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Supreme Court Issues Order Amending the North Carolina Rules of Appellate Procedure: 2018 Holiday Edition

It is beginning to feel like a bi-annual holiday tradition between me and our blog readers: another rule-update summary.  Yesterday afternoon, the Supreme Court issued its latest order amending the North Carolina Rules of Appellate Procedure.  The amendments impact Appellate Rules 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, brand new Appellate Rule 42, as well as Appendixes A, B, and D (whew)!

Based on my initial analysis, below is a summary of those amendments.

The appellant’s brief is now due 30 days from the filing (rather than mailing) of the printed record

Under the prior appellate rules, the appellant’s initial briefing deadline was tied to the appellate clerk’s mailing of the printed record to the parties. This prior rule was a remnant of a bygone era in which (1) the appellate clerk selected from the settled record a subset of documents to include in the printed record, and (2) the appellate court’s “typing pool” reproduced, formatted, and paginated those printed record pages.  Because the precise contents of the printed record were unknown when the settled record was filed, the appellant’s briefing deadline was tied to the mailing of the newly-created printed record.

In modern appellate practice, the printed record is basically produced verbatim from the settled record filed by the appellant.  Other than (1) affixing that iconic “goldenrod yellow” cover, (2) inserting the date the record was filed and docketed, and (3) dividing large printed records into multiple volumes, the printed record is essentially reprinted as filed by the parties.

Because of the new rule, appellants in the New Year will have a little less time to prepare and file their initial appellate brief.

I also suspect that this change may soon end the appellate clerk’s practice of physically mailing a printed record to the parties—and perhaps with it, the disappearance of that beloved “goldenrod yellow” cover.

Under Appellate Rule 26(a)(1), a printed record that is not hand-delivered to the clerk’s office or electronically filed is “deemed filed as of the date of mailing, as evidence by the proof of service.”  Consequently, when a party mails its printed record, the file-stamp date affixed by the clerk to the printed record may be different from the record’s filing date under Appellate Rule 26(a)(1). In these instances,  the appellant’s briefing deadline likely would be calculated 30 days from the date the printed record was deemed filed by mail–and not 30 days from the date the appellate clerk received and file-stamped the printed record.

Parties must now file only a single copy of record-related supplements

Under the old rules, parties were required to file one copy of the printed record and transcripts.  All other record documents had to be filed in triplicate (unless the document was e-filed in the Supreme Court, which has long accepted electronically filed records). 

In the New Year, the appellate courts appear to be beefing up their housekeeping practices by continuing to dispense with extra paper. Under the new rules, the appellant will only file a single copy of any Rule 9(d) Documentary Exhibits, Rule 11(c) Supplement, Rule 18 Supplement, or Rule 9(b)(5) Supplement. A similar one-copy change applies to memoranda of additional authorities.

While in the Court of Appeals parties cannot presently e-file most components of the appellate record, I feel confident that the ability to electronically file all, if not most, record components is a feature that will be coming soon.

Overhaul to Appellate Rule 3.1

Rule 3.1 appeals have always seemed a bit like a three-headed monster.  For example, the process of settling the record bore little resemblance to the normal record-settlement process, with parties who disagreed about the contents of the record filing separate records on appeal.  As of January 2019, though, a subset of Rule 3.1 appeals (i.e., TPR cases) will be appealed directly to the Supreme Court. Because the old rule only contemplated direct appeals to the Court of Appeals, this jurisdictional shift necessitated a bit of a tweak to Appellate Rule 3.1.

Rather than applying a Band-Aid fix, the Supreme Court has given Rule 3.1 an overhaul.  A few noteworthy changes include:

