[Posted August 14, 2012] Today, a panel of the Court of Appeals of Virginia hands down a ruling of major importance. It deals with the failure of criminal appellants to file rules-compliant petitions for appeal, and interprets how the court addresses those deficiencies. This is one of the most important rulings of 2012; if you handle appeals at all (even if they’re civil), you need to pay attention to this development.

The ruling comes not in an opinion, but a published order. We don’t know who wrote this one, but it’s either Judge Humphreys or Judge Petty; Judge Elder dissents, although he would ultimately rule in favor of the same party. The order amasses three separate (and separately argued) criminal appeals; I’ll refer to it by the first one listed, Chatman v. Commonwealth.

Two of the appellants committed the identical sin: Their petitions didn’t contain clear and exact references to the pages of the record where their assignments were preserved for appellate review. In one instance, the petition referred to an entire transcript from a suppression hearing. In another, there were no page references at all; the appellant later submitted a replacement petition after having been notified of the defect by the CAV Clerk. The replacement was filed within the time allowed. The third appellant’s defect was more traditional: he simply included too-general language in his assignments, complaining only that the trial judge should have dismissed the case for insufficiency of evidence.

Today, the CAV takes the extraordinary step of dismissing all three petitions after already having granted writs in them. Basing its holding on a published order last fall from the Supreme Court, a majority of the panel concludes that the failure to provide an exact record citation, showing where the issue was preserved, deprives the court of appellate jurisdiction. Even where leave was granted (in the second case) to file a corrected petition setting forth the correct pages, the court dismisses, finding that no proper petition was presented within the mandatory time limit, so the court lost jurisdiction over the case.

In the past, the clerks of the two appellate courts have addressed a failure to adhere to the new (July 2010) requirement of an exact page reference, by directing the plaintiff to fix the problem within ten days. It probably wasn’t much fun to get a letter like that, but it was vastly preferable to today’s holding; these appeals are really-most-sincerely dead (although since they’re criminal, it might be possible to reincarnate them using the delayed-appeal statutes).

The 2010 rule changes were designed to make the rules, and the appellate system, more user-friendly. How did this train jump the tracks?

I’m not sure, but I have a working hypothesis, based on a familiar goblin: “Jurisdiction is a word of many, too many, meanings.”

Last November 4, when I analyzed the decisions handed down by the Supreme Court that day, I posted a two-paragraph summary of a published order in the case of Davis v. Commonwealth. Davis made a familiar mistake when he appealed his criminal conviction. The Court of Appeals affirmed, and when he went on to the Supreme Court, he failed to modify the wording of his assignment of error. In both courts, the wording was some variation of, “The trial court erroneously convicted me because . . .”

The problem with that, as every appellate lawyer knows, is that once you get to the Supreme Court, you have to assign error to what the CAV did, not to what the trial court did. See Rule 5:17(c)(1)(ii). In addressing error, the justices won’t reach through the CAV to get directly to the trial court; they evaluate the holding of the Court of Appeals. The rule also says that if the assignment is insufficient, “the petition for appeal shall be dismissed.”

I pointed out that familiar mistake and added a word of warning to my audience before moving on. But I missed one key sentence in the opinion. Here it is:

By prescribing dismissal of the appeal, this amendment established that the inclusion of sufficient assignments of error is a mandatory procedural requirement and that the failure to comply with this requirement deprives this Court of its active jurisdiction to consider the appeal.

In viewing this holding today, reading it in light of the train wreck that is Chatman, I think I spy the underlying problem. The Supreme Court, by providing that certain deadlines are mandatory, purports to craft its own jurisdictional limits. But I don’t think the court can prescribe what its own jurisdiction will be; that authority comes from elsewhere. I believe that this holding in Davis is a mistake.

The Supreme Court gets its jurisdiction from two sources: the Constitution of Virginia and the Code of Virginia. Article VI, §1 of the constitution gives the court certain original jurisdiction (things like judicial discipline and mandamus proceedings) and appellate jurisdiction in the great majority of cases. There’s a provision authorizing “reasonable rules as may be prescribed as to the course of appeals and other procedural matters,” but nothing in this part gives the court the right to decide what its jurisdiction will be. There is, however, a statement that “the General Assembly shall have the power to determine the original and appellate jurisdiction of the courts of the Commonwealth.”

The legislature has accepted this invitation, and has made provision for certain jurisdictional rules in the Code. For example, there’s a statute (§8.10-671) that requires that a petition for appeal be filed within three months after the date of trial-court judgment. The justices can’t tinker with that; it’s a limit on their jurisdiction, duly prescribed by the legislature.

