Appellate Court Procedures by Carol R. Flango and David B. Rottman With the assistance of the Clerks of the Appellate Court Project Staff: Carol R. Flango, Project Director David B. Rottman Margaret J. Fonner Tiffany D. Cutts Copyright 1998 National Center for State Courts ISBN 0-89656-191-7 NCSC Publication Number R-207 Suggested Citation: C. Flango & D. Rottman, Appellate Court Procedures (Williamsburg, Va.: National Center for State Courts, 1998) This report was developed under grant SJI-96-20F-B- 227 from the State Justice Institute. Points of view are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute. TABLE OF CONTENTS Forward vii Acknowledgments ix Introduction and Overview 1 1. Appellate Court Jurisdiction 1.1 Appellate Courts in the United States 7 Number of court locations that have: Separate administrative rules Chief justice/judge Location of session 1.2 Mandatory and Discretionary Jurisdiction of Appellate Courts 13 Civil appeals Criminal appeals Administrative agency appeals Extraordinary writs Guilty pleas Post- conviction relief Death penalty cases Sentencing issues 1.3 The Right to Appeal from Trial Court Judgment and Review of Interlocutory Orders 18 Right to appeal from trial court judgment Method of obtaining appellate review of interlocutory orders 1.4 Appellate Courts Responsible for Hearing Appeals of Adminis trative Agency Decisions 23 Medical malpractice Workers’ compensation Public service Unemployment insurance Public welfare Insurance Tax review Other agencies 1.5 Appellate Procedures Relating to Sentencing and Post-Conviction Relief 25 Appellate review of contentions of excessive sentences Determination of sentence lengths in criminal cases Filing of petitions for post-conviction relief Use of approval forms for post-conviction relief 2. The Steps in the Appellate Procedural Process 2.1 Initiating the Appellate Process: Notices of Appeal and Content of Appellate Record 33 Deadline and place to file notice of appeal Basic content of appellate record Designation of record on appeal Appellate record of trial court pleadings 2.2 Time Frames and Responsibilities for Preparing Appellate Record 43 Responsibility and deadline for record preparation Deadline to pay fees for record preparation Approval of deadline extensions Individual(s) responsible for monitoring timely preparation of record 2.3 Preparation of the Appellate Record: Transcripts, Copies, Certification, and Fees 53 Reporter’s transcript of oral testimony Required number of copies of record Certification of appellate record Filing fees and payment deadline 2.4 Dismissal of Appeals 61 Dismissal of appeals for failure to perfect record Dismissal of appeals at appellant’s request 2.5 Filing of Respondents’ Briefs 66 Deadline to file a respondent’s brief Deadline to file closing brief Approval of deadline extensions 2.6 Requirements for Civil Briefs in Appellate Courts 72 Fee for filing briefs Deadline to file opening brief and number of copies required Form of brief Service of brief 2.7 Requirements for Criminal Briefs in Appellate Courts 80 Deadline to file opening brief and number of copies required Form of brief Service of brief 2.8 Amicus Curiae Briefs 86 Court uses amicus curiae briefs Approximate number of cases per year Case types for which amicus curiae briefs are used 2.9 Monitoring the Filing of Briefs 91 Individual(s) responsible for monitoring timely filing of briefs Individual(s) responsible for giving notices of default/ sanctions for failure to file opening brief Procedures for dismissal for failure to file opening brief 3. Decision Making in Appellate Courts 3.1 Rules of Appellate Procedure 101 Decision-making unit responsible for making and amending appellate court rules Composition of rule-making body Participation of clerks in rule-making process Last revision of appellate court rules Method of publishing and disseminating appellate rules 3.2 Granting of Discretionary Petitions 111 How the court decides to grant discretionary petitions: En banc Panel Commissioner Single justice Number of justices needed to grant petitions Appellate Court Procedures – iii 3.3 Structure of Panels Reviewing Discretionary Petitions 116 Number of justices needed to review petitions Number of panels Size of panels Permanent or rotating membership Frequency of membership rotation 3.4 Processing of Discretionary Petitions for Rehearing in Appellate Courts 121 Method/deadline for filing petitions for rehearing Method/deadline for filing petitions in highest court and filing fees 3.5 Oral Argument in Appellate Courts 126 Method of notification of date/location of oral argument Time limit for oral argument Percentage of criminal cases argued (estimate) Percentage of civil cases argued (estimate) 3.6 Limitations on Oral Argument in Appellate Courts 134 Limitations on oral argument in civil cases Limitations on oral argument in criminal cases 3.7 Opinions in Appellate Courts 139 Constitutionality or statutory requirements for written opinions Assignment of opinions Publication of highest appellate court opinions Selective publication of intermediate appellate court opinions Use of per curiam opinions 3.8 Finality of Appellate Court Opinion 148 Finality of opinion Method of notifying trial court of appellate court’s final decision 4. Expedited Appellate Procedures 4.1 Expedited Procedures in Appellate Courts 155 Advance queue (fast tracking) Expedited briefing procedures Use of oral argument in lieu of full written briefs Submission on briefs alone Use of preargument settlement conference 4.2 The Use of Settlement Conferences in Appellate Courts 160 Mandatory settlement conferences Year settlement conferences established Name of program/contact 4.3 Details of Settlement Conferences 163 Who presides Conference location Case types included Case types excluded 4.4 Additional Details of Settlement Conferences 166 Are pro se cases scheduled for settlement conferences? Estimated % of settlement conference caseload Is the program evaluated? Is a report available on the program? Are trial judges used? Are central legal staff involved? Program goals 4.5 Special Calendars in Appellate Courts 169 Types of appeals on calendars 5. The Appellate Bench, Clerks, and Judicial Support Staff 5.1 Appellate Court Judges 173 Number of judges in courts of last resort (COLRs): Authorized Serving Number of judges in intermediate appellate courts (IACs): Authorized Serving 5.2 Selection, Administrative Duties, and Responsibilities of the Chief Justice 175 Selection of chief justice Chief justice writes fewer opinions because of administrative duties % of time chief justice spends on administrative tasks (estimate) Special responsibilities of chief justice 5.3 Qualifications to Serve as an Appellate Court Judge 183 Local res idency State residency Minimum age Maximum age Legal credentials 5.4 Selection of Appellate Court Judges 187 Method of selection for unexpired term Method of selection for full term Method of retention Geographic basis for selection 5.5 Terms of Appellate Court Judges 194 Length of term Selection of chief justice/judge Term of office for chief justice/judge Chief justices/judges can succeed themselves 5.6 The Removal of Justices from Appellate Courts 199 Method of removing justices from COLR Method of removing judges from IAC 5.7 The Use of Senior Judges in Appellate Courts 203 Court uses senior judges Approximate percentage of full-time equivalents Senior judges write opinions Senior judges use law clerks 5.8 The Use of Trial Court Judges in Intermediate Appellate Courts 208 Do trial court judges ever sit on IACs? When? iv – Appellate Court Procedures 5.9 Number and Selection of Appellate Court Clerks 210 Number of clerks Method of selection Term of office Minimum qualifications 5.10 Record-Keeping Procedures in Clerks’ Offices 214 Type of registrar How cases are indexed Preparation of court orders other than opinions Court’s retention policies Method of notifying counsel of orders 5.11 Provision of Clerks to Appellate Court Judges 223 Number of clerks for chief justice/judge Number of clerks for each associate justice/judge Number of central law staff 6. Technology in Appellate Courts 6.1 Electronic Filing in Appellate Courts 229 This court accepts electronically f iled documents This court receives the trial court record electronically This court accepts videotapes in lieu of trial court proceedings transcripts This court has electronic filing but requires original documents This court accepts documents by fax 6.2 The Use of Case Management Information Systems (CMIS) in Appellate Courts 235 This court has a CMIS This court maintains its CMIS in-house This court makes ad hoc inquiries from CMIS data This court’s CMIS distinguishes public and confidential information 6.3 The Use of Telecommunications in Appellate Courts 240 This court’s chambers or offices are linked electronically with: Other appellate court chambers/offices The state court administrator Other courts in the state Attorneys/law offices Publishers The media and the public 6.4 Information Provided Electronically in Appellate Courts 245 Docket information Calendars Opinions Court rules 6.5 The Management of Records in Appellate Courts 250 This court uses: A document imaging system Optical disk storage for maintaining electronic records Computer- output microfiche Microfilm for archiving records Bar coding technology