Supreme Court Adopts New Appellate Rules Amendments: Mandatory E-filing, Records on Appeals, and Motions . . . Oh My!

Fox Rothschild LLP

Fox Rothschild LLP

On Wednesday, October 13, the Supreme Court of North Carolina issued new amendments to the North Carolina Rules of Appellate Procedure. The key changes, which apply to notices of appeal filed on or after 1 January 2022, are summarized below:

  • Electronic Appellate E-Filing Mandatory for Counsel in All Appeals
    • Mandatory e-filing. Remember approximately 18 months ago when paper-filing of the printed record was mandatory in the Court of Appeals–and then the pandemic shook up the prohibition on e-filing? The great e-filing experiment appears to have been a success. In the new year, electronic filing in the appellate courts will be mandatory for counsel and encouraged for pro se litigants in all appeals. N.C. R. App. P. 26(a) (2022). Note that the new rule contains an exception for technical failures, as well as exceptions for oversized and non-documentary exhibits for which e-filing is often impossible.
    • Filing defined. The amendments clarify that items are considered “filed” when received by the electronic filing website. This clarification makes sense. During the early days of the pandemic, it could take days before the clerk’s offices sent their emails accepting or approving electronically filed materials. The new rule expressly ties filing to when the materials are successfully received by the website.
  • Original Versus Copies of Exhibits and Other Rule 9(d) Items
    • History. I still fondly recall John Connell’s stories about dog food and other weird exhibits sitting in the Court of Appeals’ basement. And rumor has it that Dan Horne’s office contained a collection of assault weapons that was very effective at discouraging questions after 4:30 p.m. So why have the appellate courts become a repository for food, guns, and illegal drugs? For one, practitioners often fear that not submitting everything to the appellate courts could lead to a malpractice claim. Numerous appellate opinions have rejected insufficiency of the evidence arguments based on counsel’s failure to include all exhibits in the appellate record. Second, the appellate clerks sometimes find it difficult to discern which exhibits are originals as opposed to copies—erring on the side of caution by keeping tons of exhibits indefinitely. In short, the proliferation of papers and wacky items has become an administrative (and financial storage) nightmare for the appellate courts..
    • Completely rewritten Rule 9(d) provision. Rewritten Appellate Rule 9(d)(2) has several features that should significantly curtail the above problems.
      • Copies preferred. Parties are encouraged to file copies of exhibits and other items, rather than originals. N.C. R. App. P. 9(d). Indeed, the imposition of mandatory e-filing should eliminate most of the original items concerns because there is no such thing as an original electronic file.
      • Originals items described and incorporated by reference. For original materials that cannot be readily copied, parties should include a brief description of the item in the printed record. N.C. R. App. P. 9(a)(1)(p); N.C. R. App. P. 9(a)(2)(m); N.C. R. App. P. 9(a)(3)(o). This type of record-based description permits original item to be incorporated into the record on appeal by reference—i.e., without the item having to be physically delivered to the appellate courts. See N.C. R. App. P. 9(d)(2) (“Original exhibits and other original items that have been settled as part of the record on appeal may be relied on by the parties in their briefs and arguments . . . .”).
      • Originals delivered only with permission. But what if a party believes that it is critical for the appellate judges to physically see, touch, or smell that 15-lb bag of Alpo that smells like fine, French perfume? Original exhibits can still be delivered to the appellate courts—but only with the appellate court’s permission. N.C. R. App. P. 9(d)(2). A motion under this new rule must explain the original exhibit’s relevance—and then wait for the appellate court to decide if it really, really needs to see the original. N.C. R. App. P. 9(d)(2)(a). If the motion is allowed, the custodian of the original exhibit must promptly deliver the exhibit to the appellate clerk “in a manner that ensures its security and availability for use in further trial proceedings.” N.C. R. App. P. 9(d)(2)(a).
      • Originals delivered upon request. What if the appellate court decides that it needs an original exhibit to decide the case, but no motion was filed or the motion was originally denied? The appellate courts can require that the original be delivered to the court at any time. N.C. R. App. P. 9(d)(2)(a).
      • Originals returned or destroyed. When an appeal ends, the appellate clerk will ask the prior custodian to retrieve it. N.C. R. App. P. 9(d)(2)(b). If the custodian ignores the notice, the appellate clerk may dispose of it.
        • Note: Various statutes require that criminal exhibits be preserved for post-conviction purposes. I suspect the appellate clerks will not be eager to trash these materials—even if a trial court clerk disregards a pick-up notice. . . . But we shall see.
