Today, the Supreme Court of Virginia informed the parties that it would hear a brief oral argument on October 16, beginning at 1 p.m., on the petition filed by The Falls Church to review the judgment entered against it in Fairfax County Circuit Court. In Virginia, appeals from civil judgments are not a matter of right. Only the Supreme Court hears civil appeals, and it has discretion to refuse review. The purpose of the brief argument is to give the appellant's attorneys an opportunity to emphasize to the Court's writ panel (which will consist of just three of the Court's seven justices) the reasons why it should accept the case for review.
The argument is limited to just ten minutes. Only the appellant's attorneys (the ones who filed the petition seeking review) may argue, but the appellees, their attorneys, and members of the general public may attend and listen to the proceedings. There is more about the writ panel procedure at this link.
The last time this case was before the Virginia Supreme Court, in April 2010, only five of the Court's seven justices heard the case (including two retired senior justices), because four active justices recused themselves (most likely on the ground that they were Episcopalians). Of the active Justices who did not recuse themselves, Justice Cynthia D. Kinser is now the Chief Justice, and the former Chief Justice, Leroy R. Hassell, is no longer on the Court. The only other active Justice who sat on the prior appeal is Justice LeRoy F. Millette. The two senior justices who participated, Justice Elizabeth Lacy and Justice Lawrence Koontz, are still hearing appeals in the place of Justices who recuse themselves.
New on the Supreme Court since the April 2010 hearing are Justice Cleo E. Powell, who began her twelve-year term in October 2011, after serving both in the Circuit Court and on the Court of Appeals, and Justice Elizabeth A. McClanahan, who was sworn in in September 2011. Justice Powell belongs to the Baptist Church (her pastor is the current Mayor of Richmond); the religious affiliation of Justice McClanahan, if any, is unknown.
With Justices Lemons, Goodwyn and Mims likely to recuse themselves again, that would leave three, or potentially four, active Justices available to hear the case. Thus it is likely that one or more of the senior justices will again be called upon to participate, if the petition is accepted.
The decision whether or not to accept the appeal will not be announced for several more weeks after the writ panel meets on October 16.
That date, by the way, is the same day on which the Texas Supreme Court will hear oral arguments in both the Fort Worth and the San Angelo appeals.