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Utah
State Appellate Procedure (Part 1) by Scott
Ellsworth INTRODUCTION Every survivor of law school knows that American jurisprudence recognizes three different kinds of law: legislation (statutes and ordinances), general provisions enacted by elected representatives; regulation (administrative codes), rules formulated by the executive to enforce legislation; and adjudication (case law), precepts derived from judicial interpretation or construction of legislation, regulation, or prior adjudication. While legislation and regulation, however, ordinarily become generally applicable law simply by virtue of enactment, adjudication binds only the parties to the dispute until the issue or issues upon which their particular disagreement turns have been placed before and decided by an appellate court, charged with the authority to set binding precedent. A controversy appropriately raised to the level of an appeal provides a judicial forum in which law--legislation, regulation, or adjudication--may be interpreted or construed, clarified or explained, vindicated, altered, or overturned. Each issue addressed in a published opinion is like a thread in the tapestry of established precedent; a thread which affects, one way or the other, the pattern and fabric of the case law--reinforcing or unraveling what went before. In a very real sense, participating in an the appellate process is one of the most significant activities in which an attorney may participate. It seems odd, then, that although most young attorneys have participated at some point in a moot court class or competition, such courses tend to focus heavily on substantive law and rhetorical posture rather than matters procedural, unintentionally depriving the students of a basic understanding of the mechanism by which litigation becomes lawmaking. This article address this deficiency by focusing almost entirely on the procedural mechanism of appeal. The article consists of two parts (this is the first), in a sort of chronological outline. This first part addresses the various considerations and procedures necessary to filing an appeal, and appellate motions. The second part discusses briefing and oral argument, and concludes with a discussion of remittitur and petitions for rehearing and certiorari. Of course, the brief summary and discussion herein should be used to direct and facilitate research into the statutes, rules, and cases governing appeals, and not as a substitute for them. 1 FILING AN APPEAL 1.1 A Few Statistics Obviously, the first consideration in planning an appeal should be your chances of success. An appropriate appeal is an opportunity for careful judicial review and reconsideration of your client's case; an inappropriate appeal, on the other hand, is little more than a waste of resources for all involved. This is not to say that a loss on appeal automatically indicates a pointless appeal; on the contrary, the outcome of an appeal depends upon legal as well as factual considerations, application of settled (or sometimes unsettled) law to peculiar fact scenarios, linguistic and historical factors, and prudent analysis of the ramifications of affirmance or reversal, often requiring scrutiny through the lens of public policy. In short, an arguable case does not guarantee the desired result. Indeed, in 1998, the Court of Appeals affirmed three quarters of the cases brought before it; the Supreme Court, nearly half:
Reversals accounted for only 12% of Court of Appeals dispositions, although the Supreme Court reversed 36% of the cases it heard. However, because the jurisdiction of the Supreme Court and the Court of Appeals is complimentary rather than hierarchical (i.e., a case before the Supreme Court does not necessarily come from the Court of Appeals, see § 1.2, below), it should not be supposed that the Supreme Court is likely to reverse the Court of Appeals. Quite the opposite is true: between 1992 and 1996, petitions for certiorari averaged 107 per year. On average, 85 of these petitions were denied each year, and of those granted each year, only about 5 ended with a reversal (that's less than 5%). And, in fact, in 1996, there were no reversals. Norman H. Jackson, Tenth Anniversary of the Utah Court of Appeals, Utah Bar Journal, March 1997, at 19, 20-21. Again, however, these numbers should not be read to discourage warranted appeals, but to encourage prudent review of a case prior to appealing. 1.2 Jurisdiction: Which Court? At present, Utah has two appellate courts: the Supreme Court, established by the State Constitution, Utah Const. art. VIII, § 1, and the Court of Appeals, created in 1986 by statute, 1986 Utah Laws ch. 47, §§ 44-48; see Utah Code Annotated § 78-2a-1 (1999). The appellate jurisdiction of the two Courts is complimentary rather than purely hierarchical: certain types of cases must be appealed directly to the Supreme Court; others, to the Court of Appeals. The Supreme Court may, until a case is set for oral argument, assign (or "pour over") most types of cases over which it has original appellate jurisdiction to the Court of Appeals, Utah Code Annotated § 78-2-2(4), URAP Rule 42(a); reciprocally, the Court of Appeals may, prior to final judgment, certify certain types of cases over which it has original appellate jurisdiction to the Supreme Court, Utah Code Annotated § 78-2a-3(3), URAP Rule 43(a). However, although the Supreme Court has jurisdiction to hear an appeal from a final decision of the Court of Appeals, such an appeal is not of right, but by petition for a writ of certiorari. Utah Code Annotated § 78-2-2(3)(a) & (5), URAP Rules 45 & 46(a). The following table sets forth the complimentary jurisdictional domains of Utah's two appellate courts:
