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Operation Rule 3.1: Supreme Court Hosts CLE

In April 2017, the General Assembly surprised appellate stakeholders by adopting legislation shifting a subclass of Rule 3.1 juvenile appeals—Termination of Parental Rights (“TPR”) appeals—to the Supreme Court’s mandatory direct appellate review jurisdiction.  The silver lining was that the General Assembly did not require an immediate shift in these cases from the Court of Appeals to the Supreme Court.  Instead, TPR cases did not start trickling into the Supreme Court until January 2019.

That delay in implementation gave the Supreme Court time to develop and implement what I refer to as “Operation Rule 3.1”:  A plan to minimize the disruptions and difficulties for appellate courts and practitioners handling Rule 3.1, and in particular, TPR appeals.

As previously summarized here, the first public step was a complete overhaul of Appellate Rule 3.1 and the adoption of Appellate Rule 42 in December 2018.

On Wednesday, the Supreme Court implemented Phase II of Operation Rule 3.1: Help practitioners prepare for and understand the recent changes, provide insight on the behind-the scenes processes, and reassure practitioners that the Supreme Court’s overriding goal is to achieve justice in these often heart-breaking cases.

To implement Phase II, the Administrative Office of the Supreme Court coordinated a two-hour, free CLE entitled, “TPR Appeals in the Supreme Court.” The live CLE was well-received by a packed room. Because the seating capacity for the live event was limited, the CLE was professionally recorded and will be posted for streaming within the next week or so.  (A Link to the CLE presentation is here, as well as a permanent link at the CLE resources section of this blog).

The presence of four of the seven Justices at the CLE–Chief Justice Beasley, Justice Hudson, Justice Ervin, and Justice Earls—underscored the seriousness that the Supreme Court attaches to its responsibility in these cases.  The reoccurring theme expressed by the Court speakers at the CLE went something like this:

We understand the importance of TPR appeals.  The Court has labored to ensure that the process for these new Rule 3.1 appeals runs as smoothly and as expeditiously as possible. Nonetheless, we also understand that unforeseen flaws are inevitable when a new process is adopted.  The Supreme Court will work collaboratively with Rule 3.1 practitioners to identify issues and smooth out those rough edges.

I encourage those who could not attend the CLE to view the video when it is posted. Of course, some of the CLE reiterated details regarding the Rule 3.1 changes previously posted here.  However, the speakers also shared lots of new tips and information—some of which are applicable outside of the Rule 3.1 context.

