Posted: August 3, 2011
Rules of Appellate Procedure
URAP 023B. Motion to remand for findings necessary to determination of ineffective assistance of counsel claim. Repeal. The committee proposes a repeal of rule 23B. The proposal is based on recommendations from both prosecutors and defense counsel. Rule 23B proceedings require significant resources and yet very few proceedings result in a decision being reversed. Repeal of the rule will not prohibit attorneys from raising ineffective assistance claims on appeal or on collateral attack.
URAP 029. Oral argument. Amend. Permits the court to deny oral argument if the appeal is inadequately briefed. If the appeal is inadequately briefed, the court may choose to resolve the appeal on that basis and oral argument would serve no purpose.
URAP 038A. Withdrawal of counsel. Amend. Places the burden on opposing counsel to file the notice to appoint or appear when an attorney withdraws from a case. This will make the practice similar to the practice in trial courts.
I respectfully oppose amending URAP 29(a) to deny oral argument when the appeal is “inadequately briefed.” I understand the appellate courts’ frustration with poorly-written briefs. However, to deny oral argument because of “inadequate briefing” simply invites the unsuccessful appellate litigant to sue his or her attorney for malpractice, probably spawning more litigation.
For people who do not do much appellate work, handling an appeal is already very hard. I see no benefit is forcing such people to face a risk of a punitive-sounding “inadequate briefing” rationale for denying oral argument.
Rather than attempting to create a list of discrete reasons why oral argument may not be granted, I believe it would be more beneficial to acknowledge that the appellate courts have inherent discretion to deny oral argument, and do not necessarily have to state a reason, other than that oral argument would not be helpful: that is the approach I have seen from the Tenth Circuit.
Regarding URAP 23B – My concern is for the defendants who need to present additional evidence not in the record regarding their counsel’s ineffective assistance. I suggest that if we are taking away Rule 23B hearings, we should add a provision expressly allowing counsel to bring a motion for expedited hearing on ineffective assistance in the trial court after filing of the notice of appeal, similar to the way litigants can move the trial court for a stay of sentence pending appeal subsequent to the notice of appeal, then add the findings to the record. If this procedure is adopted, the review provisions for Rule 23B could stay in place, with the only modification that it eliminates the wasteful remand process.