This complementary distribution of case-types between the courts--although it makes excellent use of judicial resources--can be rather confusing the advocate, and care must be taken to ensure that an appeal is filed in the appropriate forum. Fortunately, however, erroneous filing in an appellate court lacking jurisdiction is not necessarily fatal. The foresighted drafters of the Rules of Appellate Procedure prudently included language allowing for the transfer of misfiled appeals: If a notice of appeal or a petition for review is filed in a timely manner but is pursued in an appellate court that does not have jurisdiction in the case, the appellate court, either on its own motion or on motion of any party, shall transfer the case, including the record on appeal, all motions and other orders, and a copy of the docket entries, to the court with appellate jurisdiction in the case. URAP Rule 44. Thus, rather than dismissing an otherwise proper appeal, a matter filed in the wrong appellate court will be transferred to the correct forum. So, for instance, were an appeal from an informal adjudicative proceeding of, say, the Division of Air Quality (Chapter 2 of Title 19), incorrectly filed with the Supreme Court (which has no direct appellate jurisdiction over such decisions), the Supreme Court would transfer the case to the Court of Appeals (where jurisdiction is proper)--or even to the appropriate district court, if that necessary review had somehow been omitted. See URAP Rule 44, Advisory Committee Note. The transferring court's clerk notifies all parties, as well as the trial court, of the order transferring the case. Once the matter has been transferred, all filing times are calculated under the schedule of the receiving court. URAP Rule 44. 1.3 A Word on Timing, Filing, and Service In the appellate courts, all papers and/or documents must be filed with the clerk of the court, located in the north wing of the fifth floor of the Scott M. Matheson Courthouse, 450 South State, Salt Lake City, Utah 84111-3101. While filing may be accomplished by mail, filing of anything but a brief is complete upon receipt by the clerk, not upon the date of mailing. URAP Rule 21(a). If you must file papers by mail, in other words, give yourself plenty of time. Briefs, on the other hand, are "deemed filed on the date of the postmark if first class mail is utilized." Id. At or before the filing of any paper with the court, copies must be served on all other parties to the appeal. URAP Rule 21(b). Conversely, a copy of any paper required to be served on a party must be filed with the court, accompanied by proof of service, id.--acknowledgment of service by the person served, or a certificate of service stating the date and manner of service, the names of those served, and the addresses at which they were served, URAP Rule 21(d). When service is made upon counsel of record, a certificate of service must state the name of the party such counsel represents. Id. Unlike filing, service by mail is complete upon mailing; and personal service "includes delivery of the copy to a clerk or other responsible person at the office of counsel." URAP Rule 21(c). Computation of time on appeal is governed by URAP Rule 22(a), which provides that the day of the act, event, or default which triggers the running of a designated time is not included in the measurement of that time. When the last day of the prescribed period is Saturday, Sunday, or a legal holiday (federal or state), the time is automatically extended to the next day which is not Saturday, Sunday, or a legal holiday. Id. Saturdays, Sundays, and legal holidays are not counted if the time allotted is fewer than 11 days. Id. Service by mail adds three days to any prescribed period counted from the date of service. URAP Rule 22(d). 1.4 Appeals as of Right Appeals are of three sorts: appeals as of right from "final orders and judgments," URAP 3(a), discretionary appeals from interlocutory orders, URAP 5, and review of administrative orders, URAP 14(a). An appeal as of right may be taken from the final orders and judgments(1) of any district or juvenile court by filing a notice of appeal, along with the appropriate filing fee, with the clerk of the trial court. URAP Rules 3(a) & (f). A notice of appeal, far and away the simplest document in the appellate process, must set forth
URAP Rule 3(d). The notice must generally be filed within 30 days of the entry of the judgment or order appealed--unless that judgment or order is entered in a statutory forcible entry or unlawful detainer action, the notice must be filed within 10 days of the entry of the judgment or order appealed. URAP Rule 4(a). If, however, a party timely files in the trial court any of the following motions, the allotted time to file a notice of appeal runs from the disposition of the motion:
