Failure To Give Notice To All Parties, Including Non-appealing Parties, Results In Dismissal Of Appeal

by Gary Beaver

North Carolina Rule of Appellate Procedure 3(a) requires an appellant to serve all other parties with a notice of appeal. In case anyone thinks that it is not mandatory, the NC Court of Appeals made it clear on May 18, 2010, in Lee v. Winget Road, LLC, that it is. There were originally eight plaintiffs and eight defendants in the lawsuit until plaintiffs voluntarily dismissed two of the defendants. Subsequently, the trial court granted summary judgment to the remaining defendants. Five of the Plaintiffs filed a notice of appeal as to the remaining six defendants but, thereafter, withdrew the appeal as to one of the defendants. The appellants served the five remaining defendants but did not serve the three non-appealing plaintiffs or the two previously dismissed defendants.

Citing in support Dogwood Dev. & Mgmt. Co. LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008) and Hale v. Afro-American Int’l, 335 N.C. 231, 436 S.E.2d 588 (1993), the Lee court held that the failure to serve the notice of appeal on the three non-appealing plaintiffs or to obtain a waiver of service from them violated Rule 3(a) and that the violation was a “significant and fundamental” one and a “’gross violation’ of the [appellate] rules which ‘frustrates the adversarial process’” requiring dismissal of the appeal. The court did not reach the issue of whether failure to serve previously dismissed defendants was a similar egregious violation. Bottom line: follow the appellate rules to a “T” or run the risk of dismissal. [Note: the appellants’ brief was submitted by their counsel but not signed by him. I wonder what is up with that?]

A mom tomato and a dad tomato are walking down the street ...

Kirsten E. Small

Time to play a little "ketchup." While I have been busy vacationing and brief writing (thankfully, not at the same time), the Fourth Circuit has been busy issuing published opinions. Most of them have not been terribly noteworthy, but there are a few worth pointing out, to wit:

United States v. Richardson: Holds that AOL was not acting as a government agent when it reported (pursuant to a mandatory reporting statute) information it had acquired by use of an internally-developed, non-mandatory filtering program. The panel distinguished Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989), on the basis that Skinner involved a regulatory scheme that dictated certain procedures by the railway that were designed to preserve evidence for government use. The regulatory scheme challenged by Richardson was entirely passive ("If you find something, do please let us know") and thus did not create the kind of government involvement that sparks Fourth Amendment protections.

United States v. Joshua: Holds that a person is "in the custody of the Bureau of Prisons" for purposes of 18 U.S.C. § 4248 (authorizing indefinite civil commitment of sexually dangerous persons) only when in the BOP's legal custody. Joshua, who was convicted by a military tribunal and merely housed at a BOP facility as a "contractual boarder," was not in the BOP's legal custody and therefore not subject to civil commitment under § 4248.

In Norfolk Southern Railway v. City of Alexandria, the court held that the Interstate Commerce Commission Termination Act (ICCTA) preempted the City's attempts to regulate Norfolk Southern's transport of bulk ethanol. At least, I think that was the holding. It was kind of hard to stay awake all the way through.

Did you know there is a statute that provides a damages remedy for the wrongful conviction of an innocent person in federal court? Neither did I. The Fourth Circuit considered the application of the statute in United States v. Graham. Interesting stuff.

Supreme Court Rolls Over Myrtle Beach’s Attempt To Regulate Motorcycle Rallies By Requiring All Riders To Use Helmets And Protective Eyewear

by Stephen P. Groves, Sr.

In a unanimous opinion released today, Aakjer v. City of Myrtle Beach, the South Carolina Supreme Court struck down Myrtle Beach’s long-running attempt to curtail motorcycle rallies in the Grand Strand city. After a number of annual and/or semi-annual bike rallies reportedly “placed a heavy burden on the local medical community, police, and other emergency responders” in Myrtle Beach, the City enacted several ordinances and/or amended existing ordinances (the “Motorcycle Ordinances”) which, among other things, required “any person riding a motorcycle [to] wear a protective helmet and eyewear” (the “Helmet Ordinance”). During a subsequent rally, a number of individuals (the “Petitioners”) were cited for violation of the Helmet Ordinance.

Since a violation of the Helmet Ordinance was considered an "administrative infraction", Myrtle Beach established an administrative hearing system to hold trials on citations charging violations of various municipal ordinances, including the Helmet Ordinance. After the administrative hearing system was later repealed, Myrtle Beach then issued each of the Petitioners a Uniform Ordinance Summons requiring them to appear before a municipal court judge.

The Petitioners brought an action in the original jurisdiction of the Supreme Court seeking “a declaratory judgment finding the Helmet Ordinance and the Motorcycle Ordinances invalid and a writ of prohibition barring the municipal court from exercising jurisdiction over the alleged violations of the Helmet Ordinance.” The Supreme Court accepted the case in its original jurisdiction before any Petitioners’ charges were adjudicated.

