Lack of Adequate Record Dooms SCOVA Gun Rights Appeal

Last month, Governor Northam issued an executive order banning firearms from a rally organized by gun rights advocates in Richmond's Capitol Square. Almost immediately, several groups and individuals associated with the rally petitioned the Richmond Circuit Court to enjoin the Executive Order. After holding a hearing the same day the petition was filed, the trial court denied the request for an injunction. So the petitioners quickly filed an emergency Petition for Review in the Supreme Court of Virginia. Although the Petition was filed mere days before the scheduled rally, and on the eve of a holiday weekend, SCOVA acted quickly and entered an Order refusing it late on a Friday evening.

As one would expect with a situation involving a hot button issue like Second Amendment rights, Governor Northam's Executive Order and the short legal battle that followed received national attention. But for Virginia appellate practitioners, it also offered a stark reminder of an inviolable rule.

A petitioner/appellant must provide SCOVA with a sufficient record.

Rule 5:11(a) of the Rules of the Supreme Court of Virginia makes clear that "it is the obligation of the petitioner/appellant to ensure that the record is sufficient to enable the Court to evaluate and resolve the assignments of error." When the petitioner/appellant fails to provide a transcript or written statement of facts which allows the Court to do that, "any assignments of error affected by the omission shall not be considered." If SCOVA needs to consider evidence adduced in the trial court to address an issue raised on appeal, the Court can't do that merely by looking at the parties' pleadings and the trial court's order. Prince Seating Co. v. Rabideau, 275 Va. 468, 470-71 (2008).

The gun rights advocates failed to provide an adequate record for SCOVA to consider their appeal.

On appeal, the gun rights advocates argued that the Richmond Circuit Court abused its discretion by failing to enjoin the Governor's Executive Order. Under Virginia law, whether a trial court properly exercised its discretion to grant or refuse an injunction depends on the circumstances of the particular case. What those circumstances are must be shown by evidence introduced in the trial court. That evidence would usually be reflected in a transcript or written statement of facts showing what happened in the court below. But the petitioners failed to file one. So SCOVA was left with nothing but the parties' pleadings and some "cursory attachments." That, SCOVA said, left it "unable to discern whether the trial court abused its discretion." Under those circumstances, the Court had no choice but to refuse the Petition for Review.

 

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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