URAP Rule 4(b). Note that a notice of appeal filed prior to the disposition of any such motion has no effect; a new notice must be filed within the prescribed time after disposition to bestow jurisdiction on the appellate court. Id. ( Note also, however, that if a Rule 59 motion to alter or amend a judgment does not result in a change to the substance of the judgment, the time for filing a notice is not enlarged. Nielson v. Gurley, 888 P.2d 130, 132-33 (Utah Ct. App. 1994), cert. denied, 899 P.2d 1231 (Utah 1997).) A party filing a Rule 59 motion to alter or amend ought probably to file an early notice of appeal as well, to be on the safe side: in this way, if the motion is denied, the appeal will still be timely.) Where none of these motions is present, however, a notice of appeal is timely if filed after the announcement, but before the entry, of a judgment, decision, or order of the trial court--it is treated as though it had been filed on the day the judgment or order is entered. URAP Rule 4(c). A party's filing of a timely notice of appeal confers upon all other parties 14 days in which to file their own notice of appeal; thus, if Party A files a notice of appeal on the 30th day following entry of a final judgment, Parties B and C may file their own appeals or cross-appeals within 14 days of Party A's filing, notwithstanding the fact that the generally applicable 30-day appeal deadline has already elapsed. See URAP Rule 4(d). When the interests of two or more parties are similar enough, they may file a joint notice of appeal; or, having filed a timely notice of appeal, a party may join in the appeal of another. Moreover, the appellate court may consolidate individual appeals upon its own motion, by motion of a party, or by stipulation of the parties to the separate appeals. URAP Rule 3(b). A notice of appeal is timely only if filed within the permitted time; a notice is not timely if mailed on the last day, but only if received by that day. Isaacson v. Dorius, 669 P.2d 849, 850-51 (Utah 1983); see also Maverik Country Stores, Inc. v. Industrial Comm'n of Utah, 860 P.2d 944, 950 (Utah Ct. App. 1993) (Rejecting the argument that an appeal is filed when mailed.) The sole exception to this general rule is the so-called "prison delivery rule," which allows as timely a notice of appeal deposited by a confined inmate in the confining institutions mail system on or before the last day for filing with a notarized statement giving the date of deposit and stating that first-class postage has been prepaid. URAP Rule 4(f) (adopted in response to State v. Parker, 936 P.2d 1118 (Utah Ct. App. 1997) (dismissing such an appeal as untimely)). URAP Rule 4(e) permits a trial court, upon motion, to extend the time for filing of a notice of appeal up to 30 additional days (or 10 days from the granting of such a motion, whichever is later). The moving party must show "excusable neglect or good cause," id., but the standard here is stricter than in ordinary "excusable neglect" situations, and is meant to cover only emergencies. Prowswood, Inc. v. Moutain Fuel Supply Co., 676 P.2d 952, 959-60 (Utah 1984). 1.5 Interlocutory Appeals The term "interlocutory" derives from the Latin term interlocutio (inter 'between' + loqui 'speak') meaning "interruption." An interlocutory appeal, therefore--or more precisely, an appeal from an interlocutory order--is an appeal during litigation from a nondispositive decision of the trial court. As is implied by its being a separate category from the appeal as of right, the interlocutory appeal is discretionary with the appellate courts: there is no right to such an appeal; permission must be requested through a formal "petition for permission to appeal." URAP Rule 5(a). The petition must be filed with the clerk of the appropriate appellate court within 20 days of the entry in the trial court of the order for which permission to appeal is sought, URAP Rule 5(a), and must include
URAP Rules 5(c) & (e). Within 10 days of service of such a petition, any other party may file an opposing or concurring answer. If the appeal may be assigned by the Supreme Court to the Court of Appeals, the answer may contain a concise response to any reasons cited for the Supreme Court to retain jurisdiction. URAP Rule 5(d). If the Supreme Court has jurisdiction over the appeal requested, the original and five copies of the petition must be filed with the Supreme Court clerk, along with the filing fee. If the Court of Appeals has jurisdiction, the petitioner must file the original and four copies of the petition, together with the requisite fee. URAP Rule 5(b). A copy of the petition must be served upon all other parties, URAP Rules 5(b) & 21(b), and notice of filing the petition must be served upon the trial court, URAP Rule 5(b). The appellate court clerk will notify the parties by mail of an order granting permission to appeal, and will transmit a certified copy of the order, with a copy of the petition, to the trial court, where it will be filed in lieu of a notice of appeal. URAP Rule 5(b). The appeal is considered filed and docketed by the granting of the petition. URAP Rule 5(e). 1.6 Review of Administrative Orders Direct review of administrative orders by the Supreme Court or Court of Appeals requires statutory authorization.(2) A petition for review pursuant to such a statute must be filed, with relevant fees, with the clerk of the appropriate appellate court within 30 days after the date of the order or decision from which the petitioner wishes to appeal. URAP Rule 14(a). The petition must state
