Points To Consider About McKinley and Dogwood

I originally posted these considerations yesterday in my post on Dogwood and McKinley (see below). But the post was so long I decided to break this out separately.

• The majority opinion in Dogwood distinguished Hart on several grounds. First, Hart was a criminal case. This is true, but when it issued Hart, the SCT also reversed Walsh--a civil case--and remanded that case for reconsideration in light of Hart, meaning the SCT believed Hart might impact that civil case. Second, the Dogwood majority said that Hart involved a dismissal on the COA's own initiative, whereas in Dogwood the appellee filed a motion to dismiss the appeal. But why does this matter? It may not really matter after all, since Judge Tyson, the author of Dogwood, dissented yesterday in McKinley and voted to dismiss that appeal even though, evidently, no motion to dismiss was filed there. Third, the Dogwood majority relied on the fact that the appellant didn't respond to the appellee's motion to dismiss. Fourth, the Dogwood majority said Hart involved a single violation, not multiple violations. True, but the Dogwood majority also held that each of the individual violations in Dogwood independently warranted dismissal, citing post-Viar COA cases for support, the same line of cases criticized by the SCT in Hart.
• By distinguishing Hart on the ground that the appellee in Hart didn't move to dismiss the appeal, the Dogwood majority suggests that the odds of dismissal are greater if the appellee files a motion to dismiss. This may further encourage what the COA's mistaken reading of Viar encouraged (likely the chagrin of the clerk's office): motions to dismiss based on rule violations. Query whether the COA should want to encourage parties or their counsel to file motions to dismiss appeals. This will burden the court (which must process and resolve the motions) and result in increased appellate litigation costs.
• The Dogwood majority rejected the notion that “when rules violations do not impede an evaluation of the case on the merits, the appropriate remedy should not be dismissal, but rather the imposition of monetary sanctions.” The majority said this same argument was rejected by the SCT in Viar. That's not so clear. Arguably, however, the SCT in Viar rejected that standard only in the context of a case where the COA creates an appeal for the appellant (namely by addressing arguments not advanced on appeal). As the SCT said last month in Hart, "In Viar, we [did not] 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.' [citation omitted] We simply noted that the Court of Appeals majority had justified its application of Rule 2 in Viar by using that phrase. Rather than approving this justification for applying Rule 2 to that scenario, we rejected it and dismissed the Viar appeal. In so doing, we held that the Court of Appeals improperly applied Rule 2 when it created an appeal for the appellant and addressed issues not raised or argued." (Emphasis added)
• What'll happen when yesterday's two cases get to the SCT? Because both decisions were exercises of discretion, the abuse of discretion standard of review would govern. Under that standard, if each case is viewed independently, each may be affirmed, resulting in the disparate treatment of two similarly situated appellants whose counsel committed the same rule violations. One received review on the merits, the other did not.
• These cases point up the folly of achieving uniformity among cases under a discretionary standard. So long as there's relatively unfettered discretion not to dismiss, different panels are free to reach differing results. It'll just depend on the panel. But there doesn't seem to be a way around this problem, unless the COA adopts a zero-tolerance approach and dismisses nearly all civil appeals with rules violations. That's not going to happen. And that's not good public policy. As Judge Hunter's Dogwood dissent observed, "[S]uch rigid uniformity in granting dismissals when violations occur can result in great damage to both parties and attorneys. Dismissal is a drastic remedy that not only cuts off the rights of parties to have their appeals heard and the possibility for parties to obtain relief, but also exposes the offending attorney to a malpractice suit even where the appeal, if heard, would not have been successful. In addition, many times these violations arise from the small-firm or solo practitioner who does not have a large appellate practice and thus is not as familiar with the rules of appellate procedure as an attorney at a larger firm; blanket dismissals for less serious rules violations will discourage those attorneys from bringing appeals and may result in their being forced to discontinue any appellate practice." (For similar observations about consequences, see the article I wrote with Judge Greene.)
• Judge Hunter's suggested approach--reconciling Rules 2, 25, and 34--may help alleviate the unfairness somewhat. His view appears to be that Rule 2 doesn't have to be invoked for the court to reach the merits because, so long as sanctions are imposed under Rules 25 and 34, the court is enforcing, and therefore is not "suspending," the rules. I'm not sure this approach works with assignments of error, however. Rule 10(a) says that "the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10." And Rule 28(b)(6) says "Assignments of error not set out in the appellant's brief . . . will be taken as abandoned." It would seem, therefore, that even if a monetary sanction is imposed, the court would have to (per Rule 2) suspend or vary Rule 10(a) in order to address an assignment of error that doesn't accord with Rule 10. Likewise, even if a monetary sanction is imposed, it would seem that the court must suspend or vary Rule 28(b)(6) in order to address an assignment of error not referenced in the appellant's brief.
• In Dogwood the majority relied on the fact that the appellant didn't respond to the appellee's motion to dismiss and didn't move to correct the rule violations. As a practice pointer, I encourage appellants to move to correct any rule violations as soon as they are discovered. As Judge Hunter's Dogwood dissent advised, "In such situations [when the appellee points out the violation], the offending attorney's response should be to file a motion to amend his brief and correct those violations. Allowing these motions, if timely made and appropriate in changes, is in the interest of judicial economy as well as fairness. It also promotes the professional courtesy and collegiality this Court should be encouraging among members of the legal profession."