Insight The How’s and When’s of Permissive Appeals

This article was originally published in the August 2014 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

Permissive appeals sometimes seem like winning the lottery: a fairly rare occurrence that is impossible to predict. From 2013 to 2017, 73 motions for permissive appeal were filed with the Idaho Supreme Court, and only six were granted.¹ Of those six, three were granted in 2015, and three were granted in 2016.² So far in 2018, at least three motions for permissive appeal have been made, and none have been granted.³ The limited number of permissive appeals accepted by the Supreme Court is nothing new. In a 1983 decision, the Supreme Court pointed out that it only accepts limited numbers of permissive appeals.⁴

However, unlike winning the lottery, whether the Idaho Supreme Court grants a permissive appeal is not based on chance. The standard is limited, as permissive appeals are only allowed when there are controlling questions of law. This article will discuss the process of requesting a permissive appeal and the factors that go into determining whether a permissive appeal should be granted. This article does not address permissive appeals in custody cases under I.A.R. 12.1.

How to move for a permissive appeal

Timing for a permissive appeal:

A permissive appeal is theoretically available from any interlocutory order or non-final judgment issued by a district court.⁵ The process is set out in Idaho Appellate Rule 12(b) and (c). Under that rule, a motion for permissive appeal must be filed with the district court within 14 days from the date of the order/judgment to be appealed.⁶ While the motion is largely treated the same as other motions⁷, the hearing must be expedited. What expedited means is not set forth in the rule, but presumably, this means that the hearing must occur sooner than the normal 14-day minimum for other motions.⁸ It is likely that the district court will be obligated to set an expedited briefing schedule to comply with the expedited hearing requirement.⁹ Once the matter is heard, the district court must enter a written order within 14 days, setting forth whether it approves or disapproves the motion, and its reasoning.¹⁰

Within 14 days after the district court enters its order approving or disapproving the motion for permissive appeal, or within 21 days after the motion is filed with the district court (i.e. if no order is entered in that time-frame), a motion for permissive appeal must be filed with the Idaho Supreme Court.¹¹ This motion must include as an attachment the interlocutory order or judgment appealed, and the district court’s ruling on the motion for permissive appeal, if any.¹² The motion for permissive appeal filed with the Supreme Court must comply with I.A.R. 32.¹³ Opposition briefs may be filed within 14 days from service of the motion.¹⁴

Requirement to file a notice of appeal:

No permissive appeal is valid until the Idaho Supreme Court enters an order deeming the interlocutory order or judgment appealable.¹⁵ If that happens, the appeal proceeds as a normal appeal would, except that the appeal is automatically retained by the Idaho Supreme Court.¹⁶ This means that once the Supreme Court deems an interlocutory order or judgment appealable, a notice of appeal must still be filed.¹⁷ Failure to file the notice of appeal within the time set forth in I.A.R. 14(a) could potentially result in the appeal being dismissed for lack of jurisdiction.¹⁸

Secondary issues to consider:

This process brings up some interesting questions. First, is it possible to obtain a permissive appeal from the Idaho Supreme Court if the district court has disapproved a motion for permissive appeal? The rule itself gives no indication of how much weight the Idaho Supreme Court gives the district court decision. There are cases where the Idaho Supreme Court has taken a permissive appeal even when the district court has recommended against it.¹⁹ Thus, whether the district court approves or disapproves a permissive appeal is not dispositive.

Second, how does a motion for permissive appeal affect the timing of the underlying case? Unlike normal notices of appeal, the filing of a motion for permissive appeal does not temporarily stay the case.²⁰ The district court may choose to stay the case pending the permissive appeal motion process, but it is not required to.²¹ If the Supreme Court grants the permissive appeal, though, the entire underlying action is stayed until the appeal is terminated, with certain limited exceptions.²²

When will a motion for permissive appeal be granted?

