IICM October 26 2011

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IICMs Tips and TrapsRegarding Idaho

Appellate ProcedureStephen W. Kenyon, Clerk of the Courts

October 26, 2011

Boise, Idaho

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IDAHO APPELLATE PROCESS

FINAL ORDER FROM THE DISTRICT

COURT MUST BE RECEIVED BEFORE

THE APPEALS PROCESS CANBEGIN14

NOTICE OF APPEAL1

RECORD2

SETTLEMENT OF APPELLATE RECORD3

JOINDER17

AMICUS CURIAE18

OUT OF STATE COUNSEL19BRIEFING4

COURT ASSIGNMENT5

SUPREME COURT6 COURT OF APPEALS12

CALENDARING7 CALENDARING7

ORAL ARGUMENTS8 ORAL ARGUMENTS8

OPINION (OR ORDER)9 OPINION9

MISCELLANEOUS MOTIONS 11

PETITION FOR REVIEW13

PETITION FOR REHEARING10

Appellate Case is Closed

PETITION FOR REHEARING10

REMITTITUR21

AUGMENTATION OF RECORD20

IF GRANTED

SETTLEMENT CONFERENCE16

BEGIN PROCESS HERE

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Now the AppellateProcess

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Notice of Appeal

Are you an aggrieved party any partyinjuriously affected by the judgment. (Rule4)

Do we have a final judgment

Seven final judgment cases everyone mustknow.

When is an appeal filed? Check not signed,is appeal valid?

If civil appeal and multiple parties with apartial judgmentdo you have a Rule 54(b)

certificate?

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Final judgment cases

Spokane Structures v. Equitable Investments, 148 Idaho616. A final judgment must not contain the courtsreasoning or analysis.

TJT v. Mori 148 Idaho 825. Typing it is so ordered atthe end of a memorandum decision is not a final order.

Camp v. East Fork Ditch Company, 137 Idaho 850. Anorder or judgment that adjudicates the subject matter of acontroversy must be on a separate piece of paper.

Goodman Oil v. Scottys Duro-built, 148 Idaho 588. The42 day period begins to run once an order is entered thatresolves all issues and grants relief that prevailing partyis entitled and ends lawsuit.

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Williams v. State Board of Real Estate Appraisers, 149Idaho 675. An agency order denying a motion to dismissis not a final appealable order.

Capstar Radio v. Lawrence , 149 Idaho 623. Ordergranting summary judgment is not a final appealableorder from which an appeal can proceed.

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State v. Ciccone, 150 Idaho 305. Sentenced June 7,2005, order signed by judge same day. DC clerk enters

judgment as of May 7, 2005then on June 21, 2010 thecourt notices and sends out amended judgment. Appealwas filed 42 days from the amended judgment. Appealthrown out by Supreme Court42 days ran from the dateof sentencing. When an amended judgment alterscontent other than the material terms from which a partycan appeal it does not enlarge the time for an appeal

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Requesting the ClerksRecord

Appellant must designate in the noticeof appeal the documents to be

included in the clerks or agencyrecord in addition to the standardrecord specified in IAR 28(b) and IAR17(i).

Be specificaffidavit of John Doedated 11/17/2005 not all affidavits insupport of motion for summary

judgment.

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Record and Transcripts

If youre requesting transcripts you must identify the courtreporter who transcribed the hearing, identify the datesand titles of the hearing and serve the court reporter witha copy of the notice of appeal. IAR 17(o).

Transcript fee is $3.25 per page. If court reporter did notestimate number of pages then appellant/respondentpays $200.00 to begin preparation of transcripts. IAR 24.

Clerks record prepared. Only documents reviewed bythe district court can go in the clerks record. IAR 27.Only exhibits, offered or admitted at trial are consideredexhibits.

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Respondents turn 14 days

Respondent may request additions to therecord within 14 days after filing of thenotice of appeal IAR 19(a). A form request

is included in IAR 19.

If Appellant requested less than thestandard record Respondent (within 14days) can add anything up to the standardrecord on Appellants tab IAR 19(a).

Anything above standard record must bepaid for by the requesting party. IAR 19(d).

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Electronic Records

Electronic Record of entire districtcourt file

65 cents per page for the entirerecord.

Or $100.00 flat fee plus 65 centsfor selected documents. IAR27(c)(2).

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Exhibits

IAR 31 provides that all documentary trialexhibits, transcripts filed with the districtcourt or agency and all audio or video

recordings offered or played duringproceedings are sent to the Supreme Court.

All other exhibitsbloodstained clothing,weapon, defective product, etc. will be sentto the Supreme Court only on the order ofthe Court.

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Judicial Notice

Motions to take judicial notice will betreated as a motion to augment the

appellate record under IAR 30.

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So you missed one, nowwhat?

You have two ways to correct yourerror.

First, within 28 days of the service ofthe transcript and the clerks recordyou can file an objection in districtcourt to the transcript or record. IAR29(a).

Second, if record is settled file amotion to augment at the Supreme

Court. IAR 30.

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At Issue

All cases reviewed by the SupremeCourt 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 citysothe length of a case could growsubstantially unless youre willing toargue in Boise.

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Judicial notice

No judicial notice of district court files

IRE 201

Judicial Notice is really a rule of thedistrict court

Only take Judicial Notice of appellate

files and pleadings.

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Amicus or intervenor status

Rememberparties can stipulate tohave 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)

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Recent Appellate RuleChanges - Rule 5

Service on all affected partiesrequired.

Special writs will be denied or furtheraction ordered such as briefing fromopposing party or affected party.

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Recent Appellate RuleChanges - Rule 12.2

Termination of parental rights

Adoption (Granting / Denying)

Immediate appeal to the SupremeCourt

Notice of Appeal must be filed within

14 days of order. Oral argument tooccur within 120 days

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Recent Appellate RuleChanges - 13(b)(15)

Stay on appealwhat happens to abond or cash deposit when the award

itself is upheld but the case isremanded for a new determination ofthe amount owed.

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Parties now required to provide addressphone number and email address onpleadings. You must have an email addressto litigate matters at the appellate courts.

Appellant must specify in NOA whether theywant electronic copy or hard copy oftranscripts.

Civil casesappellant must specify which

exhibits are to be copied and sent to theSupreme Courtbefore all offered oradmitted exhibits were sent to the SCT.

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All references to a minor in thebriefing shall be by the use of initials.

Note: briefs are scanned and placedon westlaw and lexis, therefore inpublic view.

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A reference to paralegal fees in theamount of fees, similar to rule 54.

Rule 47all attorneys involved in anappeal must have an email addresson record with the Idaho State Bar.

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Helpful Charts

Idaho Appellate Handbook

New version currently being worked

on.Attorneys checklist to filing an appeal.

Documents

IICM October 26 2011