The reality of the world we live in. The two stories in the images above were on pages 1 and 2 of The Roanoke Times today. Thousands, perhaps tens of thousands, of unmasked people attending the pre-game tailgate at Lane Stadium was on Page 1, while on Page 2 was a story with reporting a warning from the state health department for greater caution in social gatherings and travel on the holiday weekend.
Let me be clear, I fully support your right make bad choices for yourself — but risking the lives of others you could infect with COVID at the tailgate, because you are infected (whether you know it or not), or afterwards, because you became infected at the tailgate, just to drink beer, eat barbecue, and watch a damn football game isn’t just a bad choice — it’s a selfish, self-centered, egotistical, to hell with my neighbor, FU to humanity choice. And it’s all the worse because, despite being 20 months into the pandemic, I am willing to bet that almost none of people there gave the matter serious thought.
If they did, that thought consisted process was probably along the lines of “I’ve suffered the last year. I deserve this.” Suffered? Really? If you can afford to drive to a football game in a truck that probably cost more than my first house, consume quantities of food and alcohol that would give a cardiologist nightmares, and then attend a football game having paid as much as $318 (the average cost for a 50-yard line seat this year according to SeatGeek.com — a significant increase over the pre-pandemic 2019 season due to demand), I do not think you have suffered all that much.
Somewhere along the way the people of America stopped carrying about each other as a whole, focusing on narrower and narrower circles — my race, my state, may party, my (increasingly gated) community, my friends, my family . . . me. It’s not something that started with the pandemic. I think it started in 1950s when standards of living started to rise and we started to think of the American Dream as an entitlement to be given instead of an endeavor to be achieved.
As the standard of living of the predominantly white., middle class started to rise, we assumed that everyone was better off, which was largely true. We no longer had to care for or about the least among us. Even the least of us, we reasoned, were better off than most people in the rest of the world — this was, after all, the era of the Marshall Plan. We — we meant the government, because it wasn’t really our individual duty to help others — were taking care of not just our own poor, but of the poor of the world — meaning the Western European world. And that was great — so long as the government didn’t raise our taxes. Social concern shifted from wanting all to have enough to making sure that I had more. One car in every garage meant it was OK for me to have two, and two really nice cars at that.
I recall one example of this “I am owed this because I am an American” attitude from well before the pandemic. For decades, the US Forest Service has allowed camping in parts of the George Washington National Forest that covers a large swath of western Virginia, but there are limits on the number of consecutive nights you can stay in the designated areas and any camping structures must be temporary and removed from the site when you leave. These rules are clearly meant to allow more people to have access to the camping areas and keep them in a natural state. The rules, however, we laxly enforced for many years, primarily because there was really no need. People went to the campsites, stayed a few days or even a few weeks and cleaned up the site when they left (contrary to what many may think, there was a time when littering was considered distinctly anti-social — now it seems to be an American pastime).
However, in the early the 1990s and 2000s the park service started receiving complaints about permanent structures being erected, people staying for months at a time, and excluding others from campsites. An investigation proved that these complaints were well founded, with many of the campsites having been turned into family fishing and hunting compounds, often with signs asserting the exclusive right to use the site. The buildings were mostly ramshackle — built of cinderblocks and such — but clearly permanent and regularly inhabited. “Sanitary” facilities had also been built, though without running water and clearly not sanitary.
After repeated notices of violation were posted and ignored, the Forrest Service moved in with armed agents and bulldozers. Fortunately, at those sites where the “owners” were present, no one resisted. The Roanoke Times was there and ran a story. The attitude of one of residents was a clear expression of the general attitude, “Rich people have hunting camps. Why can’t we?”
The path to American selfishness is perhaps not that simple — and perhaps there wasn’t really a time when concern for the other, the stranger at our door, the widow, the orphan, was a near universal American attitude. Maybe we’ve just dropped the pretense that America us a place where your liberty is as precious to me as mine, and my wellbeing is my priority and should be assured, but yours is an “optional extra” that we can no longer afford. But that doesn’t mean we can’t find a path to something better.
End of Rant.
Fellow Appellate Blawger James J. O’Keeffe has a provocative post on his website which I picked up on Linked-In and commented there and he replied and I re-replied (and he may have re-re-replied by now). I will not go into significant detail as you can click the links and read the back-and-forth yourself, but his premise is that assignments of error will serve no purpose in briefs filed in appeals of right — he is positing that the new rules governing appeals in the Court of Appeals of Virginia (which will all be appeals of right come January 1) should do away with these and permit all case to be “decided on the merits.”
