The procedure for having a North Carolina Superior Court case designated as “exceptional” pursuant to Rule 2.1 of the General Rules of Practice for the Superior and District Courts of North Carolina is relatively straightforward and typically follows this process: (1) A party (or the parties) makes a motion for 2.1 designation to a presiding or senior resident superior court judge; (2) the superior court judge makes a recommendation to the Chief Justice of the Supreme Court of North Carolina that the case be designated as exception pursuant to Rule 2.1; (3) the Chief Justice designates the case as exceptional and assigns a specific superior court judge to preside over the case for the life of the matter. But once the Chief Justice makes this designation and assigns the judge to preside over the case, can a party dissatisfied with that result appeal? The answer appears to be “no,” or at least not through the ordinary appellate process.
In an opinion issued on Tuesday by the Court of Appeals in Town of Belhaven v. Pantego Creek, the appellant argued that the Senior Resident Superior Court Judge for the Second Judicial District and the Chief Justice of the Supreme Court of North Carolina deprived Plaintiffs of their right to a fair and impartial hearing when the Chief Justice designated the present case as an exceptional case under Rule 2.1 of the General Rules of Practice for the Superior and District Courts upon the formal recommendation of the Senior Resident Superior Court Judge for the Second Judicial District and appointed Judge Albright to adjudicate the matter.” The Court held that it lacked jurisdiction to consider this issue and dismissed this portion of the appeal, stating:
We are without jurisdiction to consider this matter on appeal as the superior court had no jurisdiction to overrule a command of the Supreme Court and our jurisdiction is derivative of the superior court’s jurisdiction. See State v. Earley, 24 N.C. App. 387, 389, 210 S.E.2d 541, 543 (1975) (“[T]he jurisdiction of the appellate courts on an appeal is derivative. If the trial court has no jurisdiction, the appellate courts cannot acquire jurisdiction by appeal.”).
Thus, it appears that once the Chief Justice makes a 2.1 exceptional case designation, that issue is essentially decided and non-appealable–at least not through the normal channels. But could the designation possibly be appealed directly to the Supreme Court of North Carolina? Perhaps. As noted in a blog post from this time last year, the different but related issue of whether (and how) the designation of a case as “mandatory complex business” can be appealed is pending before Supreme Court of North Carolina in Hanesbrands v. Fowler. It is possible that the Supreme Court’s determination in Hanesbrands on the “mandatory complex business” designation appeal issue will provide some clarity on the “exceptional” designation appeal issue as well. As Matt said last year, “stay tuned.”