A dissenting opinion from the North Carolina Court of Appeals goes a long way. Unlike the procedures in many other jurisdictions, a single judge on our intermediate appellate court can create an automatic right to appellate review in our Supreme Court by penning a dissenting opinion. In a system where requests for discretionary review from a unanimous Court of Appeals decision are granted less than 10% of the time, “getting a dissent” in the Court of Appeals can yield big spoils—a right to further appellate review, a new set of briefs, and guaranteed oral argument before the seven top jurists in our state.
Still, our Court of Appeals judges bear a heavy caseload, and the decision to dissent is a decision to add more work to their already busy schedules. In addition, because any final judgment is appealable as of right to the Court of Appeals, many of the appeals the Court of Appeals considers are not close calls. Dissenting opinions are, therefore, rare.
Or, were rare.
In 2015, our Court of Appeals judges issued 19 dissents (18 in published decisions, and 1 in unpublished decisions) out of about 1,000 total written opinions—a dissent rate of about 1.9%.
So far in 2016, our Court of Appeals judges have issued 22 dissents (20 in published decisions, and 2 in unpublished decisions) out of about 385 written opinions—a dissent rate of about 5.7%.
Here is the breakdown by judge:
|2015 Published Opinions||2016 to date Published Opinions|
|2015 Unpublished Opinions||2016 to date Unpublished Opinions|
The data are quirky. For example, the opinions issued on April 5, 2016 included three dissents that arose from a single panel of judges who sat together on November 4, 2015. However, it is not just one sitting or one group of judges that appears to have caused the uptick.
In any event, this year’s 22 dissenting opinions created 22 appeals as of right to our Supreme Court, which has itself been much busier of late.
We will keep an eye on the data to see whether this trend continues.
Finally, many thanks to appellate-court-watcher Kenzie Rakes for collecting these data and pointing out the deluge of dissents.
**Correction: the original post listed dissenting opinions from Judge Dietz in 2015 and Judge Zachary in 2016. In fact, both opinions were concurrences. The table and figures have been revised accordingly.**