Last October, I blogged about the interaction between State v. Alonzo, __ N.C. App. __, 819 S.E.2d 584 (2018), and In re Civil Penalty, 324 N.C. 373, 379 S.E. 2d 30 (1989).  To recap, In re Civil Penalty holds that the first Court of Appeals opinion addressing an issue controls if that issue arises again and that the Court of Appeals cannot overrule itself.  The Alonzo result was based upon a conclusion that a previous Court of Appeals opinion had improperly overruled an even earlier Court of Appeals opinion.  The Supreme Court allowed a stay in Alonzo (__ N.C. __, 817 S.E.2d 733 (2018), then issued a Writ of Supersedeas (__ N.C. __, 820 S.E.2d 813 (2018)) and allowed discretionary review (__ N.C. __, 820 S.E.2d 811 (2018)).  The stay is still in place as of this writing.

Into this brouhaha wades State v. Gonzales, mentioned in that earlier post. Gonzales is felony child abuse case in which the defendant was charged with prostituting her daughter.  The issue before the Court of Appeals was whether the trial court correctly instructed the jury on the meaning of the term “sexual act” when used in the context of an offense with a juvenile victim.

That question was complicated by a daisy chain of earlier relevant Court of Appeals opinions.  The seminal case is Lark (2009), which was followed by Stokes (2011).  These two cases were later distinguished by McLamb (2014), which was itself upended by Alonzo (2018).

To be specific, in Lark, 198 N.C. App. 82, 678 S.E.2d 693 (2009), a Court of Appeals panel held that fellatio and anal intercourse are “sexual acts” under the applicable “Protection of Minors” statute, while in Stokes, 216 N.C. App. 529, 718 S.E.2d 174 (2011), another panel considering that statute held that digital penetration of the victim’s vagina also was a “sexual act.”  Three years later, however, in McLamb, 234 N.C. App. 753, 760 S.E.2d 337 (2014), a third panel distinguished Lark and Stokes as being limited to the specific behaviors they addressed and held that the different behavior of vaginal intercourse was not a “sexual act” under that same statute.  In Alonzo, a fourth panel held that McLamb was improperly decided and, pursuant to In re Civil Penalty, it was bound by Lark and, by implication, Stokes.  As noted above, Alonzo is now pending before the Supreme Court.

Observing this train wreck, the Gonzales panel sought guidance.  On September 25, 2018, the Court of Appeals issued an order requiring supplemental briefing on the issue of the precedential effect (if any) of the decisions in McLamb and Alonzo.  In addition, the order requested the views of the Solicitor General. Gonzales was argued in the Court of Appeals on 30 October 2018.  On 15 January 2019, the Court issued its unanimous published opinion, authored by Judge Dietz and joined by Judges Bryant and Inman.

The opinion first addressed Alonzo.  To repeat, that case held that McLamb was inconsistent with the earlier Lark and Stokes opinions and therefore was improperly decided.  The Gonzales panel finessed Alonzo by holding that because the decision is currently stayed in the Supreme Court, it does not constitute binding precedent.

The Court then turned to the question of whether Lark/Stokes or McLamb controlled under In re Civil Penalty.  That Supreme Court case holds that, when the Court of Appeals decides a legal issue, “future panels are bound to follow that precedent, even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent.”  The Gonzales panel observed that “[w]hat occurred in Lark, Stokes, and McLamb is the same sequence of events that gave us In re Civil Penalty.”  However, with Alonzo out of the picture, the panel determined that, because “In re Civil Penalty does not authorize panels to overrule existing precedent on the basis that it is inconsistent with earlier decisions of this Court,” McLamb applies as the most recent controlling case.

This holding in Gonzales is interesting because it focuses on the conflicting holdings between Lark/Stokes and McLamb, giving the nod to the later McLamb, while In re Civil Penalty focuses on conflicts between the original opinion and subsequent opinions that attempt to distinguish the original, giving the nod to the former.  The Gonzales panel concluded that a panel must follow existing Court of Appeals precedent “even if the previous panel’s decision involved narrowing or distinguishing an earlier controlling precedent.”  In other words, existing precedent must be followed, even if it violates In re Civil Penalty.

Incidentally, the Gonzales court also noted that In re R.T.W., 359 N.C. 539, 542 n.3, 614 S.E.2d 489, 491 n.3 (2005), which stated that the earlier of two conflicting opinions controls, did not apply.  That case addresses only instances where the Court of Appeals has issued inconsistent opinions through inadvertence.  Here, conflict between the opinions was acknowledged and discussed.

My earlier blog opined that Gonzales could be a vehicle for the Court of Appeals to exercise its new authority to hear cases in banc.  You can see how far I got with that idea.  Perhaps the Supreme Court will use Alonzo to calm these roiled waters.

All that said, the existence of differing opinions is readily understood.  Many, even most, appellate Judges and Justices deliberately write narrow opinions that are limited to the issue before the court.  While the temptation to write for the ages (and rack up those Shepard’s cites) can be strong, it only takes one or two encounters with old and awkward precedent to realize that such terms as “never” and “always” in an opinion can cause immense difficulties when scenarios arise that the older court never saw coming.

Thus, it is unsurprising that different parts of a statute, especially a long or complex one, which are analyzed in different contexts at different times might be interpreted differently.  Yet, In re Civil Penalty recognizes that slicing the statutory salami into wafer-thin portions yields little good either for practitioners or for the jurisprudence.  As we are seeing, balancing the need for guiding precedent against the equally practical need to be able to address changing or unforeseen circumstances is no easy task.

I close with this final intriguing thought.  What if the Supreme Court determines that discretionary review was improvidently granted in Alonzo?  If so, will each Court of Appeals panel make its own decision whether Alonzo or Gonzales controls?

-Bob Edmunds