Court of Appeals To Be Downsized Unless…

By Matthew Nis Leerberg on April 12, 2017

UPDATE: House Bill 239 was vetoed by the Governor on Friday. Read the Governor’s statement here. The override vote has been calendared in the house for Wednesday.

A bill to downsize the Court of Appeals—from 15 judges to 12—has been sent to the Governor. The bill may have just enough partisan support to override a veto, although the override votes may be very close.

House Bill 239 would shrink the Court of Appeals by three judges over the next couple of years by abolishing the next three seats to become vacant. Barring any earlier retirements or the like, the bill would eventually abolish the seats currently held by Judges McCullough (May 2017), Hunter (March 2019), and Calabria (October 2019, if Judge Calabria runs to keep her seat in 2018), who each reach mandatory retirement age soon.

The bill would also shift certain appeals from the Court of Appeals directly to the Supreme Court, including the rare order entered regarding class certification in a non-Business Court case. Also, beginning with appeals filed on or after January 1, 2019, appeals from orders terminating parental rights or denying a motion to terminate parental rights would be taken directly to the Supreme Court. Other appeals involving juveniles under Chapter 7B would first be taken to the Court of Appeals.

If the bill is enacted, it appears that there may be juvenile cases in which parallel appeals may be taken simultaneously, with one directed to the Court of Appeals and one to the Supreme Court. In addition, revisions to Appellate Rule 3.1 would be necessary to clarify the Supreme Court’s involvement in appeals involving the termination of parental rights.

Finally, the bill adds a new ground on which a party can file a “PDR Prior” or “Bypass PDR,” asking the Supreme Court to consider an appeal in the first instance that otherwise would have been heard by the Court of Appeals. Under the bill, a party can seek such review whenever “the subject matter of the appeal is important in overseeing the jurisdiction and integrity of the court system.”

Other Bills

Several other bills have been filed that could affect appellate practice.

AOC Omnibus Bill (H236)

The Administrative Office of the Courts’ Omnibus Bill, House Bill 236, would allow a pleading or other paper filed in a civil action to be valid and enforceable even if it has no “filed” stamp. The change is intended to address the issue that arose in the Court of Appeals in the In re Thompson case. In In re Thompson I, the Court of Appeals held that an incompetency order that was never filed-stamped was not “entered,” and therefore the 30-day appeal period had not yet begun to run. In In re Thompson II, the Court of Appeals reiterated that a clerk of court has the authority to enter such an order nunc pro tunc, that is, as if it had been entered on an earlier date.

The bill may have an unintended consequence if passed. If a judgment can be deemed “filed” even without a filed stamp, then how will the parties know when the appeal period runs?

Status: Pending in House Judiciary Committee.