A few weeks ago, the North Carolina Court of Appeals in Connor v. Connor rejected an argument that a notice of appeal signed by a pro se litigant was defective under Appellate Rule 3(d) “and thus did not confer jurisdiction.” Appellate Rule 3(d) states that a notice of appeal must “be signed by counsel of record of the party or parties taking the appeal or by any such party not represented by counsel of record.” N.C. R. App. P. 3(d) (emphasis added). While the appellant in Connor had trial “counsel of record,” trial counsel did not sign the notice of appeal. Instead, the individual appellant, acting pro se, signed the notice and later obtained different appellate counsel. In rejecting the argument that the pro se notice of appeal did not confer appellate jurisdiction because the appellant had trial counsel of record, Judge Dietz wrote:
Ms. Connor’s trial counsel did not represent Ms. Connor on appeal. Instead, new appellate counsel appeared later in the case. It was entirely appropriate for Ms. Connor to file a pro se notice of appeal in this circumstance.
If you are unfamiliar with the history of Appellate Rule 3(d), the outcome in this case might seem fairly obvious. However, the jurisprudence surrounding Appellate Rule 3 could be called a “hot mess.” By way of example:
- If trial counsel in Connor had continued to represent the appellant on appeal, would the pro se notice of appeal have conferred “appellate jurisdiction”?
- If the notice of appeal was not signed due to inadvertence, would the appellate court have had jurisdiction to hear the appeal?
- What if a notice of appeal mistakenly stated that plaintiff (rather than the defendant) was appealing, but the notice of appeal was signed by defendant or its counsel?
- What if the notice of appeal was not served, or improperly served by email?
- What if the notice of appeal has mistakenly said that appellant was appealing to the Supreme Court of North Carolina (or completely omitted the appellate court to which appeal was being taken)? Would it matter if everyone involved knew that the only appellate court with jurisdiction over the case was the Court of Appeals?
Numerous state court opinions state that the time for filing a notice of appeal is jurisdictional. Additional opinions state that the other requirements of Appellate Rule 3 unrelated to timing are jurisdictional. Still other opinions use jurisdictional labels to describe some of the requirements of Appellate Rule 9 (appellate record) and Appellate Rule 28 (appellate briefs).
In contrast, other appellate opinions have applied equitable and pragmatic defenses to save notice of appeal defects from these same purported Appellate Rule 3 “jurisdictional” defects. Doctrines like “functional equivalence,” “substantial compliance,” “fairly inferred,” and “waiver” are the terms usually used by these opinions. Indeed, two Supreme Court opinions have held that the service requirements of Appellate Rule 3 are subject to a waiver defense. Hale v. Afro-Am. Arts Int’l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993); Blevins v. Town of W. Jefferson, 361 N.C. 578, 653 S.E.2d 392 (2007), reversing for reason states in dissent, 182 N.C. App. 675, 681–82, 643 S.E.2d 465, 469 (2007) (Geer, J. dissenting) (appellate courts should not raise notice of appeal service concerns sua sponte because service defects may be waived).
How do these opinions fit together? Are they in conflict? What criteria is used to determine jurisdictional requirements? And does the phrase “jurisdictional requirement” describe a nuanced-filled concept?
Yesterday, I posted about the United States Supreme Court renouncing the federal courts’ habit of attaching jurisdictional labels to rule-based notice of appeal requirements. Is a similar course-correction warranted in North Carolina?
To analyze this question under state law, one must first acknowledge why jurisdiction labels were historically assigned to the requirements of Appellate Rules 3 and 4. Before 1989, many (but not all) of the time and manner requirements for noticing an appeal were set by statute. In most instances, Appellate Rules 3 and 4 simply mirrored a statutory requirement as to when a notice of appeal was required to be filed. As long as there was parity between a statutory requirement and the Appellate Rules, statements that the requirements for noticing an appeal were jurisdictional appeared sound.
In 1989, however, a significant change in North Carolina’s notice of appeal jurisprudence occurred. The General Assembly repealed § 1-279, adopted § 1-279.1, and amended several other appellate statutes to provide that the time, manner, and effect of noticing an appeal would be dictated by the Appellate Rules.
