[Posted June 16, 2010] Today’s analysis is dedicated to Julie, to whom I owe an enormous debt. Happy birthday, Jul.

I was in Richmond for most of yesterday, and I didn’t get back here in time to post analysis on yesterday’s extraordinary panel decision in Smith v. Commonwealth. If you’re purely a trial lawyer without a sense of intellectual curiosity about appellate jurisdiction, then you’ll probably find the 30-page decision (19 pages of which constitute a dissent) to be a snoozer. To those of us who ply our trade at the appellate level, this is a bolt of lightning. I’ll let you, my loyal readers, decide which camp you’re in.

There are several anomalies in this case, but we’ll start with the premise that not all appellate setbacks are created equal. From the standpoint of a lawyer representing a criminal appellant, having your appeal dismissed is a lot worse than having your petition refused. The latter likely means that you did everything correctly, but the court just didn’t see things your client’s way.

A dismissed petition, in contrast, usually means that the lawyer missed a key deadline or committed some other appellate faux pas and the appellate court decided it couldn’t even address the case on the merits. That generally results in habeas corpus petitions and bar complaints, and we don’t want those.

What, then, would leave our appellant, Smith, practically begging the court to dismiss his petition for appeal, instead of refusing it? It’s a statute that permits a delayed appeal where a lawyer makes a procedural mistake that results in an appellate dismissal. Usually that’s a statutory deadline such as the notice of appeal. Yesterday’s opinion turns on the 60-day deadline for filing a trial transcript. Evidently the lawyer missed that deadline, and Smith, hoping to take advantage of the statute and keep his case alive, asked the court to go ahead and dismiss it.

But the government doesn’t employ foolish lawyers, and Smith’s prosecutor must have noted that a number of CAV judges have observed the difference between dismissals and refusals, and have taken to simply refusing petitions, with the practical effect that the appellant can’t take advantage of the delayed-appeal statute. Smith’s prosecutors insisted that the court can and should simply refuse it.

Now the appellate procedural posture gets really interesting: The writ panel decided to grant the writ, and directed the parties to brief the question of whether the appeal should be dismissed or refused. Remember, this is a case in which a required transcript definitely was not timely filed, but the court is granting a writ anyway. (Why would they do that? “In order to generate a published opinion” is one sensible guess, since writ refusals don’t appear in the reporters.) Smith filed a brief that said, in essence, “Please, please dismiss my case,” which you must admit is something you don’t read every day in appellate briefs.

After briefing and argument, a divided panel decides that the right thing to do is to refuse, not dismiss. Judge Humphreys (joined by Judge Frank) relies on the recent SCV decision in Jay v. Commonwealth, which held that the appellate courts should not dismiss appeals for non-jurisdictional defects; instead, they should simply refuse the petitions. The majority sees no distinction between the non-jurisdictional rule at issue in Jay (dealing with the contents of the petition for appeal) and the transcript requirement at issue here.

Judge Petty dissents, and as both he and Judge Humphreys are excellent, engaging writers, the debate is actually fun to read (assuming you’re a procedure geek, of course). The ultimate focus of the discussion is what, exactly, jurisdictional requirements are, including digressions into how they’re born and who midwifes them. The majority takes the position that a court’s jurisdiction can only be defined extrinsically, either by the constitution or by the legislature. The only things that courts themselves can craft are rules, and a court can’t limit its own jurisdiction by fashioning rules that limit jurisdiction. Otherwise, you could have the legislature providing that courts have jurisdiction over a certain class of cases, and the courts disavowing that jurisdiction.

The dissent points (quite plausibly) to a string of decisions in which the Supreme Court has dismissed appeals for violation of deadlines that are found only in rules, not in statutes. It also points, equally plausibly, to good ol’ Rule 1:1, the 21-day limitation on the trial court’s “jurisdiction” over cases. You can hunt high and low in the Code of Virginia and in the constitution for something that imposes that limitation, but you won’t find it.

Both sides agree on one thing: The current state of Virginia jurisprudence on what’s a jurisdictional matter is a bloody mess, and needs to be clarified. In my opinion, this ruling makes it far more likely that we’ll get a definitive pronouncement on that vexing question; I haven’t checked to see what odds they’re laying in Vegas on either en banc rehearing or a Supreme Court writ, but whatever those odds are, I’m betting that we will see this case again. (Note: This website is for amusement purposes only. No actual wagering is sanctioned or encouraged here, and no, we don’t offer odds.)

Rules applicable to both courts (5:5 in the Supreme Court; 5A:3 in the Court of Appeals) have long defined certain appellate deadlines as “mandatory,” and have provided conditions under which the other ones may be extended, even after the fact. You’ll note that the rules don’t say, “mandatory and jurisdictional,” but the courts have often interpreted them in exactly those terms. Once upon a time, in teaching CLE classes, I made the mistake of describing things like the 30-day notice-of-appeal deadline as being “jurisdictional,” but after taking a close look at the rules, I stopped using that term. After this decision, I’m glad I made that change.

The arguments on the two sides of this issue are sometimes complex and often esoteric, but some of them make sense even at the visceral level. For example, I agree that a court shouldn’t be in the business of defining the limits of its own jurisdiction; the constitution (and at least in Virginia, the legislature) is the place for such definitions, and it’s up to the courts to adhere to those limits. (I believe that courts may interpret existing jurisdictional limits, but shouldn’t create new ones.) But Judge Petty’s dissent asks why not, and points out that there is no caselaw that holds that courts can’t do just that. I tend to side with the majority on this one, but I really wish I’d seen the briefs and heard the oral argument, which might have sharpened my focus on this point

By the way, that delayed-appeal statute was crafted in order to eliminate the need for appellants to go the habeas-corpus route when their lawyers demonstrably blow an appeal. My sense is that if Smith ultimately loses this issue, and the refusal of the petition sticks, then he may well have a garden-variety habeas avenue to get his appellate review on the merits anyway. In the meantime, he will have done all of us a favor by helping to resolve this issue.