As a criminal defense attorney, I often get questions about how to appeal a criminal case. Often, I field questions about what happens in an appeal. How can I show the Supreme Court the evidence I couldn’t or didn’t present at the trial court? How long will it take? What are my chances of winning? How much will it cost? This article provides a summary of the appellate process in North Dakota and answers some of those questions. Of course, if you are considering appealing your case, you should contact us at the Fremstad Law Firm as soon as possible. There are tight deadlines and if we miss them, you can lose your right to appeal forever.
The North Dakota state court system is divided into three categories (Municipal, State, and Federal) and at least two levels of courts: trial and appellate courts. ****For purposes of our general discussion here, I focus only on the process of appealing a case from State District Court to the North Dakota Supreme Court. The process, rules, laws, and timelines are considerably different if you are considering an appeal from municipal court, the trial court of another state, or federal court. Lawyers at the Fremstad Law Firm are licensed in all state and municipal courts in North Dakota, Minnesota, U.S. District Court for North Dakota and Minnesota, United States Court of Appeals for the Eighth Circuit, and the United States Supreme Court. If you have questions about an appeal in one of those, please contact us immediately.***
A TRIAL COURT is a court where all admissible evidence is presented (including all witness testimony, documents, video, audio, etc), facts are determined by the factfinder, which may be a jury or judge, depending on the facts of the case, the law is applied, and the punishment or remedy is issued. Most people have at least a passing familiarity with trial courts because these courts are often the subject of pop culture, movies, television, books and newspapers. In North Dakota, state trial courts are called district courts. In district court, the prosecutors are called states’ attorneys. District courts are courts of general jurisdiction, which means they have the authority to hear all types of state cases including felony cases, misdemeanor cases, and cases involving juveniles. In district courts, unlike in municipal courts, a verbatim recording or transcripts of the court’s proceedings are made. The record of the district court also includes all of the documents filed with the district court, which may include documentary evidence like photographs and lab reports, together with any pleadings, which are documents prepared by the lawyers, or the rulings and the judge’s written findings, rulings, or other orders. The record is the entire universe of facts the factfinder is supposed to consider when making its decision. When a party is aggrieved by what happened in the district court, the party can generally appeal its case to an appellate court.
An APPELLATE COURT, like the North Dakota Supreme Court, is a “reviewing court.” An APPEAL is a review of a case for errors affecting the party’s substantial rights. It does not mean every error will result in the trial court decision being reversed. You might ask, “What does that mean?” It means the majority of cases are upheld on appeal. The Supreme Court only reverses cases when it determines: (1) there was an error, and (2) the error substantially affected the outcome or fairness of the proceedings below.
The Supreme Court makes its decision based upon only the record of the proceedings below (no new evidence is accepted – no witnesses testify, no new documents or other evidence is accepted) and its standard of review. The standard of review is the framework the Court uses to determine whether an error was made. Think of the standard of review like a filter, or “rose colored glasses.” The standard of review determines how much deference the Court will give to the trial court’s factual findings or legal decisions. The standard depends heavily upon what type of complaint or error is claimed to have happened at the trial level. As a general rule, factual issues are reviewed under the “clearly erroneous” standard; purely legal issues (e.g., the interpretation of a statute) are fully reviewed without regard to the district court’s decision (we call this review de novo); and discretionary issues are reviewed under the abuse-of-discretion standard. For example, if a party claims the judge made an erroneous decision to let in inadmissible hearsay evidence over an objection and that evidence led to a conviction, the Supreme Court would review that evidentiary issue under the “abuse-of-discretion” standard because judges are given wide discretion to determine whether particular evidence is admissible. That is, the Supreme Court would affirm the decision to admit that evidence, even if that decision was technically wrong, unless the Supreme Court decided the trial judge abused his discretion in admitting the evidence. The Supreme Court described the importance of the standard of review in the following passage:
The standard of review most often determines the outcome of the appeal. Trial judges rarely have abused their discretion. Findings of fact usually aren't clearly erroneous. Most reversals are on questions of law, which are reviewed de novo [review of the decision without regard to the district court’s legal analysis].