Id. A copy of the petition must be served by the petitioner upon the named respondent(s), upon all other parties to the proceeding before the administrative agency, and, if the state of Utah is a party, upon the state Attorney General. URAP 14(c). Upon filing the petition, the petitioner must file with the appellate court clerk a certificate reflecting service upon all parties. Id. Two or more persons who are entitled to petition for review from an administrative order or decision, and whose interests "are such as to make joinder practicable," may file a joint petition and proceed as a single petitioner. URAP 14(a). URAP Rule 14(d) permits "[a]ny person who seeks to intervene" in appellate review of the decision of an administrative agency to make a motion for leave to intervene by "serv[ing] upon all parties who participated before the agency, and fil[ing] with the clerk of the appellate court a motion for leave to intervene." The motion must be filed within 40 days of the filing of the original petition for review, and must include a statement of the moving party's interest and the grounds for intervention. Id. (See Section 2.9, below, for procedure.) 1.7 Bond for Costs on Appeal In all civil appeals from trial court decisions, at the time the notice of appeal is filed, the appellant must file a bond for costs on appeal. The bond must be at least $300.00, but the trial court, upon motion by the appellee, may set the bond at such higher amount as will ensure payment of costs on appeal. URAP Rule 6. The bonding requirement is not applicable if
Id. A bond is not required in administrative appeals. The bond must secure payment of costs if the appeal is dismissed or the judgment affirmed, or, if the judgment is modified, payment of such costs as the appellate court may award. Id. The bond must be supported by sufficient sureties to ensure payment, id., and any sureties must consent to personal jurisdiction by the trial court, and must irrevocably appoint the trial court clerk as an agent upon whom any papers may be served which affect liability on the bond. URAP Rule 6 & 7. 1.8 The Record In an appeal, almost everything derives from the record: all legal theories must be found in it; all arguments must be drawn from it; all facts must be cited therein; and only such evidence as is already bound within it may be adduced before the appellate tribunal. 1.8.1 The Transcript The appellant's first concern must be the transcript. Within ten days after filing the notice of appeal, the appellant must request, in writing, from the trial court a transcript of any parts of the proceedings (i.e., the trial or the relevant hearings), not already on file, which the appellant believes necessary. URAP Rule 11(e)(1). The request must state that the transcript is needed for purposes of an appeal. Id. A copy of the request, or a certificate stating that the appellant will not request any such parts of the proceedings, must be filed with the clerks of both the trial and appellate courts. Id. Of course, the appellant need not request the entire transcript: only those parts which he or she feels to be necessary. However, if only part of the transcript is ordered, the appellant must file a statement of the issues to be presented on appeal, and serve upon the appellee a copy of the statement and of the transcript request or certificate stating that no request will be made. URAP Rule 11(e)(3). The appellee then has ten days (from service) to file and serve upon the appellant a designation of any portions of the proceedings which the appellee wishes to be included in the transcript. Id. Within ten days of service of the appellee's designation, the appellant must request those portions of the proceedings from the trial court executive and notify the appellee of the request. Id. In accordance with URAP Rule 11(e)(1), the appellant should probably file a copy of this new request with the clerks of the trial and appellate courts as well, although the rule does not specifically so require. Regardless of how much of the proceedings the appellant plans to request be transcribed, if the appellant intends to challenge a finding or conclusion as unsupported by or contrary to the evidence, he or she must request a transcript of all evidence relevant to the finding or conclusion to be challenged. URAP Rule 11(e)(2). The rule contains a stern reminder that "[n]either the court nor the appellee is obligated to correct appellant's deficiencies in providing the relevant portions of the transcript." Id. Where the appellant fails to provide a complete transcript of the relevant evidence as mandated by URAP Rule 11(e)(2), an appellate court is "unable to review the evidence as a whole and must therefore presume that the verdict was supported by admissible and competent evidence." Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct. App. 1989), cert. denied, 776 P.2d 916 (Utah 1989) (quoting Smith v. Vuicich, 699 P.2d 763, 765 (Utah 1985)). Interestingly, if no report of the evidence or proceedings has been made, or if no transcript may be had--if, for instance, the appellant (in a civil case) is impecunious and cannot afford a transcript--the rule permits the appellant to prepare a statement of the evidence and/or proceedings from "the best available means, including recollection." URAP Rule 11(g). This statement must be served upon the appellee, who may, within ten days, serve objections or propose amendments. Id. The statement and any objections or proposed amendments are submitted to the trial court for settlement and approval, and included by the trial court clerk in the record on appeal. Id. 1.8.2 The Rest of the Record While the transcript is being requested, prepared, and possibly debated, the trial court clerk prepares the remainder of the record. The record consists of all "original papers and exhibits filed in the trial court, the transcript of proceedings, if any, the index prepared by the clerk of the trial court, and the docket sheet." URAP Rule 11(a). When a notice of appeal is filed, the trial court clerk organizes the entire record in a case file, in the following order:
