A few months ago, Carrie blogged about the dismissal of the State’s appeal by the Court of Appeals in North Carolina State Board of Education v. State of North Carolina & North Carolina Rules Review Commission. A substantial development occurred in this case in the Supreme Court on Thursday.
As discussed previously, the General Assembly amended section 7A-27 and other statutes to provide special trial and appeal pathways for facial constitutional challenges to a statute: 1) initial review by a three-judge panel, and 2) direct appeal to the Supreme Court if a law is declared facially invalid. As applied challenges, however, continue to be appealed first to the North Carolina Court of Appeals.
In North Carolina State Board of Education, a single trial court judge found a statute unconstitutional (an indication that it was an as applied ruling). After appealing the trial court order to the Court of Appeals, the State grew concerned that the opinion might be construed as finding the law facially unconstitutional (which, under a strict reading of amended 7A-27, would have required direct appeal to the Supreme Court). The State moved to remand the order to the trial court for clarification on this issue. However, the Court of Appeals summarily dismissed the appeal, holding that “it was without jurisdiction to hear the appeal.”
Last week, the Supreme Court said “not so fast,” granted certiorari to reinstate the State’s appeal, and remanded the case to the Court of Appeals. The Supreme Court’s order expressly held that the trial court’s order “did not hold that an act of the Generally Assembly was facially invalid” and remanded the “case to the Court of Appeals for consideration of defendants’ challenges to the validity of the trial court order on the merits.”
The order seems to confirm what the Supreme Court previously said in Town of Boone v. North Carolina, 777 S.E.2d 759 (N.C. 2015):
According to the plain text of the statute under which appeal has been sought, N.C.G.S. § 7A-27(a1) (2014), appeal of right lies directly to this Court only “from [an] order or judgment of a court, either final or interlocutory, that holds that an act of the General Assembly is facially” unconstitutional. (Emphasis added.) Here, however, neither December order included such a holding.
Nonetheless, the recent amendments to section 7A-27 make the determination of which appellate court has jurisdiction much more complicated. The Court of Appeals’ dismissal of the State’s appeal created a discussion among the appellate bar regarding whether North Carolina should adopt a transfer procedure permitting an appeal to be moved to the correct appellate court rather than dismissed outright. Other states have such a procedure. See, e.g., Ark. R. Sup. Ct. & Ct. App. 1-2 (“No case filed in either the Supreme Court or the Court of Appeals shall be dismissed for having been filed in the wrong court but shall be transferred or certified to the proper court.”). The Supreme Court’s decision will likely dampen that transfer procedure discussion–for now.
As always, we will keep you posted.