Almost two years ago, 
I blogged about a relatively rare phenomenon: a published denial of a petition for rehearing. Back then, two recent Fourth Circuit cases had produced petitions for rehearing and then subsequent denials of those petitions. But while decisions denying rehearing are typically just one-sentence orders, with nothing more by way of explanation, those two cases had prompted judges to write separately to express their views on the issues at the core of the petitions.… Continue Reading
Taking Care of Business (Part I): Rule 3.1 No-Merit Briefs Warrant (At Least Some Form of) Appellate Review
On Friday, the Supreme Court displayed how busy it has been this summer by releasing 17 authored opinions. Justice Per Curiam (who is fond of affirming/reversing “for the reasons stated in the Court of Appeals” majority/dissent) was conspicuously absent. Justice Earls and Justice Newby vied for the title of “Most Prolific Dissenter.” And the Court released its first three opinions directly reviewing trial tribunal orders terminating parental rights—and for those wondering, all three opinions were decided by the Supreme Court by published opinion, but without oral argument.… Continue Reading
Right for the Wrong Reasons, Redux
NOTICE: Take the following post with a grain of salt. The Court of Appeals issued an updated opinion in the Ellis case on 20 August 2019. Although the opinion is still 2-1, most of the language in the original majority opinion that I blogged about pertaining to appellate practice and procedure has been removed. The updated opinion also leaves no doubt that the issue of reasonable suspicion was first raised at the trial level.… Continue Reading
The Two-Judge Appellate Panel
Last week I blogged about an en banc opinion from the Fourth Circuit for which authorship of the majority opinion was attributed to two judges. (See here) This week from the Fourth Circuit came another two judge oddity-a panel opinion in which the panel consisted of only two judges.
28 U.S.C. § 46 governs the makeup of Circuit Court panels, and directs in subsection b that each circuit “may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges…unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness.”… Continue Reading
Appellate Review of Trial Court Reasoning
Unlike in federal court, judges in North Carolina’s state courts often invite counsel for the prevailing party to draft a proposed order on the court’s ruling. Sometimes the judge will let the parties know of the judge’s rationale through a formal memorandum of ruling or an informal email. Does that document play any role in the appellate process?
Yes, according to the Court of Appeals.… Continue Reading
Where’s (Judge) Waldo?–The Role of Substitute Judges under the Appellate Rules and Rules of Civil Procedure
Imagine that Judge Waldo has orally ruled against your client. A proposed written order has been submitted by the parties to the trial court. You are gearing up for an appeal. However, before a written order is entered, Judge Waldo wins the lottery and immediately retires to explore the world. Can another trial court judge sign the proposed order? Can a substitute judge rule on a new trial motion?… Continue Reading
That Didn’t Last Long: General Assembly Nullifies Supreme Court Opinion With Record Speed, While The Supreme Court Grapples With Error Preservation Problems.
On June 9, 2017, the Supreme Court of North Carolina issued a unanimous opinion holding that when an employer admits the compensability of an injury under the Worker’s Compensation Act, the injured worker is thereafter entitled to a presumption that future medical treatments are causally related to the original compensable injury. Before the ink could dry on Wilkes v. City of Greenville, a “broad coalition of private and public organizations” convinced the General Assembly to essentially nullify the impact of the Supreme Court’s decision.… Continue Reading
The Court of Appeals Is Bound by Prior Panel Opinions—But Maybe Not!
As a champion of the appellate courts’ broad certiorari powers, I am eager for the Supreme Court of North Carolina to review the legal questions raised by cases such as State v. Biddix and State v. Ledbetter I and II. For prior posts, see here , here, here, and here. Those questions include (1) whether there is a conflict between Appellate Rule 21 and N.C.… Continue Reading
Supreme Court Reverses Court of Appeals Application of Appellate Rule 2
Last Friday was a blockbuster appellate day for the Supreme Court of North Carolina. Not only did it effectively declare an appellate jurisdiction statute unconstitutional (see Matt’s blog post), but Justice Newby authored a concurring opinion inspired by “It’s a Wonderful Life.” (“Was Old Man Potter simply morally corrupt or was he also guilty of a crime?”).
For North Carolina’s appellate defenders, however, Friday was not a wonderful day.… Continue Reading
Outside the Box: Authority of the Supreme Court of North Carolina
Affirm . . . reverse . . . those are the words that usually appear at the end of an appellate opinion. But last week, the Supreme Court of North Carolina reminded us that it has broad power when it decides cases.
State v. Hammonds was a criminal case in which the defendant moved to suppress statements made to police detectives while he was involuntarily committed to a mental hospital. … Continue Reading