(Posted August 24, 2021) I’ve just finished reading the newest published opinion from the Court of Appeals of Virginia, Jacks v. Commonwealth. With the great majority of the opinions I cover, I fully accept and agree with the outcome. In other appeals, some rulings cause me to squirm, and I usually say so here; in a few, I’m convinced that a dissenting opinion has the better of the debate.

Once every few years or so, I read an opinion that I find horrifying. Jacks is one of those. It’s a triumphal moment for waiver hawks, and a stunning loss for those jurists and advocates who champion stare decisis and the plain meaning of statutes.

The case started as a DUI prosecution in Rockbridge County. We don’t know much about the underlying facts, but the defendant and his lawyer appeared for trial in general district court, where the court entered a judgment of conviction on March 16, 2020.

If that date sounds familiar, it’s because it’s the exact date of the first declaration of judicial emergency by the chief justice in response to the Covid pandemic. That declaration and a series of subsequent orders from the Supreme Court tolled all case-related deadlines in district- and circuit-court litigation. The tolling period ran from March 16 to July 19, a period of 126 days.

To appeal a GDC conviction to circuit court, a defendant has to note an appeal within ten days. Jacks’s lawyer noted such an appeal on June 3, well beyond the ten-day limit, but well within the tolling period. Because the ten-day provision is unquestionably a case-related deadline, the appeal was timely.

Except that wasn’t how the court upstairs saw it. On June 10, the file arrived in circuit court from GDC; six days later, a circuit-court judge entered an order without notice to any party. The order denied the appeal as untimely, remanded the case to GDC, and dispensed with endorsements of counsel under the provisions of Rule 1:13.

This reference triggers a side rant: The more I see it in use, the more I’m convinced that this waiver provision in Rule 1:13 must die. In the interest of expediting the entry of orders, the rule allows a court to take over the steering wheel and enter any order it wants, without giving the parties a say in how it’s phrased or what it achieves. It also eliminates the chance to make a contemporaneous objection.

Here’s a worst-case example of how the rule invites abuse: A judge who desires to avoid appellate scrutiny can quietly enter a final order dismissing a case – or granting millions of dollars in damages – and then put the document in a desk drawer for nine weeks before forwarding it to the clerk. At that point, the mandatory 30-day deadline for noting an appeal has passed, as has the 60-day safe harbor in Code §8.01-428(C).

No, this nightmare isn’t likely to happen. But it can, and there’s no relief available for the unknowing victim.

Less malevolent problems can crop up, such as where a judge enters a Rule 1:13 endorsement-waiver order that contains inadvisable language, words that the lawyers would never have agreed upon. And I’ve actually seen this one in one of my appeals: A judge takes a matter under advisement and then quietly enters an interlocutory order with no notice to anyone. The parties later submit a final order in the case that assumes that the judge never entered the previous order, so the appellant appeals that “refusal.” Imagine what happens in the appellate court in that situation.

There’s far too much room for mischief here to warrant continuation of such a rule. The parties, through their lawyers, deserve to be heard on the content of court orders. The minor timing advantage of allowing a judge to short-circuit the process like this isn’t worth the damage that this rule can do.

Back to our tale. Jacks learned about the dismissal order and timely appealed to the Court of Appeals. In a published opinion handed down this morning, a majority of the CAV panel affirms, holding that Jacks didn’t preserve his objections below. Senior Judge Annunziata, writing for Judge Malveaux, notes that Jacks didn’t object to the dismissal in circuit court.

In oral argument, Jacks pointed to Code §8.01-384(A), which contains this helpful language: “[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him … on appeal.” He argued that he had no idea that a circuit-court judge had his file in the judicial lap with pen in hand, poised to strike. This statutory language is there to provide some succor to an appellant in Jacks’s position.

The majority was unmoved; it holds that Jacks didn’t file a motion to rehear that could be adjudicated within 21 days. That, the court rules, was his “opportunity to object.” The opinion goes on to state that if the reverse were true, any Rule 1:13 endorsement-waiver order could be appealed without any contemporaneous objection.

The majority also rules that Jacks has waived the statutory argument because he didn’t raise it in his opening brief as Rule 5A:20 requires. That rule is designed to give the court and the appellee fair notice of exactly what the appellant is appealing.

After reading this summary, you may be wondering what’s so horrifying about this ruling. Judge Huff, writing in dissent, fills in that blank. He notes that the literal wording of the statute protects an appellant who isn’t able to object “at the time [the ruling] is made,” not at some undefined later point. That unquestionably applies here, as neither Jacks nor his lawyer were anywhere in the vicinity when the trial judge took pen to paper to dunk the case. The majority opinion admits as much, but then goes on to rule against Jacks anyway.

But Judge Huff is right on this point: If applying the statute’s words literally may have uncomfortable consequences for other appeals, it’s the legislature’s job to address that, not the judiciary’s. The majority has today rewritten the statute so that it reads, “no opportunity to object to a ruling or order at any time before the court loses jurisdiction.” This strained reading provides less protection than the legislature had intended.

There’s more. Judge Huff quotes this compelling passage in a Supreme Court opinion: “The statute imposes no requirement that when the contemporaneous objection exception applies, a party, if able, must file a post-conviction objection or otherwise bring the objection to the court’s attention at a later point in the proceedings.” The justices have expressly rejected the path that the majority takes today.

Judge Huff also disagrees with the Rule 5A:20 holding, noting that exactly no one was surprised by the statutory issue. The AAG who argued the appeal preemptively and forcefully argued against it in the Court of Appeals, and no member of the panel raised the rule as a bar to considering the appeal, so as to give Jacks the opportunity to explain why it shouldn’t be a fatal bar. (This is a nonjurisdictional briefing requirement, so a waiver isn’t mandatory.)

True confession time: Over the course of my appellate career, I’ve made a substantial amount of money by pointing out my opponents’ waiver mistakes. But we all prefer that appeals be decided on the merits instead of on procedural default. This statute plainly covered Jacks’s situation, but the CAV majority essentially edited the law so as to limit its effectiveness. That’s not the way you’re supposed to interpret remedial statutes like this.

Ponder the fate of a defendant in Jacks’s position. The judicial-emergency tolling orders plainly stopped the clock in his GDC appeal, so the circuit court committed an obvious error in dismissing the case. He loses anyway. In the CAV, the plain language of the remedial statute directly protects him. He loses anyway.

Rulings like this can only impair Virginians’ confidence in the judicial system. When an appellate court rewrites a statute to embalm and preserve a plainly erroneous ruling, what’s John Q. Public to think?

Update August 25: My pal John Koehler has posted an essay about this decision on his blog. He offers some additional insights that I commend to you. Because John is a former court insider, a career appellate judicial law clerk, I pay attention when he offers his views of matters like this. Further update: The Court of Appeals has done the right thing. The court granted en banc rehearing, and on August 24, 2021, issued a unanimous opinion that reverses the judgment and remands the case. Senior Judge Annunziata doesn’t take part in the rehearing, as only active judges of the court participate in those. Judge Malveaux changes her vote.