Rebh v. County Board of Arlington County (ORDER)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court Building in the
City of Richmond on Wednesday the 27th day of November, 2024.
RICHARD REBH, ET AL., 	PETITIONERS,
against 	Record No. 240493
Court of Appeals No. 0240-23-4
THE COUNTY BOARD OF ARLINGTON
COUNTY VIRGINIA, 	RESPONDENT.
FROM THE COURT OF APPEALS OF VIRGINIA
This matter comes before the Court upon a petition for appeal arising from a published
opinion of the Court of Appeals entering final judgment in favor of the petitioners, a group of
Arlington residents (collectively, the “Residents”). The respondent, the County Board of
Arlington County, asks us to dismiss the petition for appeal because the Residents obtained a
complete victory in the Court of Appeals that ended the case. Agreeing with the Board, we will
dismiss the petition for appeal. We think it important, however, to briefly explain our reasons
for doing so.
I.
In the circuit court, the Residents initiated a civil action challenging the Board’s adoption
of a land-use plan and its associated amendments. The Residents asserted, in relevant part, three
legally distinct claims. The circuit court sustained the Board’s demurrer and dismissed all
claims. On appeal to the Court of Appeals, the Residents prevailed on one of the three
independent claims — the assertion that the Board had failed to provide proper notice under
Code § 15.2-2204 thereby rendering its actions void ab initio. Because that determination ended
the case for these litigants, the Court of Appeals entered final judgment in the Residents’ favor
and did not remand the case for further proceedings.
Although the void ab initio holding resolved the case in its entirety, the Court of Appeals
decided in favor of the Board on the two other claims raised on appeal. These independent
claims — alleging violations of the statutory resolution and certification requirements and
uniformity requirement — involved applications of Code §§ 15.2-2225, -2226, and -2282 that
are analytically distinct from the notice requirement under Code § 15.2-2204. In a footnote, the

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Court of Appeals acknowledged the “doctrine of judicial restraint” but nonetheless decided to
“address the other two issues for the purpose of resolving them should they arise again in future
proceedings.” Rebh v. County Bd. of Arlington Cnty., 80 Va. App. 754, 760 n.1 (2024)
(emphases added). Concluding that “the trial court did not err in sustaining the Board’s
demurrer,” id. at 765, 773, the Court of Appeals stated, “we hold that the Board did not violate
the resolution and certification requirement . . . nor the uniformity requirement.” Id. at 773
(emphases added).
II.
Despite winning a complete victory on their primary claim, the Residents filed a petition
for appeal in our Court asserting that the Court of Appeals erred in holding that their alternative
claims were legally invalid. It is important that we review these issues, the Residents argue,
because the Court of Appeals openly stated that its holdings on the Residents’ alternative claims
were intended to have the precedential effect of “resolving” these issues if and when they arise in
“future proceedings.” Id. at 760 n.1. For the following reasons, we reject the assumption made
by the Court of Appeals and the consequent need for appellate review asserted by the Residents.
A.
In Virginia, “the courts are not constituted to render advisory opinions, to decide moot
questions or to answer inquiries which are merely speculative.” Commonwealth v. Harley, 256
Va. 216, 219-20 (1998) (alteration and citation omitted). As we recently reaffirmed, “[t]he
constitutionally vested ‘judicial power,’ does not authorize us to ‘issue advisory opinions on
moot questions.’” Godlove v. Rothstein, 300 Va. 437, 439 (2022) (citations omitted); see also
Va. Const. art. VI, § 1. Because our duty “is to decide actual controversies by a judgment which
can be carried into effect,” we have no authority “to declare principles or rules of law which
cannot affect the matter in issue in the case before it.” Hankins v. Virginia Beach, 182 Va. 642,
644 (1944) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).
Rendering advisory opinions “represent[s] an attenuated exercise of judicial power in
which this Court ‘traditionally declines to participate.’” Hunter v. Hunter, 298 Va. 414, 436
(2020) (quoting Harley, 256 Va. at 219); see also Board of Supervisors v. Ratcliff, 298 Va. 622,
622 (2020); Riverside Hosp., Inc, v. Johnson, 272 Va. 518, 526 n.2 (2006). This view of judicial
restraint has a long and distinguished provenance:

