Supreme Court Reverses While Affirming: A Caution Against Advisory Opinions

Courts are supposed to decide only the necessary things. They’re supposed to avoid weighing in on issues that don’t need a decision. Those principles came to a head in the Supreme Court of Virginia last month in Rebh v Arlington County.

The result was a really strange appeal. The side that “lost” in the Supreme Court actually won. The side that “won” a motion to dismiss actually lost. The Court of Appeals case that was affirmed was effectively reversed. And the Supreme Court, as it dismissed an appeal, nevertheless issued a published opinion.

It’s a tale of appellate practice intrigue and delight!

Fighting City (County) Hall and Winning (Mostly).

Mr. Rebh and a group of fellow Arlington residents challenged Arlington County’s adoption of a land-use plan. The case made its way to the Court of Appeals, Virginia’s intermediate appellate court, which held that Rebh was right. Arlington didn’t give proper notice of its land use plan which had the effect of making the plan that it adopted void ab initio. (Ab initio is the worst kind of void. It’s the kind that makes a thing so dead it’s as if it had never been born.) So, congrats, Rebh, right?

Well, not so fast.

In the Court of Appeals, Rebh raised three separate challenges to the Arlington land use plan. The first one was the problem with notice. He won that challenge and it won the case for him. The two other challenges claimed that Arlington had not complied with resolution and certification requirements and, separately, that it did not comply with a uniformity requirement. (What those things are isn’t important to this discussion. Just keep in mind that they were two independent issues Rebh raised in the case.)

On these second and third issues, the Court of Appeals decided against Mr. Rebh. The Court made those rulings even though it had already ruled that Rebh had finally and completely won his case. What’s more, the Court of Appeals issued that ruling in a published opinion.

Well, Rebh saw those rulings against him and immediately tried to re-cork the champagne celebrating his sweeping victory on the first issue. Concerned that the adverse rulings on the last two issues would be binding precedent he couldn’t live with, Rebh did a weird thing, but probably the only thing he could do. He appealed his own win from the Court of Appeals to the Supreme Court.

Arlington County was, unsurprisingly, a little befuddled. Its adversary, who won, was now appealing from his own victory. So Arlington did the only sensible thing it could do in response. It moved to dismiss Rebh’s appeal.

The Supreme Court Dismisses the “Winner’s” Appeal.

Not at all surprisingly, the Supreme Court granted Arlington’s motion to dismiss. Rebh appeal dismissed, case over, right? Well, once again, not so fast.

The Supreme Court took a look at the odd procedural landscape before it and thought “it important … to briefly explain [its] reasons” for dismissing the appeal.

And those reasons boiled down to a caution to the Court of Appeals to not issue advisory opinions. Advisory opinions are any ruling by a court that isn’t necessary to actually deciding the case. And the rule against advisory opinions is grounded in both humility and respect. Who are judges to exercise power when there’s no judge-fixable problem to solve? Other people with power in the executive and legislative branches, and the people of the Commonwealth themselves, have rights and obligations and an advisory opinion telling them what to do unfairly intrudes on those rights.

The problem with the Court of Appeals ruling was that its decisions against Rebh on two additional issues were unnecessary. The Court of Appeals had already conclusively decided the case when it ruled in Rebh’s favor on the first issue. The Supreme Court said that having decided what was necessary to resolve the case, any additional rulings by the Court of Appeals were inappropriate.

The Court of Appeals, it should be noted, explained that it was deciding the additional questions against Rebh “for the purpose of resolving them should they arise again in future proceedings.” And that general idea is not foreign to appellate courts. It often happens that an appellate court will, for example, reverse a case for a new trial and then also decide evidentiary issues that the parties have raised and are likely to arise again on remand.

But that isn’t what happened in the Rebh case. When the Court of Appeals ruled that Rebh had won his lawsuit, the case was over. There weren’t going to be any “future proceedings” in that lawsuit. The only future proceedings that might happen were those that could arise in some new lawsuit at some future date. The Supreme Court made clear that deciding issues with an eye toward a future case is the quintessence of an advisory opinion and those aren’t allowed. Advisory opinions are, in the parlance of the Court, dicta and have no precedential value.

Supreme Court Decides That Court of Appeals Didn’t Decide.

The other procedural oddity in the case is that the Supreme Court’s considered dismissal of Rebh’s petition took almost six pages. The Supreme Court styled its ruling as an order. The order came from the Court as a whole without a particular Justice identified as the author. Unlike most routine orders, though, the Court ordered that this one be published in the reports of cases of the Supreme Court.

See what happened there?

Rebh didn’t like the Court of Appeals’s published opinion that contained dicta with which he disagreed. So he appealed to the Supreme Court, but that Court agreed he had no right to appeal a case that he won. Still, the Court of Appeals had published an advisory opinion with dicta, so the Supreme Court shot down the dicta in a published opinion of its own.

The end result: a published opinion from the Supreme Court that dismissed Rebh’s appeal while simultaneously agreeing with the substance of it.

If that’s not far enough down the rabbit hole, consider this point. The Supreme Court could have just dismissed Rebh’s appeal. A one sentence explanation to the effect of, “Rebh can’t appeal because he won already and winners don’t have a right to appeal,” would have been accurate and complete. And yet, the Supreme Court went to pains to explain that the Court of Appeals opinion, which it did not reverse, had improperly rendered an advisory opinion. Query: was the Supreme Court’s order disapproving of advisory opinions itself an advisory opinion?

Rebh v. Arlington is a treat of a case. And the twisting procedure is a reminder that sometimes you’re winning when it looks like you’re losing. It’s also a reminder about the limits and allocation of judicial power. Those are smart enough things to keep in mind in any appeal and in any case.

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If you have any questions about this post or other appellate issues, please contact Cullen Seltzer at (804)783-7235 or CSeltzer@sandsanderson.com .