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Taking Care of Business (Part I): Rule 3.1 No-Merit Briefs Warrant (At Least Some Form of) Appellate Review

On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions.  Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent.  Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.”  And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.

In addition, the Supreme Court resolved a split in the Court of Appeals as to whether state appellate courts are (a) required to conduct, (b) allowed to conduct, or (c) prohibited from conducting appellate review when Rule 3.1 counsel files a no-merits brief. (If you need a refresher course on the Court of Appeals split, see our prior blog posts from July 2018, October 2018, and November 2018).

For federal criminal appeals, the requirements as to no-merit briefs and appellate review originated in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967). Those procedures were expressly extended to criminal state appeals by State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).  Under Anders and Kinch, an appellate court conducts full-record review—that is, an independent examination of all the trial court proceedings and any briefs filed in the appeal—to determine whether the appellate court agrees with appellate counsel’s assessment that the appeal is wholly frivolous. See State v. Kinch, 314 N.C. 99, 102–03, 331 S.E.2d 665, 667 (1985).

Termination of parental right appeals are civil cases—meaning there is no constitutional right to appointed counsel.  A few decades ago, the Court of Appeals declined to recognize a similar no-merit-review process for these Rule 3.1 appeals. See In re Harrison, 136 N.C. App. 831, 833, 526 S.E.2d 502, 503 (2000).  Nonetheless, the absence of a procedure permitting Rule 3.1 appellate counsel to file no-merits briefs continued to be problematic.  Thus, the Court of Appeals in 2017 issued an opinion encouraged the “Supreme Court or the General Assembly to reconsider” allowing no-merit briefs in Rule 3.1 appeals.  In response, the Supreme Court adopted Appellate Rule 3.1(d) [now Appellate Rule 3.1(e)], which permits the filing of no-merit briefs in Rule 3.1 appeals.

Not addressed by Rule 3.1 was the type of appellate review (if any) triggered by the filing of a no-merit brief when the indigent party either (1) failed to file a pro se brief or (2) filed a pro se brief that did not adequately present any issues for review under Appellate Rule 28.

For almost a decade after Appellate Rule 3.1(d)’s adoption, the Court of Appeals routinely applied some form of independent, merit-based review to these Rule 3.1 appeals.  In 2018, that tradition changed when In re L.V., 814 S.E.2d 928 (N.C. Ct. App. 2018) dismissed a Rule 3.1 appeal in which a no-merits brief had been filed. The appeal was dismissed without conducting any review on the ground that “[n]o issues have been argued or preserved for review in accordance with our Rules of Appellate Procedure.”

In re L.V. set off a wave of split opinions in the Court of Appeals as to whether and what type of appellate review is required in these cases.  Eventually, however, a case called In re L.E.M. made its way to the Supreme Court of North Carolina, teeing up the issue for resolution.

On Friday, the Supreme Court resolved the split authority by holding that

  • The “No-Merit Brief” provision of Appellate Rule 3.1 “plainly contemplates independent appellate review of the issues contained in a no-merit brief.”
  • Because Rule 3.1 neither “states nor implies that appellate review of the issues set out in the no-merit brief hinges on whether a pro se brief is actually filed by a parent,” appellate review is neither foreclosed nor merely discretionary.
  • “Rule 3.1 mandates an independent review on appeal of the issues contained in a no-merit brief.”

Even more interesting, however, is what the Supreme Court’s opinion in In re L.E.M does not say: Whether Rule 3.1 requires the Anders-level, full-record review afforded to state and federal criminal appeals?  The holding of In re L.E.M only requires review of the issues raised in the no-merit briefs. See slip op. at 1 & 8.  But could this be because the parent’s argument in the Supreme Court was limited to whether the parent was entitled to “review of the issues identified in his counsel’s no-merit brief?” See slip op. at 4 (emphasis added).

Note too that the Supreme Court elected in the interest of judicial economy to conduct its own review of the three issues raised “in the no-merit brief.”  Nonetheless,  it determined that the trial court’s order was “supported by competent evidence and based on proper legal grounds” after “careful review of the issues identified in the no-merit brief in light of our consideration of the entire record.”  Slip op. at *10 (emphasis added).

So has the Supreme Court decided that these Rule 3.1 appellants are only entitled to appellate review of the issues raised in the no-merits briefs? Or has it reserved the question regarding the full scope of review required in these cases for another day? What are the policy reasons for and against requiring “full record” review in these cases?  Why is full record review afforded in criminal appeals?

Shoot me your thoughts in the comments below.

–Beth Scherer

P.S. Come back tomorrow for an interesting notice of appeal issue also addressed by the Supreme Court on Friday.

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