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17.1. Inability to Act
A court of appeals is unable to take immediate
action if it cannot — within the time when action must
be taken — assemble a panel because members of the
court are ill, absent, or unavailable. A justice who is
disqualified or recused is unavailable. A court of
appeals’ inability to act immediately may be
established by certificate of the clerk, a member of the
court, or a party’s counsel, or by affidavit of a party.
17.2. Nearest Available Court of Appeals
If a court of appeals is unable to take immediate
action, the nearest court of appeals that is able to take
immediate action may do so with the same effect as
the other court. The nearest court of appeals is the one
whose courthouse is nearest — measured by a straight
line — the courthouse of the trial court.
17.3. Further Proceedings
After acting or refusing to act, the nearest court of
appeals must promptly send a copy of its order, and
the original or a copy of any document presented to it,
to the other court, which will conduct any further
proceedings in the matter.