Va. Code § 8.01-626: Appealing Adverse Immunity Rulings on an Expedited Basis

Virginia Code § 8.01-626 provides a mechanism for bypassing the typically lengthy appeals process for certain types of cases and decisions. Titled “Review of injunction; petitions for review,” this section of the Virginia Code not only applies to injunctions but also applies to orders “granting or denying a plea of sovereign, absolute, or qualified immunity that, if granted, would immunize the movant” from continued participation in the lawsuit. Va. Code § 8.01-670.2.

Sovereign immunity and common law immunity are two legal concepts concerning whether or not government officials and/or entities are subject to being sued in a court of law. When sovereign immunity (for the “sovereign,” such as a school board or elected officials acting in the scope of their official office) or common law immunity (for individuals employed by the sovereign for whom immunity naturally extends for acts in furtherance of their official positions, such as superintendents of school boards) applies, such immunity acts as a bar to the lawsuit itself. As a result, if the person or entity being sued claims to be cloaked with immunity, courts should make this determination at the earliest opportunity in the litigation. Typically, the question of immunity is brought before the court on a plea in bar early in the litigation.

If the court sustains (grants) the plea in bar, the party claiming immunity is dismissed from the lawsuit and the court’s order is a final order. However, if the court overrules (denies) the plea in bar, the party claiming immunity remains in the case and the court’s order is interlocutory. Courts generally disfavor interlocutory appeals and decline to review such appeals until the conclusion of the entire case. As a result, most cases simply proceed to trial and appeal the immunity ruling following trial and entry of a final order. However, there is another way…

Virginia Code § 8.01-626 authorizes direct filing of a petition for review to the Supreme Court of Virginia. Whichever party is unhappy with the trial court’s decision on the immunity ruling (which ruling is “an order reviewable pursuant to § 8.01-670.2”) has the ability to file a petition for review with the clerk of the Supreme Court within 15 calendar days of the trial court’s order. Copies of all relevant pleadings from the trial court must be filed along with the petition for review. An opposition may be filed 15 days thereafter.

If granted, the petition for review bypasses the Virginia Court of Appeals entirely and provides significant benefits:

1. Expedited Review – Immunity pleas are typically handled very early in a case through a plea in bar filed as the initial responsive pleading. The statute allows for an immediate appeal of a denial of immunity, potentially saving a year or longer compared to an appeal following trial on the merits. This is particularly important for officials who may face ongoing litigation that could hinder their ability to perform their duties.
2. Preservation of Resources – By enabling an appeal before the trial, § 8.01-626 helps prevent unnecessary litigation costs for both the defendant and the plaintiff. If immunity is granted on appeal, it can eliminate the need for a trial altogether, in addition to bypassing or significantly curtailing the discovery process.
3. Protection of Officials – The statute serves to protect government officials from the burdens of litigation when they act within the scope of their duties. This encourages responsible decision-making without the fear of personal liability. The "protection of officials" under Virginia Code § 8.01-626 is a crucial aspect of the statute, providing a safety net for government officials and employees as they execute their duties. If these officials make decisions in good faith and within their authority, they can appeal a denial of immunity and potentially avoid the financial and reputational repercussions of a lengthy civil lawsuit.
4. Reduction of Frivolous Lawsuits – The ability to appeal denials of immunity serves as a deterrent against frivolous lawsuits aimed at public officials. Plaintiffs may be less likely to pursue claims that are unlikely to succeed if officials can quickly contest the basis for liability.
5. Due Process Protection – Ensures that officials have a fair chance to defend their actions in court before being subjected to the full burden of litigation. This due process is essential in maintaining the integrity of public service roles, allowing officials to argue that their actions were justified and lawful.
6. Judicial Efficiency – Expedited, early review of immunity claims contributes to judicial efficiency by resolving immunity issues early in the process, which can streamline court dockets and reduce the time spent on cases that may not have merit if immunity is established.
7. Focus on Meritorious Claims – By resolving immunity questions upfront, the judicial system can focus on cases and claims with genuine merit. This prioritization helps ensure that court time and resources are devoted to cases that warrant judicial intervention, rather than those that lack a legitimate basis due to governmental immunity.

In summary, the judicial efficiency promoted by Virginia Code § 8.01-626 is multifaceted, facilitating faster resolutions, reducing unnecessary litigation, and allowing courts to operate more effectively. By addressing immunity issues early in the legal process, the statute enhances the overall functioning of the judicial system, benefiting both officials and the public.

Annie Lahren is a Pender & Coward attorney focusing her practice on civil litigation, immigration, labor and employment and family law.