Book notes: Jon O. Newman & Marin K. Levy, Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals (2024)

 

Judge Jon Newman and Professor Marin Levy's Written & Unwritten is a useful compendium of those rules that aren't found in the Federal Rules of Appellate Procedure.  From the introductory material:

[T]he book collects the differing local rules and internal procedures of each court of appeals.  In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

And from the Foreword by Associate Justice (Ret.) Stephen Breyer:

[The authors] have compiled and organized the different rules, practices, customs, both written and unwritten, that the federal courts of appeals use and follow as their judges carry out their jobs.  The book means that lawyers can more readily find out how to present their cases in different courts.

The book is not organized by each circuit court of appeals, but by subject matter.  The chapter titles indicate the scope of the local rules and procedures surveyed:

1. The Chief Judge of a Circuit
2. Administrative Structure
3. Calendars, Panels, and Assignment of Cases
4. Motions
5. Expedited Appeals
6. Briefs of Parties and Amici Curiae
7. Oral Argument
8. Precedential Opinions
9. Non-Precedential Opinions
10. En Bank Procedures
11. Promoting the Expeditious Disposition of Appeals
12. Death Penalty Cases
13. Senior Judges
14. Judicial Councils and Judicial Conferences
15. Information on Websites
16. Miscellaneous Provisions

If you are interested in a particular court, you will find the index invaluable.  Under the index heading "Eighth Circuit" I counted 74 sub-headings, addressing topics such as attorney discipline, briefs, motions, opinions, oral arguments, terms of court, and website links.  Several of the sub-headings cover more obscure topics such as assignment of cases and terms of court.

The book may be more useful to some appellate practitioners than others.  If you practice in more than one federal circuit court of appeals, this is a very helpful book.  If you only practice in the Eighth Circuit, for example, the book might still be a handy tool for familiarizing yourself with these local rules and procedures - and it will be useful as an index for tracking these matters down, thus making these rules and procedures more accessible.  Attorneys practicing solely in state courts might not find the book as useful.

 Comments are welcome!

 

Opinion highlights for the week of December 8, 2024

 

The Supreme Court of Arkansas handed down four decisions on the merits Thursday; it also issued a number of per curiam opinions approving administrative plans and making committee appointments.  By my count, the Court of Appeals handed down thirty decisions on Wednesday.

Rogers v. Arkansas Parole Board, 2024 Ark. 176, involves the continuing fallout from the Arkansas Department of Correction's implementation of Ark. Code Ann. § 16-93-609, before and after Op. Att'y Gen. no. 2022-010 and Act 683 of 2023.  Rogers sought application of this new law to his parole eligibility determination; the Appellees resisted on a number of theories.  On appeal, the Appellees argued the appeal should be dismissed since Rogers did not address three of these theories - which, they argued, were relied on by the trial court.

The Supreme Court acknowledged "that when a circuit court bases its decision on more than one independent ground and the appellant challenges fewer than all of those grounds on appeal, we will affirm without addressing any of the grounds." Rogers, 2024 Ark. 176, at 9.  But here, the court believed Rogers did address one of those theories on appeal, and that the trial court did not rely on one of them.

As to the remaining third theory, "discussion of this argument was perfunctory, and it was not developed as a basis for appellees'" arguments before the trial court. Id.  The court "decline[d] the invitation to bypass the merits of Rogers's arguments on the grounds that he did not challenge this point."

To conclude otherwise would compel us to affirm the circuit court based on Rogers's failure to address each of the other arguments - ostensibly raised yet left undeveloped - in appellees' initial response, including every defense listed [in rules of civil procedure referenced by Appellees], that could have been a basis for the circuit court to either rule in favor of appellees or otherwise dismiss the suit outright.

Id. The court proceeded to the merits.

The Appellant tried to preserve an appeal using one of the Wicks exceptions in Hill v. State, 2024 Ark. App. 613.  Hill argued a Fourth Amendment violation, but acknowledged her failure to file a motion to suppress or otherwise object before the trial court.  She argued that her appeal should nonetheless proceed under the third Wicks exception concerning issues for which the trial court had a duty to intervene, even without an objection, to correct a serious error by a jury admonition or a mistrial declaration.  The court of appeals noted that this exception is limited to errors affecting a criminal trial's structure, such as the fundamental jury trial right, the presumption of innocence, or the State's burden of proof.  The "failure to object to the suppression of evidence is not the sort of error that Wicks exempted from the contemporaneous objection requirement," so the trial court was affirmed.

A couple of court of appeals decisions addressed appeals from default judgments.  In J&C Motors v. Clagett, 2024 Ark. App. 622, the court stated that Ark. R. App. P.-Civ. 2(a)(4), concerning appeal from an order that strikes out an answer, provides jurisdiction to review a related default judgment.  And in Kusper v. Guisbiers, 2024 Ark. App. 625, the court cited that same rule when it addressed an appeal from entry of a default judgement, even though the issue of damages expressly remained outstanding below.

