Ghosts of Procedural Defaults Past, Present, and Future

 “Every idiot who goes about with ‘Merry Christmas’ on his lips should be boiled with his own pudding…” – Scrooge (the real one, not the majority).  

We are in the in-between holiday season: Halloween is behind us, Christmas isn’t quite here, and I may or may not have started sneaking decorations into our house and office. What better way to mark November than a winning combination of Christmas ghosts and hauntings of what might have been? Gear up for an Appellate Christmas Carol. This month we’re skipping the latest Supreme Court of Virginia decision (it’s a niche one) and heading to the Court of Appeals, where a split panel gave us a Dickensian story of an orphaned procedural default.

Takeaways:

• Appellees: Raise your procedural defaults.
• Appellants: Raise the ends of justice exception if it’s even arguable.
• Criminal defense attorneys: Probation violations aren’t always fun but often there are technical arguments to make. Don’t sleep on statutes.

A Forgotten Procedural Default

It’s a tale as old as time: an appellate lawyer comes up with a great argument that was arguably not raised in the trial court. So what happens on appeal when the winning side (the “Appellee”) doesn’t argue a procedural default it should have?

In this story, some would say Judge Raphael is… Scrooge. Judge Chaney: Bob Cratchit. The Appellant doesn’t make for a great Tiny Tim, but you get the picture. And the procedural default is the Ghost of Litigation Past—showing you the consequences of the past failure to preserve.

In Fennell v. Commonwealth, the Court of Appeals was internally at odds with what to make of the Commonwealth’s failure to argue its Rule 5A:18 issue. The majority concluded that even if the appellee fails to raise a preservation argument, the CAV is within its rights to raise it sua sponte. The dissent has strong feelings about this quirk of appellate procedure, so for those of you who hate procedural defaults, take heart. There is at least one judge who thinks we might apply these rules too strictly.

Why did the majority conclude that the appellee did not forfeit its Rule 5A:18 argument? First, the language of the Rule itself: “No ruling of the trial court…will be considered…unless…” Va. Sup. Ct. R. 5A:18. The SCV has otherwise separately held that appellees do not waive their own waiver argument in this scenario. See, e.g., Buck v. Commonwealth, 247 Va. 449 (1994). And remember the “right result for a different reason” doctrine? That can sometimes allow appellate courts to affirm on any other reason apparent in the record. Lastly, the contemporaneous-objection rule protects trial courts and the deliberative process.*

…But do appellate courts have to enforce a procedural bar even when a party fails to argue it? The dissent says “No, it’s discretionary.” The majority says “Bah, Humbug! Yes, it has to!” (unless it doesn’t want to. Classic CAV).

*(There are actually more reasons given but this was starting to get longer than the real A Christmas Carol so read the opinion if you’re hungry for more procedural default talk).

Procedural defaults matter.

Here’s what you should keep in mind, folks. Appellate procedure is complicated. I personally am very aggressive with procedural defaults. I’ve lost some I believe I should have won and I’ve won some I was surprised I succeeded with. But it’s my job as an appellate advocate to know the rules so I know when to invoke them. Take this as a visit from your Ghost of Appeals Future and plan accordingly. 

So God bless us, every one. And may the rules of appellate procedure continue to be a gift that keeps on giving this holiday season!