COURT OF APPEALS DIVISION ONE POLICIES
Division One of the Court of Appeals has adopted policies affecting procedural matters not governed by rules of court. Many of these policies are explained here to assist the public and members of the bar.
I. EXTENSIONS OF TIME
A. Civil appeals
In civil cases, extensions are not ordinarily granted; instead, they are granted only upon a showing of good cause. The court's official policy states: "[G]ood cause will include any event which counsel could not reasonably have been expected to anticipate. Examples of reasons constituting good cause include: illness, emergencies and substitution of counsel. In addition, if the parties are engaged in bona fide settlement negotiations, an extension may also be granted. A scheduled vacation may be considered good cause for a first-time extension." However, the court's policy also states: "The Court recognizes that counsel's work load may occasionally create hardships which make the timely filing of briefs difficult. Any party may request, for this reason, a first-time extension up to thirty days from the due date of the brief. If such an extension is granted, the Court will look with extreme disfavor upon any subsequent request for an extension."
(Emphasis in original).
Motions for such extensions should be made as motions for procedural orders. See Rule 6(b), Ariz. R. Civ. App. P. If a requested extension is denied, the court will order that the brief be filed within ten days, and will direct that if the brief is the appellant's and is not filed, the appeal will be dismissed, or if the appellee's brief is not filed, the appeal will be submitted on the record and on the opening brief. Late briefs are also subject to sanctions under Rule 25, Ariz. R. Civ. App. P.
B. Criminal appeals
Either party may request a single 28 day extension for filing a brief by telephone to a staff attorney designated to handle such requests. No reason need be given for the extension.
Other extensions are not granted absent extraordinary circumstances, and when they are granted, may be accompanied by an order directing counsel who fails to file a timely brief to appear to show cause why sanctions should not be imposed.
II. SPECIAL ACTIONS
Special action documents may be rejected for filing by the office of the clerk if they do not comply with the rules or if tendered without a required filing fee. The clerk's office inspects these documents for compliance with the applicable rules.
The Court of Appeals will not grant a stay unless the superior court has already heard and denied a stay request. Accordingly, requests for stays should not be presented for the first time in the appellate court.
The filing of a written stay request is not enough to obtain a stay or a stay hearing. The petitioner must ask the clerk's office for the name of the judge assigned to hear stay requests, then contact that judge's chambers and arrange for a stay hearing. Unless that is done, the court will not act upon a written stay request.
A petitioner seeking a stay should consider whether the date scheduled for oral argument or conference on the petition itself is soon enough to obtain the relief needed. In other words, a petitioner seeking a stay should be prepared to show that a stay must be issued prior to the date for decision on the petition because of what will happen in the interim.
Special action petitions are screened when filed. If the panel finds a petition lacks merit on its face, the petition will be summarily dismissed without awaiting a response.
III. CRIMINAL APPEALS
Orders granting stays of appeals pending the resolution of proceedings under Rule 32, Arizona Rules of Criminal Procedure, are no longer routinely granted.
B. Voluntary dismissals
An appellant's motion to dismiss his or her appeal, when made by counsel, must be accompanied by appropriate evidence that the appellant has been advised of the consequences of this action.
IV. CIVIL DOCKETING STATEMENT
One of the court's uses of the docketing statement is to detect jurisdictional defects. Accordingly, questions regarding the entry and nature of the judgment and of the parties and claims involved in the case should be answered with care and completeness.
V. ORAL ARGUMENT
The court's calendars are generally set for Tuesdays and Wednesdays. In weeks when Monday is a holiday, Tuesday calendars may move to Thursday.
The court allots oral argument time as follows:
Civil cases: 20 minutes per side
Rule 29 (accelerated) civil cases: 30 minutes per side
Workers' compensation cases: 20 minutes per side (cases argued on or after 11-1-2007)
Criminal cases: 20 minutes per side
Special actions: 10 to 20 minutes per side as directed by panel order
Juvenile cases: 20 minutes per side
Unemployment cases: 20 minutes per side
Tax cases: 20 minutes per side
Time is allocated "per side." Thus, when there are multiple appellants in a civil case, they must divide among themselves the time allotted to the appellants' side Motions to continue oral argument from the scheduled date and time are generally granted only for true emergencies. Conflicts in scheduling with discovery matters or superior court proceedings are ordinarily not considered to be emergencies. Stipulations for continuances are not necessarily accepted unless accompanied by a showing of sufficient cause. Motions for continuance should be filed as motions for procedural order. See Rule 6(b), Ariz. R. Civ.