With its newfound authority, the Supreme Court quickly modified the time for noticing an appeal in civil cases from 10 days to 30 days. The Supreme Court also abolished oral notices of appeal in civil cases. See N.C. R. App. P. 3 (1989), reprinted at 92 N.C. App. 761. The Supreme Court made similar changes to Appellate Rule 4, but changed its mind and reinstated oral notices of appeal in criminal cases about six months later. 324 N.C. 585.
So, what is the basis for classifying a requirement found only in the Appellate Rules as jurisdictional? After all, the title of Appellate Rule 1(c) states that the Appellate “Rules Do Not Affect Jurisdiction,” and “shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.” Id. (emphasis added). Recognize any parallels to the approach taken by the federal appellate courts in Hamer and Oliver (the two opinions I blogged on yesterday that hold that a requirement for noticing an appeal is jurisdictional only if it is found in a statute)? Unlike the United States Supreme Court, does the Supreme Court of North Carolina have the authority to adopt jurisdictional requirements?
In my humble, unpublished opinion, the answer to this last question is “no, but sort-of.” A key distinction exists between the federal result in Oliver and the Appellate Rules’ timing requirement for noticing an appeal. Appellate Rule 27(c) prohibits either the trial or appellate courts from “extend[ing] the time for taking an appeal . . . prescribed by these rules or by law”—including by utilizing Appellate Rule 2. N.C. R. App. P. 28(c) (emphasis added). In other words, the only tool that can save an untimely notice of appeal is a writ of certiorari.
Thus, Appellate Rule 27(c) makes any distinction between jurisdictional and rule-based requirements with respect to the time for noticing an appeal an academic inquiry. The deadline for noticing an appeal may not be a “true” jurisdictional requirement set by statute, but the Supreme Court has essentially told the inferior courts that they must treat the time for noticing an appeal as a “constructive” jurisdictional requirement that may not be extended or excused by any equitable defenses. Unlike true jurisdictional requirements set by statutes, the Supreme Court may delete, modify, or expand constructive jurisdictional requirements by amending Appellate Rule 27. The Supreme Court also has the authority to change the time and manner for noticing an appeal under Appellate Rules 3 and 4 by amending the Appellate Rules (just like it did in 1989).
But what about a timely notice of appeal that is defective only as to a form requirement of Appellate Rule 3? Are these constructive jurisdictional requirements or something else? The courts’ authority to suspend or excuse deficiencies as to the form of a notice of appeal are not restricted by Appellate Rule 27 or Appellate Rule 2. Indeed, the Supreme Court’s 1975 commentary to Appellate Rule 3 suggests that the Supreme Court never intended to assign jurisdictional significance to Appellate Rule 3(d)’s form requirements. See N.C. R. App. P. 3, Drafting Committee Note (1975), reprinted at 287 N.C. 671, 684. (stating that Appellate Rule 3(d) was intended to save “against occasional confusion” as to what was being appealed and noting that “Federal courts under a comparable rule have not commonly treated any but the most misleading error in the required specification as vitiating the appeal”).
Might this explain why some appellate opinions have utilized equitable and pragmatic defense to overlook or excuse minor deficiencies as to the form of timely notices of appeal? See, e.g., Stephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (2006); Von Ramm v. Von Ramm, 99 N.C. App. 153, 156–57, 392 S.E.2d 422, 424 (1990). After all, when was the last time a “waiver,” “functional equivalent,” “fairly inferred,” or “not misled” argument was successfully applied to a true or constructive jurisdictional requirement? Has the Supreme Court already signaled that the non-timing requirements of Appellate Rule 3 are not really jurisdictional requirements? See Hale v. Afro-Am. Arts Int’l, Inc., 335 N.C. 231, 232, 436 S.E.2d 588, 589 (1993) (untimely service of a notice of appeal under Appellate Rule 3 can be waived); Blevins v. Town of W. Jefferson, 361 N.C. 578, 653 S.E.2d 392 (2007). And if it has, what is the extent of a court’s discretion to address these types of violations? Should a distinction be drawn between true and constructive jurisdictional requirements and rule-based requirements that simply relate to jurisdiction?
Remember the song, “The Things That Make You Go Hmmmm….”? Jam out your thoughts and theories in the comments below.
P.S. From time to time, statutes governing particular cases will specify a time or manner for noticing appeals. Most statutory requirements for noticing an appeal are true jurisdictional requirements. They will also trump any conflicting requirement for noticing an appeal found in Appellate Rule 3, 4, or 18. But that topic is for another day.