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Whenever it appears or is made to appear that there is no
actual controversy between the litigants, or that, if it once existed,
it has ceased to do so, it is the duty of every judicial tribunal not to
proceed to the formal determination of the apparent controversy,
but to dismiss the case. It is not the office of courts to give
opinions on abstract propositions of law, or to decide questions
upon which no rights depend, and where no relief can be afforded.
Only real controversies and existing rights are entitled to invoke
the exercise of their powers.
Franklin v. Peers, 95 Va. 602, 603 (1898); see also Harley, 256 Va. at 219-20.
B.
Consistent with this tradition, Code § 17.1-411 permits only a “party aggrieved by a final
decision of the Court of Appeals” to “petition the Supreme Court for an appeal.” If the petitioner
is not a “party aggrieved,” Code § 17.1-411, the petition for appeal must be dismissed. Chief
Justice Carrico emphasized this point in Commonwealth v. Harley, a case in which the
Commonwealth appealed a Court of Appeals decision that had affirmed the defendant’s
conviction. See 256 Va. at 219-20. The case raised the question whether the Commonwealth
unconstitutionally refused to provide, at its own expense, transcripts of pretrial hearings to an
indigent defendant. Id. at 217. The Court of Appeals had ruled against the defendant because
the claimed error “worked him no prejudice.” Harley v. Commonwealth, 25 Va. App. 342, 351
(1997). The Court of Appeals, however, sequenced the analysis by first ruling in favor of the
defendant on the question whether a constitutional right to the transcript existed.
On further appeal to this Court, the Commonwealth conceded the obvious — that it
“ultimately prevailed” in the Court of Appeals. See 256 Va. at 219. The conviction was
affirmed, after all, with nothing left to be done. It was nonetheless aggrieved, the
Commonwealth asserted, by the holding that a constitutional violation (sans prejudice) had
occurred in the first place. That holding was issued in a published opinion and would be viewed
as binding authority on all later panels of the Court of Appeals, all circuit courts, and all future
litigants. Because this decision “will have the effect of imposing substantial new financial
burdens on the Commonwealth to provide transcripts to indigent defendants who previously
would not have been entitled to them,” the Commonwealth argued, it had “standing” to appeal
the allegedly erroneous holding. Id.
Harley left us with two possible responses. We could have resolved this anomaly by
recognizing an exception to the general rule that forbids appeals by a prevailing party. In

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Camreta v. Greene, 563 U.S. 692, 703-05 (2011), for example, the United States Supreme Court
addressed an appeal from the intermediate appellate court’s holding that a constitutional claim
against a government official was barred by qualified immunity. That official — the prevailing
party — was nonetheless permitted to appeal because of the intermediate appellate court’s
holding that “what [the official] did violate[d] the Constitution and he or anyone else who does
that thing again will be personally liable.” Id. at 702-03. If no appeal were allowed in this
situation, the United States Supreme Court reasoned, the ruling on qualified immunity would
have the effect of immunizing the constitutional ruling from further appellate review.
Harley took a different tack through these waters. Our doctrine of judicial restraint
requires appellate courts to decide cases “on the best and narrowest ground available.” McGhee
v. Commonwealth, 280 Va. 620, 626 n.4 (2010) (quoting Air Courier Conf. v. American Postal
Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)).1 This maxim reinforces the
common-sense view that “courts should think hard, and then think hard again, before turning
small cases into large ones.” Camreta, 563 U.S. at 707. Influenced by these jurisprudential
guardrails, Harley answered the Commonwealth’s argument by rejecting its first premise.
Whether styled as such or not, the analysis by the Court of Appeals of the constitutional issue
was not a binding, precedential holding because that issue “was rendered moot” by the holding
that “the error in the trial court’s denial of a free transcript was harmless.” Harley, 256 Va. at
219.
Any “concerns” about the effect of dicta-qua-holding in future cases, we reasoned in
Harley, did not justify a further appeal to us because such concerns were “hypothetical and can
only be based, at best, upon speculation and conjecture.” Id. To be sure, the hypothetical nature
1 See, e.g., Durham v. Commonwealth, ___ Va. ___, ___ n.2, 904 S.E.2d 203, 210 n.2
(2024); Thomas v. Commonwealth, 303 Va. 188, 198 (2024); Hannah v. Commonwealth, 303
Va. 106, 121 (2024); Verizon Va. LLC v. State Corp. Comm’n, 302 Va. 467, 480 n.4 (2023);
McKeithen v. City of Richmond, 302 Va. 422, 435 n.2 (2023); Berry v. Board of Supervisors, 302
Va. 114, 138 n.13 (2023); Hartford Underwriters Ins. v. Allstate Ins., 301 Va. 460, 474 n.13
(2022); Appalachian Power Co. v. State Corp. Comm’n, 301 Va. 257, 292 (2022);
Commonwealth v. Kilpatrick, 301 Va. 214, 216 (2022) (per curiam); Phillips v. Rohrbaugh, 300
Va. 289, 313 n.8 (2021); Evans v. Evans, 300 Va. 134, 150 (2021); Grayson v. Westwood Bldgs.
L.P., 300 Va. 25, 58 (2021); Logan v. Commonwealth, 299 Va. 741, 748 n.4 (2021); Plofchan v.
Plofchan, 299 Va. 534, 548 n.* (2021); Butcher v. Commonwealth, 298 Va. 392, 396 & n.4
(2020) (collecting cases employing this principle); Commonwealth v. White, 293 Va. 411, 419
(2017); Commonwealth v. Swann, 290 Va. 194, 196 (2015) (per curiam).

