Yesterday, the Supreme Court of North Carolina amended Appellate Rule 36(b) to conform with the General Assembly’s recent amendment to N.C. Gen. Stat. § 1-283. Both under the Appellate Rule and by statute, settling the record on appeal is an action that must be taken by a particular judicial official: the judge whose order or judgment is being appealed. As explained in our treatise:
The reason for this requirement is a practical one: the judge whose order or judgment is being challenged on appeal can best determine whether documents proposed for inclusion in the record on appeal were “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof.” Similarly, the trial judge who actually heard and decided a matter is in the best position to determine whether “the content of a statement or narration is factually inaccurate.”
Scherer & Leerberg, North Carolina Appellate Practice and Procedure, § 2.07[2] [When a Particular Trial Judge Is Required by Appellate Rules or Statute]. Nevertheless, Appellate Rule 36 and § 1-283 have long-carved out a practical exception for judges who cannot settle the record on appeal due to death, mental or physical incapacity, or absence from the State. In those instances, the Chief Justice has long had the authority to appoint a substitute judge to fulfill the original trial judge’s duties. On the other hand, these provisions offered no sympathy for trial judges that merely retired to places like Pine Knoll Shores or Carolina Beach. Yesterday’s amendment removed the perverse incentive for judicial officials to retire to out-of-state places like Myrtle Beach. Under Amended Appellate Rule 36, the Chief Justice can appoint a replacement judge to perform judicial actions limited to a particular judge when the original judge has retired. While the amendments close a big gap, a smaller gap remains. What if a trial judge’s term expires or the judge resigns without retiring from the bench? Under a strict reading of the statute and rules, that judge is still on the hook for settling the record on appeal. Still, if faced with this scenario, I’d try to find another way to resolve the problem. For one, forcing a departed judge back on the bench raises constitutional concerns. Second, I don’t think most trial judges would be happy being forced to leave the beach for the bench. I’d instead recommend asking the Supreme Court to exercise its constitutional supervisory authority to appoint an alternative judge to settle the record on appeal. See Scherer & Leerberg, § 2.07 [3] [When Required Judge Is Unavailable Due to Death, Incapacity, or Absence from the State]. North Carolina has some of the most relaxing beaches in the world. Let’s not pollute them with forced judicial settlement conferences. Beth Scherer
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