The PEOPLE of the State of South Dakota, ex rel., SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, in the Interest of B.H., Jr. and M.H., Children and concerning P.H. and B.H., Sr.
No. 25672.
Supreme Court of South Dakota.
June 15, 2011
2011 S.D. 26
Considered on Briefs Sept. 17, 2010.
Joseph M. Kosel, Johns & Kosel, Prof. LLC, Lead, South Dakota, Attorney for appellant Father B.H., Sr.
PER CURIAM.
[¶ 1.] Petitioner (Father) filed a notice of appeal seeking to appeal termination of his parental rights under
[¶ 2.] In this abuse and neglect proceeding Father seeks to appeal termination of his parental rights. The notice of appeal filed by Father‘s counsel on June 24, 2010, did not contain Father‘s signature.
[¶ 3.] On July 1, 2010, Father‘s counsel mailed the instant petition for reinstatement of appeal. Time for filing a notice of appeal had expired prior to July 1. Attached to the petition for reinstatement of appeal is a notice of appeal signed by Father and his attorney. By affidavit, Father‘s counsel indicates Father did not sign the notice of appeal earlier because he was hospitalized and changing residences.
ANALYSIS
[¶ 4.] This Court takes notiсe of jurisdictional questions regardless of whether the parties present them. Johnson v. Lebert Const., Inc., 2007 S.D. 74, ¶ 4, 736 N.W.2d 878, 879. “The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record.” Id. We apply the rules of statutory interpretation to determine whether this Court has appellate jurisdiction over a case. Id.
[¶ 5.] In this factual context, the issue is whether the rules of appellate procedure allow the lack of signature on the notice of appeal under
[¶ 6.]
In the interest of expediting decision in cases of pressing concern to the public or to litigants, or for other good cause shown, the Supreme Court, except as otherwise provided in
§ 15-26A-92 , may suspend the requirement or provision of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction.
The Supreme Court for good cause shоwn may upon motion enlarge or extend the time prescribed by this chapter for doing any act or may permit an act to be done after the expiration of such time; but the Supreme Court may not enlarge the time for filing a notice of appeal.
[¶ 7.] Reading these rules together, the only requirement which cannot be suspended is timely filing a notice of appeal. Therefore, it would seem that the appellant signing requirement of
[¶ 8.] Strict compliance with the signing requirement is suggested by the nature of the only explicit exception to rule
[¶ 10.] In Torres v. Oakland Scavenger Co., the United States Supreme Court addrеssed the possibility of excusing noncompliance with jurisdictional mandates. 487 U.S. 312, 313, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988). Torres was dismissed from a lawsuit because a clerical error omitted his name on a notice of appeal. Id. at 314, 108 S.Ct. at 2407. The Court began its analysis by аcknowledging that Federal Rule of Appellate Procedure 2 “gives courts of appeals the power, for ‘good cause shown,’ to ‘suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion.‘” Id. The Court noted, however, that an exception to the equitable discretion authorized by Rule 2 will not allow a court to “‘enlarge’ the time limits for filing a notice of appeal, which are prescribed in Rule 4.” Id. at 315, 108 S.Ct. at 2407. “Permitting courts to exercise jurisdiction over unnamed parties after the time for filing a notice of appeal has passed is equivalent to permitting cоurts to extend the time for filing a notice of appeal. Because the Rules do not grant courts the latter power, we hold that the Rules likewise withhold the former.” Id. at 315, 108 S.Ct. at 2408. The Court found support in the advisory committee notes tо Rule 3: “[b]ecause the timely filing of a notice of appeal is ‘mandatory and jurisdictional,’ United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 285, 4 L.Ed.2d 259 (1960), compliance with the provisions of those rules is of the utmost importance.” Id.
[¶ 11.] The Court noted the important principle of liberal construction of the requirements of the rules of appellate procedure and that “‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Id. at 316, 108 S.Ct. at 2408 (quoting Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). “But although a court may construe the Rules liberally in determining whether they have been complied with, it may not waive the jurisdictional requirements of Rules 3 and 4, even ‘for good cause shown’ under Rule 2, if it finds that they have not been met.” Id. at 317, 108 S.Ct. at 2409.
[¶ 12.] Torres argued that the cоurt of appeals should apply a “harmless error analysis” to defects in a notice of appeal. Id. at 317 n. 3, 108 S.Ct. at 2409 n. 3. “This argument misunderstands the nature of a jurisdictional requirement: a litigant‘s failure to clear a jurisdictional hurdle сan never be ‘harmless’ or waived by a court.” Id. The Court affirmed dismissal of Torres‘s appeal,1 holding that “the court of appeals was correct that it never had jurisdiction over petitioner‘s appeal.” Id. at 317, 108 S.Ct. at 2409.
[¶ 13.] More recently, the Supreme Court considered thе signing requirement of a notice of appeal included in the federal rules of appellate procedure. Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001). Becker initiated a pro se civil rights action which was dis-
[¶ 14.] Federal Rule of Civil Procedure 11 requires all documents be signed by the party‘s attorney, or the party, if not represented. This requirеment includes notices of appeal. Becker, 532 U.S. at 763, 121 S.Ct. at 1806.
[¶ 15.] Rule 11(a) contains a clause explicitly allowing the signature requirement to be cured. The final sentence of that rule states: “[t]he court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney‘s or party‘s attention.”
[¶ 16.] The Becker Court discussed Torres.
In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), it is true, we held, that a notice of appeal that omitted the name of a particular appellant, through a clerical error, was ineffective to take an appeal for that party. Id., at 318, 108 S.Ct. 2405 (construing Rule 3(c) prior to the ameliorative changes made in 1993). Becker‘s notice, however, did not suffer from any failure to “specify the party or parties taking the appeal.”
Id. at 767, 121 S.Ct. at 1807-08 (internal footnote omitted). The Rule 11 signing requirement was “not a jurisdictional impediment to pursuit of his appeal.” Id. at 765, 121 S.Ct. at 1807.
[¶ 17.] The U.S. Supreme Court opinions cited above advise that jurisdictional requirements of appellate procedure cannot be waived. Torres, 487 U.S. at 317, 108 S.Ct. at 2409. But requirеments which are not jurisdictional can be waived. Becker, 532 U.S. at 763, 121 S.Ct. at 1806. And appellate requirements containing an explicit cure are not jurisdictional. See 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3949.6 (4th ed.2008) (noting that the U.S. Suрreme Court decision in Becker may have been different had Rule 11 not contained a provision for cure). This analysis applies to signing requirements enacted especially for abuse and neglect proceedings. Comрare In re L.B., 187 N.C.App. 326, 653 S.E.2d 240, 244 (2007), aff‘d per curiam, 362 N.C. 507, 666 S.E.2d 751 (2008), and In re M.P.A., 689 S.E.2d 245, 2009 WL 4917317 (N.C.Ct.App.2009), with In re S.B., 666 N.W.2d 621, 2003 WL 1970757, at *2 (Iowa Ct.App.2003), and In re T.F. and H.F., 666 N.W.2d 622, 2003 WL 21076398 (Iowa Ct.App.2003).
[¶ 18.] The most recent change to the language of
[¶ 19.] The signing requirement of
[¶ 20.] Conceptually, this Court has never had jurisdiction over the present appeal. Filing a notice of appeal without appellant‘s (and attorney‘s) signature deprived this Court of jurisdiction to consider the appeal of a judgment terminating parental rights under
[¶ 21.] Petition for reinstatement denied.
[¶ 22.] GILBERTSON, Chief Justicе, and KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices, participating.