  • Transcript Delivery. The court reporting manager and the court reporter now get a little extra time to prepare and deliver Rule 3.1 transcripts to the parties in indigent appeals (but a little less time in non-indigent Rule 3.1 appeals).
  • Service of Transcripts.  The court reporter is now required to serve copies of the appellate transcript on all parties to the appeal. This is a complete 180-degree change from the prior rule, which stated that the transcript only had to be served on the ordering party.  Issues regarding who is supposed to pay for the “appellee’s copy” of the transcript have plagued appellate practitioners for decades. This change basically means that in Rule 3.1 cases, the ordering party will purchase a single “appellate transcript” that the transcriptionist will be required to deliver to all parties. The ordering party’s per-page transcript price may increase a bit, but ultimately everyone will get a copy of the transcript.
  • Proposed Record Process. The process in Rule 3.1 appeals for serving a proposed record (as well as objections or amendments) now follows the basic structure found in Appellate Rule 11(c)—just on a more abbreviated schedule.  Nonetheless, the appellant now has an extra five days to serve the proposed record on appeal.
  • Record Disputes. When the parties to the appeal disagree regarding the contents of the record on appeal, the regular procedures for settling the record found in Appellate Rule 11 will be followed.  Consequently, parties in Rule 3.1 cases will no longer file separate appellate records when they disagree on content.  Instead, disputed content will usually be placed in a Rule 11(c) Supplement, while in more limited circumstances judicial settlement of the record may be necessary.
  • No separate briefing rule.  Although the old and new briefing deadlines are essentially the same (except that the appellant’s briefing deadline in Rule 3.1 cases has always been tied to the filing of the printed record), the previous version of Appellate Rule 3.1 had a separate provision regarding the timing for filing appellate briefs.  New Rule 3.1 does not. Thus, the briefing requirements are governed by the same timing rules found in Appellate Rules 13 and 28(h).
  • Electronic filing mandatory.  Unless an exception is granted, appellate counsel is required to file all documents in Rule 3.1 cases electronically—which will include all record components in Rule 3.1 cases taken to the Court of Appeals.  This is a significant change from traditional practice, in which attorneys that were more comfortable with paper filings could continue to do so even after the advent of e-filing capabilities.
  • No-merit briefs.  Revised Rule 3.1 contains different language about no-merit briefs, but it does not appear to resolve the debate among Court of Appeals judges about how the appellate courts are to review such cases.  The Supreme Court may have decided to resolve those differences of opinion through the Rule 3.1 cases now making their way to the Supreme Court.
  • Oral arguments.  The revised Rules do not explain whether (or to what extent) oral arguments will be different for Rule 3.1 cases.  That is likely an example of the evolving nature of oral arguments in these appeals.
  • No priority (at least on paper)Old Rule 3.1 provided that those cases would be “given priority” over other cases before the Court of Appeals.  The revised Rule 3.1 contains no such language.

Revised Appeal Information Statement

Appellate Rule 41, which addresses Appeal Information Statements, has been gutted. It now provides simply:  “The appellant must complete an Appeal Information Statement using the electronic-filing site at https://www.ncappellatecourts.org before the appellant’s brief is filed.”  Embedded in this sentence is a lot of new features:

  • An AIS must be electronically completed at https://www.ncappellatecourts.org;
  • An AIS is now due before the filing of the appellant’s brief, and
  • An AIS is now required in direct appeals to both Court of Appeals and the Supreme Court.  It would also presumably be required in a secondary appeal to the Supreme Court following a decision by the Court of Appeals.

The current Appeal Information Statement Form on the Court’s website (1) is restricted to appeals pending before the Court of Appeals, (2) is due “at or before” the time for filing the appellant’s brief, and (3) can be mailed.  As amended Appellate Rule 41 does not take effect until January 1, 2019, I suspect that the appellate courts will push out a new and improved online AIS form in the coming week. So stay tuned.

If you have not done so already, get your e-filing privileges lined up!   The appellate courts are moving another step further into the world of mandatory e-filings.

Introducing a New (and Improved) Appellate Rule 42: Sealed Items and Confidential Information

Back in 2009, the Supreme Court consolidated Appellate Rule 42 into Appellate Rule 1 and, in the process, reserved Rule 42 for future use. The future is here.

As of January 2019, Rule 42 will govern the handling of sealed items and confidential information in the appellate courts.  The beginning of this blog post listed numerous appellate rules being affected by these 2019 amendments.   Most of those amendments relate to the Supreme Court’s decision to take privacy-related requirements out of individual rules and, instead, move them all into newly created Rule 42.  Appellate Rule 42 has several important features:

