Some days you eat the bear, and some days the bear eats you

Elwin Charles “Preacher” Roe was a baseball player from Ash Flat, Arkansas.  His major league career spanned 16 years in the mid-20th century, excepting a few years in the middle when he served is the armed forces during the Second World War and, though he was a five time All-Star pitcher, he is mainly remembered these days — if not by name, at least by the repetition of the quote — for a bit of homespun wisdom he offered to a sports reporter after being removed as starting pitcher in a game before the end of the second inning saying, “Some days you eat the bear, some days the bear eats you.”  That’s true of the legal field as much as it is of baseball.  And then there are the days when you eat the bear in the morning and the bear returns the favor in the afternoon.  This past Tuesday was such a day.

As an appellate attorney, I rarely have need to appear in the trial courts.  But, as a member of a law firm with an active trial practice, I sometimes am asked to appear when another member of the firm is not available — and thankfully, where this is due to conflicting appearance requirements, I am given the easier task as between the two.  Tuesday, I was appearing in a civil case where the defendant was in default, so really all I had to do was ask the judge to enter a final order for our client and determine the amount of the judgment, including an award of attorneys fees permitted by statute.  As the only case on the 9:30 docket, this went fairly quickly and then the judge and I chatted for a bit.  I was out the door by 9:45, the bear having been fully dined upon.

In the afternoon, I had an argument before a writ panel of the Supreme Court of Virginia in an appeal from the Court of Appeals in a criminal matter.  I had been brought into the case after the Court of Appeals determined that the issue raised had been waived in the trial court, although the question of waiver had not been raised until the appeal had been granted and the Attorney General had taken over the representation of the Commonwealth.  My task was to convince the Court that the waiver had been “waived” because the Commonwealth had responded in trial court and the judge had ruled upon the motion, implicitly finding that there was good cause to not apply a requirement that the defendant provide notice to the Commonwealth before raising a constitutional challenge to a criminal charge.  The Commonwealth chose not to respond to my brief (which is not a default, as you cannot default as the appellee).

Now, the “bear” in this case manifested himself in the form of Justice Kelsey — who correctly pointed out that 1) even if the waiver was not raised in the trial court, the judgment could be affirmed under a right result/wrong reason approach and the Commonwealth was not subject to the preservation requirement for opposition arguments (with the Justice adding that he recognized it was subject to the rule for cross-error).  I dodged the bear by asserting that the right result/wrong reason doctrine requires that the trial court have an opportunity to rule on the right reason, which did not happen in this case.  But, said the bear, 2) the Attorney General is not bound by the record created by the Commonwealth’s Attorney as they are independent constitutional officers (a rule I happen to disagree with, but that is hardly the point, as it is a rule possibly applicable in this case).  I gamely tried to dodge the bear by asserting that while the AG was not bound by the record created in the trial court, the Commonwealth was bound by the judge’s implicit decision that good cause existed to consider the issue — “waiving the waiver.”  The bear was having none of it, and as my time was expiring I pivoted to the “ends of justice” argument of my third assignment of error — saying that this issue (challenging a penal statute as unconstitutionally vague and overbroad) deserved review, waiver or not.  Justice Mims, presiding perhaps for the final time before his impending retirement, took pity on my bear-mauled carcass by calling time.

Now technically, the bear hasn’t dined yet.  I remain hopeful that my efforts at dodging the bear might yet result in a writ being granted.  I should further say that Justice Kelsey was fully justified in giving me a proper mauling — in fact, my co-counsel had predicted the exact course the argument would take when he learned that Justice Kelsey was on the panel.  Justices do have reputations for being keen on certain issues, and Justice Kelsey is keen on procedural rules that limit when an issue is ripe for appeal.  After all, there is little point in granting an appeal where the result will be decided by a procedural rule barring a review on the merits.  On more than one occasion, a procedural issue slips past the parties and the trial court, and if it could not be raised on appeal it would make for uneven justice — in many cases the appellate court can even raise the procedural issue sua sponte.  But that does not make being the bear’s dinner any less pleasant 🙂