A. Implied Preemption

The Supreme Court noted that the South Carolina Legislature had previously “addressed motorcycle helmet and eyewear requirements in S.C. Code Ann. §§ 56-5-3660 and 56-5-3670 (2009), respectively [which] generally require all riders under age [21] to wear a protective helmet and utilize protective goggles or a face shield.” On the other hand, the Supreme Court noted the “Helmet Ordinance . . . require[d] all riders, regardless of age, to wear a helmet and eyewear.” Furthermore, even though S.C. Code Ann. § 56-5-30 (2009) later “authorized local authorities to act in the field of traffic regulation if the ordinance [at issue did] not conflict with the provisions of the [South Carolina] Uniform Traffic Act”, such authorization did not save the Helmet Ordinance. The Supreme Court concluded the Helmet Ordinance was impliedly preempted by State law, noting both the important and pragmatic “need for uniformity [wa]s plainly evident in the regulation of motorcycle helmets and eyewear.” The Supreme Court further stated:

Were local authorities allowed to enforce individual helmet ordinances, riders would need to familiarize themselves with [all of] the various ordinances in advance of a trip, so as to ensure compliance. Riders opting not to wear helmets or eyewear in other areas of the state would be obliged to carry the equipment with them if they intended to pass through a [municipality] with a [local] helmet ordinance. Moreover, local authorities might enact ordinances imposing additional and even conflicting equipment requirements. Such burdens would unduly limit a citizen's freedom of movement throughout the State [of South Carolina].

B. Implied Repeal

Additionally, the Supreme Court struck down the Motorcycle Ordinances as a whole based upon the previous repeal of the ordinances establishing the so-called “administrative hearing system”. The Supreme Court concluded that since the sole enforcement of the Motorcycle Ordinances, as an “administrative infraction”, was so tied to and intertwined with the administrative hearing system, its abolition impliedly repealed the Motorcycle Ordinances themselves.

Scalia on Kagan: You got it half right, Your Honor.

Kirsten E. Small

This item is getting a bit long in the tooth, but I think it's still worth comment. On May 26, Justice Scalia spoke at an event in D.C. and commented that he is "pleased" that Elena Kagan is not a member of the judiciary; he basically praised President Obama for taking a chance on a non-judge nominee.

I'm with Scalia to a point. It matters not one whit to me that Ms. Kagan has never been a judge. She's been a law clerk (Judge Mikva, Justice Marshall), an academic (Chicago, Harvard), a policy wonk (Clinton administration), an administrator (Dean of Harvard Law), and the nations chief appellate lawyer (Solicitor General). All of these things make her thoroughly qualified for the essential work of a Supreme Court justice: research, analysis (of law and policy), debate and defense of positions, and coalition building.

I think Justice Scalia got it wrong, however, when he favorably compared Ms. Kagan's route to nomination to the civil law system in Europe, where "[p]eople who have never been in private practice ... [or] been on the other side of a case are judges." Private practice--particularly litigation--is precisely the experience Ms. Kagan--and every other justice except Justice Sotomayor--lacks.


What bothers me about Ms. Kagan's nomination is that she has never been "on the other side of the case." There isn't much information on her brief stint in private practice, but at the very least, it appears she spent little or no time inside a courtroom. Certainly she never tried a case.

The Supreme Court deals with a lot of big, important questions, but it also deals with the nitty-gritty of litigation--witness yesterday's decision in Krupski v. Costa Crociere, construing Rule 15(c). Theory will only get you so far in these cases; equally necessary is a familiarity with the actual, in-the-trenches practice of law. Currently, the only justice who has such experience is Justice Sotomayor.

As litigation becomes more and more complex, it becomes more important that appellate judges, and the Supreme Court in particular, are able to understand the practical consequences of their decisions for lawyers, their clients, and trial court judges. The current, all-but-mandatory path to a Supreme Court seat eschews litigation experience in favor of academic credentials, creating a Court so high up in the ivory tower that the realities of the practice of law seem tiny and insignificant.

A Pinkerton instruction is not a constructive amendment, says the Fourth Circuit

Kirsten E. Small

The Fourth Circuit issued two published opinions today. In United States v. Ashley, the Court rejected Ashley's various challenges to his convictions for witness tampering, retaliation against an informant, and possessing a weapon in furtherance of a crime of violence. Of particular note is the court's holding--joining every other circuit to have considered the issue--that "a district court does not constructively amend an indictment by giving a Pinkerton instruction when Pinkerton liability has not been charged by the grand jury." Slip op. at 13.

In United States v. White, the court addressed the defendant's argument that his conviction under 18 U.S.C. § 922(g) for possession of a firearm after a misdemeanor domestic violence was invalid because his prior offense--for assault and battery of a family member--did not involve "physical force." See 18 U.S.C. § 921(a)(33)(A) (defining "misdemeanor crime of domestic violence" as requring the use of physical force). In support of White's conviction, the government argued that any intentional physical contact constitutes "physical force" within the meaning of the statute. This is the view of the First, Eighth, and Eleventh Circuits.

To make a long opinion short, the Fourth Circuit disagreed, joining the Seventh, Ninth, and Tenth Circuits in holding that common law battery is not "physical force." The court concluded that the outcome was determined by Johnson v. United States, 130 S. Ct. 1265 (2010), in which the Supreme Court held that "physical force" (there, under the Armed Career Criminal Act) means "violent force ... capable of causing physical pain or injury" and therefore excluded common law battery which may be accomplished by even the slightest offensive touching.