2017 NJSBA ANNUAL MEETING. The Record on Appeal Co-Sponsored by the Appellate Practice Committee

Transcription

1 2017 NJSBA ANNUAL MEETING The Record on Appeal Co-Sponsored by the Appellate Practice Committee Introduction By: Olivia B. Crisp, Esq. State of New Jersey Office of the Law Guardian, Ewing Moderator/Speaker: Hon. Carmen Messano, P.J.A.D. Speakers: Hon. Mary Catherine Cuff, P.J.A.D. (Retired) Hon. Marie E. Lihotz, P.J.A.D. Heather Joy Baker, Esq. Chief Counsel Supreme Court of New Jersey Clerk's Office Lisa D. Bigony, Esq. Deputy Counsel New Jersey Superior Court, Appellate Division

2 THE RECORD ON APPEAL 2017 The Record on Appeal 1

3 SPEAKERS Hon. Carmen Messano, P.J.A.D Appellate Division, Presiding Judge for Administration Hon. Marie E. Lihotz, P.J.A.D Appellate Division, Presiding Judge Hon. Mary Catherine Cuff, P.J.A.D Appellate Division, Presiding Judge, Retired Heather Joy Baker, Esq. Supreme Court, Chief Counsel Lisa D. Bigony, Esq. Appellate Division, Deputy Counsel Olivia Belfatto Crisp, Esq. Assistant Deputy Public Defender, Program Coordinator 2017 The Record on Appeal 2

4 This presentation has not been prepared on behalf of the Supreme Court or the court system. The panelists are not speaking on behalf of the Supreme Court or court system. Please do not cite to these slides The Record on Appeal 3

5 R. 2:5-4 RECORD ON APPEAL (A) CONTENTS OF RECORD WHAT IS IT? All papers on file in the court or courts or agencies below with all entries as to matters made on the records of such courts and agencies. The stenographic transcript or statement of the proceedings therein. All papers filed with or entries made on the records of the appellate court The Record on Appeal 4

6 R. 2:5-4 RECORD ON APPEAL (cont d) R. 2:5-4 RECORD ON APPEAL (B) NOTICE OF AGENCY RECORD WHAT IS THE STATEMENT OF ITEMS COMPRISING THE RECORD ON APPEAL? Agency or officer from which the appeal is taken shall file in the appellate court a statement of items comprising the record on appeal (SICR). SICR due within 30 days of the service of the notice of appeal upon agency or officer. Copy of SICR to be served on each party to appeal. SICR is a statement of items. Appellant is entitled to obtain copies of any material identified in the statement The Record on Appeal 5

7 R. 2:5-5 CORRECTION OR SUPPLEMENTATION OF RECORD (A) MOTION TO SETTLE THE RECORD A party who questions whether the record fully and truly discloses what occurred in the court or agency below shall apply on motion to that court or agency to settle the record. Provide the appellate court with a copy of the motion, and advise when it has been disposed. Briefing is tolled pending the filing and entry of the order in the court or agency below. The remaining time runs from entry of the order. On motion by party, the appellate court may review the determination. On its own motion, the appellate court may order a correction of the record or direct the court or agency to do so The Record on Appeal 6

8 R. 2:5-5(A) Is there an alternative to filing a motion if a party believes that a portion of the transcript is inaccurate? - YES - A party may request the clerk of the court in which the appeal is pending to review the tape to determine whether the questioned portion of the transcript accurately transcribes what was said by the participant The Record on Appeal 7

9 R. 2:5-5 PROCEDURE TO HAVE TAPE REVIEWED Party requests review, on notice to all parties. Clerk s office reviews tape to determine what was actually said at specified point in recorded proceedings. Clerk notifies parties of its determination. Objections may be submitted within 10 days of notification. If no timely objection received, transcript deemed corrected. Copy of notification filed. If party objects in writing, that party shall move for correction in the court or agency from which the appeal is taken. If matter has been calendared, motion made to court in which the appeal is pending The Record on Appeal 8

10 R. 2:5-5(A) CORRECTING THE TRANSCRIPT STATE V. YOUGH, 208 N.J. 385, (2011) State challenged accuracy of transcript that described victim as making a growling sound when he testified about defendant. The Supreme Court discusses the two methods to correct the record when an issue regarding the accuracy of the transcript is made. It is also noted that the challenge should have been made before the trial court or the Appellate Division The Record on Appeal 9

11 R. 2:5-5 CORRECTION OR SUPPLEMENTATION OF THE RECORD (B) SUPPLEMENTATION OF ADMINISTRATIVE RECORD The appellate court, on its own motion or on a party s motion, may order supplementation of the record by the taking of additional evidence and the making of findings of fact by the agency. In exceptional circumstances, appellate court may designate a judge of the Superior Court for this purpose The Record on Appeal 10

