SCOVA handed down a fun published order recently in a local-government case, Rebh v. County Board of Arlington County. I know, right? But bear with me.
Rebh and a bunch of landowners challenged a land-use plan adopted by the County Board of Arlington County. (That is a very silly name, County County Board County.) The trial court sustained the Board’s demurrers to all three of the residents’ claims. On appeal, the CAV found in the residents’ favor on one of their claims: that the Board had failed to give proper notice under Code Section 15.2-2204, rendering its actions void ab initio. The CAV then purported to rule in favor of the Board on the residents’ two other, independent claims. These claims were, importantly, “analytically distinct” from the notice claim. They concerned the statutory resolution and certification requirements and uniformity requirement. (I do not know what these things are, but they sound very important and very, very boring.) Concluding that the trial court did not err in sustaining the Board’s demurrers to those claims, the CAV purported to “hold” that the Board did not violate the resolution and certification requirement or the uniformity requirement.
And so “[d]espite winning a complete victory on their primary claim,” the residents filed a petition for appeal to SCOVA challenging the second two holdings. From their perspective, that was totally reasonable, because the CAV made it clear that it meant for the rulings to have the presidential effect of resolving those issues if they arose in future proceedings.
SCOVA dismissed the petition for appeal. It explained that advisory opinions rendered on moot questions are beyond the scope of the judicial power. “Consistent with this tradition,” Code Section 17.1-411 allows only an aggrieved party to file a petition for appeal. The Court discussed Commonwealth v. Harley, 256 Va. 216 (1998), where the CAV ruled that a criminal defendant (1) had a constitutional right to receive a transcript, but (2) was not prejudiced when he failed to receive one. As such, it affirmed the defendant’s conviction. When the Commonwealth tried to appeal the first “holding” to SCOVA–on the theory that it was aggrieved by a published opinion establishing a constitutional right to a transcript–SCOVA disagreed. The CAV’s advisory holding about the constitutional right to a transcript was nonbinding, the Court explained, as it was rendered moot and advisory by the later holding that the trial court’s error was harmless. Whether the CAV described its constitutional ruling “as a holding or not, it was simply dicta.” While it might later be cited as persuasive authority, it would have no binding effect on lower courts, other CAV panels, or anyone else.
Similarly, in Rebh, the CAV’s second and third rulings presented a “dicta-qua-holding scenario.” Once the CAV ruled that the Board’s actions were void ab initio for lack of notice, there was nothing left for a Virginia court to do. By succeeding on their first point, the residents won the case outright.