New Year, New Rules: Amended Rules of Appellate Procedure Are Now In Effect

by Jeff Kelly

While 2019 is not on track to become the futuristic landscape predicted in Blade Runner, the new year brings new Rules of Appellate Procedure and takes steps toward a paperless appellate practice.

On Dec. 19, 2018, the Supreme Court of North Carolina issued an order amending the North Carolina Rules of Appellate Procedure, which went into effect on Jan. 1, 2019. The order can be found here, and it “affects Rule 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, 42 (new) and Appendixes A, B, and D.”

The majority of these changes relate to appeals from cases involving the termination of parental rights, which are now directly appealed to the Supreme Court of North Carolina. There are, however, changes to the Appellate Rules that will affect all practitioners, including adjustments to when appellant briefs are due, reduction in the volume of paper documents filed with appellate courts, and new rules concerning sealed documents and protected information.

Appellate Procedures for Termination of Parental Rights Cases

As of January 1, 2019, all appeals from orders that terminate parental rights or deny a petition or motion to terminate parental rights are appealed directly to the Supreme Court of North Carolina. Appellate Rule 3.1 was re-written in anticipation of the direct appeal to the Supreme Court, and here is an overview of the changes to Rule 3.1:

• Expedited Delivery of the Transcript: The previous version of Rule 3.1 provided different timelines for the assignment of a transcriptionist, preparation of the transcript of the proceeding, and the service of the transcript, depending on whether there was an order establishing the indigency of the appellant. The revised Rule 3.1 consolidates these timelines. Notably, the transcriptionist is now responsible for electronically delivering the transcript to each party to the appeal, not just the appellant.
• Expedited Filing of the Record on Appeal: Rule 3.1 appeals are no longer excluded from the procedures for settling the record on appeal established by Appellate Rule 11. The revised Rule 3.1 expedites the procedures for serving a proposed record, objections or amendments to the proposed, and settling the record on appeal set forth in Appellate Rule 11. This change also means that parties do not file competing records on appeal if there is a dispute over the content of the appellate record but, instead, include that content in a Rule 11(c) Supplement or seek judicial settlement of the record.
• Mandatory e-Filing of All Documents: All documents in Rule 3.1 appeals must be filed electronically going forward. Exceptions to this requirement may be granted for good cause.

There are a few notable omissions from the revised Rule 3.1, as well.

First, the revised Rule 3.1 no longer includes a separate provision regarding the appellate briefing schedule. Instead, appeals under Rule 3.1 will follow the general briefing and timing rules set by Appellate Rules 13 and 28(h).

Second, the revised Rule 3.1 is silent about whether termination of parental rights cases will continue to have calendar priority or the extent to which oral arguments will be held in these cases. Under old Rule 3.1(e), termination of parental rights appeals would “be given priority over other cases being considered,” and would “be disposed on the record and briefs and without oral argument[,]” unless otherwise provided. While it’s only implied by the removal of those provisions from Rule 3.1, the North Carolina Judicial Branch’s notice of these amendments to the Appellate Rules states that:

“These appeals will be calendared in the Supreme Court according to North Carolina Rule of Appellate Procedure 29. The calendar published by the Supreme Court Clerk will indicate whether the appeal will be disposed of on the record and briefs according to the North Carolina Rule of Appellate Procedure 30(f).”

In other words, the Supreme Court has the discretion to continue giving Rule 3.1 appeals priority over other cases, with or without oral argument. We will be able to assess the impact of these omissions once we have a large enough sample size of calendars published by the Supreme Court Clerk. Stay tuned.

Filing the Printed Record Now Starts Appellate Rule 13’s Brief Schedule

Under the new Appellate Rule 13, the appellant no longer measures the deadline for filing their initial appellate brief from the date on which the clerk mails the printed record to the parties. Instead, the appellant’s 30 days to file and serve their initial appellate brief (or 60 days in capital cases) begins to run immediately when the record is deemed filed. Do not let your calendaring habits from last year carry forward, or you may file your appellant brief late.

Fewer Paper Copies Required

Several of the Rules of Appellate Procedure were amended to reduce the number of paper copies filed with appellate courts. Office print queues rejoice.

Most of the reduction in paper filings relate to appellate record supplements, which were previously filed in triplicate. The revised Appellate Rules now only require the appellant to file one copy of Rule 9(d) Documentary Exhibits, Rule 9(b)(5) Supplements, Rule 11(c) Supplements, and Rule 18(d)(3) Supplements.

Appellate Rule 28(g) was also amended, and parties no longer need to file additional copies of a memorandum of additional authorities.

Electronic Appeal Information Statement

Appellate Rule 41 is now a one sentence instruction for the appellant to complete an Appeal Information Statement “using the electronic-filing site at https://www.ncappellatecourts.org before the appellant’s brief is filed.” (emphasis added). Rule 41 no longer includes an option to submit a paper Appeal Information Statement, so appellants should go here to register for electronic filing privileges if they have not already done so.

New Appellate Rule 42 Governs Sealed Items and Protected Identities

The amendments to the Appellate Rules consolidated provisions concerning sealed items and private information into the new Appellate Rule 42. Here is an overview of Rule 42:

• Items and Cases Automatically Sealed: Under Rule 42(a), if an item was sealed in the trial tribunal, it will remain under seal in the appellate courts. When sealed items are filed in the appellate courts, are required to attach a copy of the order, statute, or other legal authority that sealed that item. Rule 42(b) also automatically seals entire categories of appeals, including appeals under the Juvenile Code related to abuse, neglect, dependency, termination of parental rights, or delinquency, as well any appeal under N.C. Gen. Stat. § 7A-27 that involves a sexual offense committed against a minor.
• Pseudonyms or Initials for Minors: Former Rule 3.1(b)’s requirement that appellate counsel use pseudonyms or initials to protect the identity of minors lives on in Rule 42(b). In all cases automatically sealed under Rule 42(b), counsel must include a stipulation that evidences their agreement on the initials or pseudonym to use in lieu of the minor’s name.
• Appellate Motions to Seal: For any items that are not automatically sealed under Rule 42(a) or (b), counsel may move the appellate court to seal that item. Any items subject to a motion to seal will be held under seal until the appellate court’s disposition of the motion.
• Labeling Sealed Items: All sealed documents filed with the appellate courts must state that the document is “UNDER SEAL AND SUBJECT TO PUBLIC INSPECTION ONLY BY ORDER OF A COURT OF THE APPELLATE DIVISION” on the top of the first page of that document. Sealed documents that are embedded in or attached to other documents must also display this notice at the top of the first page of that other document. Any non-documentary items filed under seal must be submitted in a box or envelope that displays the notice.
• Protected Identification Numbers: Rule 42(e) adds new identification numbers that must be protected from public disclosure. In addition to excluding or redacting social security numbers, all documents filed with appellate courts must also exclude or redact driver license numbers, financial account numbers, and tax identification numbers. In cases where the use of the identification number is necessary to the disposition of the appeal, counsel may move to seal the documents in which the number appears.

While most of these changes to the Appellate Rules will only require minor adjustments for most appellate practitioners, the new Appellate Rules streamline or consolidate several procedures and signal additional steps towards a paperless future.

This blog post was originally published on the N.C. Bar Association Appellate Practice Section Blog on Jan. 10, 2019. Jeff Kelly is the co-chair of the Appellate Practice Section’s Communication Committee. If you are interested in submitting news or articles related to Appellate Practice, please send your proposals to ncbaap@gmail.com for consideration.