URAP Rule 11(b)(1). The bottom right corner of each page of the index, docket sheet, and all original pages is stamped with a page number. Record pagination is sequential and follows the chronological order of the record; however, page numbers are stamped on only the cover pages of published depositions and transcript volumes, URAP Rule 11(b)(2)(A), since these are generally numbered separately. The chronological index at the beginning of the record gives the filing date of each paper, deposition, or transcript, as well as the page of the record on which it begins. URAP Rule 11(b)(3). In lieu of a formal record, the parties may jointly prepare and sign a statement of the case, explaining how the appealed issues arose, and how each was decided by the trial court. URAP Rule 11(f). Such a statement need only set forth those facts--proved or to be proved--essential to a decision of the issued presented. Id. The trial court may make such additions to the statement as it may think necessary and approves the statement, whereupon a copy of the index of the record is transmitted to the appellate court clerk. Id. Either way, whether the trial court clerk prepares a formal record or the parties draft a less exhaustive statement of the case, any disputes between (or among) the parties as to the accuracy of the record must be submitted to the trial court for disposition. URAP Rule 11(h). Material omissions or misstatements may be corrected by stipulation or by direction of the trial or appellate courts. Id. If necessary, either court may order the preparation of a supplemental record. Id. Proposed changes to the record must be served, by the moving party or by the court, if acting on its own motion, upon all parties; and objections may be served within ten days of service. Id. Other questions as to the form or content of the record must be submitted to the appellate court. Id. 1.9 The Docketing Statement The docketing statement is due within 21 days after the filing of the notice of appeal (or petition for review). URAP Rule 9(a). No docketing statement is necessary in cases of interlocutory appeal. URAP Rule 9(b). A docketing statement, essentially a summary of the appeal, allows the appellate courts to determine, when both the Supreme Court and the Court of Appeals have jurisdiction, which court should hear the appeal; whether a case over which the Court of Appeals has jurisdiction should be certified to the Supreme Court or a case over which the Supreme Court has jurisdiction should be assigned to the Court of Appeals; the priority of the case; whether summary disposition is appropriate; and in making calendar assignments. Id. A docketing statement must contain all of the following information in the order given:
URAP Rule 9(c), (d), & (e). An original and two copies of the docketing statement must be filed with the court. URAP Rule 9(a). 2 MOTIONS Most attorneys do not associate appellate practice with motion practice, which is admittedly far more common at the trial court level. There is, however, a set of motions peculiar to appeals with which the appellate practitioner should be familiar. 2.1 Motion for Stay Pending Appeal URAP Rule 8 permits the filing in an appellate court of a motion for the stay the judgments or orders of a trial court, the approval of a supersedeas bond, or the granting (or suspending) of an injunction pending appeal. Similarly, URAP Rule 17 permits the filing of a motion in an appellate court for the stay of an administrative agency decision pending appellate review. Both rules point out that ordinarily, application for stay (or bond, or injunction) pending appeal or review must first be made to the trial court or the agency. Thus, a motion for such relief made to the appellate court must show that application to the trial court or the agency is impracticable, or that application has been made and denied, with the reasons given by the trial court or the agency for the denial. URAP Rules 8(a) & 17. The motion must also include the reasons for the relief requested and the facts relied upon, supported by affidavits or other sworn statements if disputed, as well as relevant portions of the record. Id. Reasonable notice must be given to all parties of the filing and the matter heard by the court, but in exceptional, time-sensitive cases, where ordinary procedure would be impractical, the application may be considered by a single judge or justice. Id. Relief may be conditioned upon the giving of a bond or other security. URAP Rules 8(b) & 17. URAP Rule 8(c) declares that a stay in a criminal case pending appeal is governed by Rule 27 of the Utah Rules of Criminal Procedure ("URCrP"). This rule mandates a stay of execution where an appeal or other petition for relief is pending, URCrP Rule 27(a)(1), and a stay of fine, imprisonment, or probation pending appeal if a certificate of probable cause issues. If the defendant is sentenced to a term of imprisonment--i.e., where a stay involves release--the trial court must, before it can permit release, determine "by clear and convincing evidence that the defendant is not likely to flee during pendency of the appeal and that the defendant will not pose a danger to the safety of any other person or the community if released," URCrP Rule 27(a)(2). Denial of a certificate of probable cause, or a finding that a defendant is likely to flee or poses a danger, "may be appealed to the court in which the notice of appeal of conviction has been filed." URCrP Rule 27(c). This, however, is the only circumstance in which a stay in a criminal matter would be heard by an appellate court. 