The SW Virginia law blog points to en banc opinion in Moore v. Com, in which “the appellant's lawyer citing the wrong legal standard in stating the questions presented under Rule 5A:12... and thereby fail[ed] to present a question using the right legal standard.”
The blog has extensive commentary on this decision, and most poigniantly says:
The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.
You want my thoughts on this? Of course you do. Read on.
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.
Obviously it goes without saying that, in a case coming from Virginia, this means that a defendant loses on purely technical grounds. The underlying issue was a potentially illegal traffic stop. But hey, they like it that way.
Want to know how the defense screwed up? He confused probable cause with reasonable suspicion, and the Virginia Courts figured out how to convert this into a jurisdictional requiremnet.
The question presented in Moore’s petition for appeal is: “Did Officer Bryan have probable cause to make a traffic stop of the vehicle being driven by Moore on the sole basis that he observed that a valid inspection sticker was not totally affixed to the windshield of the vehicle?” On brief, Moore reiterates that “the issue in this appeal” is whether the officer had “probable cause” to conduct the traffic stop of Moore’s vehicle. He further asserts on brief that “[t]he Supreme Court has held that an officer must have probable cause to believe a traffic violation to have occurred, only then can the officer have the right to conduct a traffic stop.”
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).