When New Issues Arise on Appeal, Appellate Division Should Conduct Oral Argument Even if No Party Originally Requested It

State in the Interest of D.M., 238 N.J. 2 (2019). In this juvenile delinquency case, neither the State nor defendant sought oral argument in the Appellate Division. The State, the respondent in that court, explained that it believed the issues raised by defendant on appeal of the Family Part’s finding of delinquency by endangering the welfare of a child were governed by settled law.

However, the Appellate Division sua sponte directed the parties to file supplemental briefs on a new issue: ““whether the lack of a finding of penetration or coercion undermines the delinquency finding of endangering the welfare of a child, in light of the four-year age difference required for a delinquency finding of sexual assault” under N.J.S.A. 2C:14-2(b). The State then requested oral argument, and defendant did not oppose that, but the Appellate Division denied that request.

The Appellate Division reversed the finding of delinquency based on its resolution of that newly-raised statutory interpretation issue. The Supreme Court granted the State’s petition for certification, and today the Court, applying the “narrow” standard of review of delinquency adjudications, affirmed that ruling, but on grounds different from those relied on by the Appellate Division. In an opinion by Justice Patterson, as to which Justice Albin filed a separate concurrence, the Court rejected what it found was the Appellate Division’s rewriting of the statute.

Nonetheless, the Justices upheld the reversal of the delinquency adjudication because the Family Part had disavowed at the disposition hearing key aspects of that court’s previous factual findings. That “extraordinary setting” made it unclear whether the State had proven its case by a reasonable doubt.

The appellate practice takeaway from today’s opinion relates to the issue of oral argument in the Appellate Division. Rule 2:11-1(b) provides that, in the Appellate Division, “appeals shall be submitted for consideration without argument, unless argument is requested by one of the parties within 14 days after service of the respondent’s brief or is ordered by the court.” Here, neither party requested oral argument with the time specified in Rule 2:11-1(b). When the State then requested argument after the Appellate Division raised a new issue and called for supplemental briefs, the panel denied that request, presumably because it was untimely.

Justice Patterson noted that the panel’s injection of the new issue “substantially expanded the issues on appeal and the potential impact of the appeal on other juvenile adjudications.” In that circumstance, she wrote, “[s]o that counsel could address that important –and ultimately dispositive –issue in argument, the panel should have granted the State’s unopposed motion for oral argument.” The Court “caution[ed] appellate courts in similar settings involving expanded issues to seriously consider granting motions for oral argument, even when no party requested argument when it filed its original brief.”

That is a sound result. Parties who do not timely request oral argument can be held to a waiver of that right when the issues have not changed. When new issues are presented after the time to request argument has passed, however, parties should have a new opportunity to request argument. Today’s decision points toward that outcome.