Posted: April 11, 2014
Rules of Appellate Procedure
URAP 001. Scope of rules. Amend. Makes technical changes and clarifies which appellate rules apply in child welfare proceedings.
URAP 025. Brief of amicus curiae or guardian ad litem. Amend. Makes technical changes and clarifies that the deadline for filing a motion for leave to file a brief of amicus curiae or guardian ad litem does not apply when a motion for leave is filed under URAP 50(f).
URAP 027. Form of briefs. Rename and amend. Amends the rule so that paragraphs (a) through (e) also apply to petitions for writ of certiorari and petitions for rehearing.
URAP 027. Form of briefs.
Generally, I approve of the substance of this amendment.
Specifically, I wish to comment about the addition to what will be subsection (f), Effect of non-compliance with rules.
The added language on lines 48-50 appears contradictory. As amended, it clarifies that “This rule” (presumably subsection f, which provides a time period for bringing a non-compliant brief into compliance) “is not intended to permit significant substantive changes in briefs, petitions for certiorari or petitions for rehearing.” The addition of petitions for cert and rehearing to this sentence seems to indicate that they may be amended only superficially as allowed by the subsection. However, the next added sentence contradicts this reading by stating, “This subsection does not apply to petitions for writ of certiorari or to petitions for rehearing.”
Thus, there appears a contradiction to be resolved. I would propose to strike the added final sentence on lines 49-50. If Rule 27 now applies to petitions for cert and rehearing, subsection f ought also to apply, to govern the event that such petitions are non-compliant. If it is the intent not to allow a period for correction (either because non-compliant petitions will be accepted anyway, or will solely be denied) perhaps that result should be spelled out. Otherwise, no direction is given for a non-compliant petition for cert or rehearing.
If the final sentence is struck and subsection f applies to petitions for cert or rehearing, I would also add those terms to lines 41-42, as follows, “The clerk shall examine all briefs, ‘petitions for writ of certiorari and petitions for rehearing’ before filing.”
If it is the intent to retain the final sentence and exclude petitions for cert and rehearing from subsection f, I would recommend striking the addition of those terms to the end of the sentence on line 49.
As a technical matter, I would recommend amending the sentence beginning on line 48 by substituting the word “subsection” for “rule”, thereby reading, “This ‘subsection’ is not intended to permit . . . .” It is really just the subsection, not the entire rule, that permits any changes to briefs (and/or petitions, as applicable).
As an additional technical matter, the addition of “petition for certiorari” throughout the rule ought to have the words “writ of” added for consistency.
Thank you for consideration of my comment and your great work in keeping our rules of procedure up to date.