As a champion of the appellate courts’ broad certiorari powers, I am eager for the Supreme Court of North Carolina to review the legal questions raised by cases such as State v. Biddix and State v. Ledbetter I and II.  For prior posts, see here , here, here, and here.  Those questions include (1) whether there is a conflict between Appellate Rule 21 and N.C. Gen. Stat.§  15A-1444(e), (2) if there is a conflict between a jurisdictional statute and an appellate rule, how is that conflict resolved, and 3) has the Supreme Court’s opinion in State v. Stubbs already resolved these issues?

Unfortunately, the best chance for the Supreme Court to weigh in on these issues may have been forfeited when the Biddix defendant—only days before oral argument—withdrew his notice of appeal based on Judge Geer’s dissent.

At the time, I pondered whether another Court of Appeals judge would champion Judge Geer’s more expansive view of the appellate courts’ authority under Rule 21 and State v. Stubbs.  (Judge Geer left the bench soon after Biddix was decided).

Answer: “Yes.”  In State v. Jones, Judge Zachary—joined by Chief Judge McGee and Judge Hunter— held that Appellate Rule 21 did not prevent the court from considering the defendant’s petition for writ of certiorari, which is jurisdictionally authorized under section 15A-1444. In doing so, the Jones court concluded that Biddix and Ledbetter were incorrectly decided. The Jones court also formally recognized a new exception to In re Civil Penalty, the Supreme Court opinion that states the general rule that one panel of the Court of Appeals cannot overrule another panel. The Jones court stated:

We are aware that in two instances this Court has held, notwithstanding the holding of Stubbs, that we are without authority to issue a writ of certiorari in order to review a defendant’s appeal following his entry of a plea of guilty. [Citations to Biddix and Ledbetter].

We are, of course, also cognizant that where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. [Citation to In re Civil Penalty].  Thus, as a general rule, we are bound by prior opinions of this Court.

However, this Court has no authority to reverse existing Supreme Court precedent. It is elementary that we are bound by the rulings of our Supreme Court. We have examined both Biddix and Ledbetter and conclude that these cases fail to follow the binding precedent established by Stubbs, and as a result, do not control the outcome in the present case.


Beyond the underlying legal issues, Jones raises interesting questions of appellate practice and procedure. The Court of Appeals has previously declined to follow decisions that overlooked controlling Supreme Court authority.  E.g. State v. Williams, 215 N.C. App. 412, 425, 715 S.E.2d 553, 561 (2011). However, Biddix, Ledbetter, and Jones all addressed the same legal issue.  Significantly, they did not involve a situation in which the prior panel overlooked controlling Supreme Court precedent or in which a controlling Supreme Court opinion was issued after the first panel decision. Instead, Biddix and Ledbetter specifically considered the effect of the Supreme Court’s opinion in Stubbs and came to a different conclusion than the Jones panel.

Thus, how directly on point does the prior Supreme Court opinion have to be for the Jones exception to In re Civil Penalty to apply?  Does it matter how old the Supreme Court precedent is?  And if subsequent Court of Appeals panels believe that the decision in Jones conflicts with In re Civil Penalty, would principle dictate that those panels disregard or follow Jones?  (This last question involves somewhat of a legal Sophie’s choice!)

More broadly, the rule announced in In re Civil Penalty works under the presumption that the first Court of Appeals opinion is the legally correct decision. While the Supreme Court can resolve important issues on which reasonable minds differ, relying solely on potential review in the Supreme Court is an imperfect solution. (Remember, the Biddix appeal to the Supreme Court was withdrawn).

It would be great if the Court of Appeals judges could collectively resolve differences of opinion another way—maybe en banc review?  However, six month into this new authority, practitioners are still waiting for the Court of Appeals to grant its first en banc review.

As always, I am eager to know your thoughts!

–Beth Scherer