A Petition for Writ of Certiorari continues to be the most powerful tool in the Supreme Court’s arsenal.  Last Friday, the North Carolina Supreme Court used its certiorari authority to revive an appeal involving the State Bar and a sitting superior court judge.  The Court did so six months after the appeal was dismissed by the Court of Appeals, and four months after it had declined to issue a PDR.

While the twist and turns in Tillett v. North Carolina State Bar could rival an episode of the upcoming “24” reboot, here is a brief summary. A dispute arose between a superior court judge and local law enforcement.  Ultimately, the North Carolina Judicial Standards Commission began an investigation of the judge, alleging that the judge had misused his authority during the course of that dispute.  The complaint was resolved by a public reprimand entered with the judge’s consent.

End of story?  Not quite.

Two years later the State Bar filed an administrative complaint against the same judge, alleging that the same underlying conduct violated its Rules of Professional Conduct.  The judge moved to dismiss the State Bar’s complaint.  One of the grounds was that the State Bar did not have the authority to discipline a sitting superior court judge.

That issue was considered by the State Bar’s Disciplinary Hearing Commission, which rejected the judge’s argument.  The judge sought immediate review in the Court of Appeals of this interlocutory decision. In December 2015, the Court of Appeals dismissed Judge Tillett’s interlocutory agency appeal without opinion.

However, while the agency appeal was still pending in the Court of Appeals, the judge filed in the North Carolina Supreme Court  a “PDR Prior” or “Bypass Petition” seeking Supreme Court review of the agency’s decision without having to first go through the Court of Appeals.  (Note: Section 7A-31 and Appellate Rule 15 prohibit the Supreme Court from issuing a PDR Prior for appeals from the North Carolina State Bar. Because I cannot access the State’s response, I am not sure if the State raised this point in the Supreme Court).  The  Supreme Court did not immediately rule on the PDR Prior, and the appeal proceeded in the Court of Appeals.  A few weeks after the Court of Appeals dismissed the appeal, the Supreme Court in January 2016 denied the judge’s PDR “Prior.”

Meanwhile, the judge was concurrently pursuing a Superior Court action seeking to enjoin the State Bar’s disciplinary efforts.  The judge argued, among other things, that the State Bar’s exercise of disciplinary authority against a sitting judge was facially unconstitutional.  In December 2015, the trial court denied the preliminary injunction request as premature.  The judge then appealed the superior court’s decision to the North Carolina Court of Appeals.  This second appeal is currently winding through the Court of Appeals.

From January to May 2016 something caused the Supreme Court to change its mind about its earlier decision not to review the judge’s appeal of the agency decision.  Perhaps it was the State Bar’s scheduling of a June 27 hearing to determine what disciplinary action it would take against the judge?  After all, if the judge’s law license was suspended, he would have to give up his judicial seat.

Whatever the reason, on Friday, May 27, the Supreme Court issued an unexpected order.  The Court stated that while it had previously denied the judge’s request for a PDR in January 2016,

“upon reconsideration, the Court, ex mero motu, deems the question presented by the case to be of such importance that the invocation of our supervisory jurisdiction is warranted. Accordingly, the Court now issues a writ of certiorari to review the question presented in defendant’s petition:

Do the North Carolina State Bar Council and the Disciplinary Hearing Commission have the jurisdictional authority to discipline a judge of the General Court of Justice for conduct as a judge for which the judge has already been disciplined by the Judicial Standards Commission?”

The Supreme Court has stayed “all other proceedings” until it can determine this question.

At first, I mistakenly thought the Supreme Court was seeking to review the trial court appeal currently pending in the Court of Appeals.  However, the Supreme Court’s writ of certiorari is directed toward the agency appeal dismissed by the Court of Appeals 6 months ago.  Given that the Supreme Court had previously denied the PDR (and no one had sought certiorari review), its decision to reconsider the rejected PDR “Prior”—sua sponte and four months later—probably caught the parties by surprise.  The unusual procedural posture is likely why the Supreme Court’s decision on Friday  to “reconsider its earlier decision” was issued pursuant to its certiorari authority, and not its PDR authority.

We have blogged before about how certiorari is the most powerful tool in an appellate court’s arsenal.   You are now a witness to certiorari’s sua sponte authority to raise appeals from the dead–even appeals the Supreme Court had previously killed.  Of course, my “eternal optimist” friends and colleagues (you know who you are) will undoubtedly find renewed hope for their own “long shot” appellate strategies.  It remains to be seen whether the judge’s unexpected reversal of fortune will prove fatal to the State Bar’s efforts.

–Beth Scherer