On Monday, the North Carolina Supreme Court heard oral argument in Cubbage v. The Board of Trustees of the Endowment Fund of NC State University (a.k.a., the “Hofmann Forest appeal”)  The appeal involves environmental groups’ efforts to stop N.C. State’s sale of Hofmann Forest.  As we previously reported here, the Hofmann Forest appeal is one of five cases that the North Carolina Supreme Court sua sponte “grabbed” on 10 October for consideration before the Court of Appeals could decide the cases.  Indeed, the order assuming jurisdiction in this case was particularly unusual, as the Court of Appeals voted on the case (under Rule 30(f)) on 26 August and may have been close to issuing a decision in this time-sensitive matter.  The Hofmann Forest appeal appears to be the first of this group of cases argued before the Supreme Court.

With only five weeks between the Supreme Court’s issuance of the “PDR-prior” (or “Bypass PDR”) order and Monday’s oral arguments,  you may ask, “How did oral argument occur so quickly?” Well, on 27 October, the appellants were denied a temporary stay of the approaching sale of the property.  However, in the same order, the Supreme Court expedited the appeal and scheduled oral argument for 17 November.  Practically, that meant that the Hofmann Forest appeal would be decided by the Supreme Court based on the briefs already on file in the Court of Appeals, and the Supreme Court oral argument.

It should be interesting to see how quickly the Supreme Court releases its opinion in this case.  If an opinion is not issued soon, some interesting procedural questions could arise.  For example, the opponents of the sale noted in their stay request that that the sale is scheduled to close in mid-November 2014.  Given the Supreme Court’s denial of the stay request, if the closing proceeds before the Supreme Court can issue its opinion, would the appeal be moot?

Moreover, Justice Bob N. Hunter participated in the oral argument on Monday, but his term on the Court ends on 31 December 2014.  What if the Hoffman Forest opinion is not released before Justice Hunter departs?  Would the Supreme Court re-hear the case once Justice Sam “Jimmy” Ervin is seated?  Would the decision to re-hear depend on whether the Court would have issued a 4-3 split with Justice Hunter’s voter being the deciding vote?  Finally, what if Justice Hunter, Justice Ervin, or another justice decides not to participate in the decision of the case and the Court splits 3-3?  There is no Court of Appeals’ decision for the Supreme Court to affirm.  (Supreme Court “ties” typically yield an affirmance of the Court of Appeals’ decision “without precedential value.”)  Would that mean that the trial court’s decision would be affirmed by the Supreme Court without precedential value?

Interesting times for our appellate courts. Let us know your thoughts in the comments below.  We will keep you posted!

–Beth Scherer