There’s No Arguing With “Sua Sponte”

The American system of law is putatively adversarial.  Not that it encourages the use of well-aimed weapons, unless one possesses deadly weapons in a battle of wits, but that one side makes an argument and the other gets an opportunity to challenge it. 

The reasoning is simple.  Since we can’t see into the minds of others, we don’t know what they are thinking unless they give it voice.  At that point, we have an opportunity to correct, question, challenge or punt, as the case may be.  There is supposed to be a parry and riposte, so that each side has a fair chance.  Fat chance.

In this pathetic decision, via Appellate Law & Practice, an en banc opinion in Moore v. Com shows how the court can outsmart an attorney (like that takes a lot of brains) through the simple mechanics of raising an issue sua sponte (latin for “on one’s own accord”).  It was not enough that there was a prosecutor against the defense, the court had to get in the game as well.


In this decision, the court seized on an error in the appellant’s brief, where he used the wrong legal standard of probable cause in framing the issue of whether a traffic stop was lawful, rather than the standard of reasonable suspicion.  Rather than addressing the merits, in its search for fairness and intellectual integrity, the court found the perfect means of side-stepping the appeal altogether:
Moore sets forth the wrong legal standard that governs this case and also misstates the law. Whether an officer is justified in making an investigatory traffic stop is not governed by probable cause; rather, the officer’s action is judged by the lesser standard of reasonable and articulable suspicion of criminal activity. … As no appeal was sought or granted on the issue of whether “the officer’s action [was] supported by reasonable suspicion” of “legal wrongdoing” when making the traffic stop, Arvizu, 534 U.S. at 273, “we may not consider this issue on appeal” under Rule 5A:12(c).

According to the court, the use of the erroneous standard divested the court of jurisdiction.   Mind you, this wasn’t raised by the prosecution so that the defense would be alerted to its error and given an opportunity to change its rhetoric to the correct legal standard.  No, they missed it too, apparently.  But not that tricky court.  They caught it, and slam-dunked the appeal on jurisdictional grounds.  Sorry, Mr. Defendant, no day in court for you.

Mind you, the error in the legal standard used for a traffic stop is (ahem) an incredibly stupid mistake.  Criminal defense lawyers work with these standards every day.  While their actual meaning tends to float in the breeze, given the limitations of language and the viscitudes of judges, the phrasing of the standard itself is awfully easy.  There really isn’t any excuse for appellate counsel to use the wrong standard, unless he was rushing to get the brief done between real estate closings.

But counsel’s dumb mistake could have been corrected by the court, sua sponte, in its decision on the merits.  Or, the court could have directed to him to rebrief it using the correct standard.  Or, the court could have accepted the standard proffered by the appellant since the respondent neglected to challenge it.  But not in ol’ Virginny.

Here’s the deal.  When appellate counsel makes a mistake, he loses the appeal.  The court considers the argument and, if he’s wrong, he loses.  That’s how it goes.  Sometimes, the court will pick up on a stupid mistake like this one, and apply the correct standard to the facts, and render a decision based upon the correct application of law.  And then the appellant loses anyway.  Okay, sometimes not, but we’re working with the odds here.

What appellate courts do not do is divest themselves of jurisdiction because of a mistaken use of the wrong words.  S.Cotus nailed it with his succinct commentary:


I think this pretty much shows how we are all fooling ourselves when we claim that “the law” is all about intellectual legal argument and devoid of politics. In fact, this decision is pretty much a case-study of how judicial politics work.

Is he suggesting that the appellate courts of Virginia might be politically antagonistic to defendants, searching for new and imaginative ways to not only beat them back, but slam the door shut hard enough to whack ‘em on the butt?  Why, I believe he is.

6 comments on “There’s No Arguing With “Sua Sponte”

  1. S.cotus

    While the VA courts have, historically, been antagonistic to defendants, this might not be precisely what I am trying to say in this case. My guess is that the judges were making a political decision NOT to reach the issue at this time. They see themselves a political players in a larger system, and my guess is that they see that the “hand” they they have been dealt (i.e. the facts) does not give them enough to actually lay down some good caselaw or tee the issue up the Supremes.

    Sure, this results in someone going to jail, but putting the issue off to another day, in my view is a way to let a more politically-friendly case come before them to make a holing that, in other states would be relatively non-controversial.

    So, to be clear, judicial politics isn’t necessarily anti-defendant or partisan. But, it is a recognition by individual judges or individual courts that the court is but one institution in an inherently political system.

  2. SHG

    I don’t think any lawyer who has spent more than 5 minutes doing trials or appeals thinks courts or judges are immune from political considerations.  But if this decision was merely a reflection of the court’s political choice of avoiding the issue, there are far easier ways to accomplish that goal than a decision like this, using those pleasant words like baseless, frivolous, meritless, foundationless, erroeous, etc.  If their purpose was to address the issue on a more suitable set of facts, then this decision was a foolhearty way to do so.  Moreover, the decision has precedential value, which means of course that it creates another landmine in the appellate landscape that will have to be dealt with going forward.

    When confront with either difficult issues, litigants or politically unpalatable holdings, appellate courts have a wonderful array of mechanisms to make their problems go away.  This holding is different, in that it’s an affirmative assault on the defendant’s jurisdictional right to an appeal because of his attorney’s mistaken use of the wrong legal standard.  That’s not politically expedient.  That’s an intentional blow to the head.

  3. S.cotus

    >>If their purpose was to address the issue on a more suitable set of facts, then this decision was a foolhearty way to do so.

    This is probably where we agree.

    >>>Moreover, the decision has precedential value, which means of course that it creates another landmine in the appellate landscape that will have to be dealt with going forward.

    It only has precedential value in the sense that future lawyers will know that they have to write more contrived points on appeal. Substantively, since the court never reached the issue, it is of no precedential value.

    >>>This holding is different, in that it’s an affirmative assault on the defendant’s jurisdictional right to an appeal because of his attorney’s mistaken use of the wrong legal standard.

    Again, I agree with you in spirit, but I am not going to go so far. In Virginia there is no absolute right to appeals. They must be “granted.”

    This would seem to be the problem with use of the term “jurisdiction” as a whole. Many judges love to use it as a crutch to hide behind – claiming that they lack jurisdiction (even when they manufacturer the legal standard or point they used to make that determination in the first place) – and in this case they used it all too well.

    Now, stepping back a bit and not ascribing evil motives to the judges, it may well be that they view they job as intervening in police procedures when things get “too bad.” (This is one theory of criminal procedure, but surely not the only.) However, they feel that they can only do it when an issue is so squarely presented to them on such aberrant facts that people will instinctively feel that they are doing the right thing and not question the legitimacy of any decision.

    Whatever the case, I agree with you: the way the court went about doing this was decidedly lacking in judicial temperament.

  4. SHG

    I wouldn’t write off the precedential problem so quickly.  Next appeal where appellant’s counsel uses the wrong standard, prosecutor moves to dismiss for lack of jurisdiction.  After all, no jurisdiction, no appeal.  So the court is caught between being wrong now, wrong later or applying this as precedent going forward.

    Remember, they didn’t rule against the appellant.  They held that the court lacked jurisdiction because of his use of an erroneous standard.  Without jurisdiction, that’s the end of the ball game.  It’s nuts.

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