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A Divided Panel of the Court of Appeals Issues an Opinion that is Cause for Alarm Among the Trial and Appellate Bars (and is already raising the hackles of the Procedural Geeks Club)

by | Aug 24, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

In the film A Fish Called Wanda, when the character portrayed by Kevin Kline is confronted with the failure of another of his schemes to double cross his partners in crime, he pauses for a moment with a perplexed look then says in a loud, monotone, “DISAPPOINTED!”  Upon reading the majority opinion in today’s only published opinion from the Court of Appeals, I experienced much the same reaction.

Jacks v. Commonwealth is the second appellate court opinion to directly address the impact of the Supreme Court of Virginia’s series of Emergency Judicial Orders concerning the COVID-19 pandemic.  In Marinaro v. Marinaro, released on August 3 with a unanimous opinion by Judges Petty and Athey and Sr. Judge Frank, the Court concluded that the Judicial Emergency orders not only imposed upon the circuit courts a duty to consider the impact of the COVID-19 pandemic on deadlines and delays, but to make clear on the record that they had done so and to give reasons why they were not permitting an extension of time.  In Jacks, a split panel consisting of Judge Malveaux and Sr. Judge Annunziata in the majority and Judge Huff dissenting, reaches a startlingly different conclusion on a distinguishable, but in my view distinguishable without a difference, issue – how does the appellant preserve for appeal the assertion that the Supreme Court’s Emergency Order grants him relief from a deadline when the circuit court rules that the deadline was not met in a sua sponte order entered without endorsement of (or apparently even notice to) counsel.

Before launching into my own analysis of this case, let me say that my friend and colleague Steve Emmert, with whom I have a somewhat informal gentleman’s agreement that I will not tread on his turf of reviewing Supreme Court of Virginia decisions and he will likewise leave the Court of Appeals to me, has offered an his own view on this case (he being a founding member of the afore mentioned Procedural Geeks Club).  As I have honored this agreement as much in the breach as the observance, I cannot fault Steve for writing a lengthy analysis and critique of the Jacks.  He had the good form to call me this morning to let me know that the opinion “made his blood boil” and he would be commenting.  I therefore commend his prose to you in which he employs the term “staggering” to describe the impact of this opinion.

While I am slightly less sanguine that the Sage of Norfolk, I do agree that the majority appears to have held to the strictest reading of the letter of law while wholly disregarding the spirit of the Emergency Orders.  In speaking briefly with Steve, I commented that there seemed to be a dearth of detail in the majority which might explain the basis of the decision on some specific factual element – for I can imagine a number of scenarios where the majority opinion might be more palatable.  Because neither the majority nor the dissent address these possible scenarios, I must assume that the facts that would support them were not there (but readers of this Blawg will know that I have recently taken the Court to task for being less than complete in its recitation of facts, so can we really be sure).

On its face, Jacks is a straightforward first DUI.  Because a first DUI is a misdemeanor, it is first tried in the General District Court.  Jacks received a fairly standard sentence.  All of this occurred on the day that the Supreme Court issued the first of the Emergency Orders, March 16, 2020.  For reasons not explained in the opinion, Jacks waited until June 3, 2020, to file his notice of appeal from the conviction in the GDC.  In ordinary times, this would be an open and shut case – because appeals from the GDC must be appealed within 10 days.

But these were not (and remain not) ordinary times.  Under the Supreme Court’s order “all applicable deadlines, time schedules, and filing requirements” were tolled.  It is worthy to note that the majority does not opine that the timing of a notice of appeal from the GDC did not fall within this tolling, while the dissent makes a clear and express statement that it mostly did.

Now, you may be wondering why, if there is at least no disagreement as to whether the deadline for filing the appeal was tolled, why I would bring this up.  Well, it because the circuit court apparently did not recognize, or at least did not consider, that the tolling of the emergency order applied.  Accordingly, the court treated the appeal as it would any other that was beyond the 10-day period – it entered an order on its on initiative dismissed the appeal and waiving endorsement of counsel.  Now, had I been the recipient of this order, I most likely would have filed a motion for reconsideration pointing out that the deadline for filing had been tolled.  I say this not as a criticism of Jacks’ counsel – I tend to be a “belt and suspenders” kind of lawyer but can certainly understand why Jack’s counsel chose to instead file an appeal in the Court of Appeals and seek to raise the issue of the deadline tolling there.

And, thus, we reach the point of contention between the majority and the dissent – can Jacks raise the issue of the deadline tolling for the first time on appeal.  The Commonwealth certainly didn’t think so, arguing under several different theories that Jacks had not made a contemporaneous objection, was barred from raising an issue for the first time on appeal, and have waived the issue as a result.

The majority agrees, applying the most strict interpretation of the contemporaneous objection rule possible.  It is not even clear whether the majority would have accepted a motion for reconsideration as sufficient.  Moreover, the majority seems to have no problem in finding that counsel can waive an issue by failing to make a contemporary objection even where the court has acted sua sponte and waived endorsement of the order.

Judge Huff takes particularly strong exception to the idea that the contemporaneous objection rule can be applied in this fashion.  The majority suggests that his broader interpretation would “eviscerate” the rule, while Judge Huff points out that his interpretation applies to a very specific set of facts.

I am going to take a slightly different tack from Judge Huff and suggest that the real issue here is the failure the court to abide by the Supreme Court’s order.  Trial court, for all the discretion they are permitted, must not openly flout an order of a superior court.  In my view, the problem here was that the circuit court was operating as if the Emergency Order did not exist, and it should not have been.  During the period when deadlines were tolled, I would have thought that no court would have issued an order imposing a default for failure to meet a deadline without at least affording the party to be penalized an opportunity to be heard.

Thus, in my view the preservation and waiver issues raised by the Commonwealth (and adopted by the majority) are red herrings.  Even if Jacks’ counsel could have preserved error – by a motion for reconsideration or at least a written objection filed to be appended to the order – the fact that he did not is not really relevant.  What is relevant is that no court should be permitted to enter an order in direct contravention of an order of a superior court.  The ends of justice which permit an appellate court to take jurisdiction over a case that would otherwise be barred under Rule 5A:18/Rule 5:25 include among other reasons instances in which permitting a judgment of a lower court to stand would erode public confidence in the judiciary and judicial process.  I can think of no circumstances more damaging to public confidence than a trial court being permitted to act contrary to an order of a superior court and then having that judgment evade review because of the manner in which the court acted.

I very strongly suspect that this case will be reviewed on a rehearing by the panel, by an en banc Court of Appeals, and/or the Supreme Court.