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Court: A weak brief is not jurisdictional error

You’ve been doing it wrong, and maybe we have, too, but it’s time to get it right, says the Supreme Court of Virginia in an opinion directed to the Court of Appeals’ handling of undeveloped appeal arguments.

The opinion, Jay v. Commonwealth (VLW 008-6-040), seems to highlight differences between jurists who favor swift and certain banishment of poorly presented appeals and those who would afford second chances and sympathetic readings.

When appellants’ briefs failed to set forth sufficient authority for their arguments, the Court of Appeals has been improperly dismissing the appeals, improperly rendering the brief requirements jurisdictional, according to the Jay case, written by Justice Cynthia D. Kinser.

The case turns on similarly worded rules that apply in both of Virginia’s appellate courts. The rules require that a petition for appeal contain “[t]he principles of law, the argument, and the authorities relating to each question presented.” In the two criminal cases consolidated in the Jay opinion, both petitioners failed to cite any legal authority in their arguments. The Court of Appeals dismissed both appeals.

The Court of Appeals’ error, according to Kinser, was in elevating the brief-writing requirements to the jurisdictional level. The rule for well-developed arguments (Rule 5A:20(e)) is on the same footing as the rule for listing cases in alphabetical order, the court noted.

In a footnote, the Supreme Court seemed to acknowledge the possibility that it, too, might have used a flawed analysis: “To the extent that this Court has dismissed petitions for appeal … for failure to comply with the [argument requirements], we will discontinue such practice in light of today’s holding.”

The ink was still wet on the Jay opinion as Court of Appeals Judge D. Arthur Kelsey held forth in Roanoke on the need for strict enforcement of procedural rules (See story, above). Jay can be read to offer leniency for sloppy brief writers, contrary to Kelsey’s call for clear boundaries and certain penalties, the result, at least in Kelsey’s view, may be more a matter of name than substance.

The error identified by the Jay court was “dismissing rather than denying the appeals” (emphasis in original). Kelsey, in an outline for the Roanoke bench-bar conference, noted that even if dismissal is prohibited, “an appellate court may treat an undeveloped argument as ‘waived’ and may deny a petition for appeal (or simply affirm if the matter is before a merit panel).” A loser at trial hoping for redemption on appeal takes little comfort from being “denied” as opposed to “dismissed.”

Nevertheless, the Supreme Court pointedly suggests that leniency ought to be considered when a brief falls short of the standard. “The Court of Appeals may, among other things, require an appellant to re-submit the petition for appeal or opening brief…. The Court of Appeals should … consider whether any failure to strictly adhere to the requirements of Rule 5A:20(e) is insignificant, thus allowing the court to address the merits of a question presented.”

In Jay, the Supreme Court remanded both cases for the Court of Appeals to address the substantive issues of each criminal appeal.

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