No one wants to have her reply brief stricken as untimely. But this is a problem easily avoided, right? Open up your N.C. Rules of Court book to Appellate Rule 28(h) and be sure to file within the time provided. Just one catch — which edition of the Rules should you consult–the 2013 green book, or the 2014 brown book?
Well, it depends. As we have discussed before, the Supreme Court of North Carolina revised Rule 28(h), declaring that “[t]hese amendments . . . shall be effective on 15 April 2013.” In the past, rule changes have been “effective for notices of appeals filed on or after [date].” I took the change in wording to be deliberate, and to mean that appellants had a reply brief as of right, due within 14 days, for all pending appeals going forward. At least one panel of the North Carolina Court of Appeals has read the rule that way, applying the “new” Rule 28(h) as early as April 17, 2013.
It appears that the State Attorney General’s office also has been reading the new rule to apply to all appeals from April 15, 2013 on. In State v. Williams (N.C. Ct. App. Nov. 5, 2013), available at 2013 WL 5912025, the defendant-petitioner filed his appellant’s brief on March 26, 2013. The State filed its appellee brief on April 29, 2013. Under the new rules, the defendant had a reply brief as of right due within 14 days of April 29, 2013. Believing the old rules to apply, however, the defendant waited until he received his “30(f)” (no oral argument) notice, then promptly filed a reply brief pursuant to old Rule 28(h)(3). The Attorney General’s office then filed a motion to strike the reply brief as untimely under the new rules.
The State v. Williams panel, applying the new rules, granted the motion and struck the brief, holding:
Under new Rule 28(h) of our Rules of Appellate Procedure, effective 15 April 2013, reply briefs may only be filed within 14 days of service of the Appellee’s brief . . . . Appellant’s reply brief, filed more than three months later, was therefore untimely under the new rule.
The defendant immediately filed a “Motion to Withdraw Opinion,” claiming that he was only abiding by the interpretation of the timing of the rule changes held by the Supreme Court itself. The AG’s office, to its credit, quickly consented to the relief requested, stating that it only recently “was informed that the intention of the Supreme Court was for the amendment to N.C. R. App. P. 28(h), the rule governing reply briefs, to be effective for all cases in which the notice of appeal was filed on or after 15 April 2013.” The Court of Appeals apparently granted the motion, as the original State v. Williams opinion is no longer available on the Court of Appeals website.
Given that there appear to be differing views among the courts and practitioners as to the effective date of the new rules, we recommend playing it safe until the dust settles. One option is to seek the consent of appellee’s counsel, and file a consent motion for leave to file a reply brief with the reply brief attached, within 14 days of the service of the appellee’s brief. In the motion, you might highlight the confusion over which rules apply, and ask that the court accept your reply as though the new rules were in effect.
Have you run into problems with the new reply brief rule? Do share any suggestions you have on how you have managed the process.