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Where’s (Judge) Waldo?–The Role of Substitute Judges under the Appellate Rules and Rules of Civil Procedure

Imagine that Judge Waldo has orally ruled against your client.  A proposed written order has been submitted by the parties to the trial court.  You are gearing up for an appeal.  However, before a written order is entered, Judge Waldo wins the lottery and immediately retires to explore the world.  Can another trial court judge sign the proposed order?  Can a substitute judge rule on a new trial motion?

Ann Anderson of the School of Government explores these issues as they relate to pre-appeal, trial court proceedings in an informative blog post entitled, “To Effectuate a Decision Already Made”: The Role of a Substitute Judge Under Rule 63.

What about instances when the trial court is required to take some action required by the North Carolina Rules of Appellate Procedure? For example, consider requests involving settlement of the appellate record, extensions of time for transcripts, defective appeals, and stays. Must a particular trial court judge rule on those types of requests?

The general answer is no, but there is an exception.  Appellate Rule 36 authorizes the superior court “judge who entered the judgment, order, or other determination from which appeal was taken” as well as “any regular or special superior court judge resident in the district or assigned to hold court in the district” to enter orders under the Appellate Rules.  N.C. R. App. P. 36(a)(1).  A similar provision applies to appeals from the district court. N.C. R. App. P. 36(a)(2).

However, only the judge from whose judgment, order, or other determination appeal has been taken may settle the record on appeal.  N.C. R. App. P. 11(c); N.C. Gen. Stat. § 1-283.

What if the original trial court judge is unavailable to settle the record?  When the trial court judge is deceased or otherwise physically or mental incapacitated, the Chief Justice is authorized to “designate another judge to act in the matter” upon motion of any party. N.C. R. App. P. 36; N.C. Gen. Stat. § 1-283.

The Appellate Rules, however, do not appear to contemplate the appointment of a substitute trial court judge when the original judge has retired but is not otherwise mentally or physically incapacitated. Instead, a trial court judge “retains power to settle a record on appeal notwithstanding whether he has resigned or retired or his term of office has expired without reappointment or reelection since entry of the judgment or order.”  N.C. Gen. Stat. § 1-283.

What if Judge Waldo is unwilling to settle the record from his tropical paradise? Two options come to mind.   Option one is to ask the Chief Justice to suspend the Appellate Rules and appoint a substitute judge to settle the record.  Option two is to ask the appellate court to issue a writ of mandamus compelling Judge Waldo to settle the appellate record.

Since the odds of winning a lottery mega prize are extremely small, hopefully you will never have to pursue options one or two.

–Beth Scherer

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