  • Coming Soon to YouTube or Facebook Live?The Supreme Court is currently exploring whether to live-stream oral arguments.
  • Electronic Filing As shared previously,all Rule 3.1 documents—including the entire appellate record–must now be electronically filed.  For all other cases, electronic filing of records and briefs is here or coming very soon.  Fred Wood, the Supreme Court’s Director of Information Technology, offered several pointers that could help that process run more smoothly.
    • Scan Documents Using the Highest Resolution Possible.  Fred suggested using 400 DPI resolution or higher to scan e-filed image-based documents such as the record on appeal.  Once PDFs are filed, the e-filing system will attempt to OCR the file.  (In plainer English, a computer scans PDF pages to look for and convert image-based text to computer-searchable text).  High-resolution scans produce better images and more accurate OCR results.
    • Maximum File Size.  The Supreme Court’s electronic filing system is designed to accept fairly massive filings.  Fred has successfully uploaded a 25,000 page/790 MB document to the e-filing website without incident, although he acknowledged that larger records are not unheard of.  If you have a massive record that needs to be e-filed, consider contacting the clerk’s office before filing.
    • E-file During Normal Business Hours.  If a problem occurs when e-filing, the appellate clerks and Fred can usually resolve the problem quickly—if you contact them during regular business hours.
  • Newsflash! Supreme Court briefs in Rule 3.1 directs appeals are now subject to a word-count limit: I’ll be honest. This reading of Rule 3.1(f) caught me completely off-guard.  Until now, there has never been a word-count limit for briefs filed in the Supreme Court.  While new Rule 3.1(f) states that briefs in Rule 3.1 cases “must comply with Appellate Rule 28(j),” the heading and text of Appellate Rule 28(j) states that the word-count limit only applies to briefs filed in the Court of Appeals. The CLE speakers, however, specifically affirmed that this rule was being interpreted as applying to Rule 3.1 briefs filed in the Supreme Court.  Therefore, dust off and update your Certificates of Compliance when filing Rule 3.1 direct appeals to the Supreme Court.
    • What about “New” Supreme Court Briefs? Not addressed at the CLE was whether this new Supreme Court word-count limit will apply to all Supreme Court briefs arising from Rule 3.1 appeal.  Or does it apply only to Rule 3.1 direct appeals from the trial tribunal to the Supreme Court but not to Rule 3.1 appeals that are first decided by the Court of Appeals? My best guess is that new Rule 3.1(f) was only meant to apply to direct Rule 3.1 appeals to the Supreme Court and Court of Appeals. Here is why:
      • Rule 3.1 is contained within Article II—which applies to “Appeals from Judgments and Orders of Superior Courts and District Courts” rather than in Article III—which applies to “Review by Supreme Court of Appeals Originally Docketed in the Court of Appeals” and “Discretionary Review.”
      • Rule 3.1(a)’s  “scope” section limits its application to  appeals filed under N.C. Gen. Stat. § 7B-1001–which provide a right to direct appellate review from the trial court to the appellate division.  In contrast, the right to secondary appellate review in the Supreme Court is governed by N.C. Gen. Stat. § 7A-30 (direct appeals) and 7A-31 (PDRs).
      • Best Practice: Until the Supreme Court weighs in as to whether secondary briefs in Rule 3.1 cases are subject to a word-count limitation, I would contact the clerk of the Supreme Court for further guidance.
  • Redaction of Sealed Documents and Transcripts:
    • Appellate Rule 42(e) provides that drivers “license numbers, financial account numbers, social security numbers, and tax identification numbers must be excluded or redacted from all documents that are filed with the appellate courts.”
    • Already Sealed? Probably No Need to Redact.  While the plain text of the rule is not a model of clarity, the justices at the meeting indicated that they read the rule as meaning that when a document or entire case is filed under seal, counsel does not have to take the additional step of identifying and scrubbing the seal document of these identification numbers.  That interpretation produced lots of sighs of relief around the room, as putting together a record within the Rule 3.1 compressed timeframe is already difficult enough without adding an additional redaction requirement. For those concerned about getting their hands slapped by a judge who reads the rule in a super-technical way, another option might be to move for relief from the redaction requirement for sealed documents.
    • Redacted Verbatim Transcripts An issue that merits further discussion in whether verbatim transcripts are subject to this redaction requirement. At this time, court reporters are not sanitizing transcripts for these personal identification numbers.  Indeed, a good argument could be made that verbatim transcripts would cease being “verbatim” if court reporters were required to sanitize them. In Rule 3.1 cases, the failure to redact this information seems harmless because all Rule 3.1 transcripts are automatically filed under seal. But in “regular” appeals, this issue could be more problematic.  Until further guidance issues, my recommendation would be to move to seal transcripts that contain identification numbers for the reason explained above.
  • Stats:
    • The Court estimates that TPR cases will increase the Supreme Court’s mandatory docket by around 120 cases annually.
    • As of March, twenty direct TPR Records on Appeal have been docketed in the Supreme Court. The first wave of TPR briefs will be filed in the Supreme Court soon.
  • Transcripts:  The speakers confirmed that under new Rule 3.1, the court reporter is responsible for serving a copy of any transcript for an appeal on all parties to the appeal.
  • Published Opinions: The Supreme Court intends to publish all of its Rule 3.1 opinions—just like all other Supreme Court opinions and orders.
  • Do Not Fret About the Absence of Binding Authority:  Since most of the law in this area is from the Court of Appeals and, thus, is not binding on the Supreme Court, practitioners are advised to “cite the best thing you can find.”
  • TPR Oral Arguments at the Supreme Court:
    • Not Automatic. Oral argument will not be held automatically in TPR appeals.  Rather, the Supreme Court will address Rule 3.1 oral arguments on a case-by-case basis.
    • No Official Standards for Granting Oral Argument in TPR AppealsOral argument will not be held automatically in TPR appeals.  Rather, the Supreme Court will address Rule 3.1 oral arguments on a case-by-case basis.
    • Want Oral Argument? Consider These Tips.  Parties can take steps to increase their likelihood of obtaining oral argument in Rule 3.1 appeals.
      • Detail on the Appeal Information Statement (AIS) the reasons why the case merits oral argument.  Almost all attorneys check the AIS box indicating they request oral argument. The Supreme Court recognizes this habit. Consequently, the AIS now has a new section which asks attorneys to explain why oral argument should be granted.
      • Good reasons for granting oral argument in Rule 3.1 cases.  Justice Ervin—speaking only for himself—hinted at what might constitute a good reason to grant oral argument in a TPR direct appeal
        • Issue of First Impression
        • Issue on which there is great confusion in the law or even direct conflict in the jurisprudence of the appellate courts
        • Issue that arises frequently in these cases that will promote jurisprudential clarity and judicial economy if resolves.
        • Do these factors sound vaguely familiar?  Justice Ervin reminded the attendees that the Supreme Court has lots of experience analyzing requests for discretionary review under N.C. Gen. Stat. § 7A-31’s PDR criteria.  Showing that factors similar to the PDR standards are present in Rule 3.1 direct appeals could increase a party’s likelihood of obtaining oral argument in these cases.
    • Process for Deciding Whether to Grant Oral ArgumentAfter all the briefs in a TPR case have been submitted, a Justice will be assigned to review that case.  During the Supreme Court’s next scheduled conference, the assigned judge will make a recommendation for decision by the full court as to whether oral argument should be held in that case.  Thus, a TPR case where oral argument is requested will be considered twice by the Court in conference.  The first conference will decide the request for oral argument.  A later second conference will consider the case on its merits.
      • Move for Reconsideration?  When a case is designated for decision without oral argument, a party has the option to move for reconsideration of that decision.  However, parties should only do so when they can articulate a compelling reason why the case should be orally argued. (See above).  In other words, don’t file these motions routinely.
    • Protect Confidential Information During Oral ArgumentOral arguments are public proceedings subject to Appellate Rule 42’s confidentiality requirements. Never refer to a protected juvenile by name during oral argument.
    • Timeline for Releasing Opinions in TPR Cases:
      • When a case is not selected for oral argument, the Supreme Court’s goal is to release a decision by the next opinion release date following the Rule 30(f) no-oral-argument notice
      • The statutes require that TPR cases be expedited.  The Court has determined that the TPR process must be expedited–not any particular case.  Thus, cases will not be decided and opinions issued on a strict schedule.
      • When a case is selected for oral argument, it will take a little longer for a decision to be released.  Ideally the opinion will be released on the next opinion date following oral argument.
      • The Supreme Court sometimes will decide that a particular opinion needs more work—in which case the opinion will be held over for a later conference and opinion release date.

That’s all I got!  Anything in the above surprise you?  Found any chinks in the Rule 3.1 process that the Supreme Court should consider updating?  Let us know in the comments below.

–Beth Scherer

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