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of the constitutional issue, if presented to us, would be no less hypothetical than when it was
presented to and decided by the Court of Appeals. We thus declined to “render an advisory
opinion” on this moot issue because that is what the Court of Appeals should have done. See id.
at 220. Simply put, the Commonwealth in Harley could not appeal the unfavorable holding of
the Court of Appeals on the constitutional issue because, whether described as a holding or not, it
was simply dicta. It might be later cited as persuasive authority, but it had no binding,
precedential power over the lower courts, later panels of the Court of Appeals, or anyone else.
This conclusion solved the paradoxical problem of an intermediate appellate court shielding from
further appellate review a self-styled holding merely by refusing to apply it to the case at hand.
C.
The same dicta-qua-holding scenario exists in the present case. After declaring the Board
actions to be void ab initio, the Court of Appeals decided that the Board’s actions — had they
not just been deemed void — would have been in full compliance with the statutory resolution
and certification requirements and uniformity mandate addressed in Code §§ 15.2-2225, -2226,
and -2282. The “purpose” of these rulings, the Court of Appeals explained, was to resolve these
issues “should they arise again in future proceedings.” Rebh, 80 Va. App. at 760 n.1. But the
effect of doing so was to shield from further appellate review what appeared to be precedential
holdings binding all litigants, circuit courts, and panels of the Court of Appeals in future judicial
proceedings. That consequence, by itself, creates a juristic anomaly that should be avoided if at
all possible.
It was certainly possible to do so here. The unreviewable rulings of the Court of Appeals
assumed a hypothetical scenario with two key suppositions: first, that the Board later reenacts
the same or similar set of measures to replace those just declared to be a nullity, and second, that
these new measures later face the same or similar claims previously asserted by the Residents.
Maybe that happens, maybe not. But “[s]o far as this case is concerned, . . . and we can be
concerned only with this case,” Harley, 256 Va. at 219, the void ab initio ruling ended the case.2
2 This scenario should not be confused with cases that are remanded by an appellate court
for further proceedings in a lower court. See, e.g., Emerald Point, LLC v. Hawkins, 294 Va. 544,
555 (2017); Cain v. Lee, 290 Va. 129, 136 & n.* (2015); Smith v. McLaughlin, 289 Va. 241, 259
(2015); Harman v. Honeywell Int’l, Inc., 288 Va. 84, 95 (2014); Velocity Express Mid-Atlantic v.
Hugen, 266 Va. 188, 203 (2003); Virginia Elec. & Power Co. v. Westmoreland-LG&E Partners,
259 Va. 319, 324-25 (2000).

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In Virginia, as elsewhere, a judicial decision “rendered on a purely hypothetical question has no
precedential force,” Bryan A. Garner et al., The Law of Judicial Precedent 133 (2016), and “if a
court were nonetheless to decide a hypothetical or moot question in the course of an otherwise
appropriate decision, then the principle here stated has some teeth: reasoning not material to the
decision can be disregarded as dictum.” Id. at 135.
III.
In sum, we dismiss the Residents’ petition for appeal because we have no authority to
review non-precedential, advisory opinions of the Court of Appeals. The Residents, by
succeeding on their primary claim that the Board’s actions were void ab initio, won the case
outright, and there was nothing left to be adjudicated by any Virginia court in this proceeding.
This order shall be published in the Virginia Reports and certified to the Court of Appeals
and the Circuit Court of Arlington County.
A Copy,
Teste:
Clerk