NOTE ON APPELLATE COURTS’ HOLIDAY CLOSINGS

(Posted November 24, 2021) It’s that time of the year, when I can inform you about the holiday-closing schedules of the appellate courts here, and mention how that affects your filing deadlines.

State courts

The clerk’s offices of the Supreme Court and Court of Appeals of Virginia will close today at noon and will remain closed the rest of this week, reopening Monday, November 29. By operation of law, all filing deadlines that would fall between today and Sunday are automatically extended unto Monday. Here’s the statutory language:

When the last day for performing an act during the course of a judicial proceeding falls on a Saturday, Sunday, legal holiday, or any day or part of a day on which the clerk’s office is closed as authorized by an act of the General Assembly, the act may be performed on the next day that is not a Saturday, Sunday, legal holiday, or day or part of a day on which the clerk’s office is closed as authorized by an act of the General Assembly.

Code §1-210(B).

There’s more, and this year it has special meaning. The clerk’s offices will also be closed December 23 and 24 for the Christmas holiday, and December 30-31 for New Year’s. This last part is legally significant because of the pending change to an appeal-of-right system. Here’s why:

The upcoming trigger for an appeal that goes straight to the Court of Appeals for that of-right proceeding is the date of filing of the notice of appeal; not the date of entry of the appealable order. Without the court closures, the first trigger day when an appellant could go to the CAV would be December 2. But the closures mean that an appellant who gets an unfavorable appealable order next Tuesday, November 30, can legally file a notice of appeal on Monday, January 3, and get that appeal of right.

Two caveats here: First, if you want to take advantage of this, you must wait until January 3 to file your notice. I normally advocate filing things before the last possible day – I firmly believe that deadline days are for suckers – but here, it’s essential to do so. If you file a notice of appeal in late December for an appealable order that comes down, say, on December 15, you’ve waived your right to go to the CAV.

Second, please keep in mind that you file a notice of appeal in the trial court clerk’s office and not with the appellate Court. I accordingly caution you to check with your local clerk to find out if that office will be open on December 30. If it is, you have to file by the December 30 deadline, even if the appellate courts are closed.

I need to point out a rules quirk. In current appeals to both appellate courts from circuit courts, you file the notice in the circuit court. Rules 5:9(a), 5A:6(a). But in appeals to the CAV, you must also file the notice with the Clerk of the Court of Appeals. Rule 5A:6(c). This CAV rule doesn’t specify a deadline for filing, so I doubt that it’s jurisdictional. That also means that you probably can’t take advantage of this one-time quirk in the admittedly unlikely event that your local court is open on Thursday, December 30.

Fourth Circuit

The Fourth has announced that its clerk’s office will be closed tomorrow and Friday for Thanksgiving, with all deadlines kicked over to Monday, November 29. The court hasn’t mentioned anything about any December closings, but history suggests that that office will probably be shuttered for a single day for each holiday: December 24 and 31.