12 (B) R. 2:5-5 CORRECTION OR SUPPLEMENTATION OF THE RECORD (cont d) SUPPLEMENTATION OF ADMINISTRATIVE RECORD Is a motion to supplement the record of trial court proceedings permitted? - YES - Nevertheless, we conclude that even though Rule 2:5-5 does not include an express provision for the supplementation of a trial court record, an appellate court has the inherent power to address such a motion. Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). - AND - Rule 2:9-1 (a) provides in part that: The appellate court may at any time entertain a motion for directions to the court or courts or agencies below The Record on Appeal 11

13 R. 2:5-5(B) CORRECTION OR SUPPLEMENTATION OF ADMINISTRATIVE RECORD (cont d) (B) SUPPLEMENTATION OF ADMINISTRATIVE RECORD What factors does court consider in entertaining a motion to supplement the record? Was the information available at the time of the initial hearing? Is the information likely to have altered the final decision? In re Marvin Gastman, 147 N.J. Super. 101, 114 (App. Div. 1977) The Record on Appeal 12

14 DO ANY MOTIONS TOLL THE TIME TO FILE BRIEFS IN THE APPELLATE DIVISION? - YES - R. 2:6-11(g) provides a list, in addition to those provided in R. 2:5-5(a) and R. 2:8-3(b) (motion for summary disposition), of motions that toll the time to file the next brief due. (A) Motion to supplement the record in trial court or administrative agency proceedings, made directly to the Appellate Division or on the Court s own motion. If granted, the trial court or agency proceedings continue to toll the time to file the brief, unless otherwise provided in the order; 2017 The Record on Appeal 13

15 DO ANY MOTIONS TOLL THE TIME TO FILE BRIEFS IN THE APPELLATE DIVISION? (cont d) (B) Motion to strike the entirety or portions of a brief or appendix; (C) Motion to dismiss; (D) Motion for final remand; (E) Motion to stay appellate proceedings; and (F) Motion to file overlength merits brief The Record on Appeal 14

16 CAVEATS TO BRIEF-TOLLING MOTIONS (1) R. 2:6-11(g)(2) If the party filing the motion has previously been granted an extension of time to file its brief and appendix, the tolling provision does not apply. Movants should include extension request as part of motion. (2) The time to file the brief is tolled from the filing of the motion to the entry of the dispositional order. The remaining time runs from that point, not a new and full complement of days, unless otherwise ordered The Record on Appeal 15

17 R. 2:5-3 PREPARATION AND FILING OF TRANSCRIPTS; STATEMENT OF PROCEEDINGS; PRESCRIBED TRANSCRIPT REQUEST FORM Is the entire transcript required to be produced? R. 2:5-3(b) requires that the entire transcript of proceedings before the Court or agency from which the appeal is taken be produced. This includes the trial judge s reasons in determining the motion for new trial, unless a written statement of such reasons was filed by the judge The Record on Appeal 16

18 R. 2:5-3 PREPARATION AND FILING OF TRANSCRIPTS; STATEMENT OF PROCEEDINGS; PRESCRIBED TRANSCRIPT REQUEST FORM (cont d) EXCEPTIONS R. 2:5-3(b) Contents of Transcript; Omissions. No opening and closing statements to the jury or voir dire examinations or legal arguments of counsel UNLESS a question with respect thereto is raised on appeal. R. 2:5-3(c) Abbreviation of Transcript May be abbreviated to the extent of complete elimination. Upon written consent of all parties. By order of trial judge or agency which determined the matter, on motion The Record on Appeal 17

19 R.2:5-3(f) STATEMENT OF PROCEEDINGS IN LIEU OF TRANSCRIPT Procedure to be used when no verbatim record was made of the proceedings before the trial court or agency OR when the verbatim record has become lost, destroyed or otherwise unavailable. HOW IT WORKS Within 14 days of filing notice of appeal, appellant serves respondent with a statement of the evidence and proceedings. Respondent may submit objections or amendments within 14 days of service. Appellant files the statement and any objections or amendments with the court or agency. Within 14 days of filing, the clerk or agency settles the statement of proceedings and files it with the clerk. Clerk provides parties with a copy of the statement The Record on Appeal 18

20 SUPREME COURT PRACTICE R. 2:12-6 RECORD ON PETITION FOR CERTIFICATION The record on petition for certification shall be the briefs, appendices and transcripts filed in the Appellate Division, the opinion of the Appellate Division, and the transcript of the oral argument of sentencing appeals heard by the Appellate Division pursuant to R. 2:9-11. Such record shall constitute the record on appeal if certification is granted. Take away points: Litigants are limited to the record filed in the Appellate Division. Presenting new material requires a motion to supplement the record. Material outside of the record may be subject to a motion to strike The Record on Appeal 19

21 SUPREME COURT PRACTICE (cont d) Practice Pointers for Supreme Court Appendices: Do not put Appellate Division briefs into a Supreme Court appendix Submit them as separate documents from the appendix. BUT do not submit trial court briefs separately; when it is appropriate to submit trial court briefs, place them in the appendix. Number your appendix clearly Avoid using PA, DA, or similar designation for both the Supreme Court and Appellate Division appendices; consider using SC for your Supreme Court appendix. Limit your appendix volumes to 200 sheets or less. Include all of the critical documents in your appendix E.g., the notice of petition, Appellate Division opinion, and trial court order or transcript of oral findings. BUT be selective Try not to overwhelm your appendix with unnecessary record documents The Record on Appeal 20

22 SANCTIONS R. 2:9-9 SANCTIONS FOR NON-COMPLIANCE WITH RULES Sanctions may include imposition of costs or attorney s fees assessed personally against attorney, to dismissal. Case law discloses many appeals that have been dismissed on procedural grounds pursuant to this rule. In Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282 (App. Div. 1984), the court noted a laundry list of deficiencies. These included failure to include required items in the appendix (judgment appealed from and notice of appeal). Conversely, items outside the record were included. Although satisfied that case had no merit, appeal dismissed for procedural deficiencies The Record on Appeal 21

23 REMANDS R. 2:9-1 CONTROL BY APPELLATE COURT OF PROCEEDINGS PENDING APPEAL OR CERTIFICATION (B) Proceedings on Remand to Tribunal of First Instance Any appellate court may, if it retains jurisdiction and refers to the tribunal of first instance, direct that the matter be returned to itself after completion of the remand proceedings. A remand may be temporary or final. If temporary, appellate order will state whether appellate proceedings are stayed pending the remand. Order granting temporary remand may also direct appellate post-remand proceedings, such as supplemental briefing, ordering transcript of proceedings, amending appeal to include remand order, etc The Record on Appeal 22

24 AMENDMENT TO R. 2:6-2, CONTENTS OF APPELLANT S BRIEF, EFFECTIVE SEPTEMBER 1, 2016 R. 2:6-2(a)(2) Requirement of a table of judgments, orders and rulings being appealed in appellant s brief. Must follow the table of contents. The location of the following items must be included: (A) The trial court s judgment(s), order(s), and ruling(s) being appealed, or the administrative agency s final decision(s); (B) The trial court s written or oral opinion; (C) Intermediate decisions, if any, pertinent to the appeal. These include planning board resolutions, initial decisions of the administrative law judge, and appeal tribunal decisions The Record on Appeal 23

25 AMENDMENT TO R. 2:6-2, CONTENTS OF APPELLANT S BRIEF, PURPOSE OF TABLE OF JUDGMENTS, ORDERS AND RULINGS Improve efficiency for brief reader. Check to appellant to ensure that all required items are included in the record. Samples of table of judgments, orders and rulings and point headings may be found on the appellate section of the Judiciary s website at: The Record on Appeal 24

26 AMENDMENT TO R. 2:6-2(a)(1) and R. 2:6-2(a)(6), EFFECTIVE SEPTEMBER 1, 2016 STATEMENT OF LOCATION OF OPINION OR RULING IN POINT HEADINGS This information must be included in the table of contents where point headings are listed, R. 2:6-2(a)(1) and in the legal argument portion of the brief, R. 2:6-2(a)(6). Critical for brief reader. Can affect applicable standard of review The Record on Appeal 25

27 AMENDMENT TO R. 2:6-11(d), EFFECTIVE SEPTEMBER 1, 2016 LETTERS TO COURT AFTER BRIEF FILED Adds category of rules, regulations and ordinances to list of new materials that may be brought to court s attention subsequent to filing of brief. Changes category of cases decided to published opinions. Limit the number of unpublished opinions brought to court s attention. Unless an exception to R. 1:36-3 applies, unpublished opinions may not be cited by an court The Record on Appeal 26

28 AMENDMENT TO R. 2:6-11(d), EFFECTIVE SEPTEMBER 1, 2016 (cont d) Limits length of initial letter and subsequent response to two pages. A letter bringing a new matter to the Court s attention should not need to exceed two pages. These submissions are not to be confused with supplemental briefs The Record on Appeal 27

29 Thank you for your time The Record on Appeal 28

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