§ CR 76.36 Original proceedings in appellate court

CR 76.36 Original proceedings in appellate court

(1) Petition for relief.

Original proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court. All other actions must be prosecuted in accordance with applicable law. Original proceedings in an appellate court may be prosecuted upon the payment of the filing fee required by CR 76.42(2)(a) and the filing of a petition setting forth:

(a) The name of each respondent against whom relief is sought;

(b) The style and file number of the underlying action before the respondent(s);

(d) The relief sought;

(e) A memorandum of authorities in support of the petition.

A copy of the petition shall be served on each respondent and each real party in interest as defined in this Rule, Section (8), and shall bear proof of service as required by Rule 5.03. Immediately upon the filing of the petition, the clerk shall mail to each respondent and real party in interest notice of the date the petition was filed.

(2) Response.

The party against whom relief is sought and real party in interest as defined in this Rule, section (8), may within 20 days after the date of filing of the petition file a response, bearing proof of service as required by Rule 5.03, accompanied by a memorandum of authorities in support of his defense.

(3) Number of copies.

Petitions and responses shall be filed in quintuplicate.

(4) Intermediate relief.

If the petitioner requires any relief prior to the expiration of 20 days after the date of filing the petition he/she may move the court on notice for a temporary order on the ground that he/she will suffer immediate and irreparable injury before a hearing may be had on the petition.

(5) Evidence.

Evidence in support of or against the petition, other than that which may be attached to the petition and response in the form of exhibits, affidavits, and counter-affidavits, will be permitted only by order of the court, and it shall be in the form of affidavits or depositions taken in accordance with the Rules applicable to proceedings in trial courts. Oral testimony will not be heard in the appellate court.

(6) Submission and disposition.

Original actions will be submitted for decision when the response is filed or the time for filing it has expired, whichever is sooner, unless otherwise ordered by the court.

(7) Appeals to the Supreme Court.

(a) An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.

(b) The notice of appeal and the filing fee required by CR 76.42(2)(a)(i) shall be filed with the Clerk of the Court of Appeals within 30 days after the date the judgment or order appealed from was entered and shall conform to the requirements of Rule 73.03. A cross-appeal may be taken in the time and manner specified by Rule 74.01 except that the notice of cross-appeal and filing fee shall be timely filed by the Clerk of the Court of Appeals.

(c) To perfect the appeal the appellant shall, within thirty (30) days after filing a notice of appeal, file with the Clerk of the Supreme Court a brief setting forth argument for reversal or modification of the judgment or order from which the appeal is taken. In workers' compensation cases, briefing shall proceed according to CR 76.12.

(d) When the appeal has been perfected and entered in the docket book the clerk of the Supreme Court shall forthwith mail notice of the date of such entry to the attorneys for the parties.

(e) To perfect a cross-appeal, within 30 days after the mailing of the clerk's notice mentioned in the preceding subparagraph (d) of this Rule 76.36(7), or within 30 days after expiration of the time allowed for the appellant to perfect the appeal, whichever is the sooner, the party taking the cross-appeal shall file with the clerk of the Supreme Court a brief setting forth the arguments for reversal or modification of the judgment or order from which the cross-appeal is taken and against the relief sought by the appellant.

(f) Briefs in response to an appeal or cross-appeal shall be required. Such briefs shall be filed in accord with the provisions of CR 76.12(2)(a) and (b).

Where an appeal is taken against a judge in the Court of Justice and concerns performance of an official act, the party appealing shall serve notice on the real party in interest as defined in this Rule, section (8), who shall then be required to file a brief on behalf of the judge against whom the appeal or cross-appeal is taken; provided, however, no attorney shall be required or permitted to file such a brief where to do so would conflict with the interest of his or her client.

(g) Ten (10) copies of the briefs shall be filed. Briefs need not be printed.

(h) The clerk of the Court of Appeals shall transmit all or any portion of the original record of the proceedings to the Supreme Court when so requested by the clerk of that court.

(8) Real party in interest.

For the purpose of this rule only, the term “real party in interest” is any party in the circuit court action from which the original action arises who may be adversely affected by the relief sought pursuant to this Rule.