15 December 2011

Cases 2011: Appellate Strict Adherence v. Legislative Response

Despite what seems to be fairly significant efforts on the part of the General Assembly to stop the dismissal of cases and deemed “waivers” of arguments in the last 5 to 6 years, they continue.

Smith v. Commonwealth, MAR11, VaSC No. 101357
(1) The failure of the appellant to arrange for the timely filing of a necessary transcript does not deny the appellate courts jurisdiction. (2) Failing to file a necessary transcript waives the issue which the appellant preserved in the transcript.

Note: I believe this case was dealt with by HB2438 which gave a 6 months grace period in which an appellant can refile his appeal if the transcript was not timely filed.

Davis v. Commonwealth, NOV11, VaSC No. 102420:
(1) If the appellant appeals from the Court of Appeals, but does not assign error to the Court of Appeals the Virginia Supreme Court will dismiss the case for lack of jurisdiction to consider the appeal. (2) Assigning errors to the trial court when appealing from the Court of Appeals is not sufficient to give the Supreme Court jurisdiction.

Note: It seems clear that the appellant stated the error and that the court could discern the error the appellant wanted to address. This rejection is purely based on the lack of technical words not needed to decide the issue. In other words the appellant stated “The trial court was wrong in that . . .” instead of “The Court of Appeals was wrong in not finding that 'the trial court was wrong in that . . .'”

I wish the General Assembly would pass a statute something like:

19.2-XXX -  The appellate courts of Virginia shall strongly presume that any error in the filing of an appeal is non-jurisdictional and does not in any way waive the substantive issues raised by the appellant. Except in cases of wanton disobedience or extreme negligence by the appellant's counsel to the laws of Virginia and the Rules of the Virginia Supreme Court, the appellate courts of Virginia will address the substance of the appeal and may only note the failings of the appellant to properly observe format requirements, filing requirements, and similar non-substantive matters as harmless error. In cases of wanton disobedience or extreme negligence the appellate court shall remove counsel and allow the appellant 6 months to refile with new counsel.


Anonymous said...

Rule 5:17 clearly states:
"An assignment of error that does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken . . . is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed."
I have a hard time understanding why an appellate attorney's failure to either (1) read or (2) understand that requirement does not constitute "wanton disobedience or extreme negligence"? Or to put it another way, should attorneys get a pass for being plain dumb?

Ken Lammers said...

See the post on next Monday for an answer.