Last week's Virginia Court of Appeals opinion on questions presented

The en banc opinion in Moore v. Com. is about the appellant's lawyer citing the wrong legal standard in stating the questions presented under Rule 5A:12, and thereby failing to present a question using the right legal standard, with the result that the case was booted without a decision on the merits.

According to the dissent, the majority came up with this 5A:12 issue "for the first time sua sponte following argument on rehearing en banc." The panel decision did not address the sufficiency of the statement of the questions presented.

Judge Humphreys in his concurrence explained: "Some might suggest our disposition of this case is an overly technical application of our Rules. However, under the constitutional and statutory scheme under which we operate, we must decide cases based upon the issues appellants present to us, not the issues they might or should have presented. At both the trial and appellate level, our system of justice is inherently an adversarial system and the courts may not properly assume the role of an advocate for either party."

Judge Petty wrote that's all well and good, but the record is not as clear that the right legal standard was not raised: "While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. . . . In his opening brief, appellant argued that the officer had neither probable cause nor reasonable suspicion to justify the stop. The Attorney General understood the issue, rephrased the question presented to state the correct constitutional standard, and went on to address it. In a published decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant to address the issue at oral argument. Simply put, at no time prior to our decision did the form of the question presented raise any concern."

An interesting combination of dissenters, Elder, Felton, and Beales, were of the view that the lawyer's statement of the question was close enough to put before the Court the issue of whether the failure to suppress the disputed evidence was legal error, and that should be close enough.

The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.

If the case goes to the next level, I wonder how the requirements of Rule 5:17(c) will be addressed. Opinions such as in Haugen v. Shenandoah Valley Dept. of Social Services, 645 S.E.2d 261 (Va. 2007) suggest some cause for optimism on this procedural issue, but there are others not so friendly. Somewhat surprisingly, there's not much about Rule 5:17 as the ancestor of 5A:12 in any of the four opinions.

The Federal courts have a somewhat similar rule in Rule 28(a)(5), but I'm not aware of any case where a federal appeals court has applied this rule to boot an appeal where the substantive argument was addressed in the body of the brief - not that Virginia's appeals courts much care about what other courts do. See generally Wright, Miller & Cooper, 16A Fed. Prac. & Proc. Juris.3d § 3974.1. I argued Rule 28 one time where the pro se appellant didn't put anything in his brief but references to the arguments made in the District Court, citing Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir. 2003), in which the Sixth Circuit "joined the other circuits in concluding that the requirements of Rule 28 may not be satisfied by reference to court papers filed in the lower court." What did I get? An order from the Sixth Circuit directing the appellant to fix his brief.