#25672-denied-PER CURIAM

2011 S.D. 26

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                     * * * *

            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.

                                     * * * *

                    APPEAL FROM THE CIRCUIT COURT
                    OF THE FOURTH JUDICIAL CIRCUIT
                   LAWRENCE COUNTY, SOUTH DAKOTA

                                     * * * *

                     HONORABLE WARREN G. JOHNSON
                                Judge

                                     * * * *

MARTY J. JACKLEY
Attorney General

and

ANN M. HOLZHAUSER
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota                           Attorneys for appellee State of
                                               South Dakota.


JOSEPH M. KOSEL
Johns & Kosel, Prof. LLC
Lead, South Dakota                             Attorney for appellant Father
                                               B.H., Sr.

                                     * * * *
                                               CONSIDERED ON BRIEFS
                                               ON SEPTEMBER 17, 2010

                                               OPINION FILED 06/15/11
#25672

PER CURIAM

[¶1.]         Petitioner (Father) filed a notice of appeal seeking to appeal

termination of his parental rights under SDCL chapter 26-8A. Father’s appeal was

dismissed because the original notice of appeal did not contain his signature as

required by SDCL 15-26A-4. Father now petitions this Court to reinstate his

appeal. A signed notice of appeal accompanied the petition for reinstatement.

Because the signing requirement of SDCL 15-26A-4 is jurisdictional and

jurisdictional requirements cannot be waived, the petition for reinstatement is

denied.

                              PROCEDURAL HISTORY

[¶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. SDCL 15-26A-4 requires that an

appellant and his or her attorney sign the notice of appeal when seeking to appeal

an order terminating parental rights under SDCL chapter 26-8A. By order filed

June 30, 2010, this Court dismissed the appeal.

[¶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.




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                                     ANALYSIS

[¶4.]        This Court takes notice 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 SDCL chapter

26-8A to be cured after the time for filing a notice of appeal expired. In addition to

the rules addressed above, other rules of appellate procedure factor into the

analysis.

[¶6.]        SDCL 15-26A-2 provides:

             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.

SDCL 15-26A-92 provides:

             The Supreme Court for good cause shown 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 SDCL 15-26A-4 could be suspended. However,

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“[t]he failure of the appellant and his or her attorney to sign a notice of appeal

under chapter 26-8A deprives the Supreme Court of jurisdiction to decide the

appeal.” SDCL 15-26A-4.

[¶8.]         Strict compliance with the signing requirement is suggested by the

nature of the only explicit exception to rule 15-26A-2. The sole exception contained

within that rule is timely filing a notice of appeal – a jurisdictional requirement.

“This Court is without jurisdiction of an untimely appeal.” Long v. Knight Const.

Co., 262 N.W.2d 207, 209 (S.D. 1978). But notices of appeal are “to be liberally

construed in favor of their sufficiency.” Int’l Union of Operating Eng’rs Local No. 49

v. Aberdeen Sch. Dist. No. 6-1, 463 N.W.2d 843, 844 (S.D. 1990).

[¶9.]        In interpreting the relevant rules, the analysis provided by other

courts addressing similar situations is instructive. See State v. Mulligan, 2005 S.D.

50, ¶ 6, 696 N.W.2d 167, 169 (noting the decision’s consistency with application of

similar rules of federal appellate procedure).

[¶10.]       In Torres v. Oakland Scavenger Co., the United States Supreme Court

addressed the possibility of excusing non-compliance 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

acknowledging 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


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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 courts 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 to 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 court 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 can never be ‘harmless’ or waived by


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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 the 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 dismissed for failure to exhaust

administrative remedies. Id. at 759-60, 121 S. Ct. at 1804. Becker timely filed a

notice of appeal. On the notice of appeal, Becker typed, but did not sign, his

signature. Id. The court of appeals dismissed the appeal for want of a signature,

deeming the failure jurisdictional. The Supreme Court reversed, holding “[f]or want

of a signature on a timely notice, the appeal is not automatically lost.” Id. at 760,

121 S. Ct. at 1804.

[¶14.]         Federal Rule of Civil Procedure 11 requires all documents be signed by

the party’s attorney, or the party, if not represented. This requirement includes

notices of appeal. Becker, 532 U.S. at 768, 121 S. Ct. at 1808.

