PROGRAMMING ADVISORY, LEGISLATIVE NEWS, AND
[Posted November 11, 2014] I’ll be away from the keyboard for the rest of the week starting on Thursday, as I’ll be attending the ABA’s appellate summit in Dallas. This is one of the few occasions in the year when I amass a substantial number of MCLE credits without having to prepare written materials. The summit is a priceless opportunity to see appellate practitioners from other states, and to learn from top-notch faculty members from across the nation.
A QUICK NOTE ON REHEARINGS
Meanwhile, the General Assembly met in special session yesterday, in part to select three new appellate jurists. The Supreme Court will need a new member to replace Chief Justice Cynthia Kinser, who’s retiring at the end of the year, while the Court of Appeals will need to replace retiring Chief Judge Walter Felton and Judge Bob Frank. Those two retirements also will be effective December 31.
Despite much negotiation, the House and Senate Republican caucuses were unable to reach a comprehensive accord, so while several new trial-court judges were elected yesterday, the appellate benches will await another special session or the regular session in January. I assume that both chambers will want to fill the slots before the calendar turns, both because it keeps the courts at full strength and because they’ll want to get this out of the way before the upcoming short session.
Finally, I’ve received two completely separate inquiries in the past two days, each containing the same misconception. Both queries relate to petitions for rehearing under Rule 5:20, which contains the following directive in paragraph (a):
Attempts to incorporate facts or arguments from the petition for appeal are prohibited.
Both of my callers felt that this meant they had to make different arguments in a petition for rehearing than had been set out in the petition for appeal. That isn’t the thrust of the sentence. It prohibits incorporation by reference, not repetition of previous arguments. If you think your petition for appeal was perfectly crafted, you don’t have to start over; you can effectively refile it, subject to the much shorter page limit, of course.
I’ve covered rehearings comprehensively in an earlier essay, so I won’t duplicate that here. But while taking a new briefing approach on rehearing might be a good tactical decision, it isn’t mandated by the rules.