Rules Violations Yield No Sanctions

In an unpublished decision today (involving a juvenile's appeal of a finding that she violated her probation) the COA, in a divided opinion, chose not to dismiss an appeal despite several acknowledged rules violations.

The appellant violated the rules in these ways:

1. Her brief failed to include citation of the statute permitting appellate review (see Rule 28(b)(4)).

2. Her brief failed to include a statement of the standard of review for each question presented (see Rule 28(b)(6)).

3. Her Appeal Information Statement was untimely filed and incomplete (see Rule 41).

Judge Geer wrote the majority opinion, joined by Judge Levinson. Judge Geer's majority opinion reasoned that dismissal wasn't warranted because the violations had not "impeded [the court's] review since it is apparent from the nature of the case that it is a proper appeal and because the standard of review is well established." Judge Geer added, "Most importantly, however, dismissal would serve only to punish a child for the errors of her attorney."

Judge Jackson wrote a separate opinion disagreeing with the majority's standard. "The fact that the rules violations did not impede our review of the appeal is immaterial, based upon Viar," she wrote. "Therefore," Judge Jackson concluded, "based upon the violations of our appellate rules, including the omissions of the grounds for appellate review and the applicable standards of review for each question presented, I would impose sanctions pursuant to rule 25(b) of our appellate rules." She didn't state precisely which sanction she would choose (e.g., dismissal versus taxation of costs).

This split is a reprise on the split seen in several recent decisions, most notably Jones v. Harrelson & Smith Contractors, LLC (Dec. 19, 2006) and Stann v. Levine (Nov. 7, 2006), both of which had Judge Geer dissenting from opinions written by Judge Jackson. (Note: Jones is on appeal to the NC Supreme Court based on Judge Geer's dissent; the appeal notice was filed January 23rd.) The split concerns the standard that should guide the court's determination whether an appeal should be dismissed for rule violations. As Judge Geer's opinion today shows, her view (a view shared by others on the COA) is that rules violation should not result in dismissal unless they impede the court's or the opposing party's comprehension of the issues on appeal. Judge Jackson disagrees with that standard. (For more on this split, see the article I co-authored with former COA judge K. Edward Greene entitled, To Err Is Human, But To Forgive Is Divine, which was published the Feb. 2007 edition of NC Bar's The Litigator.)

As for the majority's statement today that "dismissal would serve only to punish a child for the errors of her attorney," it's difficult what to make of it. In any case in which an appeal is dismissed for rule violations, a party is, in a sense, being punished for the errors of the attorney. That's unsurprising. Historically the law has preferred imputing attorney negligence to clients. See generally Henderson v. Wachovia Bank of North Carolina, N.A., 551 S.E.2d 464 (N.C.App. 2001) (tracing to common law of England the principle that the law prefers to impute to clients the conduct of the lawyer). It's not evident why the client's status as a child should make a difference. It's not as if the average lay adult-client is in a better position to superintend a lawyer's compliance with the Rules of Appellate Procedure, and the court's precedents do not suggest that the dismissal-as-sanction analysis should weigh the sophistication of the client or the client's ability to control the attorney's compliance with the rules. That being said, a number of sui generis rules have been generated in cases involving children. Maybe this case should be added to the list.