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Frequent fliers in the Supreme Court of Virginia are all too familiar with Rule 5:25, the Court’s contemporaneous-objection rule.

The rule is straightforward:

No ruling of the trial court, disciplinary board, or commission before which the
case was initially heard will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or
to enable this Court to attain the ends of justice. A mere statement that the judgment or
award is contrary to the law and the evidence is not sufficient to preserve the issue for
appellate review.

It’s also almost invariably fatal. A quick Lexis search shows that Virginia courts have cited “Rule 5:25” in 463 cases. That suggests that the rule has killed more appeals than Chuck Norris and my own incompetence combined. So, scary stuff there.

“But wait,” the naive client or novice appellate lawyer in my head sometimes argues, “doesn’t the rule have two exceptions–‘except for good cause shown or to enable this Court to attain the ends of justice’?”

That’s technically correct, imaginary voice in my head, but those exceptions have historically been very, very limited. Habeas cases aside, I’m not sure that I’ve ever seen the ends-of-justice exception applied in a civil case. And until last Thursday, I’d never seen the good-cause exception at all. If you’d asked me a week ago, I would have told you that it didn’t really exist; it was a collection empty words on a page. I’d have advised you to put your faith in Bill Belichick’s ethics unicorns over that particular bit of verbiage.

But that was all a week ago. Then came the SCV’s latest batch of opinions. The set included Hicks v. Director, Department of Corrections, which applied the ends-of-justice–excitement enough for an appeals geek (and Hicks is discussed at length on Steve Emmert’s blog). Just a little further down the list, I found Toghill v. Commonwealth.

And there it was: The unicorn. The white whale. The watchable network drama.

An opinion applying the good-cause exception to Rule 5:25.

So let’s have as much fun with this opinion as we can, because who knows when another will show up.

We’ll start with the facts. Our story begins, as stories so often do, with Mr. Toghill, “an adult, engaged in an email exchange with a law enforcement officer posing as a minor wherein Toghill proposed that the two engage in oral sex.” Toghill was tried and convicted in 2012 of soliciting sodomy from a minor. He did not argue at trial that the underlying statute supporting his conviction, Code § 18.2-361(A), was unconstitutional.

The next year, in a separate case, the Fourth Circuit concluded that  Code § 18.2-361(A) was facially unconstitutional in light of Lawrence v. Texas in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013). So Toghill appealed to the Court of Appeals of Virginia, adopting the Fourth Circuit’s rationale and candidly admitting that he’d raised Code § 18.2-361(A)’s constitutionality for the first time on appeal.

Unfortunately for Toghill, the SCV had previously held that Code § 18.2-361(A) was constitutional as applied to oral sex between an adult and a minor in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007) . And so the CAV affirmed the trial court, and Toghill appealed to the SCV.

The Commonwealth argued that Toghill was procedurally barred from raising the argument because he did not raise it in the trial court. The Court considered Rule 5:25, and acknowledged that it had held that it could not reverse a trial court on a ground never raised below–and that it did so in the specific context of a challenge to the constitutionality of Code § 18.2-361(A). But the Court reviewed the timeline:

  • In 2007, the Court held that Code § 18.2-361(A) was constitutional in McDonald;
  • In 2012, Toghill was convicted;
  • In 2013, the Fourth Circuit held that Code § 18.2-361(A) was unconstitutional in MacDonald.

The Court acknowledged that its cases have not applied the good-cause exception. But given those facts, it held that “the conflict created by the Fourth Circuit’s subsequent opinion is good cause under Rule 5:25 to consider the error alleged by Toghill regarding the constitutionality of Code § 18.2-361(A).” It stressed that the exception applied in “this narrow instance.”

(Okay, quick Zack Morris timeout: As a lawyer who regularly represents appellants, and as an observer who suspects that the Court’s waiver jurisprudence may have grown, um, excessively robust, I like this result. But as an objective observer, I have to admit that it’s surprising for several reasons. First, the Court acted sua sponte; Toghill never even asked it to apply the good-cause exception. And why would he? The Court itself had never applied the exception. Second, as Justice Mims points out in his concurrence, the majority approach “creates the precedent that an appellant may raise an issue for the first time on appeal simply because a federal court addressed it in a non-binding opinion after the state court has concluded its proceedings . . . .” I’m told that it’s not hard to find recent cases where the Court declined to reach issues under these circumstances, but I haven’t done the research. Third, what conflict did the Fourth Circuit’s opinion create? It was non-binding.)

Back to the main plot: In the end, none of this helps Toghill. The five-justice majority concludes that the Fourth Circuit got it wrong in MacDonald. Justices Mims and McClanahan concur separately. Neither would have applied the good-cause exception, and both would have affirmed. So Toghill gets shut out.

So what can we take away from Toghill?

  1. Toghill holds that the conflict created by an intervening, nonbinding opinion can qualify as “good cause shown” under Rule 5:25, allowing the Court to reach an issue that wasn’t raised below. Nothing necessarily limits this principle to intervening Fourth Circuit opinions on constitutional issues.
  2. It’s clear from the Court’s opinion that it is concerned with conflicts in the law. You can leverage this concern to your advantage in other contexts. For example, if you want your Petition for Appeal to grab the Court’s attention, you might play up a conflict between the state trial courts, or a doctrinal detour that the federal courts took.
  3. The Toghill Court stressed that the good-cause exception applied in this “narrow instance.” The SCV will sometimes be a little more forgiving with preservation issues in criminal cases. I wouldn’t necessarily expect a Toghill argument to work in a civil appeal. In fact, I wouldn’t necessarily expect it to work anywhere, ever. Raise your appeal points in trial court.