Recently, in Jacks v. Commonwealth, No. 0833-20-3, ___ Va. App. ___ (May 17, 2022), the Court of Appeals of Virginia issued its first en banc ruling since it expanded from 11 to 17 full-time members to accompany the new rights of appeal for civil litigants and criminal defendants. For more information about the expansion of the Court of Appeals, please see this article. But the ruling is significant not only for historical reasons, but also for its analysis regarding a common and important appellate issue: preservation of error.
Mr. Jacks was convicted of driving while intoxicated by the General District Court of Rockbridge County on March 16, 2020, the same day the Supreme Court of Virginia issued a judicial emergency order that tolled all case-related deadlines due to the COVID-19 pandemic. The court issued subsequent orders that tolled deadlines through July 20, 2020.
Jacks appealed to the circuit court on June 3, 2020. On June 16, 2020, the Circuit Court of Rockbridge County sua sponte denied Mr. Jacks’ appeal as untimely pursuant to Va. Code § 16.1-132’s ten-day deadline for noticing an appeal to circuit court.
Mr. Jacks appealed to the Court of Appeals of Virginia claiming that the judicial emergency orders tolled the deadline, so his appeal was timely. The Commonwealth argued that Mr. Jacks failed to preserve the argument in the circuit court, so it was waived pursuant to Va. Sup. Ct. R. 5A:18.
The three-judge panel affirmed the circuit court’s decision, holding that Mr. Jacks’ assignment of error was not preserved. Jacks v. Commonwealth, 73 Va. App. 473 (2021). Mr. Jacks raised an argument for the first time at oral argument that due to Va. Code § 8.01-384(A), his argument was not barred because he had no opportunity to present his argument below.
Because he did not raise this point before oral argument, the panel refused to consider this argument but also held that Va. Code § 8.01-384(A) did not apply to the case. Judge Glen A. Huff wrote a thorough dissent to the panel’s ruling.
Mr. Jacks petitioned for rehearing en banc, and his petition was granted. Judge Huff wrote for the entire court en banc. Unlike the panel, the court reversed the circuit court’s ruling and remanded the case for further proceedings. On the merits, the court held that the judicial emergency orders indeed tolled the 10-day deadline, so Mr. Jacks’ appeal to the circuit court was not time-barred. This ruling alone is a significant judicial decision regarding the effects of the judicial emergency orders from a deadline-tolling perspective.
On the issue of preservation, the court held that Va. Code § 8.01-384(A) creates an exception to the contemporaneous objection rule when a party does not have an opportunity to object to a ruling when it is made. It held that Mr. Jacks had no opportunity to object because the circuit court denied the appeal sua sponte, without a hearing and without Mr. Jacks and/or his counsel there. It also held that Mr. Jacks’ not moving for reconsideration or some other relief after the ruling while the circuit court still had jurisdiction did not bar his appeal.
The court also held Mr. Jacks was not barred by Va. Sup. Ct. R. 5A:20(e) from raising an argument based on Va. Code § 8.01-384(A) for the first time at oral argument. The en banc court noted that Mr. Jacks had raised the issue in his petition for rehearing en banc, the court granted consideration of all issues raised in the petition, and that Mr. Jacks raised the argument in his opening brief en banc. Thus, the court en banc held that Mr. Jacks gave the court and the Commonwealth sufficient notice and opportunity to address this argument, so this argument was not barred by Va. Sup. Ct. R. 5A:20(e).
The court en banc also rejected the Commonwealth’s argument that the assignment of error was waived because Mr. Jacks did not provide a transcript or written statement of facts pursuant to Va. Sup. Ct. R. 5A:8. The court noted that there was no transcript or written statement of facts because there was no hearing in the circuit court. It also noted that the absence of a transcript or written statement of facts causes waiver only when one would be necessary to resolve the appellate issues. And no transcript or written statement of facts was necessary here.
Indeed, the new Court of Appeals of Virginia’s first en banc ruling recognizes that there is an opening for litigants to appeal an adverse ruling when they had no opportunity to raise an issue below before the court ruled. And that right is not extinguished by failing to move the lower court for reconsideration. It also recognized that the Court of Appeals may consider issues not raised in panel briefing in some circumstances.
But litigants should continue to take seriously the Virginia appellate courts’ stringent rules regarding preservation of error and briefing to avoid having to contend with this issue on appeal or even be held to have waived an issue. Litigators should take this approach not only on appeal, but also at trial, with an eye towards mooting any potential procedural arguments that could undermine the merits of their arguments.