Factors under the appellate rules:

Though the process for moving for a permissive appeal is relatively straightforward, actually convincing the Idaho Supreme Court to grant a permissive appeal seems to be a fairly difficult task. A permissive appeal under I.A.R. 12 is “an unusual posture” only accepted in the most exceptional cases, and is not intended to broaden appeals that may be taken as a matter of right.²³ The standard of when a permissive appeal will be granted is set forth in I.A.R. 12(a):

Permission may be granted by the Supreme Court to appeal from an interlocutory order or judgment of a district court in a civil or criminal action, or from an interlocutory order of an administrative agency, which is not otherwise appealable under these rules, but which involves a controlling question of law as to which there is substantial grounds for difference of opinion and in which an immediate appeal from the order or decree may materially advance the orderly resolution of the litigation.²⁴

Considerations under Idaho caselaw:

This rule has been supplemented by caselaw. In Budell v. Todd, the Supreme Court explained that it “considers a number of factors in addition to the threshold questions of whether there is a controlling question of law and whether an immediate appeal would advance the orderly resolution of the litigation.”²⁵ Rule 12 provides an immediate appeal from an interlocutory order “if substantial legal issues of great public interest or legal questions of first impression are involved.”²⁶ The Court also considers factors such as: the impact of an immediate appeal upon the parties, the effect of the delay of the proceedings in the district court, the possibility of a second appeal after judgment is finally entered by the district court, and the case workload of the appellate courts.²⁷ According to the Court, no single factor controls the decision to accept or reject an appeal by certification.

Confusion as to the applicable law is required:

While the Budell case indicates that no factor is controlling, there are some factors that certainly are given more weight than others. The first, and likely most important factor, is whether there is confusion as to the law. I.A.R. 12(a) only allows for permissive appeals where there are controlling questions of law, “as to which there is substantial grounds for difference of opinion.” Though the rule does not specifically say it, it would not be a surprise if the rule were changed in the future to read, “as to which there is substantial grounds for difference of opinion about the law.” This language change would complement the Supreme Court’s rulings on the matter. As one authority stated, “Remember that the difference of opinion concerns the state of the law and not the application of established law to the facts of the case.”²⁸ In most cases where a permissive appeal is granted, the Supreme Court points out that the issue discussed is one of first impression²⁹, or that there is confusion over the law.³⁰

As a result of this high bar, the Supreme Court will likely not grant a permissive appeal if the district court incorrectly applied the law. For example, if the district court denied summary judgment on the basis that there was an issue of fact where there was none, or incorrectly applied the law to the facts, the chances of obtaining a permissive appeal approach zero. Because there is no substantial difference of opinion about the law, such matters must instead be addressed on an appeal as a matter of right.³¹ This is not to say that permissive appeals are never allowed on denials of summary judgment; there are a number of reported permissive appeals on denials of summary judgment.³² The connection between those cases is that there was some law (not facts) that was either unresolved or confusing in Idaho. As a result, do not expect to convince the Supreme Court that a permissive appeal is appropriate unless you can show that the law the district court considered is unresolved.

Based on how stringent this factor is, it is worth considering whether to file a motion for permissive appeal if you are trying to get the law changed. For example, if the law in Idaho is settled, but is in the vast minority compared with the law of other states, a request for permissive appeal to argue that a change of law is appropriate may not be sufficient. Similarly, if a party is asking merely for an interpretation of the law in a given case and the law is settled, such a request will likely be seen as a request for guidance on application of the law to the facts, and no permissive appeal will be granted.

Impact on the litigation:

Another key factor is how the permissive appeal will impact the litigation. In I.A.R. 12, this consideration is framed as whether the appeal will materially advance the litigation, while in the Budell factors, the concerns are delaying the case and the likelihood of a second appeal. As pointed out above, the entire case will be stayed if the appeal is granted, delaying trial. Thus, there had better be a pretty strong basis for the delay – the issue must be important. Some people look at this factor as whether the issue is dispositive (i.e., if the Supreme Court grants the permissive appeal, will the case go away). Budell hints at this:

[I]t is obvious that if the defendant prevails, it will prevent the necessity of a trial. At the same time, it is obvious that if the defendant does not prevail in the appeal, the trial of the action and relief sought by the plaintiff will be delayed by the pendency of this interlocutory appeal and that there is a possibility of a second appeal after the trial in the district court.³³

However, neither I.A.R. 12(a) nor the Budell factors indicate that whether an issue is dispositive is a factor considered by the Supreme Court. Indeed, permissive appeals are extremely limited. When the Supreme Court grants a motion for permissive appeal, it construes the issues presented narrowly, and only addresses, “the precise question that was framed by the motion and answered by the trial court.”³⁴ Thus, the question is whether the resolution of the matter will help move the case forward.

