall stay proceedings in the circuit court un8ess the dispositive of the entire civil action or (ii) there exists good cause, other than the pending petition ore appeal, to stay the proceedings.

C.1 D.

SB811S1 2 of 2 § 17.1-405.

2.

That the Supreme Court of Virginia shall promulgate rules no later than July 1, 2023, governing the appeal of an interlocutory order granting or denying a plea of sovereign, absolute, or qualified immunity.

Such rules shall be consistent with the procedures set forth in § 8.01-626 of the Code of Virginia, as amended by this act.