The court makes an unofficial digital audio recording of each oral argument for the convenience of the court. Each such electronic recording is maintained in the clerk's office until the case to which it relates has been mandated or otherwise closed, after which the recording is deleted. These recordings are not created as, and do not constitute, official records of court proceedings.
The panel of judges has read the briefs and has conferred about the case prior to oral argument. In almost all cases, the panel has also reviewed a bench memorandum, proposed written decision, or both. Accordingly, advocates should not spend their time repeating the facts of the case, and instead should proceed to directly address the questions presented.
VI. ACCELERATED APPEALS
Accelerated disposition of a civil appeal may be obtained by stipulation or motion pursuant to Rule 29, Arizona Rules of Civil Appellaten Procedure. Under the rule, the parties may seek the advantages of: (1) shorter briefs; (2) priority in obtaining consideration and disposition of the appeal. Unlike a prior version of this procedure, Rule 29 allows the parties to petition for review to the Arizona Supreme Court from the decision of the court of appeals.
VII. MOTIONS FOR RECONSIDERATION
By rule, responses to motions for reconsideration are not to be filed unless requested by the court. Rule 22(b), Ariz. R. Civ. App. P.
Motions for reconsideration that merely reurge the arguments made in the briefs or that raise a new issue are very unlikely to succeed. Rule 22 provides that such motions "shall be directed solely to discussion of those specific points or matters in which it is claimed the appellate court erred in determination of facts or
VIII. REQUESTS FOR PUBLICATION
The Court treats motions or requests for publication of a memorandum decision or an opinion as motions for reconsideration. Such requests may be captioned as motions for reconsideration. ARCAP 22 applies, and therefore such motions must be filed within 15 days of the Court’s decision.
IX. POST-CONFERENCE CASE STATUS INQUIRY
After a case has been taken under advisement, a party/attorney may inquire about the status. All inquiries must be directed to the office of Clerk of the Court. The Clerk's office response will confirm, if appropriate, that the case is pending and being decided in the normal course of business. The Judges on the panel will be advised that an inquiry regarding the status of the appeal has been received by the Clerk's Office, but the judges will not be given the identity of the attorney or party making the inquiry.
X. JUVENILE CASE NOTICES OF APPEAL AND RULE 104(B)
Notices of appeal filed by counsel on behalf of parties in Juvenile cases must contain certain mandatory language prescribed by Rule 104(B), Arizona Rules of Procedure for the Juvenile Court: “By signing and filing this notice of appeal, undersigned counsel avows that [he/she] communicated with the client after entry of the judgment being appealed, discussed the merits of the appeal and obtained authorization from the client to file this notice of appeal.” When counsel in a juvenile matter files a notice of appeal that does not contain this required statement, and this notice of appeal is received by Division One from the Clerk of the Superior Court pursuant to Rule 104(C)(1) on or after April 1, 2008, the appeal will be identified and numbered in Division One’s system and promptly closed for non-compliance with Rule 104(B).
XI. NOTICE CONCERNING PUBLICATION OF BRIEFS
Parties should be aware that, except for briefs in juvenile court cases and mental health cases, most briefs filed with the court are sent to Thomson-Reuters for scanning and inclusion in its Westlaw Arizona brief bank service. Westlaw subscribers have access to these briefs via the internet, and any member of the public may read such briefs in the office of the clerk of court upon request. In light of the public nature of appellate briefs, parties should AVOID using the full name of any crime victim in any brief filed with the court. In ANY case in which counsel or a party prefer that a brief not be included in the brief bank service, they must contact:
Thomson-Reuters Briefs Team
XII. DOCUMENTS SUBMITTED IN A FOREIGN LANGUAGE
The court will accept documents in a foreign language if accompanied with an English translation.
Xlll. Sealed Records/Cases/Decisions
If the record on appeal is transferred to this court under seal, it shall remain closed to the public while the appeal is pending in this court. However, any document(s) filed by either party in the Court of Appeals (e.g., briefs, appendices, motions) are considered to be public record. Documents filed with the Court of Appeals will be filed under seal only if the Court of Appeals has granted a separate motion requesting that the document(s) be sealed. Additionally, please be advised that decisions issued by this court in any matter are a matter of public record.