In Part One of this series, we flagged some traps to keep on the lookout for when filing your notice of appeal. Hopefully, the tips in Part One are all you’ll ever need. But, because it happens to attorneys and pro se parties all the time, here are some suggestions if you find yourself faced with having potentially missed the deadline for filing the NOA.
If you find yourself having been tripped up by one of the snares listed in Part One, the available recourse is affected by how many days late the filing will be, the reason why the filing is late, and what type of case is involved. If the error ends up being material, it must be disclosed to the client. Not only is this an ethical requirement, but it can go a long way toward getting your client on your side in the event of a drawn-out appeal arguing about jurisdiction (whether the court should hear the case because of an untimely filing).
The first thing to ask is how late is the filing? For both civil and criminal matters under C.A.R. 4, the appellate court is expressly authorized to extend the time for filing the notice of appeal for a period not to exceed 35 days from the day the notice of appeal is otherwise due. This time, coupled with the 49 days already provided, effectively gives a party an 84-day jurisdictional window in which to file. From a technical perspective, the rules are worded slightly differently for civil cases than for criminal, but the effect is generally the same.
Both rules state that the extension may be provided upon a showing of “excusable neglect.” Most situations that fall into the excusable neglect camp involve unforeseen occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations. It is not simply that the attorney miscalculated the deadline or forgot to calendar the date.
If you find yourself in the unfortunate window of 84+ days since judgment was final, the appeal may still be allowed depending on whether you can demonstrate good cause for an extension. Even if can, however, what happens next typically turns on whether the case is civil or criminal.
If your case is criminal, you can usually breathe a sigh of relief. For criminal matters, the appellate courts are much more willing to allow an untimely filing—even years late—primarily due to the liberty interests involved. Not only do courts allow these delays because the right to a direct appeal in a criminal matter is fundamental, but they are on solid ground in doing so under the Colorado Appellate Rules.
Civil cases present an entirely different quagmire. In contrast to criminal cases appealed under C.A.R. 4(b), the Colorado Appellate Rules do not permit an extension of time beyond that prescribed in C.A.R. 4(a): C.A.R. 26(b) specifically states that “the court may not enlarge the time for filing a notice of appeal beyond that prescribed in C.A.R. 4(a).”
But not all civil cases are governed by C.A.R. 4(a). As was mentioned in Part One, some types of cases not only carry a different jurisdictional limit (albeit typically a shorter one), they are also not specifically excluded from C.A.R. 26(b)’s enlargement of time. Accordingly, for example, appellate courts have permitted longer enlargements of time in dependency and neglect cases.
The Unique Circumstances Exception
Finally, even for civil cases governed by C.A.R. 4(a), there is one proverbial “Hail Mary”: the “unique circumstances doctrine.” This exception typically applies if the reason you made a mistake was because of something wrong or misleading on the part of the trial court—for example, if a magistrate judge told you to file your review in the district court, but really, it should have gone straight to the Court of Appeals. At least one division of the Court of Appeals has applied the exception to allow the filing of a notice of appeal in a kinship adoption proceeding governed by C.A.R. 4(a) beyond the jurisdictional deadline of C.A.R. 4(a). The case, In re C.A.B.L., presented a compelling case of termination of parental rights, raising fundamental liberty interests reminiscent of the stakes in a criminal case. These interests, along with the compelling facts in the case involving the Colorado Rules for Magistrates, seemed to sway the opinion.
But in January 2016, another division of the court of appeals refused to apply the principles in C.A.B.L. to a case involving untimely filing under C.A.R. 4(a). That case, In re Heotis, did not involve fundamental liberty interests, but did involve the same confusion around the appellate procedure after a magistrate ruling. More importantly, however, the court in the Heotis case essentially rejected the reasoning of the majority in C.A.B.L. In sum, with an apparent split of authority in the Court of Appeals, you should be wary of relying on the unique circumstances exception to permit an untimely filing in a civil case.
The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review. Missing a deadline can be detrimental for a client, and costly for the lawyer as well—it is not uncommon for the court to spell out the malpractice actions or ineffective assistance of counsel claims that are sure to be forthcoming when attorneys make mistakes in initiating the appeal. The importance of these issues cannot be understated. Careful attention to the appellate rules, and staying alert for these issues that may arise in a case, may prevent an appeal from being dismissed for lack of jurisdiction, and may just save your practice as well.
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