Notice of Appeal Must be Filed Even When Permissive Appeal is Accepted by Supreme Court

In a strange opinion, the Supreme Court dismissed a permissive appeal. It seems that the appellant never filed a Notice of Appeal to the Supreme Court after the Court accepted the permissive appeal. Consequently, the Court had no jurisdiction. That part of the opinion is written by Justice W. Jones. Justice Horton then files a special concurrence, joined by the remaining three justices, which agrees that the appeal must be dismissed but goes on to address, in admitted dicta, the merits of the appeal.

In re the Matter of the Termination of the Parent-Child Relations of John Doe, Child, and John Doe I, Parent, http://www.isc.idaho.gov/opinions/DEpt%20of%20H&W%20v%20Doe%20.pdf



After the Magistrate Court terminated parental rights, the parent filed a Notice of Appeal to the District Court. Five months later, the magistrate entered an Order Recommending the Supreme Court Accept a Direct Permissive Appeal Pursuant to I.A.R. 12.1. The Supreme Court granted a permissive appeal, but the appellant never filed a Notice of Appeal to the Supreme Court.

The Court raised the question of jurisdiction sua sponte and then dismissed the appeal because "[a]fter this Court enters an order permitting parties . . . to appeal directly to the Supreme Court, the parties are required to file a notice of appeal with the lower court."

The Court also noted that the Magistrate Court lost the authority to issue the Order Recommending the Supreme Court accept the appeal when the Notice of Appeal to the District Court was filed. Thus, the Supreme Court "improvidently accepted" the appeal.

Justice Horton's special concurrence noted that the Court itself did not follow the rules regarding permissive appeal because its Order accepting the appeal did not "grant[] leave to [the] party to file a notice of appeal within a time certain" as required by IAR 12.1(d). And, it appears the appellant did not have actual notice that s/he was required to file a Notice of Appeal. Nevertheless, Justice Horton agreed that without a Notice of Appeal the Court had no jurisdiction.

However, he goes on to say that "[b]ecause this Court's order evidently contributed to the Appellant's failure to file a notice of appeal to this Court, I believe that a discussion of the merits of this appeal is warranted." He then found that there was substantial and competent evidence in the record to support the magistrate's finding that the parent had abandoned and neglected the child and that termination was in the best interests of the child.

Justice Horton concludes: "I am conscious that Appellant's failure to file a notice of appeal to this Court renders this concurrence mere dicta. However, I think that the prudential considerations that would normally warrant silence as to the merits of this appeal are outweighed by the liberty interest in the parent-child relationship."

I think Justice Horton's heart is in the right place on this one. These cases need to be decided quickly for the sake of both parent and child. I wonder, however, how this dicta is going to affect the District Court's resolution of the appeal which is, I presume, still properly before it. Well, actually, I don't wonder. The special concurrence will no doubt be adopted by the District Court who will read the writing on the wall.

At first glance, I'm not sure that's the right way to resolve this case. The only thing the Supreme Court could dismiss was the permissive appeal before it. The timely appeal to the District Court is still in effect, it seems to me, and the District Court still needs to decide the matter. But, of course, the matter has been "decided" for the District Court via the dicta. The parent's proper appeal to the District Court is now just a charade.

Maybe the Court should have issued an amended order granting the parent time to file the NOA and then decide the case. I don't think there's an appellate rule prohibiting the Court from amending its prior order. If there is, I guess I'm with Justice W. Jones and think that straight up dismissal without any further opinion would have been the best route so the District Court could have made an independent decision on appeal.

Lessons learned: 1) File a Notice of Appeal to the Supreme Court if you ever get it to accept a permissive appeal; 2) Don't count on the Court to give you instructions on how to perfect your appeal.