When less than a full complement of Supreme Court Justices considers a case being reviewed from the Court of Appeals, the result is sometimes an even split.  These days, the tie is usually announced in a per curiam opinion that includes such language as “Because the members of the Court are equally divided as to both issues, the holding of the Court of Appeals is left undisturbed and stands affirmed without precedential value.” See, e.g., Piro v. McKeever, 369 N.C. 291, 794 S.E.2d 501 (2016).  But what does “stands affirmed without precedential value” mean?  Without precedential value to whom?

The Supreme Court has not always used language similar to that quoted above when the Court is evenly split. For instance, in State v. Johnson, 286 N.C. 331, 210 S.E.2d 260 (1974), the Court noted that Justice Moore was not participating in the case, then stated:  “The remaining six justices being equally divided in opinion as to whether prejudicial error was committed in the trial below, the judgment of the Superior Court stands affirmed in accordance with the usual practice in such cases and decides this case without becoming a precedent.”

However, the Supreme Court in Johnson had allowed the appellants to bypass the Court of Appeals.  The remaining Supreme Court opinions that I could find which use language like that found in Johnson all preceded the creation of the Court of Appeals.  So when the Supreme Court was the only reviewing court, it seemed well-established that a 3-3 opinion meant that the lower court’s decision was binding on the parties to that case but not binding on the Supreme Court.  In addition, the trial court’s resolution of the issues did not bind other trial courts, so the same issues could easily come before the Supreme Court again on an unrelated appeal.

The advent of the Court of Appeals created an additional level of appellate review and with it, potential changes to the effect of a 3-3 Supreme Court decision. Before the Court of Appeals came along, a 3-3 split always meant that the decision of the trial court remained undisturbed.  Now, though, when the Supreme Court is reviewing an opinion of the Court of Appeals, a decision by an equally divided Court means that it is the decision of the Court of Appeals that is affirmed “without precedential value.”

But without precedential value to whom? Again, it seems plain that a 3-3 decision is not binding in the Supreme Court.  It also appears clear that the Court of Appeals opinion is the final word and binding for the parties in that particular case. See, e.g., Reese v. Barbee, 134 N.C. App. 728, 739, 518 S.E.2d 571, 573 (1999) (holding that the first Court of Appeals opinion establishes the law of the case).

But going beyond those immediately affected, what becomes of the issues raised in the Supreme Court via an appeal or petition that is affirmed without precedential value? Pursuant to In re Civil Penalty, a holding on an issue in a published opinion from the Court of Appeals is binding on other panels of that court “unless it has been overturned by a higher court.”  324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).  While the word “overturned” suggests that a 3-3 decision in which the Supreme Court explicitly affirms the Court of Appeals opinion would create precedent binding in the Court of Appeals, the immediately following phrase “without precedential value” suggests just the opposite.

So does the phrase “affirmed without precedential value” mean that the Court of Appeals decision is binding on future Court of Appeals opinions and on the trial courts but not on the Supreme Court? Or following a 3-3 decision, is the ruling of the Court of Appeals considered to be “overturned” for the purposes of determining whether it has precedential value in the Court of Appeals and the lower courts?  The language currently used by the Supreme Court in its 3-3 opinions, considered with its language in In re Civil Penalty, creates an ambiguity that neither court has addressed.

Until the language is definitively interpreted, perplexing scenarios are easy to imagine. Suppose, for instance, that a published Court of Appeals opinion contains a holding on a pertinent and timely issue.  Suppose next that the Supreme Court allows discretionary review, briefs are filed, the case is argued, and the Court issues a per curiam 3-3 opinion.  If the usual accompanying language means that the holding in the published Court of Appeals opinion now lacks precedential value in the Court of Appeals, the Supreme Court has effectively depublished that case, leaving the issues it addressed unresolved and, apparently, up for grabs if a subsequent panel comes to a different conclusion.  [Note: Although North Carolina has no formal procedure for depublishing cases, other states do. See, e.g., State v. Revelation Alo, 216 Mich. App. 669, 678, 550 N.W. 2d 568, 574 and fn. 3 (2003); People v. Dee, 222 Cal. App. 760, 763, 272 Cal. Rptr. 208, 209 (1990).]

On the other hand, if that usual wording is limited to mean only what it apparently meant in the past, i.e., that the issue is unresolved as far as the Supreme Court is concerned, is the Court of Appeals’ resolution binding on later cases in the Court of Appeals because the published Court of Appeals opinion was never “overturned”?  If so, the issue will not be raised again before the Supreme Court on a dissent because the Court of Appeals judges will be bound by the 3-3 decision of the Supreme Court.

Or consider the following scenario.  An unpublished opinion from the Court of Appeals contains a pertinent holding on an issue that was not addressed in any published opinion.  Later, a published Court of Appeals opinion reaches a contrary holding on that issue.  On review of that later  published opinion, the Supreme Court issues a per curiam 3-3 opinion with the standard “affirmed without precedential value” language.  Which opinion carries the day before the Court of Appeals when the issue arises for a third time?  The unpublished opinion that first addressed the issue?  The later published but apparently “depublished” opinion?  Neither?

The interpretation that a 3-3 split should not be binding on the Court of Appeals is supported by at least one policy argument.  Because a 3-3 split indicates that the issue is one on which reasonable minds can (and have) differed, it is important that the issue be resolved by the Supreme Court for the benefit of our state’s jurisprudence.  If the Court of Appeals decision was binding on future Court of Appeals panels, the best opportunity to get the issue back before the Supreme Court—a dissent—would be effectively foreclosed.  A binding 3-3 decision would also prevent future refinement, exploration, and scholarship on the issue in the Court of Appeals.

Professor John Orth, who knows a thing or two about North Carolina constitutional law, has recently written on this issue. “Without Precedential Value—When the Justices of the Supreme Court of North Carolina are Equally Divided,” 93 N.C. L. Rev 1719 (2015).  If this topic interests you, the article is well worth reading.

Until we are given more authoritative word from the courts, it may be that the new statute and rule permitting en banc review by the Court of Appeals will provide a useful way for that court to address these questions.

Bob Edmunds