[¶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.” Fed. R. Civ. P. 11(a). See SDCL 15-6-


1.       Changes in the language of Rule 3 made after Torres was decided softened
         application of this rule in the context of naming parties to an appeal. Becker
         v. Montgomery, 532 U.S. 757, 767, 121 S. Ct. 1801, 1807, 149 L. Ed. 2d 983
         (2001) (“The current Rule 3(c)(2), . . . was designed ‘to prevent the loss of a
         right to appeal through inadvertent omission of a party’s name[.]’”).

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11(a) (“An unsigned paper shall be stricken unless omission of the signature is

corrected promptly after being called to the attention of the attorney or party.”).

“[T]he signature requirement and the cure for an initial failure to meet the

requirement go hand in hand. The remedy for a signature omission, in other words,

is part and parcel of the requirement itself.” Becker, 532 U.S. at 765, 121 S. Ct. at

1806.

[¶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 requirements which are not jurisdictional can be waived.

Becker, 532 U.S. at 768, 121 S. Ct. at 1808. 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.

Supreme Court decision in Becker may have been different had Rule 11 not

contained a provision for cure). This analysis applies to signing requirements



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enacted especially for abuse and neglect proceedings. Compare In re L.B., 653

S.E.2d 240, 244 (N.C. Ct. App. 2007), aff’d per curiam, 666 S.E.2d 751 (N.C. 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 SDCL 15-26A-4 includes

two sentences. First, “[a] notice of appeal filed under chapter 26-8A shall be signed

by the appellant and his or her attorney.” SDCL 15-26A-4. The jurisdictional

language was added to the last paragraph of the rule: “[t]he failure of the

appellant and his or her attorney to sign a notice of appeal under chapter 26-8A

deprives the Supreme Court of jurisdiction to decide the appeal.” Id. “When we

interpret a statute or court rule, ‘[n]o wordage should be found to be surplus. No

provision can be left without meaning. If possible, effect should be given to every

part and every word.’” Maynard v. Hereen, 1997 S.D. 60, ¶ 14, 563 N.W.2d 830, 835

(quoting Cummings v. Mickelson, 495 N.W.2d 493, 500 (S.D. 1993)).

[¶19.]       The signing requirement of SDCL 15-26A-4 does not arise from

application of our version of Rule 11 (SDCL 15-6-11(a)). Unlike Rule 11, the

language of SDCL 15-26A-4 requiring appellant’s signature in appeals under SDCL

chapter 26-8A does not provide a manner in which the applicable deficiency may be

cured. There is no “cure for an initial failure to meet the requirement” to go hand in

hand with the requirement itself. Becker, 532 U.S. at 765, 121 S. Ct. at 1806.

Because there is no provision for cure, and the signing requirement of SDCL 15-

26A-4 is explicitly jurisdictional, failure to comply with its mandate cannot be


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excused. See Torres, 487 U.S. at 317 n.3, 108 S. Ct. at 2409 n.3 (“a litigant’s failure

to clear a jurisdictional hurdle can never be ‘harmless’ or waived by a court”).

Therefore Father cannot avail himself of the benefits of SDCL 15-26A-2 and SDCL

15-26A-92.

[¶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 SDCL chapter 26-8A. SDCL 15-26A-4. Before this defect was

cured, the time for filing an appeal expired. Any notice of appeal filed after the

prescribed period expired failed to confer jurisdiction upon this Court. See Long,

262 N.W.2d at 209. Failure to clear this jurisdictional hurdle deprives this Court of

jurisdiction to consider the merits of the appeal. 2

[¶21.]         Petition for reinstatement denied.

[¶22.]         GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

MEIERHENRY, and SEVERSON, Justices, participating.




2.       Any alteration of this rule would need to be addressed through a change in
         the court rules or by statute.
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