As some of our readers may know, I write a monthly column for North Carolina Lawyers Weekly. The topics are what I’d call appellate-adjacent. But this month’s column is right in the wheelhouse of this blog’s readership.
I was privileged to have Justice Dietz sit down with me for a long interview. You can check out the full interview on LinkedIn, where you’re free to leave a comment. You can also check out the print version here.
But there were lots of other interesting tidbits that didn’t make the print version but are likely of interest to the appellate bar.
The following is a grab bag of other snippets from my interview, in no particular order. But I think you’ll find it to be catnip for appellate nerds.
- Working from home. Dietz has been a big fan of working from home, even before the pandemic. When he wants to focus on opinion drafting, he often works from home to avoid interruptions. Dietz lives just a few blocks away from the courthouse, so he can walk over for meetings even on days he plans on working from home.
- En banc. Justice Dietz is among those who wish the Court of Appeals would sit en banc to clean up conflicting strands of its case law.
- Strategies for petitions for discretionary review. Besides pointing to conflicts within the COA, “one of the surest ways to get a PDR allowed is to point out that something the court of appeals did is in conflict with a case from the Supreme Court.”
- Handling petitions. Dietz wants a full revamp of how petitions are handled at the Supreme Court. He wants to follow the practice of the U.S. Supreme Court, where the petition is scheduled to be decided at an upcoming conference as soon as the response is filed. Right now, there’s a big disparity in how petitions get ruled on because each petition gets assigned to one chamber that’s working on it, and then sharing it with everyone else whenever it’s deemed ready. But there’s no timetable for the assigned justice to finish the memo. I can vouch for that: I’m in a case with a pending petition that’s about to have its second birthday. There’s no good reason for that. At a minimum, Dietz would like a way to communicate the status of the petition to litigants, so they don’t wonder whether the petition has fallen into a black hole.
- Amici. Dietz considers amici to be “most important at the discretionary review stage.” That’s because the Court wants to know how important the decision is to people besides the litigants. One of Dietz’s priorities is trying to amend the appellate rules so that there’s a procedure for filing amicus briefs at that stage. Experienced practitioners know that such briefs are usually allowed, but the rule itself doesn’t contemplate filing amicus briefs at this stage.
- Campaigning. Dietz also shared his thoughts on the lack of big-firm attorneys as appellate judges. In his words, running a campaign is “brutal.” Many of the most qualified appellate lawyers aren’t willing to put themselves through that.
- State constitutional law. Dietz recently published a law review article on state constitutional law. He’s a fan of the work of Judge Jeff Sutton, a judge on the Sixth Circuit. Dietz believes that, for constitutional provisions unique to our state constitution, our state should have its own unique standards, not tiers of scrutiny from federal case law, which have their own, different historical context. Dietz wants litigants to help the Court in crafting rules that will sure that the spirit of what the people wanted lives on in the state constitution’s protections. If necessary, litigants should even look at how other states, with similar provisions, have put them to work. He thinks it’s fine for litigants to propose their own standards, even novel ones, so long as they explain how the test works and how it puts the constitutional principles its practice.