Clearly, the best type of issue is one reviewed under the de novo standard. De novo reviews are usually reserved for pure questions of law or constitutional challenges. Despite the fact that the best issues on appeal are usually legal ones, the most common appellate themes I hear from clients are factual complaints like, “if the jury knew this, they would have decided differently;” “my attorney didn’t do this for me, which is why I was convicted;” or “the court didn’t agree with my side, and that’s just not fair.” I am not saying those issues are unimportant. They just are not as likely to succeed because the applicable standard of review.
Now that we know a little about the North Dakota state court system structure, let’s talk about how a person starts an appeal. To start an appeal, all a party has to do is prepare and file three documents: the Notice of Appeal, an Order for Transcripts, and proof of service on all interested parties. In civil cases, the party may also have to pay a filing fee. The NOTICE OF APPEAL is a simple, one-page document describing the parties to the appeal, designating the judgment or order being appealed, naming the court to which the appeal is taken, and in a civil or post-conviction relief case, include a preliminary statement of the issues. The Notice of Appeal is filed with the North Dakota Supreme Court. In criminal cases, the notice of appeal must be filed within 30 DAYS of the entry of judgment or order. In a civil or post-conviction relief case, the Notice of Appeal must be filed within 60 days from the service of the notice of entry of judgment or order.
Second, the appealing party, called the Appellant, is required to order the trial court’s record. To do so, the Appellant must file an ORDER FOR TRANSCRIPT. The Order for Transcript is a short document requesting the preparation of written transcripts for all hearings that are going to be relevant to determine the issues raised on appeal. The Appellant usually has to pay for those transcripts before the Court Reporter will prepare them.
Unfortunately, the appellate process is not a speedy one. From the date of the filing of the notice of appeal, your case will likely take approximately nine to twelve months to decide. There are circumstances where a result is given sooner or later than that time frame, but the average is nine to twelve months, depending when the notice of appeal is filed.
There are four stages in the appellate process: (1) the compilation of the record; (2) appellate briefing; (3) oral argument; and (4) opinion drafting. Each stage will be discussed in more detail below.
First, the district court will start compiling the “record” to send to the Supreme Court. The “record” consists of the original papers and exhibits filed with the clerk of district court, the transcripts, and a certified copy of the docket entries prepared by the clerk of district court. Once the record has been compiled, the case will be sent to the Clerk of the Supreme Court to “docket the appeal.” It will take about two months before the Supreme Court has the complete “record on appeal.” The court reporter has 50 days to prepare the transcripts unless the reporter obtains an extension of time. Any extension of time to complete the transcripts would result in me having a later date to submit the appellant’s brief.
Upon the filing of the notice of appeal, the district court automatically begins compiling the record so it can be sent to the Supreme Court. I monitor the record to make sure everything that should be reviewed is in the record.
2. Appellate Briefing
After the parties receive and review the record, the lawyers begin researching and writing the briefs. Briefs are lengthy written documents submitted to the Supreme Court before oral argument. The briefs outline the “issues” to be decided on appeal, the applicable law, and the argument why the Court should do what we are asking them to do. Typically, there are three briefs filed with the Supreme Court: (1) the Appellant’s Principal Brief, authored by the attorney for the appealing party; (2) the Appellee’s Brief, authored by the non-appealing party (the State in most criminal cases); and (3) the Appellant’s Reply Brief, which is the Appellant’s response to issues raised in the Appellee’s Brief.
In terms of a timeline, the briefing process takes about three months. The Appellant has 40 days to prepare the Appellant’s Principal Brief after the transcript is filed unless the Court grants an extension of time to file the transcript or the brief. Once the Appellant’s Principal Brief is served and filed, the Appellee has 30 days to file the Appellee’s Brief. After the service and filing of the Appellee’s Brief, the Appellant has 14 days to prepare, file and serve its Reply Brief.
