Here’s a fun procedural question for appellate geeks: Can an equally divided Court of Appeals, sitting en banc, reverse a judgment previously entered by a panel of that court?
It seems like the answer ought to be a simple no; when an appellate court is evenly divided, the default result is affirmance. But in Conley v. Commonwealth, things get a little complicated.
Conley was convicted of two misdemeanor DUIs, then a third felony offense, DUI after being twice convicted of the same offense within 10 years. His direct appeals foundered, but he was eventually able to habeas his way out of the second conviction.
That left a problem: Conley’s third-offense DUI was really a second offense, even though he’d suffered the heightened penalties.
Conley filed a petition for a writ of actual innocence in the Court of Appeals of Virginia.
A divided panel granted his petition and remanded the case for resentencing. The Commonwealth asked for a rehearing en banc.
The Court of Appeals heard argument sitting en banc with 10 judges, and split evenly. It entered an order stating: “Upon rehearing en banc, the petition for writ of actual innocence is dismissed without opinion by an equally divided Court. Accordingly, the order previously entered by a panel of this Court . . . is withdrawn.”
What a minute . . . isn’t that the opposite of what’s supposed to happen?
Typically, when an appellate court finds itself equally divided, it affirms the result below. In Studio Center Corporation v. WKW Construction LLC, Record No. 092257 (Jan. 28, 2011), for example, an equally divided Supreme Court of Virginia affirmed the trial court.
An affirmance by an equally divided court has no precedential value. Neil v. Biggers, 409 U.S. 188, 192 (1972) (“Nor is an affirmance by an equally divided Court entitled to precedential weight.”); Pack v. Commonwealth, 6 Va. App. 434, 435 n.1, 368 S.E.2d 921, 922 n.1 (1988) (“[A]n equally divided vote to affirm the lower court’s decision has no precedential value.”). Nor does it settle any question of law. Laird v. Tatum, 409 U.S. 824, 838 (1972) (per Rehnquist, J., on a motion to recuse) (consequence of affirmance by an equally divided court is “that the principle of law presented by the case is left unsettled.”).
When an appellate court is equally divided, it can’t enter an order of reversal, so the result below has to stand. Neil, 409 U.S. at 192. While the judgment is styled an “affirmance,” that’s really just the most convenient way of saying that the case is finally disposed of in accordance with the lower court’s ruling. Id. The legal effect would be the same if the appeal had been dismissed. Id.
It’s not clear from the Supreme Court’s opinion exactly how the CAV arrived at its result, but the Supremes wasted little time in setting it aside. Senior Justice Russell, writing for the Court, notes that the Court of Appeals hears petitions for writs of actual as a court of original jurisdiction. Thus, in Conley, it wasn’t reviewing any decision from a lower court. “Rather, the Court sitting en banc had before it for review only the decision of its own panel.”
Under Code Section 17.1-402(E), the en banc Court of Appeals can reverse a judgment, in whole or in part, only by a majority. Justice Russell explained that the panel’s decision was a judgment within the terms of the statute because it disposed of all issues in the case and ordered the issuance of a writ of actual innocence.
Conley admittedly presents an unusual situation. As Steve Emmert points out, the Court of Appeals will usually hear cases with eleven judges when it sits en banc, not ten. Still, Virginia’s appellate courts will occasionaly find themselves evenly divided (see, e.g., Studio Center), and it’s good for practitioners to understand the rules when that happens.