We spent last post complaining about the difficulty of landing an assignment of error in the Goldilocks Zone. When I bring this up in real life, the response is usually that the Court solved this problem with Findlay v. Commonwealth, 287 Va. 111, 752 S.E.2d 868 (2014) .

I disagree, for at least three reasons. But first, a little background: In Findlay, the defendant was convicted of possessing child pornography. He sought review in the Court of Appeals, asserting this assignment of error:

The Petitioner/Appellant assigns as error the trial court’s denial of his Motion to Suppress all of the seized videos that came from the defendant’s computer, and his computer hard drive, and all derivatives thereof.

The Court of Appeals held that this assignment was insufficient because it failed to list any specific error in the rulings below. It therefore dismissed Findlay’s appeal. The Supreme Court reversed 5-2, finding that this assignment was adequate. Justices Powell and McClanahan dissented. They would have required the petitioner to explain in his assignment of error why the trial court was mistaken.

So why doesn’t Findlay end the discussion about how specific an assignment of error needs to be? A few reasons.

1. Findlay will remain good law only so long as it commands a majority. Findlay was a 5-2 decision. Justice Mims wrote for a majority that included Chief Justice Kinser, then-Justice Lemons, Justice Millette, and Justice Goodwyn. Since then, Chief Justice Kinser has retired and Justice Millette has taken senior status. Their seats are now held by Justice McCullough and Justice Kelsey. My best guess is that if Findlay were decided today, it would come down 4-3  based on those changes in personnel alone–and that’s assuming that none of the remaining members of the majority have adopted a harder line on assignments of error in the past four years.

2. Findlay‘s reasoning is less than helpful. Though I like Findlay‘s result, I don’t love the way that the Court got there. The majority first reviews the relevant parts of Rule 5A(12)(c), which governs assignments of error in the Court of Appeals:

Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely. . . . An assignment of error which does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence, is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed.

It then  explains the purpose of this rule, as set out in the case law:

The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which [the] appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, [the] appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk’s office, or to file, in civil cases, assignments of cross-error.

Thus, the appellant must “lay his finger on the error,” and not invite the appellate court “to delve into the record and winnow the chaff from the wheat.” Findlay’s assignment did this; it pointed to a specific ruling, and it didn’t just say that the result in the trial court was contrary to the law and the evidence. The Commonwealth’s attorney understood Findlay’s argument well enough to prepare a focused brief in opposition. The majority specifically rejected the dissent’s argument that an assignment of error has to explain why the trial court was mistaken, because in many cases that would be impossible. Sometimes, for example, the trial court will simply fail to explain its reasoning. The majority also noted that the Court had, in he past, reviewed assignments of error roughly as detailed as Findlay’s.

What’s wrong with that? A few things. First, as the dissent points out, the Rule doesn’t say that the petition shall list the erroneous ruling below. It says that the petition shall list “the specific errors in the ruling below.” This implies that the assignment needs to explain why the ruling below was mistaken. By its plain terms, that seems to favor the dissent’s reading over the majority’s.

Second, the case law’s explanation of an assignment of error’s purpose is nuts. As the Findlay Court points out, an assignment is supposed to identify the point on which the appellant seeks reversal and to limit discussion to that point, because otherwise the appellee would be unable to (1) prepare an effective brief, (2) designate an appendix, (3) confirm the correctness of the record, or (4) file an assignment of cross-error.

This makes little sense, at least against the backdrop of modern appellate practice. On points (1) and (2), a petition for appeal in the Court of Appeals can be 12,300 words long. Findlay’s assignment of error runs to 34 words. So nothing in the remaining 12,266 words in the petition could give the Commonwealth any clue what the appeal might be about, leaving it unable to prepare an appellate brief? That seems implausible, especially since the contemporaneous-objection rule creates a closed universe of possible appeal points: On appeal, we’re only allowed to argue about something that we raised with the trial court below. As to point (3), the correctness of the record  has nothing to do with assignments of error. The records is either correct, or it is not, irrespective of the appellant’s complaints about the trial court’s rulings. And on point (4), an appellee who was materially harmed by a mistake in the trial court should probably  assign cross-error.

To be clear, this is not meant as a criticism of the majority’s reasoning; Justice Mims was quoting from precedent, and he is bound by stare decisis. He still managed to get the majority to a fair and reasonable result. It’s not his fault that the case law on this point leaves something to be desired.

3. The Court can always tweak the rules. Findlay interprets the Rule 5A:12. Even if a majority of justices does not drift away from the ruling itself, the Court could still tweak the text of Rules 5A:12 and 5:17 to ratchet down assignments of error. Article VI, Section 5 of the Constitution of Virginia empowers the Supreme Court of Virginia to make rules governing appeals and civil procedure. Code § 8.01-3 also addresses the Court’s rule-making authority.