To be frank, I think this is a very bad idea and said as much in my first response. He replied with a qualification that made his argument a little (but only a little) more palatable. He said that assignments of error have no purpose in a well written brief. I have no argument with him on that point, but (you knew that there was a “but” coming, right?) that qualification is very, extremely, hugely significant for the simple reason that the overwhelming majority of briefs filed in the appellate courts of Virginia do not fall into the category of “well written.”
Now, imagine yourself to be a Judge or Justice of the appellate court (or a staff attorney or chambers law clerk — or the Assistant Attorney General having to respond to dozens of criminal appeals). You have a stack of a dozen or more briefs in front of you and maybe one of these is well written. The others range from mildly obtuse to mind-numbingly incomprehensible — and not one of them has a list of the errors being assigned to the lower court. Many do not even have a coherent outline structure. You begin to read the first brief, but its summary of the case reads like a poorly edited Hallmark melodrama, tugging at the heartstrings over the death of innocent youth (yes, I am thinking of an actual brief I once had to read in a civil wrongful death case). The statement of facts is no better (arguably worse) and when you finally get to the argument you have difficulty “laying your finger on the error” because, well, there was no assignment of error to do that for you. In the actual case, there was an assignment of error and it did “lay its finger on the error,” which had to do with the trial court’s admission of a single statement by an expert witness. Virtually none of the statement of the case, the statement of facts, and precious little of the argument addressed the standard of review (abuse of discretion) and the law applicable to the case (whether an expert could express an opinion about the former state of an electrical connection in an automobile headlight where said head light and the wrecked vehicle it was attached to had been sitting the junk yard six-months or so before the expert examined it). Now imagine having to glean the error being addressed in 90% of the briefs you have to read because they are not well written and do not have assignments of error.
Jay’s principal beef with assignments of error is that, if not well written, they can be a “trap for the unwary.” I presume he is speaking of those times when an appeal is dismissed because the attorney failed to assign error to a procedural bar or perhaps assigned error to one basis for a court’s ruling, but not an alternate basis, or, as in Cardinal Holdings v. Deal, simple put the wrong noun in to describe a party, thus reversing the meaning of the assignment of error (I admit that I may be one of the only appellate attorneys in Virginia who thinks Cardinal Holdings was correctly decided). To this argument I say, “Suck it up, Buttercup.” If an attorney cannot draft a comprehensible, complete and accurate assignment of error, is it really conceivable that said attorney will be able to make a comprehensible, complete and accurate argument? The procedural rule that requires an assignment of error is there for a purpose — to make the attorneys, not the judges, decide what the argument is going to be about. If you cannot clearly state the basis upon which you want the judgment below reversed, it’s likely that there is no basis for doing so. And if there is and you can’t see it plainly, find an attorney who can.
In the film A Fish Called Wanda, when the character portrayed by Kevin Kline is confronted with the failure of another of his schemes to double cross his partners in crime, he pauses for a moment with a perplexed look then says in a loud, monotone, “DISAPPOINTED!” Upon reading the majority opinion in today’s only published opinion from the Court of Appeals, I experienced much the same reaction.
Jacks v. Commonwealth is the second appellate court opinion to directly address the impact of the Supreme Court of Virginia’s series of Emergency Judicial Orders concerning the COVID-19 pandemic. In Marinaro v. Marinaro, released on August 3 with a unanimous opinion by Judges Petty and Athey and Sr. Judge Frank, the Court concluded that the Judicial Emergency orders not only imposed upon the circuit courts a duty to consider the impact of the COVID-19 pandemic on deadlines and delays, but to make clear on the record that they had done so and to give reasons why they were not permitting an extension of time. In Jacks, a split panel consisting of Judge Malveaux and Sr. Judge Annunziata in the majority and Judge Huff dissenting, reaches a startlingly different conclusion on a distinguishable, but in my view distinguishable without a difference, issue – how does the appellant preserve for appeal the assertion that the Supreme Court’s Emergency Order grants him relief from a deadline when the circuit court rules that the deadline was not met in a sua sponte order entered without endorsement of (or apparently even notice to) counsel.
Before launching into my own analysis of this case, let me say that my friend and colleague Steve Emmert, with whom I have a somewhat informal gentleman’s agreement that I will not tread on his turf of reviewing Supreme Court of Virginia decisions and he will likewise leave the Court of Appeals to me, has offered an his own view on this case (he being a founding member of the afore mentioned Procedural Geeks Club). As I have honored this agreement as much in the breach as the observance, I cannot fault Steve for writing a lengthy analysis and critique of the Jacks. He had the good form to call me this morning to let me know that the opinion “made his blood boil” and he would be commenting. I therefore commend his prose to you in which he employs the term “staggering” to describe the impact of this opinion.
