SCT Issues Major Decisions On Rule Violations

We've been waiting for the Supreme Court (SCT) to clarify its 2005 decision in Viar v. N.C. Dep't of Transportation. That decision has been read by many judges on the Court of Appeals (COA) to impose something close to a zero-tolerance policy for appellate rules violations, including nonprejudicial violations that don't impede comprehension of the issues on appeal. Viar has generated a great deal of controversy at the COA, including a number of strong dissenting opinions in cases where the majority dismissed appeals or declined to reach issues briefed on appeal.

Two of those cases were appealed to the SCT based on dissenting opinions: Walsh v. Town of Wrightsville Beach (civil case) and State v. Hart (criminal case). In each case the majority dismissed arguments briefed on appeal (refusing to address the merits). They did so because they concluded that Viar required dismissal when the appellant fails to comply with the appellate rules. Both cases concerned problems related to assignments of error.

Today's Decisions

Today the SCT issued its decisions in the two cases. In Hart the SCT addressed the scope of Viar and unanimously held that the COA has misunderstood Viar. The SCT reversed and remanded to the COA to determine Appellate Rule 2 (permitting suspension of the rules to prevent "manifest injustice") warranted a consideration of the merits of the appeal and whether the appellant should receive a less severe sanction than dismissal. Hart was written by Justice Hudson, who witnessed first-hand the COA's struggle with Viar when she was on the COA.

In Walsh the SCT, in a one-sentence per curiam order, reversed and remanded for reconsideration in light of the reasoning in Hart.

The SCT Holds That The COA Has Misinterpreted And Misapplied Viar

In today's Hart decision the SCT said it needed to correct a "misapplication" of Viar. The SCT clarified (as Judge Geer and others on the COA have maintained) that Viar was not such significant decision. According to the unanimous SCT today:

• Viar held (only) that the COA "acted improperly when it reviewed issues not raised or argued by the appellant," i.e., that the COA "improperly applied Rule 2 when it created an appeal for the appellant and addressed issues not raised or argued."

• Viar held that the COA "improperly applied Rule 2 under those particular circumstances," but "the Viar holding does not mean that the Court of Appeals can no longer apply Rule 2 at all."

• When Viar said that an appeal is “subject to” dismissal for rules violations, it didn't mean that an appeal "shall be" dismissed for any violation. Rather, “subject to” means that dismissal is one possible sanction.

• The COA has "misapplied" and "misinterpreted and improperly extended Viar": "In Viar, we neither admonished the Court of Appeals to avoid applying Rule 2, nor did we state that the court may not review an appeal that violates the Rules, even when rules violations 'd[o] not impede comprehension of the issues on appeal or frustrate the appellate process.'"

• "To the extent that the Court of Appeals has interpreted [Viar and other SCT cases] to require dismissal in every case in which there is a violation of the Rules of Appellate Procedure, we expressly disavow this interpretation."

• "[E]very violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure."

But Rule 2 Still Governs

Having disavowed the strict interpretation of Viar, the SCT nonetheless suggested that an appeal must be dismissed unless the case warrants application of Rule 2.

The SCT offered these guideposts on Rule 2:

• "Rule 2 must be applied cautiously."

• "Rule 2 was intended to be limited to occasions in which a 'fundamental purpose' of the appellate rules is at stake, which will necessarily be '"rare occasions."'"

• Although the SCT has applied Rule 2 in civil cases, "the Court has done so more frequently in the criminal context when severe punishments were imposed."

• "While an appellate court has the discretion to alter or suspend its rules, exercise of this discretion should only be undertaken with a view toward the greater object of the rules."

• "Before exercising Rule 2 to prevent a manifest injustice, [the Court] must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option. Fundamental fairness and the predictable operation of the courts * * * depend upon the consistent exercise of this authority." Inconsistent application of the rules may detract from the deference which federal habeas courts will accord to their application in cases invoking a procedural bar to review. "Therefore, it follows that our appellate courts must enforce the Rules of Appellate Procedure uniformly. "

The SCT in Hart (a criminal case) thus remanded to the COA to consider whether to exercise such Rule 2 discretion and whether other sanctions should be imposed pursuant to Rule 25(b) or Rule 34. And, as noted, the SCT reversed Walsh (a civil case) and remanded for reconsideration in light of Hart.

We'll have more commentary about today's decisions later. But suffice it to say for now that Rule 2's "manifest injustice" standard is no panacea for those troubled by the fallout from Viar.