Finally, McMillan v. McMillan, 2024 Ark. App. 630, the court of appeals considered the effect of a pro se litigant's defective notice of appeal.  While complying with subdivision (i) of Ark. R. App. P.-Civ. 3(e) - the notice did name the parties - it failed to comply with subdivisions (ii) to (vi).  For example, the notice did not designate the order appealed from.  "Orders not mentioned in a notice of appeal are not properly before the court." McMillan, 2024 Ark. App. 630, at 3.  Without that, Appellant's "notice of appeal is fatally deficient, and we lack jurisdiction to consider the merits of this case." Id.  Further, "failure to designate an order is not substantial compliance. ... Substantial compliance cannot be found where there has been a near complete disregard for the mandates of the rule, as is the case here." Id. at 4.  The appeal was dismissed for lack of jurisdiction.

Comments are always welcome!

Opinion highlights for the week of December 1, 2024

 

The Arkansas Supreme Court did not issue any decisions yesterday.  On Wednesday, the Arkansas Court of Appeals handed down ten decisions.  Three of those decisions are noted here.

In Fidelity Life Association v. Nelson, 2024 Ark. App. 595, Fidelity appealed an order denying its motion to dismiss on res judicata grounds, arguing that an Illinois court decision barred Nelson's claims in this action.   Nelson moved to dismiss the appeal.  She argued that the trial court's order denying the motion to dismiss was not a final appealable order, and that this situation did not fall into one of the categories of interlocutory appeals allowed in Ark. R. App. P.-Civ. 2.  Fidelity's response cited Rule 2(a)(2), which allows appeals from interlocutory orders determining an action and preventing an appealable judgment.

The Court of Appeals noted that "[a]n appeal from a motion to dismiss on res judicata grounds in not one of the enumerated orders from which an appeal may be taken" listed in Rule 2(a).

Our supreme court has held that when a circuit court denies a defendant's motion to dismiss, the denial is not a final judgment from which an appeal may be taken because the only matter disposed of by the order is that the case should proceed to trial, and those matters put in issue are not lost by continuing to a trial of the matter.

Fidelity, 2024 Ark. App. 595, at 5-6 (citations omitted).

Fidelity argued that the Gipson exception permitted this appeal: a trial court order that was the equivalent of a decision on the merits could be appealed.  The court of appeals was not persuaded.

The court's order in this case denying the motion to dismiss is not equivalent to a decision on the merits. ... Because the circuit court's denial of Fidelity Life's motion to dismiss did not conclude the matters between the parties or discharge anyone from the litigation, its claim in this regard is not currently appealable, thereby depriving us of jurisdiction to entertain arguments at this time.

Fidelity, 2024 Ark. App. 595, at 7.

Easley v. College Hill Middle School, 2024 Ark. App. 597, discussed whether a cross-appeal from a Workers' Compensation Commission decision was permissible.  College Hill cross-appealed from the Administrative Law Judge's decision when that was appealed to the Commission, but did not file a notice of cross-appeal after the Commission adopted the ALJ's decision.  The court cited and quoted Arkansas Code provisions requiring a notice of appeal to cross-appeal a Commission decision.  It then stated:

A cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court.  Case law is well settled that when an appellee seeks something more than he or she received in the lower court, a notice of cross-appeal is necessary to give us jurisdiction of the cross-appeal.  College Hill, however, failed to file a notice of cross-appeal.  We therefore lack jurisdiction to consider its arguments....

Easley, 2024 Ark. App. 595, at 9 (citations omitted).

Finally, the court dismissed an appeal without prejudice in Butts v. Goode Holdings, 2024 Ark. App. 588.  In dismissing the complaint below, the trial court did not address a particular cause of action; no Ark. R. Civ. P. 54(b) certificate was attached to the trial court's order; and Butts did not state, in his notice of appeal, that he abandoned pending but unresolved claims, pursuant to Ark. R. App. P.-Civ. 3(e)(vi).  Since the trial court's order adjudicated fewer than all the claims, it was neither final nor appealable in the absence of Rule 54(b) compliance.  Nor did the court believe that the unaddressed claim was impliedly denied.

[A] trial court must dismiss or adjudicate, by written order, all of the claims filed in a lawsuit - even when it appears that the trial court's order has necessarily rendered an outstanding claim moot or impliedly dismissed it. ... Here, we cannot conclude that the trial court impliedly dismissed Butts's claim for declaratory judgment even though it might appear as though the trial court had an opinion about the validity and enforceability of the rental-purchase agreement by virtue of its rulings on Butts's other claims.

Butts, 2024 Ark. App. 588, at 6-7.