2.2 Motion for Enlargement of Time As noted above, URAP Rule 26(a) permits the parties to an appeal, by stipulation, to extend up to 30 days the filing deadlines on the various briefs required in an appeal. All other requests for enlargement of time must be made by motion to the Court. Note, however, that "[m]otions for an enlargement of time for filing briefs beyond the time permitted by stipulation of the parties under Rule 26(a) are not favored," URAP Rule 22(b)(1), although parties are permitted to file one motion for enlargement of time, ex parte--not to exceed 14 days--on matters besides the filing of briefs "but only if no such enlargement has previously been granted," URAP Rule 22(c). In any case, however, all motions for enlargement of time must "be filed prior to the expiration of the time for which the enlargement is sought," URAP Rule 22(b)(3), and must state with particularity
URAP Rule 22(b)(4). An assertion of complexity as "good cause" requires a statement of reasons that "the appeal is so complex that an adequate brief cannot reasonably be prepared by the due date." URAP 22(b)(5)(B). Asserting engagement in other litigation requires specific identification and description of the other litigation, as well as a statement as to "why the other litigation should take precedence over the subject appeal" and "why associated counsel cannot prepare the brief for timely filing or relieve the movant in the other litigation." URAP Rule 22(b)(5)(A). An assertion of extreme hardship requires a detailed statement of the nature of the hardship. URAP Rule 22(b)(5)(C). 2.3 Suggestion for Certification Under URAP Rule 43, the Court of Appeals "may, upon the affirmative vote of four judges of the court, certify a case for immediate transfer to the Supreme Court for determination." URAP Rule 43(a). The Court of Appeals may decide, upon its own motion, whether to so certify a case; but the rule also provides that "any party to a case may . . . file and serve . . . a suggestion for certification . . . setting forth the reasons why the party believes that the case should be certified" to the Supreme Court. URAP Rule 43(b)(1). This "suggestion" may not be made prior to the filing of the docketing statement (see § 1.9, above). The party making the suggestion must file an original and eight copies with the Court of Appeals. Id. Within ten days of service, an adverse party may file and serve a "statement" supporting or opposing the suggestion--likewise, an original and eight copies. Id. Both the suggestion and the statement in response are limited to five pages. 2.4 Motion for Summary Disposition Under URAP Rule 10(a), within 10 days of filing the docketing statement or receipt of an order granting a petition for interlocutory appeal, a party may move
A motion for summary disposition under URAP Rule 10 is dispositive of the appeal, and pending its outcome, the appellate timetable is suspended, URAP Rule 10(d); the reviewing court may, however, defer ruling on a Rule 10 motion "until plenary presentation and consideration of the case," URAP Rule 10(f). Disposition of the motion (i.e., summary affirmance or reversal) would, of course, terminate the appellate timetable; deference until plenary presentation and consideration, on the other hand, would restart the appellate calendar. Some might be tempted to use an unwarranted Rule 10 motion as a device to enlarge time and circumvent the requirements and restrictions of Rule 22. Such a course, however, is both improper and unethical; but, for those unmoved by either conscience or ethics, URAP Rule 33(a) mandates damages, "which may include single or double costs . . . and/or reasonable attorney fees" to be paid "by the party or the party's attorney," for frivolous or delaying motions. Needless to say, you should be quite certain of your position--that jurisdiction is truly absent, that the appeal is truly insubstantial, or that error is truly manifest--before filing a motion for summary disposition of an appeal. 2.5 Motion to Remand for Findings Necessary to a Determinationof a Claim of Ineffective Assistance of Counsel In criminal cases, a party may move that the case be temporarily remanded to the trial court for entry of findings of fact necessary for the appellate court to determine a claim of ineffective assistance of counsel. URAP Rule 23B(a). Such a motion must be filed prior to the filing of the appellant's brief, although, upon a showing of good cause, the court may permit the motion to be filed thereafter; but the motion may not be filed after oral argument. Id. The motion is "available only upon a nonspeculative allegation of facts, not fully appearing in the record, which, if true, could support a determination that counsel was ineffective." Id. Of course, the court may remand under Rule 23B at any time upon its own motion if the claim has been raised and the motion would have been available to a party. Id.; see also State v. Vessey, 967 P.2d 960, 965 n.5 (Utah Ct. App. 1998). The motion must include or be accompanied by affidavits alleging the facts (not fully appearing on the record) which show the claimed deficiency in counsel's performance and the claimed prejudice to the appellant resulting therefrom. URCrP Rule 23B(b). The motion must also be accompanied by a proposed order of remand identifying the ineffectiveness claims and specifying relevant factual issues. Id. The opposing party files a response within 20 days, including its own proposed order of remand which likewise identifies the ineffectiveness claims and relevant factual issues (unless the responding party accepts that proposed by the moving party). Id. The appellant may reply within 10 days. Id. Filing a Rule 23B motion vacates both oral argument and briefing deadlines, but other procedural steps are not stayed except upon stipulation or motion of the parties or upon the court's own motion. URAP Rule 23B(d). If remand is granted, the trial court has 90 days to complete proceedings (unless there be good cause for delay), URAP Rule 23B(e), whereupon the record of these supplemental proceedings is transmitted to the appellate court, URAP Rule 23B(f). The appellate court clerk then sets a new briefing and oral argument schedule. URAP Rule 23B(g). 