In this post, I discuss motions filed in appeals docketed in the appellate division for review. Although uncontested motions are mentioned, the focus is on contested motions.  This post does not address matters such as petitions and stays.

Lawyers often find motions practice in the appellate courts to be both frustrating and opaque.  A motion filed in the trial division is usually resolved by a hearing before or during the trial.  In contrast, a motion filed in the appellate division pursuant to Rule of Appellate Procedure 37 is often received in silence and left unresolved as the date set for oral argument arrives.  Should you make inquiry of the appellate court as to the resolution? If the motion was made by your opponent, should you respond?  The answers to these and other questions are not always obvious, but an understanding of what is going on behind the veil may help you determine your best course of action.

The first and possibly most important thing to remember is that while a trial judge acts alone when ruling on a motion, no appellate court judge or justice has that authority.  A ruling on a motion requires three judges in the Court of Appeals (perhaps more if the case is set for en banc hearing) and all seven justices in the Supreme Court.  So the process for resolving a motion in the appellate courts is considerably less wieldy than in the trial division.

A related consideration is that your motion almost certainly will not be set separately for a hearing, though questions triggered by the motion may be asked if the case is scheduled for oral argument.  In deciding the motion, the appellate court judges are limited to the record on appeal, plus any additional information that is provided in or attached to the motion.  They do not have the opportunity enjoyed by trial judges at a pretrial hearing to ask questions that could cut through the clutter and reveal the nub of the issue.  Because the implications of a motion may not be apparent to the appellate court until all the briefs are filed or the case is argued, the judges and justices are cautious about making premature decisions on potentially dispositive motions without a full understanding of what’s going on.

North Carolina’s two appellate courts have different internal procedures for deciding motions. In the Court of Appeals,   Routine and unopposed motions, such as substitution of counsel or a first request for an extension of time, are usually resolved quickly by the Chief Judge of the Court of Appeals.  More complex motions, such as a motion to strike a portion of an opponent’s brief, may be deferred and referred by the Chief Judge to the merits panel that will be deciding the case.

If the matter is referred to the panel that will hear the case, it most likely will find itself on the desk of the judge to whom the opinion has been assigned.  That judge will have focused on the case before it is argued or set for decision.  Depending upon the nature of the motion, that judge may consult with others on the panel before the hearing date.  If the case is argued, the panel may or may not ask questions related to the motion.  The motion may ultimately be resolved in the opinion.  (Note, of course, that the judge initially assigned to write the opinion may turn out not to be the author if he or she disagrees with the other two judges and thus becomes a dissenter.  If this happens, the judge who authors the majority opinion will also handle the motion.)

Significantly different procedures obtain in the Supreme Court.  As of this writing, that Court has but one staff attorney and his duties do not include reviewing motions.  When a motion is filed in the Supreme Court, it is screened by the office of the Clerk of the Supreme Court.  If the motion is routine and unopposed, it is assigned to the junior justice, who is authorized to resolve the motion on his or her own.  (This, by the way, is an exception to the general rule that no appellate judge or justice can make unilateral decisions.)  If the motion is more complex, it is treated initially as if it were a petition and assigned to the next justice in the petition rotation.

That justice will usually prepare a memorandum for the other justices describing the nature of the motion and any response that may have been filed, just as if the motion were a petition.  The memo will conclude with a recommendation and will be considered by the entire court for the first time at a petition conference.  However, unlike the Court of Appeals, where a judge is assigned to write an opinion before the case is heard, the Supreme Court justices do not know who will write a particular opinion until after the justices have heard argument and voted on all that term’s cases.  In other words, the justice to whom the motion initially was assigned quite likely will not author the Court’s majority opinion for that case.

If the motion will have an unavoidable and direct impact on the argument, such as a request for extended argument in a complex case with multiple parties, the Court usually will attempt to resolve it expeditiously. Frequently, however, the effect of the motion is not obvious before oral argument.  The most common example is a motion to strike a portion of an opposing party’s brief.  Such a motion can be resolved only after a careful review of the record, an unappealing chore when the case will not be on the court’s oral argument calendar for months and the process of reviewing the issues raised in the parties’ briefs and motions will have to be repeated when the case comes up for argument.  In this and analogous instances, the justice initially assigned the motion most often will recommend that a decision be deferred and that the motion to “go with the case.”  Assuming that the Court in its petition conference adopts the recommendation, the justice who writes the opinion for the Court will address and resolve the motion at the time the opinion is issued.

This process can be frustrating for appellate practitioners. While Rule of Appellate Procedure 37(b) specifically provides that a motion may be acted on at any time without argument, an attorney seeking, say, to have a portion of an opposing attorney’s brief stricken will surely wonder what to do next. While counsel can always make inquiries with the clerk of the relevant appellate court, the clerk is unlikely to have any information that he or she can divulge.  If the case is not being orally argued pursuant to Rule of Appellate Procedure 30(f), counsel has little choice but to wait and see.  If the case is set for oral argument, the attorney has a few options.  He or she can offer at the beginning of oral argument to address the motion.  Counsel can address the motion without prompting by the court, at the risk of using valuable minutes on a matter the court isn’t interested in hearing.  Or counsel can remain silent on the motion, assuming that the court will ask any questions it may have relating to the motion.

In short, the appellate courts are not particularly well structured to deal with contested motions. Each contested motion is sui generis and no generally applicable guidelines fit the presentation, handling, and resolution of all such motions in the appellate division.  Still, an appellate litigant should not hesitate to file a motion when necessary or appropriate.  As long as counsel has a basic understanding of the courts’ internal processes, he or she can prepare the client for the uncertainty that may follow the filing of a motion.

Does anyone have a good war story regarding motions practice in the appellate division that you are willing to share? Do you have questions about motions practice not addressed in this post.  If you let me know in the comments below, I will try to respond.

–Bob Edmunds