What the Davis decision seemed to say is that the Supreme Court can prescribe by rule what its own jurisdiction is. It can state that it does have jurisdiction over this kind of case, but not that one; it can give itself jurisdiction over a petition that contains this sentence, but not one that contains that one. But I don’t see how, in the existing legal framework, the court gets to decide what its jurisdiction will be.

Let me quickly contrast this to a court’s right to determine what its jurisdiction is. As the Supreme Court reaffirmed just last year, any court “always has jurisdiction to determine its own jurisdiction.” Rutter v. Oakwood Living Ctrs., 282 Va. 4, 13 (2011). That is, the court can evaluate the jurisdictional rules that have been laid down for it, and ensure that a given controversy falls within those parameters. But I don’t think that any court can craft rules that define what kind of cases it can and cannot hear; the constitution and the legislature get to do that. If the court wants to provide by rule that it will affirm all judgments where the appellant uses the wrong color cover for his opening brief, it can do that (happily, we have no such petulance among the justices); but I don’t think it can rule that it doesn’t have jurisdiction over the case because the cover’s green instead of white.

Why does this matter? After reading today’s ruling, you may well wonder out loud if this is even passably important. After all, even today’s dissenter, Judge Elder, would reach the merits on two of the three cases and find that the convictions should be affirmed. (He agrees with the procedural dismissal of the third one, where the assignment related back to the wrong court.)

It matters, as always in appellate opinions, because of the next case, and the one after that. These appellants may have had hopeless appeals, but at some point in the future – the case may be in the appellate pipeline already – an appellant with a valid gripe will find himself out of court because his lawyer forgot to include an exact reference to where the issue was preserved. As noted above, these appellants might be able to file delayed statutory appeals, but if this had happened in a civil appeal, there would be no remedy except a malpractice suit. As today’s opinion points out, sometimes a lawyer can simply list the wrong page, and it would be a tragedy if an appeal were lost because of, say, a typographical error in the page listing.

There are a few other issues that struck me as being worthy of mention in this essay. First, there’s no disagreement on the importance of the exact reference. The rule exists to give the court a quick view of the exact ruling and the arguments raised against it. Without the rule, appellate jurists would have to comb the entire record to see where an issue was preserved. In my experience, what generally happened before this new rule was that the appellant got a pointed question at oral argument on the writ, asking where it was preserved. But I won’t fuss at all with the finding that the citation is important.

Judge Elder, however, notes (quite plausibly, in my view) that the record citation isn’t part of the assignment of error; it “shall be included with” each assignment. If there’s a technical problem with something that’s included with an assignment, that doesn’t mean that the assignment itself is fatally defective. The Supreme Court has already stated that a mistake in, say, the table of contents shouldn’t scotch an appeal, and I believe that’s true even if the mistake in the table relates to something essential like the assignment of error. The majority doesn’t address this argument, and given what’s at stake – the appellate death penalty – I believe it should have been considered, at least as a fall-back position.

Judge Elder also argues that Rule 5A:12, which contains the record-citation requirement, states that “the petition for appeal will be dismissed” for a rules violation. But these petitions had already been granted; he would hold that the court has the authority to reach the merits once the appeal is awarded.

I noted the procedural anomaly whereby the appellant got leave of court to file a replacement brief after his original one. He complied with that deadline, but eventually the court decided that it didn’t have jurisdiction to give him the extra time, so he lost despite doing exactly what the court had told him to do. I can imagine some grumbling in that one.

One last point of sheer speculation: I suspect that the judges on this panel probably wanted to reach the merits of these arguments. But the unfortunate language in Davis constrained the majority to rule on this tough issue. Appellate courts can’t play around with jurisdiction; if they don’t have it, they can’t overlook that defect and go ahead and adjudicate even meritorious cases. In any event, I strongly suspect an appeal on to the Supreme Court in these cases.

It’s no secret that the Supreme Court justices (and the judges on the Court of Appeals) expect lawyers to read and comply with the rules, and they get frustrated when certain requirements, despite being out in the open, get missed on a regular basis. This requirement is in the rule book, plain as day, and it has been there quite long enough to have been noticed by now. Deep down, the fault for these mistakes may be laid at the doorstep of the lawyers in these cases; lawyers who elect to appear in appellate courts have to know how to comply with the rules. None of this mess would have arisen if some attorneys had checked the rule book before mailing their petitions. But that’s another essay.