Yesterday, the Supreme Court of North Carolina amended Appellate Rule 36(b) to conform with the General Assembly’s recent amendment to N.C. Gen. Stat. § 1-283.
Under the Appellate Rules and by statute, settling the record on appeal is an action that must be taken by a particular judicial official: the judge whose order or judgment is being appealed. As explained in our treatise:
“The reasons for this requirement are practical: the judge whose order or judgment is being challenged on appeal can best determine whether documents proposed for inclusion in the record on appeal were “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof.” Similarly, the trial judge who actually heard and decided a matter is in the best position to determine whether “the content of a statement or narration is factually inaccurate.”
Scherer & Leerberg, North Carolina Appellate Practice and Procedure, § 2.07[2] [When a Particular Trial Judge Is Required by Appellate Rules or Statute].
Nevertheless, Appellate Rule 36 and § 1-283 have long contained a practical exception for judges who cannot settle the record on appeal due to death, mental or physical incapacity, or absence from the State. In those instances, the Chief Justice will appoint a substitute judge to fulfill the original trial judge’s duties.
The problem was that these provisions offered no sympathy for trial judges in good health that merely retired to places like Pine Knoll Shores or Carolina Beach. In some way, the old law created a perverse incentive for judicial officials to retire to out-of-state places like Myrtle Beach.
Yesterday’s amendment fixes that issue. Under Amended Appellate Rule 36, the Chief Justice can appoint a replacement judge when the original judge has retired.
While the amendments close one gap, another gap remains. Suppose a trial judge’s term expires or a judge resigns without retiring from the bench? Under a strict reading of the statute and rules, judges in these scenarios remain on the judicial settlement hook.
On the other hand, if faced with this scenario, I’d try to resolve it another way. For one, forcing a departed judge back on the bench raises constitutional concerns. Second, I don’t think most trial judges in this scenario would be happy to leave the beach for a short bench assignment. Rather, I would recommend asking the Supreme Court to exercise its general supervisory authority under the state constitution to appoint an alternative judge to settle the record on appeal. See Scherer & Leerberg, § 2.07 [3] [When Required Judge Is Unavailable Due to Death, Incapacity, or Absence from the State].
North Carolina has some of the most relaxing beaches in the world. Let’s not pollute them with forced judicial settlement conferences.
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