On March 20, the Supreme Court issued an opinion in In re N.M.W., No. 159PA25, 2026 WL 796105 (N.C. Mar. 20, 2026).  But as many of you know, I’m not here to discuss the holding or outcome of that case.  I want to talk about Justice Berger’s concurrence.

Background first.  Readers of this blog will undoubtedly be familiar with In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989).  This case stands for the proposition that one panel of the Court of Appeals cannot overrule another, also known as horizontal stare decisis.  As In re Civil Penalty explains: “[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”

The concurrence in In re N.M.W. asks whether it is time to retire In re Civil Penalty.  Horizontal stare decisis, Justice Berger explains, can create a problem at the Court of Appeals and a loophole around North Carolina Supreme Court precedent.

Here’s the issue.  What happens when an initial Court of Appeals panel distinguishes and declines to apply North Carolina Supreme Court precedent?  Under In re Civil Penalty, is a later-in-time Court of Appeals panel bound by the initial panel’s decision or by the otherwise-applicable North Carolina Supreme Court decision?  If the former, wouldn’t that allow the second panel to bypass binding precedent of the North Carolina Supreme Court, the ultimate legal arbiter in our State. 

This has played out in the Court of Appeals time and again.  For instance, in State v. Mostafavi, 253 N.C. App. 803, 809, 802 S.E.2d 508, 512-13 (2017), reversed on merits, 370 N.C. 681, 811 S.E.2d 138 (2018), a later-in-time panel declined to follow existing Court of Appeals decisions because they conflicted with Supreme Court precedent.  Did that decision violate In re Civil Penalty?  Or did it properly follow the precedent of our highest Court?  That question was not addressed during the Supreme Court’s subsequent review of the case.

According to the concurrence, there’s no reason we should leave open that question at all.  If our Supreme Court has spoken, a panel should feel free to follow it, prior Court of Appeals precedents notwithstanding.

Aren’t there drawbacks to letting different panels come to different conclusions, though?  The concurrence has an answer for that as well:  en banc review by the full Court of Appeals.  

In a world where In re Civil Penalty is gone, en banc review could be invoked to resolve tensions between competing lines of Court of Appeals cases.  Or, if In re Civil Penalty is kept in place, couldn’t en banc review be the pathway for a second panel to unseat an earlier panel decision it disagrees with?

There’s also the practical overlay here.  In the 8 years since en banc procedures were created, the Court of Appeals has never actually sat en banc.  Should we rely on the fix promised by a procedure that is never actually deployed?

The appellate bar is abuzz in light of Justice Berger’s concurrence.  Is it time to discard In re Civil Penalty?  Or should it be kept in place, but clarified so that a Court of Appeals panel must always follow Supreme Court precedent, even if some prior panel thought it found a way to distinguish it?  That way, In re Civil Penalty would still encourage uniformity as to questions the Supreme Court has yet to reach.

What do you think?