to bear their own costs and attorneys’ fees because that may
affect a substantive right.
The clerk’s office routes stipulated motions directly to staff
as soon as they are filed. When filing a stipulation, be sure
to title the document “stipulation” rather than “joint” or
“unopposed” motion; otherwise, the motion may not be
immediately sent to staff. In addition, if both parties have
not paid the court’s initial filing fee, the court will treat a
stipulation as appellant’s motion and process it accordingly.
Keep in mind that stipulations are stipulated requests,
not agreements between the parties that the court is required to honor. For example, a stipulated motion to consolidate two appeals will not automatically result in consolidation. Similarly, stipulations for extensions longer than
30 days will not necessarily be granted if good cause is not
shown. The court will exercise its discretion in determining
whether to grant a stipulated request.
The clerk’s office holds certain motions—such as motions
to dismiss, motions for determination of jurisdiction, motions to strike, motions to seal, and motions to consolidate—for a response and reply and does not route them until all deadlines have passed and they are ready for a ruling.
Because these motions are more complex and require more
analysis of the law and record than procedural motions,
staff may prepare a recommended ruling for Department M
or the Chief Judge. In Division Two, these motions go to
the presiding judge of the panel, usually with a recommendation from the clerk, the chief staff attorney or, in certain
instances, one of the court’s other staff attorneys.
For a substantive motion filed in Division One, be sure
to take into consideration the extended time required for
the court to issue a ruling and, if necessary, file a separate
motion for an extension of time for any brief due in the
interim. The procedural extension motion will be routed to
staff immediately. Division Two will automatically extend
the time for filing a brief while the court considers the motion, but it is still a good idea to expressly request it, either
in the same motion or a separate motion.
In Division One, the clerk’s office immediately sends emergency motions to staff via a special protocol that ensures
the motion is examined without delay. However, titling a
motion an “emergency” does not mean it will be treated as
one, and if the court determines an expedited ruling is not
necessary, it will generally issue an order indicating it will
consider the motion after the time for a filing a response
and reply has expired.
Emergency motions are usually requests that the appellate court stay the underlying judgment or enter an injunction to preserve the status quo. The emergency motion
should inform the appellate court that the party has complied with ARCAP 7(c) by first asking the trial court for a
stay and, if possible, attach a copy of the trial court’s ruling
on the stay request. If you request a stay or an injunction to
stop an event, be sure to tell the court when the event will
occur; otherwise, the court is unable to assess whether the
motion is truly urgent.
Sometimes an appeal is opened upon the filing of an
emergency motion, meaning the appeal has not yet been
docketed through the normal process and the appellate
court does not have the trial court record. In this situation,
it is helpful to include key documents from the record to
support the motion.
Although the court does its best to expeditiously resolve
emergency motions, it is not always able to process and
route the motion, review the relevant record and law, and
file an order the same day it receives such a motion. Please
Lastly, The court does not regard a request for an ex-
tension of time to file a brief as an emergency, as the court
will not dismiss an appeal or submit it for decision while an
extension motion is pending.
In Division Two, true emergency motions will go to the
presiding judge, possibly with a recommendation by the
clerk of the court or the chief staff attorney. If a party files
a motion to stay, it is immediately referred to the presiding
judge of the panel and a telephonic stay conference may
be held, often without a written response but with all parties participating. If requested, a staff attorney may assist
the judge. In some circumstances, the presiding judge may
consult with the rest of the panel.
Motions for Reconsideration
In Division One, the clerk’s office routes motions for reconsideration directly to staff if the order was issued by a
judge pro tempore or Department M. In Division Two, the
motion for reconsideration goes to the panel that issued
the decision. All three judges will have input on the motion, with the authoring judge’s opinion being particularly
A motion for reconsideration must be filed within 15
days after entry of a decision or order, see ARCAP 22(c),
and the court will not consider an untimely motion. Remember that a motion for reconsideration that is not specific about how the court purportedly erred is rarely persuasive. Furthermore, because the court must allow a response
before granting a motion for reconsideration, see ARCAP
22(d), carefully consider whether to file a motion for reconsideration when the court has denied an emergency motion.