A couple of years ago, the North Carolina Supreme Court found itself with a heftier docket, thanks to new laws like the Business Court Modernization Act that sent certain appeals directly to the Supreme Court.

If a bill introduced today in the General Assembly becomes law, the Court of Appeals will now have its own surprising increase in work.  Among many other things, Senate Bill 4 would:

  • Create en banc jurisdiction in the Court of Appeals, wherein a majority of the court’s fifteen judges could vote to hear a case as a full court;
  • Eliminate the direct appeal to the Supreme Court from orders finding an act of the General Assembly facially unconstitutional, returning jurisdiction over such appeals to the Court of Appeals; and
  • Make appellate judge and justice elections partisan again.

Our Court of Appeals judges have quite heavy workloads already.  This bill would impose a substantial burden on those fifteen judges, their law clerks, and the clerk of court and his staff.  Consider that nearly 600 petitions for discretionary review are filed every year in the Supreme Court.  Those petitions are granted at a rate of less than 10%, but they are filed anyway.  Thus, I think it is not unlikely that many would-be Supreme Court petitioners would, if this bill becomes law, first avail themselves of the new Court of Appeals en banc pathway, adding another step in the already arduous appellate journey.

It is also notable that the bill contains no procedures for how en banc hearings or rehearings would be sought.  If the bill passes, it becomes effective immediately.  The Supreme Court may be required to swiftly prepare appellate rules governing the new pathway.

Finally, it is worth considering the interplay between the en banc legislation and this, from Article IV of the North Carolina Constitution:

Sec. 7. Court of Appeals.

The structure, organization, and composition of the Court of Appeals shall be determined by the General Assembly. The Court shall have not less than five members, and may be authorized to sit in divisions, or other than en banc. Sessions of the Court shall be held at such times and places as the General Assembly may prescribe.

For Professor Orth’s take on the meaning of “other than en banc,” see here.

We will keep you posted as this bill progresses.

–Mat Leerberg