One of the themes that we harp on here at De Novo is the importance of answering the Court”s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.
That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.
And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.
Justice Koontz, writing for the Court, never gets to answer this question. He winds up affirming the Court of Appeals, which had dismissed Roberson’s appeal, albeit for a different reason. Fair enough. But he begins his discussion with this remarkable footnote:
Despite our direction that this issue would be addressed in the appeal, Roberson did not file a reply brief responding to the arguments of the City and the Commonwealth. Moreover, when during the oral argument of this appeal the Court attempted to elicit the views of Roberson’s counsel on the question of the Court of Appeals’ jurisdiction over the appeal and, if so, whether the City might have waived its objection to not being named as the appellee in the notice of appeal, Roberson’s counsel stated that he did not “think it was a waiver question.” Rather, Roberson continued to maintain that the issue was one of “fairness” as to whether he should have been required to determine that the City was the prosecuting authority by “ferreting out some piece of paper that says City on it.”
When the Court asks a question at oral argument, it is giving you a gift. It is letting you in on its thought process, and giving you a chance to share your views. It’s like the Court is making you a part of its decision conference.
When the Court identifies an issue in the order granting the appeal, so that you have time to research and brief the issue in advance, it’s being so generous that my metaphor breaks down. Maybe they wrapped the gift up in a purple Cadillac full of money (which is, by the way, how one of my partners rolls).
You have to take those opportunities. It doesn’t matter if you don’t think it’s a waiver issue–Justice Koontz might, and he gets to write the opinions.