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Changing how state appeals are started

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For the first time in Indiana’s history, lawyers and litigants will no longer be able to file appeals the way it has typically been done.

A new Indiana Supreme Court rule amendment that took effect Jan. 1, 2012, requires all appeal notices be filed with the Indiana Appellate Clerk’s Office in Indianapolis – instead of the local jurisdiction – within 30 days of a final judgment.

appeals Case manager Lue Hilliard processes appellate documents at the Indiana Appellate Clerk’s Office, stamping the papers to note they’ve been filed.. (IBJ Photo/ Perry Reichanadter)

While some questions remain about how the new process will play out, the legal community does have a two-year grace period before parties lose the right to appeal by not filing the documentation in the correct place.

“From a foundational level, this is the biggest change we’ve ever seen on how the appeals process gets started,” said Indianapolis attorney Maggie Smith, immediate past chair of the Indiana State Bar Association’s Appellate Practice Section and member of the Indiana Supreme Court’s Committee on Rules of Practice and Procedure. “We’re at a point we haven’t seen before, and there’s some open questions about how this will all work.”

The Indiana Supreme Court in September issued an order amending Indiana Appellate Procedure Rule 9 on the filing of a notice of appeal. Historically, attorneys would file a brief notice of appeal form in the local jurisdiction where a final judgment was issued and serve notice on the appellate clerk’s office to start the process.

In studying this rule change, Maggie Smith said some significant problems were discovered. Although the existing rules said a party was supposed to file in the trial court and serve a copy on the appellate court to allow for monitoring of that case to begin, it wasn’t working that way in practice. In about 30 percent of cases, the appellant wasn’t serving the Court of Appeals notice of the appeal, even though the other parties and trial court were already sending the case records to the appellate level.

It was also discovered that some trial courts in Indiana were denying a party’s notice of appeal or dismissing the appeal outright when they didn’t have that authority, Maggie Smith said. The ISBA Appellate Practice Section reported this was not an uncommon practice, she added.

“We (on the Rules Committee) receive complaints about how certain rules are applied, so we have to sit down and decide if this is an issue where a rule is insufficient or it’s just not being followed,” she said. “Most rank and file of the bar fall into the category of saying the rule is sufficient, but it’s just not being followed.”

In addition to changing where the notice is filed, the revised rule requires that the notice of appeal contain information such as the names of the parties and counsel; trial information; the date and title of the judgment or order appealed; the date on which any motion to correct error was denied or deemed denied; the basis for appellate jurisdiction; preparation of the clerk’s record; transcript preparation; whether all or any portion of the court records were sealed or excluded from public access by court order; and whether the appellant is willing to participate in alternative dispute resolution.

Unless the notice of appeal is timely filed, the right to appeal will be forfeited. A two–year grace period is in effect until Jan. 1, 2014, for an appellant that timely files the appeal notice with the trial court clerk or administrative agency instead of the state appellate clerk’s office as required.

Appellate Clerk Kevin Smith says these new notices of appeal won’t be subject to the notice of defect process, and they’ll be forwarded to the Court of Appeals without review by the clerk’s office. He said about 15 to 20 percent of defects in the past have dealt with appellant case summaries from attorneys and pro se litigants.

“Attorneys shouldn’t be thinking we’re going to be operating as gatekeepers to catch non-substantive defects, as we have before,” he said. “We think this will free up our case managers to file more paper because they won’t be reviewing mistakes.”

But questions remain about whether the grace period extends to the other rule revisions, such as the content of the notice. Some wonder if the appeal is forfeited if an attorney or party files in the correct place, but doesn’t include the correct materials.

Big firm attorneys say they’re changing the language and process used for how they file appeals to comply with the new party listings that now must be included. Smaller firms and solo practitioners who don’t file as many appeals say they’re more concerned about the amount of work that might go into preparing an appellate notice within those 30 days rather than the additional months they’d have to prepare them under the former rules.

“Most significant isn’t necessarily where one files, but the nature of the appeal,” said Bloomington appellate attorney Karen Wyle. “This new process has engulfed and replaced the appellate case summary and makes it much more complicated.”

Wyle said the process has traditionally been equivalent to telling the trial court clerk one’s appealing the case, so the county will need to start preparing the docket and record. She’s walked people through the process pro se before, but now Wyle worries this change could limit the number of self-represented litigants.

“This makes me nervous,” she said. “This means you have to know your way around to get the right documents and be able to know what they mean. It’s more work sooner, especially when someone calls me at the last-minute with only a couple days left before the deadline.”

To comply with a 30-day deadline, Wyle predicts some attorneys might have to take an appeal and then rework any retainer fee agreement so that they have the ability to later withdraw if they learn the case might not be a viable appeal.

Addressing some of the concerns, Maggie Smith said while the notice may look like it is more work up front, she said it is about 20 percent of what had been required before.

“That’s the tension between making rule changes. You can sit back here and theoretically say, if you’re an appellate attorney, you need to know the rules governing the practice, just like if you’re going into a local court before you go into the court.

“Attorneys don’t operate that way, and they go off past experiences. That’s likely no longer good (enough) for what the courts require. But if someone doesn’t open the rule book or hasn’t attended CLE in four years, those practitioners are going to find themselves in trouble on several fronts. More people will probably learn about this by doing it wrong, by getting a letter from the Court of Appeals. At least for the first two years, you won’t have the appeal dismissed,” she said.

The ISBA Appellate Practice Section plans to travel statewide during the next year offering free CLE to anyone who wants to know more about the rule change. Maggie Smith also said the ISBA plans to hold educational sessions for court reporters, court clerks and trial judges to learn more about the changes.•

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  • grace period
    Hi, Karen. The quote above was talking about where you file. You're 100% correct that, as written, the grace period does not apply to content defects. That remains to be an issue for the Court of Appeals.

    In the past, non-substantive defects in a Notice of Appeal were insufficient to dismiss an appeal. The big and unresolved question is whether the new content required in the Notice of Appeal will be considered non-substantive.

    I think it is reasonable to argue that what was required in the old Notice of Appeal is the substantive part, and the new content required as a result of the Case Summary being abolished is not substantive since it wasn't required before. But that's just my opinion . . .
  • [whoops - grammar correction]
    (That should have read: "... if the content ... fails to conform")
  • Will grace period apply to contents of Notice of Appeal?
    I hope Maggie Smith is correct that appeals will not be dismissed within the two-year grace period if the contents -- rather than the place of filing -- fails to conform to the new rules. The grace period applies explicitly to filing in the wrong place, and says nothing about filing the obsolete short form of Notice.

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    1. This guy sounds like the classic molester/manipulator.

    2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

    3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

    4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

    5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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