A FIRST LOOK at the Supreme Court’s proposed appellate rules – issued April 22 with comments sought by May 30 – produced general support from appellate attorneys contacted last week by Bar News.

The rules, which the court hopes to implement for trial court decisions issued after Sept. 1, 2003, generally follow the outlines of the concept detailed by Broderick, Nadeau and Duggan at the NHBA Midyear Meeting this winter and in a press release issued Jan. 22.

A basic notice of appeal of a final decision by a trial court would need to be filed within 30 days, with the briefs to be submitted later along with the record of all relevant proceedings and supporting appendices. The court would reserve the right to decide some cases on motions to dismiss, solely on the briefs without oral argument, and it would continue to use the 3JX expedited process for cases with minor precedental impact. The new policy also does not require that the court write more opinions; as is the practice today, cases may be decided by written order without elaboration.

Joshua Gordon, a Concord attorney who exclusively handles appeals, was impressed with the new rules and particularly cited the proposed Rule 7-a, which definitively sets forth that petitioners seeking stays of judgments pending appeal must seek relief first from the trial court, thus clarifying an area of current uncertainty.

Overall, the court, by yielding its discretion on most Rule 7 appeals (it will continue to exercise discretion over appeals of changes in sentencing, and on parole and probation revocations) will be focusing on deciding the cases presented, Gordon said. This eliminates one entire set of tasks associated with screening cases and then, in some cases, hearing motions to reconsider those screening decisions. "They will be screening once," Gordon said. "Yes, there will be more cases for them to review, but that’s the better work for them to be doing."

Attorney Charles S. Douglas, also of Concord, who served on the Supreme Court from 1977 to 1985 and helped write the rules that implemented the current system of discretionary review in 1979, worries, however, that the court is unnecessarily complicating its new approach by including marital cases. Douglas suggested that the court postpone for a year the inclusion of marital cases in the new policy.

"The reason marital cases are so aberrant is the number of ‘brought-forwards’ – so many of the appeals are going to relate to earlier rulings," Douglas said. "In marital cases, there are going to be a number of post-divorce proceedings that could be considered as part of the appeal. I foresee huge disputes over which record to include; over what is considered a final order in a divorce case."

Douglas also suggested that the court require a very brief – five sentences or fewer – description of the issues to be included on the notice of appeal. Under the court’s proposal, only the most basic information is required:

• Case title and docket number;
• the names of the court and the judge whose decision is being appealed;
• date of clerk’s notice for decision and post-trial motions;
• sentence and bail status, if applicable;
• names and contact information for all parties and their attorneys;
• notation regarding possible confidentiality requirements, and whether grounds exist for disqualification or recusal of justices from the case.

Douglas said that a brief description of the issues being raised might allow the court to identify and group for consideration similar cases from other courts.

Since most criminal appeals are accepted under the current system, the impact will be subtler in the criminal area, said Christopher Johnson, head of the Appellate Defender Office. He has qualms that some meritorious criminal appeals may become overlooked as the court grapples with a larger caseload of civil cases, and he is contemplating changes in his own office’s approach. As his office handles appeals not only for the Public Defender’s clients but also for those indigent defendants represented by contract or appointed counsel, Johnson expects his office will have more work to do to identify issues for appeal. Under the current system, trial attorneys in those cases prepare the notices of appeal that require a declaration of the important issues at stake. Under the new system, Johnson said it would be up to the appellate defender to ferret out those issues.

"Overall, I think the court has done a very good job of overhauling the rules to accommodate a very different procedural vision of the court’s role," said Johnson. He supports the reduction in the page limit on briefs from 50 to 35 pages, saying that only in rare cases does a brief need to be longer, even though most start out that way: "In the first stage of the writing of a brief, a lawyer writes to understand the issue – to explain it to the writer himself. Gradually, as the writer develops a thorough understanding of the issue, the process of writing shifts to a focus on the audience – to the effort to persuade the Supreme Court of the writer’s views. Briefs can get too long when the writer fails to remove those parts of the written brief that were usefully created to help the writer understand, but don’t enhance the persuasive power of the brief for its intended audience."

The following is the court’s order and a brief description of the appendices, which are available online at www.courts.state.nh.us/supreme/orders/r2003_001.htm.

SUPREME COURT ORDER

On January 22, 2003, the court announced its intention to expand the appellate review process, increasing the number of appeals from trial courts that are accepted by the court for review. In order to implement the new appellate review process, the court is considering the adoption of amendments to Supreme Court Rules 3, 5, 7, 7-A, 13, 15, 16, 17, 18, 21, and 25. The proposed amendments are set forth in Appendices A through K. In addition, a proposed new non-discretionary notice of appeal form to be used to file Rule 7 non-discretionary appeals is set forth in Appendix L, and an amended notice of appeal form to be used to file other Rule 7 appeals is set forth in Appendix M.

On or before May 30, 2003, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the proposed amendments and the proposed Notice of Appeal form. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at: rulescomment@courts.state.nh.us.

Copies of the proposed changes are available upon request from the clerk of the Supreme Court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at: www.courts.state.nh.us/supreme.

The current rules of the New Hampshire state courts are also available on the Internet at: www.courts.state.nh.us/rules/index.htm.

It is the court’s current intention to implement the expanded appellate review process effective September 1, 2003. If that goal is met, then it is expected that the new appellate review process will apply to appeals in which the clerk’s written notice of the final trial court decision that is the subject of appeal is dated on or after September 1, 2003.

Eileen Fox, Clerk
Supreme Court of New Hampshire
April 22, 2003

Description of Appendices to Proposed Rules

The following is a list of the appendices, along with descriptions and highlights selected by Bar News (italicized material).

Appendix A: Definitions of "non-discretionary appeal" and other terms.

Appendix B: Amends Rule 5 (1): Docketing the Case: Filing the Record. Filing procedures and requirements, entry fees.

Appendix C: Replacing Rule 7: Appeal for Lower Court Decision on the Merits. Setting forth deadlines and requirements for the notices of appeal.

Appendix D: Replacing Rule 7-a: Motions to Stay or Remand. Requests for stays "shall not be filed in this court unless the movant has first unsuccessfully sought similar relief from the lower tribunal" and the rule, according to a comment published with the proposed rule, "provides a procedural mechanism for requesting a remand or partial remand to a lower tribunal when necessary to allow the lower tribunal to act upon a matter that is not a collateral, subsidiary or independent matter affecting the case."

Appendix E. Replacing Rule 13: The Record. The records required for consideration of an appeal.

Appendix F: Replacing Rule 15: Transcripts. Procedures for ordering and production of transcripts.

Appendix G: Replacing Rule 16: Briefs. Elements to be included, and permitting a memoranda of law to be filed by opposing parties who allow the waiving of oral argument. No brief shall be greater than 35 pages (exclusive of citations, addenda and tables of contents) and reply briefs shall be no longer than 10 pages.

Appendix H: Replacing Rule 17: Appendices to Briefs. The court may assess costs of the production of material the court believes was unnecessary for the appendices, even on a prevailing party.

Appendix I: Replacing Rule 18: Oral Argument. The court may shorten the allowed time of 15 minutes per side for oral argument, or dispense with it entirely.

Appendix J: Motions and Memoranda. Motions to extend deadlines will be granted "only upon a showing of exceptional circumstances."

Appendix K: Summary Dispositions. No motions for summary affirmance or reversal will be accepted for non-discretionary appeals.

Appendix L: The Notice of Appeal Form and Transcript Order Form.

Appendix M: Rule 7 Discretionary Appeal Form.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer