We litigators of course almost always win our cases in the trial court. On the rare occasions when a trial judge erroneously fails to see things our way, we usually have no difficulty persuading the Missouri Court of Appeals to set things right. Accordingly, we almost never have occasion to focus on the procedure for seeking to have a case transferred to the Missouri Supreme Court.
But the procedure does exist. And, incredible as it may seem, there may come a day when a court of appeals, or even a trial court and an appellate court, may rule against you. Accordingly, it is important to be aware of the procedure for transfer. Also, if after one of your hard fought victories, your opponent has the audacity to try to undo it through transfer to the Supreme Court, it is important to understand the procedure in order to be able to resist transfer as effectively as possible.
What follows is a primer and some pointers on applications for transfer.
Methods of Transfer
There are four ways that a case may be transferred from a court of appeals to the Supreme Court. First, if a judge participating in a court of appeals decision dissents from a majority decision and certifies that he deems the opinion to be contrary to a previous decision of a Missouri appellate court, the case is transferred to the Supreme Court. Mo. Sup. Ct. R. 83.01.
Second, after a court of appeals has decided a case, a majority of the participating judges, on their own motion or on application of a party, may transfer the case to the Supreme Court “because of a general interest or importance of a question involved in the case or for the purpose of reexamining existing law.” Mo. Sup. Ct. R. 83.02.
Third, where, after a court of appeals decision, a party has asked the appellate court to order transfer and that court has declined, a party may seek an order of transfer from the Supreme Court. Mo. Sup. Ct. R. 83.03. The grounds on which transfer may be ordered under this rule are the transfer criteria in Rule 83.02 quoted above, or “the reason that the opinion filed is contrary to a previous decision of an appellate court of this state.” Id.
Finally, any case pending in a court of appeals and not yet decided may be transferred to the Supreme Court on application of a party or on the Supreme Court’s own motion. Mo. Sup. Ct. R. 83.06. Such a transfer may be made on any of the grounds set forth in Rule 83.02 (general interest or importance of an issue or to reexamine existing law), or “for the purpose of equalizing the workload of the appellate courts.” Id.
Cases most often are transferred as a result of the Supreme Court ordering transfer under Rule 83.03. Accordingly, this article will focus primarily on matters relevant to transfer under that rule.
As noted above, the grounds on which transfer may be ordered vary depending upon which particular rule governs your application. Accordingly, it is important to bear in mind which rule applies and tailor your application accordingly.
For example, a post-decision transfer request to the court of appeals may be premised on the general interest or importance of a question, or on a need to reexamine existing law. However, a post-decision transfer request to the Supreme Court may be predicated on these criteria or on the additional ground that the court of appeals’ decision is contrary to a previous Missouri appellate decision.
Accordingly, if you unsuccessfully seek transfer in the court of appeals, and decide to further pursue the matter in the Supreme Court, you may not want to simply stick a different caption on your court of appeals application and refile it in the Supreme Court. Rather, if there are grounds for doing so, you may want to include in your application to the Supreme Court an argument that the court of appeals’ decision is contrary to one or more prior Missouri appellate decisions.
Also, if you seek both transfer and rehearing in the court of appeals, you do not want to say precisely the same thing in both motions, or file a single motion asking for rehearing or transfer alternatively. The grounds for transfer and rehearing are different. In contrast to the criteria discussed above for transfer, the grounds for rehearing are that the court of appeals overlooked or misinterpreted material matters of law or fact. Mo. Sup. Ct. R. 84.17.
Great care should be taken in framing the grounds for transfer. In considering an application, many judges may not look beyond the statement of the reasons for transfer. Accordingly, it is important that they be clear, succinct and stated in such a way that they militate for transfer.
The number of grounds relied on in an application also may be important. Some lawyers are inclined to include all grounds for transfer they possibly can think of, including several variations of the same issue. This may not be the most effective approach. An application containing several grounds may give the appearance of merely presenting a rehash of all of the points argued and decided in the court of appeals. If your case presents one or two good issues which fit the governing criteria for transfer, it likely will be more effective to limit your focus to those. Good applications for transfer, like other forms of writing, often are made more by what is left out than what is put in.
Most importantly, the main focus of any transfer application must be on why your case is worthy of the Supreme Court’s attention. In seeking review by a higher court, lawyers who have been living with a case for years often are inclined to address first and foremost why the court of appeals’ decision was wrong. But that may not be the best approach. Sometimes, it is more appropriate to place primary focus on the question presented by the case — that it is of general interest or importance, or a particular area of law merits reexamination — rather than on how the issue was resolved.
That is not to say that a transfer application should omit any argument that the court of appeals’ decision was wrong. A case involving an important issue that was decided wrongly by the court of appeals cries out for transfer more than a case involving an important issue that the court of appeals got right. Also, the main ground for transfer may be that the court of appeals’ decision was wrong — that it is contrary to a previous Missouri appellate decision. You always should focus on the particular criteria for transfer you are seeking to invoke and tailor your application to those criteria.
The applicable rules contain precise requirements concerning the format and contents of applications for transfer, as well as the time when they must be filed. Mo. Sup. Ct R. 83.02-.05. It is important that these requirements be followed precisely. Otherwise, you run the risk of your application not being considered.
Applications for transfer may not exceed six pages. Mo. Sup. Ct. R. 83.04(a). Supporting suggestions may — and, in my view, always should — be filed at the time that the application is filed, and may not exceed an additional six pages. Mo. Sup. Ct. R. 83.05.
You may prepare a separate application and suggestions, with each bearing its own caption and being stapled separately. Or, you can combine them into a single document, which may be bound. In either case, you should be sure to observe the six-page limit for each of the application and suggestions.
The Supreme Court, in particular, applies its rules very strictly to applications for transfer. All contents other than quoted material should be double spaced, including argument headings and all aspects of the statement of reasons for transfer. Avoid using single-spaced bullet points. Also, the Supreme Court expects applications for transfer to not only contain all required elements but include them in the proper order.
Opposing Applications for Transfer
With respect to applications for transfer filed in the court of appeals, Rule 83.02 provides that “[n]o response to an application for transfer shall be filed unless requested by the court, and an order for transfer shall not be granted in the absence of such a request.” As to applications in the Supreme Court, Rule 83.03 states that “[n]o response to an application for transfer shall be filed unless requested by the Court.” In either court, it is possible to file suggestions in opposition to an application for transfer in advance of a request therefor, by accompanying them with a motion for leave to file such suggestions.
As to the most effective approach in arguing against transfer, consider the converse of the points discussed above. The primary focus should be on asserting why, under the transfer criteria relied on by the applicant, the case is not appropriate for transfer.
Whether your aim is to get your case transferred to the Missouri Supreme Court, or keep it out of that Court, being mindful of the points discussed above may help you achieve your goal.