Under this consideration, it becomes apparent that not just dispositive or substantive legal issues matter – instead, procedural issues also become important. The Idaho Supreme Court has granted at least two permissive appeals dealing with discovery. In Westby v. Schaefer, the Supreme Court addressed the discretion of a district court with regard to discovery³⁵, and in Quigley v. Kemp, the Idaho Supreme Court addressed whether a medical malpractice plaintiff must disclose who their expert relied on to become familiar with the applicable standard of care.³⁶ In each of these cases, the information at issue was essential to prepare for trial, and the law surrounding the issues was unclear. Therefore, permissive appeals can potentially be used to address procedural issues, so long as the law is unclear.

In criminal cases, however, this factor makes obtaining a permissive appeal more difficult. In any criminal case where there is an issue that is appropriate for an appeal, it can always be argued that there is no need to stay the case for purposes of a permissive appeal, because criminal cases allow for conditional plea.³⁷ In other words, a permissive appeal arguably would not materially advance the litigation, because the defendant can always just conditionally plea and then appeal the reserved issues.

Workload of the appellate courts:

The third factor outlined in Budell is not mirrored in I.A.R. 12(a), i.e. the workload of the appellate courts. This factor is not discussed at any length in any cases, and is likely the factor with the least bearing on the decision whether to accept a permissive appeal. It is unlikely for the Supreme Court to take a permissive appeal because they are bored, or deny one because they are simply too busy. Further, this is the element that is least likely to be useful to argue, as whether the Idaho appellate courts are too busy or whether appeals are low is not a matter of public record.

Useful tips

Based on the foregoing considerations, it seems a miracle that the Idaho Supreme Court has taken as many permissive appeals as they have. In considering whether to file a motion for permissive appeal, though, please consider the following useful tips:

1. Be realistic. Few permissive appeals are taken each year, and some years none are taken. Analyze your case and determine whether the order you want to appeal is based on questionable or unsettled law. If the law on your issue is settled, it may not be worth the time to file a permissive appeal, even if the district court applied or interpreted the law incorrectly.
2. Show how you meet the standard. If you are moving for permissive appeal, you only have two chances to show why permissive appeal is appropriate. If your motions for permissive appeal don’t sufficiently explain why the law on the issue is unsettled or is a matter of first impression, and how resolution of the issues is necessary to move the case forward, you’ll never get to address the substantive issues. In effect, the standard is more important than the substance – don’t focus as much on why the district court is wrong; instead focus on why clarification of law is necessary to help the district court reach the proper decision. Even if the district court is wrong, you won’t get a permissive appeal unless you can meet the applicable standard, and so that should be the focus of your briefing.
3. Don’t rely on a permissive appeal to save your case. A permissive appeal should never be a Hail Mary pass to try and save a case. Unless you actually convince the Supreme Court to take your appeal, your case won’t likely be stayed, and they should not be used in an attempt to forestall trial. In other words, never, ever, plan on a permissive appeal being granted.
4. Earlier is better. While it may seem that most issues likely to be relevant to a permissive appeal would come up as a party gets closer to trial, if you can address an issue earlier, the better prepared you’ll be to prepare for trial. Further, the earlier you are in your case, the stronger your argument will be that the permissive appeal won’t affect the timelines of your case.

In conclusion, though the chances of ever getting a permissive appeal are slim, it is possible to obtain guidance from the Supreme Court mid-case, so long as you adequately show that your issue meets the necessary standards.

