SOME SIGNIFICANT APPELLATE DEVELOPMENTS

 

[Posted May 21, 2014] Careful observers may have noted a couple of recent changes to appellate rules and statutes. These changes mostly reflect prior practice.

 

Amended statute on court closures

You’’ve become accustomed to seeing from me an occasional post noting that the clerk’s offices are closed, usually for weather emergencies, and pointing out the effect of that closing on appellate deadlines. There’’s a statute, Code §1-210, that extends filing deadlines (not just appellate ones) when a clerk’’s office is closed “as authorized by an act of the General Assembly.”

 

The problem with this is that when the courts are closed due to a storm, such as a hurricane or heavy snowfall, the legislature doesn’’t make that call; the Governor does. The courts have always treated such closures as triggering the automatic extension, even though the language doesn’’t specify that.

 

Last month, the Governor signed a bill that had passed the legislature without a dissenting vote, to address this anomaly. The new law, which takes effect July 1, 2014, provides that any day on which the Governor closes state government shall be considered a legal holiday. I understand that this entirely sensible measure was suggested by my friend Sandy Sanders of Lantagne Legal Printing.

 

So, does this close all the loopholes? Well, maybe not. For purposes of appellate courts, it likely does, because the clerk’s offices are in Richmond, where most government offices are located. But what about a storm that affects another portion of a state? I’’ve seen localized storms that have shuttered clerk’s offices here in Tidewater, for example. In those instances, clerk’s’ offices down here have closed on a day when the state offices in Richmond are unaffected. Many appellate documents have to be filed in local (trial court) clerk’’s offices –– notices of appeal, appeal bonds, transcripts, etc. –– and if a local court or clerk makes the decision to shut down, this new provision merely highlights the fact that there’’s no statutory authority for an extension.

 

Tinkering with assignments of error

Everyone knows better than to tinker with assignments; what actually got tinkered with last week were the rules relating to them. On Friday, without any fuss, the Supreme Court announced changes in the rules in the SCV and the CAV relating to how assignments are to be presented and what happens when someone inevitably screws one up. As I mentioned above, these changes look to be broader than they are; the rules now reflect pretty much what the Supreme Court has been doing all along.

 

The most noticeable change is to Rule 5:17(c), the fire-breathing dragon that has bedeviled appellants for a generation or more. There are several landmines in this portion of the rule. For example, if a petition doesn’’t include assignments of error at all, it gets dunked without ceremony. Avoiding that landmine is easy. But if your assignments are “insufficient,” that appeal dies, too.

 

As I’’ve explained here in the past few years, the justices have handed down maddeningly inconsistent rulings on how much specificity is required or advisable, so it’’s hard to lay down any bright-line rules. Suffice to say that there is a Goldilocks zone where an assignment isn’’t too vague and isn’’t too specific; it’’s just right.

 

Now, appeals don’’t get tossed because of truly minor defects in assignments; that, too, has been the case for quite a while. If your table of contents lists the assignments on the wrong page, no one is going to throw you out of court (even so, do try to get it right).

 

The court’’s relatively recent requirement to include an “exact reference” to the place in the record where the appellant preserved the issue for review has caught more than a few litigants. Omitting that reference was once held by a CAV panel to deprive the appellate court of jurisdiction over the appeal; the en banc court later took the opposite course, holding that the “exact reference” was ancillary to, and not part of, the assignments. Chatman v. Commonwealth, 61 Va. App. 618 (2013) (en banc).

 

The most visible of these changes formalizes the Chatman holding. Now, if you blow if on the exact reference, you’ll have a chance to get back in the game:

 

If there is a deficiency in the reference to the page(s) of the transcript, written statement of facts, or record where the alleged error has been preserved in the trial court or other tribunal from which the appeal is taken, a rule to show cause will issue pursuant to Rule 5:1A.

 

Similarly, the new rule formalizes what’’s been the court’’s practice on two-step appeals. The rules have long provided that when an appellant wants to challenge a loss in the Court of Appeals, his petition to appeal in the Supreme Court must assign error to what the appellate court did; not to what the trial court did. That is, in evaluating error, the justices won’’t reach through the CAV to get to the trial court; they evaluate whether the Court of Appeals correctly decided the initial appeal.

 

So what happens if an appellant blows the CAV-to-SCV rule, and assigns error in the Supreme Court to what the trial court did? Once upon a time, the remedy was the appellate death penalty: dismissal of the appeal. See, e.g., Davis v. Commonwealth, 282 Va. 339 (2011). Careful appellate lawyers have accordingly crafted assignments in the Supreme Court that began, ““The Court of Appeals erroneously ruled …””

 

And yet, the rule was always a tad more forgiving than that –– at least, in theory. Here’’s the relevant passage:

 

When appeal is taken from a judgment of the Court of Appeals, only assignments of error presented in, and to actions taken by, the Court of Appeals may be included in the petition for appeal to this Court.

 

Thus, in theory, an appellant could simply repeat the ““assignments of error presented in … the Court of Appeals”” and be safe. And true to that, the court typically reviews on the merits a petition that merely states that the trial court got it wrong –– unless the CAV made a ruling on an entirely different ground, for example.

 

In any event, the new rule now gives an appellant the same lifeline when he forgets to rephrase:

 

An assignment of error in an appeal from the Court of Appeals to the Supreme Court which recites that “the trial court erred” and specifies the errors in the trial court, will be sufficient so long as the Court of Appeals ruled upon the specific merits of the alleged trial court error and the error assigned in this Court is identical to that assigned in the Court of Appeals.

The rule changes also provide for show-cause alerts in the CAV (new Rule 5A:1A), and spell out the procedures in both courts for those proceedings. In all, this softens the impact of what’’s long been one of the most ruthless slayers of appeals in the appellate rulebook. It is, in my mind, quite welcome.

 

There’’s one other aspect of the amendment that merits at least a brief mention, if only to pose a question for which there is no answer in the Code. Here’’s the opening line of the order that lists the new amendments:

 

It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective immediately.

 

Now here’’s part of the statute that authorizes the Supreme Court to promulgate rules:

 

New rules and amendments to rules shall not become effective until 60 days from adoption by the Supreme Court . . .

 

Code §8.01-3(B). Doubtless you’’re wondering, now that I’’ve pointed it out to you so subtly, why these rule changes take effect immediately instead of having a 60-day waiting period. Good question, and I don’’t have a textual answer for you. But as I’’ve noted, these changes liberalize the rules somewhat, and I can’’t envision anyone’’s objecting to this change. (The 60-day period was probably inserted to prevent a litigant from suffering as a result of a last-minute rule change.)

 

As usual when the court announces a rule, I generally recommend that you comply with it immediately instead of waiting for the delayed date (as long as you can do that without violating the current rules), so the practical effect of this may be small. But know that the justices have heard your pleas for benignity, and have delivered.