- Norman A. Thomas
Comments on the Virginia Supreme Court’s Proposed New Rules on Jurisdictional Transfer During Appeal
On September 10, 2018, the Virginia Supreme Court issued a Press Release inviting comments on two proposed procedural rules and amendments to Rules 5:9(a) and 5A:6(a). To ensure their consideration, interested persons must submit their comments to the Clerk of the Supreme Court by October 25, 2018. You may access the Court’s press release under the “What’s New” link at www.vacourts.gov.
The proposed new Rules 1:1B and 1:1C pertain to “transfer of jurisdiction during the appeal of a final judgment.” The proposed amendments to Rules 5:9(a) and 5A:6(a), which rules pertain to notices of appeal, will incorporate relevant provisions of Rule 1:1B.
My comments on the proposed Rules and amendments do not attempt to fully digest their content. Rather, I intend to highlight certain language and point out its procedural significance to appellate (and trial) practitioners.
I also note that the proposed Rules and amendments follow on the heels of the Court’s recent amendments to Rule 1:1. Those amendments take effect on November 1, 2018. You may access these amendments under the “What’s New” link at www.vacourts.gov.
The Rule 1:1 amendments provide a general definition of what constitutes a final order. They also specify when orders respecting demurrers, pleas in bar, summary judgment and motions to strike will or will not constitute final orders. A review of Rule 1:1 and its imminent amendments will assist you to thoughtfully consider proposed Rules 1:1B and 1:1C.
Proposed Rule 1:1B(1) states that “[I]mmediately upon the filing of a notice of a appeal the appellate court shall acquire appellate jurisdiction over the circuit court case.” This early assertion of appellate jurisdiction represents a change from current law.
Up to now, the Court has held that the “docketing of an appeal” generally demarcates the Court’s formal acquisition of appellate jurisdiction, and such docketing occurs upon a petition for appeal’s filing.. See Lamb v. Commonwealth, 222 Va. 161, 165 (1981); Greene v. Greene, 223 Va. 210, 2012 (1982); and Belew v. Commonwealth, 284 Va. 173, 178 (2012). But note that in Walton v. Commonwealth, 256 Va. 85, 95, cert. denied 119 S. Ct. 602 (1998), in a capital murder appeal of right, the Court held that “the trial court was divested of jurisdiction” upon the defendant’s timely filing of a notice of appeal.
By its terms, Rule 1:1B will apply “to appeals of right, appeals by petition, and partial final judgments entered pursuant to Rule 1:2.” See Rule 1:1B(6) Thus, Rule 1:1B(1) will establish a uniform procedural point in time at which the Supreme Court or the Court of Appeals will acquire appellate jurisdiction. The early acquisition of appellate jurisdiction will enable these courts to exercise more effective procedural oversight of appealed cases. In my view, the uniformity and oversight capabilities make good sense.
With that said, Rule 1:1B(1) also provides that “[a]fter filing the notice of appeal, however, the circuit court shall retain concurrent jurisdiction for the purposes specified in this Rule.” The Rule sets forth those limited instances of concurrent jurisdiction at Rule1:1B(3)(a) through (i), so long as the notice of appeal has been filed “after the expiration of the 21-day period prescribed by Rule 1:1.” The listing does not appear to alter existing law respecting those actions a circuit court may undertake more than 21 days after entry of final judgment.
Significantly, Rule 1:1B(2) provides that if a notice of appeal “has been filed prior to the expiration of the 21-day period prescribed by Rule 1:1, the circuit court shall retain plenary, concurrent jurisdiction over the case until the expiration of that period.” Rule 1:1B(2) then proceeds at length to make some fine and rather complex distinctions to govern those instances when a circuit court suspends, modifies or vacates a final judgment within that 21-day period.
On the one hand, if the circuit court vacates a final judgment within the 21-day period, “a notice of appeal filed prior to the vacatur order shall be moot and of no effect.” To emphasize that result to counsel and the parties, the proposed Rule mandates that the circuit court clerk “forward the vacatur order to the appropriate appellate court,” which appellate court “shall issue an order dismissing the appeal as moot.” (Interestingly, the proposed amendments to Rule 5:9(a) do not include a requirement that a party send a copy of the notice of appeal to the Clerk of the Supreme Court.)
Following any such dismissal, under proposed Rule 1:1B(2) “a new notice of appeal challenging the entry of any subsequent final judgment must be timely filed.” This language carries significant meaning: A party intending to appeal a “subsequent final judgment” must begin anew the appellate process by timely filing another notice of appeal following entry of that judgment.
On the other hand, the proposed Rule specifies that if the circuit court “merely suspended or modified” a final judgment within the 21-day period, i.e., did not vacate that order, “[n]o new notice of appeal is required.” Thus, when a party has filed a notice of appeal within 21 days after a final judgment, the proposed Rule’s distinctions between the vacation of that judgment versus its suspension or modification are of major consequence. Should the Court approve Rule 1:1B as currently drafted, every trial and appellate attorney must become familiar with these distinctions.
Rule 1:1B(4) proposes that at “any time after a notice of appeal has been filed and after the expiration of the 21-day period prescribed by Rule 1:1, any party to an appeal may file a motion to dismiss an appeal in the appellate court.” The text further provides that “failure to file such motion, however, shall not preclude a party from making the same argument in its appellate briefs.”
I really like this subpart’s language. Little guidance exists within the Rules on “motions practice” within Virginia’s appellate courts. See Rules 5:4 (esp. Advisory Note) and 5A:2. Rule 1:1B(4) will provide guidance as to motions to dismiss. I can tell you from personal experience that when I contemplate filing a motion to dismiss an appeal, I usually wrestle with a decision whether to file it or simply assert its grounds on brief. The proposed Rule makes clear the acceptability of either procedural route.
