Can an appellee say that the lower court got it wrong?  If so, when?

In many appeals, the alignment of interests is clear: the appellant is the party who disagrees with the ruling at issue, and the appellee is the party who agrees with the ruling.  Interestingly, neither the statutes nor the Rules of Appellate Procedure provide a general definition of “appellee.”  The most we have is that for cases before the Supreme Court, the Rules define an appellee as “a party who did not appeal from the trial tribunal” or the “opposing party” to the appellant.  N.C. R. App. P. 15(i), 16(c).

In a proceeding under Chapter 7B, the child is in a relatively unique posture.  By statute, the child is deemed a party to the proceeding and can be represented by a guardian ad litem—whose responsibility is “to protect and promote the best interests of the juvenile.”  N.C. Gen. Stat. § 7B-601(a).  With that responsibility, the guardian ad litem can petition to terminate parental rights or move to reinstate parental rights.  N.C. Gen. Stat. §§ 7B-1103(a), 7B-1114(a).  In addition, the guardian ad litem can appeal on behalf of the child.  N.C. Gen. Stat. §§ 7B-1001(c), 7B-1002.

But what if the guardian ad litem doesn’t appeal?  What is its status, and what arguments can it make, when another party appeals?  In In re I.F., a panel of the Court of Appeals struck the guardian ad litem’s brief because the guardian ad litem was “not an appellee.”  While the county DSS noticed an appeal from the trial court’s determination that the children were not dependent or neglected, the child’s guardian ad litem did not separately appeal (as is customary in these cases).

The guardian ad litem’s appellee brief raised arguments that would have supported reversal of the trial court’s decision.  But because the guardian ad litem had not filed its own notice of appeal, the Court of Appeals said the guardian ad litem was “without the ability to seek reversal or vacatur of the trial court’s orders.”  The rationale was that if a purported appellee is permitted to raise new (or better) arguments than the appellant, then a fellow appellee (whose brief is due at the same time) would never have an opportunity to respond. 

According to the Court of Appeals, “an appellee is a party whose goal is to support the order or ruling that the appellant is attacking.” 

I must admit that I was surprised by this opinion.  As far as I can tell, no North Carolina decision has previously defined an appellee according to this standard.  And although my understanding is obviously not authoritative, I suppose I always assumed that an appellee is any party who is not an appellant, and can therefore make whatever (preserved) arguments it deems appropriate as a party to the case—particularly when the party was not directly aggrieved by the trial court’s decision. 

Does the decision in In re I.F. mean that an appellee can only make arguments that support the ruling on appeal?  Does it foreclose an appellee from acknowledging that the trial tribunal erred?  How does it square with cases like State v. Ellis in which the appellee (there, the State) argued for reversal of a lower court decision?

The In re I.F. opinion also raises interesting questions about how far its rationale extends.  For example, can a guardian ad litem appellee argue that termination of parental rights would not be in a child’s best interests?  Or, more broadly, if a would-be appellee agrees that there was error in the tribunal below, when can it present those arguments in its brief?  See, e.g., In re J.C.-B (N.C. Ct. App. Mar. 26, 2019); In re T.R.K. (N.C. Ct. App. Oct. 3, 2017).  If an attorney for an appellee believes that there is no good-faith basis to support affirmance of the trial tribunal’s decision, how should that belief be conveyed to the appellate court? As another example, if a party ultimately prevailed below but believes that the trial tribunal’s analysis was flawed, is it permitted to point out the error?  Imagine a scenario where the trial court enters a ruling only directly impacting one of multiple defendants but might impact the remaining defendants’ available defenses if adopted by the appellate division.  Could those defendants note their disagreement with the trial court’s legal analysis in an appellee brief?  If not, should those parties notice an appeal even if the order does not directly impact them?  See N.C. Gen. Stat. § 1-271 (providing that a “party aggrieved” can appeal).

One solution may be to request to file an amicus curiae brief, which would alleviate some of the concerns about not giving the appellee defending the trial court’s judgment the ability to respond.  But can a party to an appeal also be an amicus? 

Maybe the decision should not be interpreted as broadly as I am reading it.  Or maybe it is limited to the circumstances in which multiple “appellees” have divergent interests.  But if the decision means what it suggests at first blush, then practitioners may have to rethink the arguments that an “appellee” can make.

–Kip Nelson