While I am slightly less sanguine that the Sage of Norfolk, I do agree that the majority appears to have held to the strictest reading of the letter of law while wholly disregarding the spirit of the Emergency Orders. In speaking briefly with Steve, I commented that there seemed to be a dearth of detail in the majority which might explain the basis of the decision on some specific factual element – for I can imagine a number of scenarios where the majority opinion might be more palatable. Because neither the majority nor the dissent address these possible scenarios, I must assume that the facts that would support them were not there (but readers of this Blawg will know that I have recently taken the Court to task for being less than complete in its recitation of facts, so can we really be sure).
On its face, Jacks is a straightforward first DUI. Because a first DUI is a misdemeanor, it is first tried in the General District Court. Jacks received a fairly standard sentence. All of this occurred on the day that the Supreme Court issued the first of the Emergency Orders, March 16, 2020. For reasons not explained in the opinion, Jacks waited until June 3, 2020, to file his notice of appeal from the conviction in the GDC. In ordinary times, this would be an open and shut case – because appeals from the GDC must be appealed within 10 days.
But these were not (and remain not) ordinary times. Under the Supreme Court’s order “all applicable deadlines, time schedules, and filing requirements” were tolled. It is worthy to note that the majority does not opine that the timing of a notice of appeal from the GDC did not fall within this tolling, while the dissent makes a clear and express statement that it mostly did.
Now, you may be wondering why, if there is at least no disagreement as to whether the deadline for filing the appeal was tolled, why I would bring this up. Well, it because the circuit court apparently did not recognize, or at least did not consider, that the tolling of the emergency order applied. Accordingly, the court treated the appeal as it would any other that was beyond the 10-day period – it entered an order on its on initiative dismissed the appeal and waiving endorsement of counsel. Now, had I been the recipient of this order, I most likely would have filed a motion for reconsideration pointing out that the deadline for filing had been tolled. I say this not as a criticism of Jacks’ counsel – I tend to be a “belt and suspenders” kind of lawyer but can certainly understand why Jack’s counsel chose to instead file an appeal in the Court of Appeals and seek to raise the issue of the deadline tolling there.
And, thus, we reach the point of contention between the majority and the dissent – can Jacks raise the issue of the deadline tolling for the first time on appeal. The Commonwealth certainly didn’t think so, arguing under several different theories that Jacks had not made a contemporaneous objection, was barred from raising an issue for the first time on appeal, and have waived the issue as a result.
The majority agrees, applying the most strict interpretation of the contemporaneous objection rule possible. It is not even clear whether the majority would have accepted a motion for reconsideration as sufficient. Moreover, the majority seems to have no problem in finding that counsel can waive an issue by failing to make a contemporary objection even where the court has acted sua sponte and waived endorsement of the order.
Judge Huff takes particularly strong exception to the idea that the contemporaneous objection rule can be applied in this fashion. The majority suggests that his broader interpretation would “eviscerate” the rule, while Judge Huff points out that his interpretation applies to a very specific set of facts.
I am going to take a slightly different tack from Judge Huff and suggest that the real issue here is the failure the court to abide by the Supreme Court’s order. Trial court, for all the discretion they are permitted, must not openly flout an order of a superior court. In my view, the problem here was that the circuit court was operating as if the Emergency Order did not exist, and it should not have been. During the period when deadlines were tolled, I would have thought that no court would have issued an order imposing a default for failure to meet a deadline without at least affording the party to be penalized an opportunity to be heard.
Thus, in my view the preservation and waiver issues raised by the Commonwealth (and adopted by the majority) are red herrings. Even if Jacks’ counsel could have preserved error – by a motion for reconsideration or at least a written objection filed to be appended to the order – the fact that he did not is not really relevant. What is relevant is that no court should be permitted to enter an order in direct contravention of an order of a superior court. The ends of justice which permit an appellate court to take jurisdiction over a case that would otherwise be barred under Rule 5A:18/Rule 5:25 include among other reasons instances in which permitting a judgment of a lower court to stand would erode public confidence in the judiciary and judicial process. I can think of no circumstances more damaging to public confidence than a trial court being permitted to act contrary to an order of a superior court and then having that judgment evade review because of the manner in which the court acted.
I very strongly suspect that this case will be reviewed on a rehearing by the panel, by an en banc Court of Appeals, and/or the Supreme Court.