Compare and Contrast: Virginia and California

Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth.  If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief.

The court dismisses the appeal because the “petition for appeal” stated that the issue on appeal was whether a traffic officer had “probable cause” to stop the defendant, and the appellant’s brief argued the same point, when the correct legal standard for the stop is the less rigorous “reasonable and articulable suspicion of criminal activity.”  In fact, not only did the appellant brief the wrong standard, but so did the commonwealth, and the court only raised the issue sua sponte after argument!

I think most panels in any California Court of Appeal faced with this situation – the wrong standard argued in the appellate briefs —  would note the error and order supplemental briefing from the parties on the correct legal standard.  Consider how generous the Courts of Appeal in California are, for example, in construing a notice of appeal from a non-appealable order as a notice from an appealable order or from the ensuing judgment (which I blogged about here) or even construing the appeal as a petition for a writ of mandate (which I blogged about here).

Obviously, I’m not familiar with Virginia procedure, and at first I was almost as cynical about the decision as S. COTUS – it looked like the court had converted a rule of procedure into a jurisdictional requirement. 

But there appears to be more than meets the eye here.  The “petition for review” referenced by the court is required by Virginia Supreme Court Rule 5:12 (also referenced by the court) and appears to function more as a writ petition than a notice of appeal, as it must be filed only where an appeal “does not lie as a matter of right.”  Not only must it contain “the questions presented,” but Rule 5:12 also states that “Only questions presented in the petition for appeal will be noticed by the Court of Appeals.”

Even so, having apparently agreed to hear the appeal, the Virginia court’s action in dismissing the appeal sua sponte and after oral argument seems especially strict.  Of course, a genuine lack of jurisdiction may be raised at any time.  But because the court referenced not just the appellant’s incorrect standard in the petition for appeal but also in the briefing, it seems unlikely that the defect in the petition for review has been considered jurisdictional before, else the court could have rested on that defect without referencing the subsequent briefing. 

Whether based on jurisdiction or a mere question of procedure, this is certainly a more harsh result than I would expect if the parties briefed the wrong standard in a California appeal.