Endnotes

1. E-mail from Karel Lehrman, Clerk of the Idaho Supreme Court, dated February 16, 2018.
2. Id.
3. Id.
4. Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983).
5. I.A.R. 12(b).
6. I.A.R. 12(b).
7. I.A.R. 12(b); I.R.C.P. 7(b)(3).
8. I.A.R. 12(c)(1) allows a party to file the second motion with the Supreme Court within 21 days after the initial motion is filed with the Supreme Court. Normally under I.R.C.P. 7(b)(3), at least 14 days of briefing is allowed, and under I.A.R. 12(b), the district court has 14 days to rule on the motion. However, this is more than the 21 days allowed under I.A.R. 12(c), and therefore, the expedited hearing date required in I.A.R. 12(b) likely means that the hearing will occur less than 7 days after the initial motion for permissive appeal is filed with the district court.
9. I.R.C.P. 7(b)(3)(H) allows the Court to shorten time for briefing, and also, if there is not sufficient time to allow for responsive briefing, rule on the matter without responsive briefing.
10. I.A.R. 12(b).
11. I.A.R. 1 2(c)(1).
12. I.A.R. 12(c)(1).
13. I.A.R. 12(c)(3)
14. I.A.R. 32(d).
15. I.A.R. 12(d).
16. I.A.R. 12(d).
17. Idaho Appellate Handbook, 51h Ed., p. VII-5.
18. I.A.R. 21. See also Walton, Inc. v. Jensen, 132 Idaho 716, 719, 979 P.2d 118, 121 (Ct. App. 1999) (“It is well-settled that the failure to timely file a notice of appeal is jurisdictional and shall cause automatic dismissal of such appeal:’); Johnson v. Pioneer Title Co. of Ada Cty., 104 Idaho 727, 731, 662 P.2d 1171, 1175 (Ct. App. 1983) (“In Idaho a timely notice of appeal is a jurisdictional requirement.”); Neal v. Harris, 100 Idaho 348, 350, 597 P.2d 234, 236 (1979).
19. See, e.g. Bishop v. Owens, 152 Idaho 617, 619, 272 P.3d 1247, 1250 (2012) (the District Court denied the motion for permissive appeal, but the Supreme Court accepted the appeal anyway). It is unlikely that we would ever find out a situation where the district court approved a permissive appeal which was denied by the Idaho Supreme Court, because such denials are not published.
20. I.A.R. 13(f)(1).
21. I.A.R. 13(f)(1).
22. I.A.R. 13(f)(2). Upon filing a normal notice of appeal, all proceedings and judgments in the action are automatically stayed for 13 days. I.A.R. 13(a). The district court or the Supreme Court must order any further stay. Id.
23. Aardema v. U.S. Dairy Sys., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009); Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983).
24. I.A.R. 12(a).
25. Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983). See also Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 892, 265 P.3d 502, 505 (2011); Rountree v. Boise Baseball, LLC, 154 Idaho 167, 170, 296 P.3d 373, 376 (2013); Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009).
26. Budell, 105 Idaho at 4, 665 P.2d at 703.
27. Id.
28. Idaho Appellate Handbook, 5th Ed., p. VII-5.
29. Verska v. Saint Alphonsus Reg’I Med. Ctr., 151 Idaho 889, 892, 265 P.3d 502, 505 (2011) (issue is a matter of first impression).
30. See, e.g. Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 789, 215 P.3d 505, 509 (2009) (“Due to confusion regarding the application of the economic loss rule, this Court accepted this permissive appeal and offers this opinion, per the district court’s request.”).
31. Presuming such appeal is allowable after trial. Often, summary judgments may not be appealed after a trial has occurred. Hennefer v. Blaine Cty. Sch. Dist., 158 Idaho 242, 249, 346 P.3d 259, 266 (2015). This caselaw arguable conflicts with I.A.R. 17(e)(1)(A), which states that all interlocutory orders entered prior to the judgment are incorporated into the appeal. Regardless, if a denial of a summary judgment is to be appealed, then it must be preserved for appeal through some other method, such as through motions in limine, requests for jury instructions, or other interlocutory orders that can be appealed as a matter of right.
32. See, e.g. Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989); Aardema v. U.S. Dairy Sys., Inc., 147 Idaho 785, 788, 215 P.3d 505, 508 (2009); Rountree v. Boise Baseball, LLC, 154 Idaho 167, 169, 296 P.3d 373, 375 (2013); Taylor v. Riley, 157 Idaho 323, 326, 336 P.3d 256, 259 (2014).
33. Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703 (1983).
34. Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989).
35. Westby v. Schaefer, 157 Idaho 616, 621, 338 P.3d 1220, 1225 (2014).
36. Quigley v. Kemp, 162 Idaho 408, 398 P.3d 141, 142 (2017), reh’g denied (Aug. 3, 2017).
37. I.C.R. 11 (a)(2).

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