I do note, however, one potential conflict between Rule 5:4’s Advisory Note and the language of proposed Rule 1:1B(4). The Advisory Note states that a motion “may be filed in any pending or contemplated appeal.” Under Rule 1:1B(4), a motion to dismiss could be filed only “after a notice of appeal has been filed and after the expiration of the 21-day period prescribed by Rule 1:1.” [Emphasis added]. I believe that the Court should consider the phraseology of the proposed Rule and avoid any conflict with its Rule 5:4 Advisory Note. The Court might do so by modifying the Advisory Note’s language.
Proposed Rule 1:1B(5) allows “a party legally entitled to appointed counsel” to file “a motion in the appropriate appellate court for the appointment of appellate counsel…[a]t any time after a notice of appeal has been filed and after the expiration of the 21-day period prescribed by Rule 1:1.” The appellate court may act on the motion or “refer the motion to the circuit court for appointment.” The language appears straightforward and intuitive. Without question, the appointment of competent appellate counsel for an eligible criminal or civil party litigant serves the public interest.
But the matter does implicate another issue on which trial counsel and party litigants sometimes sharply disagree. Absent a circuit court order addressing the issue, when does appointed trial counsel’s duty to represent a party end? In Smith v. Peyton, 207 Va. 515, 516 (1966), the Court held that court-appointed counsel’s representation did not terminate with the final order’s entry. The defendant was “entitled to assistance and cooperation of counsel” for purpose of pursuing an appeal. Id. If trial counsel must assist a client by filing a notice of appeal, is that attorney automatically counsel of record for the appeal unless a court subsequently rules otherwise? It would seem so. See also Rule 1:4(c) and Va. Code §8.01-271.1 (counsel must sign pleadings); and Rule 1:5(b)(definition of “counsel of record”).
But appointed (and retained) trial attorneys sometimes contend that they are not obligated to represent a party on appeal and decline to sign and file the client’s notice of appeal. In my appellate practice, I see this scenario occur fairly often. The Court has not yet decided whether a represented party may sign and file a notice of appeal. Cf. McGinnis v. Commonwealth of Virginia, 68 Va. App. 262 (2017), appeal granted 2018 Va. LEXIS 310 (June 11, 2018). I recognize that this issue reaches beyond the scope of proposed Rule 1:1B(5). Yet I believe that the proposed Rule takes a step in the right direction. It would formally empower a party entitled to appointed counsel to move the appellate court to make that appointment.
As proposed, Rule 1:1C addresses petitions for review of injunctions and interlocutory appeals. Subpart (1) pertains to petitions for review and states that once filed, “the appellate court shall have exclusive jurisdiction over the appealable interlocutory order.” And absent an order staying the proceedings, “the circuit court shall retain jurisdiction over any part of the case that has not been appealed.” Subpart (2) pertains to “any other” appealable interlocutory order. In that instance, the circuit court retains “concurrent jurisdiction over the case” absent an order “staying all or part of the proceedings in the circuit court.”
From my perspective, Rule 1:1C will provide for jurisdictional transfer during interlocutory appeals in a manner consistent with that of proposed Rule 1:1B.
To effectuate the Rule 1:1B(2) distinctions between a suspended or modified final judgment versus a vacated final judgment, the proposed amendments to Rules 5:9(a) and 5A:6(a) state as follows:
Appeals from Circuit Court. Pursuant to Rule 1:1B, if a circuit court vacates a final judgment, a notice of appeal filed prior to the vacatur order shall be moot and of no effect. A new notice of appeal challenging the entry of any subsequent final order must be timely filed. No new notice of appeal is required, however, for a prior final judgment that was merely suspended or modified, but not vacated.
I note that under existing Rules 5:9(a) and 5A:6(a), a notice of appeal filed “after the court announces a decision or ruling – but before the entry of such judgment or order – is treated as filed on the date of and after the entry.” As a result, under proposed Rule 1:1B(2), when a circuit court vacates a final judgment a party should wait until after the court announces or enters judgment upon its subsequent decision or ruling to file a new petition for appeal.
I believe that the proposed Rules well-clarify when appellate jurisdiction transfers to an appellate court in all categories of circuit court appeals. The uniformity will accomplish good things. The early transfer of jurisdiction gives the appellate courts greater oversight of appellate procedure and should foster interpretive consistency and efficiency.
In my view, the distinctions drawn in Rule 1:1B(2) introduce a new measure of complexity into appellate procedure. The Court therein recognizes a qualitative difference between a final judgment’s suspension or modification and a court’s vacation of the judgment. As such, I do not argue against the distinctions. Yet I believe that it will be important to educate the Bar about the proposed Rule. Attorneys who do not regularly conduct appellate litigation could stumble into a pitfall here.
At the same time, the proposed Rule provides that in appropriate circumstances the appellate court will issue an order “dismissing the appeal as moot.” As with all court orders, counsel will need to review those orders and, as necessary, thereafter act to preserve their client’s right to pursue an appeal.
I welcome the guidance on motions to dismiss. I believe that effective appellate motions practice translates to judicial economy and reduced costs to litigants. And I applaud the new procedure enabling parties “legally entitled to appointed counsel” to file a motion for appellate counsel appointment. Such motions will serve the public interest by ensuring competent appellate representation for such litigants.
I will send my comments on the proposed new Rules and amendments to the Clerk of the Supreme Court. I hope that the above discussion will aid my readers’ understanding of those Rules and amendments. I encourage you to send your comments on them to the Clerk. Remember, the deadline for comments is October 25th.
Norman A. Thomas