      • Required notice on Rule 9(d) copies. All Rule 9(d)(1) “copies” must include this notice: “Rule 9(d) Copies of Exhibits and Other Items.” Given that e-filing is now mandatory, I think the purpose of this rule is for when copies are printed by someone within the court or when a party submits a copy of an oversize exhibit (for example, an oversized plat). The mandatory notice will help the appellate clerks ascertain whether Rule 9(d) materials can be thrown away either (1) because the material is already stored within the electronic filing system, or (2) because the oversized exhibit is only a copy.
    • Expanded Definition of Rule 9(d) Documentary “Exhibits”
      • History: Sometimes an appellate provision morphs into a practice that goes beyond what a rule’s text originally contemplated. The modern incarnation of Rule 9(d) Documentary Exhibits is one such practice. When adopted back in 1975, Appellate Rule 9(d) addressed how trial exhibits were submitted outside of the printed record. Over time, however, so-called “Rule 9(d) Documentary Exhibits” became a repository for trial tribunal items that did not logically fit or need to be included in the printed record, but which were too important to leave out of the appellate record altogether. For example, appellate counsel might be concerned that the opposing party will take the position that an issue was not properly preserved below. Or a party might seek to avoid a key concession made in a trial court brief. Including the relevant items in a Rule 9(d) Documentary Exhibit labeled “Trial Court Memorandum and Briefs” is a way to include the materials in the appellate record without bloating the printed record. Rule 9(d) Documentary Exhibits sometimes also provide a way of promoting a better-organized appellate record. See generally Scherer & Leerberg, North Carolina Appellate Practice & Procedure § 7.04 [Determining in Which Components of the Record on Appeal Documents Should Be Submitted]; § 7.08 [Rule 9(d) Documentary Exhibits]. The problem with old Appellate Rule 9(d)’s text is that it spoke in terms only of exhibits. See N.C. R. App. P. 9(d) (2020).
      • Expansion of permissible Appellate Rule 9(d) materials. Rewritten Appellate Rule 9(d) incorporates the modern practices by providing that all “[e]xhibits and other items that have been filed, served, submitted for consideration, admitted, or made the subject of an offer of proof may be included in the record on appeal under [Rule 9(d)] if a party believes that they are necessary to understand an issue on appeal.” Such items may be grouped together and presented to the appellate court in one or more separate Rule 9(d) volumes—or they may be included in the printed record. N.C. R. App. P. 9(d)(1).
      • Statement of Rule 9(d). By custom, a “Statement of Rule 9(d)” has long been included in printed records when materials are submitted under Rule 9(d). See Scherer & Leerberg, § 7.07[2][q] [Statements Describing Supplements to and Additional Components to Printed Record]. This statement is now required when copies of Rule 9(d) items are filed with the printed record. N.C. R. App. P. 9(a)(1)(o); N.C. R. App. P. 9(a)(2)(l); N.C. R. App. P. 9(a)(3)(n).
    • Printed Record versus Record on Appeal
      • The meaning of the phrase “record on appeal” has undergone a gradual, but substantial, metamorphosis over the past 45 years–both within the case law and within the text of the appellate rules. In the old rules, the phrase “record on appeal” sometimes refers to the golden-rod yellow “print record” reproduced by the clerk’s office in every appeal. But at other times, the phrase “record on appeal” is used to refer more broadly to the entire appellate record. Needless to say, figuring out which “record on appeal” the appellate rules is referencing can be difficult.
      • “Record on Appeal” defined. The amended rules clear up confusion by defining “record on appeal” broadly to include the “printed record, transcripts, exhibits and other items included in the record on appeal pursuant to Rule 9(d), any supplement prepared pursuant to Rule 11(c) or Rule 18(d)(3), and any additional materials filed pursuant to this Rule 9.” N.C. R. App. P. 9(a).
      • Precise use of “printed record” and “record on appeal” terms. The amendments meticulously sort through every “record” reference to specify when a rule applies to the “printed record,” and when it applies to the broader “record on appeal.” For example, practitioners have long assumed that the provisions of Appellate Rule 9(b) (which address issues like unnecessary materials and file-stamps) only apply to the printed record. After all, Appellate Rule 11(c) allows any item that was “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof” to be included within the “record on appeal”—irrespective of its relevance. The amendments confirm this understanding.
    • Time for Filing the Record on Appeal
      • Pre-2022 practices. Under the old rules, an appellant had 15 days to file the “record on appeal” once it was settled. N.C. R. App. P. 12(a) (2020). But as noted previously here, the appellate clerks instructed counsel to file the printed record first, and then wait until an appellate docketing number was assigned to file the remainder of the “record on appeal.” See N.C. R. App. P. 12(a) (2020). Otherwise, the record on appeal components are filed under different appeal numbers and have to be sorted out by the clerk’s office staff.
      • Practices beginning in 2022. The new rules expressly require appellant to file “the printed record, transcripts, copies of exhibits and other items included in the record on appeal pursuant to Rule 9(d), and any supplement prepared pursuant to Rule 11(c) or Rule 18(d)(3)” all within 15 days. Effectively, the 15-day filing requirement covers every component of the “record on appeal” other than the original items. See N.C. R. App. P. 12(a) (2022). Copies of oversized and tangible items need to be filed by the 15-day deadline, but are deemed filed when placed in the mail or hand-delivered to the appellate clerk. See N.C. R. App. P. 26(a) (2022).
