Opinion
Docket No. 27691.
Filed: October 30, 2002.
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge; Hon. Kent J. Merica, Magistrate.
Appeal from district court decision affirming magistrate court order imposing discovery sanctions, dismissed.
Hon. Alan G. Lance, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for appellant. Lori A. Fleming argued.
Clark Feeney; Lewiston, for respondent. Charles M. Stroschein argued.
This is an appeal by the State of Idaho from the district court's appellate decision affirming the magistrate court's exclusion of certain evidence as a sanction for the State's discovery violations. Because we conclude that the appeal from the magistrate court's interlocutory order was improper, we dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lyle John Maynard was charged with misdemeanor driving under the influence of alcohol and/or drugs in the magistrate court for the Second Judicial District, County of Nez Perce, located in Lewiston, Idaho. Shortly thereafter, he served several discovery requests pursuant to Idaho Criminal Rule 16. In its response, the State objected to many of Maynard's requests, including one asking for documents showing the results of any tests of a blood sample taken from Maynard and one asking for a description of the facts and data upon which the State's expert witnesses based their opinions. The State's objection stated that the information sought was "beyond the scope of discovery pursuant to Idaho Criminal Rules." Maynard filed a motion to compel responses to those requests to which the State had objected. The magistrate court concluded that the information requested by Maynard was discoverable under I.C.R. 16 and directed the State to respond to all the requests to which it had objected.
The State then submitted supplemental responses to Maynard's discovery requests. Included was the following response to Maynard's Request XXVIII asking for the facts and data upon which the State's expert witnesses would base their opinions:
Plaintiff anticipates calling STUART V. JACOBSON, Criminalist at the Coeur d'Alene lab to testify as to the manner, method and means employed to test the blood sample in this case. Specific inquiry as to facts and data relied upon should be directed to Mr. Jacobson at the Coeur d'Alene lab.
Maynard's counsel subsequently drove from his place of business in Lewiston to Coeur d'Alene in order to obtain the requested information and test reports from Jacobson. Jacobson gave Maynard's attorney Jacobson's entire case file, including all test results, notes and instrument readouts pertaining to the analysis of Maynard's blood. However, when Maynard's counsel asked Jacobson to summarize his anticipated testimony, Jacobson responded that he could not do so because he did not know what questions he would be asked at trial. Maynard's counsel then said that he did not feel comfortable asking Jacobson questions, and their conversation thus terminated.
Maynard then filed a second motion to compel discovery alleging, among other things, that the State had still failed to adequately respond to Request for Discovery No. XXVIII. The magistrate court concluded that the State had violated the court's first discovery order. As a sanction for this violation the magistrate ordered that Stuart Jacobson would not be allowed to testify as an expert witness and that the blood test would be excluded from evidence.
Without first seeking permission for an interlocutory appeal from either the magistrate court or the district court, the State filed an appeal from the magistrate's sanction order. Maynard argued to the district court that the sanction order was an interlocutory order and, therefore, was not appealable. The district court held, however, that the appeal was allowable as a permissive appeal pursuant to Idaho Appellate Rule 12 and I.C.R. 54.1(i). The district court then affirmed the magistrate's ruling regarding the discovery violation and sanctions.
The State now appeals from the district court's decision upholding the discovery sanction. Maynard responds that the State's appeal from the interlocutory order was not properly taken as a permissive appeal and therefore should be dismissed.
II. ANALYSIS
We begin with Maynard's contention that the magistrate's order imposing discovery sanctions is not properly appealable.
The State acknowledges that the magistrate's order finding a discovery violation and imposing sanctions is an interlocutory order from which no appeal may be taken as a matter of right. The State argues, however, that the district court properly entertained the appeal, and that we should do so as well, as a permissive appeal of an interlocutory order pursuant to I.C.R. 54.1(i) and I.A.R. 12.
The State does not assert that the magistrate's order excluding evidence as a discovery sanction is "an order granting a motion to suppress evidence" that would be appealable as a matter of right pursuant to I.C.R. 54.1(d) and I.A.R. 11(c)(7). Therefore, we do not address those rules in our analysis.
Idaho Criminal Rule 54.1(i) permits an appeal to the district court from an interlocutory order of the magistrate court when the appeal is "processed in the manner provided by Rule 12 of the Idaho Appellate Rules and accepted by the district court." According to I.A.R. 12, an appeal may be taken from an interlocutory order that is not otherwise appealable under limited circumstances. First, the challenged order must involve a controlling question of law as to which there is substantial grounds for difference of opinion. I.A.R. 12(a). Second, it must appear that an immediate appeal from the order or decree may materially advance the orderly resolution of the litigation. I.A.R. 12(a). And third, the appealing party must first seek permission from both the trial court that issued the interlocutory order and the appellate court. I.A.R. 12(b) and (c). It is the third of these requirements — permission to appeal — that we conclude is dispositive and requires the dismissal of the appeal in this case.
Portions of I.A.R. 12 that are pertinent to this appeal provide:
(a) Criteria for permission to appeal. Permission may be granted by the Supreme Court to appeal from an interlocutory order or decree 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.
(b) Motion to District Court or Administrative Agency — Order. A motion for permission to appeal from an interlocutory order or decree, upon the grounds set forth in subdivision (a) of this rule, shall be filed with the district court or administrative agency within fourteen (14) days from date of entry of the order or decree. The motion shall be filed, served, noticed for hearing and processed in the same manner as any other motion, and hearing of the motion shall be expedited. In criminal actions a motion filed by the defendant shall be served upon the prosecuting attorney of the county. The court or agency shall, within fourteen (14) days after the hearing, enter an order approving or disapproving the motion.
(c) Motion to Supreme Court for Permission to Appeal.
(1) Motion of a Party. Within fourteen (14) days from entry by the district court or administrative agency of an order approving or disapproving a motion for permission to appeal under subdivision (b) of this rule, any party may file a motion with the Supreme Court requesting acceptance of the appeal by permission. A copy of the order of the district court or administrative agency approving or disapproving the permission to appeal shall be attached to the motion. If the district court or administrative agency fails to rule upon a motion for permission to appeal within twenty-one (21) days from the date of the filing of the motion, any party may file a motion with the Supreme Court for permission to appeal without any order of the district court or administrative agency.
Subsection (b) of Rule 12 requires that the appellant first file with the trial court a motion for permission to appeal from an interlocutory order of that court. The motion must be served upon the other party and noticed for hearing, thus allowing an opportunity for the other party to respond to the motion. After the trial court has entered an order either approving or disapproving the motion, the appealing party must then file a motion with the appellate court (in this case, the district court) requesting acceptance of the appeal. Only if the appellate court grants permission may the appeal go forward. I.A.R. 12(d).
In the present case the State made no effort to comply with I.A.R. 12; no motion for permission to appeal was filed either in the magistrate division or in the district court. Nevertheless, the State argues that consideration of the appeal was within the district court's discretion. For this proposition, the State relies upon North Pacific Ins. Co. v. Mai, 130 Idaho 251, 253, 939 P.2d 570, 572 (1997); Kindred v. Amalgamated Sugar Co., 118 Idaho 147, 149, 795 P.2d 309, 311 (1990); and State v. McCarthy, 133 Idaho 119, 123, 982 P.2d 954, 958 (Ct.App. 1999), where appeals were entertained despite noncompliance with I.A.R. 12.
We conclude that these cases are distinguishable from the facts presented here and do not validate the district court's decision to consider the State's appeal. In North Pacific, neither party questioned the appealability of the trial court's decision at any point in the appellate proceedings; the Idaho Supreme Court raised the issue sua sponte. The case had been fully briefed and orally argued, and it was not until after oral argument that the Supreme Court recognized the question concerning appealability. The Court concluded that, under those circumstances, and because the trial court's decision involved a controlling question of law the resolution of which could advance the orderly resolution of the litigation, the Court would consider the appeal. North Pacific, 130 Idaho at 253, 939 P.2d at 572.
Similarly, in Kindred, apparently neither party questioned the appealability of the Industrial Commission order from which the appeal was taken. The Supreme Court, however, recognized the procedural defect. It concluded that "[s]ince this case has been briefed and argued we will consider and treat this appeal as an appeal by permission under I.A.R. 12." Kindred, 118 Idaho at 149, 795 P.2d at 311. Thus, in both North Pacific and Kindred, the respondent failed to challenge the propriety of an appeal from an interlocutory order and effectively waived the issue. Because the presentation of the appeal had been completed before the question of appealability had been identified, the Supreme Court decided to go forward and address the appeal on the merits. Such circumstances are not present here. Maynard has argued, from the beginning of the appeal process, that the State's failure to comply with I.A.R. 12 made the appeal improper.
The Kindred opinion does not disclose whether the appealability issue was raised at oral argument or was identified by the Court only after oral argument. We have examined the appellate briefs filed in that case and determined that the issue was not raised in the briefing of either party.
In a third case relied upon by the State, McCarthy, this Court held that the requirements of I.A.R. 12 were nonjurisdictional and concluded that the appellant's failure to seek permission from the district court for the appeal from a decision of the magistrate court, did not deprive the district court of jurisdiction. Because the respondent had not objected to the noncompliance with I.A.R. 12 before the district court, we held that the respondent had waived the issue. McCarthy, 133 Idaho at 123-24, 982 P.2d at 958-59. There is no such waiver here, where Maynard has complained of the State's noncompliance with I.A.R. 12 at every step of the appeal.
Moreover, the appellant in McCarthy had partially complied with Rule 12 by obtaining approval for the appeal from the magistrate court. We think this factor differentiates McCarthy in a significant way from the case before us, for the trial court's assessment of the desirability of allowing an interlocutory appeal is of great importance. A trial court's role under I.A.R. 12, is to differentiate between those interlocutory orders for which an appeal ought to be permitted because an immediate appeal will ultimately facilitate the litigation, and those where an appeal would unduly disrupt the case or unfairly prejudice a party. The trial court is generally in a far better position than an appellate court to evaluate this factor. Although the appellate court may grant permission for an appeal despite the trial court's refusal to do so, the explanation given by the trial court for its decision provides important information for the appellate court's consideration.
We conclude that the district court erred in allowing the State to go forward with the appeal in this case despite the State's noncompliance with Rule 12, where Maynard made timely objection to the procedural irregularity. Although compliance with Rule 12 may be waived when the respondent makes no complaint, and the untimeliness of a Rule 12 motion may be excused, see I.A.R. 21, Rule 12 may not be utterly disregarded when a timely objection is raised. To hold otherwise would eviscerate the rule. Disregarding the requirement that approval be sought from the trial court would also undermine the trial court's oversight and management of the entire litigation and facilitate "judge shopping" when a party believes that the trial judge would likely decline to approve the appeal.
We emphasize that this is not a case where there has been some effort at compliance, such as filing a motion for permission from at least one of the courts from whom approval must be sought under Rule 12, or filing an untimely motion for permission to appeal.
Accordingly, because the State made no effort to perfect its interlocutory appeal under I.A.R. 12, and Maynard timely objected to this procedural deficiency, we hold that the district court erred in hearing the appeal. For the same reason, the appeal is not properly before this Court, and it is therefore dismissed.
Chief Judge PERRY and Judge GUTIERREZ CONCUR.