This week’s batch of opinions from the Court of Appeals had several appellate issues worth a mention.
First, the en banc saga comes to a close. As you’ll recall, the Court of Appeals had granted its first ever en banc petition to resolve contradictory case law from that Court. The consternation-causing issue was whether a parent’s constitutional right to the custody of her own children is waivable. After the full Court granted en banc rehearing in In re A.C., the original panel retracted its opinion, and the en banc order was rescinded.
The final In re A.C. opinion has now been unveiled. The panel found a way to avoid the issue entirely, but Judge Gore wrote several pages explaining that the Court of Appeals “would benefit from the guidance of our Supreme Court” on the issue. Interestingly, the original opinion was authored by Judge Murphy, who concurred in the final opinion.
Second, this week’s opinions contained tales from the “what not to do” file. Don’t file the record and forget the appellee’s amendments. Don’t blame the appellees for not redacting personal information in the record, even if the appellee asked for its inclusion. If you ignore these warnings, don’t be surprised when your appeal is dismissed and the costs are double-taxed against you (as the attorney).
Finally, an interesting use of certiorari got a stamp of approval. When cases involve a facial constitutional challenge to a state law, the constitutional question is supposed to be transferred to and decided by a three-judge panel. In this lawsuit against the YMCA, the YMCA raised a constitutional defense, the plaintiffs considered it to be a facial challenge, and the plaintiffs moved to transfer it to a three-judge panel. The trial court granted the transfer motion.
The YMCA filed a notice of appeal, based on a substantial rights theory, as well as a certiorari petition. The Court of Appeals rejected the substantial rights theory, but allowed certiorari review and reversed. Judge Gore, writing for himself and Judge Dillon, thought certiorari review made good sense because there is a lack of case law on the procedure for transferring cases to three-judge panels. From my own experience, that is undoubtedly true. Issues with the transfer procedure are often moot, or treated as such, by the time the case is over, but the procedure itself is rather confusing. The trial bench and bar need guidance on how the procedure is supposed to work.
In dissent, Judge Carpenter worried that the majority was inviting frequent certiorari petitions on transfer motions. The majority didn’t respond directly to that point, but my sense is that this was a good-for-one-time-only opinion. Trial courts need guidance on what counts as “facial” and “as applied,” and now that this opinion is giving it to them, certiorari review may not be available in the next case that seeks mere error correction. The takeaway is not that these kinds of orders are now appealable through certiorari, but that important and murky interlocutory issues that escape regular appellate review deserve certiorari review.