Legal research and brief writing is by far the most time-consuming part of an appeal. A good brief may take 40-60 hours to prepare. Most lawyers and judges consider the written brief the most important part of an appeal. Simply put, oral argument is no substitute for a good brief. The brief gives the justices a preview of the argument and helps frame the issues for them. It also guides them in the appropriate legal analysis.
3. Oral Argument
Third, the Supreme Court Clerk’s office will contact the lawyers during the briefing process to schedule oral argument in your case. Oral argument is an opportunity for the lawyers to argue the case in person to the five Supreme Court justices. Oral argument is usually scheduled a few weeks after the last brief is due. This is also the only opportunity the Court has to ask the lawyers questions about the case. Accordingly, the justices often interrupt attorneys many times during oral argument to ask questions. Oral argument is not so much of a speech as a question-and-answer session with the judges. The Appellant’s attorney will argue first. The Appellee will argue its case, and then the Appellant’s attorney then has an opportunity to argue again in rebuttal. The Appellant is allotted up to thirty (30) minutes to argue the case. The Appellee has twenty (20) minutes to argue its side. The Court only hears arguments in the months of September to June. Usually, the only people present at oral argument include a bailiff, the attorneys, the clerk of court, a judicial law clerk, and the five Supreme Court justices. The parties may appear (so long as they are not in custody), but are not required to appear. The parties do not have a right to speak at to the Court at oral argument.
4. Opinion, Judgment, and Mandate
After oral argument, the Supreme Court prepares a written Opinion. Typically, one justice will write the opinion for the Court and all justices sign it. In a rare percentage of cases, one or two justices disagree with the rest of the Court and write separately on the case. This is called a Dissent (where the justice disagrees with the majority) or Concurrence (where the justice agrees with some or all of the majority opinion, but wants to write separately to explain that justice’s reasoning). Finally, there is a process under which the Court may write a “per curiam” opinion. A per curiam opinion is one without a singular author. It is a product of the Court as a whole. This most frequently happens when the Court summarily affirms a conviction because they deem the case not worthy of writing a full opinion. This happens in some criminal cases where the Court decides no new or novel issues are raised or they conclude the appeal is essentially frivolous because there were no substantial errors made at the trial level.
The opinion drafting process is very secretive until the final decision is publicly released. The Court meets in a private conference right after oral argument to begin deciding the case. A justice will be assigned to start drafting the decision. Once a decision is drafted, it is circulated amongst the justices and their law clerks. The opinion will likely go through several revisions before it is submitted for “case conference.” “Case conference” is where the justices decide whether or not they are ready to sign an opinion. If they are not, the case will be held over until the next case conference, which may be as much as a month later. The Court has an unwritten goal of publishing written opinions no later than 70-90 days after oral argument, and releasing summary affirmances around 30-40 days after argument. Again, however, there are instances where it has taken much, much longer to issue an opinion. This is especially true where the justices do not agree and there are separate opinions filed. With the opinion, the Court will issue its Judgment, which will either Affirm (let the district court’s decision stand), Reverse (decide differently), or Remand (send back down to the district court) the district court decision.
Once an opinion is published, the parties have the right to file a Petition for Rehearing with the Supreme Court if the party believes the opinion is factually or legally incorrect. The Petition must particularly state each point of law or fact the party believes the Court overlooked or misapprehended. The parties have 14 days from the entry of the judgment to file a petition for rehearing. The parties do not get to argue the case again. A petition for rehearing is typically decided on brief. Rehearing petitions are very rarely granted.
Finally, 21 days after the entry of judgment unless a petition for rehearing is filed, the Mandate is issued. The Mandate is a copy of the final judgment of the Supreme Court, together with the Court’s opinion. It is sent to the District Court signaling the final disposition of the appeal.
If you or someone you know has a criminal appellate issue, keep in mind that the deadlines are incredibly short and if missed can have permanent and irreversible consequences. Contact Nick Thornton at Fremstad Law today. He can be reached at 701-478-7620 or by email at email@example.com.
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