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Cite as 2017 Ark. 353 SUPREME COURT OF ARKANSAS IN RE MANDATORY ELECTRONIC Opinion Delivered December 7, 2017 FILING OF APPELLATE BRIEFS AND ELECTRONIC SERVICE OF COURT ORDERS AND OPINIONS PER CURIAM On September 15, 2016, we adopted mandatory electronic filing of motions, petitions, and responses thereto following the successful implementation of an appellate- motion electronic-filing pilot project. See In re Appellate-Motion Electronic-Filing Pilot Project and Appellate-Brief Electronic Filing Pilot Project, 2016 Ark. 314 (per curiam). At that time, we also announced the implementation of an appellate-brief electronic-filing pilot project as a second step toward comprehensive mandatory electronic filing in the appellate courts.” Id. at 1. Pursuant to that pilot project, we have permitted, but not required, parties to file appellate briefs electronically via the eFlex electronic-filing system. Today, we announce that electronic filing will be mandatory for briefs filed by represented parties beginning January 1, 2018, and we amend Rules 4-2(a)(1), 4-3, 4-4, and 6-9 of the Rules of the Supreme Court and Court of Appeals to incorporate the mandatory electronic-filing requirements for briefs as set forth in our pilot-project per curiam. See id. at 23. We note one change, however, as the court finds it necessary to increase to six the number of paper copies of each brief that parties must provide the appellate courts.
Today, we also announce that the clerks office will no longer mail hard copies of the orders or opinions of this court or the court of appeals to represented parties. Instead, counsel will receive service of the courts orders and opinions electronically via eFlexs automated notification system as set forth in section 7 of Administrative Order Number 21, and such service shall satisfy the service requirements of Supreme Court Rule 5-2(a). The clerk shall continue to furnish self-represented litigants with paper copies of the courts orders and opinions. Attorneys who have not yet obtained an eFlex electronic-filing account from the Administrative Office of the Courts are strongly encouraged to do so by following the instructions available at https://courts.arkansas.gov/administration/acap/efile/efile- instructions. Attorneys should be mindful that, while electronic filing is mandatory for briefs and motions, conventional filing of case-initiating documents, petitions for rehearing, and petitions for review is still required. We amend and republish Supreme Court Rules 4-2(a)(1), 4-3, 4-4, and 6-9 as set forth below, and the amendments shall be effective January 1, 2018. At the end of this order, the changes are set out in line-in, line-out fashion (new material is underlined; deleted material is lined-through). 2
Rule 4-2. Contents of Briefs. (a) Contents. The contents of the brief shall be in the following order: (1) Table of contents. Each brief must include a table of contents. It should reference the page number for, and include hyperlinks to, the beginning of each of the major sections identified in Rule 4-2(a)(2)-(8). The table must also list the contents of the abstract and the addendum. The name of each witness, and the abstract page number on which his or her testimony begins, must be included. The table must identify each document in the addendum, list the addendum page number where the document begins, and list the corresponding record page number. . . . . Rule 4-3. Briefs in criminal cases. (a) Electronic Filing. Briefs shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties filing any brief electronically shall provide six paper copies of the brief to the Clerk within five days of the filing date. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties conventionally filing shall provide six paper copies of the brief at the time of filing. (b)Appellants Brief. The appellant shall have 40 days from the date the transcript is lodged to file the appellants brief with the Clerk. The appellant shall furnish evidence of service upon opposing counsel and the circuit court, except as otherwise provided in (f). As provided in (a), the appellant shall provide paper copies of the brief within five days of the filing date. (c) Appellee's Brief. The appellee shall have 30 days from the filing of the appellant's brief to file copies the appellees brief with the Clerk and such further abstract and Addendum as may be necessary to a fair determination of the case. Proof of service upon opposing counsel and the circuit court is required, except as otherwise provided in (f). As provided in (a), the appellee shall provide paper copies of the brief within five days of the filing date. (d) Reply Brief. The appellant shall have 15 days from the date that the appellee's brief is filed to file the reply brief and furnish evidence of service upon the opposing counsel and the circuit court. As provided in (a), the appellant shall provide paper copies of the brief within five days of the filing date. . . . . 3
(l) Continuances and Extensions of Time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral or electronically filed request. If such an extension is granted, no further extension shall be granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause. (2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (l)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk. Rule 4-4. Filing and service of briefs in civil cases. (a) Electronic Filing. Briefs shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties filing electronically shall provide six paper copies of the brief to the Clerk within five days of the filing date. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the brief at the time of filing. (b) Appellant's Brief In all civil cases the appellant shall, within 40 days of lodging the record, file the appellant's brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court. Each copy of the appellant's brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript. When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and six unredacted copies of the appellant's brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (c) Appellee's Brief Cross-Appellant's Brief. The appellee shall file the appellee's brief, and of any further abstract or addendum thought necessary, within 30 days after the appellant's brief is filed, and furnish evidence of service upon opposing counsel and the circuit court. If the appellee's brief has a supplemental abstract or addendum, it shall be compiled in accordance with Rule 4-2 and included in or with each copy of the brief. This rule shall 4
apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 30 pages. When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and six unredacted copies of the appellant's brief or cross-appellant's brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (d) Reply Brief Cross-Appellant's Reply Brief. The appellant may file a reply brief within fifteen days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the circuit court. This rule shall apply to the cross-appellant's reply brief except it must be filed within fifteen days after the cross-appellee's brief is filed. When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and six unredacted copies of the reply brief or cross-appellant's reply brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (e) Evidence of Service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the circuit court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the circuit court to whom copies of the brief have been mailed or delivered. (f) Submission. The case shall be subject to call on the next Thursday (in the Supreme Court) or Wednesday (in the Court of Appeals) after the expiration of the time allowed for filing the reply brief of the appellant or the cross-appellant. After the case has been submitted to the court for decision, the court will not consider motions to dismiss because of settlement or notice of settlement. (g) Continuances and Extensions of Time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral or electronically filed request. The party requesting a Clerk's extension must confirm the extension by sending a letter immediately to the Clerk or the deputy clerk with a copy to all counsel of record and any pro se party. If such an extension is granted, no further extension shall be granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause. 5
(2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (g)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk. Rule 6-9. Rule for Appeals in Dependency-Neglect Cases . . . . (e) Petition on Appeal. (1) Within thirty 30 days after transmission of the record to the Clerk of the Supreme Court, the appellant shall file a Petition on Appeal (Form 2). Petitions on appeal shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties electronically filing shall provide six paper copies of their petition to the Clerk within five days from the date of filing. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the petition at the time of filing. (2) The petition shall not exceed twenty-five pages, excluding the abstract and addendum, and shall include: (A) A statement of the nature of the case and the relief sought; (B) A concise statement of the material facts as they relate to the issues presented in the petition on appeal that is sufficient to enable the appellate court to understand the nature of the case, the general fact situation, and the action taken by the circuit court. This statement must also summarize the circuit court order appealed from and recite the date the order was entered. (References to pages in the abstract and addendum are required.); (C) An abstract or abridgment of the transcript that consists of an impartial condensation of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the court for decision. In the abstracting of testimony, the first person (i.e., I”) rather than the third person (i.e., He, She”) shall be used. Not more than one page of the transcript shall in any instance be abstracted without a page reference to the record. (D) A concise statement of the legal issues presented for appeal, including a statement of how the issues arose; and a discussion of the legal authority on which the party is relying with citation to supporting statutes, case law, or other legal authority for the issues raised. Citations of decisions of the court which are officially reported must be from the official 6
reports. All citations of decisions of any court must state the style of the case and the book and page in which the case is found. If the case is also reported by one or more unofficial publishers, these should also be cited, if possible. (E) Following the signature and certificate of service, the appellant's petition shall contain an addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, or letter opinion from which the appeal is taken, a copy of the notice of appeal, and any other relevant pleadings, documents, or exhibits essential to an understanding of the case, which may include, but are not limited to, affidavits, petitions, case plan, court reports, court orders, or other exhibits entered into the record during the hearing from which the appeal arose, and all orders entered in the case prior to the order on appeal. The addendum shall include an index of its contents and shall also designate where any item appearing in the addendum can be found in the record. (f) Response to Petition on Appeal or Cross-Appeal. (1) Within twenty (20) days after filing of the appellant's petition on appeal, any appellee may file a response to the petition on appeal or cross-appeal (Form 3). Responses to petitions on appeal shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties filing electronically shall provide six paper copies of the petition to the Clerk within five days of the filing date. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the petition at the time of filing. (2) The response shall not exceed twenty-five pages, excluding the abstract and addendum and shall include: (A) A concise statement of the material facts as they relate to the issues presented by the appellant, as well as the issues, if any, being raised by the appellee on cross-appeal, that is sufficient to enable the appellate court to understand the nature of the case, the general fact situation, and the action taken by the circuit court. (References to pages in the abstract and addendum are required.) (B) A concise response to the legal issues presented on appeal and cross-appeal, if any, including a statement of how the issue arose; a discussion of the legal authority on which the party is relying with citation to supporting statutes, case law, or other legal authority for the issues raised. Citations of decisions of the court which are officially reported must be from the official reports. All citations of decisions of any court must state the style of 7
the case and the book and page in which the case is found. If the case is also reported by one or more unofficial publishers, these should also be cited, if possible. (C) If the appellee considers the appellant's abstract or addendum to be defective or incomplete, the appellee may provide a supplemental abstract or addendum. The appellee's addendum shall only include an item which the appellant's addendum fails to include. (3) The appellant will have ten (10) days after appellee's response or petition on cross appeal is filed to reply to the response or the petition on cross appeal. If appellee files a petition on cross appeal and the appellant has filed a response to the petition on cross appeal, the appellee will have ten (10) days to reply to appellant's response to the petition on cross appeal. The reply shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties electronically filing shall provide six paper copies of their reply to the Clerk within five days from the date of filing. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the petition at the time of filing. . . . . 8
Rule 4-2. Contents of Briefs. (a) Contents. The contents of the brief shall be in the following order: (1) Table of contents. Each brief must include a table of contents. It should reference the page number for, and include hyperlinks to, the beginning of each of the major sections identified in Rule 4-2(a)(2)-(8). The table must also list the contents of the abstract and the addendum. The name of each witness, and the abstract page number on which his or her testimony begins, must be included. The table must identify each document in the addendum, list the addendum page number where the document begins, and list the corresponding record page number. . . . . Rule 4-3. Briefs in criminal cases. (a) Electronic Filing. Briefs shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties filing any brief electronically shall provide six paper copies of the brief to the Clerk within five days of the filing date. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties conventionally filing shall provide six paper copies of the brief at the time of filing. (a) Briefs in Chief--When the State Is the Appellee (b)Appellants Brief. In criminal cases in which the State is the appellee and in which appellant is not indigent, tThe appellant shall have 40 days from the date the transcript is lodged to file 17 copies of the appellants brief with the Clerk. The appellant shall furnish evidence of service upon opposing counsel and the circuit court, except as otherwise provided in (f). As provided in (a), the appellant shall provide paper copies of the brief within five days of the filing date. Upon the filing of the brief, the appellant shall submit proof of service of two additional copies of the brief upon the Attorney General and one copy upon the circuit court, except as otherwise provided in (f). (b) Briefs in Chief When the state is the appellant. In criminal cases in which the State is the appellant, the procedure shall be the same as in subsection (a) except the State shall file only 17 copies of the brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court, except as otherwise provided in (f). (c) Appellee's Brief. The appellee shall have 30 days from the filing of the appellant's brief to file 17 copies of the appellees brief with the Clerk and such further abstract and Addendum as may be necessary to a fair determination of the case. Proof of service upon opposing counsel and the circuit court is required, except as otherwise provided in (f). As 9
provided in (a), the appellee shall provide paper copies of the brief within five days of the filing date. (d) Reply Brief. The appellant shall have 15 days from the date that the appellee's brief is filed to file 17 copies of the reply brief and furnish evidence of service upon the opposing counsel and the circuit court. As provided in (a), the appellant shall provide paper copies of the brief within five days of the filing date. . . . . (l) Continuances and Extensions of Time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral or electronically filed request. If such an extension is granted, no further extension shall be granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause. (2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (l)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion are required. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk. Rule 4-4. Filing and service of briefs in civil cases. (a) Electronic Filing. Briefs shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties filing electronically shall provide six paper copies of the brief to the Clerk within five days of the filing date. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the brief at the time of filing. (a)(b) Appellant's Brief In all civil cases the appellant shall, within 40 days of lodging the record, file eighteen copies of the appellant's brief with the Clerk and furnish evidence of service upon opposing counsel and the circuit court. Each copy of the appellant's brief shall contain every item required by Rule 4-2. Unemployment compensation cases appealed from the Arkansas Board of Review may be submitted to the Court of Appeals for decision as soon as the transcript is filed, unless the petition for review shows it is filed by an attorney, or notice of intent to file a brief for the appellant is filed with the Clerk prior to the filing of the transcript. 10
When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and seventeen six unredacted copies of the appellant's brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (b)(c) Appellee's Brief Cross-Appellant's Brief. The appellee shall file eighteen copies of the appellee's brief, and of any further abstract or addendum thought necessary, within 30 days after the appellant's brief is filed, and furnish evidence of service upon opposing counsel and the circuit court. If the appellee's brief has a supplemental abstract or addendum, it shall be compiled in accordance with Rule 4-2 and included in or with each copy of the brief. This rule shall apply to cross-appellants. If the cross-appellant is also the appellee, the two separate arguments may be contained in one brief, but each argument is limited to 30 pages. When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and seventeen six unredacted copies of the appellant's brief or cross-appellant's brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (c)(d) Reply Brief Cross-Appellant's Reply Brief. The appellant may file eighteen copies of a reply brief within fifteen days after the appellee's brief is filed and shall furnish evidence of service upon opposing counsel and the circuit court. This rule shall apply to the cross- appellant's reply brief except it must be filed within fifteen days after the cross-appellee's brief is filed. When a party has determined that confidential information is necessary and relevant to the appellate court's consideration of the case, redaction shall be done pursuant to Rule 4-1(d), and the party shall file one redacted copy and seventeen six unredacted copies of the reply brief or cross-appellant's reply brief. The unredacted copies shall be filed under seal. The cover of each brief shall indicate clearly whether it is REDACTED or UNREDACTED. (d)(e) Evidence of Service. Briefs tendered to the Clerk will not be filed unless evidence of service upon opposing counsel and the circuit court has been furnished to the Clerk. Such evidence may be in the form of a letter signed by counsel, naming the attorney or attorneys and the circuit court to whom copies of the brief have been mailed or delivered. (e)(f) Submission. The case shall be subject to call on the next Thursday (in the Supreme Court) or Wednesday (in the Court of Appeals) after the expiration of the time allowed for filing the reply brief of the appellant or the cross-appellant. After the case has been submitted 11
to the court for decision, the court will not consider motions to dismiss because of settlement or notice of settlement. (f)(g) Continuances and Extensions of Time. (1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7) calendar days upon oral or electronically filed request. The party requesting a Clerk's extension must confirm the extension by sending a letter immediately to the Clerk or the deputy clerk with a copy to all counsel of record and any pro se party. If such an extension is granted, no further extension shall be granted except by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court upon a written motion showing good cause. (2) Stipulations of counsel for continuances will not be recognized. Any request for an extension of time (except in (f)(g)(1)) for the filing of any brief must be made by a written motion, addressed to the Court, setting forth the facts supporting the request. Eight copies of the motion must be filed for Supreme Court cases and fourteen copies of the motion must be filed for Court of Appeals cases. Counsel who delay the filing of such a motion until it is too late for the brief to be filed if the motion is denied, do so at their own risk. Rule 6-9. Rule for Appeals in Dependency-Neglect Cases . . . . (e) Petition on Appeal. (1) Within thirty 30 days after transmission of the record to the Clerk of the Supreme Court, the appellant shall file an original and 16 copies of a Petition on Appeal (Form 2). Petitions on appeal shall be filed using the electronic filing system provided by the Administrative Office of the Courts. Parties electronically filing shall provide six paper copies of their petition to the Clerk within five days from the date of filing. Any person proceeding pro se and any person with a disability or special need that prevents him or her from filing electronically shall be permitted to submit conventional paper filings. Parties filing conventionally shall provide six paper copies of the petition at the time of filing. (2) The petition shall not exceed twenty-five (25) pages, excluding the abstract and addendum, and shall include: (A) A statement of the nature of the case and the relief sought; (B) A concise statement of the material facts as they relate to the issues presented in the petition on appeal that is sufficient to enable the appellate court to understand the nature of the case, the general fact situation, and the action taken by