  • Once Sealed, Always Sealed.  Items sealed in the trial tribunal remain under seal in the appellate courts.  Rather than filing a motion, counsel must attach a copy of the order, statute, or other legal authority that authorized the sealing of the item in the trial tribunal.
  • Automatic Sealing Categories.  Certain types of appeals (whether appeals of right or appeals of grace) are automatically sealed, regardless of their confidentiality status in the trial tribunal.  The types of appeals governed by this provision are as follows:
    • Abuse, neglect, dependency, and termination of parental rights;
    • Juvenile delinquency appeals; and
    • Any appeal under 7A-27 involving a sexual offense committed against a minor.
  • Stipulations.  Parties must insert a stipulation in the record regarding the agreed-to pseudonyms that the parties will use when referring to minors in their briefs, petitions, and motions.
  • Motions to Seal.  When an item was not sealed in the trial tribunal or automatically by operation of Rule 42, parties may move the appellate court for permission to seal the item.
  • New Notice for Sealed Documents.
    • Sealed documents must include the following notice on the first page: “UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY BY ORDER OF A COURT OF THE APPELLATE DIVISION”
    • If the document under seal is included within another document, then this notice must also be displayed at the top of the first page of that other document. In other words, if a party attaches a sealed record document to its appellate brief, then the first page of the appellate brief must contain the notice as well.
    • Non-documentary exhibits filed under seal must be submitted in a box or envelope that contains the notice.
    • The previous notice mandated under old Appellate Rule 3.1 is no longer required.
  • Expanded List of Protected “Identification Numbers.” 
    • Under the old rules, only Social Security numbers were specifically required to be redacted.
    • Under new Rule 42, the following numbers must either be excluded or redacted from all documents filed in the appellate courts.
      • Driver license numbers,
      • Financial account numbers,
      • Social Security numbers, and
      • Tax identification numbers
    • The Rule also recognizes an exception whenever one of the above numbers is “necessary to the disposition of the appeal,” in which case a party must move to seal the document in which the number appears.

Those are the big changes I saw on my initial review.  If you see any other big or interesting changes, let me know in the comments below!  Happy Holidays!

–Beth Scherer

 

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7 Responses to "Supreme Court Issues Order Amending the North Carolina Rules of Appellate Procedure: 2018 Holiday Edition"

  • Beth Scherer
    January 4, 2019 - 4:14 pm Reply

    Bob Edmunds memo from the Appellate Rules Committee explaining the changes is here.

  • Chuck I.
    January 7, 2019 - 12:12 pm Reply

    How will the new “single-copy” rule for supplements affect documentary evidence printed in color?

    I typically produce color copies of exhibits in a Rule 9 Supplement, when/if there is a risk that the evidence might lose its original significance if copied in black-and-white. This also assumes that obtaining color copies is not cost-prohibitive (so in that sense the new rule is quite helpful). Can we trust that all three panel judges (or their clerks) will pay adequate attention to the exhibits included in the supplement, since they only have one copy to “pass around” among themselves?

    • Beth Scherer
      January 7, 2019 - 12:43 pm Reply

      Chuck, great question!

      I suspect the appellate courts will be “digitizing” these record supplements so no one will have to share them. The young law clerks simply don’t use paper records anymore, preferring instead to review everything in a digitized (and searchable) format. Many of the appellate judges are moving in the same direction. To ensure that color documents stay in color when uploaded to the appellate court’s internal e-docs system, I would give the appellate clerk a paper copy of the Rule 9(d) supplement, as well as a “courtesy” digital copy of that same record for uploading purposes.

      The appellate judges that prefer paper copies can either request the one paper copy from the clerk or print another copy from that digital file. Granted, the appellate courts don’t have official color printers–at least to my knowledge. To handle that, I would add a statement to the record’s title page offering to submit additional color copies upon request.

      • Chuck I.
        January 7, 2019 - 5:52 pm Reply

        Just noticed that NCAP Rule 9(d)(2) still requires certain exhibits to be filed in triplicate: “A documentary exhibit that is not included in the printed record on appeal can be made part of the record on appeal by filling three copies with the clerk of the appellate court. … If multiple exhibits are filed, an index must be included in the filing.”

        • Beth Scherer
          January 7, 2019 - 6:02 pm Reply

          Hi Chuck,
          I don’t understand. The order changed Rule 9(d) as follows: A documentary exhibit that is not included in the printed record on appeal can be made a part of the record on appeal by filing three copies a copy of the exhibit with the clerk of the appellate court. The three copies copy shall be paginated. If multiple exhibits are filed, an index must be included in the filing.

          That last sentence about multiple exhibits is simply saying if you are submitting more than one exhibit (e.g., Plaintiff’s Exhibit A and Plaintiff’s Exhibit B), you need to put an index on the Rule 9(d).

          • Chuck I.
            January 7, 2019 - 6:25 pm Reply

            Nevermind! It looks like the 2019 edition of North Carolina Rules of Court (Volume I – State), published by Thompson Reuters (i.e., the one with a purple cover), has the incorrect, old version of the rule printed.

            Pretty major misprint by the publisher (which I never would have noticed had it not been for this blog!).

            • Beth Scherer
              January 7, 2019 - 6:39 pm Reply

              Got it! None of these changes are in the 2019 purple Westlaw book. The 2019 date is sort of a misnomer as it is only current as of the fall of 2018. These new changes were not released by the Supreme Court until December 2018. You’ll have to wait until the pocket part is released–usually not until the spring or summer of 2019.

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