Rules of Appellate Procedure – Comment Period Closed October 13, 2018

Please consider these adjustments to your proposed amendments.

Rule 23B: on line 24, change “shall” to “must” for consistency, and change “order or remand” to “order of remand” to correct a typographical error.

Rule 46: add “or procedural rule” after “constitutional or statutory provision.” It seems like important rulings on the rules of procedure and evidence would fall into the same category. I realize that Rule 46 contains an illustrative list, but it doesn’t hurt to add procedural rules since they are in a class by themselves. Once that triad is included, litigants can argue that anything else is the functional equivalent to one of those three (like city or county ordinances).

Rule 46: keep the current subsection (3). All the other types of issues identified in the current rule can be raised under the new list of factors, which appropriately place the emphasis on the importance of the issue to other cases. For example, petitioners can use the new factors to argue that the mere fact of conflict among court of appeals cases (one of the old factors) presents an important question about the proper interpretation of a rule that is likely to affect future cases. But the exercise of the court’s supervisory powers seems to be in a class by itself. Although a petition for extraordinary relief could arguably be used to invoke the supreme court’s powers to correct such issues, the standard for extraordinary relief is different than for certiorari. And by omitting the current subsection (3), it leaves the matter unclear as to whether that type of issue can be raised in a petition for certiorari, and if it can, that can present a bar to raising it in a petition for extraordinary relief, where a petitioner must prove that she has no other plain, speedy, or adequate remedy.

Rule 49: on lines 46-48, omit the words “first” and “. There shall follow” and combine the two sentences as follows: “The statement shall indicate briefly the course of the proceedings, its disposition in the lower courts, and a statement of the facts relevant to the issues presented for review.” This would eliminate the requirement that litigants present their statement of the case in a particular order. The ordering requirement constrains advocates’ ability to present their cases in the most persuasive and helpful way. A similar change was made to the briefing requirements in rule 24 when it rewrote the description of the statement of the case and moved some of its elements to the new introduction section. As an alternative to this suggestion, the committee could propose wording similar to the changes made in rule 24.

Rule 47: at the end of subsection (a), add the following sentence: “Unless the language or context of the rule requires otherwise, every reference in Rules 45 through 51 to a petition or petitioner includes a cross-petition or cross-petitioner, respectively.” The committee has not proposed any alteration to Rule 47, but as I reviewed the changes to Rule 50 I realized that the rule does not explicitly authorize or address any response or reply to a cross-petition. I think we read “petition(er)” as including “cross-petition(er)” in Rules 45 through 51. And I don’t think anyone would argue that it doesn’t. So this amendment may not be necessary. But this change is in line with the overarching purpose of the committee’s proposed rule amendments–to conform the rules to current practice.