Chapter 42: Appeals

42-1. An appeal is the transfer to a higher court of a judicial case on which
judgment has been rendered in a lower court, and is allowable only to the party
against whom the decision has been rendered. The parties shall be known as
the appellant and appellee. An appeal cannot be made to any court other than
the next higher, except with its consent.

42-2. The only parties entitled to an appeal are those who have submitted to
a regular trial, those appealing a censure in a BCO 38-1 case without process,
and those appealing a BCO 34-10 divestiture without censure.

42-3. The grounds of appeal are such as the following: any irregularity in
the proceedings of the lower court; refusal of reasonable indulgence to a party
on trial; receiving improper or declining to receive proper evidence; hurrying
to a decision before all the testimony is taken; manifestation of prejudice in
the case; and mistake or injustice in the judgment and censure.

42-4. Notice of appeal may be given the court before its adjournment.
Written notice of appeal, with supporting reasons, shall be filed by the
appellant with both the clerk of the lower court and the clerk of the higher
court, within thirty (30) days of notification of the last court’s decision.
Notification of the last court’s decision shall be deemed to have
occurred on the day of mailing (if certified, registered or express mail of a
national postal service or any private service where verifying receipt is utilized),
the day of hand delivery, or the day of confirmed receipt in the case of e-mail
or facsimile. Furthermore, compliance with such requirements shall be deemed
to have been fulfilled if a party cannot be located after diligent inquiry or if a
party refuses to accept delivery. No attempt should be made to circularize the
courts to which appeal is being made by either party before the case is heard.

42-5. It shall be the duty of the clerk of the lower court to file with the clerk
of the higher court, not more than thirty (30) days after receipt of notice of
appeal, a copy of all proceedings in connection with the case, including the
notice of appeal and reasons therefor, the response of the lower court, the
evidence, and any papers bearing on the case, which together shall be known
as “the Record of the Case”, and the higher court shall not admit or consider
anything not found in this “Record” without the consent of the parties in the
case. Should new evidence come to light the case shall be remanded to the
lower court from which the appeal was made, unless both parties consent to
admit the new evidence and proceed with the case.

42-6. Notice of appeal shall have the effect of suspending the judgment of
the lower court until the case has been finally decided in the higher court.
However, the court of original jurisdiction may, for sufficient reasons duly
recorded, prevent the appellant from approaching the Lord’s Table, and if an
officer, prevent him from exercising some or all his official functions, until the
case is finally decided (cf. BCO 31-10; 33-4). This shall never be done in the
way of censure, and shall require a two-thirds (2/3) majority.

42-7. If a lower court shall neglect to send up “the Record of the Case” or
any part of it, to the injury of the appellant, it shall receive a proper rebuke
from the higher court, and the judgment from which the appeal has been taken
shall be suspended until “the Record” is produced upon which the issue can be
fairly tried.

42-8. After a higher court has decided that an appeal is in order and should
be entertained by the court, the court shall hear the case, or in accordance with
the provisions of BCO 15-2 and 15-3, appoint a commission to do so. At the
hearing, after the Record has been read, each side should be allotted not over
thirty (30) minutes for oral argument, the appellant having the right of opening
and closing the argument. After the hearing has been concluded, the court or
commission should go into closed session, and discuss the merits of the case.
The vote then should be taken, without further debate, on each
specification in this form:
Shall this specification of error be sustained?
If the court or commission deem it wise, it may adopt a minute
explanatory of its action, which shall become a part of its Record of the Case. The
court or commission shall designate one of its members to write the opinion, which
opinion shall be adopted by the court or commission as its opinion.

42-9. The decision of the higher court may be to affirm in whole or in part;
to reverse in whole or in part; to render the decision that should have been
rendered; or to remand the case to the lower court for a new trial. In every case
a written opinion shall be prepared, and a copy of the opinion and judgment
entered will be delivered personally or mailed to the lower court and the
appellant, with a written receipt required.

42-10. An appellant may represent himself or be represented as provided in
BCO 32-19.

42-11. An appellant shall be considered to have abandoned his appeal if he
fails to appear before the higher court, in person or by counsel, for a hearing
thereof, after he has been properly notified; but an appellant may waive, in
writing, his right to appear with permission of the court and not be considered
to have abandoned his case. In case of such failure to appear, the judgment of
the lower court will stand unless the appellant gives to the court a prompt and
satisfactory explanation.