      • Website updates coming—but don’t jump the gun. The Supreme Court’s technology department is working on a website update that will permit all record components to be filed at the same time (i.e., without waiting for an appellate docketing number). The new feature should be functioning when the amendments go into effect in 2022—but that new functionality is not ready just yet. Meaning that until either 2022 arrives or the appellate clerks give the bar the green-light to file everything at the same time, counsel should continue to (1) file the printed record, and (2) then file the remaining record components once a docket number is assigned to the appeal. In other words, don’t jump the gun on this new record filing procedure—the rumor is that Gene has inherited Dan’s assault-weapon collection.
    • Prior Notice and Consultation before Filings “Motions”
      • Mandatory Notification and Reporting. The amendments have added a “notification and consent” requirement for all motions except for appeals involving pro se litigants. The new provision states that all appellate motions should (1) report “counsel’s good-faith effort to inform counsel for all other parties of the intended filing of the motion,” (2) “indicate whether the other parties consent to the relief being sought,” and (3) indicate “whether any other party intends to file a response.” N.C. R. App. P. 37(c).
      • I hear you. Virtually all the texts and emails I have received about the amendments in the past 24 hours have involved the scope of the new motion provision. Rather than respond to everyone individually, below is my best guess as of today as to the provision’s likely scope.
      • Inapplicable to Trial Tribunal Motions. This new notification requirement likely does not apply to appellate-related motions filed in the trial tribunal—i.e., first motions to extend transcript and proposed record deadlines. My basis for thinking that? The title of Appellate Rule 37 is “Motions in Appellate Courts.”
      • Motions for Which Ex Parte Relief is Expressly Authorized Elsewhere. This new rule appears to apply to emergency motions for a temporary stay (i.e., those frequently filed with petitions for writ of supersedeas). The tension is that the appellate rules also authorize “ex parte” motions for a temporary stay “for good cause shown.” See N.C. R. App. P. 23; Appendix D. Similarly, although the new consultation provision would likely be most helpful when deciding extension of time motions, Appellate Rule 27(d) provides that “motions for extension of time made in any court may be determined ex parte” when filed before the expiration of the time for which the extension is sought.” Perhaps the consultation rule’s use of the words “should” and “good-faith” are designed to provide flexibility to not consult with opposing counsel “for good cause shown”–for example, during emergency situations or when prior consultation would permit an opposing party to prejudice the interests of the moving party? But I do not know.
      • Motions for Which Opposition Is Obvious. How many times have you seen opposing counsel consent to the following motions: Motions to dismiss an appeal, motions for sanctions, motions for rehearing en banc, motions for stay of execution, motions for appropriate relief? While these motions are almost always opposed, the consultation requirement appears to apply. Perhaps this is good news for attorneys who bill by the hour, but it is likely less welcomed news for public-sector attorneys who frequently file motions to dismiss criminal appeals.
      • Motions for Which Consent is Routinely Given. On the flip side of the coin, are the motions which counsel have historically had no opposition to: Motions to extend a transcriptionist’s deadline, motion to substitute counsel, motion for pro hac vice admission, motion to file confidential materials under seal. Whether this new consultation provision will encourage opposition to these routine motions remains to be seen.
    • WebEx Oral Arguments To Remain an Option Post-Pandemic. The Appellate Rules now explicitly authorize deviations from traditional, in-person oral argument either on the court’s own motion or on the motion of any party. N.C. R. App. P. 30(d) (2022). (Note: the text of old Appellate Rule 30(d) authorizing the submission of a case to the appellate courts on written briefs by party agreement has been moved to new Appellate Rule 30(f)(3)).
    • Miscellaneous
      • Assorted referenced to filing “single copies” and “papers” have been deleted. In an e-filing world, those concepts no longer make sense.
      • Clarification that Appellate Rule 26(g)(1)’s requirement for “letter size” filings and the use of particular fonts applies only to documents “composed for the appeal” (i.e., appellate briefs and petitions, as opposed to trial tribunal materials in the record on appeal).
      • Several other clean-up changes.

And there you have it—a summary of the key changes to the rules coming in 2022. Have I missed any? Any amendments that you love (or hate)? Do you foresee any problems with the new rules.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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