On Friday, the Supreme Court of North Carolina reaffirmed that (1) a writ of certiorari remains the most powerful tool in an appellate court’s arsenal and (2) that the Appellate Rules do not place procedural restrictions on an appellate court’s authority to issue its writs.  These issues have been churning for a long time.  See here, here, here, herehere, and here.   A key concern I had based on prior Court of Appeals opinions was that if a conflict or gap between the Appellate Rules and a jurisdictional statute could create a heightened procedural bar, attorneys would invariably start combing through the jurisdictional statutes and the Appellate Rules looking for procedural arguments to effectively hamper the appellate courts’ jurisdictional authority.

The Supreme Court’s decision in State v. Ledbetter is the Court’s third opinion on this issue since 2015.  In a unanimous opinion by Justice Beasley, the Supreme Court held that

  • Appellate “Rule 21 does not prevent the Court of Appeals from issuing writs of certiorari or have any bearing upon the decision as to whether a writ of certiorari should be issued.”
  • “Absent specific statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its jurisdiction and discretionary authority to issue the prerogative writs, including certiorari.”
  • “[I]n the absence of a procedural rule explicitly allowing review, such as here, the Court of Appeals should turn to the common law to aid in exercising its discretion rather than automatically denying the petition for writ of certiorari or requiring that the heightened standard set out in Rule 2 be satisfied.”  See also N.C. Gen. Stat. § 7A-32 (“[T]he practice and procedure” for issuing these prerogative writs “shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.” (emphasis added)).

Ledbetter has been remanded to the Court of Appeals to determine whether it should grant or deny the defendant’s petition for writ of certiorari.  We will keep you updated if further developments arise.

-Beth Scherer