So much of the law is geared towards addressing what happens when two black-letter principles apply simultaneously but point to different outcomes. 

The Court of Appeals had to resolve just such a conflict this week in In re: J.B.  In that termination-of-parental-rights case, the mother-appellant’s counsel filed a “no-merit” (Anders-like) brief raising two substantive “no-merit” arguments.  But counsel also argued that the trial court lacked subject-matter jurisdiction as to one of the six children—an argument that counsel deemed to have merit. 

That put the panel in a tricky spot.  After all, a potentially meritorious argument does not belong in a no-merit brief, nor did the mother file a pro se brief arguing subject-matter jurisdiction. And it is not the job of the appellate court to construct arguments for the parties.  Thus, perhaps the jurisdictional challenge was waived.

On the other hand, an appellate court that identifies a lack of subject-matter jurisdiction below must vacate the judgment.  See, e.g., In re: K.A.D., 187 N.C. App. 502, 504 (2007). 

Usually, the courts resolve this particular unstoppable-force-meets-immovable-object conflict by delving into the subject-matter-jurisdiction arguments whether properly presented or not.  The idea is that subject-matter jurisdiction is special—it cannot be created by consent and it can be challenged at any time, even sua sponte by the court.

Here, the panel went the other way, declining to engage with the subject-matter-jurisdiction question because it went beyond the scope of the arguments that had been properly presented for review.

Of course, we don’t know exactly what arguments were made by the parties in this case, because the briefs are under seal.  The subject-matter-jurisdiction challenge may not be meritorious after all.  And even if it had merit, it isn’t clear what it would look like to vacate the order just as to one of the six children.

Regardless, this is a fascinating result that should make all of us a bit more nervous about preservation and waiver issues.