As you no doubt have noticed, virtually every batch of opinions from our State appellate courts includes at least one “Rule 3.1” case involving allegations of abuse, neglect, or dependency. What you may forget is that each of those cases involves an appellate attorney advocating for the best interests of the children. Although the court system has some attorneys on staff, the children are most often represented by pro bono attorneys as part of the Guardian ad Litem program.… Continue Reading
The trial judge who presides over a hearing or trial is supposed to, and usually does, sign the resulting written order. But what happens if that normal process is not followed? What options do the parties have?
Last week, the Supreme Court articulated one option that is not available: filing a notice of appeal. In re C.M.C. involved a bench trial of a petition for termination of parental rights.… Continue Reading
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
It is beginning to feel like a bi-annual holiday tradition between me and our blog readers: another rule-update summary. Yesterday afternoon, the Supreme Court issued its latest order amending the North Carolina Rules of Appellate Procedure. The amendments impact Appellate Rules 3, 3.1, 4, 9, 11, 12, 13, 18, 26, 28, 30, 37, 41, brand new Appellate Rule 42, as well as Appendixes A, B, and D (whew)!… Continue Reading
On Tuesday, the Court of Appeals issued its latest batch of opinions. Good news: the impending turkey feast has not slowed the court’s pace in grappling with interesting appellate issues. Bad news: still no real resolution for most of them.
Rule 3.1 No-Merit Briefs: A Middle Ground?
In July and October, Kip wrote about the evolving disagreement in the Court of Appeals as to what type of appellate review is required when appointed counsel files a no-merit brief under Appellate Rule 3.1. … Continue Reading
Back in July, the Court of Appeals issued a published opinion in In re L.V. dismissing an appeal from an order terminating parental rights after the parent’s attorney filed a no-merit brief. The parent filed a motion for en banc rehearing, pursuant to new Appellate Rule 31.1, but the motion was denied. After the rehearing motion was filed, the court did modify the opinion slightly to correct quotation of a previous opinion.… Continue Reading
At first blush, it might not seem surprising that the Court of Appeals would dismiss an appeal if “[n]o issues have been argued or preserved for review.” But what is surprising is the fact that the Court reached that conclusion in a published opinion and, in doing so, made a significant change to the jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure (which governs appeals in certain types of cases involving juveniles including terminations of parental rights).… Continue Reading
Last week, we wrote about a bill that was introduced in the legislature that would shrink the Court of Appeals to 12 judges while tweaking the jurisdiction of the Supreme Court to cover direct appeals from orders on class action certification and to provide another pathway for consideration of “Bypass PDRs.”
We had a hard time understanding two things about the bill: (1) why did the bill also give an appeal right to the Supreme Court from decisions regarding an attorney’s scheduling conflicts under Rule 3.1 of the General Rules of Practice; and (2) how can the bill be characterized as a workload-shifting measure when the sum total of cases shifted to the Supreme Court would likely number in the single digits annually?… Continue Reading
Appellate practitioners are undoubtedly familiar with the general rule that “there is no right of immediate appeal from interlocutory orders.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). But interlocutory orders can be reviewed eventually—on a later appeal from the final judgment. See N.C. Gen. Stat. § 1-278. Earlier this year, the court of appeals reaffirmed that if certain conditions are met, the court can review such an interlocutory order in connection with its review of the final judgment even if the notice of appeal does not specifically reference the interlocutory order.… Continue Reading
1) Have a right to appeal
In re P.K.M. involved a juvenile delinquency proceeding against a twelve-year-old boy who moved to suppress incriminating statements he had made to an investigating detective and a school’s resource officer. The trial court granted the motion to suppress, and the state sought to appeal. But the North Carolina Court of Appeals dismissed the appeal and explained that under the juvenile code, the state only has the right to appeal when a state statute is held unconstitutional or when an order terminates the prosecution.… Continue Reading