IICM’s Tips and Traps Regarding Idaho Appellate Procedure

1. IICM’s Tips and Traps Regarding Idaho Appellate Procedure Stephen W. Kenyon, Clerk of the Courts October 26, 2011 Boise, Idaho

2. BEGIN PROCESS HERE IDAHO APPELLATE PROCESS FINAL ORDER FROM THE DISTRICT COURT MUST BE RECEIVED BEFORETHE APPEALS PROCESS CANBEGIN14 NOTICE OF APPEAL1 SETTLEMENT CONFERENCE16 RECORD2 JOINDER17 SETTLEMENT OF APPELLATE RECORD3 AMICUS CURIAE18 OUT OF STATE COUNSEL19 BRIEFING4 AUGMENTATION OF RECORD20 COURT ASSIGNMENT5 SUPREME COURT6 COURT OF APPEALS12 CALENDARING7 CALENDARING7 IF GRANTED ORAL ARGUMENTS8 ORAL ARGUMENTS8 OPINION (OR ORDER)9 OPINION9 PETITION FOR REHEARING10 PETITION FOR REVIEW13 MISCELLANEOUS MOTIONS 11 PETITION FOR REHEARING10 REMITTITUR21 Appellate Case is Closed

3. Now the Appellate Process

4. Notice of Appeal • Are you an aggrieved party “any party injuriously affected by the judgment.” (Rule 4) • Do we have a final judgment • Seven final judgment cases everyone must know. • When is an appeal filed? Check not signed, is appeal valid? • If civil appeal and multiple parties with a partial judgment – do you have a Rule 54(b) certificate?

5. Final judgment cases • Spokane Structures v. Equitable Investments, 148 Idaho 616. A final judgment must not contain the court’s reasoning or analysis. • TJT v. Mori 148 Idaho 825. Typing “it is so ordered” at the end of a memorandum decision is not a final order. • Camp v. East Fork Ditch Company, 137 Idaho 850. An order or judgment that adjudicates the subject matter of a controversy must be on a separate piece of paper. • Goodman Oil v. Scotty’s Duro-built, 148 Idaho 588. The 42 day period begins to run once an order is entered that resolves all issues and grants relief that prevailing party is entitled and ends lawsuit.

6. Final judgment cases • Williams v. State Board of Real Estate Appraisers, 149 Idaho 675. An agency order denying a motion to dismiss is not a final appealable order. • Capstar Radio v. Lawrence , 149 Idaho 623. Order granting summary judgment is not a final appealable order from which an appeal can proceed.

7. Final judgment cases • State v. Ciccone, 150 Idaho 305. Sentenced June 7, 2005, order signed by judge same day. DC clerk enters judgment as of May 7, 2005 – then on June 21, 2010 the court notices and sends out amended judgment. Appeal was filed 42 days from the amended judgment. Appeal thrown out by Supreme Court – 42 days ran from the date of sentencing. When an amended judgment alters content other than the material terms from which a party can appeal it does not enlarge the time for an appeal

8. Requesting the Clerk’s Record • Appellant must designate in the notice of appeal the documents to be included in the clerks or agency record in addition to the standard record specified in IAR 28(b) and IAR 17(i). • Be specific – “affidavit of John Doe dated 11/17/2005” not “all affidavits in support of motion for summary judgment.”

9. Record and Transcripts • If you’re requesting transcripts you must identify the court reporter who transcribed the hearing, identify the dates and titles of the hearing and serve the court reporter with a copy of the notice of appeal. IAR 17(o). • Transcript fee is $3.25 per page. If court reporter did not estimate number of pages then appellant/respondent pays $200.00 to begin preparation of transcripts. IAR 24. • Clerk’s record prepared. Only documents reviewed by the district court can go in the clerk’s record. IAR 27. Only exhibits, offered or admitted at trial are considered exhibits.

10. Respondent’s turn – 14 days • Respondent may request additions to the record within 14 days after filing of the notice of appeal IAR 19(a). A form request is included in IAR 19. • If Appellant requested less than the standard record Respondent (within 14 days) can add anything up to the standard record on Appellant’s tab IAR 19(a). • Anything above standard record must be paid for by the requesting party. IAR 19(d).

11. Electronic Records • Electronic Record of entire district court file • 65 cents per page for the entire record. • Or … $100.00 flat fee plus 65 cents for selected documents. IAR 27(c)(2).

12. Exhibits • IAR 31 provides that all documentary trial exhibits, transcripts filed with the district court or agency and all audio or video recordings offered or played during proceedings are sent to the Supreme Court. • All other exhibits – bloodstained clothing, weapon, defective product, etc. will be sent to the Supreme Court only on the order of the Court.

13. Judicial Notice • Motions to take judicial notice will be treated as a motion to augment the appellate record under IAR 30.

14. So you missed one, now what? • You have two ways to correct your error. • First, within 28 days of the service of the transcript and the clerk’s record you can file an objection in district court to the transcript or record. IAR 29(a). • Second, if record is settled file a motion to augment at the Supreme Court. IAR 30.

15. At Issue • All cases reviewed by the Supreme Court are either retained by the Court or assigned to the Court of Appeals. • All cases drawn by term city by age. • Due to budget cuts the Court only travels once to each required city – so the length of a case could grow substantially unless you’re willing to argue in Boise.

16. Judicial notice • No judicial notice of district court files • IRE 201 • Judicial Notice is really a rule of the district court • Only take Judicial Notice of appellate files and pleadings.

17. Amicus or intervenor status • Remember – parties can stipulate to have the case heard on the briefs unless you specifically request it. • State in your motion which side you want to align with. • Intervention (IAR 7.1) • Amicus Curiae (IAR 8)

18. Recent Appellate Rule Changes - Rule 5 • Service on all affected parties required. • Special writs will be denied or further action ordered such as briefing from opposing party or affected party.

19. Recent Appellate Rule Changes - Rule 12.2 • Termination of parental rights • Adoption (Granting / Denying) • Immediate appeal to the Supreme Court • Notice of Appeal must be filed within 14 days of order. Oral argument to occur within 120 days

20. Recent Appellate Rule Changes - 13(b)(15) • Stay on appeal – what happens to a bond or cash deposit when the award itself is upheld but the case is remanded for a new determination of the amount owed.

21. Recent Appellate Rule Changes - Rule 17 • Parties now required to provide address phone number and email address on pleadings. You must have an email address to litigate matters at the appellate courts. • Appellant must specify in NOA whether they want electronic copy or hard copy of transcripts. • Civil cases – appellant must specify which exhibits are to be copied and sent to the Supreme Court – before all offered or admitted exhibits were sent to the SCT.

22. Recent Appellate Rule Changes - Rule 35 • All references to a minor in the briefing shall be by the use of initials. • Note: briefs are scanned and placed on westlaw and lexis, therefore in public view.

23. Recent Appellate Rule Changes - Rule 41 • A reference to paralegal fees in the amount of fees, similar to rule 54. • Rule 47 – all attorneys involved in an appeal must have an email address on record with the Idaho State Bar.

24. Helpful Charts • Idaho Appellate Handbook • New version currently being worked on. • Attorneys checklist to filing an appeal.