Thursday, May 10, 2007, 9:51 AM

What Is A Manifest Injustice Under Appellate Rule 2?

Last week in State v. Hart (see post below) the NC Supreme Court clarified that, notwithstanding its 2005 Viar decision, the Court of Appeals retains the discretion to review the merits of an appeal when the appellant has violated the appellate rules, so long as the discretion is exercised consistent with Rule 2. Rule 2 allows the appellate courts to suspend or vary the requirements of the rules "[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest." The Supreme Court correctly observed that it has typically invoked Rule 2's "manifest injustice" standard in criminal cases because of the high stakes for the defendant (e.g., imprisonment or death).

But this raises the question: What is a "manifest injustice" in a civil case, particularly in private litigation (as opposed to public litigation brought by or against the government)? In such cases typically it is money or property rights at stake. How could there be a "manifest injustice" if the appellate court declined to review the merits of an appeal involving money or property? What would the standard be for determining what is and is not a "manifest injustice"?

Who knows? As Justice Scalia once commented, "manifest injustice" might mean “almost anything” and “is just a surrogate for policy preferences.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 857 (1990) (Scalia, J., concurring).

A strong argument could be made that a “manifest injustice” in this context would be something tantamount to a “plain error,” so that Rule 2 would permit the appellate court to entertain the merits of an appeal to prevent a party from being subjected to a plain error by the lower court. (Federal courts have held that, in the context of a motion for reconsideration, a “manifest injustice” is defined as an error by the court that is direct and obvious—i.e., manifest.) Under this meaning, the appellate court would, after finding a rule violation, have to determine whether the lower court committed an obvious mistake before invoking Rule 2 to issue a disposition on the merits.

One might argue that a "manifest justice" could include the dismissal of an appeal for a technical rule violation that doesn't impede comprehension of the issues on appeal or prejudice the other party. But there are problems with such a gloss on Rule 2, not the least of which is that it would embroil the courts in controversies over which rules and violations are "technical" and likely lead to a crazy quilt of inconsistent decisions on that front--undermining the policy of "uniformity," contrary to the Supreme Court's admonition in Hart.

(The State, in its appellate brief in Hart, argued: "[I]t is not the perceived innocuous nature of a rules violation that matters when an appellate court decides whether to exercise its discretion under Rule 2. The question is not how bad the violation is; the question is whether there is a significant issue of importance in the public interest that should be reached despite the rules violation or an injustice which appears manifest to the court.")

One may predict that the judges who took a zero-tolerance view of rules violations after Viar likely will continue that approach by emphasizing the narrowness of Rule 2 and by finding no "manifest injustice" in private civil appeals.

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