2.6 Motion to File a Brief as Amicus Curić or Guardian ad Litem. Unless the reviewing court requests such a brief, an amicus curić or guardian ad litem representing a nonparty minor may file one only with the written consent of all parties to the appeal, which consent must be filed with the brief, or by leave of the court granted upon motion. URAP Rule 25. A motion for leave to file as an amicus curić or guardian ad litem must identify the applicant's interests and state the reasons that such a brief is desirable. Id. Despite taking part in the briefing, amici curić and guardians ad litem have no automatic right to participate in oral argument, but Rule 25 makes provision for their participation upon motion, to be granted at the court's discretion "when circumstances warrant." 2.7 Motion for Expedited Decision Once all the briefs in an appeal have been filed, a party may move, under URAP Rule 31(a), for an expedited decision without a written opinion. Such a motion must describe the issues presented, and the party's reasons for desiring an expedited decision. An expedited decision rendered pursuant to Rule 31 is not precedent, but has, in all other respects, the same force and effect as other decisions of the court, URAP Rule 31(f), and is binding for purposes of law of the case, res judicata, and claim preclusion. Only certain types of matters, however, qualify for expedited decision without opinion:
URAP Rule 31(b). In all such cases, "the substantive rules of law should be deemed settled, although the parties may differ as to their application." URAP Rule 31(c). It goes without saying, of course, that expedited decision will not be granted in cases involving "substantial constitutional issues, issues of significant public interest, issues of law of first impression, or complicated issues of fact or law." URAP Rule 31(d). When a Rule 31 motion is granted, the case is set for oral argument within 45 to 60 days of the granting order. URAP Rule 31(e). Within two days of oral argument, the court will decide the case and either issue a written order, entry of which by the clerk constitutes entry of judgment, id, or notify the parties that it believes a written opinion should be issued, in which case the two-day limitation does not apply, URAP Rule 31(g). 2.8 Motion for Reinstatement of Appeal One of the more important motions to be familiar with is the URAP Rule 23A motion for reinstatement of an appeal dismissed "for failure to take a step." Ideally, of course, this rule should never be needed; however, when miscommunication, scheduling mistakes, memory lapses, human error, and deception make things less than ideal, Rule 23A offers a hopeful alternative to irremediable dismissal and possible malpractice liability. This motion permits an appellant to revive an appeal after it has been dismissed as a result of his or her having omitted a required procedural action because of "mistake, inadvertence, surprise, or excusable neglect or . . . fraud, misrepresentation, or misconduct of an adverse party." URAP Rule 23A(a) & (b). The motion must be filed "within a reasonable time after entry of the order of dismissal." While "reasonable time" is not specifically defined, a Rule 23A motion must be filed prior to the appellate court's remittitur of the case to the trial court, which deprives the appellate court of further jurisdiction. See State v. Clark, 913 P.2d 360, 362 (Utah Ct. App. 1996) (holding use of the Rule 23A remedy barred by res judicata after remittitur: dismissal of appeal became adjudication on the merits which the defendant could no longer challenge). 2.9 Suggestion of Mootness "It is the duty of each party," declares URAP Rule 37(a), "at all times during the course of an appeal to inform the court of any circumstances which have transpired subsequent to the filing of the appeal which render moot one or more of the issues raised." An issue is mooted if, and apparently only if, "the requested judicial relief cannot affect the rights of the litigants," R.O.A. General, Inc. v. the Utah Dept. of Transportation, 966 P.2d 844, 844 (Utah 1998); Winters v. Schulman, 1999 UT App 119, ¶11, 977 P.2d 1218: a supervening case, for example, rules on an identical issue, or a legislative enactment effectively disposes of an issue. In any case, should a party determine that an issue has become moot, for whatever reason, "the party shall forthwith advise the court by filing a 'suggestion of mootness' in the form of a motion under Rule 23." URAP Rule 37(a); see § 2.11, below. If the parties to an appeal, on the other hand, agree that a particular issue is moot (having settled that particular point, for instance), the "suggestion of mootness" becomes a "stipulation of mootness," and, "unless otherwise directed by the court, the appeal will then proceed as to the remaining issues." Id. Of course, if the parties agree that all of the issues have become moot, the "suggestion of mootness" becomes a voluntary dismissal. Id. 2.10 Voluntary Dismissal An appeal may be voluntarily dismissed by either of two means: by agreement or by motion of the appellant. URAP Rule 37(b). If the parties are in accord, they need only file with the appellate clerk a signed agreement that the appeal be dismissed. Id.