After the Court of Appeals had spent years wielding Rule 5A:18 with a vengeance to cut down its very full docket of appeal-of-right cases, lawyers noticed with alarm in the last few years the Court’s new-found delight in doing the same thing with Rule 5A:20. But the Virginia Supreme Court now calls for a halt to this indiscriminate use of that Rule to throw out appeals by the harsh remedy of dismissal.
The Supreme Court, in reversing the dismissal of two criminal appeals, says the remedy for violating Rule 5A:20, which calls for briefing each appealed point with full argument and citations, is to either ignore the Question Presented that was insufficiently briefed, or call for resubmission of the opening brief (or appeal petition, to which similar requirements apply). What the Court of Appeals has been doing, the Supreme Court explains, is to dismiss, rather than deny, appeals on this ground, which means treating Rule 5A:20 as jurisdictional. The Rule is not jurisdictional, and even the Court of Appeals itself, the Supreme Court says, has so acknowledged in prior cases. And to the extent that the Supreme Court itself may have dismissed petitions for appeal for failing to comply with its own parallel Rule, Rule 5:17(c)(4), it will discontinue that practice. Moreover, the Supreme Court cautions, the intermediate court should go even further and consider whether any particular failure to adhere strictly to the requirements of the Rule is insignificant, because the merits of the question presented might deserve to be addressed. Too literal application of this Rule, the Supreme Court says, would allow dismissal for failure to alphabetize properly the citations in the Table of Cases. It remands both appeals to the Court of Appeals to address the Questions Presented that that Court has erroneously dismissed. Jay v. Commonwealth, 275 Va. 510, 659 S.E.2d 311, 22 VLW 1378 (4/18/08).