The Virginia Supreme Court Acquiesces to the Court of Appeals

Recall that I pointed out with interest the Virginia Supreme Court's decision 18 months ago in Whitehead. It was notable because it made a radical change to what the successful party at trial (usually the government) had to do in order to preserve an argument for appeal. The party actually had to make the same argument it made at trial in the appellate courts - exactly the same standard the losing party is held to by the Rules of the Supreme Court (but not the successful party). Even more interesting was when the Virginia Court of Appeals ignored the standard the Supreme Court had clearly set out.

Finally, the Supreme Court got the case in which the Court of Appeals had ignored its standard - and it gave way.

[U]pon reconsideration of the case law on this matter, we are of the view that this principle, adopted from Eason, is too broad and is inconsistent with case law that followed it. Failure to make the argument before the trial court is not the proper focus of the right result for the wrong reason doctrine. Consideration of the facts in the record and whether additional factual presentation is necessary to resolve the newly-advanced reason is the proper focus of the application of the doctrine.

I have to admire the fact that the Supreme Court admitted it was backing away from its former stance. However, it does end two interesting issues: (1) Whether the argument had to be right, and (2) what the Supreme Court was going to do about the Court of Appeals ignoring its decision.