(3) The agreement must provide specific terms as to payment of costs, and the parties must pay any owing fees, and thereupon, the clerk enters an order of dismissal. Id. Where such an agreement has not or cannot be reached, the appellant may make a motion for dismissal upon such terms of payment of costs and fees as ordered by the court. Id. If, however, the appellant has a right to effective assistance of counsel (i.e., criminal defendants and parties to juvenile proceedings), a motion for dismissal must be accompanied by the appellant's personal affidavit, "demonstrating that appellant's decision to dismiss the appeal is voluntary and made with knowledge of the right an appeal and an understanding of the consequences of voluntary dismissal." Id.(4) 2.11 Procedure In addition to the requirements set out in the separate rules governing each of the motions set forth above, URAP Rule 23, which governs appellate motion procedure generally, requires (besides the usual caption, paging, and font-size rules) that all motions "contain or be accompanied by"
URAP Rule 23(a). Within 10 days of service of a motion, any party may file a response in opposition. URAP Rule 23(b). (But note that motions for remand under Rule 23B are given a 20-day response time. See § 2.1, supra.) However, for good cause shown--probably also by motion--the court may "dispense with, shorten or extend the time" for filing a response. URAP Rule 23(b). Replies, which may address only new matters raised in a response, get even shorter shrift: "the court shall not postpone action on the motion to await the reply." URAP Rule 23(c). And indeed, a purely procedural motion, such as for instance a 22(b) motion for enlargement, may be disposed of at any time, "without awaiting a response or reply." URAP Rule 23(d). A single justice or judge may grant or deny a motion, URAP Rule 23(e); but he or she "may not dismiss or otherwise determine an appeal," id. The court may order that any motion or class of motions must be acted upon by the court rather than a single judge or justice; and, in any event, the court may review the action of any single justice or judge. Id. Certain types of procedural motions, as ordered by the court or provided for in the rules, may be determined by the court clerk, although the court may, of course, review the clerk's disposition of the matter, either sua sponte or upon motion. URAP Rule 23(d). The number of copies to file varies somewhat according to the type of motion brought:
URAP Rule 23(f)(1) & 43(b)(1). These numbers are evidently applicable to responses and replies as well, although, so far as responses are concerned, Rule 23(f)(1) specifically discusses only responses to motions other than for enlargement of time or for summary disposition. Id. CONCLUSION Although briefing and argument are the raison d'etre of appellate procedure, there is, as can be seen, far more involved in an appeal. For one unprepared for or unfamiliar with the mechanics of appellate procedure, the various necessary steps to preparing both the case and the court for proper review can appear to be a quagmire of minutić, rather than the carefully orchestrated mechanism it is meant to be. It is my hope that this review--brief though it must of necessity be--will aid the beginning appellate advocate (and perhaps provide a reference to their more experienced colleagues) to navigate the archipelago of appellate procedure without grounding on hidden reefs or unexpected sand bars. Thus far, we have reviewed jurisdiction, filing, bonding, preparation of the record, the docketing statement, and many of the critical motions, peculiar to appellate procedure, which may be brought before the court. The second part of this article will discuss (1) the mechanics of briefing: the briefing schedule, page limitations, and brief organization, among other things, including the all-important presentation of standards of review and the marshaling of evidence; (2) designation of the record; (3) oral argument; (4) petitions for rehearing and for certiorari; and (5) post-remittitur procedures. 1. Analysis of which sorts of judgments and orders are "final" is beyond the scope of this article. Suffice it here to repeat the basic principle that "[a] judgment is final when it ends the controversy between the parties litigant." Salt Lake City Corp. v. Layton, 600 P.2d 538, 539 (Utah 1979). 2. Note that many agencies' decisions and orders, especially local agencies', are appealable to district court. Such district court review is then appealable to the Court of Appeals under the Court of Appeals' power to review district court decisions. 3. It should be noted that Rule 37(b)'s provisions concerning voluntary dismissal apply not only to appeals, but to any "other proceeding[s]" before an appellate court as well. 4. This requirement was added only recently, in November of 1999, "to assure that the decision to abandon an appeal is an informed choice made by the appellant, not unilaterally by appellant's attorney." URAP Rule 37, 1999 Advisory Committee Note. |
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