Ever wonder what would happen if you named the wrong party in your notice of appeal? Thanks to the Supreme Court of Virginia's February decision in Ghameshlouy v. Commonwealth, we now have the definitive answer:
Our story begins when the Virginia Beach police respond to a call about a domestic altercation at a hotel. They question our hero, Eric Amir Ghameshlouy (spellings vary throughout the record), who gives "evasive and conflicting answers" about his name and age. [Note to self: when lying to police, give consistent and responsive answers.]
The police arrest Ghameshlouy and charge him with violating a local ordinance that makes it a misdemeanor to provide false identifying information.
The police also conduct a search incident to the arrest, and find a bag of white powder.
I know what you're thinking: iocaine powder--odorless, tasteless, dissolves instantly in liquid and among the more deadly poisons known to man?
No, turns out it was just run-of-the-mill yayo. That earned Ghameshlouy a felony indictment under state law, in addition to his misdemeanor charge under local law.
Ghameshlouy eventually reached a plea agreement with the Commonwealth on the state charges. He then went to trial on the local charge, and lost. The same Deputy Commonwealth's Attorney represented both the state and the locality in the proceedings. Separate orders of conviction were entered for the state offenses and the municipal offense.
Ghameshlouy filed a notice of appeal in the record of the local case, listing in its caption the docket number for that case as well as the state cases. He named only the Commonwealth in his caption and Rule 5A:6(d) certificate.
The Court of Appeals granted his appeal as to the local offense but not the state-level cocaine conviction. Ghameshlouy filed his opening brief, continuing to identify the Commonwealth as the appellee and certifying that he had served the Assistant Attorney General. The Commonwealth and the City filed a joint brief on the merits.
A month later, the Commonwealth moved to dismiss the appeal on the ground that Ghameshlouy had failed to name the City, an indispensable party, as an appellee in his notice of appeal. A split panel of the Court of Appeals dismissed the appeal for lack of jurisdiction.
On appeal, the Supreme Court reversed. It held that the failure to name the City as an appellee was a procedural defect, not a jurisdictional one.
The Court explained that subject matter jurisdiction is best understood as “potential jurisdiction,” or the authority conferred upon a court by constitution or statute over a defined set of cases. It becomes “active jurisdiction,” or the power to adjudicate a given case on the merits, when various elements are present. These include territorial jurisdiction and “notice jurisdiction, or effective notice to a party.” All of these elements must be present for a court to proceed to a valid judgment.
The question in Ghameshlouy was not whether the Court of Appeals had statutory authority or territorial jurisdiction to hear the appeal; it clearly did. Rather, the issue was whether Ghameshlouy’s notice of appeal had caused the court’s potential jurisdiction to mature into active jurisdiction--that is, the authority to rule on the case before it.
The Court found that it had. It explained that filing a timely notice of appeal is a mandatory prerequisite to appellate jurisdiction. Strict enforcement of the timing requirement is necessary because litigation is a serious and harassing matter, and the right to know when it's over is a valuable right.
It does not follow, however, that every requirement of the notice of appeal rule is jurisdictional. The Court has “never required that a notice of appeal be precise, accurate, and correct in every detail before the appellate court can acquire jurisdiction.”
Rather, most statutory and rule-based appellate requirements are procedural and subject to waiver, "even when couched in mandatory terms by the language of the statute or rule." That was the case in Ghameshlouy. While the defect in the notice of appeal would otherwise have justified dismissal, it was subject to waiver--and the City clearly waived any objection by its actions.
Lessons from Ghameshlouy:
- Most statutory and rule-based appellate requirements are non-jurisdictional, and therefore waivable. Reading Ghameshlouy in connection with Roberson, a companion case decided the same day, tells us that any defect that does not affect the timeliness of the notice of appeal or the identity of the case being appealed is a waivable procedural defect.
- But you still have to assert the waiver. That is why Ghameshlouy won and Roberson lost, on very similar fact-patterns.
- Waiver isn't something that only appellants have to worry about. Appellees must take care to protect their procedural defenses as well.