On Friday, most of the NCAPB bloggers were attending the NCBA’s annual appellate practice CLE. However, a buzz of non-CLE chatter was excitedly circulating around the room. Had anyone ever heard of the Supreme Court–on its own initiative–taking a case from the Court of Appeals before a decision was filed? By the time I left the CLE, I had confirmed that two pending cases, and potentially a third, had been sua sponte removed from the Court of Appeals’ docket and placed on the Supreme Court’s docket for discretionary review while we were attending the CLE. Further research revealed that the Supreme Court actually had grabbed an astonishing five cases from the Court of Appeals’ docket on Friday.
The five affected appeals will no longer have to wait for a decision from the Court of Appeals, but will go directly to the ultimate authority on State law for their decisions. The cases were at various stages in the Court of Appeals, with some cases in the middle of briefing, while other cases had already been fully briefed and were awaiting decision by the Court of Appeals. The Supreme Court’s “Special Orders” state that while briefs that have been submitted to the Court of Appeals will be considered, the parties may file a new brief with the Supreme Court “consistent with the North Carolina Rules of Appellate Procedure.”
According to the News & Observer, the five “snatche[d]” appeals were all civil cases involving the following subjects:
- The constitutionality of tax-payer funded, private school tuition vouchers (372A14)
- An environmental group’s efforts to stop N.C. State University’s sale of the Hofmann Forest (380A14)
- Duke Energy’s groundwater coal ash pollution dispute (373A14)
- Tobacco farmers’ efforts to recover money held by a tobacco price stabilization organization (374A14)
- Five consolidated cases involving claims by Brunswick County land purchasers that various real estate-related businesses acted improperly during the coastal real estate boom (375A14, 376A15, 377A14, 378A14, 379A14)
In the past, the Supreme Court has on rare occasion granted a party’s petition to bypass the Court of Appeals and obtain appellate review directly from the Supreme Court. “Bypass Petitions” or “PDRs Prior” are expressly contemplated by N.C. R. App. P. 15(a) (stating that “either prior to or following a determination by the Court of Appeals . . . any party” may file a petition for discretionary review).
What the Supreme Court did on Friday, however, was virtually unheard of (at least in the past decade). Still, N.C. R. App. P. 15(e)(2) allows the Supreme Court to certify a case for review “upon its own initiative” and “without prior notice to the parties.” Appellate Rule 15(e)(2), when read in conjunction with Appellate Rule 15(a), allows sua sponte discretionary review both before or after a determination by the Court of Appeals.
What likely motivated Friday’s seismic appellate shift? As our blog has noted before, the Supreme Court has weathered some criticism in recent years for the number of opinions it issues each year. At the end of September 2014, Lawyers Weekly issued a two-part series examining both the number and types of cases that have been decided in recent years. The article noted that all eight candidates for the four open seats on the Supreme Court seemed to agree that the Court needed to issue more opinions.
Furthermore, there is a new Chief at the Supreme Court. Before his elevation to Chief Justice on September 1 , then Justice Mark Martin had stated in his “Administration of Justice Plan for NC” that he planned to “[c]alendar more civil appeals for full briefing and argument at the Supreme Court.” Taking five civil cases from the Court of Appeals’ docket in a single day is certainly one way to accomplish that goal. It could also signal to North Carolina litigants that the Supreme Court has a renewed interest in expediting the appellate timeline for complex civil cases that should inevitably be decided by the Supreme Court. In other words, perhaps it is time for appellate practitioners to take a second look at those “Bypass Petitions” that have seemed such long-shots in years past.
I am interested in knowing your thoughts on this latest development. Were you surprised by the Supreme Court’s actions? Any insight on why the Supreme Court selected these 5 cases for immediate review? Do you think this action signals a changed attitude by the Supreme Court to bypass petitions, or petitions for discretionary review in general? Let us know in the comments below.
H/T to our friend, Toby Hampson, for alerting us to the News & Observer article this morning.